Judge denies APV’s request for dismissal

Article Courtesy of  The Ledger

By Bob Ferguson

Published February 22, 2018


The fourth time looks like it will be the charm for a trio of Poinciana homeowners.

According to court documents, Judge Catherine L. Combee denied the request by the Association of Poinciana Villages and developer AV Homes, more commonly referred to as Avatar, to have a fourth amended complaint dismissed. The complaint filed by homeowners Peter Jolly, Victory Destremps and Annette Brown-Best alleges a breach of contract by the HOA and developer.

“It’s been two years and almost $100,000,” said Keith Laytham, a spokesman for the civic nonprofit Association of Poinciana Villages.

The three homeowners and representatives for the HOA and developer met in the Circuit Court on Feb. 2 and Feb. 5. The next hearing is slated for Feb. 26.

The trio of homeowners had three previous lawsuits thrown out. Combee’s denial came Feb. 12.

The claims by the homeowners are that the developer and HOA violated the 1985 agreement in which the developer was supposed to turn over control of the community to the homeowners. Part of the homeowners’ case is that APV violated Florida’s Marketable Record Title Act that forced the homeowners’ association to update its deed restrictions after 30 years.

According to the 1985 agreement, Laytham said, control was supposed to be turned over in 1991. The developer was scheduled to pay diminishing HOA fees until 1996 when the fees were set to be removed. Laytham said the fees have been waived, but control has not been relinquished.

“That’s where these election results come in,” Laytham said. “As Jolly and Destremps found out, if you don’t want to do what Avatar says, you get thrown off the board.”

APV is a community of nearly 27,000 homes that spans parts of Polk and Osceola counties. The HOA is broken up into nine villages with each represented by a five-member board. One member from each village board is selected to serve on the HOA’s master board.

For undeveloped plots, the developer is given votes based on how many homes could be built on the vacant land. Laytham said the developer exaggerates those vote counts by including marshy areas like wetlands and plot sizes undevelopable by county land development regulations to put board members in place who are favorable to AV Homes.

Destremps and Jolly are former board members. In 2015, APV was forced to file an injunction against the two after they removed $1.6 million from APV and placed it into accounts only they controlled. Most of the money was recovered late that year.

Another element of the complaint filed by the homeowners pertains to Solivita. Laytham said in 2012, the development was allowed to secede from APV, but that should have only been done with a majority vote from each village board. Laytham claims that did not happen.

“There were 6,000 parcels in Solivita and each of them was paying into the HOA,” Laytham said. ”(With those gone), they had to either cut back on services or increase fees. That says to the rest of the community that Solivita is special. That’s just one of the ways that Avatar breaks the rules.”

Representatives for APV could not be reached for comment.