REVITALIZATION OF NON-EXISTENT HOMEOWNERS' ASSOCIATIONS
THE FIGHT FOR BASIC CONSTITUTIONAL AND PROPERTY RIGHTS!
Opinion By Jan Bergemann
March 22, 2006
This year Florida
property owners are again facing some bills that
attack not only our property rights but as well our
constitutional rights. According
to the false claims by specialized attorneys from the trade organization
Community Associations Institute, we signed away our constitutional
rights when we moved into these mandatory associations.
That is not true! The
U. S. Constitution is the supreme law of the land and can’t be
“signed away.” Now
these specialized attorneys want to expand their powers to voluntary
associations as well.
bad bills are:
SB 2530 -- Senator Posey (R) -- see HB 391
Don't believe it? Just read the letters below!
These bad bills carry two major problems:
1.) REINSTATING LIENS AND FORECLOSURES FOR FINES WITHOUT DUE PROCESS. Other states are in the process of removing this dictatorial tool that should have no place in our society, but some Florida legislators are pushing for it again -- just to do some greedy attorneys a big favor! Supreme courts in Virginia (Unit Owners Association of Buildamerica-1, A Condominium v. Harry F. Gillman) and Rhode Island (JAMES FOLEY v. OSBORNE COURT CONDOMINIUM, ET AL.) have already ruled that fining by non-government entities is unconstitutional. But here in Florida the special interests will always find a few legislators willing to carry their banner -- in order to squeeze more money out of homeowners already under severe financial duress from hurricane damages.
2.) REVITALIZATION OF COVENANTS. The most blatant attempt to destroy private property rights is done under the cover-up of REVITALIZATION OF COVENANTS. Please read below in an exchange between the DCA (Department of Community Affairs) and attorneys. You will immediately see how they consider this can be done with the help of the above bills -- if those bills are ever enacted! The attorney even admits that they really have no leg to stand on until these bills are enacted Then they can use these newly created statutes to force property owners against their will to join mandatory associations. Wave bye-bye to property rights! Our nation spoke out after the ill-advised court ruling in Kelo v. New London! Legislators all over the nation realized that killing property rights is killing our American Dream! These bills are killing our property rights in a similar manner!
But it is important to know who is behind these bills.
know the bill sponsors, but they are not really the ones who are
interested in killing our property rights! Meet
the people behind the scenes, the really guilty parties:
Gardiner is closely supported by Peter Dunbar, a lawyer-lobbyist, who has been fighting consumer-friendly association reforms for many years. Dunbar is a close friend of gubernatorial candidate, Tom Gallagher. Dunbar is supported by lobbyist Travis Moore, representing the CAI (Community Associations Institute) and the law firm of Becker & Poliakoff P.A. Add the regular players who are in the game for power and money, like Scott Justice, former OCHA President -- an attorney working for Disney -- Paul Wean from the law firm of Wean & Malchow, P.A. And not to forget Richard Spears, former CAI executive and member of the Florida Commission on Ethics. Spears is a well-known opponent of consumer rights!
We can't vote out the attorneys who are really the driving force behind the scenes, but we can vote against the legislators willing to help to destroy our rights! The next election is in November! We homeowners should always keep in mind who is for us and who is against us!
The welfare of our families and our homes are threatened by their actions!
is fast approaching!
Just read the scanned letters below and you know what these people are up to. The letters are self-explanatory. Beware of the people who want to destroy our property rights!
LETTERHEAD Becker & Poliakoff, PA
Office: Fort Walton Beach
Attorney: Raymond F. Newman
Pines Associates, Inc
Beach, FL 32550
Gulf Pines Covenants
is a copy of the letter I received from the Florida Department of
Community Affair (DCA) regarding the above. As you can see from the
letter, DCA has denied the revival of the Declaration of Covenants and
Restrictions for Gulf Pines Subdivision. I received this document on
February 27, 2006, but have delayed sending it to you while we did
additional research to determine the validity of the reasons for DCA’s
primary reason cited for the denial is that Gulf Pines is not a
homeowners Association as defined in Section 720.301(a), Florida
Statutes. I have enclosed a copy of this section for your convenience.
In support of this reason, DCA states that the Association does not have
the authority to impose assessments which may become a lien on parcels
if unpaid, and that the Covenants do not require membership in the
Association as a condition of parcel ownership. It was noted that the
amendment requiring membership in the association was adopted after the
Association has the right to an administrative proceeding regarding the
action of the DCA. If such a proceeding is desired, a petition for same
must be received by DCA no later than March 21, 2006. (We received the
letter on February 27, but the 21st day falls on Sunday.)
This is set out in detail in the Notice of Administrative Rights which
I do not agree with DCA’s action in this matter, I do not believe it
will be productive or cost effective for the Association to further pursue this matter through an administrative
procedure. There is a bill now pending in the Florida Legislature that
will provide for revival of the Covenants for a “Voluntary”
Association (which is where the DCA decision leaves Gulf Pines
Associates, Inc). You may wish to re-visit this issue if the legislation
passes. Otherwise, Gulf Pines Subdivision will have no enforceable
method of collecting assessments and apparently no other purpose of
existence with the exception of ownership of the common property. Some
consideration must be given to the future activities of the corporation
and it’s ownership of the common property.
contact me if you have further questions or comments.
F. Newman, Jr.
SCANNED WORD DOCUMENT
Department Of Community Affairs
F. Newman, Jr., Esquire
& Poliakoff, P.A.
Miracle Strip Parkway SW
Walton Beach, Florida 32548
Re: Gulf Pines Subdivision
Thank you for submitting reinstatement materials on behalf of Gulf Pines Subdivision. The Department has completed its review of the proposed revived declaration of covenants and other governing documents for the Subdivision, as approved by the parcel owners on November 5.2005. The Department has determined that the Subdivision is not a Homeowners' Association as defined in § 720.301(9), F.S., and therefore does not meet the statutory requirements for revival of declaration of covenants and restrictions.
following deficiencies have been noted:
1. The documents submitted do not indicate that the association has authority to impose assessments that, if unpaid, may become a lien on the parcels contained in the subdivision.
2. If one were to accept the organizing committee’s position that the Covenants and Restrictions had expired under Chapter 712, FS. (the Marketable Records Title Act) after 30 years in 1987, the amendment to the Covenants and Restrictions filed on April 3, 2001 would appear to be a nullity. This amendment provides that “all owners within the subdivision by virtue of their ownership of a lot within the subdivision would be a member of the Homeowners Association now known as Gulf Pines Associates, Inc...-" Prior to this amendment, the documents did not provide for mandatory membership in the association by all parcel owners. Therefore, Gulf Pines Associates, Inc., would not be a Homeowners' Association as defined in § 720.301(9), F.S. for the additional reason that membership in the association was not a mandatory condition of parcel ownership.
We are returning the complete submittal package to you. If you have any questions concerning this matter, please contact Leslie Anderson-Adams, Assistant General Counsel at (850 922-1689.
K. Marlene Conaway
Chief of Comprehensive Planning
SCANNED WORD DOCUMENT
ATTORNEY AT LAW
C. BARTH, P.A___________________
P. 0. BOX 6966
DESTIN, FL 32550
December 6, 2005
Florida Department of Community Affairs
255 Shumard Oak Blvd.
Tallahassee, FL 32399-2100
Attn: Leslie Anderson Adams, Esquire
RE: Revival of Declaration/Covenants for Gulf Pines Subdivision
Dear Ms. Adams and Ms. Evans:
I represent Allan Lege', a property owner in an almost sixty year old platted subdivision in Walton County, Florida. I am informed that a group representing itself as an organizing committee of Gulf Pines Associates, Inc., which is calling itself a homeowners association, has submitted a request to the Department of Community Affairs to revive a declaration of covenants under F.S. §720.404. I have not seen this submission or request, but I have seen documents circulated among the residents of Gulf Pines Subdivision where the organizing committee has sought the support of the residents to make such a submission.
While I understand there is no formal procedure for providing input to the DCA or responding to such a submission made to the DCA, I believe this group requesting the revival of covenants is providing less than full disclosure, if not misleading the Department of Community Affairs. Although there is a current and active non-profit corporation filed with the Florida Department of State known as Gulf Pines Associates, Inc., I do not believe it is a "homeowners' association" as referenced in F.S. §712.01 or as defined in F.S. §720.301(9)., Nowhere in the documented history of title to the lots in this subdivision is there anything that makes membership in this corporation, or any corporation, a mandatory condition of ownership, nor is any corporation authorized to impose assessments that, if unpaid, may become a lien on the parcel. On October 17, 2005, an amendment to the Articles of Incorporation of Gulf Pines Associates, Inc. was recorded with the Secretary of State's office purporting to make " [a]ll record owners of property in Gulf Pines Subdivision [shall be] members of the corporation". However, neither this corporation nor any other corporation ever had the authority to subject property owners in Gulf Pines Subdivision to mandatory membership in the corporation, and recording such an amendment is a nullity.
Secondly, as I read Florida Statutes §720.404, the Department of Community Affairs can approve the revival of a declaration of covenants only if all of certain requirements are met, two of which are that the previous declaration has ceased to govern some or all of the parcels in the community and that any revived declaration may not contain covenants that are more restrictive on the parcel owners than the covenants contained in the previous declaration, with certain exceptions. Attached to this letter as Exhibit I is a copy of the recorded "declaration" of covenants and restrictions that are sought to be revived. It is my expectation that upon review by the Department of Community Affairs of the covenants submitted to it by this group seeking revival, there will be many additional covenants contained therein, not the least of which will purport to make each and every owner of a lot within Gulf Pines Subdivision, by virtue of their ownership of said lot, a member of the corporation known as Gulf Pines Associates, Inc. If that is not more restrictive than the original covenants, nothing is. The covenants, which are now sought to be revived name Armed Forces Development, Inc. as the principal. Armed Forces Development, Inc. is an inactive (for 34 years) Florida for-profit corporation with no reserved powers to assess properties in Gulf Pines and with no intention of being a "homeowners association". Armed Forces Development, Inc., in 1971, assigned to a group that was formed to provide water service to any Gulf Pines owners electing to have water service and called Gulf Pines Water Users (ostensibly later incorporated as Gulf Pines Associates, Inc.) all of the rights it had, as identified in the instrument recorded in Deed Book 150, Page I of the public records (see Exhibit 1). A copy of the February 3, 1971 Assignment from Armed Forces Development, Inc. to Gulf Pines Water Users is attached hereto as Exhibit 2. Please note that nowhere in those covenants and restrictions is there anything purporting to require membership in Armed Forces Development, Inc. as a condition of property ownership, nor did it give Armed Forces Development, Inc. status as a homeowners association or the right to assess either members of the corporation or owners of the property in Gulf Pines.
The other requirement of Section 720.404 alluded to previously is that, to be revived, the previous declaration must have ceased to govern some or all of the parcels in a community. To begin with, the covenants originally recorded at Deed Book .1 50, Page 1, of the public records of Walton County, Florida specifically made the covenants and restrictions effective until January 1, 1966, after which they automatically renewed each ten years unless the owners of at least 2/3 of the lots in the affected subdivisions agreed to amend the covenants and restrictions. In 2001, an attempt was made to amend them but whether the attempted amendment is effective or not, the covenants are still in effect and are not ripe for revival. Secondly, at least as to my client's two properties, the original covenants and restrictions have not ceased to govern since they are referred to in the chain of title. The deeds to both of his properties refer to the book and page where the plat was recorded, which, according to the Florida Supreme Court, is all that is necessary to keep the Marketable Record Title Act from extinguishing them. See Sunshine Vistas Homeowners Association v. Caruana, 623 So.2d 490 (Fla. 1,993) (copy attached).
In sum, it is my client's position and mine that the DCA is without authority or jurisdiction to revive the declaration/covenants of Gulf Pines Subdivision for any and all of the reason previously stated in this letter. Please contact me right away if you need any additional information, documentation or input.
James C. Barth
cc w/o encl.: Mr. Allan Lege'
SCANNED WORD DOCUMENT
LETTERHEAD Becker & Poliakoff, PA
Office: Fort Walton Beach
Attorney: Raymond F. Newman
April 29, 2005
Board of Directors
Gulf Pines Associates, Inc.
P 0 Box 6051
Miramar Beach, FL 32550
Re: Enforceability of Covenants and Restrictions
I have reviewed your governing documents and considered relevant Florida law regarding the above issue. My opinions and comments follow.
The applicable law is Chapter 712, Florida Statutes, more commonly known as the
Marketable Record Title Act. The real import of the statute is found in the first sentence of F.S. 712.02, which provides:
Any person having the legal capacity to own land in the state, who, alone or together with his predecessors in title has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate and land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in [F.S.] 712.03.
Essentially, this says that a person who has owned (or through his predecessors in title have owned) his land for 30 years or more has marketable record title free and clear of all use restrictions, unless the use restrictions are specifically disclosed and referred to in a document that passes title. The document that passes title must come into existence within the 30-year period.
Your Covenants and Restrictions were originally recorded May 16, 1957. The 30year period referred to above commences upon the "root of title." Basically, this will be the first deed to a lot that is given after the Covenants- and Restrictions were recorded. Each individual lot is treated separately and apart from all the others when determining whether the Covenants and Restrictions are extinguished as to that particular lot. In order to keep the Covenants and Restrictions enforceable against a particular lot, a deed to that lot recorded after the Covenants and Restrictions were recorded and within 30 years after the first deed to that lot was recorded must specifically refer to the Covenants and Restrictions and the location in the Public Records where the Covenants and Restrictions were recorded. A deed that merely says the lot is subject to easements and restrictions of record is deemed insufficient to preserve the Covenants and Restrictions because it is general and does not specifically refer to your particular Covenants and Restrictions.
Accordingly, it is not possible to determine whether the Covenants and Restrictions have been extinguished as to any particular lot without first having completed a title search on that lot.
However, I can give you a general idea of how this law works.
Take, for example, a lot that is conveyed June 1, 1957 to an owner. Assume this deed does not specifically refer to the Covenants and Restrictions, but merely says the lot is subject to easements and restrictions of record. Assume further that no other deeds for this lot have been given. The June 1, 1957 deed is the "root of title." On May 31, 1987, the 30-year period from the root of title would have passed. Since there is no specific mention of the Covenants and Restrictions within this 30-year period, the Covenants and Restrictions would be extinguished as to that particular lot after May 31, 1987. If you change this example somewhat by having one or more deeds to this lot being given, the result is the same, as long as none of the deeds specifically refers to the Covenants and Restrictions. However, if any one of those deeds given before May 31, 1987 specifically refers to the Covenants and Restrictions by the book and page in which they are recorded in the public records, then the Covenants and Restrictions remain effective against that particular lot for another 30-year period from the date that deed was recorded. While each lot must be considered on an individual basis, it appears that due to the length of time that has elapsed since your Covenants and Restrictions were recorded, most, if not all of the lots in the Gulf Pines Subdivisions are no longer subject to the use restrictions contained therein.
As we have previously discussed, Florida law now provides a method to revive the Covenants and Restrictions and reinstate the enforceability of same. It is my recommendation that you continue the course of action that you have started to accomplish this.
Please contact me if you have further questions or comments.
RAYMOND F. NEWMAN
For the Firm
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