HomeMy Public PortalAboutLTC 026 - 2015 -Church by the Sea - Deed RestrictionsAAL H BOUR
F I. O R 1 D A' S 1, A R A U I S E
OFFICE OF THE VILLAGE MANAGER
NO. 026-2015 LETTER TO COUNCIL
TO: Mayor Martin Packer and Members of the Village Council
FROM: Jorge M. Gonzalez, Village Manager
DATE: February 11, 2015
SUBJECT: Church by the Sea - Deed Restrictions
The purpose of this Letter to Council (LTC) is to transmit the attached memorandum
reference the right to terminate Deed restrictions applicable to the Church by the Sea
property, provided by Weiss Serota Helfman Cole Bierman & Popok, P.L..
Should you have any questions or require additional information, please feel free to call the
Richard Weiss or me directly.
Attachment
MITCHELL BIERMAN. P.A.
MITCHELL J. BURNSTEIN, P.A.
JAMIE ALAN COLE, P.A.
STEPHEN J. HELFMAN, P.A.
MICHAEL S. POPOK, P.A.
JOSEPH H. SCROTA, P.A.
SUSAN L. TREVARTHEN, P.A.
RICHARD JAY WEISS, P.A.
DAVID M. WOLPIN, P.A.
DANIEL L. ABBOTT
LILLIAN M. ARANGO
IGNACIO O. DEL VALLE
JEFFREY D. DECARLO
ALAN K. FERTEL
CHAD S. FRIEDMAN
ALAN L. GABRIEL
DOUGLAS R. GONZALES
EDWARD G. GUEDES
JOSEPH HERNANDEZ
ROGER S. KOSERT
JOSHUA D. KRUT
MATTHEW H. MANDEL
MATTHEW PEARL
JOHN J. OUICK
ANTHONY L. RECIO
BRETT J. SCHNEIDER
CLIFFORD A. SCHULMAN
ALISON F. SMITH
ERIC L. STETTIN
MARC SOLOMON
LAURA K. WENDELL
JAMES E. WHITE
WEISS SEROTA HELFMAN
COLE BIERMAN & POPOK, P.L.
MATEO ARIAS
ELISA N. BRAMBLE
ATTORNEYS AT LAW
SONJA C. DARBY
DANIEL A. ESPING
A PROFESSIONAL LIMITED LIABILITY COMPANY
BRADLEY A. FISHOURGER
INCLUDING PROFESSIONAL ASSOCIATIONS
PAUL R. GOUGELMAN
ERIC P. HOCKMAN
MIAMFOADE OFFICE
SCOTT M. H•MAN
2525 PONCE DE LEON BOULEVARD
KELLY RAINS JESSON
"REM LIEBERMAN'
SUITE 700
JUSTIN D LUGER
MIA R. MARTIN
CORAL GABLES, FLORIDA 33134
ALE IDA MARTINEZ MOLINA'
EDWARD MARTOS
TERENCE L. MCKINLEY'
TELEPHONE 305-854.0800
KATHRYN M. MEHAFFEY
FACSIMILE 305-854-2323
ROBERT A. MEYERS'
GILSER-O PASTORIZA"
WWW.WSH-LAW.COM
MARC C. PUGLIESE'
GAIL D. SCROTA'
BROWARD OFFICE
ANTHONY C. SOROKA
200 EAST BROWARO BOULEVARD • SUITE 1900
EDUARDO M. SOTO'
FORT LAUDERDALE, FLORIDA 33301
ALAN SWCHARTZSEID
TELEPHONE 954-763-4242 •FACSIMILE 954.7647770
PABLO A. TAMAYOJOANNA
G. THOMSON
PETER D. WALDMAN'
ALICIA H. WELCH
'OF COUNSEL
SAMUEL I. ZESKIND
"SENIOR COUNSEL
February 9, 2015
Mayor Martin Packer
Members of the Bal Harbour Village Council
Bal Harbour Village Hall
655 - 96th Street
Bal Harbour, Florida 33154
Re: Right to Terminate Deed Restrictions applicable to Church by the Sea
Property
Dear Mayor Packer and Council Members:
You have been provided with a Memorandum dated November 19, 2014 ('Katz
Memo") from Michael D. Katz, Esq., attorney for Bal Harbour Shops, LLLP ("LLLP")
regarding the property owned by the Church by the Sea ("Church;" the property owned by the
Church is the "Church Site"). The Katz Memo references the various deeds that conveyed the
Church Site and the deed restrictions applicable to the Church Site ("Deed Restrictions"). The
Katz Memo concludes that "Bal Harbour Shops, LLLP ("LLLP") owns and controls the Deed
Restrictions on the Church site."
At your request, we have reviewed the Katz Memo and the copies of deeds attached to it.
We have also reviewed Fidelity National Title Insurance Company Commitment Order No.
4981206 dated October 6, 2014 ("Title Commitment") provided to us by Mr. Katz.
Mayor Martin Packer
Members of the Bat Harbour Village Council
February 9, 2015
Page 2
Miami Beach Heights, Inc. ("MBH") conveyed the Church Site to the Church by two
separate Warranty Deeds in 1947 and 1951 (collectively, "Deeds").' Both Deeds contain the
same Deed Restrictions, the most significant of which reads as follows:
The lands above described shall be used exclusively for church, religious,
and religious educational purposes, and by Caucasian followers of the
Christian faith only.
The Deeds expressly gave MBH the right to enforce the Deed Restrictions2, as well as the right
to assign its rights, obligations and privileges under the Deeds to Bat Harbour Club, Inc. or any
other person or corporation.3
In 1955, MBH quitclaimed to Harbour Square, Inc., a Florida corporation, all of MBH's
rights, obligations and privileges set forth in the Deed Restrictions.4 In 1957, Harbour Square
changed its name to Bat Harbour Shops, Inc. ("BHS") 5
BHS was voluntarily dissolved on January 19, 1973.E Forty-one years later, on July 29,
2014, Stanley Whitman executed a quitclaim deed ("2014 QCD") conveying to the LLLP the
right to enforce the Deed Restrictions. The 2014 QCD recites that Stanley Whitman is the sole
surviving member of the last Board of Directors of Bal Harbour Shops, Inc., a dissolved
corporation.'
Section.608.30 of the Florida Statutes, in effect at the time B14S was voluntarily
dissolved in 1973, authorized the conveyance of a dissolved corporation's property by a majority
of the surviving directors of the corporation as trustees, and provided for an optional affidavit to
be appended to the deed identifying the trustees.
1 Warranty Deeds from Miami Beach Heights, Inc. to Church by the Sea dated June 5, 1947 and
recorded in Deed Book 2836, Page 198; and dated October 10, 1951 and recorded in Deed Book
3505, Page 170. (Note: all recording references are to the Public Records of Miami -Dade
County, Florida).
2 Deeds, Paragraph 10.
3 Deeds, Paragraph 13.
° Quitclaim Deed from Miami Beach Heights, Inc. to Harbour Square, Inc. dated February 25,
1955 and recorded in Deed Book 4050, Page 315.
5 Florida Department of State, Division of Corporations, name history for Bat Harbour Shops,
Inc. from Sunbiz.org.
r' Florida Department of State, Division of Corporations, listing for Bat Harbour Shops, Inc. on
Sunbiz.org.
' Quitclaim Deed from Bat Harbour Ships Inc. to Bat Harbour Shops, LLLP, dated July 29, 2014
and recorded on November 20, 2014 in Official Records Book 29399, Page 2971.
WEISS SEROTA FIELPMAN
COLE BIERMAN & POPOK, P.L.
Mayor Martin Packer
Members of the Bal Harbour Village Council
February 9,2015
Page 3
(2)(a) The directors of the corporation at the time of dissolution or
expiration shall be and constitute it board of trustees for the property owned
by the dissolved or expired corporation. In the event of vacancies in the
board of directors at the time of dissolution or expiration the remaining
directors, as trustees, may fill them from among the stockholders.
Subsequent vacancies may be tilled by the surviving trustees in 'like
manner. Acts of a majority of the trustees or of a majority of the surviving
trustees shall be acts of the board of trustees.
(3)(c) The trustees may do all acts necessary and proper to the final
settlement of all the affairs of the corporation, including but not limited to
the following: They may convey, assign, release, subordinate and satisfy
any right, title, interest, claim, lien or demand in, to or upon real property
standing of record in this state in the name of such dissolved corporation. It
shall not be necessary for any stockholder to execute such deed, but
execution thereof by a majority of the trustees or a majority of the
surviving trustees shall be adequate. All deeds or other instruments so
executed in the past are hereby validated in all respects. The trustees so
executing any such instrument may append thereto an affidavit stating in
substance that they are duly qualified to act as such trustees, and that they
constitute a majority of the trustees then existing. Such affidavit, as to
purchasers without notice, shall be taken and held to be conclusive as to the
facts therein staled. The trustees shall continue as trustees of the property of
such dissolved corporation so long as it holds of record in this state any
right, title, interest, claim, lien or demand in, to, or upon real property.
"[emphasis added]
The records for BHS on Sunbiz, the website for the Florida Department of State, Division
of Corporations ("FDOS") reflect that the last directors of BHS were Stanley Whitman, William
F. Whitman, and Dudley Whitman. William Whitman died in 2007, and Dudley Whitman died in
2011.9 Assuming that the FDOS records for BHS are accurate and current, Stanley Whitman is
the sole surviving director with authority to execute conveyances that serve to settle the affairs of
the dissolved corporation.
We have requested copies of the last corporate filings by BHS to confirm the time
between the tiling of the last annual report and the January 19, 1973 date of dissolution.10 We will
advise you once we obtain the requested information if it causes its to change any of the matters
s Section 608.30(3)(c), Florida Statutes.
Bill Whitman, 92, is Dead; Scoured the Earth for Rare Fruit, New York Times, June 4, 2007;
Dudley passed away on Friday, July 15, 2011, Tributes.com.
10 Documents filed with FDOS prior to 1996 are not available online.
WEISS SEROTA HELFMAN
COLE BIERMAN & POPOI{, P.L.
Mayor Martin Packer
Members of the Bal Harbour Village Council
February 9, 2015
Page 4
set forth in this letter. However, there is no reliable way to confirm from any public records the
identity of surviving directors of a corporation. Although a Florida corporation's annual report
tiled with the FDOS will show the officers and directors at the time of tiling, there is no
requirement for the corporation to update the filing to reflect changes that occur during the year.
While no affidavit was appended to it, the 2014 QCD affirmatively states that Stanley
Whitman is the sole surviving member of the last Board of Directors of BHS. The Title
Commitment obtained by the LLLP for the Church Site includes an exception stating that the
Deed Restrictions are in effect "unless terminated by Bal Harbour Shops, LLLP," indicating that
the title company is satisfied that the LLLP is the current holder of the right to terminate the
Deed Restrictions.
In the course of our research for this letter, we noted that a new corporation with the
name Bal Harbour Shops, htc. was formed on July 28, 2014, with Stanley F. Whitman, Randall
A. Whitman, and Matthew W. Lazenby as the initial directors of the corporation. In response to
our question about the formation of a new corporation with the same name as the one dissolved
in 1973, on the day before the dissolved corporation conveyed its rights with regard to the Deed
Restrictions, we were advised by Michael Katz that the new corporation was formed solely to
control the name (Bal Harbour Shops, Inc.) so that it cannot be used by anyone else.
Based on our review of the series of conveyances described in this letter and the Title
Commitment, we believe that the LLLC holds the right to enforce, waive, modify or terminate
the Deed Restrictions.
Respectfully yours,
Weiss Scrota 1-lelfm;5=
Popok11o�,e
Gail D. Scrota
GDS/
027109
cc: Richard Jay. Weiss, Esq.
11 According to the FDOS website, the name of a voluntarily dissolved Florida corporation
becomes available for use by another party 120 days after dissolution. In the case of a
corporation that is administratively dissolved, the name becomes available one year after
dissolution.
WEISS SEROTA HELFMAN
COLE BIERMAN & POPoE, P.L.