Estate and Succession Planning
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So, I live in an association….?
It happens more than you might think. Home buyers get excited about purchasing a home in a surprisingly well manicured community. They later discover, upon receipt of the bill for their assessments, that their well-kept neighborhood costs money – their money.
Florida community associations confuse people – somewhat unnecessarily. While certain aspects of associations are complicated, at their root, community associations are simple entities designed to protect home, neighborhood, and community values. In this first part of this multi-part blog series, I try to answer some basic background questions about what it actually means to live in an association controlled community.
When people say that they live in a “HOA” or that their property is “run by a condo board”, they could be using imprecise or technically inappropriate language. But, by way of introduction, their comments generally translate to mean a few things. First, their home and lot (that is, their “real property”) are a part of a lager and defined area of land (which area is typically identified on a publicly recorded plat map). This area is identified via a unique name listed on the plat map – which name is typically some variation of the name on the sign at the entrance of their neighborhood.
Second, the neighborhood area in which their real property is located is subject a recorded declaration – what some may commonly refer to as their conditions, covenants, and restrictions or “CCR” (a name designation that may or may not be technically appropriate). This declaration is a document which was drafted on behalf of the original developer and is made for the neighborhood. The declaration, among other things, ‘declares’ which properties are included in the neighborhood area and sets forth the rules and regulations to which the properties within the neighborhood area are subject. It is, in essence, an elaborate contract amongst all of the owners in the neighborhood area.
Third, and finally, the rules and regulations of the neighborhood, as set forth in the declaration, and the other matters related to the service and maintenance of the neighborhood are all enforced and tended to by a legally established, distinct, corporate entity. This entity, which is or should be referenced by name in the declaration, is generally a non-profit corporation. While all of the owners in a particular neighborhood are typically considered “members” of this entity, the day to day actions of the entity are controlled and performed by a board of directors – who are typically elected by the members. This entity, which is made up of the individual property owners (the members) and the elected board, is appropriately referred to as the association.
Please note, that the above characteristics represent generalities. There can be some variation. And, just because a particular community fits within each of those characteristics, that does not necessarily mean that the particular community is controlled by a homeowners association. The community, alternatively, could be made up of condos and controlled by a condominium association. There are two distinct chapters of the Florida Statutes dedicated to each. Chapter 718, F.S., is dedicated to condominium communities controlled by condominium associations. Chapter 720, F.S., on the other hand, is dedicated to (what are typically) detached single-family home communities controlled by homeowners associations. While there are other types of communities – like cooperatives – which exist as an alternative to condo or HOA communities in Florida, condo and HOA communities are the most common. Each community type, despite their distinctions, can be lumped into a single category called common interest communities.
Determining the type of common interest community in which your property is located is easy. If you don’t already have a copy, just request your association’s board to provide you with a copy of the community declaration. Your declaration will (or at least should) specify the type of community in which your property is located.
Understand, however, that, depending on the size of the development in which you live, you may get a copy of your community declaration and a second declaration for a so-called master association. Often times, developments will have multiple declarations. This is so because, for example, a master planned community may be made up of a very large piece of property in which many different types of buildings will be built – to house residential, commercial, and combined commercial and residential uses. And, in producing such a development, developers want to ensure that there is a set of overall rules and guidelines to be followed in the community as a whole and a related but distinct set of rules tailored to control each individual neighborhood and/or business park within that community. Based on the needs of the community as a whole and the developer’s vision for the area, these sub-communities could be made up of a combination of homeowners association controlled areas and condominium association controlled areas.
With your declaration in hand and an understanding of the basic framework of common interest communities as described above, you are ready get a little better grip on what it means to live in a common interest community. In part 2 of this series, starting with homeowner association controlled communities, we will look a little deeper into the makeup of the association, the documents that establish the community and association, and how the assessments (or dues payments) are established. As a supplement, in the meantime, you should look at the following: The Law of Florida Homeowners Associations, by Peter M. Dunbar, Esq., and Charles F. Dudley, Esq., the 10th Edition; The Condominium Concept, by Peter M. Dunbar, Esq., the 14th Edition; and the Resident Owned Community Guide for Florida Cooperatives, by Peter M. Dunbar, Esq., the 3rd Edition. These are excellent, well written guides on Florida’s common interest communities.
About the Author(s):
Peter M. Dunbar is the chair of Dean Mead’s Government Relations, Lobbying and Administrative Industry Team. His practice focuses on governmental, administrative, and real property law. Drawing on a distinguished background of public service, he represents and advocates on behalf of a variety of private and public interests before the Florida Legislature and the Executive Branch departments and agencies of Florida state government. Mr. Dunbar began his long career in Florida government in 1967 as a staff director in the Florida Legislature. He served as the Pasco County attorney and later served for 5 terms as a member of the Florida House of Representatives. Upon leaving the Legislature, he held the posts of General Counsel and Director of Legislative Affairs for Governor Bob Martinez and later served as the General Counsel at the Department of Financial Services. Mr. Dunbar served as Chief of Staff during the transition from the Martinez administration to the administration of Governor Lawton Chiles, and he is former Chairman and 2-term member of the Florida Ethics Commission. Currently, Mr. Dunbar serves on the inaugural committee for the Condominium and Planned Development Law Certification for The Florida Bar. He may be reached at pdunbar@deanmead.com.
Brian M. Stephens is an associate in Dean Mead’s Viera/Melbourne office. He represents businesses and developers in various aspects of commercial and residential real estate, leasing, financing, land use, title claims and growth management. He may be reached at (321)259-8900 or by email at bstephens@deanmead.com.
