Open Letter to Eastpointe
Fellow Property Owners,
On December 12, 2024, the HOA delivered a letter through the US Postal system to all Eastpointe property owners that contained many factual errors, half-truths, and misinformation concerning the efforts of a large group of Eastpointe property owners to address several grievances / issues with the HOA Board. Therefore, we residents feel compelled to respond to this HOA communication to point out the inaccuracies and differences of opinion.
First, the HOA states that our large group of 200+ property owners is overstated. In fact, the group had over 200+ property owners when we submitted our petitions in the spring and summer and has grown since then. The more residents we talk to and join our mailing list, the more that attend our information sessions, and the more residents who directly experience the issues forced on the community that we discuss, the greater our number grows. Please review all the data and information and make your own decisions. The HOA Board has left us with no other alternatives other than to seek help from the Courts. Please consider joining our cause as we are taking legal action against the HOA Board. Please donate to our legal fund by clicking on the following Go Fund me link:
The HOA, in the 9 Dec letter, made several statements alluding to the validity of the Petition submitted by the Residents. These HOA statements are false. A statement was made that the first petition had 14 persons named who were no longer Eastpointe Residents. Every name on the petition, particularly the 2nd petition, was validated as the official owner of the property as listed on the PBC Tax Assessors property register. Based on the HOA Presidents statement, I compared all the names on both petitions with the official master sales list kept by the HOA office, in case I missed a named that had left the community. I went back 9 months and could not find 1 name on the sales list that was on either petition as of the submittal date to the HOA. Of interest is that during this 9-month period before the second petition was submitted, there were only 33 homes that closed, and 7 of them were existing residents who bought investment property, leaving only 26 homes that sold, and not one of the sellers were on either petition. The Petitions were valid.
Additionally, on September 27, 2024, the HOA’s attorney finally responded with the rationale for rejecting our 2 petitions (the HOA letter failed to mention this very pertinent fact from their attorney). In that response letter from the EPHOA legal counsel, of the 2 reasons provided, neither reason mentioned anything about the validity of the names on the petition.
A statement was also made in the HOA letter dated 9 Dec that several of these residents had asked the HOA office to remove their names from the petition. During Feb – July of 2024 we residents sent frequent updates to the residents on the petition, informing them of our actions, letters from attorneys, and about the resubmittal or our 2nd petition. A few asked to have their names removed from our mailing lists, which we did. During this period, at no time did any resident ask to have their names removed from the petition. If the HOA’s contention was true, there would have been plenty of opportunities to communicate with us. This just did not happen.
Finally, consider the HOA’s inaccurate comments in their letter about the events around the Feb 15 HOA Board meeting in reference to the 2nd Bi-Party Agreement. There were over 200+ residents in attendance who can attest to the following events. The HOA would lead you to believe that the Board ask for feedback, received it, then “unanimously voted to table “consideration of the new agreement. This again is inaccurate and misleading. After heated and contentious discussion by the residents, the HOA Board was prepared to force a vote on the new agreement until a member of the audience demanded that the Board make an amendment to table the agreement. Two (2) Board members immediately spoke up and made the motion to “Table”, and the HOA President reluctantly called for a vote. The same 4 Board members, mentioned in all of the issues of improper actions involved in the process for approval of the agreement, voted “no’ to table, while 5 Board members voted yes. Please review the Board minutes of this meeting on the HOA web site. The HOA letter also stated that the New Bi-Party agreement was posted for 30 days before final approval on March 15th. Again, this is blatantly inaccurate. The initial version of the Agreement posted on 13 Feb is very different from the final agreement, still harsh but different, that was modified several times over the following weeks and posted a few days before the 15 Mar Meeting. You can validate this by reviewing the HOA Board meeting announcement, sent to owners on 13 March, which specifically mentions the posting of the new agreement dated 9 Mar. discussed in the HOA letter.
This entire document is filled with inaccurate and misleading statements. What is not in contention is that over 200 residents legally petitioned the HOA Board to address grievances, and the Board ignored and failed to act providing frivolous and legally deficient reasons for the rejection. It is the opinion of our legal counsel, that the HOA’s rejection of the petitions were based on gross misreading of Fl Statutes and our governing Documents. The HOA would have you believe these legal opinions are misleading, we believe the same of the HOA Statements. These differences will be resolved in court. For details of the legal opinions addressing these issues please go to the following web site and select the TAB at the top of the page called “Legal Opinions”.
https://eastpointerealinfo.com
Let me explain our issues and correct the HOA’s inaccurate statements. We have 3 primary issues with the HOA:
1. We contend that it is a violation of Fl Statutes and EPHOA Governing Documents for the HOA Board and ECC Board to Modify Tri/Bi Party Agreements without Residents Approval and following the process required by Fl Statutes and Governing Documents
2. The HOA’s denial of two properly submitted petitions violates Florida Statute and the governing documents of Eastpointe. The rationale provided by the HOA, in the opinion of our legal counsel, is based on a gross misreading of Fl Statutes and EPHOA Governing Documents.
3. Theentire process used to approve the first and second amended and restated Bi-Party Agreements were not transparent, were significantly flawed in that the actions taken by the HOA Board, constitute breaches of contractual and fiduciary duties owed to residents of the Eastpointe Community, involved grotesque conflicts of interest in violation of Florida Statutes, and involved such actions that were arbitrary, capricious, and in bad faith.
Our Petition
The HOA statements about the Residents two (2) petitions are filled with inaccurate statements, conflicts with actual HOA actions & timelines, conflicts with comments from the HOA legal counsel, and provides misleading statements about Florida Statutes and EPHOA governing Documents. Let me discuss what really happened.
The residents submitted our first petition to the HOA on 20 Feb 2024, asking for a special member meeting to allow the residents to vote on several modifications to our governing documents to address the issues mentioned above. We collected most names of property owners using the widely recognized “Change.org” website, the world’s largest petition platform that hosts petitions generally related to politics or public policy and allows users to create and sign petitions to raise awareness and influence decision-makers. We had many residents go door to door and collect names of property owners. We also had many residents contact us by email and phone and asked to have their names added to the petition. We collected 244 property owners on the 1st petition submitted in February 2024.
We engaged a lawyer to assist us, and we submitted our petition in compliance with all applicable statutes, as well as the governing documents of the Eastpointe Community, and hand-delivered to the Association’s office on February 20, 2024. On February 27, 2024 – merely one week later – the HOA, in a written response from their legal counsel, summarily rejected the petition, stating that the request was “legally deficient” and that it did not comply with “the procedures set forth in the Amended and Restated Bylaws of the Association to trigger the calling of a Special Meeting of the Members for any purposes, including, but not limited to, voting on any proposed amendments to the Governing Documents.” The rejection of this Petition did not make any efforts to state, with any specificity, exactly what the HOA claimed was “deficient” about the Petition.
In a good faith effort to correct any potential issues that the HOA may have had with the first petition, we residents submitted an updated petition (“second petition”) on July 10th, 2024, by certified mail, and demanded that the HOA hold a special members’ meeting within sixty (60) days to vote on and approve seven (7) amendments to the Eastpointe governing documents.
We diligently went through our list of residents and made sure that only 1 property owner counted against the needed 200 (we had several husbands and wives who both signed up on the petition). We also eliminated any names that we couldn’t verify property address with the PBC Tax assessor’s office. We again submitted over 200+ property owners names with validated addresses. During this process, we sent frequent informational emails to the property owners on our petition, keeping them informed on what was happening and on our actions. We were completely transparent.
Merely nine (9) days later, the HOA, through its attorneys, responded to the second Petition, citing the same exact language for refusing to accept the Petition and schedule a special members’ meeting. 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 governing documents.
Our lawyer sent a demand letter to the HOA on 20 August detailing the applicable Fl Statutes and governing documents, and stated in the demand letter, “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.”
Our lawyers finally stated the following:
The HOA’s denial 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.”
On September 27, 2024, the HOA’s attorney finally responded with the rationale for rejecting our 2 petitions. Of note, this HOA response is never mentioned in the HOA’s letter to Eastpointe property owners dated 9 Dec 2024. In that response letter from the EPHOA legal counsel, the 2 reasons provided. These reasons were:
1. the “EHOA” and the “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…...and ” 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”.
2. The HOA claim that Statute 20.303(10)(a)2., provides that “When the governing documents, including the Declaration, Articles of Incorporation, or Bylaws, provide only a specific class of members is entitled to elect a Board director or directors, only that class of members may vote to recall those Board directors so elected.” The HOA Board state that Ira Berger was elected by West Village and therefore only West Village property owners can recall him.
You will note that nowhere in the legal response from the HOA is any mention about 14 residents no longer living in the community or that any members asked the HOA to be removed from the petition …or any of the other statements made about the petition. So, the implication that the HOA considered the 1stpetition and 2nd petition invalid because of any of these reasons ---just didn’t happen.
Another point about this misleading and factually incorrect statement by the HOA is that I asked for and received the official Eastpointe master sales list of sold homes from the HOA, which the HOA maintains as part of the official records. From 6 months prior to the date of the petition submittal, only 21 homes were sold, and no one on the Petition list had sold a home. All residents on the list were current property owners.
Finally, no resident on our petition asked to have their name removed during this timeframe as stated by the HOA. This just did not happen! What is a concern is that recently, we have been informed that members of the HOA Board have been posting names of residents on the petition and contacting them. These actions of resident harassment and intimidation, because they joined our petition in addressing a grievance with the HOA, is illegal. This needs to immediately stop.
For any resident who has been contacted by the HOA in this manner, please contact me and let me know!
HOA Board Conflict of interest
The statements made by the HOA about our position on the conflict of interest by several Directors and the Chairman of the HOA Legal Committee are factually inaccurate. The conflict of interest has nothing to do with the Directors being members of the Community and members of the ECC. This is completely misleading. Our Resident legal counsel discusses this in more detail at the web site below. Please read the information and decide for yourself.
For details of the legal opinions addressing these issues please go to the following web site and select the TAB at the top of the page called “Legal Opinions”.
https://eastpointerealinfo.com
Here is the issue. There are many lawyers in the community as well as many residents with extensive business experience dealing with contracts. You understand that a legal counsel should not represent both clients engaged in contract negotiations, at the same time, especially in the same negotiation. This is particularly true when the lawyer’s (Chairman of the legal committee) interest would have an adverse effect on one of the clients (the residents of the HOA). Florida Bar Rule 4.1-7 and 4.1-8 discuss conflict of interest for attorneys in detail.
During the last Bi-Party agreement the Chairman of the Legal Committee for the ECC was the author of the 2ndBi-Party agreement. He is an avid golfer and has extreme views on community make up and RSM support to the ECC. This same person was also appointed by the HOA President to be one of the 2 HOA negotiators and serves as the Chairman of the legal Committee for the HOA advising the HOA on legal matters relating to the Bi-Party discussions. In should be pointed out that Fl St 617.0825 Board committees and advisory committees’ details that the Chairman of a committee such as the legal committee, has the same fiduciary responsibility, as do Board Directors. And Fl St 720 requires these chairmen of committees, to put the interest of the residents of the EP community first in priority, over that of the ECC. In other words, a significant conflict of interest exists because this Legal Committee Chairman is representing both sides in a contract negotiation and is providing legal advice to both sides on a contract that both sides are negotiating and in which he is the author. Smell fishy???
Additionally, there are 2 Directors / Governors who have a fiduciary responsibility to the members of the ECC, who are also Directors on the HOA, with a fiduciary responsibility to the residents of Eastpointe. During negotiations for a new contract (Bi-party Agreement) they are in fact representing and voting for both sides in the negotiation and have access to privileged information during the negotiations, for both sides. Fl St 617 governs the ECC and Fl St 720 governs the HOA. Both Fl Statutes provide clear guidance on conflicts of interest. It is the opinion of the resident’s legal counsel, who reviewed extensive information provided in emails and testimony, that…”
“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 proper way to handle this Conflict of Interest was to recuse themselves from any issue related to the ECC. Janet Grosso chose to do the right thing and recuse herself. She was heavily lobbied by the President of the HOA (a retired out of state lawyer) and by the Chairman of the Legal Committee (a supposedly retired out of state lawyer) to vote for and not recluse herself. Frank Sparks refused to recluse himself.
It is the opinion of our legal counsel that these actions constitute “grotesque conflicts of interest”.
First and Second Amended & Restated Agreement with the ECC
As stated earlier, the HOA has stated that the Residents are misrepresenting the facts by claiming that the last two Bi-Party agreements were improperly approved because they did not receive proper 14-day notice and was not approved by the residents of the community. We are not misrepresenting the facts, these statements are true. However, the HOA’s rationale” 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 inaccurate and based on a gross misreading of Fl statutes and EPHOA Governing Documents. These issues are discussed extensively with legal opinions detailing the issue at the web site below.
For details of the legal opinions addressing these issues please go to the following web site and select the TAB at the top of the page called “Legal Opinions”.
https://eastpointerealinfo.com
It is true that the HOA and ECC can discuss / negotiate a contract between each other. However, nowhere 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 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 EPHOA Declaration of Restrictive Covenants 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. “
Think of it this way, if a resident buys a house and obtains a fixed mortgage on the house that includes the tax and interest, and the next day and any day after closing, the Bank arbitrarily decides to increase the price of the home and increase the mortgage payment, without the resident having any say in the matter, any person would think this is unfair and illegal. It is, and this is exactly the same situation that the HOA/ ECC are doing with the Bi-Party agreements. When you closed on your home in Eastpointe, you had a contract with the HOA and the ECC. That contract can not be changed unless approved by the members.
HOA Directors and Officers can be Recalled by 200+ Property Owners
This statement by the HOA Board that a Board Director is elected by a Village / POA and can only be recalled by that same Village/POA is a complete misrepresentation of the Fl Statutes and our Governing Documents. The election of HOA Directors occurs by the votes of only one category of membership within Eastpointe. The allocation of Directors is commonly geographically distributed to ensure fair representation throughout the community. But only one category of membership votes for the Directors.
The HOA President serves as President of the Association, an officer representing the entire Eastpointe community. It is now clear that the EHOA Board’s denial of the resident’s 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.
For Example, the ECC has several “classes of membership” in that there is a “Full Golf Member” with certain voting rights, and Resident Social Members, who have different rights, but can’t vote. Eastpointe HOA only has one category of membership.
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 of 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 (as required in the Governing Documents) 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 act 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.
SUMMARY
We residents contend that the process used by the HOA and ECC to negotiate and approve the last 2 Bi-Party Agreement was significantly flawed for the following reasons:
- The Bi-Party Agreement does not authorize the EHOA to modify the agreement without member approval
- The vote to approve the last 2 Bi-Party Agreements were improperly noticed – required 14 days noticed
- The last 2 Bi-Party agreements were not done with the voting consent of the members
- The Process used to approve the Bi-Party violated several state laws & our Governing Documents
- Board Members had conflicts of interest -
- The HOA Board Directors and Officers can be recalled by 200+ Property Owners who sign a petition to recall
- Compelling evidence that the conduct of several HOA and ECC Board members and key committee leads constitute clear departures from their duties to act within the limits of their authority under statute and by-laws and constitute breaches of contractual and fiduciary duties owed to residents of Eastpointe
- The HOA’s denials of two properly submitted petitions violates not only Florida Statute, but they also violate the governing documents of Eastpointe itself
Any one of the first 5 issues above is enough to void the last 2 Bi-Party Agreements.
It is our legal counsel’s strong opinion that the passage of the Bi-Party Agreement itself is invalid and voidable under Florida law!
