Occasionally, I will hear from an older Florida homeowners' association that is considering allowing its restrictive covenants to simply expire by application of law. In some of these communities, there is not much in terms of common areas to maintain and insure or the entire concept of a mandatory association has lost its appeal. A new case out of the 4th DCA involves an action centered around an owner’s legal standing to compel the HOA’s Board of Directors to proceed with the “Preservation” of the Association’s restrictive covenants in compliance with Florida Statutes, Sections 720.05 & 720.06 in order to preserve such covenants from being extinguished under Florida Statutes, Chapter 712 - commonly referred to as the Florida Marketable Record Title Act (“MRTA”).
The very recent case of Southfields of Palm Beach Polo and Country Club HOA, Inc., et al v. McCullough may make some boards who are otherwise inclined to ignore the effects of MRTA to reconsider. In this case, Victoria McCullough, a landowner in the Southfields equestrian community, filed a complaint in Circuit Court claiming that the Association’s board was refusing to preserve the Declaration by failing to record the permissive notice of preservation allowed under Florida Statutes, Section 712.05. McCullough requested an injunction and a writ of mandamus to compel the board to file the required notice.
McCullough relied on the fact that in 1981, the Association’s governing declaration was recorded to impose certain covenants, conditions, and restrictions within the Southfields community. The declaration stated that its “provisions hereof shall be liberally construed to effectuate the purpose of creating a uniform plan for the development and operation of the Property.” The declaration created a homeowners association whose stated purpose, according to its articles of incorporation, is “to provide for the regulation, maintenance, and preservation of the development of Southfields.”
The Court determined that the declaration was intended to preserve the equestrian nature of Southfields which thereby required that the board exercise its powers to maintain the declaration until and unless ninety-five percent of landowners vote to dissolve the declaration and disband the Association.
The trial court granted summary judgment as to both the prayer for injunction and mandamus. The Appellate Court agreed with the trial court’s conclusion that if parcels were to drop out piecemeal without the requisite votes required by the governing documents, the Association would begin to resemble a piece of Swiss cheese, with portions of Southfields covered by the restrictions and other portions not otherwise covered by the restrictions. The Appellate Court also agreed that the language of the declaration itself made it clear that the board of directors is mandated and has a duty to protect Southfields and the restrictive covenants running with the land. Finally, the Appellate Court agreed that injunctive relief, as well as, mandamus relief was appropriate to compel the board to fulfill its duty and take the required action to preserve the declaration.
The Appellate Court noted the Mandamus relief is ordinarily used to compel a public official to perform a ministerial duty, but that neither party raised an appellate issue whether mandamus is appropriate to compel a homeowners association to act. The Court pointed out that mandamus has been approved to compel a corporation to act, citing, Faro v. Simplex Med. Sys., Inc., 748 So. 2d 342, 342-43 (Fla. 3d DCA 1999).
Some older HOAs have drawn criticism for attempting to preserve or revive older covenants that will be or have been impacted as a result of MRTA and now some older HOAs are being criticized for not being proactive in protecting and preserving those covenants. This falls under the category of not being able to please everyone. For older HOAs that have a unique lifestyle connected with their community (for Southfields it was equestrian, for others it may be communities with age restrictions, a golf course or waterfront lifestyle, etc.), the issue of their community's character being tied to and defined by the restrictive covenants makes the board's decision to preserve or not to preserve a more important one.