Dear Homeowners,
Last night's meeting regarding the August letter we received from the Board of Directors (BOD) via the management company regarding the four (4) proposed changes to the CC&Rs at a cost of more than $5,000 (a one time $25 per house assessment, than an additional assessment once the final costs were tallied and accounted for) was quite interesting on various levels.
First let me just say the proposal to amend the CC&Rs was shot down...so nothing to worry about there.
Second, the BOD voted to continue the status quo in continuing to charge us for the present and future costs of the maintenance, repair and replacement of the street trees and sidewalks along Foothills Dr. despite admitting in an open public forum (in addition to the August letter), to include the admission from their attorney present, that their interpretation of the CC&Rs are incorrect.
This means we are going to be hit with yet another reserve for the 2012 budget year, and it will likely be a lot more than the $13,650 we were assessed for budget year 2011. Why? Given the current economic conditions of this country, the costs of supplies and services are going up. Therefore the BOD can assess an even greater amount to cover the aforementioned costs...
However, the BOD is STILL VIOLATING THE LAW where this reserve account is concerned. They are required by state statute to provide a reserve study and maintenance plan BEFORE establishing a reserve account and each year in maintaining that account. The OKHA BOD has FAILED to do this for 2011, and I anticipate they will FAIL to do this for budget year 2012.
Also, the meeting notes from last night's meeting will not be made available to the homeowners until December when the assessments for 2012 goes out. This, in my opinion, is unfair given the nature of the actions proposed in their August 2011 letter regarding the proposed amendment changes...to not inform the homeowners not present until December is just another example of their failure in their fiduciary duties as the BOD towards the homeowners of this association.
Present at the meeting last night were some very concerned citizens about the increasing costs of the HOA when the costs should be going down.
Others voiced their opinions on the deceptive and contradictory language of the August 2011 letter proposing the amendment changes to the CC&Rs.
And then there were some who argued the garbage can proposal where one board member commented that some homeowners don't like putting their garbage cans in their garage, because they don't have a yard or other area to place them that is not visible from the street. Oh well...that's a part of being a homeowner and in chosing a home that lacks a yard or space for trash cans. I have a house with a yard and I've lived here since 1997...and my garbage cans have been stored in my garage without any problems. I'm sorry for those few who don't like it, but too bad. You're a homeowner, deal with it (i.e. keep the lids closed and the trash bags tightly sealed and you won't have a smell problem; and keep the windows up in your car so the stink, if any, doesn't get inside your car - in other words, use some common sense).
During the meeting a "straw poll" was taken on each proposed amendment, and given the responses of the few homeowners present and the mere fact that only three homeowners responded to these issues via email...it was rather clear to the BOD that they were NOT going to get a 75% approval to make the changes for each proposal. Therefore they voted to discontinue that effort...but continue as they always have since day one, charging us for the upkeep of the trees and sidewalks along Foothills even though the HOA has no legal authority to do so under
the CC&Rs.
FACT: The CC&Rs and City of Newberg Ordinaces specifically states the care of the trees and sidewalks are that of the homeowners, period.
FACT: It is illegal for the BOD to collect funds for a reserve account based on a false premise - i.e. the street trees and sidewalk maintenance, repair and replacement as "common improvements" of the HOA along Foothills Dr (specificallY) when they are not declared as such in the CC&Rs.
FACT: The BOD are required by LAW to present to the homeowners a reserve study and maintenance plan BEFORE establishing a reserve, and in maintaining that reserve annually. The BOD have failed to do this...and we, as homeowners, have NO IDEA what they even did with the $13,650 they collected for 2011.
During the meeting last night a former and present board member affirmed a past criminal matter with the BOD where money was stolen from the HOA. I suspect, given past annual budgets, that that money stolen was from the reserve account established back in the late 1990s when the HOA and BOD were first established. Because in the early 2000s, that reserve account just disappeared off the annual budget sent out each year thereafter.
Another important matter that was observed last night was the attorney present was giving bad legal advice and bad legal explanations regarding the CC&Rs.
First and foremost, the CC&Rs are a private contract established by the developer and agreed upon by each homeowner with the purchase of their home. The homeowner does not create covenants and enforces them upon other homeowners. The CC&Rs are already established and it is the HOA's responsbility to enforce the CC&&Rs, not the individual homeowner.
Second, the CC&Rs are in fact subordinate to local ordinaces, which means the ordinaces or codes passed by the City of Newberg supercede that of the CC&Rs.
Third, as cited in a previous blog posting and referenced during the meeting, the Oregon Appellate courts have upheld a lower court ruling in December 2010 that the CC&Rs are discretionary and that the BOD of an HOA are not legally required to enforce them. As such, our HOA BOD do not have to enforce Section 7.1 of the CC&Rs stating that the HOA is to be responsible for "all of the street trees" of the association.
The costs of such would be astronomical and unconscionable, leading to a severe increase in our annual dues that at this time...many homeowners would likely not be able to afford. Moreover, if the BOD even tried to enforce this...I am sure they would have more than a mere 22 homeowners show up at the next meeting, but every homeowner...and for those that can't, they would be hearing from them via mail, email or by phone.
I will write more of this meeting in greater and specific detail later when time presents itself, so please stay tuned.
Last but not least, I still intend to press forward with filing the Writ of Mandamus against the HOA in forcing it to follow established state law via the Planned Community Act is concerned; especially if they are going to continue the status quo and continue to charge us for the future maintenance, repair and replacement of the street trees and sidewalks along Foothills Dr (again, neither of which being common improvements of this association specifically on Foothills Dr).
We need to know where our money is going and how the BOD intends on spending it, less we have another embezzlement problem given the large sums of money coming into the association for an albeit illegally established reserve account for non-common improvements of this association.
If anyone has any questions pending further writings and clarifications of last nights meeting, feel free to email me.
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