v.   DAVID A.
Was homeowner's association, in fact, in existence?

                                                   FINAL JUDGMENT

           The court has reviewed the legal memoranda and closing arguments submitted by the parties.  The court at this time sets forth the reasoning for its decision.

            Plaintiff claims to be a homeowner's association, and herein asserts the right to assess fees onto Defendant property owners on the basis of a restrictive covenant.  The essential issue that confronts the court is the question of whether a homeowner's association was, in fact, in existence within the facts of the above styled case. There is considerable conflict between the testimony of all the parties. The court would note, however, that this does not mean that any of the witnesses lack credibility.  Nevertheless, the presence of such conflict requires the court to resolve the dispute in accordance with the law, based upon the available evidence.

            A real covenant is “one which binds the heirs of the covenanter and passes to assignees or purchasers.  A real covenant "running with land," occurs "when not only the original parties or their representatives, but each successive owner of the land, will be entitled to its benefit, or be liable to its obligation." Blacks Law Dictionary. Such covenants have long been held to be enforceable against a grantee or purchaser taking title with notice of the restrictions.  See Vetzel v. Brown, 86 So. 2d 138 (Fla. 1956).  Such notice may be either actual or constructive notice.  See Hagan v. Sabal Palms Inc., 186 So. 2d 302 (Fla. 2d DCA 1966).  As covenants of this type are in contradiction of the favor given within the law toward free and unrestricted use of real property, they must be strictly construed. Moore v. Stevens, 106 So. 901 (Fla.1925); Ware Constr. Co. v. Thomas, 357 So. 2d 452, (Fla. 2d DCA 1978); Mundy v. Carter, 311 So.2d 773 (Fla. 1st DCA 1975). 

           A . restrictive covenant may provide for the existence of a homeowner's association, which defined as: 

a Florida corporation responsible for the operation of a community or a mobile home subdivision in which the voting membership is made up of parcel owners or their agents, or a combination thereof, in which membership is a mandatory condition of parcel ownership, and that is authorized to impose assessments that, if unpaid, may become a lien on the parcel.
Fla.  Jur. 2, Business Relationships, § 425.  Nevertheless, an organization, however so named, may only exercise the powers of a homeowners association as such are provided for within the covenant’s provisions.  Highland Lakes Property Owners Ass’n, Inc. v. Schlack, 724 So.2d 621 (Fla.5th DCA1998). The covenant for the subdivision of Christina contains only one clearly articulated method for any party of individuals to achieve "homeowners association" status, and thereby act in such capacity.  The relevant language states: 
Recognizing that within the confines of the subdivision are certain walls and fencing, parloways and street lighting that have been placed and should be maintained for and by all of the lot owners in said subdivision together with shrubbery pertaining thereto and entrance and exit signs adjacent thereto the owners of 51% or more of all lots in the subdivision (each lot entitling the owner to one (1) vote per lot) may at any time form a community association at their expense, being a non-profit corporation under the laws of the State of Florida for the purpose of orderly maintenance of the common areas in the subdivision, whether public or private together with street lighting applicable thereto.
Declaration of Covenants, Restrictions, Limitations and Conditions of Christina, paragraph 23 (Emphasis added).

         The covenant requires agreement of 5 1 % or more of the lots in Christina subdivision for the creation of a homeowners association.  The court finds the evidence inconclusive as to the occurrence of the requisite vote or agreement of 51% of Christina homeowners. No authorative documentation has been provided that such a vote or agreement has been otherwise memorialized or recorded. The considerably conflicting testimony is, likewise, not sufficient to substantiate that such a vote actually occurred..

         In the absence of conclusive proof that a vote or agreement of 51 % of  Christina homeowners, as mandated by the covenant, has occurred, Plaintiff advances several other upon which to premise its status as "homeowners association." Plaintiff asserts, in this respect that, first the doctrine of equitable estoppel may be used to prevent the Defendants from denying the existence of Plaintiff s status as a home owner' s association, and, second, that the doctrine of waiver may be applied to find that Defendants have waived their rights to contest the fees Plaintiff wishes to assess upon them.  In light of the specifications within the covenant regarding the method for creation of a homeowner's association, these theories are unconvincing.

       That Defendants voluntarily dealt with, and acknowledged, an entity known as "Christina Homeowners Association” is not equivalent with the notion that Defendants gave their acquiescence for Plaintiff to serve as a body having the powers to assess fees involuntarily.

Defendants recognize in their closing arguments that there is, indeed, a corporation called “Christina Homeowners’ Association.” The question for the court is whether this corporation, however so named, is a “homeowners’ association” as would be recognized under Florida law. As noted, there is only one method specified in the covenant for the creation of a homeowners’ association within the subdivision of Christina, and Plaintiff has not shown that this method has been followed. To apply either estoppel or waiver to substantiate Plaintiff’s claims would result in a circumvention, rather than carrying forth, of the covenant’s intent.

              Plaintiff has failed to substantiate that it is, indeed clothed in the power to assess fees from the homeowners of the subdivision of Christina. As such, the court is unable to find that the claims for assessment of fees in Plaintiff’s petition are enforceable.

Accordingly, it is therefore
ORDERED AND ADJUDGED that the Plaintiff, Christina Homeowner's Association, Inc., take nothing. Final Judgment is for Defendants.

Further ORDERED that this court reserves jurisdiction for purposes of assessing taxable cost and attorney's fee on behalf of the Defendants.

Further ORDERED that jurisdiction of this action is retained to enter further orders that are proper and equitable.

DONE AND ORDERED in Chambers, Bartow, Polk County, Florida this 28th day of May 2003.



 cc: Tanya C. Comparetto, Attorney for Plaintiff, 200 Lake Morton Drive, Suite 300, Lakeland, Florida 33801; Robert B. Peddy, Jr., Attorney for Defendants, 4202 South Florida Avenue, Lakeland, FL 33813.