legal Opinions

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Excerpt from letter to Eastpointe HOA from Property Owners Legal Counsel, dated November 24th, 2024.

 As noted in your letter, the respective boards within the Eastpointe community, the Board of Directors of Eastpointe HOA (“EHOA”) and the Board of Directors of Eastpointe Country Club (“ECC”) have, pursuant to applicable Declaration of Covenants and Restrictions and the terms laid out by the original Tri-Party Agreement, 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. Given the function of the original Tri-Party Agreement and the Bi-Party    

Agreements that followed, the governing documents explicitly forbid the EHOA and ECC from approving such “legislation” internally, amongst their constituencies, without voting membership approval. In fact, as outlined in painstaking detail in our prior correspondence, there are strict requirements for the passage of any such amendments, under both the Florida statutes and the governing documents of the communities.

By way of most notable example, the 2024 Bi-Party Agreement in particular contains onerous fee increases, while at the same time reducing member benefits and further dictating future fee increases. The agreement therefore serves to levy assessments upon its constituents, who are members of the organization by operation of law via the mandatory membership provision. Likewise, the 2024 Bi-Party Agreement functions to alter the governing documents in that it contains a provision (paragraph 12) that requires the ECC to notice and hold a Special Meeting of the Members “for the purpose of adopting amendments to the Club’s By-Laws and to take all actions necessary to implement” further provisions governing new Resident Social Membership Categories, which alters the voting rights of each mandatory social membership categories and fees to be charged accordingly.

As outlined in our prior correspondence, 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:

EASTPOINTE HOA

· Per the By-Laws, assuming proper 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. As an aside, Fla. Stat. § 720.306 itself requires two-thirds of the voting interests of the association, although the By-Laws govern here. Neither were abided by in the passage of the Bi-Party Agreement.

EASTPOINTE CC

· Per the By-Laws, assuming proper Notice, amendments to the By-Laws require a vote of sixty percent (60%) of the votes cast at a meeting. 

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.

Your contention that the EHOA and ECC 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” is therefore apparently based upon 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.” While the Tri-Party agreement and illegally approved follow-on Bi-Party agreements state that the agreement can be amended from time to time, the Tri-Party agreement, and follow-on illegally approved Bi-Party agreements must follow the requirements in priority and preference clearly dictated in the Florida Statutes and the EHOA’s governing documents for approval of any amendments. 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.)

It is our contention that both the first and second amended and restated Bi-Party agreements were illegally approved. As for the process used to agree to the second amended and restated Bi-Party agreement that you discuss in your letter, we again assert that the process used was not transparent, and further, was significantly flawed in that the actions taken by the ECC and HOA, based on significant evidence we have received, constitute breaches of contractual and fiduciary duties owed to residents of the Eastpointe Community, as they involved grotesque conflicts of interest as outlined under  Florida law. Accordingly, the entire process used to approve the first and second amended and restated Bi-Party Agreements was arbitrary, capricious, and in bad faith. Again, these actions have been discussed in our previous correspondence. In summary we believe that both the first and second amended and restated Bi-Party agreements were illegally approved. 

Excerpt from letter to Eastpointe HOA from Property Owners Legal Counsel, dated November 24th, 2024.

We again submit to you that our client’s petition to recall Mr. Ira Berger in his capacity as an officer, representing the entire Eastpointe community was properly submitted in accordance with the requirements of the bylaws of the EHOA, and it is now clear that the EHOA Board’s denial of this petition is based on a gross misreading of its own governing documents as applied to Fla Stat. 720.303(10)(a)(2), which itself only applies to Board directors, not officers.. Further, only one class of membership is contemplated by the governing documents which defines a member of this sole class as anyone who owns property within the association, under the EHOA Amended and Restated Declaration of Restrictive Covenants, Article II(B):

Membership in the Association is limited to the record title Owners of Residential Units or Lots in the Eastpointe Community, and is automatic with such title record, even though the Owner may also be a member of a Condominium Association or a Village Association, incident to the ownership of a particular Lot or Residential Unit. No other persons may become members.

The respective Village Associations only exist as informal administrative bodies, in an advisory capacity, and do not create classes of membership. ARTICLE XIII VILLAGE ASSOCIATIONS, section A. General states “Each Village as defined in Article I herein, may form, or cause to be formed, or has heretofore formed, an unincorporated association which may administer certain affairs of that Village. It is the intention in having Village associations to provide an informal administrative body which shall act strictly in an advisory capacity. The Village association shall not be vested with any authority other than as provided by the Association, or by the Eastlakes POA or the Eastpointe POA, as applicable, by duly adopted resolution.” Finally, on its face, the EHOA’s apparent position that a recall petition for Mr. Berger would require a petition of 200 property owners from the West Village is patently unreasonable, as there are only approximately fifty homes in the West Village.

Ultimately, the process for modifying the governing documents is clear. Once a petition of 200 or more residents has been submitted, the board has a responsibility to facilitate a membership vote on the petition. The Board of the EHOA is bound by the rules of the governing documents, and by Florida statutes, to take action when it is requested of them by the community. Further, the EHOA Board is not vested with any authority whatsoever to amend or otherwise modify petition items before they are submitted to the residents for a vote. 

Excerpt from Cease & Desist letter to Eastpointe HOA and ECC from  Property Owners Legal Counsel, dated May 29th, 2024.

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 minimal 48-hour notice provided runs well afoul of these requirements.

 Excerpt from Cease & Desist letter to Eastpointe HOA and ECC from  Property Owners Legal Counsel, dated May 29th, 2024.

 Further, the text of the Bi-Party Agreement that was passed, under paragraph 12, incorporates a provision that requires the Country Club to notice and hold a Special Meeting of the Members “for the purpose of adopting amendments to the Club’s By-Laws and to take all actions necessary to implement” further provisions governing new Resident Social Membership Categories, voting rights of each mandatory social membership categories, and fees to be charged accordingly. Therefore, 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 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. As an aside, Fla. Stat. § 720.306 itself requires two-thirds of the voting interests of the association, although the By-Laws govern here. Neither were abided by in the passage of the Bi-Party Agreement.

EASTPOINTE CC• Per the By-Laws, assuming proper Notice, amendments to the By-Laws require a vote of sixty percent (60%) of the votes cast at a meeting.

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.

 

 Excerpt from Cease & Desist letter to Eastpointe HOA and ECC from  Property Owners Legal Counsel, dated May 29th, 2024.

The Bi-Party Agreement, by its very nature, is a contract between the HOA and the ECC, 

which are two separate legal entities organized under Florida law. We will note that both entities 

share common leadership, and thus a significant conflict of interest issue is present with regard to 

any contracts entered into between these entities. By way of example, Michael Slutsky is the 

Chairman of both the CC Legal Committee, and the Chairman of the HOA Legal. In addition, 

Jackie Grasso and Frank Sparks serve as directors on both the boards of the CC and the HOA, 

respectively. 

Florida law contains multiple provisions outlining strict requirements for dealing with 

conflicts of interest as present here. The collusive actions of both the CC and the HOA are violative of at least two respective Florida statutory provisions – both in the context of  Homeowners’ Associations, as well as corporations in Florida in general. 

The Eastpointe HOA is governed by Fla. Sta. § 720.3033, and states as follows:

“Directors and officers must disclose to the association any activity that may be reasonably 

construed to be a conflict of interest at least 14 days before voting on an issue or entering 

into a contract that is the subject of the conflict. A rebuttable presumption of a conflict 

of interest exists if any of the following acts occur without prior disclosure to the 

association:

1. A director or an officer, or a relative of a director or an officer, enters into a 

contract for goods or services with the association. 

2. A director or an officer, or a relative of a director or an officer, holds an 

interest in a corporation, limited liability company, partnership, limited 

liability partnership, or other business entity that conducts business with the 

association or proposes to enter into a contract or other transaction with the 

association.”

Likewise, Eastpointe Country Club, Inc., as a corporation organized under Florida Law, is 

governed by Fla. Sta. § 617.0832, is required to disclose even any potential conflicts of interest of 

the type that are clearly present surrounding the Bi-Party Agreement: 

(1) No contract or other transaction between a corporation and one or more of its directors 

or any other corporation, firm, association, or entity in which one or more of its directors 

are directors or officers or are financially interested shall be either void or voidable because 

of such relationship or interest, because such director or directors are present at the meeting 

of the board of directors or a committee thereof which authorizes, approves, or ratifies such 

contract or transaction, or because his or her or their votes are counted for such purpose, 

if:

(a) The fact of such relationship or interest is disclosed or known to the board of 

directors or committee which authorizes, approves, or ratifies the contract or 

transaction by a vote or consent sufficient for the purpose without counting 

the votes or consents of such interested directors;

(b) The fact of such relationship or interest is disclosed or known to the 

members entitled to vote on such contract or transaction, if any, and they 

authorize, approve, or ratify it by vote or written consent; or

(c) The contract or transaction is fair and reasonable as to the corporation 

 at the time it is authorized by the board, a committee, or the members.

Under the framework of Fla. Sta. § 617.0832 as outlined above, the Bi-Party Agreement

created and pushed through by the Boards is unreasonable on its face in that it places onerous fee 

increases on voting members, and was not done with the voting consent of such members. 

Especially in light of this unreasonableness, the very clear conflicts of interests were required to

be disclosed. As such, the passage of the Bi-Party Agreement itself is invalid and voidable under Florida law.

 Excerpt from letter sent to Eastpointe HOA Board from  Property Owners Legal Counsel, dated 24 Aug, 2024.
The HOA’s denials of two properly submitted petitions violates not only Florida Statute, they violate the governing documents of Eastpointe itself. If the HOA continues to take the position that the second petition was deficient, we hereby demand that such specific grounds be provided within ten (10) days of the receipt of this letter so that any future petition may comply with such requirements. Otherwise, the HOA must call a special members’ meeting as has been requested by the petition, on or before September 8th, 2024.    

 Much like the HOA’s first refusal, the refusal of the second petition gave no details as to the grounds on which the HOA premised their denial, aside from stating that it was “legally deficient”  for holding a special meeting under Chapter 720 and the Florida Administrative Code.

Fla. Stat. 720.303(2)(d), governing homeowner’s associations in Florida, states as follows, in pertinent part:

If 20 percent of the total voting interests petition the board to address an item of business, the board shall at its next regular board meeting or at a special meeting of the board, but not later than 60 days after the receipt of the petition, take the petitioned item up on an agenda.

(Emphasis added).

Likewise, the Amended and Restated By-Laws of the Eastpointe Homeowner’s Association, state under Article II (“Members”), section 3 (“Special Meetings”) that special meetings shall be held whenever called by the President or by a majority of the Board of Directors and must be called by such officers upon receipt of a written request signed by no fewer than two hundred (200) members of the Association.” (emphasis added). Clearly, both the first and second petitions comply with this requirement, triggering the HOA’s duties to call meetings.

With regard to the requirements for recalling a director, Fla. Stat. 720.303(10) states that any board director “may be recalled and removed from office with or without cause by a majority of the total voting interests.” Furthermore, section (c)1 adds ” [i]f so provided in the governing documents, a special meeting of the members to recall a director or directors of the board of administration may be called by 10 percent of the voting interests giving notice of the meeting as required for a meeting of members, and the notice shall state the purpose of the meeting.” The governing documents of Eastpointe, under Article III, indeed state that “[a]ny director may be removed by concurrence of two-thirds of the votes of members present at a special meeting called for that purpose.” 

Both the first and second petitions submitted by the Eastpointe community followed these statutory directives, and likewise complied with Rule 61B-81.003 of the Florida Administrative Code.

 Excerpt from letter sent to Eastpointe HOA Board from  Property Owners Legal Counsel, dated 24 Aug, 2024.
Viewed as a whole, the actions taken by the CC and HOA in conspiring to engage in a 

secretive process to force-through an unreasonable Bi-Party Agreement, failing to disclose 

grotesque conflicts of interest as required by Florida law, and conspiring to silence and punish XXX. 

XXXXXXXX in particular for XXX legitimate, lawful efforts to shed light on these concerns and to inform and organize the community, constitute departures by the Board from their duties to act within the limits of their authority under statute and by-laws, and to refrain from undertaking actions that 

were arbitrary, capricious, and in bad faith. Such actions are therefore not protected by the so￾called “business judgment rule” or other such provisions of Florida law. Moreover, these actions constitute breaches of contractual fiduciary duties owed to residents of the Eastpointe Community, and with regard to XXXXXXXX stray into the territory of libel and other conduct that is proscribed and actionable under Florida law. 

Several residents reached out to inform fellow residents of the oppressive and unlawful manner in which the latest Bi-Party Agreement was to be forced upon the community. Additionally, these residents appropriately began disseminating information to voting interests within the Eastpointe community so that informed decisions could be made in accordance with the democratic process provided for by Florida law and mandated by the ECC and HOA’s own governing documents. 

In response to these efforts, the HOA and ECC, in explicitly labeling these residents as  

a dissenter and a troublemaker, weaponized the CC’s grievance process against them. Email 

correspondence clearly shows that Board members went so far as to make efforts to keep information regarding the Bi-Party agreement secret, to control “leaks”, and to even punish and expel board members, who were accused of being involved in providing information to residents about the Board’s collusive activities. 

Shockingly, several residents received a Notice of Grievance from Frank Sparks, as Chairperson on behalf of the ECC Grievance Committee.  The Grievance correspondence made various unfounded accusations,  ironically enough, premised in the idea that the residents had shed light on the various deficiencies in the passage of the agreement, and encouraged voting members to voice their opinions accordingly. The Board intended to keep this entire process “confidential” to avoid dissent. 

Correspondence from the ECC Board members and a few others who were part of the conspiracy, show that the premise of the grievance was that these board members were highly concerned about these residents were, “form[ing] a coalition of community members”, and that these board members intended for these residents to “incur repercussions” accordingly. In addition to a two-week suspension, the Decision Notice made ominous threats of further action upon referral to the Board of Governors for further review. The actions of the individual members involved in this grievance process subject them to personal civil liability under Fla. Stat.§ 617.0834, as they were committed in bad faith and with malicious purpose. 

The actions taken by several Board members to punish, censor, and intimidate these residents for engaging in lawfully addressing grievances with the HOA and the the Bi-Party Agreement and explicitly seeking to silence them in the future are clearly fraudulent efforts to effect votes. Such activities are explicitly prohibited under Fla. Stat. 720.3065:

720.3065 Fraudulent voting activities relating to association elections; penalties.—Each 

of the following acts is a fraudulent voting activity relating to association elections and 

constitutes a Felony of the first degree, punishable as provided in s. 775.082 or s. 

775.083:

.........(4) Menacing, threatening, or using bribery or any other corruption to attempt, 

directly or indirectly, to influence, deceive, or deter a member when the member is 

voting....

         (6) Using or threatening to use, directly or indirectly, force, violence, or intimidation 

or any tactic of coercion or intimidation to induce or compel a member to vote or 

refrain from voting in an election or on a particular ballot measure.

There are many emails, testimony from residents, etc. that indicate that several Fl statutes including 720.3033 indicate that several Directors breeched their contractual and fiduciary responsibilities to the Residents of Eastpointe. This evidence is in the hands of the residents legal Counsel. 

Please go to the link below and Donate to our Eastpointe Residents Legal Fund

https://gofund.me/0520dd1c