Friday, January 11, 2013

Is Your HOA Mandatory or Voluntary?

A very common assumption people make when they it purchase a home in a community managed by a homeowners association is that membership in the association is mandatory. Why wouldn’t they when the association asserts it is and demands payment?

The truth is the association is not going to tell you if it has lost status as a mandatory association or, worse yet, was never mandatory. The State of Florida does not regulate homeowner associations and does not certify them as mandatory, despite many associations telling their members the State has approved them or certified them. The State’s only involvement is to accept their corporation registration if the filing fee is paid.

All homeowners need to read the governing documents of their association: the Declarations, Bylaws and Articles of Incorporation. A review of these documents is necessary to check if the association was properly created to form a mandatory association prior to property being sold or to check if the documents may have expired under the Marketable Record Title Act (MRTA), which extinguishes deed restrictions after 30 years unless certain actions are taken to preserve them.

Other problems I have encountered in my practice of law include associations formed to enforce land use restrictions that fail to designate an association, older documents that fail to assign the developer’s rights to operate the community to an association, and illegal amendments to the governing documents.

Anyone who doubts the status of their association as a mandatory association should consult with a competent HOA or condo lawyer to review the documents.

2 comments:

  1. Can a voluntary HOA enforce deed restrictions against non-members?

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  2. I would like to know the answer to this as well as nothing was presented to me at time of purchase or in my mortgage papers!!

    ReplyDelete