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Filing # 193126440 E-Filed 03/01/2024 02:31:48 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
VILLAS AT EMERALD LAKE
HOMEOWNERS ASSOCIATION, INC., a
Florida not for profit corporation,
Plaintiff,
v. CASE NO.: 2020-CA-002942-ON
ROYAL OAK HOMES, LLC, a Florida DEFENDANT, ROYAL OAK
limited liability company; ADVANCED HOMES, LLC’S, REPLY TO
WRAPPING AND CONCRETE PLAINTIFF’S RESPONSE IN
SOLUTIONS O$12,717.99 F CENTRAL OPPOSITION TO ROYAL
FLORIDA, INC., a Florida corporation; OAK’S MOTION FOR
DON KING’S CONCRETE, INC., a Florida PARTIAL SUMMARY
corporation; HUGH MACDONALD JUDGMENT AS TO
CONSTRUCTION, INC., a Florida PLAINTIFF’S LACK OF
corporation; IMPERIAL BUILDING STANDING AS TO ROOF-
CORPORATION, a Florida corporation; RELATED CLAIMS
PREMIER PLASTERING OF CENTRAL
FLORIDA, INC. n/k/a TGK STUCCO, INC.,
a Florida corporation; WEATHERMASTER
BUILDING PRODUCTS, INC., a Florida
corporation; WEINTRAUB INSPECTIONS
& FORENSICS, INC. n/k/a WEINTRAUB
ENGINEERING AND INSPECTIONS,
INC., a Florida corporation; THE DIMILLO
GROUP, LLC, a Florida limited liability
company; WOLF’S IRRIGATION &
LANDSCAPING, INC., a Florida
corporation; SUMMERPARK HOMES,
INC., a Florida corporation; BROWN +
COMPANY ARCHITECTURE, INC., a
Florida corporation;
EXPERT PAINTING & PRESSURE
WASHING, INC., a Florida corporation,
Defendants.
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/
ROYAL OAK HOMES, LLC, a Florida
limited liability company,
Crossclaim Plaintiff,
v.
ADVANCED WRAPPING AND
CONCRETE SOLUTIONS OF CENTRAL
FLORIDA, INC., a Florida corporation;
DON KING’S CONCRETE, INC., a Florida
corporation; HUGH MACDONALD
CONSTRUCTION, INC., a Florida
corporation; IMPERIAL BUILDING
CORPORATION, a Florida corporation;
PREMIER PLASTERING OF CENTRAL
FLORIDA, INC. n/k/a TGK STUCCO, INC.,
a Florida corporation; WEATHERMASTER
BUILDING PRODUCTS, INC., a Florida
corporation; WEINTRAUB INSPECTIONS
& FORENSICS, INC. n/k/a WEINTRAUB
ENGINEERING AND INSPECTIONS,
INC., a Florida corporation; WOLF’S
IRRIGATION & LANDSCAPING, INC., a
Florida corporation; BROWN + COMPANY
ARCHITECTURE, INC., a Florida
corporation; EXPERT PAINTING &
PRESSURE WASHING, INC., a Florida
corporation,
Crossclaim Defendants.
/
WEATHERMASTER BUILDING
PRODUCTS, INC., a Florida Corporation;
Third-Party Plaintiff,
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135264328.2
v.
ALL GLASS INSTALLATION COPRP., a
Florida corporation; CASEY HAWKINS
GLASS, INC., a Florida corporation; DEAN
NESBIT, LLC, a Florida limited liability
company; HELBERG ENGERPRISES,
LLC, a Florida limited liability company;
HOBBIT WINDOWS, LLC, a Florida
limited liability company; T&M
CONSTRUCTION OF SANFORD, INC., a
Florida corporation; WELL DONE
WINDOWS, INC., a Florida corporation;
and WELL HUNG WINDOWS & DOORS,
LLC, a Florida limited liability company,
Third-Party Defendants.
/
DEFENDANT, ROYAL OAK HOMES, LLC’S, REPLY TO PLAINTIFF’S
RESPONSE IN OPPOSITION TO ROYAL OAK’S MOTION FOR
PARTIAL SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF
STANDING AS TO ROOF-RELATED CLAIMS
Defendant, Royal Oak Homes, LLC (“Royal Oak”), replies to Plaintiff’s
Response in Opposition (“Opposition”) to Royal Oak’s Motion for Partial Summary
Judgment as to Plaintiff’s Lack of Standing as to Roof-Related Claims (“Motion”).
The Opposition admits Plaintiff’s standing to assert roof-related claims is
determined by Plaintiff’s Declaration and Section 720.303(1), Florida Statutes, but
fails to cite any specific provision of either the Declaration or Section 720.303(1)
that expressly grants Plaintiff standing to sue Royal Oak for roof-related claims for
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the Villas at Emerald Lake townhomes (“Emerald Lake”). 1 Plaintiff further ignores
the clear requirement under Rule 1.221 that Plaintiff’s claims for roof or other
building improvement alleged defects are “specifically limited to those
improvements for which the association is responsible.” Fla. R. Civ. Pro. 1.221.2
Plaintiff, however, cites no provision of the Declaration, as amended, under this
statute and rule expressly providing Plaintiff with responsibility to maintain the
Emerald Lake townhome roofs because that provision does not exist.
Instead, Plaintiff asks the Court to read the entire Declaration, and all
amendments, because Plaintiff does not and cannot cite this Court a specific
provision of the Declaration or its amendments that expressly states the Association
is responsible for maintenance of the roofs or that the roofs are “Common Areas.”
Opposition, p. 10.3 Again, Plaintiff sends the Court on this search because no such
1
As in the Motion, “Declaration” means the Declaration of Covenants and Restrictions of the
Villas at Emerald Lake and the “First Amendment” means the First Amendment to the Declaration,
certified copies of which were attached as Exhibits A and B, respectively, to the Motion.
2
The Motion relies upon Rule 1.221 for its argument that Plaintiff lacks standing to assert its roof-
related claims. Motion, pp. 14-18. Plaintiff’s complete failure to even address Rule 1.221 in the
Opposition is reason enough for the Court to reject the Opposition’s arguments and grant the
Motion.
3
“Common Areas” is a defined term under the Declaration and First Amendment. It means “all
real property which is new and hereafter owned by the Association or dedicated for use or
maintenance by the Association or its members by a recorded plat or this Declaration.” Motion, n.
4, Ex. A, ¶ 1.5 (emphasis added). Even Plaintiff admits the townhome owners own their
townhomes and, hence, the roofs of those townhomes, not Plaintiff. See Second Amended
Complaint, ¶ 43. Plaintiff presents this Court with no evidence the Emerald Lake townhome roofs
were “dedicated” for use by the Association in a recorded plat. Thus, the townhome roofs are not
“Common Areas.”
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provision exists.4 Rather, the First Amendment, under “Owner Maintenance,”
expressly provides the Emerald Lake townhome owners – not Plaintiff – are
“responsible for repair and replacement of all roof damaged (sic) caused by anything
other than normal wear and tear….” See First Amendment, ¶ 7.2, cited in the Motion
as Exhibit B and attached to this reply.5 (emphasis added); Motion, ¶¶ 3-4. Plaintiff
is therefore not “responsible” for the roofs under Section 720.303(1) or Rule 1.221
and has no standing to assert Plaintiff’s roof-related claims. Fla. Stat. § 720.303(1);
Fla. R. Civ. Pro. 1.221; Motion, pp.11-18.
Plaintiff, not Royal Oak, asks this Court to violate what Plaintiff recognizes
is a fundamental principle of statutory (and contract) construction that “no part …,
not even a single word, should be ignored, read out of the text, or rendered
meaningless, in construing the provision.” Opposition, pp. 20-21 (citations omitted);
Motion, pp. 13-14, 15-17. Plaintiff’s arguments, in sum, ask this Court to ignore
paragraph 7.2, and read it out of the First Amendment that expressly makes
4
Plaintiff even inserts Article V, Section 2 of the Master Declaration for single-family home and/or
townhome communities that includes Emerald Lake, even though that Section nowhere references
roofs, much less the Emerald Lake townhome roofs. Opposition, p. 11. Plaintiff quotes this
section’s reference to “Common Property,” which Plaintiff does not define, but which does not
include the Emerald Lake townhomes or their roofs. Plaintiff also references the Second
Amendment’s obligation for the Association to purchase “any structural [insurance] policy” for
the Emerald Lake townhomes. Opposition, p. 12. Plaintiff, however, provides no evidence this
policy was purchased by the Association, or what it covered if purchased, and provides no expert
testimony that there were structural issues with the Emerald Lake townhome roofs that might fall
under such a policy, if it exists.
5
Due to a filing error, Exhibit B to the Motion (the First Amendment) was inadvertently not
attached to the Motion. Royal Oak therefore attaches Exhibit B to this reply.
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townhome owners responsible for maintenance of their roofs for anything other than
normal wear and tear defined as “all roof damage[d] [sic]” caused by anything else.
See First Amendment attached hereto as Ex. B, at ¶ 7.2. Plaintiff’s arguments further
ask this Court to ignore and read out of Section 720.303(1) and Rule 1.221 the
express limitation on Plaintiff’s right to sue on behalf of owners for claims about
their roofs only if the Association is responsible to maintain them, which is not the
case here. Fla. Stat. § 720.303(1); Fla. R. Civ. Pro. 1.221. This is the essence of
Plaintiff’s arguments, and for this fundamental reason, the Court must reject the
Opposition and grant the Motion.
I. Plaintiff’s Misrepresentation of Fact and Expert Testimony, and Statutes
other than Section 720.303, Do Not Have any Bearing on Plaintiff’s
Standing Under the Clear Language of the First Amendment.
Plaintiff’s “Background and Introduction” section asserts that Royal Oak is
“the developer,” which makes Royal Oak a party to the Declaration and its
amendments, contrary to Plaintiff’s later argument.6 Opposition, p. 3, ¶ 4, pp. 16-17.
In any event, Plaintiff misrepresents that Royal Oak is relying on “its own
interpretation” of the First Amendment, or “parole evidence,” to demonstrate
6
Plaintiff alleges that Royal Oak owes a “statutory duty” to the public to comply with the Florida
Building Code. Opposition, p. 3, ¶ 4. Plaintiff cites no statute for this alleged obligation because it
does not exist. Plaintiff also alleges Royal Oak owes a “common law duty to supervise” but cites
no evidence to support this alleged duty or Royal Oak’s failure to comply with any standard of
care in the industry. Opposition, pp. 3-4, ¶ 5. Finally, Plaintiff alleges the “Project” was
“constructed with numerous Code violations.” Id., ¶ 6. This is Plaintiff’s unproven allegation,
unsupported by any evidence citation and strongly disputed by Royal Oak.
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Plaintiff lacks standing to assert roof-related claims against Royal Oak. Plaintiff
Opposition, pp. 16-17. Royal Oak actually requests this Court to enforce the express,
written language of the First Amendment that provides owners, not Plaintiff, are
responsible for maintenance and repair of their roofs for anything other than normal
wear and tear defined as “all roof damage[d] [sic]” caused by anything else. See First
Amendment attached as Ex. B to Motion, at ¶ 7.2. The construction of this provision
is a matter of law for the Court. Abel Homes at Naraja Villas, LLC v. Hernandez,
960 So. 2d 891, 893-94 (Fla. 3d DCA 2007); Gray v. D & J Industries, Inc., 875 So.
2d 683, 683 (Fla. 3d DCA 2004).
Plaintiff further mispresents the testimony of its expert, Mr. Martin, to suggest
the alleged replacement of roofs is required to perform repairs to other parts of the
Emerald Lake townhomes like their exterior walls. Opposition, pp. 13-14.7 Plaintiff
first asks the Court to read Mr. Martin’s entire deposition transcripts for evidentiary
support Plaintiff cannot provide before turning to record citations where Mr. Martin
only discussed the roofs themselves. Id. Mr. Martin’s actual testimony is that there
was no damage at all at the four roof shingle locations tested at the lower and upper
roofs in Emerald Lake, thus, no reason to remove those roofs. (Martin Dep., Vol I,
7
Royal Oak does not agree there is any damage at the exterior stucco walls, certainly not
throughout Emerald Lake as alleged by Plaintiff, and Plaintiff specifically refers to no actual
damage at any specific exterior stucco wall location in its Opposition because it is irrelevant to
Royal Oak’s Motion.
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174:7-16; 179:9-19; 180:21-25, 181:1, 182:8-25, 193:1-2). 8 This testimony,
however, is irrelevant to the standing issue. Standing is established by the clear
language in paragraph 7.2 of the First Amendment placing responsibility for the
roofs on the townhome owners.
Plaintiff turns to this section or paragraph of the First Amendment for the first
time at page 15, focusing only on the words “normal wear and tear” in that
paragraph, and apparently claiming these four words read in isolation mean the
Association is responsible for maintenance and repair of the roofs. Opposition, pp.
15-16. But paragraph 7.2 of the First Amendment defines what “normal wear and
tear” is by defining what it is not, namely, “all roof damage[d] [sic]” caused by
anything else. See First Amendment attached as Ex. B to Motion, at ¶7.2 (emphasis
added).
Plaintiff alleges code violations in the Emerald Lake townhome roof
installations that caused damage – though Mr. Martin admits there is no actual
damage at the low and high roofs – and those allegations plainly represent roof
damage “caused by” something other than “normal wear and tear.” Plaintiff,
therefore, has no standing to assert roof claims for the Emerald Lake townhomes.
8
Mr. Martin only found damage at one roof diverter flashing location (the other two such locations
tested had no damage), but there was no damage to the lower and upper roofs themselves in
Emerald Lake. And, Mr. Martin admitted the roof diverter flashing existed at only the low roofs
and such flashing could be replaced without taking off the entire lower roof, any other lower roof,
and certainly without replacing the upper roofs at Emerald Lake. Motion, p, 10, Martin Dep., Vol.
I, 183:3-24.
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Plaintiff’s further reliance on the testimony of Mr. Treadwell, Plaintiff’s
corporate representative, is misplaced. Plaintiff cites only a few lines of an answer
to a single, undisclosed question that fails to bring to the Court’s attention the full
context of his testimony relative to Plaintiff’s standing to assert roof-related claims.
Opposition, pp. 15-16. When these lines are placed in that context, his testimony
supports Royal Oak’s Motion.
First, Mr. Treadwell testified to the quoted “caveat” in the context of
determining the useful lives of the roofs for setting reserves. (Assoc. Corp. Rep.
Dep., 165:5-25, 166:1-23). He admitted this “caveat” about setting reserves was not
included in paragraph 7.2 of the First Amendment and that he did not tell the owners
about this in 2018 when he told them they needed to get roof insurance because they
were responsible to maintain and repair their roofs. (Id., 166:24-25, 167:1-18;
146:24-25, 147:1-2; 13-21; 169:3-7; 170:8-20; Dep. Ex. 142).9 He further admitted
the Association was only responsible for roof replacement at the end of their useful
lives. (Id., 164:23-25, 165:1-4). He admitted Plaintiff specifically identified
“replacement” as the purpose of reserves for roofs in Plaintiff’s reserve calculations,
not roof maintenance or repairs. (Id., 38:13-15; 256:17-25, 257:1-13; 258:24-25,
9
Plaintiff claims this is an “inaccurate inference.” Opposition, p. 17. It not an “inference” at all, it
is exactly what Plaintiff’s Corporate Representative admittedly said to the townhome owners
Plaintiff claims to represent.
9
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259:1; Dep. Ex. 166). The Association’s Corporate Representative’s deposition
testimony, in context, supports Royal Oak’s Motion.
Plaintiff next claims Plaintiff has incurred “damages” associated with roof
repairs required as a result of the alleged construction defects in accordance with the
Declaration. Opposition, pp. 17-8. First, Plaintiff’s Corporate Representative
testified at Plaintiff’s citation that he was unaware of any repairs or remediation
work. (Assoc. Corp. Rep., 76:9-77:2). Second, Plaintiff attaches as Composite
Exhibit C two notices of repair from the Ball Janik law firm in 2021, after this lawsuit
was filed, for two isolated, alleged roof leaks in roofs installed on two of the 76
townhomes between 2014 and 2017. Opposition, p.17.10 None of the attached roof
leak repair proposals identify any alleged construction defect as the reason for the
alleged roof leak repair. One includes the statement to repair shingles “lifted by wind
damage.” Finally, the fact that Plaintiff volunteered to repair isolated roof leaks the
owners were responsible for under paragraph 7.2 of the First Amendment does not
establish Plaintiff’s standing to sue Royal Oak for roof-related claims. See City of
Miami v. Keton, 115 So.2d 547, 551 (Fla. 1959) (the voluntary payment doctrine
provides that “where one makes a payment of any sum under a claim of right with
knowledge of the facts such a payment is voluntary and cannot be recovered.”)
10
Plaintiff does nothing to authenticate the notices of repair in Exhibit C. And the last notice of
repair is for an alleged stucco wall waterproof repair at the foundation below a single window at
one townhome where the apparent reason for the waterproofing from the repair recommendation
was “to cut the shrubs down in front of the building to allow the sprinklers to spray above them.”
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Plaintiff argues that it has standing under Section 553.84 simply because
Plaintiff filed a Section 553.84 claim against Royal Oak. Opposition, p.18. That
statute permits any “person or party” damaged as a result of violation of that part or
the code to sue the party who committed the violation. §553.84, Fla. Stat. It still
requires the claimant to show the claimant was “damaged.” Id. That Plaintiff cannot
do here because the townhome owners are responsible for maintenance and repair
of their roofs for anything other than normal wear and tear defined as “all roof
damage[d] [sic]” caused by anything else. See First Amendment attached as Ex. B
to Royal Oak Motion, at ¶7.2.
II. Plaintiff Members Cannot Vote and Did Not Vote to Give Standing to
Plaintiff to Sue Royal Oak for Roof-Related Claims.
Plaintiff argues the Association and its members determined that they had
standing to sue Royal Oak for roof-related claims because “they” determined it was
a matter of “common interest” and voted for it. Opposition, pp. 19-20. This argument
is without merit.
First, Plaintiff itself cannot determine what is a “common interest.” Nothing
in Section 720.303(1) or Rule 1.221 gives Plaintiff that right to determine it.11 As
11
The cases Plaintiff cites in support of its position are inapposite. Two of the cited cases, Charley
Toppino & Sons, Inc.v. Seawatch at Marathon Condo. Ass’n, Inc., 658 So. 2d 922, 923 (Fla. 1994)
and Allied Tube & Conduit Corp. v. Latitude on River Condo. Ass'n, Inc., 3D19-2044, 2020 WL
3444902, at *1 (Fla. 3d DCA June 24, 2020), involve condominium associations, which are
governed by a different statute. Another case cited by Plaintiff, (Homeowner’s Ass’n of Overlook,
Inc. v. Seabrooke Homeowners’ Ass’n, Inc., 62 So.3d 667, 669 (Fla. 2d DCA 2011), involved clear
common area issues, namely maintenance of roads within the development. The last case cited by
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explained above, Section 720.303(1) and Rule 1.221 expressly limit Plaintiff’s right
sue for owners for claims about their roofs only if the Association is responsible to
maintain them, which is not the case here. §720.303(1), Fla. Stat.; Fla. R. Civ. Pro.
1.221. Plaintiff, by its own cited authorities, cannot ignore this express language in
this statute and rule by reading it out of the statute and rule, which is what Plaintiff
does when it asserts it can determine what is a “common interest” providing Plaintiff
standing. Opposition, pp. 20-21 (citations omitted); Motion, pp. 14-18 (citations
omitted).
Second, Plaintiff claims that the Florida Staff Analysis for the amendment to
Section 720.301(1) that added the requirement for a membership vote for certain
association litigation on their behalf express the intent to “grant standing” to the
Association as a result of this vote. Opposition, p. 21. Plaintiff fails to provide this
Court or authenticate the referenced Staff Analysis probably because the Staff
Analysis expresses no such legislative intent.12
Finally, Plaintiff’s reliance on this membership “vote” is interesting given that
the meeting was held via Zoom, lasted 16 minutes, was led by Ball Janik, there is no
Plaintiff, Maronda Homes, Inc. of Florida v. Lakeview Reserve Homeowners’ Ass’n, Inc., 127 So.
3d 1258, 1261 (Fla. 2013), involved an implied warranties claim that the Florida Legislature has
since amended.
12
Royal Oak has attached the referenced Staff Analysis to this Reply as Exhibit A so the Court
can see for itself that it nowhere states the legislative intent to grant standing to the association as
a result of a favorable vote by the membership to initiate litigation. The word “standing” is not
even used by the Staff Analysis.
12
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record of the members actually present or how they individually voted, and the vote
was about recouping funds for some unknown construction defect when Plaintiff
admittedly had spent no such funds. (Corp. Rep. Dep., 212-213:1, 15-22; 214-215:1-
6, 16-22; 216:17-20; 217-219:1-24; 220:4-11; 221:17-22:10; 227:13-25). There is
no record the members actually present on this 16-minute Zoom meeting led by Ball
Janik had any idea that the action included roof-related claims. Plaintiff’s argument
that the membership vote approved such roof-related claims is unsupported by the
record and, thus, without merit.
III. Conclusion.
For all the above reasons, Royal Oak respectively requests that this Court
grant Royal Oak’s Motion, reject the Plaintiff’s Opposition, and enter partial
summary judgment in Royal Oak’s favor and against Plaintiff on Plaintiff’s roof-
related claims for lack of standing.
Respectfully submitted,
/s/ J. Michael Walls
James Michael Walls
Florida Bar No. 706272
Luis Prats
Florida Bar No. 329096
Robin H. Leavengood
Florida Bar No. 0547751
Fiona E. Foley
Florida Bar No. 118668
Alexa M. Nordman
Florida Bar No. 1025863
CARLTON FIELDS, P.A.
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4221 W. Boy Scout Boulevard
Tampa, FL 33607-5780
Telephone: (813) 223-7000
Facsimile: (813) 229-4133
mwalls@carltonfields.com
lprats@carltonfields.com
rleavengood@carltonfields.com
anordman@carltonfields.com
slambe@carltonfields.com
ffoley@carltonfields.com
Counsel for Royal Oak Homes, LLC
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 1, 2024, the foregoing was electronically
filed with the Clerk of the Court by using the E-filing Portal, which will
electronically serve this document to all registered counsel of record.
/s/ J. Michael Walls
Attorney
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EXHIBIT A
Florida Staff Analysis, H.B. 861, 4/16/2003, Florida Staff Analysis, H.B. 861, 4/16/2003...
FL Staff An., H.B. 861, 4/16/2003
House of Representatives Staff Analysis, House Bill 861
April 16, 2003
Florida House of Representatives
2003 Regular Session
BILL #: HB 861 w/CS Homeowners Associations
SPONSOR(S): Bilirakis
TIED BILLS: none IDEN./SIM. BILLS: SB 1410
REFERENCE ACTION ANALYST STAFF DIRECTOR
1) Judiciary 17 Y, 0 N w/CS Jaroslav Havlicak
2) Business Regulation 28 Y, 0 N w/CS Livingston Liepshutz
3)
4)
5)
SUMMARY ANALYSIS
Current law provides that a homeowners' association may file a recorded notice to prevent extinguishment of a covenant or
restriction by marketable record title. The notice must be approved by a majority vote of the association's members.
The bill provides that notice must instead be approved by a two-thirds vote of its board of directors. This bill also allows
for some content requirements of the statutory notice for preservation against marketable record title to be satisfied by a
homeowners' association filing an affidavit affirming that it delivered a statement to each of the associations' members informing
them of a “marketable record title action” by the association. Additionally, this bill deems recorded covenants or restrictions
to be sufficiently described if the notice to preserve against marketable title refers to the book and page where the covenants
or restrictions were recorded.
This bill also makes several changes to chapter 720, F.S., the law governing homeowners' associations. These include:
• providing a non-exclusive list of “matters of common interest” to members of a homeowners' association upon which the
association may institute, maintain, settle, or appeal actions or hearing in its name on behalf of all members;
• specifically authorizing homeowners' associations to defend eminent domain and inverse condemnation actions;
• requires that homeowners' associations must obtain approval of a majority of members prior to initiating litigation in an amount
exceeding $100,000; and
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 1
Florida Staff Analysis, H.B. 861, 4/16/2003, Florida Staff Analysis, H.B. 861, 4/16/2003...
• narrowing the category of rights of a member of a homeowners' association that are protected from later amendments to the
association's governing documents, or from changes in the law. The bill states that these provisions of the bill shall not affect
vested rights existing prior to the effective date of the bill and these rights may not be changed without the consent of the parcel
owner who owns the rights.
This bill does not appear to have a fiscal impact on state or local governments.
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. DOES THE BILL:
1. Reduce government? Yes[] No[] N/A[x]
2. Lower taxes? Yes[] No[] N/A[x]
3. Expand individual freedom? Yes[] No[x] N/A[]
4. Increase personal responsibility? Yes[] No[] N/A[x]
5. Empower families? Yes[] No[] N/A[x]
For any principle that received a “no” above, please explain:
This bill transfers authority to file a notice preserving claims against marketable record title from the members of a homeowners'
association to the associations' board of directors.
B. EFFECT OF PROPOSED CHANGES:
Present Situation: Marketable Record Title
Under s. 712.02, F.S., an owner of real property who, alone or with predecessors in title, has held any estate in land of record
for 30 years or more is said to have “marketable record title” to that estate. This title is free and clear of all claims other than
the following exceptions to marketability expressly included in s. 712.03, F.S.:
(1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which
the estate is based beginning with the root of title; provided, a general reference in any of such muniments to easements,
use restrictions or other interests created prior to the root of title shall not be sufficient to preserve them unless specific
identification by reference to book and page of record or by name of recorded plat be made therein to a recorded title transaction
which imposed, transferred or continued the easement, use restrictions or other interests; subject, however, to the provisions
of subsection (5).
(2) Estates, interests, claims, or charges, or any covenant or restriction, preserved by the filing of a proper notice in accordance
with the provisions hereof.
(3) Rights of any person in possession of the lands, so long as such person is in such possession.
(4) Estates, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective
date of the root of title.
(5) Recorded or unrecorded easements or rights, interest or servitude in the nature of easements, rights-of-way and terminal
facilities, including those of a public utility or of a governmental agency, so long as the same are used and the use of any part
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 2
Florida Staff Analysis, H.B. 861, 4/16/2003, Florida Staff Analysis, H.B. 861, 4/16/2003...
thereof shall except from the operation hereof the right to the entire use thereof. No notice need be filed in order to preserve
the lien of any mortgage or deed of trust or any supplement thereto encumbering any such recorded or unrecorded easements,
or rights, interest, or servitude in the nature of easements, rights-of-way, and terminal facilities. However, nothing herein shall
be construed as preserving to the mortgagee or grantee of any such mortgage or deed of trust or any supplement thereto any
greater rights than the rights of the mortgagor or grantor.
(6) Rights of any person in whose name the land is assessed on the county tax rolls for such period of time as the land is so
assessed and which rights are preserved for a period of 3 years after the land is last assessed in such person's name.
(7) State title to lands beneath navigable waters acquired by virtue of sovereignty.
(8) A restriction or covenant recorded pursuant to chapter 376 [land reclamation] or chapter 403 [environmental control].
All other “estates, interests, claims, or charges” are extinguished by marketable record title, [FN1] except if a person claiming
such an interest files for record a notice within the 30-year statutory period, [FN2] the contents of which are specified in s.
712.06(1), F.S. [FN3] A homeowners' association may file such a notice only if approved by a majority vote at a meeting of
its membership where a quorum is present. [FN4]
Present Situation: Homeowners' Associations
A homeowners' association is “a Florida corporation responsible for the operation of a community ... in which the voting
membership is made up of parcel owners or their agents, or a combination thereof.” [FN5] A community is defined as all real
property that is or will be subject to a recorded declaration of covenants; [FN6] a declaration of covenants is, in turn, a “written
instrument ... which subjects the land comprising the community to the jurisdiction and control of an association ... in which
the owners of the parcels, or their association representatives, must be members.” [FN7]
Section 720.301(6), F.S., defines the “[g]overning documents” of a community subject to a homeowners' association as:
(a) The recorded declaration of covenants for a community, and all duly adopted and recorded amendments, supplements, and
recorded exhibits thereto; and
(b) The articles of incorporation and bylaws of the homeowners' association, and any duly adopted amendments thereto.
Section 720.306, F.S., governs meetings of the members of a homeowners' association. In general, s. 720.306(1)(b), F.S.,
provides that governing documents of a homeowners' association may be amended by a vote of two-thirds of the total
voting interests in the association, unless otherwise forbidden by law or by the governing documents themselves. However, s.
720.306(1)(c), F.S., also specifies that:
Unless otherwise provided in the governing documents as originally recorded, an amendment may not affect vested rights
unless the record owner of the affected parcel and all record owners of liens on the affected parcels join in the execution of
the amendment.
A “vested right” is either an immediate right of present enjoyment or a present, fixed, future right of enjoyment. [FN8] It is a
property interest that may not be taken without due process of law. [FN9] To be considered “vested,” a right must have become
a title, either legal or equitable, to the present or future enforcement of a demand. [FN10]
Proposed Changes
The bill amends s. 712.05, F.S., to provide that for a homeowners' association to approve filing of a notice to preserve claims
against extinguishment by marketable record title, the association must do so by a two-thirds vote of its board of directors.
The bill also amends s. 712.06(1)(b), F.S., to allow the requirements of that paragraph of the statutory notice for preservation
against marketable record title to be satisfied by a homeowners' association filing an affidavit affirming that it delivered a
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statement, the language of which is provided in the bill, to each of its members. This statement informs the members of a
“marketable record title action” by the homeowners' association. The bill further amends s. 712.06(1)(e), to deem recorded
covenants or restrictions to be sufficiently described if this notice of marketable title action refers to the book and page where
the covenants or restrictions were recorded.
Additionally, this bill amends s. 720.303, F.S., to do the following:
• provide a non-exclusive list of “matters of common interest” to members of a homeowners' associations, upon which the
association may “institute, maintain, settle, or appeal actions or hearing in its name on behalf of all members”;
• specifically authorize homeowners' associations to defend eminent domain and inverse condemnation actions;
• requires that homeowners' associations must obtain approval of a majority of members prior to initiating litigation in an amount
exceeding $100,000; and
• make clear that these provisions do not limit the preexisting rights of individual members of a homeowners' association.
Finally, the bill considerably narrows the scope of rights of a member of a homeowners' association that s. 720.306(1)(c), F.S.,
protects from later amendments to the association's governing documents. This bill does this by: 1) changing the language of the
subsection's protection from all “vested rights” to cover only the proportionate voting interests or share of common expenses
appertaining to a parcel, and 2) allowing such amendments not only if provided for in the governing documents themselves, but
also if permitted by chapters 617 or 720, F.S. (the non-profit corporation and homeowners' association chapters, respectively).
C. SECTION DIRECTORY:
Section 1. Amends s. 712.05, F.S., to provide that for a homeowners' association to approve filing of a notice to preserve claims
against extinguishment by marketable record title, the association must do so by a two-thirds vote of its board of directors.
Section 2. Amends s. 712.06, F.S., to allow some requirements of the notice for preservation against marketable record title to
be satisfied by a homeowners' association filing an affidavit affirming that it delivered a statement to each of the associations'
members informing them of a “marketable record title action” by the association; and to deem recorded covenants or restrictions
to be sufficiently described if this notice of marketable title action refers to the book and page where the covenants or restrictions
were recorded.
Section 3. Amends s. 720.303, F.S., to clarify the powers of homeowners' associations.
Section 4. Amends s. 720.306(1)(c), F.S., to narrow the categories of rights of a member of a homeowners' association that are
protected from amendment of the associations' governing documents.
Section 5. States that section 4 of the bill shall not affect vested rights existing prior to the effective date of the bill and these
rights may not be changed without the consent of the parcel owner who owns the rights.
Section 6. Provides an effective date of July 1, 2003.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
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None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
This bill does not appear to require counties or municipalities to take an action requiring the expenditure of funds, does not
appear to reduce the authority that counties or municipalities have to raise revenue in the aggregate, and does not appear to
reduce the percentage of state tax shared with counties or municipalities.
2. Other:
Single-Subject Requirement
Article III, s. 6 of the Florida Constitution provides that “[e]very law shall embrace but one subject and matter properly connected
therewith.” It is possible that a court might find that this bill violates that provision.
In State v. Thompson [FN11] and Heggs v. State, [FN12] the Florida Supreme Court found that a bill containing both a criminal
penalty and a civil cause of action violated the single-subject requirement. The Court has ruled that provisions of a bill must
have a “natural and logical connection” in order to survive single-subject scrutiny. [FN13] A court might possibly find that,
because this bill's provisions affect homeowners' associations, they have such a connection. Conversely, however, a court could
also find that, because this bill's provisions include changes to the marketable record title statutes that affect persons other than
homeowners' association or their members, it lacks such a connection and thus violates the single-subject requirement. In that
case, the likely remedy would be for the court to strike down the entire bill.
B. RULE-MAKING AUTHORITY:
NA
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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On March 18, 2003, the House Committee on Judiciary adopted two amendments to this bill. The first amendment:
• amends s. 712.05, F.S., to provide that for a homeowners' association to approve filing of a notice to preserve claims against
extinguishment by marketable record title, the association must do so by a two-thirds vote of its board of directors;
• amends s. 712.06(1)(b), F.S., to allow the requirements of that paragraph of the statutory notice for preservation against
marketable record title to be satisfied by a homeowners' association filing an affidavit affirming that it delivered a statement to
each of the associations' members informing them of a “marketable record title action” by the association; and
• amends s. 712.06(1)(e), to deem recorded covenants or restrictions to be sufficiently described if this notice of marketable
title action refers to the book and page where the covenants or restrictions were recorded.
The second amendment corrects a typographical error.
The Committee then reported this bill favorably with a committee substitute.
The Committee on Business Regulation adopted two amendments at its meeting on April 14, 2003 and passed the bill favorably
with a committee substitute. The bill w/CS differs from the original bill in the following areas.
• Removes the provision in the bill that would specifically authorize homeowners' associations to be named as representatives
of a class in class action litigation and replaces this language with the requirement that homeowners' associations must obtain
approval of a majority of members prior to initiating litigation in an amount exceeding $100,000.
• States that section 4 of the bill shall not affect vested rights existing prior to the effective date of the bill and these rights may
not be changed without the consent of the parcel owner who owns the rights.
[FN1]. Section 712.04, F.S.
[FN2]. See s. 712.05, F.S.
[FN3]. Section 712.06(1), F.S., provides:
To be effective, the notice above referred to shall contain:
(a) The name or description of the claimant or the homeowners' association desiring to preserve any covenant or restriction
and the name and particular post office address of the person filing the claim or the homeowners' association.
(b) The name and post office address of an owner, or the name and post office address of the person in whose name said
property is assessed on the last completed tax assessment roll of the county at the time of filing, who, for the purpose of such
notice, shall be deemed to be an owner.
(c) A full and complete description of all land affected by such notice, which description shall be set forth in particular terms
and not by general reference, but if said claim is founded upon a recorded instrument or a covenant or a restriction, then the
description in such notice may be the same as that contained in such recorded instrument or covenant or restriction, provided
the same shall be sufficient to identify the property.
(d) A statement of the claim showing the nature, description, and extent of such claim or, in the case of a covenant or restriction,
a copy of the covenant or restriction, except that it shall not be necessary to show the amount of any claim for money or
the terms of payment.
(e) If such claim is based upon an instrument of record or a recorded covenant or restriction, such instrument shall be
sufficiently described to identify the same, including reference to the book and page in which the same is recorded.
(f) Such notice shall be acknowledged in the same manner as deeds are acknowledged for record.
[FN4]. See s. 712.05, F.S.
[FN5]. Section 720.301(7), F.S.
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[FN6]. See s. 720.301(3), F.S.
[FN7]. Section 720.301(4), F.S.
[FN8]. See Sanford v. McClelland, 163 So. 513 (Fla. 1935); Division of Workers' Compensation v. Brevda, 420 So.2d 887 (Fla.
1st DCA 1982). See generally 10 FLA. JUR. 2D CONSTITUTIONAL LAW §§ 331-338.
[FN9]. See Mahood v. Bessemer Properties, Inc., 18 So.2d 775 (Fla. 1944).
[FN10]. See In re Will of Martell, 457 So.2d 1064 (Fla. 2d DCA 1984).
[FN11]. 750 So.2d 643 (Fla. 1999).
[FN12]. 759 So. 2d 620 (Fla. 2000).
[FN13]. Chenoweth v. Kemp, 396 So.2d 1122, 1124 (Fla. 1981) (quoting Board of Public Instruction v. Doran, 224 So.2d
693, 699 (Fla. 1969)).
FL Staff An., H.B. 861, 4/16/2003
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Filing # 193126440 E-Filed 03/01/2024 02:31:48 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, v. CASE NO.: 2020-CA-002942-ON ROYAL OAK HOMES, LLC, a Florida DEFENDANT, ROYAL OAK limited liability company; ADVANCED HOMES, LLC’S, REPLY TO WRAPPING AND CONCRETE PLAINTIFF’S RESPONSE IN SOLUTIONS O$12,717.99 F CENTRAL OPPOSITION TO ROYAL FLORIDA, INC., a Florida corporation; OAK’S MOTION FOR DON KING’S CONCRETE, INC., a Florida PARTIAL SUMMARY corporation; HUGH MACDONALD JUDGMENT AS TO CONSTRUCTION, INC., a Florida PLAINTIFF’S LACK OF corporation; IMPERIAL BUILDING STANDING AS TO ROOF- CORPORATION, a Florida corporation; RELATED CLAIMS PREMIER PLASTERING OF CENTRAL FLORIDA, INC. n/k/a TGK STUCCO, INC., a Florida corporation; WEATHERMASTER BUILDING PRODUCTS, INC., a Florida corporation; WEINTRAUB INSPECTIONS & FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC., a Florida corporation; THE DIMILLO GROUP, LLC, a Florida limited liability company; WOLF’S IRRIGATION & LANDSCAPING, INC., a Florida corporation; SUMMERPARK HOMES, INC., a Florida corporation; BROWN + COMPANY ARCHITECTURE, INC., a Florida corporation; EXPERT PAINTING & PRESSURE WASHING, INC., a Florida corporation, Defendants. 1 135264328.2 / ROYAL OAK HOMES, LLC, a Florida limited liability company, Crossclaim Plaintiff, v. ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC., a Florida corporation; DON KING’S CONCRETE, INC., a Florida corporation; HUGH MACDONALD CONSTRUCTION, INC., a Florida corporation; IMPERIAL BUILDING CORPORATION, a Florida corporation; PREMIER PLASTERING OF CENTRAL FLORIDA, INC. n/k/a TGK STUCCO, INC., a Florida corporation; WEATHERMASTER BUILDING PRODUCTS, INC., a Florida corporation; WEINTRAUB INSPECTIONS & FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC., a Florida corporation; WOLF’S IRRIGATION & LANDSCAPING, INC., a Florida corporation; BROWN + COMPANY ARCHITECTURE, INC., a Florida corporation; EXPERT PAINTING & PRESSURE WASHING, INC., a Florida corporation, Crossclaim Defendants. / WEATHERMASTER BUILDING PRODUCTS, INC., a Florida Corporation; Third-Party Plaintiff, 2 135264328.2 v. ALL GLASS INSTALLATION COPRP., a Florida corporation; CASEY HAWKINS GLASS, INC., a Florida corporation; DEAN NESBIT, LLC, a Florida limited liability company; HELBERG ENGERPRISES, LLC, a Florida limited liability company; HOBBIT WINDOWS, LLC, a Florida limited liability company; T&M CONSTRUCTION OF SANFORD, INC., a Florida corporation; WELL DONE WINDOWS, INC., a Florida corporation; and WELL HUNG WINDOWS & DOORS, LLC, a Florida limited liability company, Third-Party Defendants. / DEFENDANT, ROYAL OAK HOMES, LLC’S, REPLY TO PLAINTIFF’S RESPONSE IN OPPOSITION TO ROYAL OAK’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PLAINTIFF’S LACK OF STANDING AS TO ROOF-RELATED CLAIMS Defendant, Royal Oak Homes, LLC (“Royal Oak”), replies to Plaintiff’s Response in Opposition (“Opposition”) to Royal Oak’s Motion for Partial Summary Judgment as to Plaintiff’s Lack of Standing as to Roof-Related Claims (“Motion”). The Opposition admits Plaintiff’s standing to assert roof-related claims is determined by Plaintiff’s Declaration and Section 720.303(1), Florida Statutes, but fails to cite any specific provision of either the Declaration or Section 720.303(1) that expressly grants Plaintiff standing to sue Royal Oak for roof-related claims for 3 135264328.2 the Villas at Emerald Lake townhomes (“Emerald Lake”). 1 Plaintiff further ignores the clear requirement under Rule 1.221 that Plaintiff’s claims for roof or other building improvement alleged defects are “specifically limited to those improvements for which the association is responsible.” Fla. R. Civ. Pro. 1.221.2 Plaintiff, however, cites no provision of the Declaration, as amended, under this statute and rule expressly providing Plaintiff with responsibility to maintain the Emerald Lake townhome roofs because that provision does not exist. Instead, Plaintiff asks the Court to read the entire Declaration, and all amendments, because Plaintiff does not and cannot cite this Court a specific provision of the Declaration or its amendments that expressly states the Association is responsible for maintenance of the roofs or that the roofs are “Common Areas.” Opposition, p. 10.3 Again, Plaintiff sends the Court on this search because no such 1 As in the Motion, “Declaration” means the Declaration of Covenants and Restrictions of the Villas at Emerald Lake and the “First Amendment” means the First Amendment to the Declaration, certified copies of which were attached as Exhibits A and B, respectively, to the Motion. 2 The Motion relies upon Rule 1.221 for its argument that Plaintiff lacks standing to assert its roof- related claims. Motion, pp. 14-18. Plaintiff’s complete failure to even address Rule 1.221 in the Opposition is reason enough for the Court to reject the Opposition’s arguments and grant the Motion. 3 “Common Areas” is a defined term under the Declaration and First Amendment. It means “all real property which is new and hereafter owned by the Association or dedicated for use or maintenance by the Association or its members by a recorded plat or this Declaration.” Motion, n. 4, Ex. A, ¶ 1.5 (emphasis added). Even Plaintiff admits the townhome owners own their townhomes and, hence, the roofs of those townhomes, not Plaintiff. See Second Amended Complaint, ¶ 43. Plaintiff presents this Court with no evidence the Emerald Lake townhome roofs were “dedicated” for use by the Association in a recorded plat. Thus, the townhome roofs are not “Common Areas.” 4 135264328.2 provision exists.4 Rather, the First Amendment, under “Owner Maintenance,” expressly provides the Emerald Lake townhome owners – not Plaintiff – are “responsible for repair and replacement of all roof damaged (sic) caused by anything other than normal wear and tear….” See First Amendment, ¶ 7.2, cited in the Motion as Exhibit B and attached to this reply.5 (emphasis added); Motion, ¶¶ 3-4. Plaintiff is therefore not “responsible” for the roofs under Section 720.303(1) or Rule 1.221 and has no standing to assert Plaintiff’s roof-related claims. Fla. Stat. § 720.303(1); Fla. R. Civ. Pro. 1.221; Motion, pp.11-18. Plaintiff, not Royal Oak, asks this Court to violate what Plaintiff recognizes is a fundamental principle of statutory (and contract) construction that “no part …, not even a single word, should be ignored, read out of the text, or rendered meaningless, in construing the provision.” Opposition, pp. 20-21 (citations omitted); Motion, pp. 13-14, 15-17. Plaintiff’s arguments, in sum, ask this Court to ignore paragraph 7.2, and read it out of the First Amendment that expressly makes 4 Plaintiff even inserts Article V, Section 2 of the Master Declaration for single-family home and/or townhome communities that includes Emerald Lake, even though that Section nowhere references roofs, much less the Emerald Lake townhome roofs. Opposition, p. 11. Plaintiff quotes this section’s reference to “Common Property,” which Plaintiff does not define, but which does not include the Emerald Lake townhomes or their roofs. Plaintiff also references the Second Amendment’s obligation for the Association to purchase “any structural [insurance] policy” for the Emerald Lake townhomes. Opposition, p. 12. Plaintiff, however, provides no evidence this policy was purchased by the Association, or what it covered if purchased, and provides no expert testimony that there were structural issues with the Emerald Lake townhome roofs that might fall under such a policy, if it exists. 5 Due to a filing error, Exhibit B to the Motion (the First Amendment) was inadvertently not attached to the Motion. Royal Oak therefore attaches Exhibit B to this reply. 5 135264328.2 townhome owners responsible for maintenance of their roofs for anything other than normal wear and tear defined as “all roof damage[d] [sic]” caused by anything else. See First Amendment attached hereto as Ex. B, at ¶ 7.2. Plaintiff’s arguments further ask this Court to ignore and read out of Section 720.303(1) and Rule 1.221 the express limitation on Plaintiff’s right to sue on behalf of owners for claims about their roofs only if the Association is responsible to maintain them, which is not the case here. Fla. Stat. § 720.303(1); Fla. R. Civ. Pro. 1.221. This is the essence of Plaintiff’s arguments, and for this fundamental reason, the Court must reject the Opposition and grant the Motion. I. Plaintiff’s Misrepresentation of Fact and Expert Testimony, and Statutes other than Section 720.303, Do Not Have any Bearing on Plaintiff’s Standing Under the Clear Language of the First Amendment. Plaintiff’s “Background and Introduction” section asserts that Royal Oak is “the developer,” which makes Royal Oak a party to the Declaration and its amendments, contrary to Plaintiff’s later argument.6 Opposition, p. 3, ¶ 4, pp. 16-17. In any event, Plaintiff misrepresents that Royal Oak is relying on “its own interpretation” of the First Amendment, or “parole evidence,” to demonstrate 6 Plaintiff alleges that Royal Oak owes a “statutory duty” to the public to comply with the Florida Building Code. Opposition, p. 3, ¶ 4. Plaintiff cites no statute for this alleged obligation because it does not exist. Plaintiff also alleges Royal Oak owes a “common law duty to supervise” but cites no evidence to support this alleged duty or Royal Oak’s failure to comply with any standard of care in the industry. Opposition, pp. 3-4, ¶ 5. Finally, Plaintiff alleges the “Project” was “constructed with numerous Code violations.” Id., ¶ 6. This is Plaintiff’s unproven allegation, unsupported by any evidence citation and strongly disputed by Royal Oak. 6 135264328.2 Plaintiff lacks standing to assert roof-related claims against Royal Oak. Plaintiff Opposition, pp. 16-17. Royal Oak actually requests this Court to enforce the express, written language of the First Amendment that provides owners, not Plaintiff, are responsible for maintenance and repair of their roofs for anything other than normal wear and tear defined as “all roof damage[d] [sic]” caused by anything else. See First Amendment attached as Ex. B to Motion, at ¶ 7.2. The construction of this provision is a matter of law for the Court. Abel Homes at Naraja Villas, LLC v. Hernandez, 960 So. 2d 891, 893-94 (Fla. 3d DCA 2007); Gray v. D & J Industries, Inc., 875 So. 2d 683, 683 (Fla. 3d DCA 2004). Plaintiff further mispresents the testimony of its expert, Mr. Martin, to suggest the alleged replacement of roofs is required to perform repairs to other parts of the Emerald Lake townhomes like their exterior walls. Opposition, pp. 13-14.7 Plaintiff first asks the Court to read Mr. Martin’s entire deposition transcripts for evidentiary support Plaintiff cannot provide before turning to record citations where Mr. Martin only discussed the roofs themselves. Id. Mr. Martin’s actual testimony is that there was no damage at all at the four roof shingle locations tested at the lower and upper roofs in Emerald Lake, thus, no reason to remove those roofs. (Martin Dep., Vol I, 7 Royal Oak does not agree there is any damage at the exterior stucco walls, certainly not throughout Emerald Lake as alleged by Plaintiff, and Plaintiff specifically refers to no actual damage at any specific exterior stucco wall location in its Opposition because it is irrelevant to Royal Oak’s Motion. 7 135264328.2 174:7-16; 179:9-19; 180:21-25, 181:1, 182:8-25, 193:1-2). 8 This testimony, however, is irrelevant to the standing issue. Standing is established by the clear language in paragraph 7.2 of the First Amendment placing responsibility for the roofs on the townhome owners. Plaintiff turns to this section or paragraph of the First Amendment for the first time at page 15, focusing only on the words “normal wear and tear” in that paragraph, and apparently claiming these four words read in isolation mean the Association is responsible for maintenance and repair of the roofs. Opposition, pp. 15-16. But paragraph 7.2 of the First Amendment defines what “normal wear and tear” is by defining what it is not, namely, “all roof damage[d] [sic]” caused by anything else. See First Amendment attached as Ex. B to Motion, at ¶7.2 (emphasis added). Plaintiff alleges code violations in the Emerald Lake townhome roof installations that caused damage – though Mr. Martin admits there is no actual damage at the low and high roofs – and those allegations plainly represent roof damage “caused by” something other than “normal wear and tear.” Plaintiff, therefore, has no standing to assert roof claims for the Emerald Lake townhomes. 8 Mr. Martin only found damage at one roof diverter flashing location (the other two such locations tested had no damage), but there was no damage to the lower and upper roofs themselves in Emerald Lake. And, Mr. Martin admitted the roof diverter flashing existed at only the low roofs and such flashing could be replaced without taking off the entire lower roof, any other lower roof, and certainly without replacing the upper roofs at Emerald Lake. Motion, p, 10, Martin Dep., Vol. I, 183:3-24. 8 135264328.2 Plaintiff’s further reliance on the testimony of Mr. Treadwell, Plaintiff’s corporate representative, is misplaced. Plaintiff cites only a few lines of an answer to a single, undisclosed question that fails to bring to the Court’s attention the full context of his testimony relative to Plaintiff’s standing to assert roof-related claims. Opposition, pp. 15-16. When these lines are placed in that context, his testimony supports Royal Oak’s Motion. First, Mr. Treadwell testified to the quoted “caveat” in the context of determining the useful lives of the roofs for setting reserves. (Assoc. Corp. Rep. Dep., 165:5-25, 166:1-23). He admitted this “caveat” about setting reserves was not included in paragraph 7.2 of the First Amendment and that he did not tell the owners about this in 2018 when he told them they needed to get roof insurance because they were responsible to maintain and repair their roofs. (Id., 166:24-25, 167:1-18; 146:24-25, 147:1-2; 13-21; 169:3-7; 170:8-20; Dep. Ex. 142).9 He further admitted the Association was only responsible for roof replacement at the end of their useful lives. (Id., 164:23-25, 165:1-4). He admitted Plaintiff specifically identified “replacement” as the purpose of reserves for roofs in Plaintiff’s reserve calculations, not roof maintenance or repairs. (Id., 38:13-15; 256:17-25, 257:1-13; 258:24-25, 9 Plaintiff claims this is an “inaccurate inference.” Opposition, p. 17. It not an “inference” at all, it is exactly what Plaintiff’s Corporate Representative admittedly said to the townhome owners Plaintiff claims to represent. 9 135264328.2 259:1; Dep. Ex. 166). The Association’s Corporate Representative’s deposition testimony, in context, supports Royal Oak’s Motion. Plaintiff next claims Plaintiff has incurred “damages” associated with roof repairs required as a result of the alleged construction defects in accordance with the Declaration. Opposition, pp. 17-8. First, Plaintiff’s Corporate Representative testified at Plaintiff’s citation that he was unaware of any repairs or remediation work. (Assoc. Corp. Rep., 76:9-77:2). Second, Plaintiff attaches as Composite Exhibit C two notices of repair from the Ball Janik law firm in 2021, after this lawsuit was filed, for two isolated, alleged roof leaks in roofs installed on two of the 76 townhomes between 2014 and 2017. Opposition, p.17.10 None of the attached roof leak repair proposals identify any alleged construction defect as the reason for the alleged roof leak repair. One includes the statement to repair shingles “lifted by wind damage.” Finally, the fact that Plaintiff volunteered to repair isolated roof leaks the owners were responsible for under paragraph 7.2 of the First Amendment does not establish Plaintiff’s standing to sue Royal Oak for roof-related claims. See City of Miami v. Keton, 115 So.2d 547, 551 (Fla. 1959) (the voluntary payment doctrine provides that “where one makes a payment of any sum under a claim of right with knowledge of the facts such a payment is voluntary and cannot be recovered.”) 10 Plaintiff does nothing to authenticate the notices of repair in Exhibit C. And the last notice of repair is for an alleged stucco wall waterproof repair at the foundation below a single window at one townhome where the apparent reason for the waterproofing from the repair recommendation was “to cut the shrubs down in front of the building to allow the sprinklers to spray above them.” 10 135264328.2 Plaintiff argues that it has standing under Section 553.84 simply because Plaintiff filed a Section 553.84 claim against Royal Oak. Opposition, p.18. That statute permits any “person or party” damaged as a result of violation of that part or the code to sue the party who committed the violation. §553.84, Fla. Stat. It still requires the claimant to show the claimant was “damaged.” Id. That Plaintiff cannot do here because the townhome owners are responsible for maintenance and repair of their roofs for anything other than normal wear and tear defined as “all roof damage[d] [sic]” caused by anything else. See First Amendment attached as Ex. B to Royal Oak Motion, at ¶7.2. II. Plaintiff Members Cannot Vote and Did Not Vote to Give Standing to Plaintiff to Sue Royal Oak for Roof-Related Claims. Plaintiff argues the Association and its members determined that they had standing to sue Royal Oak for roof-related claims because “they” determined it was a matter of “common interest” and voted for it. Opposition, pp. 19-20. This argument is without merit. First, Plaintiff itself cannot determine what is a “common interest.” Nothing in Section 720.303(1) or Rule 1.221 gives Plaintiff that right to determine it.11 As 11 The cases Plaintiff cites in support of its position are inapposite. Two of the cited cases, Charley Toppino & Sons, Inc.v. Seawatch at Marathon Condo. Ass’n, Inc., 658 So. 2d 922, 923 (Fla. 1994) and Allied Tube & Conduit Corp. v. Latitude on River Condo. Ass'n, Inc., 3D19-2044, 2020 WL 3444902, at *1 (Fla. 3d DCA June 24, 2020), involve condominium associations, which are governed by a different statute. Another case cited by Plaintiff, (Homeowner’s Ass’n of Overlook, Inc. v. Seabrooke Homeowners’ Ass’n, Inc., 62 So.3d 667, 669 (Fla. 2d DCA 2011), involved clear common area issues, namely maintenance of roads within the development. The last case cited by 11 135264328.2 explained above, Section 720.303(1) and Rule 1.221 expressly limit Plaintiff’s right sue for owners for claims about their roofs only if the Association is responsible to maintain them, which is not the case here. §720.303(1), Fla. Stat.; Fla. R. Civ. Pro. 1.221. Plaintiff, by its own cited authorities, cannot ignore this express language in this statute and rule by reading it out of the statute and rule, which is what Plaintiff does when it asserts it can determine what is a “common interest” providing Plaintiff standing. Opposition, pp. 20-21 (citations omitted); Motion, pp. 14-18 (citations omitted). Second, Plaintiff claims that the Florida Staff Analysis for the amendment to Section 720.301(1) that added the requirement for a membership vote for certain association litigation on their behalf express the intent to “grant standing” to the Association as a result of this vote. Opposition, p. 21. Plaintiff fails to provide this Court or authenticate the referenced Staff Analysis probably because the Staff Analysis expresses no such legislative intent.12 Finally, Plaintiff’s reliance on this membership “vote” is interesting given that the meeting was held via Zoom, lasted 16 minutes, was led by Ball Janik, there is no Plaintiff, Maronda Homes, Inc. of Florida v. Lakeview Reserve Homeowners’ Ass’n, Inc., 127 So. 3d 1258, 1261 (Fla. 2013), involved an implied warranties claim that the Florida Legislature has since amended. 12 Royal Oak has attached the referenced Staff Analysis to this Reply as Exhibit A so the Court can see for itself that it nowhere states the legislative intent to grant standing to the association as a result of a favorable vote by the membership to initiate litigation. The word “standing” is not even used by the Staff Analysis. 12 135264328.2 record of the members actually present or how they individually voted, and the vote was about recouping funds for some unknown construction defect when Plaintiff admittedly had spent no such funds. (Corp. Rep. Dep., 212-213:1, 15-22; 214-215:1- 6, 16-22; 216:17-20; 217-219:1-24; 220:4-11; 221:17-22:10; 227:13-25). There is no record the members actually present on this 16-minute Zoom meeting led by Ball Janik had any idea that the action included roof-related claims. Plaintiff’s argument that the membership vote approved such roof-related claims is unsupported by the record and, thus, without merit. III. Conclusion. For all the above reasons, Royal Oak respectively requests that this Court grant Royal Oak’s Motion, reject the Plaintiff’s Opposition, and enter partial summary judgment in Royal Oak’s favor and against Plaintiff on Plaintiff’s roof- related claims for lack of standing. Respectfully submitted, /s/ J. Michael Walls James Michael Walls Florida Bar No. 706272 Luis Prats Florida Bar No. 329096 Robin H. Leavengood Florida Bar No. 0547751 Fiona E. Foley Florida Bar No. 118668 Alexa M. Nordman Florida Bar No. 1025863 CARLTON FIELDS, P.A. 13 135264328.2 4221 W. Boy Scout Boulevard Tampa, FL 33607-5780 Telephone: (813) 223-7000 Facsimile: (813) 229-4133 mwalls@carltonfields.com lprats@carltonfields.com rleavengood@carltonfields.com anordman@carltonfields.com slambe@carltonfields.com ffoley@carltonfields.com Counsel for Royal Oak Homes, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 1, 2024, the foregoing was electronically filed with the Clerk of the Court by using the E-filing Portal, which will electronically serve this document to all registered counsel of record. /s/ J. Michael Walls Attorney 14 135264328.2 EXHIBIT A Florida Staff Analysis, H.B. 861, 4/16/2003, Florida Staff Analysis, H.B. 861, 4/16/2003... FL Staff An., H.B. 861, 4/16/2003 House of Representatives Staff Analysis, House Bill 861 April 16, 2003 Florida House of Representatives 2003 Regular Session BILL #: HB 861 w/CS Homeowners Associations SPONSOR(S): Bilirakis TIED BILLS: none IDEN./SIM. BILLS: SB 1410 REFERENCE ACTION ANALYST STAFF DIRECTOR 1) Judiciary 17 Y, 0 N w/CS Jaroslav Havlicak 2) Business Regulation 28 Y, 0 N w/CS Livingston Liepshutz 3) 4) 5) SUMMARY ANALYSIS Current law provides that a homeowners' association may file a recorded notice to prevent extinguishment of a covenant or restriction by marketable record title. The notice must be approved by a majority vote of the association's members. The bill provides that notice must instead be approved by a two-thirds vote of its board of directors. This bill also allows for some content requirements of the statutory notice for preservation against marketable record title to be satisfied by a homeowners' association filing an affidavit affirming that it delivered a statement to each of the associations' members informing them of a “marketable record title action” by the association. Additionally, this bill deems recorded covenants or restrictions to be sufficiently described if the notice to preserve against marketable title refers to the book and page where the covenants or restrictions were recorded. This bill also makes several changes to chapter 720, F.S., the law governing homeowners' associations. These include: • providing a non-exclusive list of “matters of common interest” to members of a homeowners' association upon which the association may institute, maintain, settle, or appeal actions or hearing in its name on behalf of all members; • specifically authorizing homeowners' associations to defend eminent domain and inverse condemnation actions; • requires that homeowners' associations must obtain approval of a majority of members prior to initiating litigation in an amount exceeding $100,000; and © 2024 Thomson Reuters. No claim to original U.S. Government Works. 1 Florida Staff Analysis, H.B. 861, 4/16/2003, Florida Staff Analysis, H.B. 861, 4/16/2003... • narrowing the category of rights of a member of a homeowners' association that are protected from later amendments to the association's governing documents, or from changes in the law. The bill states that these provisions of the bill shall not affect vested rights existing prior to the effective date of the bill and these rights may not be changed without the consent of the parcel owner who owns the rights. This bill does not appear to have a fiscal impact on state or local governments. FULL ANALYSIS I. SUBSTANTIVE ANALYSIS A. DOES THE BILL: 1. Reduce government? Yes[] No[] N/A[x] 2. Lower taxes? Yes[] No[] N/A[x] 3. Expand individual freedom? Yes[] No[x] N/A[] 4. Increase personal responsibility? Yes[] No[] N/A[x] 5. Empower families? Yes[] No[] N/A[x] For any principle that received a “no” above, please explain: This bill transfers authority to file a notice preserving claims against marketable record title from the members of a homeowners' association to the associations' board of directors. B. EFFECT OF PROPOSED CHANGES: Present Situation: Marketable Record Title Under s. 712.02, F.S., an owner of real property who, alone or with predecessors in title, has held any estate in land of record for 30 years or more is said to have “marketable record title” to that estate. This title is free and clear of all claims other than the following exceptions to marketability expressly included in s. 712.03, F.S.: (1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which the estate is based beginning with the root of title; provided, a general reference in any of such muniments to easements, use restrictions or other interests created prior to the root of title shall not be sufficient to preserve them unless specific identification by reference to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued the easement, use restrictions or other interests; subject, however, to the provisions of subsection (5). (2) Estates, interests, claims, or charges, or any covenant or restriction, preserved by the filing of a proper notice in accordance with the provisions hereof. (3) Rights of any person in possession of the lands, so long as such person is in such possession. (4) Estates, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title. (5) Recorded or unrecorded easements or rights, interest or servitude in the nature of easements, rights-of-way and terminal facilities, including those of a public utility or of a governmental agency, so long as the same are used and the use of any part © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2 Florida Staff Analysis, H.B. 861, 4/16/2003, Florida Staff Analysis, H.B. 861, 4/16/2003... thereof shall except from the operation hereof the right to the entire use thereof. No notice need be filed in order to preserve the lien of any mortgage or deed of trust or any supplement thereto encumbering any such recorded or unrecorded easements, or rights, interest, or servitude in the nature of easements, rights-of-way, and terminal facilities. However, nothing herein shall be construed as preserving to the mortgagee or grantee of any such mortgage or deed of trust or any supplement thereto any greater rights than the rights of the mortgagor or grantor. (6) Rights of any person in whose name the land is assessed on the county tax rolls for such period of time as the land is so assessed and which rights are preserved for a period of 3 years after the land is last assessed in such person's name. (7) State title to lands beneath navigable waters acquired by virtue of sovereignty. (8) A restriction or covenant recorded pursuant to chapter 376 [land reclamation] or chapter 403 [environmental control]. All other “estates, interests, claims, or charges” are extinguished by marketable record title, [FN1] except if a person claiming such an interest files for record a notice within the 30-year statutory period, [FN2] the contents of which are specified in s. 712.06(1), F.S. [FN3] A homeowners' association may file such a notice only if approved by a majority vote at a meeting of its membership where a quorum is present. [FN4] Present Situation: Homeowners' Associations A homeowners' association is “a Florida corporation responsible for the operation of a community ... in which the voting membership is made up of parcel owners or their agents, or a combination thereof.” [FN5] A community is defined as all real property that is or will be subject to a recorded declaration of covenants; [FN6] a declaration of covenants is, in turn, a “written instrument ... which subjects the land comprising the community to the jurisdiction and control of an association ... in which the owners of the parcels, or their association representatives, must be members.” [FN7] Section 720.301(6), F.S., defines the “[g]overning documents” of a community subject to a homeowners' association as: (a) The recorded declaration of covenants for a community, and all duly adopted and recorded amendments, supplements, and recorded exhibits thereto; and (b) The articles of incorporation and bylaws of the homeowners' association, and any duly adopted amendments thereto. Section 720.306, F.S., governs meetings of the members of a homeowners' association. In general, s. 720.306(1)(b), F.S., provides that governing documents of a homeowners' association may be amended by a vote of two-thirds of the total voting interests in the association, unless otherwise forbidden by law or by the governing documents themselves. However, s. 720.306(1)(c), F.S., also specifies that: Unless otherwise provided in the governing documents as originally recorded, an amendment may not affect vested rights unless the record owner of the affected parcel and all record owners of liens on the affected parcels join in the execution of the amendment. A “vested right” is either an immediate right of present enjoyment or a present, fixed, future right of enjoyment. [FN8] It is a property interest that may not be taken without due process of law. [FN9] To be considered “vested,” a right must have become a title, either legal or equitable, to the present or future enforcement of a demand. [FN10] Proposed Changes The bill amends s. 712.05, F.S., to provide that for a homeowners' association to approve filing of a notice to preserve claims against extinguishment by marketable record title, the association must do so by a two-thirds vote of its board of directors. The bill also amends s. 712.06(1)(b), F.S., to allow the requirements of that paragraph of the statutory notice for preservation against marketable record title to be satisfied by a homeowners' association filing an affidavit affirming that it delivered a © 2024 Thomson Reuters. No claim to original U.S. Government Works. 3 Florida Staff Analysis, H.B. 861, 4/16/2003, Florida Staff Analysis, H.B. 861, 4/16/2003... statement, the language of which is provided in the bill, to each of its members. This statement informs the members of a “marketable record title action” by the homeowners' association. The bill further amends s. 712.06(1)(e), to deem recorded covenants or restrictions to be sufficiently described if this notice of marketable title action refers to the book and page where the covenants or restrictions were recorded. Additionally, this bill amends s. 720.303, F.S., to do the following: • provide a non-exclusive list of “matters of common interest” to members of a homeowners' associations, upon which the association may “institute, maintain, settle, or appeal actions or hearing in its name on behalf of all members”; • specifically authorize homeowners' associations to defend eminent domain and inverse condemnation actions; • requires that homeowners' associations must obtain approval of a majority of members prior to initiating litigation in an amount exceeding $100,000; and • make clear that these provisions do not limit the preexisting rights of individual members of a homeowners' association. Finally, the bill considerably narrows the scope of rights of a member of a homeowners' association that s. 720.306(1)(c), F.S., protects from later amendments to the association's governing documents. This bill does this by: 1) changing the language of the subsection's protection from all “vested rights” to cover only the proportionate voting interests or share of common expenses appertaining to a parcel, and 2) allowing such amendments not only if provided for in the governing documents themselves, but also if permitted by chapters 617 or 720, F.S. (the non-profit corporation and homeowners' association chapters, respectively). C. SECTION DIRECTORY: Section 1. Amends s. 712.05, F.S., to provide that for a homeowners' association to approve filing of a notice to preserve claims against extinguishment by marketable record title, the association must do so by a two-thirds vote of its board of directors. Section 2. Amends s. 712.06, F.S., to allow some requirements of the notice for preservation against marketable record title to be satisfied by a homeowners' association filing an affidavit affirming that it delivered a statement to each of the associations' members informing them of a “marketable record title action” by the association; and to deem recorded covenants or restrictions to be sufficiently described if this notice of marketable title action refers to the book and page where the covenants or restrictions were recorded. Section 3. Amends s. 720.303, F.S., to clarify the powers of homeowners' associations. Section 4. Amends s. 720.306(1)(c), F.S., to narrow the categories of rights of a member of a homeowners' association that are protected from amendment of the associations' governing documents. Section 5. States that section 4 of the bill shall not affect vested rights existing prior to the effective date of the bill and these rights may not be changed without the consent of the parcel owner who owns the rights. Section 6. Provides an effective date of July 1, 2003. II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT A. FISCAL IMPACT ON STATE GOVERNMENT: 1. Revenues: None. 2. Expenditures: © 2024 Thomson Reuters. No claim to original U.S. Government Works. 4 Florida Staff Analysis, H.B. 861, 4/16/2003, Florida Staff Analysis, H.B. 861, 4/16/2003... None. B. FISCAL IMPACT ON LOCAL GOVERNMENTS: 1. Revenues: None. 2. Expenditures: None. C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR: None. D. FISCAL COMMENTS: None. III. COMMENTS A. CONSTITUTIONAL ISSUES: 1. Applicability of Municipality/County Mandates Provision: This bill does not appear to require counties or municipalities to take an action requiring the expenditure of funds, does not appear to reduce the authority that counties or municipalities have to raise revenue in the aggregate, and does not appear to reduce the percentage of state tax shared with counties or municipalities. 2. Other: Single-Subject Requirement Article III, s. 6 of the Florida Constitution provides that “[e]very law shall embrace but one subject and matter properly connected therewith.” It is possible that a court might find that this bill violates that provision. In State v. Thompson [FN11] and Heggs v. State, [FN12] the Florida Supreme Court found that a bill containing both a criminal penalty and a civil cause of action violated the single-subject requirement. The Court has ruled that provisions of a bill must have a “natural and logical connection” in order to survive single-subject scrutiny. [FN13] A court might possibly find that, because this bill's provisions affect homeowners' associations, they have such a connection. Conversely, however, a court could also find that, because this bill's provisions include changes to the marketable record title statutes that affect persons other than homeowners' association or their members, it lacks such a connection and thus violates the single-subject requirement. In that case, the likely remedy would be for the court to strike down the entire bill. B. RULE-MAKING AUTHORITY: NA C. DRAFTING ISSUES OR OTHER COMMENTS: None. IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES © 2024 Thomson Reuters. No claim to original U.S. Government Works. 5 Florida Staff Analysis, H.B. 861, 4/16/2003, Florida Staff Analysis, H.B. 861, 4/16/2003... On March 18, 2003, the House Committee on Judiciary adopted two amendments to this bill. The first amendment: • amends s. 712.05, F.S., to provide that for a homeowners' association to approve filing of a notice to preserve claims against extinguishment by marketable record title, the association must do so by a two-thirds vote of its board of directors; • amends s. 712.06(1)(b), F.S., to allow the requirements of that paragraph of the statutory notice for preservation against marketable record title to be satisfied by a homeowners' association filing an affidavit affirming that it delivered a statement to each of the associations' members informing them of a “marketable record title action” by the association; and • amends s. 712.06(1)(e), to deem recorded covenants or restrictions to be sufficiently described if this notice of marketable title action refers to the book and page where the covenants or restrictions were recorded. The second amendment corrects a typographical error. The Committee then reported this bill favorably with a committee substitute. The Committee on Business Regulation adopted two amendments at its meeting on April 14, 2003 and passed the bill favorably with a committee substitute. The bill w/CS differs from the original bill in the following areas. • Removes the provision in the bill that would specifically authorize homeowners' associations to be named as representatives of a class in class action litigation and replaces this language with the requirement that homeowners' associations must obtain approval of a majority of members prior to initiating litigation in an amount exceeding $100,000. • States that section 4 of the bill shall not affect vested rights existing prior to the effective date of the bill and these rights may not be changed without the consent of the parcel owner who owns the rights. [FN1]. Section 712.04, F.S. [FN2]. See s. 712.05, F.S. [FN3]. Section 712.06(1), F.S., provides: To be effective, the notice above referred to shall contain: (a) The name or description of the claimant or the homeowners' association desiring to preserve any covenant or restriction and the name and particular post office address of the person filing the claim or the homeowners' association. (b) The name and post office address of an owner, or the name and post office address of the person in whose name said property is assessed on the last completed tax assessment roll of the county at the time of filing, who, for the purpose of such notice, shall be deemed to be an owner. (c) A full and complete description of all land affected by such notice, which description shall be set forth in particular terms and not by general reference, but if said claim is founded upon a recorded instrument or a covenant or a restriction, then the description in such notice may be the same as that contained in such recorded instrument or covenant or restriction, provided the same shall be sufficient to identify the property. (d) A statement of the claim showing the nature, description, and extent of such claim or, in the case of a covenant or restriction, a copy of the covenant or restriction, except that it shall not be necessary to show the amount of any claim for money or the terms of payment. (e) If such claim is based upon an instrument of record or a recorded covenant or restriction, such instrument shall be sufficiently described to identify the same, including reference to the book and page in which the same is recorded. (f) Such notice shall be acknowledged in the same manner as deeds are acknowledged for record. [FN4]. See s. 712.05, F.S. [FN5]. Section 720.301(7), F.S. © 2024 Thomson Reuters. No claim to original U.S. Government Works. 6 Florida Staff Analysis, H.B. 861, 4/16/2003, Florida Staff Analysis, H.B. 861, 4/16/2003... [FN6]. See s. 720.301(3), F.S. [FN7]. Section 720.301(4), F.S. [FN8]. See Sanford v. McClelland, 163 So. 513 (Fla. 1935); Division of Workers' Compensation v. Brevda, 420 So.2d 887 (Fla. 1st DCA 1982). See generally 10 FLA. JUR. 2D CONSTITUTIONAL LAW §§ 331-338. [FN9]. See Mahood v. Bessemer Properties, Inc., 18 So.2d 775 (Fla. 1944). [FN10]. See In re Will of Martell, 457 So.2d 1064 (Fla. 2d DCA 1984). [FN11]. 750 So.2d 643 (Fla. 1999). [FN12]. 759 So. 2d 620 (Fla. 2000). [FN13]. Chenoweth v. Kemp, 396 So.2d 1122, 1124 (Fla. 1981) (quoting Board of Public Instruction v. Doran, 224 So.2d 693, 699 (Fla. 1969)). FL Staff An., H.B. 861, 4/16/2003 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. © 2024 Thomson Reuters. No claim to original U.S. Government Works. 7 EXHIBIT B Electronically Certified Official Record (Cover Page) This cover page is for informational purposes only and is not a requirement when presenting the Electronic Certified Document. Directly below the cover page, at the bottom of page 1, you will find the digital signature bearing the identity and authority of the Clerk. On the left side of each page is a unique code identifying the electronic certification for this document. Agency Name: Osceola County Clerk of the Circuit Court Clerk of the Circuit Court: The Honorable Kelvin Soto, Esq. 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