Why do HOAs have CC&Rs in the first place if they CANNOT BE ENFORCED!?!

"The trial court granted the motion to dismiss the writ of mandamus, concluding that the association had no legal duty to enforce the CCRs and that mandamus could not issue to compel performance of a discretionary act."

This was the statement written in ruling provided in the following case in Oregon:

LARRY D. LEVASSEUR
and THETA LEVASSEUR,
Plaintiffs-Appellants,
v.
LOWELL ARMON,
DONNA ARMON,
BOARD OF DIRECTORS OF HIGH LOSTINE OWNERS' ASSOCIATION,
and THE HIGH LOSTINE OWNERS' ASSOCIATION

LINK TO CASE

While I intend to file a Writ of Mandamus to force the Oak Knoll Homeowners Association to follow established Oregon Revised Statutes...this court ruled that such a Writ "could not issue to compel performance of a discretionary act."

That "discretionary act" is the enforcement of the CC&Rs.

So I ask each and every one of you homeowners in the Oak Knoll Community...what is the purpose of an HOA if the HOA has the "discretion" to enforce the CC&Rs?

In other words, whomever is on the BOD can selectively enforce the CC&Rs against those they do not like while favoring others they do like.

After all...the Court of Appeals of Oregon ruled that the CC&Rs are "discretionary" (i.e. guidelines) and do not need to be followed, and the HOA is not held accountable for their lack of enoforcement (another point, I might add, which was also written into the 1995 CC&Rs of our community).

Regardless of the cited case, the legal question arbitrarily dismissed by the apellate court was enforcement of the CC&Rs...it did not address the enforcement of the law (i.e. Oregon Planned Community Act); and as we all know, everyone to include profit and not for profit corporations (which are legally equal to that of being a person) is required to follow the law.

Therefore a Writ of Mandamus compelling the BOD to follow the law where the requried reserve study and maintenance plan is required shall pass muster and be ordered upon the BOD. Even in the cited ruling it references that a Writ may force/compel someone, like an HOA, to follow established law.

It's only a matter of time before my filing shall be ready...

Until then, condsider everything that has been written herein this blog.

Has the BOD of this HOA really served our interests?

Some may question if it is really necessary for this community to have an HOA, since it has failed in its duties since 1997. Then there is the question of whether or not we can police our own and utilize those local ordiances and state laws if and when necessary to ensure our community is as presentable as it has always has been without the obvious LACK OF assistance of our BOD and HOA via the ineffective Superior Community Management Company for which we, the homeowners, pay more than $11,000 a year TO DO NOTHING!!!!

ATTENTION: August 22, 2011 Letter from the HOA Board of Directors!!! - UPDATED 8/27/11

As of August 23, 2011 everyone within the Oak Knoll Community should have received the above letter regarding the proposed amendments to the current and dated (1995 - i.e. antiquated) CC&Rs.

This letter and the proposed changes clearly comes as a result of many of the arguments myself (primarily) and (sadly) a few other homeowners (there needs to be a greater emphasis on our part as homeowners to hold the BOD accountable for their ineptness and accountability for their failures that eventually harms us collectively as homeowners) who have attended past Board of Director (BOD) meetings regarding the issues (among others) addressed in this letter we just received.

I am going to address the first two issues individually with a little analysis of concurrent position given their latest response with their proposed changes, or amendments, to the CC&Rs that does require more than 75% approval of all homeowners within the Oak Knoll Community.

1. Street Trees:

The BOD are correct that the current CC&Rs as they were written in 1995 state clearly that the Homeowners Association (HOA) is to be responsible for the maintenance, repair and replacement of all street trees within the association as a  "common improvement."

However, ever since the first BOD was established, they incorrectly interpretted this section of the CC&Rs to mean only those street trees along Foothills Drive (how they came to this conclusion given the clear language of the CC&Rs is beyond me), thus the fees we have been assessed over the years to maintain, repair or replace the street trees along Foothills Drive ONLY.

This incorrect interpretation was addressed as a result of the BOD voting in a reserve account this past 2010 for the 2011 budget year.

This reserve acount is in clear violation established Oregon Law because the BOD FAILED TO CONDUCT A RESERVE STUDY AND PREPARE A MAINTENANCE PLAN as required by law (all of this is covered in a previous posting in a letter I addressed to the BOD on March 27, 2011 - see the March archive postings for this letter for more detailed information, to include the cited CC&Rs and City of Newberg Ordinances), in order to replace several street trees along Foothills Drive over the years, as well as repair the sidewalks along Foothills Drive damaged by these sreet trees for which it was not responsible for.

The BOD is correct in that if it followed the actual directives of the 1995 CC&Rs, that the HOA is responsible for ALL the street trees of the association...our annual dues would be unconscionable.

Yet they are proposing to continue the status quo whereby the homeowners continue to pay dues that goes towards the care, maintenance, repair, and/or replacement of street trees along Foothills Dr...a responsibility that is specifically made clear by the City of Newberg Ordinance (which legally trumps the CC&Rs) and another albeit conflicting CC&R that the homeowners IS the sole entity responsible for the care, maintence, repair, and/or replacement of the street trees in the entire community.

What the BOD is proposing is still technically an unfair measure given the fact that it benefits those homeowners along Foothills Dr. at the expense of the remainder of the rest of the homeowners within this community.

Sure homeowners pay intp the annual dues too, but it's a small fraction of the price that it would take for all the other homeonwers responsible for the maintenance or replacement of a their own street trees should they need care, maintenance, or replacement if it dies. In other words, the homeowners along Foothills Drive get the better end of the deal if this proposed amendment passes.

Personally I say that the BOD propose an amendment that remmoves the statement that the HOA is responsible for all the street trees within the community; and leave that responsibility to each homeowner as it is clearly mandated by the City of Newberg Ordinance, in addition to the other section of the CC&Rs regarding our responsbilities towards maintaining the landscaping of our respective lots...which includes the care, maintenance, repair or replacement of the street trees.

2. Sidewalks:

The BOD was incorrect when it stated that there was a conflict between sections of the CC&Rs (and at this point I find it interesting that they did not even cite any of the sections of the CC&Rs they were referring to so each homeowner could read and interpret for themselves exactly what was being addressed by this letter proposing we change the CC&Rs) regarding the responsibility of damage to the sidewalks caused by street trees in the planter strips.

CC&R 7.3, in addition to the City of Newberg Ordinances makes it perfectly clear that each of us as homeowners are responsible for any damage to the sidewalks caused by the street trees. Therefore there is no "conflict in the documents in who is responsible for the sidewalk repair."

The BOD assertion that their interpretation of the HOA is responsible for all care, maintenance or replacement of street trees is equal to the damage they may cause to the sidewalks is without rational or legal merit.

Just as the BOD stated if it followed the CC&Rs as written in 1995 assessing the association for all street trees in the community as a "common improvement," thus raising our annual assessment, so would the additional cost of continuous repairs to the sidewalks throughout the entire community as well.

Additionally, the BOD's belief that their interpretation "is to protect the Assocation's interest in street trees" is on its face fallacious. It was actually preordained and continuous held by the City of Newberg that street trees are a "beautification" aspect of the communities under those neighborhoods subject to the Planned Community Act, like our commnity is.

Drive across College, let along through the Fenway Park (our neighbor community) and you'll see a community of homes that are clearly not under the enforcement of a legitimate HOA.

Thus the observable deteriorating lots, weeds, a lack of street trees, and more unsightly things across each home drive past. However, once you get to the High School and the NEW development area...things are much nicer.

So clearly a HOA with intelligent BOD that can accurately interpret, follow and enforce the CC&Rs of their community do in fact serve a purpose in keeping a community clean and presentable.

However, if you have a BOD that do not know what they are doing (or have been doing over the years)...that BOD is a hindrance and not a benefit to that community. This is EXACTLY what our BOD have been doing for our community since the creation of the Oak Knoll Community and the first established BOD to present day!!!!

Notwithstanding, the BOD assertion that a homeowner fixing a damaged sidewalk causing "significant harm to a street tree during the sidewalk repair without ever notifying the Association of the repair" is patently false.

It is clearly written in the CC&Rs that any landscaping or architectural changes to a homeowners lot MUST go through the Design Review Committee FIRST!

Also, according to the City of Newberg's Ordinaces the homeowner must inform the city FIRST (and in some cases obtain a permit) in order to replace a tree or repair a sidewalk. So there would be no lack of notification...this is just a scare tactic on the part of the BOD to coerce you into approving this amendment at our expense.

Additionally, the BOD management company or attorneys, or whomever wrote this letter were also incorrect that the proposed amendment would mesh with Oregon Law on negligence.

It is common knowledge that any homeowner is responsible for the care of their property and anything that could cause harm to another individual; after all, that's why we carry homeowners insurance that includes medical coverage in case someone should happen to fall on our respective property.

Under the CC&Rs, ordiances of the City of Newberg, and the respective Oregon Revised Statutes...we are individually responsible for our homes and our property...NOT the HOA.

So the BOD has NO BUSINESS telling us that the HOA is responsible for street trees and/or sidewalks along Foothills Drive or anywhere else within the Oak Knoll Community just so they can assess us MORE $$$$ for insurance and potential lawsuits.

Since this community was formed in the mid 1990s and the Association first established in 1995 with the first BOD in roughly 1997...when has there ever been a lawsuit of "negligence" levied against either the HOA or an individual homeowner due to a sidewalk being damaged by either a street tree or landscaping by an individual homeowner?

Never as far as I recall...and I am one of the original homeowners in this association when it was first established.

With this amendment, the homeowners along Foothills Dr. would have to rely upon the BOD to choose the correct person or company to repair the sidewalk and then pay the bill they are sent. What if the BOD doesn't choose the most economical person or company that provides quality work, thus resulting in a faulty repair needing re-repaired at a later date at the homeowners expense?

I say every homeowner should be responsible for their own street trees, their own sidewalks, and their own yard as well as their home as it is our responsibility as homeowners. This is common sense and it is also a matter of law...not only locally with the established city ordiances, but also state statue as well.

Last but not least, I would like to reiterate to the BOD and the homeowners of this community that the BOD of the HOA are still in violation of established Oregon Law regarding the ILLEGALLY established reserve account assessed in the 2011 budget because it lacked the initial reserve study and maintenance plan that was require by law, both of which was to be provided to the homeowners BEFORE the assessment.

It was mentioned in a previous blog posting herein that my legal filing to force the BOD to follow the law was delayed due to medical reasons...of which I am still recovering, but that recovery is getting better; and given this recent letter it has only strengthened my resolve (especially given how unprofessionally the management company has ignored my legitimate BBB complaint against them for failing in their fiduciary duty to not only the BOD but the homeowners of this association) in completing the legal research and finalizing the draft motion already in the works.

I found it rather precarious that the management company would actually state, or imply within this letter, that the BOD of the HOA would move forward with these CC&R amendments at OUR $$ EXPENSE BEFORE receiving the full REQUIRED 75% homeowner approval.

Translation...they intend to make changes and act regardless of the homeowners response(s) to the proposed amendments or their INCORRECT interpretations of the CC&RS.

The first two issues in this letter were specifically addressed in my March 27, 2011 letter addressing the BOD and the management company's Breach of Fiduciary Duty towards the homeowners of this community.

Homeowners, please give this issue some thought and review the material I have provided in this blog before making a decision regarding the recent request the BOD are asking of us...because it could cost us all a lot more than a "one time assessment" of $25.00 to cover the alleged $5,000 to initiate and implement the proposed ammendments to the CC&Rs.

Regarding the sign monument...that is an utter waste of money to ammend the CC&Rs, as it is of no consquence financially or otherwise; and it makes rational sense for it to be where it is and has been since it was moved to the traffic circle.

As for the garbage cans, they need to be in secure locations away from pets and other animals that would otherwise get into them and potentially knock them over...and maintained from street view (or in the least, neatly kept so they are not presenting an unsightly appearance to the residence or the neighborhood in general).

Food for though folks...