Case No 07F-H067003-BFS

Complaint:
breach of fiduciary duty; failure to enforce CC&Rs

Source of Law:
Declaration and Amendment XII

Discussion:
Article XVII of the Eleventh Amended and Restated Declaration granted exclusive authority to Respondent’s Board of Directors to construe and interpret the document.

Petitioners’ complaint that Respondent failed to enforce the provisions of the Eleventh Amended and Restated Declaration is untimely, due to it having been amended and superseded by the Twelfth Amended and Restated Declaration and their failure to timely prosecute a civil claim while the Eleventh Amended and Restated Declaration was effective. Petitioners’ complaints are now moot because of the Twelfth Amended and Restated Declaration.

[Amendment XII reads, “[l]andscaping of Common Areas and Lots bordering the Golf Course shall be maintained to avoid undue obstruction of views of the Golf Course.”]

It is concluded that Respondent has maintained the landscaping of the common areas to avoid undue obstruction of Petitioners’ views of its golf course.

Holding:
Denied petition.

Additional Remarks:
Homeowners bought property under amendment XI and its restrictions on obstruction of views of golf course. Homeowners paid for premium lot on golf course.

Another instance where the alleged HOA contract is meaningless as a result of broad CC&R amendment provision to allow any validly passed amendment to be binding on all homeowners, regardless whether or not CC&Rs were not in effect at time of purchase. The courts have upheld equitable servitudes provision for a single set of covenants for all homeowners over the Constitution and state laws.

This power, alone, granted by the courts gives HOA principalities more powers than accorded to public governments. Public government does not permit ex post facto laws; nor can property rights be taken without just compensation. Under US Supreme Court criteria, state court decisions upholding unconstitutional laws -- unequal application of the laws for homeowners in HOAs as apparent here - is a state action.