 |
| Who
can decide about amendments to Bylaws?
An Ongoing Argument in Oakbrook By Jan Bergemann (12 - 8 - 2000) |
| As you all know,
we are since years arguing about the validity about the amendments to our
Oakbrook deed restrictions by the developer.
Our Deed Restrictions read in the important articles: 1.01. ASSOCIATION: “Association” shall mean and refer to Wellington Oaks Owners Association, Inc., a corporation not for profit, organized and existing under the laws of the State of Florida, its successors and assigns. ADDITIONAL RESTRICTIONS. 1.01. The Declarant may, in its sole judgment, to be reasonably exercised, make reasonable modifications, amendments, or additions to these restrictions applicable to the said Lots, provided, however, that any such additional restrictive covenants or modifications or amendments thereto shall not affect the lien of any mortgage then encumbering any of the said lots and shall not affect the rights and powers of any mortgages under said mortgages and provided further that any additional restriction., covenants or modifications, or amendments shall not change Article VI, Section 3.01 herein pertaining to the amount and fixing of fees. No modifications, amendments or additions will be made to the restrictions without the prior written approval of the Association. We have always stated that the word "Association" means the membership, not the Board, the developer controlled Board or the developer himself. Even if the developer's attorney stated in several letters that the deed restrictions allows the developer to amend these restrictions, it seems clear to us that this is legally not the case. The deed restrictions have been part of our sales contracts and in my opinion a sales contract can't be changed by one side without agreement from the other party, meaning the membership of our Association! A case about this argument has just been decided in Texas. The situation in the Texas Association has been similar to the one we do have here in Oakbrook. I know that people will now say: "Oh, that's Texas, we're here in Florida!" It's not a matter of the actual ruling, it's a matter of a decision regarding the wording. What is the definition of the word "Association" under these given circumstances? Below you'll find part of the Ruling of the Texas Court for your information. I only copied the important part regarding the meaning of the word "Association" and amendments to deed restrictions, since it was a very complex case and the ruling was several pages long. Just read the clear opinion of the judge regarding this important issue and make up your own mind, how our Oakbrook deed restrictions should be read! |
| CAUSE NO. 98-06564
NORTHGLEN ASSOCIATION
§ IN THE DISTRICT
COURT OF
SUMMARY JUDGMENT On this day, having considered Defendants' Motion For Declaratory
Judgment And For Summary Judgment Denying All Plaintiff's Claims, and the
various responses and replies submitted thereafter with all of the summary
judgment evidence submitted, the Court is of the opinion that Defendant's
Motion should be granted in part and denied in part.
2. the Northglen Association bylaws were not properly amended in 1994 or 1997, because there was no vote by the members. -- END OF QUOTE FROM RULING -- |
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