Condo owners win appeal over revising homeowner rules

Article Courtesy of  The Florida Record

By Takesha Thomas

Published February 9, 2019

  

LAKELAND — A group of condominium owners have won a court appeal after the state's Department of Economic Opportunity claimed that the association was not entitled to amend or revise its property owners rules.

On Jan. 25, the U.S. District Court of Appeal of Florida, Second District granted a reversal of a lower court ruling that found that Eastwood Shores Property Owners Association was not entitled to revive its declaration of covenants and restrictions because it is not a "homeowners' association" as defined by the Marketable Record Titles to Real Property Act. The homeowners sued the Florida Department of Economic Opportunity over the matter.

The appeals court found that the department "erroneously interpreted the applicable sections of MRTA and chapters 718 and 720," and reversed the order "determining that the Association does not qualify as a 'homeowners' association' and therefore is not entitled to revive its declaration of covenants." The court ruled that the department will now have to review the association's proposed revived declaration.

The appeals court also found that "because Eastwood Shores' declaration of covenants provides that '[e]very person or entity who is a record fee simple Owner of a Unit…shall be a member of the Association,' that '[m]embership shall be appurtenant to, and may not be separated from, ownership of any Unit,' and that the Association is authorized to enforce the covenants and restrictions of Eastwood Shores, the Association is a homeowners' association as defined in section 712.01."

According to court documents, the association was denied a proposed revival claiming that the parcels in the association are classified as condominiums. The department denied the proposal based on Florida Statutes, Florida's Condominium Act and Florida's Homeowners' Association Act.

In its argument, the association said that it does not dispute the sections to MRTA law, but argued that it remains eligible to seek revival of its declaration based on the covenant revitalization sections of MRTA.

Eastwood Shores Condominiums recorded its declaration of covenants and restrictions in the public record of Pinellas County in 1979, based on court documents.

Chief Judge Edward C. LaRose, writing in part in his dissenting vote, "My disagreement with the majority is one of statutory construction. The Association's claim that it was established 'in 1979 in such a manner that it would be considered a [c]hapter 720 homeowners['] association' does not compel a conclusion that it is a chapter 712 'homeowners' association,' especially given that it concedes it is subject to chapter 718."

Additionally, LaRose wrote, "the Association has not presented, and I have not found, any indication that the legislature intended for section 712.11 to apply to condominium associations."


Eastwood Shores Prop. Owners Ass'n v. Dep't of Econ. Opportunity

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