Homeowners,
During the January 18, 2011 Board of Directors meeting, a homeowner addressed the responsibility of repairing the sidewalks along Foothills Drive as being that of the individual homeowner, not the association as a whole.
The Board members present rebutted this homeowner by stating that the sidewalks were a part of the common area, and having consulted legal counsel, they felt that the association could be at risk for paying damages caused by the trees if taken to court. Therefore, the board determined that it was in the associations’ best interest to consider the association responsible for the damage to the sidewalks along Foothills caused by the street trees.
The homeowner then replied that the Board was not authorized to make such a determination without approval of a majority of the homeowners, noting section 9 of the CC&Rs. The board’s response was the same without due consideration or review of the actual CC&Rs.
Upon review of the CC&Rs that the homeowner addressed and the board’s argument, I find that the homeowner was correct and the board (to include legal counsel’s assessment) is wrong on this particular issue.
CC&R Section 7 – Maintenance and Assessments part 7.1 states the following:
7.1 Oak Knoll has or will have certain improvements which are for the benefit of all Lots. These improvements include: Sign monuments to be installed on Lot 29, Oak Knoll; traffic circle at intersection of Foothills Drive and Center Street; planter strips along Foothills Drive; and street trees on each Lot…All of the common areas and improvements are collectively called “Common Improvements.”
Under this section, nowhere is it annotated that the sidewalks along Foothills Drive are included in the association’s “Common Improvements.”
Notwithstanding, when you juxtapose this section with the following, it makes it perfectly clear as to who has the responsibility for the maintenance and repair of sidewalks on each Lot.
7.3 Each Owner shall be responsible for the maintenance of the sidewalks abutting his Lot, including any damage caused by the street trees.
Section 8 Maintenance of Lots also makes it clear as to who is responsible for the maintenance of any trees upon a Lot, which states the following:
8.1 Each Owner of any Lot in Oak Knoll shall maintain the condition of said Lot and any and all improvements thereon, including, without limitation…landscaping, sidewalks,…, trees…in a reasonably clean, neat, attractive and visually pleasing manner…
The Board of Directors do not have the authority to assess the entire association for the maintenance, repair or replacement of any damage to the sidewalks along Foothills Drive caused by the street trees. That responsibility rests with the homeowner of each individual Lot.
Moreover, the street trees along Foothills Drive are not a “common improvement” of the association; and as such, they are not the responsibility of the association to maintain, repair or replace, but rather the homeowner of each individual Lot.
CC&R Section 9 – Amendments or Modifications states the following:
9.2 This Declaration may be amended or modified by an instrument signed by not less than seventy-five percent (75%) of the then Owners of Lots in Oak Knoll after seventy-five percent (75%) of Lots 1 through 41 in Oak Knoll have been conveyed to Owners by the Declarant.
9.3 Any and all amendments or modifications to this Declaration must be in writing and shall be recorded as an amendment or modification to this Declaration in the official and public records of Yamhill County, Oregon.
To date I am unaware of any amendment or modification passed by 75% of the homeowners let alone filed with the Yamhill County Clerk reflecting that any damage to the sidewalks along Foothills Drive caused by the street trees as being a “Common Improvement,” therefore the responsibility of the association as a whole.
Additionally, there is no amendment or modification that has been passed by 75% of the homeowners classifying the street trees along Foothills Drive as being a “Common Improvement” of the association. As such, the association should not be assessed the $13,650 reserve to maintain, repair and replace the street trees along Foothills Drive let alone the maintenance or repair of the sidewalks damaged by said trees.
Regarding the vague explanation given where legal counsel was concerned by one of the board members present, it would not matter if someone took the association to court over the damages to the sidewalks along Foothills Drive should they be harmed in one manner or another due to that damage. That person would lose such a case because it is not the association’s legal responsibility; it is the homeowner’s of the adjoining Lot, and it would be that homeowner taken to court (should such a circumstance ever arise) over the damages left unrepaired, not the association.
Last but not least, one of the board members said that our CC&Rs are basically a cut-n-paste job from other association CC&Rs, thus implying they were more guidelines than rules for them to follow. It does not matter how our current CC&Rs were put together, they are the CC&Rs of our association and they are to be followed to the letter.
Last but not least, one of the board members said that our CC&Rs are basically a cut-n-paste job from other association CC&Rs, thus implying they were more guidelines than rules for them to follow. It does not matter how our current CC&Rs were put together, they are the CC&Rs of our association and they are to be followed to the letter.
Oregon Revised Statutes make it perfectly clear that the Board of Directors (having assumed responsibility of the association when turned over by the declarant, thus taking on the responsibility of the declarant where the homeowners association is concerned), as well as the homeowner, is bound to follow the CC&Rs:
94.777 Compliance with bylaws and other restrictions required; effect of noncompliance. Each owner and the declarant shall comply with the bylaws, and with the administrative rules and regulations adopted pursuant thereto, and with the covenants, conditions and restrictions in the declaration or in the deed to the lot. Failure to comply therewith shall be grounds for an action maintainable by the homeowners association or by an aggrieved owner. [1999 c.677 §36]
The Board of Directors, as is each homeowner, is bound by the CC&Rs, Bylaws and the Oregon Planned Community Act. To date the Board of Directors have been violating the CC&Rs (and ORS 94.777) by holding the association accountable via assessment (through past and present budgets) as a part of our annual dues for the maintenance and repairs to the sidewalks that are damaged by the street trees, as well as the replacement of street trees along Foothills Drive.
Oregon Planned Community Act ORS 94.550 to 94.783
Oregon Planned Community Act ORS 94.550 to 94.783
The Board of Directors will be challenged to produce unambiguous and legitimate legal documentation annotating that the sidewalks and street trees along Foothills Drive are a "Common Improvement" of the Oak Knoll Community at the next Board meeting.
ReplyDeleteIf they cannot produce this documentation, be it by CC&R or an amendment or modification to the CC&Rs (which requires 75% of the homeowners agreeance thereto), then I assert that the reserve account of $13,650 and any past funds paid towards the repair and replacement of either, remain unauthorized expenditures under the governing documents of our HOA.
I asked the Board to be prepared to produce the above referenced evidence at the Feb. 15th meeting, and they came unprepared and with a "better than thou" attitude.
ReplyDeleteOne of the board members was rather condescending to the other homeowner present when that homeowner provided clear and convincing evidence that the Board assumed a liability for which it was not entitled to do; especially without an amendment or modification of the CC&RS (requiring an approval of no less than 75% of the homeowners) in its November 2010 letter announcing it had paid for repairs to the sidewalk on Foothills Dr.
For more details, read the Feb. 15, 2011 Board Meeting Notes posting (above).