Progress made in case filed against BGIPOA, TSIHA and others

photo 2BY JACK SHORT – Defendants have begun to answer accusations made against them in a lawsuit over access to Three Sisters Island.

The lawsuit was filed almost immediately after the resolution of decades’ worth of acrimonious dispute between homeowners in Boca Grande Isles, a private, planned community connected to Gasparilla Island by bridge, and Three Sisters Island, a private island adjacent to Boca Grande Isles, connected by a small strip of land.

But the plaintiff in the new suit argues that the settlement agreement was illegitimate for various reasons including a court order regarding the use of lots in BGI; the means by which the settlement was approved by each island’s homeowners’ association; and the terms of the agreement itself, which allegedly benefit some homeowners more than others.

That suit contains allegations that homeowners on BGI and TSI as well as respective homeowners’ associations, BGIPOA and TSIHA, and their directors, were remiss in fiduciary duties to certain property owners when they agreed to allow TSI property owners to build a road and bridge to connect the islands formally.

The plaintiffs in the case own lots on BGI and TSI, and have accused the BGIPOA of illegitimately altering its declaration of restrictions to allow lot 99 to be used for a roadway. In the course of that alteration to the agreement, the complaint alleges, the directors of BGIPOA engaged in self-dealing by accepting, in return, a payment of $3 million and an annual assessment, in addition to the titles to submerged lands adjacent to certain property owners’ lots.

Those submerged lands had sparked the most recent events in the original dispute (before it was settled through court-mandated mediation) because BGI needed to replace the bridge onto its island. The lot beneath the bridge, owned by a corporation that also owned lots on TSI, became the contested issue because of questions about BGI’s right to build on or over it.

Answers to the complaint vary in nature according to whether they are filed by individuals or homeowners’ associations. In the case of individuals named in the suit, responses point to laws protecting members of homeowners’ associations, nonprofits under state law, from incurring culpability or liability when acting in their corporate roles.

According to some of the motions to dismiss that accompany defendants’ answers, the fiduciary duty which they are accused of breaching was never established in the complaint.

Several defendants cited cases they say established the fact that homeowners’ associations are not beholden to individual property owners, but to property owners as a group. That would affect, according to the defendants, claims that building a road over a lot adjacent to someone’s home would be a lapse of duty to that individual’s interests, since the HOA is liable to property owners as a whole.

Defendants BGIPOA also maintain that, in spite of a court order in 1992 which was upheld on appeal since then, that lot 99 was permanently restricted to its original use — single-family residential — that it had the right to alter restrictions regarding the permissible uses of lots in BGI.

An amendment is valid insofar as it, according to the affirmative defense filed by BGIPOA, “does not materially and adversely alter the proportionate voting interest appurtenant to a parcel or increase the proportion … by which a parcel shares in the common expenses of the association.”

No court date has been set, and no discovery has yet been initiated, at least according to documents available from the Lee County Clerk of Court.