Thursday, June 30, 2011

Sometimes You Are on the Losing End of a Vote

On September 21, 1987, Saul and Edythe Klinow purchased a home in Island Court at Boca West Property Owners Association. On December 13, 2007, the association held a special meeting to discuss a beautification project to replace the driveways and sidewalks on the individual lots in the community at each owner's expense. The project was approved by a 2/3 vote of the membership at that meeting.

Later at its annual meeting, the association sought clarification and expansion of the language and once again the amendment was passed by the 2/3 threshold. The amendments authorizing the project were recorded in the Public Records on May 21, 2008.

In April of 2008, Mr. and Mrs. Klinow filed a complaint against the association seeking a temporary and permanent injunction to prevent the project from moving forward. The trial court ordered the parties to mediation and mediation failed. The parties went back to court and the trial court found in favor of the Island Court association on all 6 counts.

Not satisfied with that result, Saul and Edythe appealed the decision to the 4th DCA and the outcome of that appeal was recently published at 36 FLW D1404b. The 4th District Court of Appeal relied upon earlier caselaw which held that "in determining the enforceability of an amendment to restrictive covenants, the test is one of reasonableness." The Appellate Court noted that the original Island Court Declaration allowed the association to paint, repair, replace and care for garage doors, fences and certain exterior building surfaces; extending that oversight to include driveways and sidewalks was not a stretch and did not, in the Court's estimation, constitute a radical change which would create an "inconsistent scheme" in the development. In fact, the Court noted that the beautification project would further unify the community and upgrade property values.

Tomorrow we will discuss the Klinows' unsuccessful procedural attacks on the amendment process but the moral of this story is that sometimes an owner finds himself or herself on the losing end of a community vote but that does not, in itself, create the ability to successfully challenge what the majority desired.

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