CASE NO.: 502005CA010756XXXXMBAE
BENN NICHOLS and STEVI
NICHOLS, Husband and Wife,
STEVEN STABILE and LISA
STABILE, Husband and Wife,
CARY PRESS, GERI MELNICK,
DORIS MEESE, MICHAEL POSNER,
and RICHARD CORBIN and
CORBIN, Husband and Wife,
THE HAMLET RESIDENTS
ASSOCIATION, INC., THE HAMLET
COUNTRY CLUB, INC., LARRY
GLICKMAN, and SACHS, SAX &
FOR INJUNCTIVE RELIEF AND FOR DAMAGES
COME NOW Plaintiffs, Benn Nichols and Stevi Nichols, Husband and Wife, (“the Nichols”), Steven Stabile and Lisa Stabile, Husband and Wife, (“the Stabiles”), Cary Press (“Press”), Geri Melnick (“Melnick”), Robert Oppenheimer (“Oppenheimer”), Doris Meese (“Meese”), Michael Posner (“Posner”), and Richard Corbin and Donna Corbin, Husband and Wife, (“the Corbins”) by undersigned counsel and file this Complaint against The Hamlet Residents Association, Inc., (“Association”), The Hamlet Country Club, Inc., (“Club”), Larry Glickman, (“Glickman”), and Sachs, Sax & Klein, P.A., (“Sachs, Sax & Klein”), and as grounds therefor state:
1. This is an action for damages in excess of $15,000.00, exclusive of costs, interest, and attorney’s fees as well as an action for declaratory, supplemental, and injunctive relief, pursuant to Chapter 86, Florida Statutes.
2. All actions relevant hereto took place in Palm Beach County, Florida.
3. Plaintiffs, the Nichols, the Stabiles, Press, Melnick, Oppenheimer, Meese, Posner and the Corbins are, and at all times material hereto, were, sui juris, residents of Palm Beach County, Florida, and are members of Association. Plaintiffs are owners of residential parcels in a community known as the Hamlet and reside therein.
4. Defendant Association is, and at all times material hereto, was, a Florida corporation not for profit doing business in and headquartered in Palm Beach County.
5. Defendant Club is, and at all times material hereto, was, a Florida corporation not for profit doing business in and headquartered in Palm Beach County, Florida.
6. Defendant Glickman, is, and at all times material hereto, was, sui juris, a resident of Palm Beach County, an attorney, and a member of the firm of Sachs, Sax & Klein. Glickman is the scrivener of the purported Certificate of Amendment to the Declaration of Restrictive Covenants of the Hamlet Country Club Community, dated December 5, 2002, (“purported amendment”) which is the subject of this dispute and along with his law firm orchestrated the purported passage of the amendment.
7. Defendant Sachs, Sax & Klein is a law firm, that is a Florida corporation with its main headquarters and offices in Palm Beach County, Florida. At all times material hereto, Glickman was the agent, servant, and employee for Sachs, Sax & Klein.
8. Association is the Declarant under a Declaration of Restrictive and Maintenance Covenants for The Hamlet Resident’s Association, Inc. (“Declaration”) recorded December 18, 1981, in Official Records Book 3844, at Page 1967, of the Public Records of Palm Beach County, Florida. Declaration does not expressly encumber any property. Declaration is the governing document for Association that defines its duties and obligations to the residential property located in the County of Palm Beach, State of Florida, known as The Hamlet (hereinafter alternately referred to as in Declaration “Subdivision” or “The Hamlet”). A true copy of the 1981 Declaration is hereto attached as Exhibit 1.
9. There is located within The Hamlet a clubhouse, fitness center, swimming pool, tennis courts, and an 18-hole golf course that are operated and administered by Club, a not for profit entity separate from Association. Club is not operated or administered in any way by Association.
10. Plaintiffs purchased their homes in The Hamlet after a 2002 amendment of a non-existent document, “DECLARATION OF RESTRICTIVE COVENANTS of the HAMLET COUNTRY CLUB COMMUNITY,” was allegedly properly passed. (A true copy of the “Certificate of Amendment to the DECLARATION OF RESTRICTIVE COVENANTS of the HAMLET COUNTRY CLUB COMMUNITY” (“purported amendment”) is hereto attached as Exhibit 2). Neither Association nor Club informed Plaintiffs about the existence of the purported amendment or about the horrific problems that existed within Club which were acknowledged in the purported amendment (See Exhibit 2, the purported amendment at page 2 paragraph 1) before they purchased their homes in The Hamlet.
11. Plaintiffs were not informed prior to their purchases of homes in The Hamlet that a lawsuit challenging the validity of the purported amendment had been filed March 2003. (A true copy of the complaint in Case No.: 2003 CA 0029 10 AN is hereto attached as Exhibit 3.) Plaintiffs have since learned that this lawsuit was comprised of a minimum of 31 Plaintiffs who owned homes in The Hamlet at the time of settlement and that the lawsuit was settled by order of a Final Judgment accepting the Stipulation For Settlement on May 4, 2005, in favor of these Plaintiffs. A true copy of this Stipulation For Settlement is incorporated herein and attached hereto as Exhibit 4.
12. Prior to Plaintiffs purchasing their homes in The Hamlet (“Hamlet purchases”), Association provided each Plaintiff with a folder containing informative, integral documents pertaining to Association and Club. A cover letter in the package directed Plaintiffs to a booklet labeled “LEGAL DOCUMENT” and to a six-page document called “Summary of Declaration of Restrictive Covenants of The Hamlet Residents [sic] Association, Inc.,” (‘Architectural Declarations”) both of which contain information identical to the Architectural Declarations of the 15 Hamlet plat subsections assigned to Association by the developer and to the content of the fantasy document providing the basis of the purported amendment. (A true copy of the Architectural Declarations is hereto attached as Exhibit 5). Association required that the Summary had to be read and each paragraph initialed by Plaintiffs as a prerequisite to finalizing their home purchase in The Hamlet. Association’s booklet states that it “has been filed with your title and is legally binding regardless of whether you are the original owner or subsequent purchaser of your home.” There is no reference to or mention of Association’s purported amendment to these Architectural Decorations in either of these documents or in Palm Beach County’s Official Records that Association in their published booklet directed Plaintiffs to, i.e., Palm Beach Records Volume 2536 at pages 146 - 154. True copies of Association’s cover letter, booklet, and 6-page Summary are hereto attached as Exhibit 6.
13. After Plaintiffs’ Hamlet purchases, Plaintiffs came to discover that many of their new Hamlet friends and neighbors were not Club members. Association and Club failed to disclose to Plaintiffs that their alleged mandatory membership in Club did not apply to all 444 families residing in the Hamlet and that, in fact, only 279 of the 444 families residing within the Hamlet were Club members. A true copy of Club’s 2005 facsimile confirming the number of resident Club members as of April 4, 2005, is attached hereto as Exhibit 7.
14. Prior to Plaintiffs’ Hamlet purchases, Association and Club failed to disclose to Plaintiffs that only buyers purchasing homes situated on lots after December 5, 2002, are subject to mandatory membership in Club. Association and Club failed to disclose to Plaintiffs that none of the 134 families residing in the condominiums/townhouses, homes whose values depend directly on Club as these residences are located directly adjacent to prime Club real estate, are subject to mandatory Club membership.
15. Prior to Plaintiffs’ Hamlet purchases, Plaintiffs asked appropriate questions regarding the condition of the Hamlet and Club. Association and Club intentionally hid the existence of critical planned restoration problems and renovation projects from Plaintiffs. Both Association and Club told Plaintiffs that except for a current kitchen assessment there were no plans for any future assessments for renovations at The Hamlet. A true copy of a document confirming “no known assessments” is hereto attached as Exhibit 8.
16. Prior to Plaintiffs’ Hamlet purchases, Plaintiffs were told by both Association and Club that they were purchasing in the finest of Southern Florida’s residential communities, that Club had an “impeccably maintained 18-hole championship golf course,” that it was an example of the finest of “Super Country Club Lifestyle,” and that the Hamlet was an “elegant, private, gated community.”2 A true copy of DeFalco Realty’s Internet site at www.hamletcc.com making these superlative assertions to potential buyers is hereto attached as Exhibit 9.
17. At the time of Plaintiffs’ Hamlet purchases, there were two categories of memberships in Club, golf and tennis/social. Association and Club failed to disclose to Plaintiffs that Club planned to eliminate the tennis/social category and add a new expensive Initiation Fee and exorbitant fees for a renter’s use of Club. This action egregiously has limited membership and sale of properties in The Hamlet to golfers willing to pay excessive fees, dues, and assessments and/or to non-golfers who are willing to pay excessive monies to the Club. Club’s mandate has severely limited transfer of Hamlet homes only to golf aficionados.
18. Plaintiffs discovered in 2005 that both Association and Club knew that they deceived Plaintiffs when they alleged that membership in Club was mandatory. Association’s and Club’s Presidents as late as May 2005 confirmed that they knew that
mandatory was not 100% enforceable. On March 28, 2005, Club’s president wrote a letter to “all Hamlet Members” stating that “We are an existing mandatory membership club but there is one small matter to make us 100% (emphasis added).”
(A true copy of the March 28, 2005, letter is hereto attached as Exhibit 10). On May 31, 2005, Association’s President confirmed, “Mandatory membership has finally been established and signed off by the Judge (emphasis added).” A true copy of the Club’s May 31, 2005, Minutes is hereto attached as Exhibit 11.
19. Plaintiffs would never have purchased or even have considered purchasing in The Hamlet had Association and Club disclosed even one of these problems and/or if Plaintiffs had known that Association and Club were not being truthful to them in their presentations.
ASSOCIATION’S PURPORTEDAMENDMENT FOR MANDATORY MEMBERSHIP
VOID AND UNENFORCEABLE
20. Plaintiffs assert that Association’s purported amendment of a non-existent document called “DECLARATION of RESTRICTIVE COVENANTS of the HAMLET COUNTRY CLUB COMMUNITY”, is in direct violation of Association’s governing Declaration recorded December 18, 1981 in Official Records Book 3844, at Page 1967, of the Public Records of Palm Beach County, Florida. (See Exhibit 1, Declaration). Plaintiffs assert that Association has overstepped its authority by improperly demanding that plaintiffs and their successors be Club members and bear the burden for Club’s excessive, ever increasing fees, costs, and restoration/renovation assessments. Plaintiffs assert that the purported amendment unlawfully abridges Plaintiffs’ right to sell their respective homes in The Hamlet by requiring Plaintiffs to have prospective buyers of their homes obtain an “Approved Occupant” status before any sale can be completed. Plaintiffs assert that Association’s purported amendment is not reasonable and consistent with the original scheme of The Hamlet development. (See Arft and Arft v. Sweetrwater Community, Inc. Case No.: GCG-98-985, Section: 4, Polk County, Florida). Plaintiffs assert that HCCC is an illegal cross-name and has amended a non-existent document.
21. Plaintiffs believe that membership in Club is void and unenforceable on grounds set forth in this Complaint, which include, but are not limited to the following points:
Had Association, arbitrarily using the cross-name of the Hamlet Country Club
Community (“HCCC”), in amending a non-existent document, “DECLARATION
OF RESTRICTIVE COVENANTS of the HAMLET
COUNTRY CLUB COMMUNITY,” on December 5, 2002, to include mandatory
membership in Club been legal, which it was not, the purported amendment did not
obtain the two-thirds (⅔)
as alleged, i.e., 220 affirmative votes (“consent waivers”) out of a
possible 309 votes. In
actuality, the purported amendment obtained only
157 affirmative votes (“consent waivers”) as 63 of the consent waivers were
incorrectly executed. Of these, 17
are invalidly signed by only one of the two or more recorded owners without
confirmation of the voting right of the other recorded owners, 39 have no
address listed on them, and 7 have neither signatures of all owners nor an
address. (True copies of the
incorrectly executed consent waivers are hereto attached as Exhibit 12).
This left just 157 affirmative consent waivers in favor of the amendment
out of a possible 309 home owners who were allowed to vote4
which represents only a 50.81% vote for the purported amendment rendering
it void and unenforceable
b.) Association ignored the City Council of Delray Beach’s Resolution No. 2-82 when it purportedly amended the Architectural Plat Declarations on December 5, 2002. Resolution No. 2-82 clearly states that “each member of the Association has acknowledged to the City Council of the City of Delray Beach, Florida, that The Hamlet Resident’s Association Articles of Incorporation, Bylaws or Declaration of Restrictive and Maintenance Covenants may not be amended or terminated unless and until the City of Delray Beach has approved same … (emphasis added)” (A true copy of the January 24, 1982, Resolution No. 2-82, including page 1 at ¶ 5 is hereto attached as Exhibit 13.) Association’s governing Declaration states amendment “approvals must be made by not less than 75% (emphasis added) of [all] the Members of the Association … such amendment shall be submitted to the City of Delray Beach for their approval by resolution. (See Exhibit 1, Declaration at pages 11-12, (ii)).” Association did not obtain the approval of the City Council of the City of Delray Beach, Florida, in 2002 prior to purportedly amending the Architectural Plat Declarations and as such Association’s purported amendment is void and unenforceable.
c.) Association arbitrarily created an illegal cross-name for itself, HCCC, on December 5, 2002, in order to limit the definition of “Member” in HCCC to be an “Owner of a Lot,” i.e., “Membership shall be appurtenant to and may not be separated from Ownership of a Lot” so as to exclude the condominium/townhouse owners from voting in order to obtain an affirmative vote for the establishment of mandatory membership in Club. (A true copy of Palm Beach County Records confirmation of this cross-naming is hereto attached as Exhibit 14.) The HCCC was defined as the 15 plat subsections that comprised 309 lots with homes built on them. See Exhibit 2, a copy of the December 2, 2005, Certificate of Amendment to the Declaration of Restrictive Covenants of the Hamlet Country Club Community at page 3, Article I - E.
i.) HCCC is a fictitious entity with no legal status and thus with no authority to amend any of Association’s Declarations as it purports to have done. Under the alleged cross name of the HCCC, Association purported to amend a non-existent document that it chose to call “DECLARATION OF RESTRICTIVE COVENANTS of the HAMLET COUNTRY CLUB COMMUNITY.” See Exhibit 2, the purported amendment.5
ii.) The alleged cross-name, HCCC, of Association, a corporation not for profit, fails to have the word “corporation” or the abbreviation, “inc.” following its name as required by Florida Statute 617.0401, which renders all acts of this fictitious entity void and of no legal effect. HCCC does not comply with Florida Statute 720.301 wherein it defined an association as “a corporation.” This illegal entity had no power or authority to amend Association’s Architectural Declaration.
iii.) Club, a not for profit Florida corporation, is not operated or administered in any way by Association, a separate Florida not for profit corporation. Association’s By-laws (A true copy of Association’s governing By-laws is hereto attached as Exhibit 15) do not give a fictitious entity such as HCCC authority to dictate membership in Club or create an amendment allegedly ratified by a 2/3 affirmative vote that would require membership in Club nor to require that Association members bear the burden for Club’s fees, costs, and restoration/renovation assessments.
22. The Articles of Incorporation of Association state that, “Every person or entity who is a record owner of a fee or undivided fee interest in any dwelling unit may be subject by agreement of record to assessment by the Corporation…shall be a member of the ASSOCIATION” and that, “Amendment to these Articles shall require the assent of three-quarters (75%) of the entire membership.” A true copy of Association’s Articles of Incorporation is hereto attached as Exhibit 16 including page 3 – Article V and page 4 – Article IX.
23. Association’s 2002 ruse of declaring that its illegal cross-name HCCC had the right to exclude Association Members owning condominium/townhouse units from voting on a purported amendment dealing with membership was invalid and illegal. (See Exhibit 2, the purported amendment at page 3-E and page 4B.) Association’s governing Declaration that deals specifically with membership issues (See Exhibit 1, Declaration at page 3 “No. 1 DEFINITIONS” Sections J-N and at page 6, No. III “RATIFICATION OF MEMBERSHIP.”) states that proposed amendments “must be by not less than 75% of the Governors and not less than 75% of the Members of the Association,” i.e. all owners of homes on lots and all condominium/townhouse owners for any amendment to its covenants. HCCC’s purported amendment’s (⅔) two-thirds affirmative vote of only lot owners was therefore not legal. (See Exhibit 1, Declaration at page 12, No. VIII, Adoption of Amendments - A(ii)). The Declaration as found in Palm Beach County, Florida Official Records Book 2536 at page 144, states “it is the intent of these Restrictive Covenants to treat the various classes of owners and tenants of Condo I and II Units equally with the corresponding classes of owners and tenants of housing units, of whatever nature…” and Association’s acquiescence in permitting allegedly 2/3 (67%) of the members of an illegal entity, HCCC, to approve an amendment for membership when the governing Declaration dealing with membership clearly requires (See Florida Statute 720.306(b)) that amendment “approvals must be made by not less than 75% (emphasis added) of [all] the Members of the Association” (See Exhibit 1, Declaration at pages 11-12, No. VIII, Adoption of Amendments - A(ii)), renders the purported Amendment void and unenforceable.
24. Had there been a legally filed document titled “DECLARATION OF RESTRICTIVE COVENANTS of the HAMLET COUNTRY CLUB COMMUNITY” prior to December 5, 2002, which there was not, the purported amendment to this non existent document that alleges to amend the Architectural Declarations of a non existent entity HCCC, clearly states that “All and each of the covenants, conditions, and restrictions contained herein shall run with the land and shall remain binding and in full force and effect until January 1, 2017 (emphasis added). After such date (emphasis added) said covenants, conditions and restrictions shall be automatically extended for successive periods of time (10) years unless altered, amended, enlarged or repealed by an instrument herein” which would confirm that Association was fifteen (15) years premature in its purported amendment. See Exhibit 5, the Architectural Declarations, “Section 30 - Duration.”
25. The Architectural Declarations referenced in the purported amendment constitute one document, as all the subsections of the fifteen (15) Architectural Declarations are identical except for legal descriptions. (See Exhibit 5, the Architectural Declarations.) Association, under the Declarations of these various subsections of The Hamlet, acts as the Architectural Control Committee for the subsections and has the power therein only to enforce the various building and use restrictions imposed by the Architectural Declarations, i.e., “for the purpose of ensuring the development of the foregoing described lands as an area of high standards … the right and power to control the type, kind, character, size, color, and style of the buildings, structures, and other improvements to be placed on the foregoing described lands ... (emphasis added)” These Declarations, prior to Association’s purported amendment for mandatory membership in Club, dealt only with “improvements to be placed on the foregoing described lands … (emphasis added)” and not with the administration of any type of membership in any form in Association and/or any other entity including Club and, as such, these Declarations do not give Association the power to administer Club in any way. See Exhibit 5, the Architectural Declarations at pages 1-3, paragraph 1 as found in Palm Beach County Records in Volume 3026 at pages 0566-0567.
26. The fifteen (15) Architectural Declarations deal solely with architectural restrictions that have been implemented on an ongoing basis since 1978 for the plats involved. These declarations have nothing to do with membership in Association or Club, have no authority to mandate memberships of any type, nor do they in any way supersede Association’s governing document or change any of the provisions of said governing document.
ASSOCIATION AND CLUB PARTICIPATED IN A CONSPIRACY TO
PRESENT FALSE AND MISLEADING INFORMATION TO PLAINTIFFS
FAILED TO DISCLOSE INTEGRAL INFORMATION TO PLAINTIFFS
27. In violation of Florida Statute 720.402, Association and Club intentionally failed to disclose integral information, presented false and misleading statements, and published incomplete information in the form of a booklet and a six-page Summary in order to hide the existence of the purported amendment (See Exhibit 6, Association’s published documents.) because the purported amendment confirmed the existence of horrific problems in Club, the fact that both Association and Club believed that the purported amendment was not 100% enforceable at the time Plaintiffs made their Hamlet purchases (See Exhibits 10 and 11, Association’s and Club’s Presidents’ confirmations of same), the existence of a 2003 lawsuit challenging the legality of this amendment (See Exhibit 3, the 2003 lawsuit and Exhibit 4, the 2005 settlement), club’s plans to change initiation fees and membership categories, and Association’s and Club’s planned multi-million dollar renovations and restorations which predate the purported amendment.
28. Association misled Plaintiffs by hiding its purported amendment from Plaintiffs when it required Plaintiffs to approve by initialing each paragraph of its unamended July 1, 2001, 6-page document labeled “Summary of DECLARATION OF RESTRICTIVE COVENANTS OF [sic] The Hamlet Residents Association, Inc” (See Exhibit 6, Association’s letter, booklet, and Summary) which does not include the amended paragraph 31 and new paragraph 32. Association has continued this failure to disclose though 2006. A true copy of Association’s unamended Summary which is still in use in 2006 is hereto attached as Exhibit 17.6
29. Club’s counsel, Richard Goetz ’s (“Goetz”) May 11, 2005, letter states that “the amendment requiring mandatory membership, including exclusion of the condominium owners, is a matter of public record” and plaintiffs did not do their “due diligence.” (A true copy of Goetz’s May 11, 2003, letter is hereto attached as Exhibit 18.) Goetz fails to address in his letter that the only reference to any document provided or not provided Plaintiffs was Volume 2536, pages 147 through page 154 in Palm Beach Records that does not make any reference to the purported amendment including the amended paragraph 31 and new paragraph 32.
30. Association hid Delray Beach City Council’s Resolution 2-82 (See Exhibit 13) and its violation of it in 2002 from Plaintiffs. It was not until Plaintiffs discovered on the Internet late 2005 that Delray Beach City Council’s abandoned a section of it on October 11, 2005, (A true copy of the City of Delray Beach’s Memorandum abandoning this section of Resolution 2-82 is hereto attached as Exhibit 19.) that Plaintiffs uncovered that Association’s counsel, Michael Gelfand (“Gelfand”), had gone to Delray Beach’s Assistant City Counsel, Brian Shutt, and alleged that “the Association wishes (emphasis added) to amend Resolution 2-28 in order to remove the requirement that it can not amend its Articles of Incorporation, Bylaws, and restrictive covenants without first obtaining City approval …” Gelfand’s actions allegedly representing Association were in direct violation of Association’s governing Declaration that requires a 75% affirmative vote of the entire membership to amend the Declaration including Resolution 2-82 after which “such amendment be submitted to the City of Delary Beach for their approval by resolution.” (See Exhibit 1, Declaration at page 11-12, No. VIII - A(ii)).
31. The purpose of these intentional omissions was to induce the Plaintiffs to purchase homes in The Hamlet by keeping hidden from Plaintiffs any mention of the effects of the “declining membership” in the Club which was wreaking financial havoc upon its members as well as the existence of horrific problems with the Club’s golf course, i.e., an “obsolete irrigation system” with “crumbling cart paths, drainage, dying greens, bunkers, … noxious trees,” the need for a new entry gate house, sound barriers on Military Trail, complete road restorations, and restorations/renovations to Club’s clubhouse, fitness center, pool, and tennis courts. True copies of Club’s published Minutes revealing undisclosed facts pertaining to Club’s needed restorations dating back to 2002 are hereto attached as Exhibit 20.
a.) Prior to Plaintiffs purchasing their homes in The Hamlet, Association and Club failed to disclose to Plaintiffs that the purported amendment confirms that “last year  the Board of Directors of Association has investigated, studied the facts, consulted with experts, and approved a course of action to address the problem of declining Club membership and its impact on the lifestyle and home values in the Hamlet … (emphasis added).” See Exhibit 2, the purported amendment at page 2 paragraph 1.
b.) Prior to purchasing their homes in The Hamlet, Association and Club failed to disclose to Plaintiffs that in 2002 the Club’s President confirmed that Club was ailing when he stated that, “the board should know that the club needs major renovation. The kitchen is falling apart and the golf course irrigation system needs attention (emphasis added) …” (A true copy of the December 18, 2002, Club minutes is hereto attached as Exhibit 21 including page 2 Club’s “LONG RANGE PLANNING” report). At the time Plaintiffs purchased their homes in The Hamlet none of the Plaintiffs were informed that the Board of Directors of Association and Club had created Long Range Planning Committees as early as 2002 whose goals were to correct the horrific problems that they knew existed within Club and The Hamlet. A true copy of Club’s 2005 confirmation of their knowledge of the existing golf course problems dating back to 2003 is hereto attached as Exhibit 22.
c) Association and Club participated in a conspiracy by failing to disclose to Plaintiffs that numerous homes in The Hamlet are owned by residents who are/were not allowed to socialize with them at the Club because even though they may have voted for the purported amendment, they exercised their grandfather right that did not require them to become members of Club (See Exhibit 2, the purported amendment at page 5 Section 31 (C.)) and/or that other Hamlet homes owners involved in the 2003 lawsuit challenging the purported amendment (See Exhibits 3 and 4) were also banned from socializing with Plaintiffs at Club.
Club failed to disclose to Plaintiffs their plan to add a non equity
$25,000.00 Initiation Fee, and eliminate the tennis/social category and change
the latter category to Sports wherein non-golfers are required to pay “85%
percent of golf dues and fees, and 100% of all assessments” for “limited use
of the golf play on weekday afternoons …”
Existing tennis/social members now will be required “effective May 1,
2008, … to pay 75% of Golf Dues;
75% of Golf Course Capital Improvements: and 100% of all Country Club
Assessments.” Additionally, Club
failed to disclose their plans to demand an additional $17,000.00 annual
Club fee to all Hamlet renters wishing to utilize Club facilities and the golf
course. A true copy of Club’s
November 14, 2005, letter pertaining to Club’s new 2006 membership rules and
fees is hereto attached as Exhibit 23.
ACTIONS HAVE SEVERELY DAMAGED PLAINTIFFS
Association’s and Club’s conspiracy to withhold the foregoing
information from Plaintiffs prior to their purchase of their homes in The Hamlet
has severely damaged Plaintiffs’ investment in The Hamlet.
33. Association’s purported amendment has created a reluctance by potential buyers to purchase homes in The Hamlet with such restrictions on alienation and with such exorbitant fees that are allegedly mandatory for only certain Hamlet residents who own houses on lots in order to try to salvage the Club which is losing much money and must be heavily subsidized for its needed restorations and renovations.
34. The purported mandatory membership costs, and will cost, Plaintiffs and any successors of Plaintiffs’ many thousands of dollars a year in assessments, membership dues, and fees. True copies of Plaintiffs’ accounting of monies paid by Plaintiffs to Club is hereto attached as Exhibit 24.
35. Association and Club have, since the recording of the amendment, consistently attempted to enforce the purported amendment against Plaintiffs and others which has caused significant financial hardship to Plaintiffs.
36. These acts by Association and Club have
devaluated Plaintiffs’ property and created an impasse for plaintiffs’ to be
able to sell their property for the fair market value now being experienced by
property owners who own property outside of The Hamlet in the same zip code in
Delray Beach, Florida, 33445.
37. Defendants maintain that the purported amendment is enforceable.
38. Plaintiffs are in doubt of their rights, duties, liabilities, and obligations as a result of the purported amendment. Similarly, Defendants are better served by the removal of any uncertainty concerning the enforceability of their purported amendment. A present, bona fide, practical need exists for a declaration as to the enforceability of the purported amendment. Continued doubt concerning the enforceability of the Amendment will unreasonably interfere and delay any later transfer of Plaintiffs’ homes in The Hamlet, both in their lifetimes or upon their death, and Plaintiffs or their heirs could at such later time be subject to defenses based on the passage of time.
39. Plaintiffs have no adequate remedy at law, have a substantial likelihood of success on the merits, will suffer irreparable harm if injunctive relief is not granted, and the equitable relief sought herein will serve the public interest.
40. Venue is proper in Palm Beach County, Florida, because Plaintiffs and Defendants reside in and this cause of action accrued in Palm Beach County, Florida.
41. Based on the foregoing, Plaintiffs believe that membership in Club and the By-laws and membership fees and requirements set out in conjunction with this purported amendment are void and unenforceable, on the grounds set forth within this complaint.
GLICKMAN AND SACHS, SAX & KLEIN
HID THE PURPORTED 2002 AMENDMENT
THEIR CLIENTS, PRESS AND MELNICK
42. Glickman and Sachs, Sax & Klein, scriveners of the purported 2002 amendment that is the subject of this dispute, withheld vital information from Plaintiffs Press and Melnick to whom they owed a fiduciary duty to divulge relevant information about The Hamlet because Glickman represented them when they bought a residence in the Hamlet community.
43. Glickman and Sachs, Sax & Klein participated with the other Defendants in a conspiracy to withhold vital information from Press and Melnick about the financial difficulties experienced by Club, as well as legal defects and enforcement problems with the amendment that are the subject of this dispute, in order to induce them to buy a home in The Hamlet.
AGAINST DEFENDANTS ASSOCIATION AND CLUB
Plaintiffs repeat the allegations of paragraphs 1-43 as if fully set
45. Florida Statute 720.401(1)(a) states that such information should be disclosed to prospective buyers and Florida Statue 720.402(1) which prohibits the presentation or publication of false and/or misleading “material statement(s) or information” by a homeowners association to a prospective new member, Defendants intentionally kept hidden from Plaintiffs the purported amendment including but not limited to the fact that:
i.) HCCC was not a legal cross-name to Association and had no authority to amend Association documents;
ii.) HCCC amended a non-existent Declaration and in doing so did not get the prescribed 75% affirmative vote;
iii.) 134 Association Members’ owning condominium/townhouses were excluded from this vote;
iv.) not all 444 Hamlet resident owners are subject to this purported amendment;
v.) a 2003 lawsuit challenging this amendment existed;
vi.) both Association and Club were projecting massive restoration and renovation projects;
vii.) Club was experiencing problems from its declining membership, which was affecting Hamlet lifestyle and the values of homes in The Hamlet.
46. Association and Club hid that they were desperate to increase the membership in Club because the more members they have, the less each individual has to pay, so they hid the above-referenced information from the Plaintiffs, despite their fiduciary obligation to reveal this information to Plaintiffs.
47. Plaintiffs reasonably relied to their detriment upon the false assertions described herein, and as a result Plaintiffs suffered the losses described herein, which Defendants had a duty to disclose to Plaintiffs. If Plaintiffs had been so informed before they moved into The Hamlet, they would not have bought a home in The Hamlet and would have stayed far away from this community.
48. Up to and through at least the week of January 20, 2006, Association has continued to give out their unamended 6-page Summary (See Exhibits 6 and 17, the Summary) to residents who wish to sell or rent their home in The Hamlet and/or to potential buyers and/or renters in The Hamlet without the amended paragraph 31 and additional new paragraph 32 annotated for review.
49. Association and Club, failing to make the proper disclosures prescribed by the governing Florida Statutes, continue to maintain that the purported amendment is effective and enforceable.
50. Plaintiffs have no duties, liabilities, or obligations to Club as a result of the purported amendment being void and unenforceable.
ADOPTION OF AMENDMENT AGAINST ALL DEFENDANTS
Plaintiffs repeat the allegations of paragraphs 1-50 as if fully set
52. The purported amendment fails to comply with the requirements of Association’s governing declaration and fails to attach consents signed by not less than 75% of all Members, i.e., excluding the lot and condominium/town home owners, as required by Association’s governing Declaration of Restrictive and Maintenance Covenants dated December 18, 1981, that deals with Association membership.
The purported amendment is that of a non-existent, illegal
entity, HCCC, that purports to have amended a non-existent document of HCCC.
54. Accordingly, the amendment and its supporting By-laws are neither valid nor enforceable.
55. Glickman and Sachs, Sax & Klein served as the attorneys who improperly prepared and adopted the amendment and participated in the conspiracy to keep Plaintiffs and others in the dark regarding the fact that the amendment is void and unenforceable.
56. As a direct and proximate result of the wrongful acts of Defendants, the Plaintiffs have been damaged.
FIDUCIARY DUTY AGAINST ASSOCIATION AND CLUB
57. Plaintiffs repeat the allegations of paragraphs 1-50 as if fully set forth herein.
58. Association and Club participated in the sale of Plaintiffs’ property by demanding that Plaintiffs be screened for Association approval and Club admission by a Membership Committee from Club and that Plaintiffs read and approve by initialing each paragraph of Association’s Summary which Association stated therein “has been filed with your [Plaintiffs’] title and is legally binding …” (See Exhibit 6 and 17, the Summary) as a prerequisite of Plaintiffs being allowed to close on their homes in The Hamlet and live in The Hamlet.
59. Furthermore, in violation of Florida Statue 720.402, Association has continued through the week of January 20, 2006, to publish false and misleading information and demand that new buyers read Association’s booklet so named ““LEGAL DOCUMENT … Summary of Declaration of Restrictive Covenants of The Hamlet Residents Association, Inc.” and approve and execute by initialing each paragraph of its 6-page Summary. (See Exhibits 6 and 17, the Summary.) Association therefore became participants in the sale to the Plaintiffs of real estate and/or an interest in real estate or an appurtenance thereto and owed the Plaintiffs a fiduciary duty to disclose the purported amendment including the amended paragraph 31 and the addition of new paragraph 32.
60. Association intentionally and knowingly violated Florida Statute 720.303(1) that states, “the officers and directors of an association have a fiduciary responsibility to the members who are served by the association.” Association breached their fiduciary responsibility to Plaintiffs by failing to disclose to Plaintiffs the existence of this pertinent information.
AGAINST ASSOCIATION AND CLUB
61. Plaintiffs repeat the allegations of paragraphs 1-50 as if fully set forth herein.
62. On January 10, 2006, during Association’s Annual membership meeting, Association’s President unconscionably slandered Plaintiffs. During this meeting in front of many of the Association’s membership, a number of whom are Plaintiffs’ neighbors, Association’s President failed to accurately communicate to the membership exactly what this lawsuit is about. Association’s President named each of the Plaintiffs individually and proceeded to communicate to Association’s members present at the meeting that Plaintiffs had filed this lawsuit for one purpose only, i.e., because Plaintiffs want to live in The Hamlet without paying their way and because they wanted the other Association members to pay their way for them.
63. Besides intentionally failing to disclose the true contents of this lawsuit and slandering Plaintiffs during the January 10, 2006, meeting, Association’s President has spearheaded a smear campaign which began as early as June 2005 against Plaintiffs as exampled by the e-mail he sent to Corbin stating that Stevi Nichols “is very dangerous.” A true copy of the June 2005 facsimile is hereto attached as Exhibit 25.
64. Further indicating the malice of Association against Plaintiffs, which motivated this smear campaing, Association’s Advisor to the By-law Committee who resides but does not own a residence in The Hamlet wrote a letter demanding that “if you are so unhappy with the Hamlet … JUST MOVE.” A true copy of the August 23, 2005, letter is hereto attached as Exhibit 26.
65. Furthermore, in January 2006, a number of Association’s and Club’s Board Members and/or Committee Members have approached one or more of Plaintiffs offering special side deals that would violate Association and Club rules for renting and/or for special payment programs if these Plaintiffs were willing to drop out of this lawsuit.
66. Association’s and Club’s unconscionable and irresponsible actions have and continue to irreparably harm Plaintiffs’ integrity with their Hamlet neighbors who are now assaulting Plaintiffs with verbal taunts demanding that Plaintiffs just “move” if they are so unhappy with Association and Club.
67. As a direct and proximate result of the wrongful acts of Association and Club, the Plaintiffs have been irreparably harmed.
BREACH OF FIDUCIARY DUTY AGAINST DEFENDANTS
GLICKMAN AND SACHS, SAX & KLEIN BY PLAINTIFFS PRESS AND MELNICK
68. Press and Melnick repeat paragraphs 1-50 as if fully set forth herein.
69. As attorneys for Press and Melnick in connection with the purchase of their home in the Hamlet, Glickman and Sachs, Sax & Klein owed these Plaintiffs a fiduciary duty to divulge all relevant information about the purchase of their home in The Hamlet and mandatory membership in Club. Among the matters that Glickman and Sachs, Sax and Klein failed to disclose to Plaintiffs Press and Melnick are the following:
a.) Glickman and Sachs, Sax & Klein were the scriveners of the amendment in question and served as the attorneys for Association and its cross-named, fictitious, and illegal entity, HCCC.
b. ) Glickman and Sachs, Sax and Klein had a conflict of interest in representing an Association, helping to prepare and enforce its purported amendment, and at the same time representing Plaintiffs Press and Melnick in the purchase of their home in The Hamlet.
c.) That membership in Club was not mandatory for everyone in The Hamlet and that they would shoulder the financial burden of the Club with fewer people than they had been led to believe.
d.) All other misrepresentations and failures to disclose contained in this Complaint.
As a direct and proximate result of the above breaches of contract, Press
and Melnick have been harmed. They
purchased in The Hamlet where they otherwise would not have chosen to live if
they had been properly informed of the true facts.
These Plaintiffs have lost much money due to their illegally imposed
membership in Club.
WHEREFORE, Plaintiffs Press and Melnick demand judgment both jointly and severally against Glickman and Sachs, Sax & Klein as well as damages, costs, interest, and any other remedy deemed just and equitable by this Court.
OF CONTRACT BY ASSOCIATION
71. Plaintiffs repeat the allegations of paragraphs 1-50 as if fully set forth herein.
72. When Plaintiffs bought their property in The Hamlet, they became bound by the provisions of the governing documents of Association.
73. Association is contractually bound to Plaintiffs by its governing documents.
74. Due to the numerous failures to disclose, to deal honestly with the Plaintiffs, conditions precedent, Association has failed to operate in good faith and has otherwise breached its contract with Plaintiffs as described at length herein.
75. Association has purported to have had the authority to cross-name itself with a fictitious entity, HCCC, and have this entity amend a non-existent, non- governing document with the name “DECLARATION OF RESTRICTIVE COVENANTS of the HAMLET COUNTRY CLUB COMMUNITY” thus demanding that Plaintiffs pay excessive amounts of money for Club membership fees, dues, and assessments.
76. As a direct and proximate result of the breach of contract of Association, Plaintiffs have been harmed.
WHEREFORE, in addition to the other relief sought at the end of this Complaint, Plaintiffs demand rescission for themselves of the purported amendment and return of all moneys they were required to pay Club.
RESTRAINT OF ALIENATION BY ASSOCIATION AND CLUB
77. Plaintiffs repeat the allegations of paragraphs 1-50 as if fully set forth herein.
78. Neither Association’s Declaration as originally recorded nor as existed when Plaintiffs acquired title to their parcels, legally and/or validly required approval by any entity of any transfer, sale, or lease of a parcel, nor contained any valid and/or legal restrictions, limitations, or conditions concerning conveyancing.
79. Neither Association’s nor Club’s governing documents as originally recorded or as validly amended imposed restrictions or conditions on the devise and descent of their parcels.
80. Association and Club have no valid claim to require their approval in order for the Plaintiffs to transfer title to their property.
81. The purported amendment prohibits the transfer by Plaintiffs of their interest in their homes in The Hamlet unless the transferee makes a bona fide application to Club for membership.
82. The purported amendment sets forth no standards or guidelines
by which Club approves or accepts members or transfers club membership to
Plaintiff’s heirs and is therefore subject to abuse as evidenced by Club’s
new 2006 membership classifications, fees and dues, and transfer demands.
83. The purported amendment, even if properly adopted, which it was not, in purporting to limit Plaintiffs’ right to transfer their property, in limiting future transfers to persons willing to join Club, and to subject future purchasers to Club’s ever changing rules and By-laws, including but not limited to Club’s increasing exorbitant dues, fees, assessments, and expenses as golf or sports members, is an unreasonable restraint of trade.
84. As a direct and proximate result of Defendants’ wrongful conduct, Plaintiffs have been harmed.
EXERCISE OF AUTHORITY
85. Plaintiffs repeat the allegations of paragraphs 1-50 as if fully set forth herein.
86. The general scheme of development of The Hamlet has been that of a residential community in which membership in Club with its concurrent financial obligations was purely voluntary and with no restrictions, limitations, or conditions governing the sale or other transfer of their property.
87. The purported amendment, seeking to require mandatory membership in Club and in imposing restrictions on resale or other transfers, unreasonably changes and is inconsistent with the general scheme of development as set forth in the governing Declarations as well as being an unreasonable exercise of the authority of Association and Club. This purported mandatory membership is harmful to the Plaintiffs, and to most, if not all others, at The Hamlet.
SOUGHT FOR ALL CAUSES OF ACTION
ASSOCIATION AND CLUB
WHEREFORE, Plaintiffs pray this Court grant the following relief:
A. Take jurisdiction of this cause of action and the parties hereto;
B. Adjudge and declare that the purported amendment and its supporting By-laws are void and unenforceable;
C. Award Plaintiffs their taxable costs with interest including their reasonable attorney’s fees;
D. Permanently release Plaintiffs and their successors in interest from membership in Club;
E. Reimburse Plaintiffs for all monies with interest that they were forced to pay to Club since the date of closing on their homes in The Hamlet due to the purported amendment;
F. Order that Plaintiffs shall have no further obligation to Club;
G. Order that Defendants be required to provide all documents necessary and/or any changes to governing documents required in order to ensure that Plaintiffs have the absolute right to convey their property with no restriction as to mandatory membership in Club to purchasers, grantees, legatees or any other successors in interest;
H. Order that Plaintiffs bear no liability for any Club or golf course expenses and assessments or for any assessments related to any future merger of Association and Club;
I. Grant a cease and desist order against any continued or future slander or libel against Plaintiffs by Defendants
J. Grant a cease and desist order against the Defendants prohibiting them from collecting from Plaintiffs any fees and assessments pertaining to Club;
K. Grant Plaintiffs’ rescission of the purported amendment;
L. Grant such further relief as this Court deems just and proper.
SOUGHT FOR COUNTS 1, 3 AND 5 AGAINST GLICKMAN AND SACHS, SAX & KLEIN
demand judgment against these Defendants jointly and severally, and damages,
costs, interest and any other remedy deemed just and proper by this Court.
TRIAL BY JURY IS HEREBY DEMANDED FOR EACH COUNT
 Glickman represented Association in the 2003 lawsuit filed to challenge the purported amendment.
This same information is still being touted by DeFalco Reality in its
Internet site, www.hamletcc.com that is a direct usurpation of the Hamlet
name by a commercial profit-making endeavor.
Furthermore, three of DeFalco Reality’s Agents live in the
Hamlet and serve in
influential positions on Association’s and Club’s Board of Directors
thereby creating a conflict
of interest when it comes to describing the merits of ownership in the
3 Association’s governing Declaration demands a 75% affirmative vote to amend. See Exhibit 1, Declaration at pages 11-12, (ii)).”
Hamlet residents and Association members who live in the
5 This document is found in the Palm Beach County, Florida, Official Records Book 14480, at pages 36-37 and pages 1-11, the Palm Beach County, Florida, Official Records Book 14480, at pages 38- 48. The remaining pages as found in the Palm Beach County, Florida, Official Records Book 14480, pages 0049 – 0268, of the purported 2002 amendment consist of forms titled “Waiver, Consent and Joinder” (“consent waivers”).
Association confirmed to Plaintiffs
that new buyers and/or renters must still initial this Summary, which
they sent Plaintiffs the week
of January 20, 2006.
I HEREBY CERTIFY that a true copy of the foregoing was sent this ____ day of May, 2006 to Michael Gelfand, Regions Financial Tower, 1555 Palm Beach Lakes Blvd., Suite 1220, West Palm Beach, Fl., 33401, Richard Goetz, 1801 North Military Trail, Suite 200, Boca Raton, Fl. 33431, Michael Hyman, 150 West Flagler Street, 27th Floor, Miami, Fl. 33130 and Larry Glickman, P.O. Box 810037, Boca Raton, Fl. 33481.
Barry Silver FBN 382108
1200 S. Rogers Circle Suite 8
Boca Raton, Fl. 33487