May 2005 Board of Directors ADMITS street trees Developer's responsibility, not homeowners!

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In this May 2005 OKHA Newsletter, the Board of Directors ADMITS that the Developer was obligated via its contract with the City of Newberg to plant the street trees on each lot BEFORE a Final Occupancy Permit was to be issued.

The Board of Directors further ACKNOWLEDGES that the City of Newberg was NEGLIGENT in enforcing its own ordinance (and by extension its legally binding contract with the developer) in having the street trees planted prior to the occupancy permits being issued.

As such, the Board of Directors was going to work with the City of Newberg to rectify this matter...of course to no avail; and it was never spoken of again until years later (approximately 2008) when the management company took lead, sending letters to all the homeowners advising them that they needed to plant the street trees on their lots.

Unfortunately for all the homeowners who didn't know any better, under the Oregon Revised Statutes, the statute of limitations on enforcing this alleged violation of the CC&Rs requiring the street trees ran out years before and had no legal authority to force homeowners to plant street trees on their individual lots.

Dear Board Members (a response to the Feb. 15, 2011 side discussion):

Dear Board Members,

At the February 15, 2011 Board meeting when I said I am not trying to be adversarial and only want everyone to follow the rules, I meant it.

When two of you retorted that I should follow the rules as well and plant street trees on my lot, that was clearly an irrational emotive knee-jerk reaction.

I am following the rules, which are the rules that govern the binding legal agreement between the City of Newberg and the Developer of Oak Knoll; and more specifically, that of the Oregon Revised Statutes governing Planned Communities.

The responsibility to plant street trees on individual lots rested (and still rests) with the Developer as a stipulation of their legally binding contract to develop this community, not the individual homeowners.

To the board member who stated that I didn't win in this case merely because they decided not to foot the legal bills to force me to plant street trees, I'll say again...I did win. You know just as well as the HOA attorneys that you hired that the HOA would have lost in court based on three simple legal facts:

1. The legal obligation to plant the street trees rests with the Developer per their development contract with the City of Newberg (as a stipulation before getting their occupancy permits).

2. ORS 94.780(3) clearly states: A suit or action arising under this section must be commenced within one year after the discovery or identification of the alleged violation.

3. OKHOA Newsletters dating back to August 2000 officially put in writing the Board of Director's "discovery or identification of the alleged violation," and the Board had one year from that date to commence a suit or action in the matter.

In this specific issue, like many more probably to come (which depends entirely on the Board in following the rules and reading the CC&Rs literally and not subjectively interpreting it), in the end I ultimately forced the Board of Directors to follow the rules - namely ORS 94.780(3).

Since it was not brought to my attention by the HOA until late 2008, I was not obligated to follow the illegal (because you cannot pass a legal obligation of the legally binding party to a contract onto that of another party not a part of the original contract stipulating the required obligation) CC&R provision to have street trees planted on my lot. The Board was 8 years too late...

And any consideration to revisit the issue in the present would be foolhardy on your part...as the limitations of commencing a suit or action on the street tree issue died more than 10 years ago and was laid to rest 2 1/2 years ago by the Board conceding to my rebuttal to its position, thereby dropping the matter.

In any case, no judge in his or her right mind would defy a state statute that was so clearly written as a protection for not only the HOA, but also the homeowner.

Hence the REAL REASON (and not so much the sheer legal costs as alluded to) why the Board dropped this matter back in 2008, because the Board knew it could not win based on the statute of limitations placed upon it within ORS 94.780(3).

So while I may not have won the issue in court...I prevailed on the legal merits of the issue nonetheless.

And while some of you conveyed your disapproval at the "unfairness" to the other homeowners that I don't have street trees...all I can say is that they didn't know any better whereas I did in not being taken advantage of! Moreover, it is "unfair" of the Board to force a homeowner to perform an act when the Board knows that homeowner is not legally obligated to do so.

Nevertheless, life isn't fair; and I would rather be one who defies unfairness and lead by example in defending not only my own rights, but the rights of others who are also affected by that same unfairness being forced upon them.

Bottom line, if I - as a homeowner - am required to abide by the CC&Rs and the Oregon Revised Statutes that govern our community, so is the Board of Directors. And that is EXACTLY what I meant tonight when I said that I am not trying to be adversarial, as I only want the rules and the laws followed by all affected by them.

This also means that as the Board of Directors, if you fail to act in a timely manner on an alleged violation of the CC&Rs, then that is a responsibility the Board of Director's must and shall bear.

That being said, it's bad form to be angry (and express that discontent) at the homeowner for defending their rights (on principle and under the law) in the face of the Board's failure to act properly and timely on the issue in question.

Sincerely Yours

February 15, 2011 Board Meeting Notes

Dear Homeowners,

I just returned from tonight's Board meeting and must say, it was quite telling.

The homeowner who questioned the Board regarding the maintenance and repair of the sidewalks along Foothills was present, as was I, but no other homeowner.

This other homeowner went first during the initial open forum making several valid points regarding the issues concerning Foothills Dr, namely whether or not the Board has a written legal opinion vs. that of a verbal one from the lawyer(s) they referenced during the last Board meeting who opined that it was the HOA liability to assume responsibility for the maintenance and repair of the sidewalk along Foothills Dr. The Board responded that they did not get it in writing and were merely acting upon that verbal opinion.

It was then readdressed by this homeowner that by assuming the responsibility of the maintenance and repairs of the sidewalks along Foothills Dr, the Board opened itself up to the liability of personal injury suits should someone injure themselves as a result of a damaged sidewalk along Foothills. The Board member present who primarily engaged this homeowner rationalized that assumed liability because he believed that the street trees are owned by the HOA, therefore the damage to the sidewalks were a responsibility of the HOA.

In short, this homeowner's primary argument was that the CC&Rs are perfectly clear as to who has the responsibility for the sidewalks along Foothills Dr; and as such, if the Board wants to assume liability for the maintenance and repairs of the sidewalks as a "common improvement," then under CC&R Section 9.2 and 9.3, the Board is required to petition the homeowners with an amendment or modification before, not after, taking on a responsibility that is clearly not defined in the CC&Rs.

He produced the November 2010 letter announcing that $950 had already been paid to repair a section of the sidewalk indicating that the Board assumed liability for those repairs. The Board member asked him to show him where it literally stated the Board was assuming that liability. I interjected and clarified that by the actions of the Board alone implies that the Board made itself liable, it doesn't have to be said or written of specifcally. I then provided the analogy of a good samaritan coming to the aid of an injured person, and if by action they caused further harm to that person, that samaritan by their action would be liable.

I interjected further into the conversation by asking the Board member where in the CC&Rs it states that the street trees, let alone the sidewalks along Foothills Dr, does it clearly state that they are owned and the responsibility of the HOA. He indicated that it is in the CC&Rs without citing where, and I replied that it was not and read Section 7.1 to the members present, which clearly states:

"Oak Knoll has or will have certain improvements which are for the benefit of all Lots. These improvements include: Sign monument to be installed on Lot 29, Oak Knoll; traffic circle at intersection of Foothills Dr and Center St; planter strips along Foothills Drive; and street trees on each lot...All of the common areas and improvements are collectively called "Common Improvements."

I then pointed out that nowhere in that section does it implicitly state that the "sidewalks" and "street trees along Foothills Dr" shall be considered a "Common Improvement" of the HOA. Moreover, Section 7.3 makes it perfectly clear, when juxtaposed to 7.1, whose responsibility it is to maintain the sidewalks along Foothills Dr should damage occur as a result of the street trees: the homeowner.

He then tried to rationalize that issue by stating that the "planter strips" included the street trees; and I reiterated that the Board cannot interpret what it wants to into the CC&Rs to say; it has to be read as it was written and meant to convey by the specific wording of the section.

After a few other exchanges, he wanted to agree to disagree to cease the discussion and closed by stating that they will speak with the attorneys on the proper reading of 7.1 juxtaposed with 7.3; as well as the issues on liability and how they came concensus that following a verbal response by the attorneys was the appropriate thing to do (i.e. rather than getting it in writing ensuring they were doing the correct and legal thing by their actions in assuming the responsibility of what is clearly identified as the homeowner's in the CC&Rs).

So we'll see if the Board follows through with what they say they are going to do and whether or not the HOA's attorney gives good or bad legal advice in the matter.

Stay tuned...