Q:I have enjoyed reading your column since you started writing for the Herald-Tribune real estate section. Except for the past few months, when you began to focus the article about yourself.
Please return to writing about the trials and tribulations of the homeowner and condo associations. Save the other stuff about your career and schooling for your autobiography. Thanks.
— C.M., via email
A:That really was not a question, but OK. There are several ways I could have chosen to deal with this request/demand.
Mark Twain once wrote, "Write what you know." I try. I have spent most of my adult life in the practice of community association law. I got a little tired of my standard format and took a brief break, although I still wanted to impart what I had learned.
So, regarding those HOA/condo tribulations, and not to sound like a broken record, because I have said it many times before, I believe community associations are a microcosm of all forms of governance.
In every community association, volunteer leaders have to step forward. It is often a thankless task. Regardless of the decisions made, someone will be unhappy. The happy or content people are usually silent. The unhappy people will often speak out. So, how to effectively deal with that? Even if it is only 1 percent that is unhappy?
Try not to be defensive. Be transparent. If owners are going to be specially assessed for a lobby restoration, let's say, hold an open meeting and bring in the professionals that will do it. Post samples of what it will look like. And analyze the feedback offered.
Be willing to change course, or the meeting is just a wasted exercise. Do this before any vote is taken on the expenditure or any contracts executed. If the board does not do that, chances increase the project will go down in flames.
Criticism can be hard to take in any forum, and difficult conversations are just plain difficult. The way to deal with them is to be willing to listen and then, if you believe you are still right, to say that you have listened (because you really have), summarize what you just heard to the best of your ability, and then explain why you think you are still right.
You could still end up in court. However, validation of someone with an opposing opinion does go a long way to resolving conflict.
And any leader needs a thick skin. Easier said than done.
Reviving covenants
Q:I am a member of an HOA. Our deed restrictions should have been renewed years ago, but they were not. I did not know this was necessary. We now have an association with "no teeth" ($50 yearly membership dues are voluntary, and a high percentage of homeowners choose not to pay.)
We have many hard-working volunteers to help our community maintain good property values, but not enough money to accomplish our goals. We need 100 percent compliance of our homeowners paying dues.
I understand we need a vote of 100 percent of the current homeowners to get our association back. That will never happen. Is there anything else we can do?
— D.C., Englewood
A:Ouch. That is an unfortunate situation that I see all the time. Because of space limitations, I will have to offer an oversimplified answer to a complex problem.
Florida has a law known as the Marketable Record Title Act (MRTA). I know that MRTA sounds like mass transit in Atlanta, but it is something altogether different.
Generally, it means that your deed restrictions expired after the passage of 30 years from the date they were recorded in the public records, unless they were properly "revived" before the expiration date. Some associations, like yours, do not realize this until it is too late.
Condos do not have this problem because the legal description of a condo unit includes a reference to where the declaration is recorded in the public records. Most HOA legal descriptions do not reference the deed restrictions.
Not all is lost, though.
The Florida Legislature has taken notice that it is important to have these covenants remain in place. Part III of Chapter 720, Florida Statutes, which is the chapter that regulates HOAs, provides for "Covenant Revitalization." This means that restrictions that have expired can be brought back to life.
Unfortunately, it is an incredibly complex process.
The good news is that if all the right hoops are jumped through, restrictions can be revived and unanimous consent is not required. A majority of the "affected" parcel owners will have to agree, and the State Department of Economic Opportunity will have to sign off (don't ask me why.)
This statute may as well have been called the "Lawyers Relief Act" because I do not see how it can be accomplished without legal assistance.
That makes it difficult for you because that takes money. I do not know if the local legal assistance program could help, but it is worth an inquiry. Good luck.
Tamela Eady Wiseman is a Florida Bar board-certified real estate attorney with 25 years' experience. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tew@lawbywiseman.com.
