Hope that everyone had a Happy Thanksgiving.
I have given some thought as to why I think that the Association WILL NOT win the lawsuit against Pelican Landing Timeshare Ventures and Kersey Smoot (the Defendants) without the Complaint being amended. In reading the Complaint and the Defendants' Answers, it appears to me that the word "ELMINITATES" or "ELIMINATION" of the easements is the key to the lawsuit as it is presently filed with the court. The Association says that EACH OWNER (together - the Association) has a nonexclusive drainage easement ONTO the Master Property and an easement for all necessary access for Utility Services over, upon, under and across the Master Property. The Defendants essentially say that the "deleted property" would not "eliminate" or result in the "elimination" of the drainage easements granted to the Owners per the Master Declaration.
Article II, Section C, paragraph 2 of the Master Declaration says what Prohibited Deletions are, and the Association says that "Declarant shall not delete, without the approval of all Owners, any Master Property WHICH DELETION (emphasis added) would result in the ELEMINATON of all reasonable ingress and egress rights to a dedicated right of way granted pursuant to Article III, Section H, Paragraph 1 or the ELIMINATION of drainage or utility easement rights granted pursuant to Article III, Section H, paragraph 2."
Article III, Section H, paragraph 2 provides "nonexclusive easement for drainage ONTO (emphasis added) the Master Property and an easement for all necessary access for Utility Services over, upon, under and across the Master Property."
With two of the buildings existing for about twenty years and two of the buildings existing for about five years, there seems to have been no problems with the easements granted to the Owners - - i.e., the right to ingress and egress, and the elimination of drainage (from rain) onto the Master Property or utility access. Put another way, does the deleted property, located a distance away from the existing buildings, REASONABLY eliminate drainage of water ONTO the Master Property or eliminate access to Utility service? I don't think so.
The Master Declaration is written so that it applies as if all of the units have been built. Therefore, the easements for buildings that would be built on the deleted property are what is inferred in the Master Declaration. Since buildings have not been built on the deleted property, there are no easements to the nonexistent Owners. So, if the goal had been to build only 96 units, there would be no issue because all of the easements are working as intended. And if the easements were not working as intended, the Declarant would "have the right to relocate and redefine the areas covered by such easements." Article III, Section I, paragraph 2.
Had the Defendant Pelican Landing Timeshare Ventures first deleted the property it wanted to sell, then recorded the deletion with Lee County, and then, say a week or a month later conveyed the property to Kersey Smoot, the transfer of the property would have been proper. But the conveyance appears to not have been proper, and the Association won't amend the Complaint for the court to decide whether the conveyance was proper. Similarly, the Association won't amend the Complaint regarding the legal "implied fiduciary duty" obligation of Pelican Landing so that it must continue to pay Shared Expenses going forward.
Unfortunately, the Association is playing games with the Master Declaration to argue that the Association needed to approve the sale of the deleted property. I believe that the Defendants knew they couldn't obtain permission for the sale and as they say, it's easier to ask for forgiveness than it is to ask for permission. In my opinion, the Association will lose the lawsuit if it goes to trial.
The court has also required that the parties engage in a mediation to see if they can amicably resolve their dispute. I believe that a competent mediator will see what is going on and push the Association to settle with minimal detriment to the defendants. I believe that the mediation will take place after the time to amend the Complaint will have passed so that the other claims cannot be added. We will see. I hope that I'm wrong, but I'll never understand why the Complaint is not being amended to increase the likelihood of success.