legal Issues

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• The respective boards within the Eastpointe Community have the authority to enter into agreements with each other on behalf of their respective constituencies. However, this power is limited to the executory authority to enter into contracts. However, the governing documents explicitly forbid the EHOA and ECC from approving such “legislation” internally, amongst their constituencies, without voting membership approval. 
•  Example -  the 2024 Bi-Party Agreement contains fee increases, while at the same time reducing member benefits and further dictating future fee increases. The agreement therefore serves to levy assessments upon the residents via the mandatory membership provision. Likewise, the 2024 Bi-Party Agreement alters the governing documents in that it contains a provision (paragraph 12) to implement changes governing new Resident Social Membership Categories, which alters the voting rights of each mandatory social membership categories and fees to be charged accordingly. 
•  The governing documents of the ECC and the EHOA are crystal clear in their directive that these types of amendments to the By-Laws are subject to strict member voting requirements:
•   Per the By-Laws, assuming proper 14 day Notice, amendments to the By-Laws must be presented to the membership for approval and must be approved by a majority of the members in attendance, either in person or by proxy, at any annual or special meeting of the members. Neither were abided by in the passage of the Bi-Party Agreement.
•  The EHOA and ECC contend they are free to design, create, and adopt agreements on behalf of the community, without community input or properly noticed voting, on the grounds that “the EHOA operates by and through its Board of Directors”. This is a gross misreading of the applicable governing documents. The Board of Directors of the EHOA is not granted unfettered authority to act on behalf of its constituent members on matters that are explicitly called out by the applicable Florida statutes and governing documents, both of which are clear in outlining the fact that the governing bodies exist to represent the will of the members, rather than to act unilaterally on their behalf. 
•  No  where in the Tri-Party agreement, or follow-on Bi-Party agreements, are subsequent amendments authorized to be approved without a vote of the membership. In fact, paragraph eleven of the original Tri-Party agreement states, “ The parties hereto agree that nothing in this Agreement shall be construed or interpreted so as to be in conflict with or to amend or modify the provisions of the existing documents affecting the Clubs or the Association.” 
• The EHOA’s Amended and Restated Declaration of Restrictive Covenants clearly details how modifications/ amendments are to be approved, as  it states in the preamble, “WHEREAS, every Unit Owner took title to a Unit in the Eastpointe Community subject to the knowledge that the Declaration of Restrictive Covenants, the Articles of Incorporation, and By-Laws of the Eastpointe Homeowners' Association could be amended, from time to time, with the requisite approval vote of the Members. “

( Note: in Florida there is a a priority in interpreting legal Documents. Fl Statutes take precedence over Governing Documents. In interpreting and implementing all

·of the governing Documents, the order of priority and preference is as

follows:

1. Amended Declaration

2. Articles of Incorporation

3. By-Laws

4. Rules and Regulations.

This means that if there is a conflict between documents, the higher priority document gets preference. The Bi-Party agreement is a contract and is below the Governing Documents in priority. This means that nothing in the Bi-Party agreement can conflict with the Governing Documents and if that happens the Governing Documents or Fl Statutes take precedent. In summary, the Bi-Party agreement can not give authority to the HOA Board that violates or conflicts with the Governing Documents or Fl Statutes.)

As a threshold matter, Florida statutes place strict requirements on the passage of such 

agreements. Given the nature of the fee structures placed upon residents by the agreement, the 

failure to pay which can result in a lien being placed on an owner’s parcel, 14-days’ notice is 

required:

720.303(2)(c)(2): 2. An assessment may not be levied at a board meeting unless the 

notice of the meeting includes a statement that assessments will be considered and the 

nature of the assessments. Written notice of any meeting at which special assessments will 

be considered or at which amendments to rules regarding parcel use will be considered 

must be mailed, delivered, or electronically transmitted to the members and parcel 

owners and posted conspicuously on the property or broadcast on closed-circuit cable 

television not less than 14 days before the meeting.

An “assessment”, also referred to as an “amenity fee”, is defined by Fla. Stat. § 720.301(1) as “a sum or sums of money payable to the association, to the developer or other owner of common areas, or to recreational facilities and other properties serving the parcels by the owners of one or more parcels as authorized in the governing documents, which if not paid by the owner of a parcel, can result in a lien against the parcel.” Both the HOA and ECC By-Laws provide for the placement of liens for delinquent or unpaid assessments. Therefore, regardless of the structure of the fees in terms of which entity collected the fees or for whose benefit they were used, the meeting to even discuss the Bi-Party Agreement requires the 14-day notice as outlined above, and such notice is most certainly required especially where such measures are being voted on. The 48-hour notice provided by the HOA before passing the last 2 Bi-Party Agreements did not meet these requirements. 

 The Bi-Party Agreement itself, which functions to alter the governing documents (as well as the voting rights of members), is subject to the requirements for amendment of the governing documents1 as follows: 

 EASTPOINTE HOA • Per the By-Laws, assuming proper 14 day Notice, amendments to the By-Laws must be presented to the membership for approval and must be approved by a majority of the members in attendance, either in person or by proxy, at any annual or special meeting of the members. 

Fla. Stat. §720.306 likewise strictly prohibits alterations to a lot owner’s voting rights and assessment obligations without the lot owner’s consent – meaning a Board-only vote on a Bi-Party Agreement that functions to alter such rights, is in violation of this statute as well.