THE “NO WHEELCHAIR” HOA IS NOT
EVEN A DEED-RESTRICTED HOA! |
An
Opinion By Jan Bergemann Published March 27, 2014
Remember
the story in the Tampa Tribune (Clash
over wheelchair access dims hopes for dream home) last week
about a lawsuit over wheelchair accessibility for a location where HOA
meetings were held? Not
only was the ruling contradicting any common sense, it clearly
contradicted the legislative intent of the Florida statutes requiring public
meetings. How public is a meeting if an owner in a wheel chair can’t
participate? Judge
Linda Babb’s ruling is in my opinion another clear example for the lack
of competence of many lower court judges who are just sitting on the bench
because they needed a paying job after they failed in private practice. My
thanks go to Senator Wilton Simpson who sponsored Senate
Bill 1450 in order to
close this embarrassing loop hole – clarifying the language regarding
public access to association meetings! The
board members of the Bayhead
Landings Property Owners Association, Inc. in Pasco County may
have celebrated their victory last week, but this week they received a
devastating blow when Judge William G. Sestak ruled on a Motion
for Summary Judgment: "Thus,
the deed restrictions were not properly extended and have expired."
With other words, the HOA is no longer a HOA with valid deed restrictions. Attorney
Barbara Stage, who represented the owners fighting the attempted
preservation of the deed-restrictions that was ruled invalid said: “This case was not about the Plaintiffs not wanting deed restrictions,
but about making sure the HOA followed the rules for extending them, and
issue brought up by the Whitts in their case, but became moot when the HOA
revoked a “Notice of Preservation.”
Another Notice of Preservation was filed later that same year.
The Bylaws required the members to vote in person or by proxy at a
meeting. Fla. Stat. 720
provided the same unless the HOA documents stated otherwise.
Instead the HOA didn’t follow their own rules and collected
ballots door-to-door, claiming the “written consent” provision in Fla.
Stat. 617.0701 allowed for written consents.
This totally ignored the Fla. Stat. 617.1703, which states Chapter
720 trumps Chapter 617 if there is a conflict.” This
is a typical example for a board not following their own rules, using the
excuse: “It has been always done this way.” This “excuse” has cost
already lots of association members a lot of money. Fights
over expired deed-restrictions are pretty common in Florida’s
homeowners’ associations. The provisions dealing with COVENANT
REVITALIZATION (FS
720.403-720.407)
and the MARKETABLE
RECORD TITLE ACT (FS 712) are
pretty difficult to read and to understand. Rulings go both ways, often
depending on the competence of the judge ruling on this issue. |