Community Association Forum – Your Condo, HOA and Cooperative Questions Answered!

Association living is filled with many pitfalls that, if you don’t understand the rules and regulations, can become a legal nightmare. Thankfully, there are several firms that specialize in HOA law in South Florida who are more than willing to provide legal assistance.

Our question this month is one that, according to our legal expert, DEMANDS a legal opinion and not an answer to a column, but it should get people talking, and provide a little bit of help to those who might be in a similar situation.

Q:  We live in an inactive HOA in Stuart, FL.  We have recently been contacted by Martin County and SFWM as the result of some drainage issues in our community.  Apparently the developer of our community never transferred the drainage permits to our HOA.  SFWM is demanding we reactivate to accept these permits or face being fined.  Some in our community are adamant in their opposition to this because over the years,  they have violated the CC & R’s.  They now want to form a new corporation (LLC) to cover just drainage issues.  We do not want to join this new corporation. We prefer to reactivate the existing HOA and accept the permits. Can they form a new corporation?  Would it be legally enforceable that we join? Do we have to change our deeds?  Do we have to change our plat?  Any advice you could give us would be appreciated.

 

A: It is difficult to answer your question without knowing what you mean when you state that your HOA is “inactive”. If you mean that your corporate entity was dissolved by virtue of failing to file an annual corporate report and pay your annual corporate fee then the corporate entity can be reactivated by paying the necessary filing fees as outlined on the Sunbiz website. If you mean that your covenants and restrictions have been extinguished as a result of the Marketable Record Title Act (MRTA) wiping them out after thirty years from the root of title then reviving life into those covenants is a much more complicated and expensive proposition.

With regard to the SFWM demand that these drainage rights be transferred to a corporate entity, you need to speak to legal counsel to discuss your best legal options.
By: Donna DiMaggio Berger, Esq.
Donna DiMaggio Berger is a Shareholder with the statewide community association law firm of Becker & Poliakoff. She can be reached via email at [email protected] or by phone at 954-364-6031. If you have a question you would like answered in an upcoming column please let Ms. Berger know!