Congratulations to the Winners of the 2019 Polk Emerging Leader Awards

Congratulations to the Winners of the 2019 Polk Emerging Leader Awards

Front row from left: Keith Miller, Chris Miller, Annette Chilton; Back row from left: Sean Parker, Melony Bell, Jillian Spangler, Robert Chilton, Mark Delaney

Boswell & Dunlap LLP congratulates the nominees and winners of the 2019 Polk Emerging Leader Awards.  The firm is proud to support the annual event, held in Bartow, and put on by the Winter Haven Chamber of Commerce in coordination with Endeavor Winter Haven, Emerge Lakeland and Engage Bartow.  This event annually recognizes five emerging leaders from across Polk County for their contributions to our community, both personally and professionally.

HOAs! Beware The Marketable Record Title Act (MRTA)

For unwary homeowners’ associations, a danger is lurking beneath the water’s surface.  If one is not careful, it will strike, swallowing whole a community’s restrictive covenants.

I speak, of course, of MRTA, which was enacted to simply real estate transactions.  Before MRTA, a Florida parcel’s title history would theoretically need to be researched back to the initial Spanish land grants.  MRTA streamlines that process, providing that certain interests in land are extinguished after 30 years, with limited exceptions, unless those interests are preserved in the manner provided by law. In essence, MRTA eliminates stale claims against property.  These can include an HOA’s recorded Declaration of Covenants, Conditions and Restrictions (“CCRs”).

The yardstick for MRTA is the “root of title”.  The term “root of title” means “any title transaction purporting to create or transfer the estate claimed by any person which is the last title transaction to have been recorded at least 30 years before the time when marketability is being determined.”   § 712.01(6), Fla. Stat.  Under MRTA, “when a record owner, alone or with its predecessors in title, has been vested with an estate in land of record for 30 years or more, such owner has marketable title free and clear of all claims [and restrictions] except matters preserved by section 712.03.”  Martin v. Town of Palm Beach, 643 So. 2d 112, 114 (Fla 4th DCA 1994).

If MRTA has not already extinguished a community’s CCRs, the HOA has several options to preserve them, including:

1. Formal Notice – By recording a formal notice preserving the CCRs, following written notice to each affected owner, pursuant to §§ 712.05(2)(a) and 712.06.
2. Summary Notice – By recording a summary notice of preservation approved by the board of directors pursuant to §§ 712.05(2)(b) and 720.3032(2); or
3. Valid Amendment – By recording an amendment to the CCRs that is indexed under the association’s legal name and that references the recording information of the CCRs to be preserved pursuant to § 712.05(2)(b).

If MRTA has extinguished the CCRs in a neighborhood, covenant revitalization is possible. §§ 720.403-720.407.

Officers and directors must be wary.  They may not turn a blind eye to MRTA.  The Homeowners’ Association Act now requires that each year, at its first board meeting (excluding an organizational meeting to select officers) following the homeowners’ annual meeting, the board of directors “shall consider the desirability of filing notices to preserve the covenants or restrictions affecting the community or association from extinguishment under the Marketable Record Title Act[.]”  § 720.303(2)(e).  Failure to do so could, in certain circumstances, be construed as a breach of the duties each association, director and officer owes homeowners.

In short, beware of MRTA.  Ask your attorney to conduct a MRTA analysis.  If steps have not been taken to preserve your community’s CCRs, action may be needed.

Firm Sponsors Bartow Kiwanis Cryin’ Towel Event

Boswell & Dunlap LLP was thrilled to sponsor the 5th Annual Bartow Kiwanis Cryin’ Towel, which was held at the Bartow Civic Center on August 1, 2019. The event is the signature fundraiser for the Bartow Kiwanis Club, enabling them to serve the children of Bartow. Firm member Savannah Young Cerullo has served on the Kiwanis’s Cryin’ Towel Committee since the club revived the tradition in 2014. Over 300 were in attendance this year. Congratulations to this year’s winner, Bartow’s own Coach Tate, and to the Bartow Kiwanis Club for a great event!

From Left: Annette Chilton, Robert Chilton, Jillian Spangler, Savannah Young Cerullo

Chilton to Host Bartow HOA Seminar

On August 30, 2019, Robert Chilton will host a free HOA seminar at the Bartow Public Library.  The event, which begins at 2:45 p.m., will focus on legal issues facing Florida homeowners’ associations and include topics such as meeting procedures, estoppel requests, covenant enforcement and statutory updates.  Mr. Chilton has been certified to provide HOA board member education courses by Florida’s Department of Business and Professional Regulation.

All are welcome.  However, as space is limited, please contact the firm by August 16, 2019 to reserve your place.

BEWARE THE BOARD’S RULES AND REGULATIONS

Do you live in a deed restricted community? If so, you are probably somewhat familiar with the covenants and conditions encumbering your home. You may sleep soundly in the knowledge that those restrictions cannot generally be changed without a well-publicized vote of the homeowners. What then, does one make of that pesky “cease and desist” letter quoting not from the declaration of restrictive covenants, or even the bylaws, but the “rules and regulations” adopted by the board of directors?

Those rules can be more onerous than you think and, more importantly, they can be created and changed at the whim of a select few on short notice.

In all likelihood, the fine print in your restrictive covenants grants to the board of directors of your neighborhood the power to enact rules and regulations governing the common areas, community amenities and even parcel use. Have you been thinking of putting up a small garden flag to celebrate the season? Is your attic bursting with items perfect for a garage sale next weekend? Did you double check your declaration to ensure you were not over stepping the line? Good job. But what about those rules which you did not know existed?

The statutes in Florida governing condominiums and homeowners’ associations are clear that the rule-making power of community associations is alive and well. Section 720.304(1), Florida Statutes, says that “[t]he entity or entities responsible for the operation of the common areas and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common areas and recreational facilities.” Section 718.123(1) has a similar provision for condominiums. But buried in the fine print of your declaration of restrictions could be a broader mandate; one allowing your board to create nearly any rule it wishes.

When an owner challenges a board’s rule-making powers, Florida courts have adopted a two-prong test. “When a court is called upon to assess the validity of a rule enacted by a board of directors, it first determines whether the board acted within its scope of authority and, second, whether the rule reflects reasoned or arbitrary and capricious decision making.” Beachwood Villas Condo. v. Poor, 448 So. 2d 1143, 1144 (Fla. 4th DCA 1984). Interestingly, the second part of the test (reasoned vs. arbitrary) is often rendered toothless by the business judgment rule, by which courts defer to the business judgment of a board of directors. Cedar Cove Efficiency Condo. Assn., Inc. v. Cedar Cove Prop., Inc., 558 So. 2d 475, 479 (Fla. 1st DCA 1990). More importantly, absent from this analysis is the presumption that such rules shall be construed in favor of the free and unrestricted use of land, as is the case with restrictive covenants. Orange Gardens Civic Assn. v. Harris, 382 So. 2d 1340, 13441 (Fla. 5th DCA 1980).

In sum, it is likely that the board of directors of your community has more power than you think. Check carefully before you decorate for the season or plan a small yard sale. What you do not know can result in an unwanted letter from your association or, gulp, your friendly neighborhood attorney.

HOAS & CONDOS STRUGGLE WITH SHORT-TERM RENTALS. WHAT IS THE REMEDY?

According to FloridaRentals.com, as reported by The Ledger, the Davenport/Four Corners area of Polk County is one of the top 10 vacation rental locations in Florida. This news will be received with trepidation by area HOAs, condominiums and other community associations.

It is not that HOAs and similar communities dislike tourists or visitors. Rather, problems arise because:

1. Owners of vacation rentals generally live elsewhere;
2. Landlords are incentivized to avoid maintenance costs in order to maximize profit;
3. Short-term renters have little motivation to abide by covenants or pay attention to neighbor’s concerns; and
4. The folks living next door to a popular VRBO/Airbnb/HomeAway rental may justly conclude that the neighborhood feels less like a close community and more like a collection of transient lodgings.

The solution to short-term rentals is easier if a community’s covenants, conditions and restrictions (CCRs) already prohibit them. Just hire a lawyer and enforce the rules. If the CCRs lack that provision, what is the remedy?

Three options are generally pursued, with varying degrees of success.

1. Amend the CCRs: The safest and surest approach to prohibit short-term rentals is to amend the CCRs to explicitly do so. Reasonable and clear restrictions on renting “whether contained in the original declaration or in subsequent…amendments, are reasonable indirect restraints on alienation” that do not violate public policy or owners’ constitutional rights. William P. Sklar & Jerry C. Edwards, Florida Community Associations vs. AIRBNB and VRBO in Florida, Fla. B.J., Feb. 2017, at 16, 16; Woodside Village Condo. Assn., Inc. v. Jahren, 806 So. 2d 452, 461-62 (Fla. 2002).

2. Enforce the “Residential Use” Restrictions: If a CCR amendment is not doable, some associations pursue the owner on a theory that short-term rentals violate restrictions requiring the property be used only for residential purposes and prohibiting business or commercial uses. This tactic has been rejected by the Courts. “[T]he nature of the property’s use is not transformed from residential to business simply because the owner earns income from rentals.” Santa Monica Beach Property Owners Assn., Inc. v. Acord, 219 So. 3d 111, 115 (Fla. 1st DCA 2017). In such cases, because CCRs are to be strictly construed in favor of the free and unrestricted use of real property, “the omission of an explicit prohibition on” short term rentals is “fatal”. Id. at 116. Note that the outcome changes if the owner is doing more than simply renting, such as operating a small inn or an adult congregate living facility. Id. at 115.

3. Reasonable Rules & Consistent Enforcement: If an amendment cannot be had and enforcing the “residential use” covenant will not succeed, what is an HOA or condominium to do? The solution is two-fold.

A. Tenant Disclosure Rule: First, community associations have a legitimate interest in knowing who is renting a parcel or unit. If owners were allowed to hide a renter’s identity, HOAs would be unable to enforce important statutory rights (i.e. right to intercept rent for unpaid assessments or enforce CCRs against a tenant). A rule requiring that owners submit the names of each renter, and certain information about each lease, is a legitimate exercise of an HOA’s authority. It is also difficult to follow if an owner is engaged in high-volume, short-term leasing. In my experience, owners either slow their rental activity or pay closer attention to ensure compliance with the rule. Either outcome is positive.

B. Consistent Enforcement: Along with the tenant disclosure rule, HOAs and condos should ensure that the CCRs are consistently enforced. If an owner is having to pay fines and incur remedial costs due to the violations of his short-term renters, he will be motivated to pay closer attention to prevent violations in the first place. He may also decide that rentals for longer durations are the better policy, as those tenants have an incentive to be good neighbors.

Short-term rentals, and the websites that enable them, are here to stay. HOAs, condominiums and other communities are not, however, without tools to address the problems that come in their wake. As always, the advice of counsel should be sought.

DON’T PUT OFF ESTATE PLANNING

POLK COUNTY ADOPTS SUBDIVISION PARKING POLICY

The Polk County Board of County Commissioners have given community associations a new tool to fight parking congestion. Emergency vehicles can have trouble navigating a neighborhood’s narrow streets when residents and guests park on both sides of a road. If those roadways are maintained by the county, homeowners’ associations and cooperatives may be powerless to relieve the congestion. No longer.

This past November, county commissioners approved a new Subdivision Parking Restriction Policy. Communities may now request that Polk County impose and enforce reasonable parking limitations on certain segments of their roadways. The restrictions, for instance, could limit on-street parking to one side of a roadway. If the neighborhood’s proposals are deemed feasible following a county review, the issue will be put to a vote of the affected owners. Polk County will handle the balloting process. If approved, the county commission will then make the final decision.

The Subdivision Parking Restriction Policy was adopted on November 20, 2018.