Dear Fellow Homeowners:
Approximately 8 days ago I made a formal written request to examine the financial records, receipts and all other records of the association, here is the response I got:
Here is my response via email this afternoon:
Angela,
Thank you for your letter providing the days and times being
made available for my visit to “review,” however, you are
(or some attorney from Vial Fotheringham is advising you) incorrectly
citing ORS 65.774 and 65.771 as a justification for charging me $110 per hour
for “prep and oversight of the review.”
First off, the Homeowners Association and the Association
board of directors are only subject to the following subsections of ORS Chapter
65:
Per ORS 94.640: “In the performance
of their duties, officers and members of the board of directors are governed by
this section and the applicable provisions of ORS 65.357, 65.361, 65.367,
65.369 and 65.377…”
(i.e. standards, conflict of
interest, liability, etc.)
Per ORS 94.626(2): “A separate
association is not created when an association is reinstated after administrative
dissolution under ORS 65.654 or again incorporated following dissolution. The
association automatically continues without any further action by
incorporators, directors or officers that may otherwise be required under ORS
chapter 65.” (i.e. dissolution)
Per ORS 94..670(1): “A homeowners
association shall retain within this state the documents, information and
records delivered to the association under ORS 94.616 and all other records of
the association for not less than the period specified for the record in ORS
65.771 or any other applicable law…” (i.e. records retention)
Second, ORS 65.774 and 65.771 do not apply to a Homeowners
Association as homeowners are not a “member” of the non-profit corporation. As
defined under 65.001 Definitions. As used in this chapter:
(26)(a) “Member” means a person
that is entitled, under a domestic or foreign corporation’s articles or bylaws,
without regard to what the person is called in the articles or bylaws, to vote
on more than one occasion to elect a director or directors.
Under the Bylaws of Oak Knoll Homeowners’ Association,
Article 1 Plan of Ownership, Membership is defined, in part, as follows:
(6) Membership: “Every person or
entity who is a record owner of a fee or undivided fee interest in any Lot
shall be a proprietary member of the Association…Associate membership
shall carry all the rights and privileges and shall be subject to all
obligations and responsibilities of proprietary membership, except the
right to vote.”
Therefore, neither ORS 65.774 or 65.771 are applicable
to my request for “examination” of the associations records. As such, you have
no right to charge me for any examination of the association records.
Again, under ORS 94.670 Association duty to keep documents
and records; deposit of assessments; payment of association expenses; review of
financial statement by certified public accountant; examination of records by
owner…
(9)(a) Except as provided in
paragraph (b) of this subsection, the association shall
make the documents, information and records described in subsections (1) and
(4) of this section and all other records of the association reasonably
available for examination and, upon written request, available for duplication
by an owner and any mortgagee of a lot that makes the request in good faith for
a proper purpose.
Third, your citing Article VI Records and Audit is
inaccurate, and I admit I incorrectly used it as well given the fact that (A) I
am not a CPA, therefore I cannot “audit or inspect” the books and records of
the association under the common law definition of an audit or inspection as
clearly meant given the context in which that phrase was used not once, but
twice in that Article. It is clear upon second reading that “audit or inspect”
juxtaposed to the reference “at the expense of” either the Association or the
member requesting it means a financial audit by a CPA. Therefore you have no
basis to charge me a fee for the “examination” of the association records.
In addition to ORS 94.670 there is Subsection (12) which states the following:
(12) The board of directors, by
resolution, may adopt reasonable rules governing the frequency,
time, location, notice and manner of examination and duplication of association
records and the imposition of a reasonable fee for furnishing copies of any
documents, information or records described in this section. The fee may
include reasonable personnel costs for furnishing the documents, information or
records.
To date the Board of Directors has not voted a resolution to
accomplish the above, as such, again, neither the Board of Directors OR by its
managing agent, Superior Community Management, has any right to assess monetary
fees for my legal right under ORS 94.670(9)(a) for the examination of the
Association documents requested to be examined.
Unless you can produce this unseen, unpublished and unfiled
(with the County Clerk) resolution to the CC&Rs, neither you (Super
Community Management) or the Homeowners Association (Board of Directors) have
any legal basis to assess any fees for my “examination” of the
association records.
When I choose the date and time
given and establish that appointment, the Association via Superior Community
Management shall make the documents, information and
records described in subsections (1) and (4) of this section and all
other records of the association reasonably
available for examination and, upon written
request, available for duplication by an owner and any mortgagee of a lot that
makes the request in good faith for a proper purpose.
I will be in touch on which date and time is to be selected
once I review my work scheduled and make arrangements for said date and time.
Very Truly Yours
No comments:
Post a Comment