GREEDY SERVICE PROVIDERS ASK FOR VIOLATION OF PRIVATE PROPERTY RIGHTS

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

Published March 11, 2007

Even in Communist East Germany nobody was forced to join a group they didn't want to be part of. But here in the United States of America -- The Land Of The Free -- a lobbying group for the service providers for community associations is trying to see a bill enacted that would actually do just that: Force homeowners against their will to be part of an association they don't want to be part of!

This is the wording -- very short -- considering the damage it can create!

Section 1. Section 712.11, Florida Statutes, is created to read:

1 712.11 Covenant revitalization.-- A homeowners'

2 association not otherwise subject to chapter 720 may use the

3 procedures set forth in ss. 720.403-720.407 to revive

4 covenants that have lapsed under the terms of this chapter.

The language is already vague in 720.403-720.407 -- and leaves more holes than a Swiss cheese for "inventive interpretation.” We have seen many exquisite examples. This addition was made in the last minutes of the legislative session in 2004, tagging it on to the HOA Task Force Bill SB 2984 -- with no regard to the effect it will have on many homeowners. The result: Confusion in the Department of Community Affairs -- supposed to regulate this provision -- many lawsuits and neighborhood wars that are still raging. Please, don't forget that the Revitalization provision in FS 720 was NOT a work of the Governor's HOA Task Force!

Under the cover of "Protecting Property Values" the industry created another great source of income. Even the Brothers Grimm wrote better Fairy Tales, because associations do everything else but protect property values.

I guess it's easier to fleece homeowners if they are part of an association? They surely are less protected against scams, criminal mischief and embezzlement than their neighbors outside of associations!

We had the same arguments in 2006, when Governor Jeb Bush finally vetoed the bill that included this provision. Please read my "OPEN LETTER TO GOVERNOR JEB BUSH".

And to add insult to injury, well-known CAI (Community Associations Institute) lobbyist Travis Moore dubbed this bill the "GOOD GUYS BILL"! Then who are the bad guys? The folks that don't want to live in an unregulated dictatorship called HOA -- and elected to buy a home in a community with expired deed restrictions -- to live free from abusive boards, management companies and attorneys?

In 2004/2005, when the opt-out provision in FS 720 still functioned, we saw in one "revitalized" association more than 70% of the owners opt out, even if they had to pay the court cost. I guess it shows the un-popularity of these homeowners' associations? The only real winners of these associations are the service providers -- and that's why they are pushing so hard for this dangerous provision.

Here is the solution to fix the problem, but as you can imagine, the service providers don't want that to happen. But I think our Constitution gives owners the right to make a choice! Then we can only hope for the integrity of our elected officials!

Section 720.405(6), Florida Statutes, is amended to read:

FS 720.405 Organizing committee; parcel owner approval.--

(6) A majority of ~~the~~ 75% of all affected parcel owners must agree in writing to the revived declaration of covenants and governing documents of the homeowners' association. or approve the revived declaration and governing documents by a vote at a meeting of the affected parcel owners noticed and conducted in the manner prescribed by s. 720.306. Proof of notice of the meeting to all affected owners of the meeting and the minutes of the meeting recording the votes of the property owners shall be certified by a court reporter or an attorney licensed to practice in the state

Section 720.407(4), Florida Statutes, is amended to read:

720.407 Recording; notice of recording; applicability and effective date, opt-out clause --

(4) Immediately after recording the documents, a complete copy of all of the approved recorded documents must be mailed ~~or hand delivered~~ to the owner of each affected parcel by certified mail to the property owner's address. For purposes of this section a property owner's address is defined as the address where the property owner receives his property tax notices. The revived declaration and other governing documents shall be effective upon recordation in the public records with respect to each affected parcel subject thereto, regardless of whether the particular parcel owner approved the revived declaration. Upon recordation, the revived declaration shall replace and supersede the previous declaration with respect to all affected parcels then governed by the previous declaration and shall have the same record priority as the superseded previous declaration. With respect to any affected parcels that had ceased to be governed by the previous declaration of covenants as of the recording date, the revived declaration may not have retroactive effect with respect to the parcel and shall take priority with respect to the parcel as of the recording date. Any owner whose parcel is affected by the revived declaration, has the right to commence an action within 1 year after receipt by certified mail of the approved recorded documents for a judicial determination that the previous declaration did not govern that parcel as of the effective date of this act and that any revival of such declaration as to that parcel would unconstitutionally deprive the parcel owner of rights or property. A revived declaration that is implemented pursuant to this act shall not apply to or affect the rights of the respective parcel owner recognized by any court order or judgment in any such action commenced within 1 year after receipt by certified mail of the approved recorded documents, and any such rights so recognized may not be subsequently altered by a revived declaration implemented under this act without the consent of the affected property owner.

This amendment to FS 720.405-407 would give every property owner the choice -- and that's the way it should be! But it seems that we have to fight for every little freedom remaining in this country. There is always somebody who wants to restrict our freedom and wants to make a fast buck -- at the expense of us homeowners!

Just tell the members of the Senate Committee on Community Affairs to remove this provision from the otherwise perfectly fine bill, because this provision clearly violates our private property rights

The Committee convenes on Wednesday, March 14, 2007, at 1:30 pm, in Room 412-K of the Senate Building . Since Tallahassee is a long distance from most of us, please call the district offices of your local senators and send e-mails to protest this clear violation of our property rights!

Please tell them what you think!

CONTACT ADDRESSES FOR MEMBERS OF

SENATE COMMITTEE ON COMMUNITY AFFAIRS