In a recent Dade City case, a Pasco County judge ruled that a homeowners association (HOA), which had specially assessed its members for mounting legal fees regarding a costly dispute over wheelchair access to its meetings, has no authority to assess homeowners for its legal bills because the HOA’s covenants had expired likely due to the Marketable Record Titles to Real Property Act (MRTA). According to Laura Kinsler as she reported for the Pasco Tribune and the Tampa Tribune, John Whitt, a wheelchair-bound member for the homeowners’ association wanted to attend board meetings but was prevented access because the board insisted on holding its meetings on an unfinished lakefront lot that was not wheelchair accessible.
According to the article, the wheelchair bound member accused his association of violating the Fair Housing Act (FHA) and also for not having meetings that were open to all members as required by Chapter 720, Florida Statutes. Early in the case, it seemed the member would rue the day. He had won the often hard to obtain and revered temporary emergency injunction, which in this case, required the association to meet for the entire year in wheelchair accessible locations. However, as fate would have it, the case was reassigned. Ms. Kinsler reported that the case was dismissed when the new judge “ruled that ‘there is no legal basis to support the plaintiffs’ contention that the open meeting provision of [the law] requires wheelchair accessibility’ since private community associations are not subject to the federal Americans [w]ith Disabilit[ies] Act [(ADA)].”
The outcome is perplexing because while the ADA and the FHA are similar in application, they apply to two very different situations. The ADA applies to areas of public accommodation, while the FHA applies to housing providers, which includes residential community associations. Occasionally however, the ADA will apply to a residential community association where there is a “public use” at play, such as when an association rents its clubhouse for weddings. The reason the case is perplexing is because, as reported, the plaintiff sued under the FHA, but oddly, the trial court issued its ruling citing the ADA. If this is the case, then we may not have heard the last of this case yet. But, WAIT! It gets better still.
During the pendency of the case, the association’s legal bills, according to the article, reached “upwards of $70,000.” After the association levied its third special assessment, several other association members sued the association asserting that the deed restrictions had expired. Ostensibly, while the article does not specifically explain why, it was likely the effect of MRTA which, by way of an over-simplified explanation, abolishes restrictions recorded against real property not sooner than 30 years after their initial recordation, subject only to certain exceptions. Under Florida law, a HOA is permitted, by board action alone, to take certain measures prior to the expiration of the 30 years to preserve the community’s declaration of covenants and restrictions. If that does not occur, then it is required that a majority of those members affected vote in favor of revitalizing the community’s declaration of covenants and restrictions. If not, then the covenants no longer have any enforceability, including the right of the HOA to levy assessments.
Every HOA board member should be aware that according to a 2013, 4th District Court of Appeal decision, Southfield’s of Palm Beach Polo and Country Club, et. al. v. McCullough, the court held that HOA board members can have personal liability for allowing their covenants to expire, though the extent of their personal liability was not discussed. In another case, a lawyer was found to have liability where the lawyer failed to advise their HOA client of an impending 30 year MRTA deadline. As an aside, condominium association board members can let out a big sigh of relief because the nasty effects caused by the application of MRTA do not apply to condominium associations.
On a related note, Senate Bill 1450 was recently introduced which would require all HOAs to have meetings in locations that are accessible to physically handicapped persons. On an unrelated note, some good news to report: that nasty pending 2014 legislative bill that would have required a door tax to be paid by every HOA member in the state, similar to the $4.00 per condominium owner tax, died a deserving death a few days ago!