IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR MARION COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 01-1551 CA B
LOYDE W. SADLOWSKI,
Plaintiff,
v.
KINGSLAND PROPERTY OWNERS
ASSOCIATION, INC.,
Defendant.
__________________________/
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT AND SUPPORTING MEMORANDUM OF LAW
Plaintiff Loyde W. Sadlowski moves the Court for entry of a partial summary declaratory judgment holding that: (i) plaintiff does not qualify for membership in the defendant Kingsland Property Owners Association, Inc.; (ii) defendant does not have authority or power under its corporate charter and by-laws to assess owners of land at Ocala Waterways Estates; (iii) the restrictive covenants filed by defendant in 1998 asserting power over lands at Ocala Waterway Estates are null and void, (iv) the claims of lien for nonpayment of assessments filed by defendant against plaintiff and other owners of lands at Ocala Waterway Estates are null and void, and (v) defendant has no standing to sue to collect the assessments or to foreclose a claim of lien for nonpayment.
MATERIAL FACTS NOT IN DISPUTE
1. Defendant assessed owners of lots at Ocala Waterway Estates $3,500 for a road paving fee and $15 for membership dues and has filed a claim of lien for nonpayment against plaintiff. Plaintiff contends that he does not qualify for membership in defendant property owners association.
2. As shown below, only owners of lands at one of the plats for Kingsland Country Estates qualify for membership in the defendant association. Plaintiff owns land identified on the plat for Ocala Waterway Estates (Ex.1).
Defendant’s Corporate Charter
3. Articles. Defendant filed its articles of incorporation with the state of Florida on July 20, 1973. (Ex. 2). No amendments have been filed.
4. Purpose. The Defendant’s corporate charter states it was organized to promote the health, safety and welfare “of residents of that area known and described as Kingsland Country Estates, Marion County, Florida, and more particularly described from time to time in plats of various units of said subdivision…”. (Ex. 2, Fourth (a)).
5. Plats. In the early 1970s the original developer, Kingsland, Inc., filed plats for Kingsland Country Estates Units 1 and 22, Whispering Pines, and Forest Glenn. The Defendant’s corporate charter does not mention or refer to the previously recorded plat for Ocala Waterway Estates, recorded in Book K. The aforementioned Kingsland Country Estates plats were later recorded in Books L, N, and P.
6. Powers. The Defendant’s corporate charter states that its powers include carrying out those functions and activities “enumerated in the various Declarations of Restrictions…restricting lots, tracts and parcels of land shown on the said Plats of Kingsland Country Estates…” (Ex. 2 A., Fourth (b)) There was no “Declaration of Restrictions” recorded for Ocala Waterway estates.
7. Membership. The Defendant’s corporate charter states that membership in the corporation consists of “The owner of a lot, tract or parcel of land shown on a plat of Kingsland Country Estates…” (Ex. 2, Fifth (a)) The Defendant’s corporate charter does not provide for membership by an owner of land shown on a plat of Ocala Waterway Estates.
8. Declaration of Restrictions. The defendant’s corporate charter states that the initial 1973 by-laws contain a declaration of restrictions pertaining to “Kingsland Country Estates, Whispering Pines, and Kingsland Country Estates, Forest Glenn.” (Ex. 2, Tenth) The corporate charter does not mention a declaration of restrictions or by-laws that pertain to Ocala Waterway Estates.
The By-Laws
9. 1973 By-Laws. The Defendant’s by-laws were recorded among the Public Records of Marion County, Florida in 1973 in Official Records Book 594 beginning at page 370 (Ex. 3). Defendant claims that it has the authority to pave the roads and assess its members under these recorded by-laws. No amendments to the by-laws have been recorded.
10. Definitions. The by-laws definitions state that “references to the lots, tracts or parcels of land shall mean the same as in the various Declarations of Restrictions, affecting property located in Kingsland Country Estates, Marion County, Florida, made by Kingsland, Inc., an Illinois Corporation or its successors or assigns…” (Ex. 3, Art. I, Sec. 4) The by-laws do not authorize or empower defendant to make or record restrictive covenants and nowhere refer to property located at Ocala Waterway Estates.
11. Powers. The by-laws provide the Defendant the power “to make and collect fees as set forth in the Restrictions” and “To use and expend the fees collected for those purposes set forth in the Restrictions;” (Ex. 3, Art. II, Sec. 5, A., B) The Restrictions refer to those for Kingsland Country Estates; there were no restrictions made for Ocala Waterway Estates. The by-laws do not authorize defendant to assess or collect fees at Ocala Waterway Estates.
12. Membership. The defendant’s by-laws limit membership to each owner of a lot at Kingsland Country Estates. (Ex. 3, Art. I, Sec. 4, and Art. IV, sec. 1) The by-laws do not define membership to include owners of lots in Ocala Waterway Estates.
13. Dissolution and Reinstatement. Defendant was dissolved in 1976 for failure to maintain its corporate status with the Florida Department of State. Twenty-two years after its dissolution, the Defendant was reinstated by the Florida Department of State on February 2, 1998, the same date as the subject “Kingsland Country Estates Covenants and Restrictions” (sic).
RESTRICTIVE COVENANTS
14. 1998 Restrictions. On February 2, 1998, the defendant property owners association executed the “Kingsland Country Estates Covenants and Restrictions” (Ex. 4). The document purports to restrict not only “Kingsland Country Estates Unit 22” but also an entirely different platted subdivision, Ocala Waterway Estates. (Ex. 4)
15. Jurisdiction. Defendant, however, has power in its charter or by-laws only over lands shown on the plats of Kingsland Country Estates. Defendant has no jurisdiction over lands at Ocala Waterway Estates, no power to restrict such lands and has never before attempted to do so.
16. Power to Pave Roads. The restrictions provide that the defendant and the Subdivider… “shall have the right to upgrade any graded roads to paved roads...The lot owners shall be required to pay for these costs upon notification.” (Ex. 4, sec. II, 4) The defendant’s charter and by-laws, however, do not assert authority over lands outside of the plats of Kingsland Country Estates. The “right to upgrade any graded roads to paved roads” at Ocala Waterway Estates is clearly outside the scope of defendant’s charter and by-laws.
17. Prior Litigation. Defendant has acknowledged in a settlement agreement approved by this court that it is not currently the property owners association for any of the lands comprising Kingsland Country Estates (Ex 5). Following recordation of the 1998 restrictive covenants (Ex. 4), a property owners association that was formed after defendant was dissolved brought an action in this court against Southern Multicapital Corporation and the defendant. The new association alleged that it was the property owners association for Kingsland Country Estates Unit 22 (and other Kingsland Country Estates subdivisions) and sought a declaratory judgment of its rights with respect to the 1998 Restrictive Covenants. Plaintiff also sought an injunction against collection of assessments “without authority” by defendant for road paving in Unit 22.
19. Settlement. This court entered a final judgment on stipulation on September 12, 2000, in case no. 98-8328 CA D (Ex. 5). The settlement agreement provided that the parties acknowledge that plaintiff Kingsland Country Property Owners Association, Inc. was the “properly constituted property owners association” for the various Kingsland Country Estates subdivisions. Defendant, having agreed that it no longer is the association for the subdivisions it was created for, now, without any basis in law, claims authority over an entirely different subdivision.
20. There is no question of material fact and plaintiff is entitled to a partial summary declaratory judgment on liability as a matter of law.
SUMMARY OF ARGUMENT
Defendant’s charter and by-laws limit its jurisdiction to Kingsland Country Estates and do not purport to apply Ocala Waterway Estates. Plaintiff does not qualify to be a member of the Defendant association since he does not own land in any of the plats for Kingsland Country Estates.
Defendant has no power to file restrictive covenants, or to assess landowners. Defendant has no standing to file claims of lien or institute foreclosure or collection actions. Defendant has no authority over the lands at Ocala Waterway Estates (or, according to the settlement with a rival association, over Kingsland Country Estates). Furthermore, defendant owned no lands which it could restrict. There was no consideration for the covenants as Plaintiff did not buy his land from either the defendant or the Subdivider.
ARGUMENT AND MEMORANDUM OF LAW
1. Plaintiff Does Not Qualify For Membership
In Defendant Association
According to the defendant’s charter, membership in the corporation consists of “The owner of a lot, tract or parcel of land shown on a plat of Kingsland Country Estates…” (Ex. 2). Pursuant to the by-laws, membership in the association is limited to owners of lots at Kingsland Country Estates (Ex. 3, Art. I, Sec. 4, and Art. IV, sec. 1). As the deed clearly shows, plaintiff owns a lot at Ocala Waterway Estates. Plaintiff does not qualify for membership in the defendant association and is not subject to claims of liens for nonpayment of road paving assessments.
2. Defendant Has No Power Over Lots At
Ocala Waterway Estates
Defendant’s corporate charter states it was organized to promote the health, safety and welfare “of residents of that area known and described as Kingsland Country Estates, Marion County, Florida, and more particularly described from time to time in plats of various units of said subdivision…”. (Ex. 2, Fourth (a)). Its powers include carrying out those functions and activities “enumerated in the various Declarations of Restrictions…restricting lots, tracts and parcels of land shown on the said Plats of Kingsland Country Estates…” (Ex. 2 A., Fourth (b))
The by-laws definitions state that “references to the lots, tracts or parcels of land shall mean the same as in the various Declarations of Restrictions, affecting property located in Kingsland Country Estates”. The by-laws provide the Defendant the power “to make and collect fees as set forth in the Restrictions” and “To use and expend the fees collected for those purposes set forth in the Restrictions;” (Ex. 3, Art. II, Sec. 5, A., B) The Restrictions refer to those for Kingsland Country Estates; there were no restrictions made for Ocala Waterway Estates.
3. Defendant Has No Standing To File Claims Of Lien,
To Foreclose, Or To Sue To Collect Assessments
Since defendant has no authority over lands at Ocala Waterway Estates, it has no power to assess, no right to file a claim of lien for nonpayment, and no standing to bring a foreclosure suit or to otherwise use the court to collect the assessments. See Palm Point Property Owners’ Ass’n v. Pisarski, 679 So.2d 824 (Fla. 1993). Defendant had no power to restrict lands at Ocala Waterway Estates as it owns no land at the subdivision. See Holiday Pines Property Own. v. Rowen, 679 So.2d 824 (Fla. 4th DCA 1996). There was no consideration for the restrictive covenants as plaintiff did not purchase from defendant or the sub-divider. The restrictive covenants cannot be consummated due to failure of consideration. Chilton v. Atlantic Casualty Co., 651 So.2d 190 (2d DCA 1995). In any event, plaintiff does not qualify to be a member of the defendant association as he does not own land at Kingsland Country Estates.
WHEREFORE, the Court is requested to enter a partial summary declaratory judgment adjudicating that:
Defendant’s corporate charter and by-laws limit membership to owners of lots in any of the recorded plats of Kingsland Country Estates;
Plaintiff, as an owner of a lot in Ocala Waterways Estates, is not qualified to be a member of the defendant association and is not subject to assessment, lien, or foreclosure by defendant;
the February 2, 1998, covenants and restrictions executed by the Defendant are null and void and of no legal effect as there was no consideration therefore, defendant owned no lots, had no authority to make Restrictive Covenants, and no power to restrict property located in Ocala Waterway Estates;
Defendant has no statutory, legal or equitable right, power, or authority in its corporate charter or by-laws or otherwise to levy assessments or to file claims of lien against owners of lots in Ocala Waterway Estates;
All the claims of lien filed by Defendant against Plaintiff and other owners of land in Ocala Waterway Estates (sections 27 and 34) are a nullity, invalid and void and of no legal effect.
Respectfully submitted,
_____________________
RICHARD BENNETT
FLORIDA BAR NO. 150627
1200 Anastasia Avenue
Office Suite #360
Coral Gables FL 33134-6043
Telephone: 305/444-5925
Attorney for plaintiff
Loyde W. Sadlowski
CERTIFICATE OF SERVICE
I CERTIFY that a true and correct copy of the foregoing has been furnished by mail this 28th day of November, 2001, to Lauren E. Merriam, III, P.O. Box 1869, Ocala, Florida 34478-1869.
_____________________
RICHARD BENNETT
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