March 2000 MEMORANDUM TO CLIENTSFAIR HOUSING ACT: ACT NOW, OR LOSE LATER Many established communities must act now if they want to be designated as a Ahousing for older persons community.@ The Federal Department of Housing and Urban Development has amended the rules governing the Fair Housing Act. Clients will remember from earlier Memoranda that the Federal, State and Palm Beach County Fair Housing laws prohibit discrimination against children, unless the community obtains an exemption from the law.The deadline for certain established communities obtaining an exemption is May 2, 2000. Apparently the Federal government determined that in the five years since the last amendment to the Federal law, if certain communities have not reached the threshold for an exemption, then an exemption would not be permitted. Usually a community must amend their recorded covenants, complete a census, and adopt rules. The regulations also specify verification and signage requirements. Generally, occupants must present a state or governmental photograph identification card, such as a driver =s license or passport, must be examined. Records must be kept. The regulations require a verification every two years. Advertising or signs declaring AAdult Only@ and ANo Children@ are not permitted. Acceptable signage includes AA Community Providing Housing for Older Persons.@Please confer with your community association counsel for additional information. If an exemption is sought, then contact counsel immediately. Time may be running out! COVENANT ENFORCEMENT: TO BE OR NOT TO BE, WHAT IS AAROUND OR NEAR?@When purchasing a home, owners often buy more than just a structure in which they want to live. Many owners consider not just the home, but the immediate environment. A great view, luxurious amenities, the development =s aesthetics B all of these factor into the decision to purchase a particular home.So, when an association or developer takes steps to alter that environment, opposition can often be vociferous and heated. Furthermore, the owner may find an ally in the association =s own governing documents. In Imperial Golf Club, Inc. v. Monaco, 25 Fla. L. Weekly D182 (Fla. 2nd DCA January 14, 2000), homeowners successfully sued concerning a structure which partially blocked the owners= golf course view. In ruling in favor of the owners, the appellate court construed a restrictive covenant against the association.Mr. and Mrs. Monaco had purchased a home from Imperial in the early 1980 =s. The home abutted the fifth hole of Imperial=s golf course. The Monacos had an unobstructed view of both the fifth tee and the fourth green.Action leading to litigation began in 1997. Imperial began building a new restroom/shelter facility for golfers between the fourth green and fifth tee. The new building apparently obstructed about fifteen degrees of view. The construction allegedly substantially interfered with the Monacos = view of the fourth green. The Monacos sued, seeking either a court order preventing completion of the building, or alternatively monetary damages.The golf course was subject to a restrictive covenant. The restriction declared that no obstructions could be built Aaround or near@ property lines. The covenant explained that Athe purpose of this clause being at all times to permit complete visibility of the golf course.@So, when exactly is a structure Aaround or near@ a property line? In this situation, the new building was 81 feet from the Monacos= property line, about 100 feet from the Monacos= house. While an object 81 feet away may not intrinsically seem to be Aaround or near,@ the court found that the second phrase in the covenant was the key.The appellate court stated that the threshold for enforcing the golf course =s restrictive covenant was when Atheir intent is clear and their restrictions are reasonable.@ Examining the text, the court stated that the Aintent of the restrictive covenant is clear and reasonable.@ The court found the stated Apurpose@ as Acomplete visibility of the golf course Y.@ Because the new structure prevents the Monacos= complete visibility of the golf course, the court held that the structure violates the intent and purpose of the restrictive covenant. Thus, the potentially ambiguous phrase Aaround or near@ was resolved in favor of the owners because of the covenant=s expressed intent, that is, complete visibility of the golf course.The Imperial decision provides an important test for association =s considering new construction, or alteration of existing facilities. Ambiguous restrictions may prohibit the construction.CORPORATIONS: ANNUAL REPORTS ARE DUE Corporate Annual Report forms have been sent to each Florida corporation. Every corporation, profit or not-for-profit, is required to file an Annual Report on the Department of State, Division of Corporations = form. For profit corporation forms requiring a $200.00 annual fee are green and white. Most associations will be required to file the not-for-profit blue and white form which requires a $61.25 annual fee.The filing deadline is May 1, 2000. The form must be timely received in Tallahassee, Florida with the proper fee. Forms not properly completed or submitted without the fee will be returned! To save an amendment fee, corporations, especially associations, are urged to review their registered office and agent designation. Corporations which fail to file and pay the proper fee will be involuntarily dissolved. One of the most significant effects of a dissolution is to expose a corporation's principals to personal liability for the corporation's debts. A dissolution may also adversely impact the corporation's and principal's tax status, prevent the prosecution or defense of claims in court, and may constitute a violation of the Condominium or Cooperative Acts, or the Homeowners' Association Laws. Perhaps the most frequent reason annual reports are returned is the failure to sign, date and place a daytime contact telephone number at the bottom of the form. Another reason for returned forms includes not following directions for updating new officer and director name and address information. Condominium and cooperative associations should take note that the annual filing and per unit fee required by the Division of Land Sales is separate from the Annual Report. The Annual Report still must be filed by condominium and cooperative associations. OFFICE NOTES Welcome Shirlene Ananayo-Rawlik. Shirlene rejoins the firm after the birth of her son Pete. She will primarily provide support regarding pre-litigation assessment lien collections. Please welcome Shirlene! VOTE! Please remember that Florida municipal and county elections are Tuesday, March 14, 2000. There are few duties more important for citizen then voting. Educate yourself and vote early! Please note that Palm Beach County School District =s spring break is March 12 - 20, 2000. In addition to keeping a watch for children, note that many staff members may be absent during break. Thank you for your cooperation.
This information is provided for public information purposes only and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general notice of recent legal changes. This information is not to be considered as legal advice. The changes in the law may not have been reviewed by Florida courts and may be subject to further challenge. Before taking any action you are urged to consult with counsel to ensure that your legal rights are protected. F 8 2000 by Gelfand & Arpe, P.A. F:\WP51\CLIENTLT\UPDATE00.03 |