According to information received this law suit was caused by then President Angelo Cuce and then agent Roland Gast going to all Title Companies in the Spring Hill/Brooksville area instructing them to deduct $ 50.00 from escrow funds payable to The Oaks Homeowners' Association. This was an obvious attempt to make all homeowners due-paying members of the HOA without their consent!
ROBERT J. FATH and BEVERLY FATH,
THE OAKS OF SPRING HILL, INC., a
FINAL DECLARATORY JUDGMENT
UPON DUE CONSIDERATION of the matter presented, following argument of counsel, the Court makes the following findings of fact, conclusions of law, and Order thereon, to wit:
1. This Court finds and determines that the Defendant DEVELOPER transferred all powers and rights which it possessed regarding the issue of the Architectural Control Committee (ACC) as contained in the Declaration of Restrictions of "THE OAKS (deed restrictions), to the POA in 1994, by way of the August 1994 document labeled Exhibit "B", filed in OR Book 97§ at page 1715. The POA’s rights in this regard are as provided in the deed restrictions;
2. The Court finds and determines that the 1994 document, Exhibit "B", did not alter or amend the Deed Restrictions;
3. The ACC does not have standing to enforce any perceived violations of the Deed Restrictions as owners of property would;
4. The Court further finds and determines that, in 1994, DEVELOPER did, in fact, convey title and ownership to three (3) parcels of land, consisting of entry ways, but not including any residential lots within THE OAKS subdivision, to the POA;
5. As a result, the POA, as an owner of real: property in the subdivision, had the right to enforce any perceived violations of the deed restrictions, just as any other property owner could do. The Court is informed that the POA has recently deeded ownership in the three (3) parcels to the HOA, which means that the HOA, and not the POA, would now have enforcement rights;
6. The Deed Restrictions do not require that all owners of property within THE OAKS be members of a homeowners/property owners association;
Therefore, neither the POA the HOA, or any other association, has the right
to require property owners in THE OAKS to become members of an association;
9. The Deed Restrictions can only be amended by an affirmative vote of one hundred (100%) of the owners of property within the community. If and when an association is properly established, which includes all owners of real property in the subdivision in its membership, the deed restrictions may, perhaps, subsequently be amended by less than a unanimous decision;
10. The POA, and now the HOA, have the right to dedicate, sell or transfer the three (3) entrance area parcels to the community, just as any other owner of real property could do, and its subsequent sale/transfer of the rights to the HOA, of which this Court is informed, is of no consequence to the issues in this lawsuit.
Based on the Court's findings of fact and conclusions of law,
(a) Defendant's POA’s Motion for Leave to File a Crossclaim is denied;
(b) Defendant POA’s Motion for Leave to File a Class Action and for Class Certification are denied;
(c) The Petition filed by and on behalf of THE OAKS OF SPRING HILL HOMEOWNERS ASSOCIATION, INC. for Leave of Court to Intervene in this action is hereby denied;
(d) Plaintiff's Motion for Partial Summary Judgment is granted in part, and denied in part, as reflected herein;
(e) As there was no prevailing party in this lawsuit, there will be no award of attorney's fees and costs to any party to this proceeding;
(f) The Court is of the opinion that all matters and issues raised in this suit for declaratory relief have been addressed and adjudicated by this Order, and that this case is now concluded;
(g) Final Declaratory Judgment is hereby
entered as reflected above.
DONE AND ORDERED in Chambers at Brooksville, Hernando County,
Florida on this 22. day of April,
Copies furnished to:
R. PIERCE KELLEY, JR., ESQ.