The following remarks were delivered at the Unit Owners Committee (UOC) Meeting on June 1, 2016 by RBC Director Barbara Craig.
Those who oppose our challenge of WCI’s turnover plan continually make two points.
1. That it is premature to challenge WCI’s claim to annexation or deadhand control as these have not yet been exercised.
2. That turnover and annexation/deadhand control issues are separate and thus the latter should not be dealt with in the turnover process.
Basically, this position argues: “OK, we agree that maybe annexation and dead hand control are wrong or illegal but we should not challenge them now.” Why? “Because,” the argument goes, “WCI has not exercised either yet and we should wait until it does. Challenge now is premature.”
These points are not valid:
The Turnover document filed on the public record by WCI contains claims of both deadhand control and annexation “rights” by WCI in that this document states that up to 2 seats may be added to the Board post turnover and that units not presently within PLCA may be added to these or existing seats. There is no doubt turnover and deadhand control and annexation are entwined.
I make the following comments to that position, comments based on the legal advice of RBC’s Florida licensed HOA expert attorney.
1. The reason to challenge dead hand control and claimed annexation rights NOW is to get a ruling on the law prior to action by WCI. Action, that could (inevitably would) involve what the law calls “innocent third parties”. For example, say WCI annexes Raptor Bay, and begins pre construction sales of apartments promising, in its advertisements, that the apartments would have access to the private PLCA beach on Big Hickory Island or to the PLCA amenities in general?
So, at that point WCI “has acted” so we sue. But, the case now involves a number of outside actors who bought on a promise of the beach or amenities being part of their deal. A court at this point would have to play a balancing act with three players’ interests involved: PLCA owners, WCI, and Raptor Apartment purchasers. Courts do not like to punish innocent third parties as a general rule. PLCA could be at a disadvantage.
2. It is a prudent rule of law that a party does not want to put itself in a position of potentially waiving any rights by sitting back and waiting until something happens. To do so raises the potential of an “estoppel” argument which in effect means, “You did not complain at the time so you cannot complain now.”
3. To FAIL TO ACT right now to challenge the very clear claims WCI has stated in the notice of Turnover filed with the state a couple of weeks ago, is to put PLCA in a position of potentially waiving its right in the future to challenge these claims
4. Moreover, failure to challenge these claims RIGHT NOW in light of the public, obvious and well known fact that WCI intends to develop Raptor Bay and has clearly stated, on the record, that it can annex and that it can and will provide beach rights to its new properties, could allow WCI to claim that it reasonably could assume that since it filed a public record amending the governing documents without objection from PLCA, that it (WCI and third parties) would be relying on the acceptability of that entire document in going forward with development plans inside and outside of the current Pelican Landing boundaries.
We have in State Law 720.3075 and the Settlement Agreement ample legal means for challenging WCI. Please keep in mind that these legal rights are not self-enforcing and that if we do not act WCI can and will get away with this. Moreover, failure to challenge this RIGHT NOW puts us at unnecessary risk of being prevented from doing so later and at the risk of complicating the issues to our disadvantage.”
Barbara Hinkson Craig,
Director, Resident’s for a Better Community & Chair, UOC Governance Study Group