October 23, 2011
Oak Knoll Homeowners’ Association
ATTN: Board of Directors
C/O Superior Community Management
P.O. Box 1549
Sherwood, OR 97140
RE: September 20, 2011 HOA Meeting regarding August 22, 2011 HOA Letter
Dear Board of Directors,
By now you should have reviewed my summary of the September 20th HOA meeting at my blog site (above), with direct quotes of certain board members and the attorney present, regarding the proposed amendments to the CC&Rs and the legal expense of which made within your August 22, 2011 letter to the homeowners of this association.
Board members and the attorney present are on record – in an open public forum – admitting to those homeowners present that the BOD, past and present, have incorrectly interpreted the CC&Rs; and in doing so have collected and spent annual dues towards non-common improvements of the HOA in violation of the CC&RS and the Oregon Planned Community Act.
Additionally a former board member disclosed the fact that a former trustee had stolen funds from the previous reserve account (thus its disappearance from the HOA budget and lack of funding since), thus the purpose of hiring a management company to manage the affairs of the HOA. This fact, now made known, was never brought to the attention of the homeowners of this association when it occurred; which is a breach of trust and loyalty of the members of the BOD in its fiduciary role towards the homeowners of this association.
While the Oregon Appellate case I cited during that meeting clearly states that the enforcement of the CC&Rs by the BOD is discretionary and not mandatory, the BOD still has to follow the CC&Rs as they are written when enforcing them.
Moreover, the BOD is bound by law to follow the Oregon Planned Community Act as well, to include the required provisions where the reserve study and maintenance plan for reserve accounts are concerned.
The BOD failed to comply with statutory law regarding this study and plan when it re-established the reserve account for fiscal year 2011 to pay for the repair, maintenance, and/or replacement of non-common improvements of the HOA.
I have already proven that the BOD back in 1999 (in a letter from a lawyer in the same law firm representing the BOD present day) voted in a reserve account per the CC&Rs and the cited ORS therein; thus binding future BODs to follow the cited ORS regarding the required reserve study and maintenance plan.
As such, the BOD has no legal defense in it failure to follow the CC&Rs and the law in conducting these required initial and annual reserve studies and maintenance plans in order to justify the existence and use of the reserve account assessed upon the homeowners of this association.
In short, when the BOD voted to continue the status quo despite both the members of the board present and the attorney’s admission of guilt on behalf of the BOD where the misinterpretation of the CC&Rs and its subsequent failures in the BODs fiduciary duties are concerned, is a clear affirmation that the BOD has every intent of continuing to violate the clear language of the CC&Rs; as well as the Oregon Planned Community Act where the required reserve study and maintenance plan are concerned.
The only recourse the BOD has at this juncture is the following:
In the next letter the BOD sends out with the annual dues for fiscal year 2012, the BOD shall declare its intent to discontinue taking responsibility for the street trees and sidewalks along Foothills Dr. (a street upon which a member of the BOD lives and stands to benefit from such; which is a clear conflict of interest and breach of that board member’s fiduciary responsibility), admitting it has been wrong in assuming this financial responsibility all these years and attest that it will follow the CC&Rs and City of Newberg Ordinances (the ordinances legally supersede the CC&RS, which is a private party contract); the BOD shall clearly state that the individual homeowner is responsible for the street trees on their own lot as well as any damage to the sidewalks adjacent to their lot caused by the street trees.
If the BOD fails to comply with its legal and fiduciary responsibilities that I have addressed over the past year – and those specifically outlined herein – I will move forward with legal action to force the BOD to follow the CC&Rs and the Oregon Planned Community Act.
Taking this matter to court will make the legal and fiduciary failures of the BOD and the admissions of its attorney during the September 20th meeting public.
Additionally, by taking this matter to court, the fact that the BOD withheld from the homeowners the reason why the original reserve account disappeared (another trustee stealing funds) will be made public.
It will also be made known to all homeowners that the BOD actions in sending letters out in 2006 enforcing homeowners to plant street trees when it had no legal right to do so will also be made public.
A point of fact that one of the board members addressed during the September 20th meeting whom expressed her concern of a collective of homeowners coming back at the BOD with a lawsuit in recouping their out of pocket expenses in planting those street trees when they were under no legal obligation to do so; because (1) the statute of limitations on correcting this deficiency of the CC&Rs had long expired, and (2) it was the developers responsibility to plant the street trees before obtaining occupancy permits from the City of Newberg according to their private legal development contract.
Given that which was disclosed and admitted to during the September 20th meeting, it was made clear that everything I have been addressing to the BOD and its attorneys over the past year has been vindicated.
That vindication will, in all likelihood, continue should you force legal action upon the BOD in order to force that which you already know you are legally required to do, but simply refuse to do so under the bad advice from the management company and law firm retained by the BOD, that is in stark contradiction to the clear language of the CC&Rs and the letter of the law laid out in the City of Newberg Ordinances and Oregon Planned Community Act.
Sincerely,
Oak Knoll HOA Watch Dog
