Post by Dick Tracy on Feb 4, 2015 11:07:21 GMT -5
The Forum Administrator ask me to post this. This is an opinion from SNAP legal counselor Frd O'N eel (Attny) who strongly recommends that you do not sign the Ballot and Written Consent Form. This is an important opinion and everyone should read before going on with the process of Revitalization.
NOTE OPINION BELOW:
Do NOT sign and send in the "written consent."
There are two major problems with the "written consent." The first problem is that, as it is written, owners in Unit 1, for example, are asked to vote on revitalizing the original declarations for Units 2 and 3 (and vice versa). Unit 1 owners have no more "standing" to vote on the issue of revitalizing the declarations of Units 2 and 3 than they do to vote on revitalizing the declaration (if any) governing the adjacent orange groves. The second problem is that sub-section (1) of the third paragraph contains an "acknowledgement" by the signer that the owner's property was once governed by the declarations of the other units (which it was not), as well as the 1986 and 1989 Amendments. As I've said a million times, the 1986 and 1989 Amendments are invalid, in my opinion, since none of the original declarations contain an amendment authorization provision and the 1986 and 1989 Amendments were not approved by 100% of the lot owners.
I guarantee that this "acknowledgement" was stuck in the ballot to try to create an "estoppel" of unit owners in an effort to keep them from ever contesting the validity of the 1986 and 1989 Amendments.
As I've said before, under Florida law, where there is no provision in the original declaration granting the association or lot owners as a group the authority to amend the declaration, the declaration cannot be amended without approval by 100% of the homeowners. Additionally, neither the lot owners nor the association can effectively amend the declaration by passing a corporate article or bylaw.
For example, in the case of Westwood Community Two Association, Inc. v. Lws, 687 So.2d 296 (Fla. 4th DCA 1997), the association passed a by-law limiting occupancy to households with at least one person age 55 or older (similar to the 1989 Amendment). The original declaration prohibited occupancy by persons sixteen years of age or under. The original declaration contained no amendment authorization provision (similar to the original declarations in S-bag). Subsequent to the change in the Fair Housing Act, the association attempted to add the new 55 and older age restrictions (similar to S-bag). The appellate court held the by-law could not effectively amend the declaration and, hence, the by-law was invalid.
A similar result was reached in S&T Anchorage, Inc. v. Lws, 575 So.2d 696 (Fla. 3d DCA 1991), where the president of the association deeded away certain waterfront rights on common property. One lot owner objected, arguing the declaration gave no such authority to the association. In siding with the lot owner, the appellate court stated, in part, the following:
"The articles and bylaws [of the Association] must be consistent with the provisions of the superior document, the Declaration. ... The binding Declaration does not Grnt any authority to the Association to sell, convey, assign, or in any way encumber the common areas. ... Even if, as Anchorage asserts, the Assignment and settlement were adopted pursuant to a proper vote
as provided by the Association bylaws, the absence of authority to execute such documents renders them ultra vires [and, hence, void] ..."
Finally, it is unlikely, but it is possible that somewhere down the road some plaintiff with children wishing to buy in S-bag, if obstructed by the association, may file a Fair Housing lawsuit. The question then becomes, who to S u e. I have one lawsuit going on right now also involving an invalid amendment to a declaration where the original declaration required amendments to be by a single document executed by the owners of a majority of the lots in the subdivision. I am presently suing each one of the lot owners whose executed that document for, as a group, clouding my client's title with an invalid amendment.
Down the road, could you possibly be sued personally by a Fair Housing plaintiff for having executed this proposed, consent to these invalid amendments? Again, it's unlikely.
But, it's possible.
So, in closing, I repeat: Do NOT sign and send in the "written consent."
Frd O'N eel (Attny)
NOTE OPINION BELOW:
Do NOT sign and send in the "written consent."
There are two major problems with the "written consent." The first problem is that, as it is written, owners in Unit 1, for example, are asked to vote on revitalizing the original declarations for Units 2 and 3 (and vice versa). Unit 1 owners have no more "standing" to vote on the issue of revitalizing the declarations of Units 2 and 3 than they do to vote on revitalizing the declaration (if any) governing the adjacent orange groves. The second problem is that sub-section (1) of the third paragraph contains an "acknowledgement" by the signer that the owner's property was once governed by the declarations of the other units (which it was not), as well as the 1986 and 1989 Amendments. As I've said a million times, the 1986 and 1989 Amendments are invalid, in my opinion, since none of the original declarations contain an amendment authorization provision and the 1986 and 1989 Amendments were not approved by 100% of the lot owners.
I guarantee that this "acknowledgement" was stuck in the ballot to try to create an "estoppel" of unit owners in an effort to keep them from ever contesting the validity of the 1986 and 1989 Amendments.
As I've said before, under Florida law, where there is no provision in the original declaration granting the association or lot owners as a group the authority to amend the declaration, the declaration cannot be amended without approval by 100% of the homeowners. Additionally, neither the lot owners nor the association can effectively amend the declaration by passing a corporate article or bylaw.
For example, in the case of Westwood Community Two Association, Inc. v. Lws, 687 So.2d 296 (Fla. 4th DCA 1997), the association passed a by-law limiting occupancy to households with at least one person age 55 or older (similar to the 1989 Amendment). The original declaration prohibited occupancy by persons sixteen years of age or under. The original declaration contained no amendment authorization provision (similar to the original declarations in S-bag). Subsequent to the change in the Fair Housing Act, the association attempted to add the new 55 and older age restrictions (similar to S-bag). The appellate court held the by-law could not effectively amend the declaration and, hence, the by-law was invalid.
A similar result was reached in S&T Anchorage, Inc. v. Lws, 575 So.2d 696 (Fla. 3d DCA 1991), where the president of the association deeded away certain waterfront rights on common property. One lot owner objected, arguing the declaration gave no such authority to the association. In siding with the lot owner, the appellate court stated, in part, the following:
"The articles and bylaws [of the Association] must be consistent with the provisions of the superior document, the Declaration. ... The binding Declaration does not Grnt any authority to the Association to sell, convey, assign, or in any way encumber the common areas. ... Even if, as Anchorage asserts, the Assignment and settlement were adopted pursuant to a proper vote
as provided by the Association bylaws, the absence of authority to execute such documents renders them ultra vires [and, hence, void] ..."
Finally, it is unlikely, but it is possible that somewhere down the road some plaintiff with children wishing to buy in S-bag, if obstructed by the association, may file a Fair Housing lawsuit. The question then becomes, who to S u e. I have one lawsuit going on right now also involving an invalid amendment to a declaration where the original declaration required amendments to be by a single document executed by the owners of a majority of the lots in the subdivision. I am presently suing each one of the lot owners whose executed that document for, as a group, clouding my client's title with an invalid amendment.
Down the road, could you possibly be sued personally by a Fair Housing plaintiff for having executed this proposed, consent to these invalid amendments? Again, it's unlikely.
But, it's possible.
So, in closing, I repeat: Do NOT sign and send in the "written consent."
Frd O'N eel (Attny)