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IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA


CIRCUIT CIVIL DIVISION
RUGH CLINE, an Individual, ELIZABETH
CLINE, an Individual, KIMBERLY DURHAM,
An Individual, RODNEY DURHAM, an Individual,
And STEVE FEHR, an Individual,
Plaintiffs,

CASE NO.: 15-CA-006396

vs.
BAY PORT COLONY PROPERTY OWNERS
ASSOCIATION, INC., a Florida Corporation, and
QUALIFIED PROPERTY MANAGEMENT, INC., a
Florida Corporation,
Defendants.
________________________________________/
FIRST AMENDED COMPLAINT
COMES NOW, Plaintiffs, RUGH CLINE, an Individual, ELIZABETH
CLINE, an Individual, KIMBERLY DURHAM, an Individual, RODNEY
DURHAM, an Individual, and STEVE FEHR, an Individual, by and through the
undersigned counsel, files this, Amended Complaint against Defendants, BAY
PORT

COLONY

PROPERTY

OWNERS

ASSOCIATION,

INC.

and

QUALIFIED PROPERTY MANAGEMENT, INC., a Florida Corporation, and


alleges as follows:

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PARTIES, VENUE & JURISDICTION


1.

This is an action for declaratory judgement and injunctive relief

pursuant to Chapter 86, Florida Statutes; and for damages in excess of $15,000.
2.

Plaintiffs, RUGH CLINE and ELIZABETH CLINE, are husband and

wife and residents of Hillsborough County, Florida, and are over the age of 18
years.
3.

Plaintiffs, KIMBERLY DURHAM AND RODNEY DURHAM, are

husband and wife and residents of Hillsborough County, Florida, and are over the
age of 18 years.
4.

Plaintiff, STEVE FEHR, is a resident of Hillsborough County,

Florida, and is over the age of 18 years.


5.

Defendant,

BAY

PORT

COLONY

PROPERTY

OWNERS

ASSOCIATION, INC., is a Florida homeowners association, governing property


located in Hillsborough County, Florida.
6.

Defendant, QUALIFIED PROPERTY MANAGEMENT, INC., is a

Florida corporation located in Pasco County, Florida, which manages property


located in Hillsborough County, Florida.
7.

This Court has jurisdiction over this action because this complaint

seeks damages in excess of $15,000, exclusive of interest and attorneys fees.


8.

Venue is proper in this county because: (i) the property at issue is

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located in Hillsborough County, Florida, and (ii) the causes of action at issue
accrued in this County.
GENERAL ALLEGATIONS
9.

The Bay Port Colony Phase II, Unit II subdivision (Bay Port Colony

subdivision) was originally platted in or about 1977. See Plat Book 48, Page 6,
of the Public Records of Hillsborough County, Florida.
10.

The Bay Port Colony subdivision contains 137 home lots situated

south of West Hillsborough Avenue, with its entrance road being Longboat
Boulevard in Hillsborough County, Florida. A site map of the subdivision is
attached as Exhibit A.
11.

There are interconnecting navigable waterways running throughout

the subdivision that lead to Channel A and the navigable waters of Tampa Bay.
12.

The original grantor of Bay Port Colony was W.J.W. Company of

Tampa, Inc.
13.

At all material times the President of W.J.W. Company, Inc. was

Walter J. Wright.
14.

The plat of the subdivision was dedicated by W.J.W. Company of

Tampa, Inc., and Guardian Mortgage Investors.


15.

On or about July 25, 1977, W.J.W. Company of Tampa, Inc. recorded

the Declaration of Restrictions for the Bay Port Colony Subdivision in Official

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Records Book 3262, Page 56 in the Public Records of Hillsborough County,


Florida (Grantor Declarations).
16.

The Grantor Declarations applied to all lots in the Bay Port Colony

subdivision and provided that [a]ll easements hereafter granted for such purposes
by the undersigned shall be strictly observed and shall not be in any manner
obstructed so as to hinder any such easements.
17.

Plaintiffs each own a home lot in the Bay Port Colony subdivision.

18.

Specifically, Plaintiffs, RUGH CLINE and ELIZABETH CLINE, are

owners of a home located at 5805 Galleon Way, Tampa, FL 33615. The legal
description of their home is as follows:
Lot 59, Bayport Colony Phase II, Unit II, According to the Map or Plat
Thereof, Recorded in Plat Book 48, Page 6, of the Public Records of
Hillsborough County, Florida.
The warranty deed conveying title to Plaintiffs Cline is located Official Records
Book 21397, Page 1937 in the Public Records of Hillsborough County, Florida.
19.

Lot 59 was originally deeded to the Clines predecessor in interest,

Alfred Howard, on or about July 25, 1977, through a warranty deed issued by
W.J.W. Company of Tampa, Inc. See Official Records Book 3262, Page 60 in the
Public Records of Hillsborough County, Florida.

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20.

Plaintiffs, KIMBERLY DURHAM AND RODNEY DURHAM, are

owners of a home located at 6102 Schooner Way, Tampa, FL 33615. The legal
description of the home is as follows:
Lot 125, Bayport Colony Phase II, Unit II, According to the Map or Plat
Thereof, Recorded in Plat Book 48, Page 6, of the Public Records of
Hillsborough County, Florida.
The warranty deed conveying title to Plaintiffs Durham is located Official Records
Book 11833, Page 1185 in the Public Records of Hillsborough County, Florida.
21.

Lot 125 was originally deeded to the Durhams predecessor in

interest, James Dee, on or about June 29, 1979, though a warranty deed issued by
W.J.W. Company of Tampa, Inc. See Official Records Book 3530, Page 1981 in
the Public Records of Hillsborough County, Florida.
22.

Plaintiff, STEVE FEHR, is the owner of home located at 5811 Dory

Way, Tampa, FL 33615. The legal description of the home is as follows:


Lot 18, Bayport Colony Phase II, Unit II, According to the Map or Plat
Thereof, Recorded in Plat Book 48, Page 6-1, of the Public Records of
Hillsborough County, Florida.
The warranty deed conveying title to Plaintiff Fehr is located Official Records
Book 12949, Page 559 in the Public Records of Hillsborough County, Florida.
23.

Lot 18 was originally deeded to Fehrs predecessor in interest, Mervin

Glickman, on or about January 31, 1979, by warranty deed issued by W.J.W.

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Company of Tampa, Inc. See Official Records Book 3471, Page 1174 in the
Public Records of Hillsborough County, Florida.
24.

Thus, Plaintiffs properties were all purchased from the original

grantor, and subject to the restrictions of record at that time, which would have
been the Grantor Declarations.
25.

Plaintiffs lots abut waterways running through the rear of their

property.
26.

The land boundaries for Plaintiffs lots extend to the ordinary mean-

high watermark of the navigable waterway.


27.

Plaintiffs lots extend into the waterways, and Plaintiffs have title to

the submerged lands adjacent to their lots.


28.

The plat of the subdivision reflects that the waterways are designated

Waterway Drainage Easement. See attached Exhibit B, Plat Book 48, Page 6,
of the Public Records of Hillsborough County, Florida. The plat specifically
states that all rights-of-way, canals, ditches, and other easements are
dedicated to public use. These waterways connect to Channel A that then runs to
the navigable waters of Tampa Bay.
29.

Plaintiffs and their predecessors have traditionally utilized the

waterways to exercise their riparian rights and for boat access to the waters of
Tampa Bay from their home lots.

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30.

Before Plaintiffs can reach the waters of Tampa Bay from their home

lots, their boats must travel under the public road of Longboat Boulevard and
through a boatlift located next to that road.
31.

For the past 35 years, Plaintiffs and their predecessors have enjoyed

the use of the boatlift for ingress and egress to the waters of Tampa Bay from their
individual home lots within the Bay Port Colony subdivision.
32.

In 1978, the Bay Port Colony Property Owners Association, Inc. (the

Association) was created by W.J.W. Company of Tampa, Inc.


33.

On October 22, 1979, W.J.W. Company of Tampa, Inc. recorded the

Declaration of Covenants, Conditions and Restrictions of the Bay Port Colony


Property Owners Association, Inc. in Official Records Book 3580, 672-686 in
Hillsborough County, Florida, public records (Association Declarations).
34.

The Association Declarations define Waterways as:


[T]he canal and permanent bodies of water on the Residential
Properties, and also the boatlift area and equipment and facilities on
the lands described in Schedule C.

35.

The Association Declarations further provide that:


5.
Each owner of property contiguous to the Waterways shall have
a right of access over and across the Waterways, which shall be
appurtenant to and shall pass with the title to the Owners property . . .

36.

After the Association Declarations were adopted, the Association

began the process of having the 137 home lots in the Bay Port Colony subdivision

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join the Association by executing Joinder, Consent, and Easement agreements. In


these joinder agreements, the lot owners consented to be bound by the new
Declarations.
37.

It has recently come to Plaintiffs attention that the Association only

obtained joinder agreements for approximately 98 of the 137 home lots in the Bay
Port Colony subdivision. There were 39 home lots that never executed a joinder
agreement with the Association, and thus, those lots were never made subject to
the Association Declarations.
38.

Plaintiffs each own one of the 39 unencumbered home lots in the Bay

Port Colony subdivision.


39.

Notwithstanding the fact that 39 home lots never entered into joinder

agreements, the Association and its agents have repeatedly represented that the
lots are bound by the Association Declarations.
40.

Over the years, the Association has charged HOA fees, imposed fines,

demanded repairs and alterations to properties, and foreclosed on property relating


to these 39 lot owners.
41.

In or about 2011, the Association began a revitalization effort to

renew its Declarations and Articles of Incorporation. This effort was prompted by
the requirements of Chapter 712, Florida Statutes (otherwise known as the
Marketable Record Title Act (MRTA)).

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42.

During the revitalization process, the Associations then-current

Board of Directors became aware that 39 lots within the Bay Port Colony
subdivision had never been bound by the Declarations.
43.

Despite its actual knowledge in 2011 that 39 lots were not bound by

the Association Declaration, the Association withheld this information and, either
directly or through its agents, continued to charge HOA fees, impose fines,
demand repairs and alterations to properties, and foreclose on property relating to
these 39 lot owners.
44.

At all material times, the Association has been managed by Qualified

Property Management, Inc. (Qualified Property).


45.

At all material times, Qualified Property acted as the agent of the

Association in collecting HOA fees, imposing fines, and demanding repairs and
alterations relating to these 39 lot owners, as well as operating the boatlift.
46.

In or about January 2014, the Association and its agent, for the first

time, disclosed to the 39 lot owners that their property was not actually
encumbered by the Declarations.
47.

The Association admitted that it was not legally authorized to pursue

deed restriction violations or assess payments against the 39 lot owners, and thus,
the Association demanded that the 39 lot owners execute joinder agreements to
make them subject to the Associations authority.

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See attached Exhibit C,

Joinder, Consent and Easement, See also attached Exhibit D, January 31, 2014,
Letter from Law Offices of Cianfrone & De Furio, Exhibit E, February 18, 2014,
Letter from Law Offices of Cianfrone & De Furio, Exhibit F, undated Letter
from BPCPOA, Inc., and Exhibit G, August 20, 2014, Letter from Qualified
Property Management, Inc.
48.

As was their right to do, Plaintiffs elected not to execute the Joinder,

Consent and Easement, or to join the Association


49.

The Joinder, Consent and Easement includes a provision which states

The undersigned hereby grants to Bay Port Colony Property Owners Association
and each of its members, and its and their heirs, personal representative,
successors and assigns, a perpetual easement for boating and other recreational
purposes over that portion of the above described real property which is presently
devoted to use as a canal, as shown on the aforesaid plat and designated as
Waterway Drainage Easement thereon.
50.

Despite Plaintiffs electing not to execute the Joinder, Consent and

Easement, Association members continue to utilize their easement for boating and
other recreational purposes over Plaintiffs submerged real property.
51.

In retaliation for Plaintiffs electing not to execute the Joinder, Consent

and Easement, or to join the Association, the Association made the decision to
change the key lock for the boatlift situated off of the public street of Longboat

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Boulevard, and the Association has refused to grant Plaintiffs a key unless and
until they agree to execute the Joinder, Consent and Easement agreement or
otherwise join the Association.
52.

The Associations actions have effectively blocked Plaintiffs access

through the waterways to Channel A and the navigable waters of Tampa Bay,
which interferes with the exercise of Plaintiffs riparian rights and their ability to
conduct maintenance to the rear of their property.
COUNT I
EASEMENT BY IMPLICATION FROM WRITTEN INSTRUMENT
53.

Plaintiff repeats the allegations set forth above in paragraphs 1

through 52 as if set forth herein in full.


54.

Since the inception of the Bay Port Colony subdivision, Plaintiffs and

their predecessors in interest have used the waterways and boatlift in the
subdivision to access the navigable waters of Tampa Bay.
55.

Plaintiffs properties (Lots 18, 59, and 125) were granted an easement

across the waterways of the Bay Colony subdivision by dedication on a plat as


reflected in Exhibit B, Plat Book 48, Page 6, of the Public Records of
Hillsborough County, Florida. The Plat reflects the waterways that are designated
Waterways Drainage Easement.
56.

The original grantor of Bay Port Colony subdivision dedicated

Longboat Boulevard and the land where the boatlift is located to the public as
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reflected on Exhibit H, Plat Book 48, Page 4, of the Public Records of


Hillsborough County, Florida.
57.

The plat specifically states that all rights-of-way, canals,

ditches, and other easements are dedicated to public use.


58.

The Association Declarations define waterways as including the

boatlift. While Plaintiffs are not bound by these Declarations, the Association
Declarations reflect the grantors intent that the boatlift would be considered part
of the waterways reflected on the plat and would be available for use by all lot
owners within the subdivision.
59.

Plaintiffs lots include title to land that extends to the ordinary high

watermark of the navigable water, and thus, riparian rights attach to their land.
60.

The plat and the conveyance documents reflect the grantors intent to

create an easement to the waterways running through Bay Port Colony subdivision
and through the boatlift to provide access to the navigable waters of Tampa Bay.
This intent was to apply to all lot owners of the Bay Port Colony subdivision.
61.

The plat and the conveyance documents reflect the grantors intent to

grant Plaintiffs riparian rights of ingress, egress, boating, bathing, and fishing and
such other rights that have been or may be defined by law to all of the navigable
waterways running through Bay Port Colony subdivision and through the boatlift
to provide access to the navigable waters of Tampa Bay.

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62.

Plaintiffs relied on the granting of an easement and riparian rights

when they purchased their property.


63.

The Association and its agent, Qualified Property, have blocked

Plaintiffs use of its easement by rekeying the boatlift and failing to provide
Plaintiffs with new keys.
64.

As a direct and proximate result of Defendants continuing violation

of Plaintiffs rights, Plaintiffs have suffered in the past, and will continue to suffer
in the future, direct and consequential damages, including but not limited to, the
loss of the ability to exercise its easement and full riparian rights.
WHEREFORE, Plaintiffs respectfully pray that this Court grant declaratory
and injunctive relief requested herein and award compensatory damages as well as
attorneys fees and costs and such other relief this Court deems just and proper.
COUNT II
STATUTORY WAY OF NECESSITY
65.

Plaintiffs repeat the allegations set forth above in paragraphs 1

through 52 as if set forth herein in full.


66.

The original grantor of Bay Port Colony subdivision intended that the

subdivision residents would have access to the waters of Tampa Bay through the
waterways and boatlift.
67.

Since the inception of the subdivision, Plaintiffs and their

predecessors in interest have used the waterways in the Bay Port Colony
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subdivision to access the navigable waters of Tampa Bay.


68.

Plaintiffs properties (Lots 18, 59, and 125) were granted an easement

across the waterways of the Bay Colony subdivision by dedication on plat as


reflected in Exhibit B, Plat Book 48, Page 6, of the Public Records of
Hillsborough County, Florida. The Plat reflects the waterways that are designated
Waterways Drainage Easement.
69.

The original grantors of Bay Port Colony subdivision dedicated

Longboat Boulevard and the land where the boatlift is located to the public as
reflected on Exhibit H, Plat Book 48, Page 4, of the Public Records of
Hillsborough County, Florida.

The plat specifically states that all canals are

dedicated to public use.


70.

There is a unity of title to the lands upon which the waterways and

boatlift sit and Plaintiffs lot, until such time as title was separated by the grantor
through the original conveyance of Plaintiffs lots to their predecessors in interest.
71.

The plat and the conveyance documents reflect the grantors intent to

create an easement to the waterways running through Bay Port Colony subdivision
and through the boatlift to provide access to the navigable waters of Tampa Bay.
72.

The only reasonable and practicable way of egress or ingress from

Plaintiffs property to the navigable waters of Tampa Bay is through the boatlift
constructed by the Grantor.

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73.

From time to time work barges are necessary for maintenance of

seawalls, pylons, decks, and other waterfront features of Plaintiffs lots.


74.

The only reasonable and practicable way of egress or ingress for work

barges is through the boat lift, and same is reasonably necessary for the beneficial
use or enjoyment of Plaintiffs lots.
75.

As such, Plaintiffs have a right to a statutory way of necessity to use

the boatlift to access the waters of Tampa Bay from their property for purposes of
exercising their riparian rights and to allow access of work barges to make repairs
to the rear of Plaintiffs lots.
76.

The Association and its agent, Qualified Property, have blocked

Plaintiffs use of its easement by rekeying the boatlift and failing to provide
Plaintiffs with new keys.
77.

As a direct and proximate result of Defendants continuing violation

of Plaintiffs rights, Plaintiffs have suffered in the past, and will continue to suffer
in the future, direct and consequential damages, including but not limited to, the
loss of the ability to utilize their easement.
WHEREFORE, Plaintiffs respectfully pray that this Court grant declaratory
and injunctive relief requested herein and award compensatory damages as well as
attorneys fees and costs and such other relief this Court deems just and proper.
COUNT III
RIGHT TO USE BOATLIFT PURSUANT TO STATE LICENSE
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AGREEMENT
78.

Plaintiff repeats the allegations set forth above in paragraphs 1

through 52 as if set forth herein in full.


79.

Since the inception of the subdivision, Plaintiffs and their

predecessors in interest have used the waterways in the Bay Port Colony
subdivision to access the navigable waters of Tampa Bay.
80.

Since the construction of the boatlift in or about 1979, Plaintiffs and

their predecessors in interest have utilized the boatlift to access the navigable
waters of Tampa Bay.
81.

In October 10, 1995, the Association entered into a License

Agreement between Hillsborough County and Bay Port Colony Property Owners
Association Relating to the Use of County Rights-of-Way. See attached Exhibit
I, License Agreement.
82.

Article 8 of the License Agreement provides:

As a condition of the continued use of the gates, the ASSOCIATION agrees


that the Facilities shall not be operated in a manner which deprives any
member of the public of access to the rights-of-way within the Bay Port
Colony Subdivision. , , , The Association hereby agrees to make available to
all residents who live within the gated portion of Longboat Boulevard such
control devices, cards, decals . . . to facilitate ease of access through the
gated access points.
83.

In the WHEREAS clause of the License Agreement states, [B]ased

on findings that the lands served by Longboat Boulevard . . . are uniquely situated

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with access to fresh and salt water canals, that the roadways involved serve the
Bay Port Colony Subdivision without providing for through access and that the
Facilities will not unduly interfere with the purpose, function, or integrity of the
public right-of-ways . . .
84.

Thus, at the time the License Agreement was created, Hillsborough

County contemplated that the public would have a right of access to fresh and
salt water canals through the land adjacent to Longboat Boulevard.
85.

Moreover, at the time the License Agreement was created,

Hillsborough County contemplated that the residents of Bay Port Colony would
have a right of access to the public waters of Tampa Bay from their waterfront
homes.
86.

The Association and its agent have violated the License Agreement by

prohibiting access through the gated boatlift off of Longboat Boulevard.


87.

As a direct and proximate result of Defendants continuing violation

of Plaintiffs rights, Plaintiffs have suffered in the past, and will continue to suffer
in the future, direct and consequential damages, including but not limited to, the
loss of their ability to fully utilize the easement.
WHEREFORE, Plaintiffs respectfully pray that this Court grant declaratory
and injunctive relief requested herein and award compensatory damages as well as
attorneys fees and costs and such other relief this Court deems just and proper.

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COUNT IV
RIGHT TO USE BOATLIFT-EASEMENT BY GRANT
88.

Plaintiffs repeat the allegations set forth above in paragraphs 1

through 52 as if set forth herein in full.


89.

Since the inception of the subdivision, for over 35 years, Plaintiffs and

their predecessors in interest have continuously used the waterways and boatlift in
the Bay Port Colony subdivision to access the navigable waters of Tampa Bay.
90.

Plaintiffs and its predecessors use of the boatlift has been with the

understanding that they have an easement right to use the waterways and boatlift
in the subdivision.
91.

On October 22, 1979, W.J.W. Company of Tampa, Inc. recorded the

Declaration of Covenants, Conditions and Restrictions of the Bay Port Colony


Property Owners Association, Inc. in Official Records Book 3580, 672-686 in
Hillsborough County, Florida, public records (Association Declarations).
92.

The Association Declarations define Waterways as:


[T]he canal and permanent bodies of water on the Residential
Properties, and also the boatlift area and equipment and facilities on
the lands described in Schedule C.

93.

The Association Declarations further provide that:


5.
Each owner of property contiguous to the Waterways shall have
a right of access over and across the Waterways, which shall be
appurtenant to and shall pass with the title to the Owners property . . .

94.

While Plaintiffs are not bound by the Association Declarations, those


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Declarations reflect an express grant of an easement to use the waterways to all


property owners within the Bay Port Colony subdivision.
95.

The Association and its agent, Qualified Property, have blocked

Plaintiffs use of its easement by rekeying the boatlift and failing to provide
Plaintiffs with new access keys.
96.

As a direct and proximate result of Defendants continuing violation

of Plaintiffs rights, Plaintiffs have suffered in the past, and will continue to suffer
in the future, direct and consequential damages, including but not limited to, the
loss of their ability to fully utilize the easement.
97.

Plaintiff has been forced to retain the services of the undersigned

counsel to pursue his claim for damages.


WHEREFORE, Plaintiffs respectfully pray that this Court grant declaratory
and injunctive relief requested herein and award compensatory damages as well as
attorneys fees and costs and such other relief this Court deems just and proper.
COUNT V
FRAUDULENT MISREPRESENTATION
(ALL PLAINTIFFS AGAINST THE ASSOCIATION AND QUALIFIED
PROPERTY)
98.

Plaintiffs repeat the allegations set forth above in paragraphs 1

through 52 as if set forth herein in full.


99.

At all material times, the Association knew or should have known that

the Plaintiffs properties were not bound by the Association Declarations.


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100.

Despite its knowledge, the Association charged HOA fees, imposed

fines, demanded repairs and alterations to properties, and foreclosed on property


relating to Plaintiffs lots based on its representation to Plaintiffs that their
properties were bound by the Association Declaration.
101.

In continuing in the above actions, the Association made, by its

actions and words, false statements regarding its authority to impose fees and fines
against the Plaintiffs.
102.

The Association knew that its representations were false when made

and intended for Plaintiffs to rely on its representations.


103.

Plaintiffs relied on the Associations representations to their

detriment.
104.

As a direct and proximate result the Associations fraudulent

misrepresentations, Plaintiffs have suffered damages.


105.

Plaintiff has been forced to retain the services of the undersigned

counsel to pursue his claim for damages.


WHEREFORE, Plaintiff demands compensatory damages as well as
attorneys fees and costs and such other relief this Court deems just and proper.
COUNT VI
NEGLIGENT MISREPRESENTATION
(ALL PLAINTIFFS AGAINST THE ASSOCIATION AND QUALIFIED
PROPERTY)
106.

Plaintiffs repeat the allegations set forth above in paragraphs 1


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through 52 as if set forth herein in full.


107.

At all material times, the Association knew or should have known that

the Plaintiffs properties were not bound by the Declarations.


108.

Despite its knowledge, the Association charged HOA fees, imposed

fines, demanded repairs and alterations to properties, and foreclosed on property


relating to Plaintiffs lots.
109.

Given its position as a homeowners association governing certain

properties within the Bay Port Colony subdivision, the Association owed a duty to
Plaintiffs to confirm its authority to impose fees and fines against Plaintiffs prior
to it actually demanding payment.
110.

Given its position as a homeowners association governing certain

properties within the Bay Port Colony subdivision, the Association owed a duty to
Plaintiffs to confirm its authority to demand repairs and alterations to properties
prior to it actually making such demands.
111.

Given its position as a homeowners association governing certain

properties within the Bay Port Colony subdivision, the Association owed a duty to
Plaintiffs to confirm its authority to foreclose on property relating to Plaintiffs
lots prior to it actually taking such actions.
112.

The Association breached its duty owed to Plaintiffs, and instead

continued representing that the Declarations bound the Plaintiffs when it knew or

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should have known that this representation was untrue.


113.

Plaintiffs relied on the Associations representations to their

detriment.
114.

As a direct and proximate result the Associations negligent

misrepresentations, Plaintiffs have suffered damages.


115.

Plaintiff has been forced to retain the services of the undersigned

counsel to pursue his claim for damages.


WHEREFORE, Plaintiff demands compensatory damages as well as
attorneys fees and costs and such other relief this Court deems just and proper.
COUNT VII
UNJUST ENRICHMENT
(ALL PLAINTIFFS AGAINST THE ASSOCIATION AND QUALIFIED
PROPERTY)
113.

Plaintiffs repeat the allegations set forth above in paragraphs 1

through 52 as if set forth herein in full.


114.

At all material times, the Association knew or should have known that

the Plaintiffs properties were not bound by the Declarations.


115.

Despite its knowledge, the Association charged HOA fees, imposed

fines, demanded repairs and alterations to properties, and foreclosed on property


relating to Plaintiffs lots.
116.

Given its position as a homeowners association governing certain

properties within the Bay Port Colony subdivision, the Association owed a duty to
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Plaintiffs to confirm its authority to impose fees and fines against Plaintiffs prior
to it actually demanding payment.
117.

Given its position as a homeowners association governing certain

properties within the Bay Port Colony subdivision, the Association owed a duty to
Plaintiffs to confirm its authority to demand repairs and alterations to properties
prior to it actually making such demands.
118.

Given its position as a homeowners association governing certain

properties within the Bay Port Colony subdivision, the Association owed a duty to
Plaintiffs to confirm its authority to foreclose on property relating to Plaintiffs
lots prior to it actually taking such actions.
119.

The Association breached its duty owed to Plaintiffs, and instead

continued representing that the Declarations bound the Plaintiffs when it knew or
should have known that this representation was untrue.
120.

The Plaintiffs have conferred a benefit on the Defendants through

HOA fees, imposed fines, demanded repairs and alterations to properties, and
foreclosure on property relating to Plaintiffs lots.
121.

The Defendants have knowledge of these benefits.

122.

The Defendants have accepted or retained the benefits conferred.

123.

The circumstances are such that it would be inequitable for the

Defendant to retain the benefits.

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124.

Plaintiffs relied on the Associations representations to their

detriment.
125.

As a direct and proximate result the Associations negligent

misrepresentations, Plaintiffs have suffered damages.


126.

Plaintiff has been forced to retain the services of the undersigned

counsel to pursue his claim for damages.


WHEREFORE, Plaintiff demands compensatory damages as well as
attorneys fees and costs and such other relief this Court deems just and proper.
COUNT VIII
SLANDER OF TITLE ACTION
127.

Plaintiffs repeats the allegations set forth above in paragraphs 1

through 52 as if set forth herein in full.


128.

At all material times, the Association knew or should have known that

the Plaintiffs properties were not bound by the Declarations.


129.

Notwithstanding its knowledge, the Association recorded various

instruments asserting claims or restrictions against Plaintiffs properties when the


Association knew or should have known that the Plaintiffs lots were not subject
to the Declarations.
130.

Specifically, the Association recorded the following instruments

against Plaintiffs lots:

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Declaration of Covenants, Conditions and Restrictions of Bay


Port Colony Property Owners Association, recorded in O.R.
Book 3580, Page 672, of the public records of Hillsborough
County, Florida;
Amendment to Declaration of Covenants, Conditions and
Restrictions of Bay Port Colony Property Owners Association,
recorded in O.R. Book 3626, Page 1455, of the public records of
Hillsborough County, Florida;
Second Amendment to Declaration of Covenants, Conditions
and Restrictions of Bay Port Colony Property Owners
Association, recorded in O.R. Book 3627, Page 25, of the public
records of Hillsborough County, Florida;
Second Amendment to Declaration of Covenants, Conditions
and Restrictions of Bay Port Colony Property Owners
Association, recorded in O.R. Book 3646, Page 811, of the
public records of Hillsborough County, Florida;
Corrective Second Amendment to Declaration of Covenants,
Conditions and Restrictions of Bay Port Colony Property
Owners Association, recorded in O.R. Book 3750, Page 1700,
of the public records of Hillsborough County, Florida;
Amendment to Declaration of Covenants, Conditions and
Restrictions of Bay Port Colony Property Owners Association,
recorded in O.R. Book 4579, Page 217, of the public records of
Hillsborough County, Florida;
Amendment to Declaration of Covenants, Conditions and
Restrictions of Bay Port Colony Property Owners Association,
recorded in O.R. Book 4661, Page 1343, of the public records of
Hillsborough County, Florida;
Fourth Amendment to the Declaration of Covenants,
Conditions and Restrictions of Bay Port Colony Property
Owners Association, recorded in O.R. Book 5266, Page 146, of
the public records of Hillsborough County, Florida;

- 25 -

Amendment to Declaration of Covenants, Conditions and


Restrictions of Bay Port Colony Property Owners Association,
recorded in O.R. Book 5454, Page 1622, of the public records
of Hillsborough County, Florida;
Amendment to Declaration of Covenants, Conditions and
Restrictions of Bay Port Colony Property Owners Association,
recorded in O.R. Book 6166, Page 1989, of the public records
of Hillsborough County, Florida;
Consolidated Amendment to Declaration of Covenants,
Conditions and Restrictions of Bay Port Colony Property
Owners Association, Inc. recorded in O.R. Book 6222, Page
752, of the public records of Hillsborough County, Florida;
Amendment to Declaration of Covenants, Conditions and
Restrictions of Bay Port Colony Property Owners Association,
Inc. recorded in O.R. Book 6222, Page 829, of the public
records of Hillsborough County, Florida;
First Amendment to By-Laws of Bay Port Colony Property
Owners Association, Inc. recorded in O.R. Book 6281, Page
1030, of the public records of Hillsborough County, Florida;
Articles of Amendment to Articles of Incorporation Bay Port
Colony Property Owners Association, Inc. recorded in O.R.
Book 6281, Page 1033, of the public records of Hillsborough
County, Florida;
Corrective Instrument recorded in O.R. Book 6281, Page 1037,
of the public records of Hillsborough County, Florida;
Amendment to Declaration of Covenants, Conditions andRestrictions of Bay Port Colony Property Owners Association,
Inc. recorded in O.R. Book 6281, Page 1044, of the public
records of Hillsborough County, Florida;
Amendment to Declaration of Covenants, Conditions and
Restrictions of Bay Port Colony Property Owners Association,

- 26 -

Inc. recorded in O.R. Book 7360, Page 1262, of the public


records of Hillsborough County, Florida;
Amendment to Declaration of Covenants, Conditions and
Restrictions of Bay Port Colony Property Owners
Association, recorded in O.R. Book 9434, Page 176, of the
public records of Hillsborough County, Florida;
Amendment to General Community Rules of Bay Port Colony
Property Owners Association, Inc., recorded in O.R. Book
10237, Page 512, of the public records of Hillsborough County,
Florida;
Certificate of Amendment to the General Community Rules
for Bay Port Colony Property Owners Association, Inc.,
recorded in O.R. Book 15339, Page 1389, of the public
records of Hillsborough County, Florida;
Certificate of Amendment to the Amended and Restated
Declaration of Covenants, Conditions and Restrictions of Bay
Port Colony Property Owners Association, Inc., recorded in
O.R. Book 17634, Page 772, of the public records of
Hillsborough County, Florida; and
Amendment to Declaration of Covenants, Conditions and
Restrictions of Bay Port Colony Property Owners Association,
Inc., recorded in O.R. Book 19845, Page 743, of the public
records of Hillsborough County, Florida.
131.

The Associations recording of the above instruments constituted a

publication to third persons against the Plaintiffs property that the Association
knew or reasonably should have known were false.
132.

The Association also sent letters to other lot owners making false

statements concerning Plaintiffs right to use the waterway easement conveyed to


the Plaintiffs with their property. See Exhibit D, January 31, 2014, Letter from
- 27 -

Law Offices of Cianfrone & De Furio, Exhibit E, February 18, 2014, Letter from
Law Offices of Cianfrone & De Furio, Exhibit F, undated Letter from BPCPOA,
Inc., and Exhibit G, August 20, 2014, Letter from Qualified Property
Management, Inc.
133.

Although Plaintiffs own title to the submerged lands adjacent to their

properties, the Association sent letters to other lot owners claiming that the
waterways over Plaintiffs submerged lands are a community amenity for the
exclusive use of Association members.
134.

The Associations publications disparaged Plaintiffs property and

induced others to believe that the properties were subject to the Associations false
instruments and that Plaintiffs were not allowed to exercise their riparian and
easement rights conveyed with their property.
135.

The Association acted with malice in recording the instruments

against the properties when it knew or should have known that it lacked the
authority to do so.
136.

The Association acted with malice by sending letters to other lot

owners claiming use of the waterways over Plaintiffs submerged land is restricted
to Association Members when it knew or should have known that it lacked the
authority to make such a claim.
137.

As a direct and proximate result of the Associations publication,

- 28 -

Plaintiffs have suffered damages, including, but not limited to, special damages in
the form of attorneys fees incurred in removing the cloud from the title to their
property.
138.

Plaintiffs have been forced to retain the services of the undersigned

counsel to pursue their claim for damages.


WHEREFORE, Plaintiffs demand compensatory damages as well as special
damages including, but not limited to, attorneys fees (special damages) and costs
and such other relief this Court deems just and proper.
COUNT IX
QUIET TITLE ACTION
139.

Plaintiffs repeats the allegations set forth above in paragraphs 1

through 52 as if set forth herein in full.


140.

At all material times, the Association knew or should have known that

the Plaintiffs properties were not bound by the Declarations.


141.

Notwithstanding its knowledge, the Association recorded various

instruments asserting claims or restrictions against Plaintiffs properties when the


Association knew or should have known that the Plaintiffs lots were not subject
to the Declarations.
142.

The instruments recorded by the Association are set forth in Paragraph

130 above and are repeated as if set forth herein in full.


143.

The Associations recorded instruments constitute a publication


- 29 -

against the title of Plaintiffs property that the Association knew or should have
known was false.
144.

Plaintiffs have valid title to their property as reflected in the Official

Records of Hillsborough County, Florida.


145.

As a direct and proximate result of the Associations publication,

there is a cloud on the title to Plaintiffs lots.


146.

Plaintiffs have been forced to retain the services of the undersigned

counsel to pursue their claim for damages.


WHEREFORE Plaintiffs respectfully pray that this Court grant declaratory
and injunctive relief requested herein and award compensatory damages as well as
attorneys fees and costs and such other relief this Court deems just and proper.
COUNT X
IMPLIED GRANT OF WAY OF NECESSITY
147.

Plaintiffs repeat the allegations set forth above in paragraphs 1

through 52 as if set forth herein in full.


148.

The original grantor of Bay Port Colony subdivision intended that the

subdivision residents would have access to the waters of Tampa Bay through the
waterways and boatlift.
149.

Since the inception of the subdivision, Plaintiffs and their

predecessors in interest have used the waterways in the Bay Port Colony
subdivision to access the navigable waters of Tampa Bay.
- 30 -

150.

Plaintiffs properties (Lots 18, 59, and 125) were granted an easement

across the waterways of the Bay Colony subdivision by dedication on plat as


reflected in Exhibit B, Plat Book 48, Page 6, of the Public Records of
Hillsborough County, Florida. The Plat reflects the waterways that are designated
Waterways Drainage Easement.
151.

The original grantors of Bay Port Colony subdivision dedicated

Longboat Boulevard and the land where the boatlift is located to the public as
reflected on Exhibit H, Plat Book 48, Page 4, of the Public Records of
Hillsborough County, Florida.

The plat specifically states that all canals are

dedicated to public use.


152.

There is a unity of title to the lands upon which the waterways and

boatlift sit and Plaintiffs lot, until such time as title was separated by the grantor
through the original conveyance of Plaintiffs lots to their predecessors in interest.
153.

The plat and the conveyance documents reflect the grantors intent to

create an easement to the waterways running through Bay Port Colony subdivision
and through the boatlift to provide access to the navigable waters of Tampa Bay.
154.

The only reasonable and practicable way of egress or ingress from

Plaintiffs property to the navigable waters of Tampa Bay is through the boatlift
constructed by the Grantor.
155.

From time to time work barges are necessary for maintenance of

- 31 -

seawalls, pylons, decks, and other waterfront features of Plaintiffs lots.


156.

The only reasonable and practicable way of egress or ingress for work

barges is through the boat lift, and same is reasonably necessary for the beneficial
use or enjoyment of Plaintiffs lots.
157.

The original grantor intended to convey to Plaintiffs lots an implied

grant of way of necessity to use the boatlift to access the waters of Tampa Bay
from their property for purposes of exercising their riparian rights and to allow
access of work barges to make repairs to the rear of Plaintiffs lots.
158.

The Association and its agent, Qualified Property, have blocked

Plaintiffs use of its easement by rekeying the boatlift and failing to provide
Plaintiffs with new keys.
159.

As a direct and proximate result of Defendants continuing violation

of Plaintiffs rights, Plaintiffs have suffered in the past, and will continue to suffer
in the future, direct and consequential damages, including but not limited to, the
loss of the ability to utilize their easement.
WHEREFORE, Plaintiffs respectfully pray that this Court grant declaratory
and injunctive relief requested herein and award compensatory damages as well as
attorneys fees and costs and such other relief this Court deems just and proper.
COUNT XI
VICARIOUS LIABILITY AGAINST THE ASSOCIATION

- 32 -

160.

Plaintiffs repeats the allegations set forth above in paragraphs 1

through 52 as if set forth herein in full.


161.

At all material times, Qualified Property was acting within the course

and scope of its duties as managing agent of the properties governed by the
Association.
162.

To the extent any of the actions alleged in the above Counts I, II, III,

IV, V, VI, VII, VIII, IX, and X were committed by Qualified Property, those
actions were committed with the permission of and at the direction of the
Association.
163.

As a direct and proximate result of the actions of Qualified Property,

Plaintiffs suffered damages.


164.

The Association is vicariously liable for the actions of its agent,

Qualified Property, and thus, it is vicariously liable for Plaintiffs damages.


165.

Plaintiffs have been forced to retain the services of the undersigned

counsel to pursue his claim for damages.


WHEREFORE, Plaintiffs demand compensatory damages as well as
attorneys fees and costs and such other relief this Court deems just and proper.
REQUEST FOR DECLARATION AND INJUNCTIVE RELIEF
WHEREFORE, in addition to the relief set forth in the above Counts,
Plaintiffs respectfully request:

- 33 -

a)

This Court issue a Declaratory Judgment that determines that

Defendants are in violation of Plaintiffs rights to utilize the easement across the
boatlift;
b)

This Court issue a Declaratory Judgment removing any cloud to

Plaintiffs title regarding the Association Declarations and declare that Plaintiffs
lots are not bound by those Declarations; and
c)

This Court issue injunctive relief against Defendants, including an

order requiring Defendants to provide Plaintiffs with access to the boatlift and
prohibiting Defendants from imposing HOA fees or fines against Plaintiffs.
DEMAND FOR JURY TRIAL
Plaintiffs demand a trial by jury on all issues so triable by right.
Dated: November 20, 2015
/s/Henry G. Gyden
Henry G. Gyden, Esq.
Florida Bar No.: 158127
GYDEN LAW GROUP, P.A.
1228 East 7th Ave.
Suite 200
Tampa, Florida 33605
Telephone: (813) 493-4181
Facsimile: (813) 337-0244 FAX
hgyden@gydenlaw.com
Attorney for Plaintiffs

- 34 -

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by filing with ePortal this 20st day of November, 2015, to:
Gregory D. Jones, Esq.
Garrett M. Brown, Esq.
Rywant, Alvarez, Jones, Russo & Guyton, P.A.
109 N. Brush Street
Suite 500
Tampa, FL 33602
gjones@rywantalvarez.com
gbrown@rywantalvarez.com
mkeni@rywantalvarez.com
acalderon@rywantalvarez.com

/s/ Henry G. Gyden


Henry G. Gyden, Esq.
Florida Bar No.: 0158127
GYDEN LAW GROUP, P.A.
1228 East 7th Ave.
Suite 200
Tampa, Florida 33605
Telephone: (813) 493-4181
Facsimile: (813) 337-0244 FAX
hgyden@gydenlaw.com
Counsel for Plaintiffs

- 35 -

BARRIER

SITE MAP FOR BAY PORT COLONY TGC STOCKING

Exhibit A

EXHIBIT B

EXHIBIT B

EXHIBIT C

Joseph R. Cinnfronc, P.A.


Joseph R. Cianfrone, Esq.
Stephan C. Nikoloff, Esq.
Tiffany A. Grant, Esq.
Daniel J. Greenberg, Esq.
Jennifer M. Sinclair, Esq.

LAW OFFICES OF

CIANFRONE & De FURIO


A Partners/tip ofProfessional Associations
I 964 Bayshore Boulevard, Suite A
Dunedin, Florida 34698
(727) 738-1100 - Fax (727) 733-0042

Dan@.attomcvioe.com

,James R. De Furio, P.A.


James R. De furio, Esq.
Allison J. Brandt, Esq.
Mary Zewalk Thomas, Esq.
David J. Lopez, Esq.

Neil E. Polster, Esq.


OfCounsel

January 3 I , 2014
To Owners Within Bay Port Colony Phase II, Unit II
Dear Owners:
Our firm represents Bay Port Colony Property Owners Association, Inc., the Homeowners
Association created to operate the residential community of Bay Port Colony.
As you know, membership in the Bay Port Colony Property Owners Association provides
numerous benefits, including use of the community's amenities such as boat lift, waterways,
expedited electronic gate access, participation in Association events and clubs; and use of the
tennis courts, dog run, pig roast area, and play grounds. Your annual assessment to the
Association pays not only for these amenities, but also for around the clock gate services,
manicured entry ways and common areas, a professional property manager, enforcement of the
deed restrictions, and maintenance of the canal and lake. These amenities and services serve to
enhance and preserve the value of your home and the homes that surround you, and make your
residence in the community more enjoyable. In addition, only Association members may vote in
the annual election and on critical issues affecting the community. For these reasons, and many
others, the Association wants to encourage your assistance in ensuring that the Association's
governing documents bind and/or remain in place as to all lots within Bay Port Colony.
An organizing committee has been established to ensure that the governing documents for Bay
Port properly include every lot and continue to do so. The names, addresses, and telephone
numbers of the owners making up the organizing committee are as follows:
Name
Address

Name
Address

Name
Address

Phone

Phone

Phone

Encl0i5ed please find a copy of the applicable Declaration of Covenants, Conditions and
Restrictions of Bay Port Colony Property Owners Association, along with the Articles of
Incorporation and By-Laws for Bay Port Colony Property Owners Association, Inc., and any
recorded amendments relative to same, and any other documents required by law.
In accordance with Chapter 712, Florida Statutes, or general real estate law, as applicable,
written consents or joindcrs, as applicable are being sought from the owners within enclosed plat.
A written consent or joinder form, as applicable, is enclosed for your use. Please fully complete
and have the record owners of your Lot sign and date the enclosed consent or joinder form,
indicating your approval to continue and/or bind the restrictions to the relevant lots. Please then

Exhibit D
IVcserve1-yrcserver3\Wl'Docsfilcr31BayPor1Co/onyPOA. /nclRevitalizalion\Ownerl,lr.llayl'orl.doc

Exhibit D

EXHIBIT E

EXHIBIT E

Dear Homeowner,D 0
The Homeowners Association just completed the process of correcting a defect that was
discovered in our governing documents. Out of the 137 homes in the BayPort
subdivision, 98 needed to undergo what is called 11revitalization 11 in order to keep our
deed restrictions and governing documents in force and legally binding. These 98 homes
are now back in the Association after a majority of homeowners voted in favor of the
revitalization.
In the process of correcting this defect, Association attorneys discovered that 39
additional lots, of which you are one, were never !")roperly bound to th.e original
governing documents at the very first sale. The:.;e lots could not correct the defect
through revitalization, and must opt-in by signing a Joinder and Consent. Please know
this error occurred with the original developer and came to light only after exhaustive due
diligence was performed. Simply put, this was a filing error, and your lot has always
been assumed to be part of the Association for the past 30+ years.
These 39 lots have changed hands (in some cases, multiple times) over the years. At each
closing, the governing document may have been bound to the deed. We believe that
through ex.pensive and time-consuming title searches, we could perhaps bring the
majority of these lots back into the Assoc. However; that would be after significant cost
to the community in legal e:>..-pense. Rather than incurring more fees, the Board asks that
you please complete the enclosed Joinder & Consent that will bring you into the
Association.
By opting out of the Association, please understand the increased burden this places on
your neighbors and community. It also threatens you and your neighbors, property
value. Deed restricted comm.unities offer greater certainty in the appearance and
maintenance of surrounding homes, entrances and common areas. The cost of
maintaining these assets is fixed, so nonpayment by some puts a greater burden on the
rest. Prospective buyers may reconsider purchasing homes in BayPort, since the ability
to enforce deed restrictions is now more difficult Uncertainty over homes that may or
may not be part of the Association runs counter to how this community has existed for
over 30 years. In addition, only members oftbe Association can only use the waterways,
boatlift, and other amenities. The Board of Directors has a responsibility to enforce the
rules and protect its membership.
Please help your community avoid the e>,,."tra costs and enforcement work by completing
the attached document and returning it to the address shown.
Thank you,
Board of Directors
BPCPOA, Inc.

EXHIBIT F

EXHIBIT G

EXHIBIT H

EXHIBIT I

EXHIBIT I

EXHIBIT I

EXHIBIT I

EXHIBIT I