THE “NO WHEELCHAIR” HOA IS NOT EVEN A DEED-RESTRICTED HOA!

An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc.

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.


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