AMENDMENT – OR PLAIN BREACH OF CONTRACT?

By Jan Bergemann

Published June 15, 2012  

 

Owners are always told that “they signed a contract and should abide by it.” But this so-called contract is clearly a one-sided piece of paper that is only binding to the owner, not any other party or even the legislature. Florida statutes – confirmed by the Florida Supreme Court (Woodside vs. Jahren) -- allow the governing documents (THE CONTRACT?) to be amended without the agreement of all owners. Families buying into a “pet-friendly” community – as advertised by the developer – are suddenly facing a majority of members “hostile” to pets, amending the deed restrictions and making a no-pet community out of the advertised pet-friendly community. 

 

In other words: If you buy a home relying on the verbiage of the deed restrictions, you may face one day the fact that the reason why you bought into this community is no longer allowed.

 

I still remember the fight over HB1223 in Tallahassee in 2004 that created this provision that protected buyers of investment property against amendments that curbed their right to rent these units: FS718.110(13) An amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of that amendment.

 

As usual, no such protection exists for homeowners regulated by FS 720. But what’s new?

 

As Eric noted in his BLOG headlined “AMEND TO YOUR HEART'S CONTENT”, more and more unit owners are trying to create rules that would prevent an owner from smoking in his/her own unit, claiming they don’t like the smell of the smoke – or are allergic to cigarette smoke.

 

To be honest, I think the one to blame for this “inconvenience” is actually the developer/builder of this building, not the smoker. Smoke from one unit shouldn’t bother the folks living in a neighboring unit. Cheap construction?

 

Imagine the next step: A new neighbor loves his curry and is permanently cooking meals that dispense a very strong curry odor. Ever walked by an Indian restaurant? That smell is a lot stronger than the smell 100 cigarettes can create. Does that mean that the association membership should now pass a rule that would disallow an Indian native to cook his hometown cuisine? How far should the right to AMEND go?

 

I think this “Right To Amend” is the crux of the whole problem -- the reason why the community association system will never work. It seems that in this country everybody always wants to tell everybody else how to live their lives and what to do and how to do it.

 

Despite my United States passport I’m still European in my heart. Where I come from you wouldn't dare to even consider telling your neighbor how to live his/her life, if they can have pets, if they can smoke in their apartment or who to have as guests and who to rent their home/apartment to. That would be considered outright impolite and most likely folks would call the folks with the little white jackets to straighten out the people who would try that!


If your neighbor has a dog that barks constantly -- that might create a neighborhood feud. But telling a neighbor he can’t have pets – not even a goldfish?

    

In my opinion about 90% of the wars in associations are caused because someone is trying to force neighbors to live their lives the way someone feels is right! Can’t we just get back to a simple: “Live and let live”?


 
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Jan Bergemann

Jan Bergemann is president of Cyber Citizens For Justice, Florida 's largest state-wide property owners' advocacy group. CCFJ works on legislation to help owners living in community

associations. He moved to Florida in 1995 - hoping to retire. He moved into a HOA, where the developer cheated the homeowners and used the association dues for his own purposes. End of retirement!

  

CCFJ was born in the year 2000, when some owners met in Tallahassee - finding out that power is only in numbers. Bergemann was a member of Governor Jeb Bush's HOA Task force in 2003/2004.

  

The organization has two websites to inform interested Florida homeowners and condo owners:

News Website: http://www.ccfj.net/.

Educational Website: http://www.ccfjfoundation.net/.

   
We think that only owners can really represent owners, since all service providers surely have a different interest! We are trying to create owner-friendly laws, but the best laws are useless without enforcement. And enforcement is totally lacking in Florida !

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