The Homeowners Association was created by the developer for the primary purpose of canal maintenance and repair (Number 25 of the deed restrictions).  Unless the sub divider (developer) names the Association as a direct successor, the Association has NO right to carry out numbers 7and 8 of the deed restrictions.  

(Florida Statutes 720.301(5)   "Developer" means a person or entity that: 

a.  Creates the community served by the association; or

b.  Succeeds to the rights and liabilities of the person or entity that created the community served by the association, provided that such is evidenced in writing.)

We cannot even have an Architectural Review Board (ARB), otherwise known as the architectural control committee, because, according to number 12, third paragraph of the deed restrictions, the 889 homeowners have never voted for the members or put such vote in writing. 

No written authority was EVER given to the Holiday City Homeowners Association in 1984, when the developer left the Board.  Therefore, the Holiday City Homeowners Association, which became the Palmetto Pines Homeowners Association, has no right to make rules and regulations or do anything to enforce the deed restrictions other than collect $2 per month for canal maintenance.  This was known in 1994 when the old Board was prosecuting a case against a pick-up truck owner. (See the Wrabel Case) 

The judge in that case questioned the authority of the Board to do anything.  This became public knowledge when the Palmetto Pines Hot Line published a letter written by Elaine Gatsos to the Board.  (See Elaine Gatsos' Letter)  The final disposition of the Wrabel case was a victory for Jack Knight, but it is chilling for the rest of us.  The Wrabels were told that if they sold the pickup truck, they could only replace it with a car, noncommercial van, or SUV.  

Our board doesn't have the right to do that, but we have to fight for our rights.  It is interesting that seven years after the original court case, the question of trucks is still with us.  During the property manager's report, at the December Board meeting, Mr. Kneiser (the same one from the court case) reported that he had done an inspection of the community on a Saturday morning from 6 to 8 AM.  He said that he had made only one pass and was surprised at the large number of pick-up trucks out in full view.  At this point, one of the home owners, a policeman and former president of a homeowners' board in a different county, stood and said that his association had gone to court over pick-up trucks and lost, since state guidelines say that a pick-up truck is not a truck, but a passenger vehicle.  He also said that for anything to stand up in court, according to our deed restrictions, a person would have to sit and watch the pick-up truck for more than four hours to prove that it was in violation.  The Association lawyer, Tamar Shendell, spoke up and confirmed that the category "truck" did not include pick-up trucks.  At this point, it was requested by Mr. Espineira that all questions be held till the end of the reports.  The only place where pick up trucks are mentioned is in the Rules and Regulations, or now, the August 2000 By-laws and Rules and Regulations.  These rules were voted on by the nine members of the old Board only and have no weight as deed restrictions.  For the rules to be binding on the homeowners, 889 votes would have to be cast and 2/3's would have to approve the changes.  

According to Florida Statute 720.306 

(1) (b) Unless otherwise provided in the governing documents or required by law, and other than those matters set forth in paragraph (c), any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association.

(c)  Unless otherwise provided in the governing documents as originally recorded, an amendment may not affect vested rights unless the record owner of the affected parcel and all record owners of liens on the affected parcels join in the execution of the amendment.

In other words, we can vote on an amendment to the deed restrictions, but unless we agree with it and our mortgage holders agree with it, the amendment is not binding on us.

Last modified: June 13, 2001

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