HOA taking of property rights can be a constitutional violation

This Florida appellate case, Duvall v. Fair Lane Acres, Inci, has important ramifications for the loss of property rights that are taken away by private entity homeowners associations. The court held that, These property rights are constitutionally protected, and the trial court erred in ordering the Homeowners to sign the [association] Agreement by which they would be required to surrender these rights.” Here, a voluntary association — that under the declaration was required to provide certain services to all lot owners — attempted to impose additional requirements on and the withdrawal of services from non-members. Fair Lane sought to compel membership by such actions. It even drafted a new declaration and sought, rightfully, the consent of all the lot owners. The Plaintiffs did not consent.

 

With respect to property rights, it is very important to understand that in this instance there was no agreement or covenant that all owners were mandatory members of a homeowners association. Also, the declaration’s explicit covenants were upheld with respect to stated services, and non-stated obligations had to be consented to by each individual lot owner. With bona fide HOAs, the courts have imposed the broad, open-ended “agreement to agree” covenant, pertaining to amending the declaration by majority vote, applicable to those not consenting. By such rulings, in my view, the courts have violated the long standing property rights of lot owners, placing servitudes law above constitutional law. The application of these court rulings, a rejection of equal justice for all and the constitutional prohibition of ex post facto laws, render the declaration at the time of purchase meaningless.

 

Understanding the above, and speaking of homeowners associations, look to your declaration to determine what was explicitly granted to the HOA or obliged to by the lot owner. And that includes any valid amendment to the declaration, if any. All too often the HOA has taken broad liberties and the courts have treated the HOA as if it had the attributes of public government, and ignored the declaration and the owner’s protected property rights. The Duvall court held,

 

The most valuable aspect of the ownership of property is the right to use it. Any infringement on the owner’s full and free use of privately owned property, whether the result of physical limitations or governmentally enacted restrictions, is a direct limitation on, and diminution of, the value of the property and the value of its ownership and accordingly triggers constitutional protections. Snyder v. Bd. of Cnty. Comm’rs, 595 So.2d 65 (1991).

 

To impose a limitation on who can use and enjoy property is a direct restriction on the Homeowners’ ownership rights in their properties. . . . Similarly, to restrict the ability to transfer property by imposing an obligation to seek the approval of the Association is an improper infringement on the Homeowners’ property rights.ii



Putting aside the legal doctrine that homeowners have fully consented to everything and all things done by the HOA, the taking of a homeowner’s property rights by private organizations should be raised in all challenges where the HOA exceeded the rights granted to it by the CC&Rs or state laws.

i   Duvall v. Fair Lane Acres, Inc, No. 2D09-5089 (Fla. 2nd Dist. App., Dec. 1, 2010).

ii  See in general, Ethical obligations of attorneys to HOA members (HOA attorneys supporting transfer fees on sellers).

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Published in: on December 2, 2010 at 10:06 am  Comments (4)  
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  1. […] https://pvtgov.wordpress.com/2010/12/02/hoa-taking-of-property-rights-can-be-a-constitutional-violati… HOA taking of property rights can be a constitutional violation This Florida appellate case, Duvall v. Fair Lane Acres, Inci, has important ramifications for the loss of property rights that are taken away by private entity homeowners associations. The court he… pvtgov.wordpress.com […]

  2. I am a resident of a commununity called “The Vines” in Lee County Fl. On Monday Feb. 28th at 9:00 AM there will be a meeting ewhere a vote will be taken to mandate that when you sell your home the new homeowner will be required to purchase a Social membership in the Country Clu. Initual Fee $2,500.00 anual fee of $900. + $250.00 Capital investment and $an anual $1,00.00 that has to be purchased at the club.

    The News-Press published an article on this in Sunday’s News paper for your refererence in the Local Section by staff writer Mark S. Krzos. Any input in this matter would be greatly appreciated.

    Jake Slot

    • Sounds like an attempt by the Board (?) to change the original CC&Rs without announcing a vote of all residents to approve such a change, and then holding the vote; I believe a 2/3 majority of owners must vote “yes” for such a change to be made. Otherwise, not legal!

  3. […] post: HOA taking of property rights can be a constitutional violation … This entry was posted in Uncategorized and tagged a-direct-limitation, and-accordingly, […]


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