The Enclave at Heron Bay: HOA rules, fees and closing points

A second estoppel, a $500 fee from the buyer, and the seller's arrears paid in full.

• Two estoppel certificates, from The Enclave at Heron Bay Association, Inc. and from the master association. The declaration adds its own certificate of whether the owner is in default, due within 15 days of a written request by an owner or Institutional Lender, which protects a buyer or lender who relies on it (Declaration § 10.1.8, p. 20). Chapter 720 requires each association to issue its estoppel certificate within 10 business days of a written or electronic request, and that period controls a request made under the statute (Fla. Stat. § 720.30851).
• A $500 Sales and Transfer Fee, paid by the buyer. "The Association shall have the right to impose a fee, to be remitted by the purchaser, in an amount equal to Five Hundred ($500.00) Dollars in connection with any sale, or other voluntary transfer of a Lot" (Declaration § 7.38, added by Instr 102979217, p. 1). How it was adopted raises questions (see the title points), but expect it on the estoppel.
• Working capital of two months' assessments is due "upon the first to occur of the next conveyance of the LOT or the first occupancy of the UNIT" after the certificate of occupancy (Declaration § 9.4, p. 18) — as written, a one-time, first-sale charge. If the estoppel shows it on a resale, ask what the association relies on.
• The seller's arrears. Each owner is responsible for the prior owner's unpaid assessments (Declaration § 9.1, p. 17), and a buyer other than a foreclosing first mortgagee is liable for all of them and may not occupy the home or use the common areas until they are paid (§ 10.1.6, p. 20).
• Proof of the owner's insurance, which the declaration requires (see below), and copies of any lease on a tenant-occupied sale (§ 7.18, p. 14).

Two master charges tied to The Enclave were developer-era and are not resale charges: the $1,000 Initial Capital Contribution per home that Supplement No. 7 set for Parcel D (Instr 98415355, p. 2), and a $1,000 marketing fee the master's Sixth Amendment had third-party homebuilders here pay the Declarant on each home's first sale (OR 30932/1798, pp. 1–2; re-recorded at OR 30962/1492). The master's resale Capital Payment is separate and still applies (master page).

Yes, for at least six months. Leases must be in writing and copies delivered to the association before the tenant moves in. No lease may be shorter than six months "without the consent of the APPROVING PARTY", and the Approving Party may require the owner to escrow up to one month's rent against tenant damage (Declaration § 7.18, p. 14). The Approving Party is the Declarant while it owns any lot or until it assigns the role, then the association (§ 1.1, p. 2). No one approves the tenant.

The master's rule applies on top: one lease in any 12 months, tenants registered before they move in (master page).

The six-month rule dates from 2000, and no leasing amendment is in our set, which runs only to 2003. One adopted after 1 July 2021 would generally bind only owners who take title after it or consent to it. An amendment limiting leases shorter than six months, or barring more than three rentals in a calendar year, would apply to every owner (Fla. Stat. § 720.306(1)(h)). Any leasing amendment would need two-thirds of the owners plus approval of Institutional Lenders holding mortgages on at least half of the mortgaged lots (Declaration §§ 12.1, 12.4, p. 23). For an investor buyer we search forward from 2003 first.

The owner keeps up and insures the house; the association keeps up the grounds. Beyond that the clauses pull different ways, so ask the association what it actually does.

• The association maintains all landscaping throughout the property, including mowing, trimming and fertilizing; utility lines except those serving one lot; sprinklers "except for wells, pipes and sprinkler systems serving the fenced or walled-in area of any LOT"; the surface water system; and the common sidewalks and street lighting (Declaration §§ 5.1.2–5.1.6, pp. 8–9).
• The owner maintains the home and everything on the lot, including "roofs and walls (except for periodic painting and cleaning to be performed by the ASSOCIATION), doors, garage doors, windows, patio areas, pools, screenings, awnings" (§ 5.2, p. 9).
• Where they conflict. Section 5.2 assumes the association paints and cleans, but § 5.1 gives it no such duty, unlike The Pointe's declaration. Section 5.3 makes the association responsible for "exterior building surfaces" and for paved and landscaped areas outside enclosed private yards, to the City of Coral Springs' code standard, which the City may enforce and charge to owners pro rata (p. 9). And § 7.17 has each owner "maintain the landscaping on his LOT" (p. 14), against § 5.1.2's "all landscaping". The estoppel or the manager should say who paints, cleans roofs and keeps the yards.
• Insurance is the owner's. Each owner insures the home for its replacement cost. If proof is not given within 10 days of written demand, the association may buy the insurance at the owner's expense, and it "shall have no interest in any insurance proceeds" (§ 7.15, pp. 13–14). The association's hazard insurance covers the common areas and its own property (§ 3.7.1, p. 5). Ask about any force-placed premium.
• Zero walls. A wall within 4 feet of a lot line is a "ZERO WALL", and the neighboring lot carries a 4-foot maintenance easement for it. The zero wall's owner may enter on 24 hours' written notice, 7:00 a.m. to 7:00 p.m. Monday through Friday, or at any time in an emergency; the neighbor may not attach anything to the wall or paint it without consent, or excavate in the easement (Declaration §§ 8.1–8.3, pp. 16–17). An easement covers the original construction's encroachments and overhangs into the neighboring lot, but gives no right to encroach further (§ 8.4, p. 17). A survey should show these walls.

• How the $500 fee was adopted. The certificate recites a membership meeting on 22 April 2003 at which the declaration was amended "with an affirmative vote of not less than TWO-THIRDS (2/3) of the membership", and also that the amendment "has been proposed and adopted by unanimous vote of the Board of Directors" (Instr 102979217, p. 1). A two-thirds owner vote meets § 12.1. But § 12.4 also required approval of Institutional Lenders holding mortgages on at least half of the mortgaged lots for an amendment materially changing "assessments" or imposing "restrictions on an OWNER's right to sell or transfer" (Declaration p. 23); none is recited, and no directors' affidavit of deemed lender consent under § 13.2 is in our set. Section 12.1 required the Declarant's written joinder while it owned any part of the property, and none is shown. It also calls for certification by the President and Secretary; only the President signed (p. 2). The certificate misnames the declaration, uses condominium language, and is footed "Page 1 of 3" and "Page 2 of 3" though only two pages were recorded. The Pointe's $500 fee, also § 7.38, came by a certificate of the same form (Instr 103616508). These are questions for underwriting.
• The school impact lien. The Heron Bay Four plat was recorded on 21 December 1995 with an Educational Impact Lien Agreement between Broward County and WCI (OR 24291/831, Instr 95564740). It imposes a County lien on all the plat's land for the school impact fees WCI agreed to pay before each home's building permit, allocating $233,506.00 to Parcel D; the lien runs with the land and binds WCI's grantees, and mortgages are subordinate to it (¶¶ 1–2, pp. 1–2). It is released by a County satisfaction recorded when it is paid, or by a partial release the County may grant (¶ 2(d), p. 3). No satisfaction or release is in our set. The title search should turn up the County's release; if it does not, it goes to underwriting (master page).
• The deeds of Parcel D. The Property Appraiser records The Enclave at Heron Bay association as owner of Parcel D less the 81 lots, which is the road, Parcel D-1, and Parcels D-2 to D-6. It cites a warranty deed dated 30 June 1998 (OR 28560/51) and then a quit-claim deed dated 29 March 2000 (OR 33290/116, recorded about 2002). We have not read either. WCI's deed of Parcels B and P of the same plat attached WCI's own neighborhood covenants and made the buyer assume the school impact lien (OR 25078/30). A deed of Parcel D may do the same, so the 1998 deed should be pulled.
• Lot descriptions. The plat does not divide Parcel D into lots (PB 160/1, sheets 4–5), and no replat or City plat exemption creating the Enclave lots is in our set. Check the lot's legal description against Parcel D.
• The declaration's lien needs a recorded claim; the buyer's liability does not. The lien is "effective from and after recording a claim of lien" (Declaration § 10.1.3, p. 19). Chapter 720 makes an association's lien relate back to the recording of the original declaration, except against a first mortgage of record, where it runs from the recorded claim of lien (Fla. Stat. § 720.3085(1)). Either way, a buyer takes on the seller's unpaid assessments under the declaration (§§ 9.1, 10.1.6) and under Chapter 720 (§ 720.3085(2)(b)). A late payment carries the greater of 10% or $25.00 after 10 days, plus interest, and after 30 days' default following written demand the next 12 months' assessments may be accelerated (§§ 10.1.1–10.1.2, p. 19).
• Bank-owned resales. A person taking title by foreclosure of a first mortgage is not liable for earlier assessments "unless the payment of such funds is secured by a claim of lien recorded prior to the recording of the foreclosed or underlying mortgage" (Declaration § 10.1.6, p. 20). Chapter 720 caps what a first mortgagee owes when it takes title by foreclosure or deed in lieu (§ 720.3085(2)(c)). The cap is the lesser of the unpaid common expenses and regular periodic or special assessments that came due in the 12 months before it took title, or 1% of the original mortgage debt. It applies "only if the first mortgagee filed suit against the parcel owner and initially joined the association as a defendant", unless the association was dissolved or had no office or agent the lender could find. Which rule governs a particular sale, and how § 720.3085(1) sits with the declaration's claim-of-lien clause, are questions for underwriting.
• Fines run up to $50.00 per violation, and up to $10.00 a day for a continuing violation not cured within 30 days of notice, and are deemed assessments (§§ 10.3.1, 10.3.3, p. 21). Chapter 720 requires at least 14 days' written notice and a hearing before a committee of at least three members who are not officers, directors or employees (Fla. Stat. § 720.305(2)(b)). A fine under $1,000 cannot become a lien (§ 720.305(2)); a continuing fine that reaches $1,000 may turn up in the search as well as on the estoppel.
• Execution of the declaration. The notary who took the Declarant's acknowledgment was also the first witness to its signature, and the signer's middle initial is handwritten and not clearly legible (p. 25). For counsel only if the execution is ever in issue.
• The declaration turns 30 on 15 March 2030. Its own term is 50 years from its date, then automatic 10-year extensions (§ 11, p. 22). The 30th anniversary is only the earliest date a lot could lose the covenants, because Chapter 712 runs from each lot's root of title, the last title transaction recorded at least 30 years earlier (Fla. Stat. § 712.01; § 712.04). A § 712.05 notice preserves them, as does an amendment indexed under the association's legal name that cites the declaration's recording information (§ 712.05(2)(b)), or a deed in the lot's chain citing it by book and page or instrument number (§ 712.03(1)). The 2003 amendment may count as such a filing, depending on how it was indexed and what it cites. No notice for The Enclave is in our set, and the master's 2024 notice does not list its declaration.
• Not in our set: anything recorded for The Enclave after 3 June 2003, any assignment of the Declarant's or Approving Party's rights, any association rules, and the City site plan for Parcel D that Supplement No. 7 cites.