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...