Post by Admin on Jan 6, 2016 9:16:58 GMT -5
1- Owners desire the image of a deed-restricted community to control environmental variables affecting property values.
This belief is subjective. Real estate valuation can be affected by the existence of deed restrictions either positively or negatively-- or not at all. The presence or absence of CCR’s is not considered in property tax valuations or market prices estimated by real estate practitioners. Buyers are just as likely to seek deed-restricted properties as they are to reject them.
Call this one a coin toss.
2- SLohA needs to have Covenants to enforce architectural rules.
Architectural Rules: The original Covenants did not give SLohA architectural authority over owner parcels; therefore, the resurrected Covenants will not accomplish this. And, without the authority of the Covenants, Rules are null and void. SLohA has very limited architectural authority which has been either preempted by Polk County (allowing homes, antennas, landscaping, signs) or is consistent with Polk County (setbacks). Architectural “rules” are null and void without the underlying authority of Covenants, a fact of life which SLohA and its attorneys recently learned at great expense to the Owners.
Enforcement: The original Covenants did not give SLohA enforcement authority to levy fines on owners who violate covenants or rules. The state of Florida gives HOA's a few limited rights to withhold use of certain amenities from delinquent parcels. Reviving Covenants will restore these few remedies (which are not particularly onerous). The resurrected Covenants will not accomplish this for parcels that are not delinquent.
With Covenants, SLohA has exactly the same enforcement remedy that Owners have. SLohA can bring a civil suit against Owners for violation of Covenants/Rules (SLohA has a much larger piggy bank). Owners can bring a civil suit against SLohA and its directors for violations of the Covenants and/or failure to uphold the Covenants/Rules.
Call this one both FALSE (Architectural) and a DRAW (Enforcement). A DRAW because Covenants afford both Owners and SLohA with the same rights to seek relief and redress of violations of the Contract. A FALSE because SLohA has no architectural authority over private parcels and cannot legally make rules which do not have underlying covenanted authority.
3- SLohA needs Covenants to enforce Rules & Regulations
Same as #2. The old Covenants do not give SLohA enforcement authority and neither will revitalized ones. Though some legal scholars believe that FS720 provides state authority and guidelines for HOA fines for violations, other scholars disagree. Florida’s law has been changed 3 times in the last ten years and will continue to be cH allenged. There are at least two reasons for legal cH allenge.
First, the Legislature does not have the authority to give HOA's fining authority, which is a governmental power of the judicial branch. It is considered a constitutional police power reserved only to the branch of government that has authority to punish--the Judicial. Corporations are not governmental entities. Under that doctrine, the legislative branch has overstepped its bounds and delegated police powers to corporations (condos, hoa's), without authority.
Second, because fining is a material change negatively impacting property rights not agreed to by all parties to the Contract. This "substantive" change in FS720 is not applicable to SLohA because it was incorporated under FS617--decades before FS720 was enacted. In its governing documents, SLohA did not agree to be bound by future legislative changes altering property use. The present law is considered unconstitutional by legal scholars and most well-run HOA's prefer to seek compliance rather than punishment.
This one earns a definitive FALSE.
4- S-bag can add anything it wants to the revitalized Covenants.
Amendments to a contract can only modify and “flesh out” a provision or restriction that has already been agreed to by all parties to the Contract. Amendments cannot add a NEW provision that imposes a NEW burden on one of the parties. Anything NEW must be agreed by 100%, per common law. Revitalized documents will be given an amendatory provision by Florida but one cannot amend anything unless it is already present in the contract.
For example, old SLohA Covenants provide only for "bad debt" judicial process for collecting delinquent assessments. SLohA does not have authority to lien and foreclose on an owner's home for non-payment. (This makes sense; SLR was developed as a campground which forbid homes.) Although SLohA has done so in the past--it did so without covenanted authority and the affected owners filed no objection to its actions. The fact that owners didn't object does not give legitimacy to the action or protection in the future. SLohA cannot ADD a lien/foreclosure provision and call it an amendment.
FALSE: proven in common law and common sense.
5- S-bag can legally have homes in the park.
S-bag was preempted by the superior laws of Polk County when it changed SLR’s PUD in 1994 to permit modular and manufactured housing. It is not necessary to try to incorporate this into the covenants, which would require 100% owner agreement as a NEW provision. Owners are adequately protected by professional engineers at Polk County who review S-bag site plans, issue permits and certify occupancy to ensure safe and properly-sited structures and additions.
IRRELEVANT. S-bag is already allowed to have homes per superior authority.
These seem to be the most frequent reasons I have heard as to why S-bag should have Covenants. Informed Owners who want to exercise informed consent will examine these perceived benefits and subject them to Fact-Checking.
There is one more reason I have heard that will be its own thread to follow: Over 55+
Disclaimer: I am not an attorney and the above is offered for information and entertainment purposes. If you need legal advice about your property rights, consult an HOA attorney who is familiar with MRTA.
This belief is subjective. Real estate valuation can be affected by the existence of deed restrictions either positively or negatively-- or not at all. The presence or absence of CCR’s is not considered in property tax valuations or market prices estimated by real estate practitioners. Buyers are just as likely to seek deed-restricted properties as they are to reject them.
Call this one a coin toss.
2- SLohA needs to have Covenants to enforce architectural rules.
Architectural Rules: The original Covenants did not give SLohA architectural authority over owner parcels; therefore, the resurrected Covenants will not accomplish this. And, without the authority of the Covenants, Rules are null and void. SLohA has very limited architectural authority which has been either preempted by Polk County (allowing homes, antennas, landscaping, signs) or is consistent with Polk County (setbacks). Architectural “rules” are null and void without the underlying authority of Covenants, a fact of life which SLohA and its attorneys recently learned at great expense to the Owners.
Enforcement: The original Covenants did not give SLohA enforcement authority to levy fines on owners who violate covenants or rules. The state of Florida gives HOA's a few limited rights to withhold use of certain amenities from delinquent parcels. Reviving Covenants will restore these few remedies (which are not particularly onerous). The resurrected Covenants will not accomplish this for parcels that are not delinquent.
With Covenants, SLohA has exactly the same enforcement remedy that Owners have. SLohA can bring a civil suit against Owners for violation of Covenants/Rules (SLohA has a much larger piggy bank). Owners can bring a civil suit against SLohA and its directors for violations of the Covenants and/or failure to uphold the Covenants/Rules.
Call this one both FALSE (Architectural) and a DRAW (Enforcement). A DRAW because Covenants afford both Owners and SLohA with the same rights to seek relief and redress of violations of the Contract. A FALSE because SLohA has no architectural authority over private parcels and cannot legally make rules which do not have underlying covenanted authority.
3- SLohA needs Covenants to enforce Rules & Regulations
Same as #2. The old Covenants do not give SLohA enforcement authority and neither will revitalized ones. Though some legal scholars believe that FS720 provides state authority and guidelines for HOA fines for violations, other scholars disagree. Florida’s law has been changed 3 times in the last ten years and will continue to be cH allenged. There are at least two reasons for legal cH allenge.
First, the Legislature does not have the authority to give HOA's fining authority, which is a governmental power of the judicial branch. It is considered a constitutional police power reserved only to the branch of government that has authority to punish--the Judicial. Corporations are not governmental entities. Under that doctrine, the legislative branch has overstepped its bounds and delegated police powers to corporations (condos, hoa's), without authority.
Second, because fining is a material change negatively impacting property rights not agreed to by all parties to the Contract. This "substantive" change in FS720 is not applicable to SLohA because it was incorporated under FS617--decades before FS720 was enacted. In its governing documents, SLohA did not agree to be bound by future legislative changes altering property use. The present law is considered unconstitutional by legal scholars and most well-run HOA's prefer to seek compliance rather than punishment.
This one earns a definitive FALSE.
4- S-bag can add anything it wants to the revitalized Covenants.
Amendments to a contract can only modify and “flesh out” a provision or restriction that has already been agreed to by all parties to the Contract. Amendments cannot add a NEW provision that imposes a NEW burden on one of the parties. Anything NEW must be agreed by 100%, per common law. Revitalized documents will be given an amendatory provision by Florida but one cannot amend anything unless it is already present in the contract.
For example, old SLohA Covenants provide only for "bad debt" judicial process for collecting delinquent assessments. SLohA does not have authority to lien and foreclose on an owner's home for non-payment. (This makes sense; SLR was developed as a campground which forbid homes.) Although SLohA has done so in the past--it did so without covenanted authority and the affected owners filed no objection to its actions. The fact that owners didn't object does not give legitimacy to the action or protection in the future. SLohA cannot ADD a lien/foreclosure provision and call it an amendment.
FALSE: proven in common law and common sense.
5- S-bag can legally have homes in the park.
S-bag was preempted by the superior laws of Polk County when it changed SLR’s PUD in 1994 to permit modular and manufactured housing. It is not necessary to try to incorporate this into the covenants, which would require 100% owner agreement as a NEW provision. Owners are adequately protected by professional engineers at Polk County who review S-bag site plans, issue permits and certify occupancy to ensure safe and properly-sited structures and additions.
IRRELEVANT. S-bag is already allowed to have homes per superior authority.
These seem to be the most frequent reasons I have heard as to why S-bag should have Covenants. Informed Owners who want to exercise informed consent will examine these perceived benefits and subject them to Fact-Checking.
There is one more reason I have heard that will be its own thread to follow: Over 55+
Disclaimer: I am not an attorney and the above is offered for information and entertainment purposes. If you need legal advice about your property rights, consult an HOA attorney who is familiar with MRTA.