Article Courtesy of the Sun Sentinel

By Tal Abbady 
Posted March 9, 2004

Homeowners and boards locked in bitter disputes over mandatory country club membership are finding a new battleground in Palm Beach County's courts.

Residents of Boca Lago Country Club, west of Boca Raton, have hired an attorney to look into the community's plan to impose mandatory club membership. At The Hamlet in Delray Beach, a lawsuit by residents claims that mandatory membership violates a common law granting homeowners the right to sell their properties without unreasonable restrictions. A similar suit in the now-mandatory-membership community of Stonebridge, west of Boca Raton, was resolved in a settlement.

In the Central Florida community of Alaqua in Longwood, a showdown between two camps of residents ended in January when voters refused to endorse a proposal to impose a $3,500 fee to keep the failing country club alive. That vote effectively closed, at least temporarily, the country club's doors.

The legal argument called "alienation of property" rights was common in the 1970s among homeowners around the country fighting banks that imposed a clause in mortgages requiring a borrower to pay off a loan balance upon the sale of the property.

Homeowners-rights advocates believe more owners will file challenges to thwart a movement they say uses homes as collateral for country clubs' financial survival. Homeowner association lawyers argue that residents fighting the conversions are waking up to the fact that they are members of a majority-rules community governed with bylaws.

Gil Stevens, 79, is among The Hamlet residents who joined a lawsuit against the board. Their claim: The community's governing documents were changed illegally to facilitate the move to mandatory club membership. Residents approved the change in late 2002. The case is in litigation and a trial date will be set in September.

"What a court can do is to declare the new amendments unenforceable. That's the only relief we're asking. We're not asking for monetary damages," said attorney Mark Schorr, who also represented Stonebridge residents in their complaint. The case was settled roughly two years ago in a confidential agreement, Schorr said.

Schorr said he knows of no court rulings in Florida pertaining to homeowner associations and mandatory membership.

"This is a real hot trend in South Florida," he said of conversion votes. "There are a lot of people who talk about filing complaints until they realize what a financial commitment it is."

But Stevens insists his community's dispute will not simmer down before a court ruling or a favorable settlement.

"We're well-funded and we're going to see thing through to conclusion, including appeals," he said.

Robert Clune, an attorney who splits his time between New York and Florida, sued the East Point community in Palm Beach Gardens in December 2002, also claiming that the conversion to mandatory membership unreasonably restricted his right to transfer property ownership.

"By limiting homeowners to only those buyers who want to join the club, you are knocking out a large segment of the market," said Clune, whose case also is pending.

Jan Bergemann, who heads the statewide grassroots homeowners group Cyber Citizens for Justice, said residents are caught between fighting an expensive legal battle or absorbing the costs of imposed country club fees when they sell their homes.

"We're living in a state where people have problems paying for prescription drugs. They don't have the money to pay $20,000, $30,000 or $40,000 in mandatory membership fees." But homeowners with limited resources, he added, are no match for community association boards whose coffers are filled with the annual fees of the very residents trying to wage this fight.

"These people pay for their own demise. If you are forced to fight your own money, where does it get you?" Bergemann asked.

Larry Glickman, an attorney who has represented several homeowner association boards, said that until a community vote arises, homeowners forget that they agreed to be subject to a community's bylaws when they joined it.

At least one ruling reflects Glickman's analysis, though it pertains to condominiums and not homeowner associations.

In 2002, the Florida Supreme Court ruled that the Woodside Village Condominium Association in Clearwater had the right to amend its bylaws to change the terms under which owners could rent their units.

"You buy into rules that say that the super majority will make a declaration, and you have to live by it," Glickman said of the mandatory-membership dispute in homeowner-association communities. "People just don't think about the nature of the community they're buying into when they purchase a home. This is not the single-family home that used to be 50 years ago," he said.