Activist judges & implied HOA covenants

As a general principle, it is a self-feeding cycle whereby unjust, pro-HOA laws serve to further create unjust judicial precedent.  Homeowner justice is repeatedly denied as more and more cases rely on bad court opinions based on unjust laws, solidifying the strength and weight of these earlier cases that serve as precedent.  It is a primary cause of the failure to obtain justice for homeowners in HOAs.

Reflecting this considerable body of law, the newest version of the Restatement of Property (Servitudes) provides that “a common-interest community has the power to raise the funds reasonably necessary to carry out its functions by levying assessments against the individually owned property in the community….” Restatement (Third) of Property: Servitudes § 6.5(1)(a) (2000). In addition, as explained in a comment to that section, the power to levy assessments “will be implied if not expressly granted by the declaration or by statute.” Id. at § 6.5 cmt. B.

(Florida Supreme Court opinion in Evergreen Village).

Read the full Research Memo, No. 2

Published in: on April 2, 2016 at 12:58 pm  Comments (1)  

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  1. “Homeowner justice is repeatedly denied…(in-part) cause of the failure to obtain justice for homeowners in HOAs… In short, the ball is in the legislative court. Justice for the people is to be obtained from the legislature and not the courts.” HOA Constitutional Government, April 2, 2016

    While Petitioners (Homeowners Association Dispute/s) before the DFBLS are proscribed from expanding the “Alleged Violation Description” of the Department’s Single Issue Petition form, “DO NOT REFER TO ANY ATTACHED NARRATIVE OR STATEMENT AND ONLY USE THE SPACE ALLOTTED BELOW” (four [4] lines only), the Department’s single page Attention Respondent, Answer Re: Case #________ form provides six (6) lines for the Respondent to explain “The following complaint items are denied (any allegations not specifically denied will be deemed admitted)” and has no proscription re attached narratives, statements or twenty-six (26) page “motions” or in the alternative, “answers.”

    It makes little sense to characterize a proceeding in which the disparate treatment placed upon petitioners who are denied an equal opportunity to “explain” their complaint beyond four (4) lines to the Department and then are denied a hearing by the Department’s Order of Dismissal, a hearing which would have brought forward facts respecting the contested matter based upon sworn witness testimony and substantial tangible evidence, other than to acknowledge that such a result raises serious due process concerns.

    The Department’s March 24, 2016 Order of Dismissal, received by Petitioner on March 26, 2016 11:11 am, deprived Petitioner of any common sense understanding of due process as articulated by legislative intent embodied in Laws 2011 Chapter 185 and any department, agency or court’s procedural rules, a result that raises serious due process concerns. (See Request to Vacate Order of Dismissal, Grant Application for Entry of Default or Refer Case to the Office of Administrative Hearings for Hearing, March 28, 2016, attached without Exhibits A thru P).

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