Thank you note to my fellow homeowners...

I would like to take a moment and thank all the homeowners who have reached out either through Facebook or my blog to tell me their stories in dealing with the HOA, management company and Vial and Fotheringham (HOA law firm), most of all your support in what I am doing to help us all in making sure the HOA follows the CC&Rs, Bylaws and Statutory law. It is all greatly appreciated.

On a side note, I recently had an exchange with a homeowner who clearly is not as well informed as I am regarding the history and improper conduct of our HOA, management company and the law firm. This homeowner was unjustly critical and unappreciative of my efforts.

Think about the experiences we've all had either personally or vicariously through your neighbors experiences. Bogus violation notices, demand letters and excessive collection fees on alleged past due assessments, etc. The reserve account that had funds stolen and no one was told until years later at an annual meeting, and then the board took it upon itself to stop and restart the reserve account at their choosing without 75% of the homeowners approval, but more so without first doing a reserve study. Now they are doing the reserve study required by law not by their choosing, but because I provided the better legal argument that they needed to and the law firm conceded to that fact.

I've done a lot to protect our community from our over zealous HOA, all on my own time and my own dime. I didn't ask to do this, it's just in my nature to defend others being taken advantage of by the "system." Be it veterans or our own community, I'm always willing to make a wrong right and I more often than not win.

So to the unappreciative homeowner and any others like minded, if you do not know the full history and facts of what has gone on with our HOA since 1999, please keep your unsubstantiated criticism to yourself. It is of no value to me or the other homeowners in my efforts to take a stand for us all, to include you!

Thank you.

CC&R Violation Notice - Potential SCAM!!!

Dear Fellow Homeowners,

Here is a copy of the initial violation notice sent by Superior Community Management as they not only incorrectly try to enforce the CC&Rs, they also do so subjectively and selectively without justification.

First and foremost is one of the hottest and most contentious issues since this Association was even established...the garbage and/or recycle bins.

Note this is the first line in this notification, and it reads as follows:

• Your garbage can and/or recycle bin is visible from the street after pick up-day. Both must be out of sight by the evening of pick-up day, and not placed curbside until the night before pick-up day.

And this in the second line of this notification, which reads the same at the end of the statement as follows:

• "...and not placed at the curb until the night before pick-up day."

Emphasis mine as that is INCORRECT!!! CC&R 3.11 specifically states in regards to the garbage and/or recycle bins, and I quote:

"Any such waste may be temporarily stored in a location visible from any Street within Oak Knoll for not more than twenty-four (24) hours provided it is stored in a suitable and sanitary container until such waste is picked up or removed."

Every homeowner has the RIGHT to place their garbage and/or recycle bins out 24 hours prior to pick up and NOT the night before (this exact language about only putting it out the night before is not found in the CC&Rs under section 3.11).

The third line states the following:

• "A vehicle was parked over the sidewalk, or in front of your driveway. Per city parking laws, vehicles cannot block the sidewalks."

Since when does a Homeowners Association via the management company have a legal right to enforce "city parking laws?" THEY DO NOT!!! This line has NO place being on this notification notice.

The fourth line states the following:

• "A non-passenger vehicle was parked in your driveway (e.g., a boat, camper, trailer, commercial vehicle, motor home, etc.) and must be removed. Only passenger vehicles may be parked in the driveways. All other vehicles may be parked in your driveway for a total of 14 days in a calendar year."

This is vague and if the management company FAILS to identify each and every single day that that "non-passenger" vehicle was parked there, they have NO business sending anyone this notice only marking the SINGLE DATE OF SITE REVIEW!!!!

After all, how is Angela or whomever on the board driving down your street to ever know exactly when that "non-passenger" vehicle was initially or last parked there?

Even the police have rules that they have to follow when being notified of say an abandoned vehicle, or a vehicle that is parked more than 3 days in one spot in a neighborhood. Police just don't take the word of the caller, they have to follow their agency's policy on establishing a timeline before posting any notification on the vehicle that it must be moved or it will be towed.

Same premise applies to the Homeowners Association; if they cannot firmly establish a base timeline of EVERY SINGLE DATE AND DURATION OF TIME that that "non-passenger" vehicle is in your driveway, again, they have NO basis to send this notice.

And yet I suspect given the crappy vague language of this notification, it is their way of doing a quick "drive by" and making their weak (unsubstantiated) observations to send these so-called courtesy notifications. Why?

Because the second time they happen to drive by and see the same alleged violation...they will CHARGE YOUR $35 for that letter based on the recent resolution that was passed, moving the cost burden of such mailings away from the $12,000+ a year we pay this mockery of a management company and pass it onto the homeowner!!! - AND THAT IS THE SCAM!!!!!

I will skip the other lines to this last line:

• "The grass in your back and/or side yard is in need of maintenance."

Nowhere in the CC&Rs does it state that the Association has any oversight on how someone's back or side yard is maintained so long as it is not visible from public (i.e. street) view.

How about front yards or the planter strip? Why is this not on the notification?

Our HOA President Tony Roos' front yard, and especially his planter strip as of late, is BEYOND need of maintenance. The grass in the planter strip has been DEAD for weeks!!!! What is the management company doing about that?

We shall see, since I recently filed a complaint about it and his "non-passenger" vehicle being stored on his lot from "public view" of the homeowners who live in the alley behind his lot.

Feel free to comment.

OKHA WatchDog

Management Co. of HOA incorrectly citing ORS to justify monetary fees...

RE: Request to examine the HOA's financial records, receipts, and other association documents under ORS 94.670(9)(a)

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.”

 
[Emphasis mine]

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

April 2014 Mailings from SCM and Oak Knoll HOA Board Members - A Must Read Review!

April 21, 2014

Dear Fellow Oak Knoll Homeowners,

By now you should have received the HOA Newsletter, Proxy Voting Sheet, 2013 Budget, an old copy of meeting minutes, but more importantly...a new resolution adopted by the Board of Directors (BOD) to cover costs of mailing notices of violation (of CC&Rs) and hearing notices to the accused homeowner.

If you thoroughly reviewed the documentation you might have noticed a discrepancy and perhaps asked yourself, what does Superior Community Management (SCM) do for our HOA to earn its near $13,000 a year as a HOA Management Company?

On its own website, they advertise their services to prospective HOAs that as a part of their management (i.e. this is what they get paid to do, a part of that payment goes towards this function), they do the following:

"Follow up on complaints of violations and/or maintenance issues as required in the governing documents."

"Issue violation notices and take other appropriate action necessary to resolve a violation in accordance with the association governing documents."

Seems pretty clear to me, does it not you? SCM, as a part of their fee for managing the HOA, will follow up and issue violation notices and any other appropriate action(s) necessary to resolve said violation. Correct?

Yes, correct! So why is the cost/fee being shifted from the contract between our HOA and SCM onto the homeowner!?! After all, according to SCM's website, under "Association Governance," they do the following:

"Facilitate communication between the homeowners and the Board of Directors."

The entity responsible for bearing the cost of any mailings of notices of violation, hearings, etc. is the responsibility of the management company, SCM, hired to facilitate the "Management," "Assessments," "Accounting," and "Association Governance" of our HOA...NOT THE HOMEOWER accused of being in violation of some obscure CC&R (a document that even the Board of Directors, SCM, or Vial Fothingham (HOA attorneys) DO NOT even follow to the letter...no, they selectively enforce the CC&Rs as it suites them, as history has shown and I have thoroughly documented herein this blog and other writings - oh, and have an attorney from Vial Fothingham admitting the BOD are not following the CC&Rs, thus simply not caring at all that our BOD are even following the law).

Now this so-called fee for mailing, in the Newsletter it states clearly the cost could be in "...upwards of $30..."

$30, really? It doesn't take that long to type a brief letter stating "Hey, you're currently in violation of CC&R X.X, please address it by X date or X will result." Less than 5 cents to make a copy, and no more than $6.50 to mail it certified. Even if the person typing the letter is paid minimum wage or even up to $14 an hour, it only takes about 15-30 minutes AT MOST to prepare such a letter. Total cost at the $14 an hour pay rate, $13.55, $13.60 if you add the cost of the envelope.

I write and send letters constantly for other people and mail them certified and I can attest as a matter of fact that it does not cost $30 or even the $35 noted in the actual resolution.

So which is it BOD? In your newsletter you made it perfectly clear in "upwards of $30" and yet under your own resolution you put $35! Care to clarify?

Also, while under ORS 94.630(a) and (n)(B) - NEXT TIME CITE THE CORRECT STATUTE and SUBSECTION(S) FOR DIRECT REFERENCE - you may have the authority to create and adopt a "resolution," you DO NOT have that authority under the ByLaws, Article III, Section 3 Board of Directors (next image is text taken from the HOA website under documents - ByLaws):

Nowhere in this section of the ByLaws does it specifically authorize the BOD to create, pass and adopt a resolution as specific as the one created here to shift the burden of the cost from SCM under its contract of "Management" - which includes following up on complaints and issuing violation notices to allegedly accused homeowners of a violation of the CC&Rs.

And since the BOD has created this new resolution, logic dictates that the fees paid to SCM be reduced to compensate for the difference in fees that will now be paid for/by the homeowner in preparing these violation notices since it is no longer a part of SCM's management contract with the Oak Knoll HOA.

If not, then one cannot help but question the financial and accounting methods being implemented by both the BOD and SCM in the management of our HOA in executing this function in which SCM clearly advertises as one of its responsibilities as a part of cost of doing business with the HOA in the fees they receive in performing their function!!!!

My files are just getting thicker and thicker and the complaint being prepared to the Oregon Department of Justice regarding this HOA, SCM and Vial and Fotheringham further substantiated.

Sincerely,

OKHA Watch Dog


P.S. If you have not read this, I highly recommend that you do: https://www.facebook.com/notes/oak-knoll-hoa-watchdog/september-2011-bod-meeting-with-direct-quotes-a-must-read/101030436698002

Did you know a [faulty] Official Reserve Study was done in 2013?

Dear Fellow Homeowners,

Did you know that after months of telling Superior Community Management, the Board of Directors and alas the attorneys at Vial Fotheringham Law Group that the HOA is required to have not only a reserve account, but an annual Reserve Study...that after 15 years they FINALLY did one!?!

Yes, they did...and it is an inaccurate study for several reasons but I intend to address only a few. As a homeowner in the Oak Knoll Homeowners Association, you really should request a copy and read it (or you can email me and I will send it to you).

Moreover, to get a better understanding of the corruption of HOAs and their Board of Directors...that is if you want to be informed rather than complacent, apathetic and ignorant...you really need to review the background information on HOAs and why their were created and how they destroy rather than improve community living: http://www.thehoaprimer.org/

Contained herein will be select pages from the 66+ page reserve study conducted by Reserve Funding out of Lake Oswego, OR.

In their report Reserve Funding agents claimed to have reviewed our CC&Rs as the foundation of their reserve study, but clearly they did not because they have identified items as 'common improvements' or otherwise required items to be "maintained, repaired or replaced" by the HOA (i.e. at the homeowner's expense via collected dues NOT to be used for these required).

As I have written the Board of Directors (BOD) and Superior (more like Inferior) Community Management (SCM) over and over, year after year, the CC&Rs DO NOT include sidewalks damaged by street trees on any lot as being the responsibility of the collective HOA.

Section 7.1 makes it perfectly clear as to what the association is responsible for where the “common improvements” are concerned. 

“Oak Knoll has or will have certain improvements which are for the benefit of all Lots. These improvements include: Sign monuments to be installed on Lot 29, Oak Knoll; traffic circle at intersection of Foothills Drive and Center Street; planter strips along Foothills Drive; and street trees on each Lot…All of the common areas and improvements are collectively called “Common Improvements.”

Where in CC&R 7.1 does it state "concrete flatwork required on the pathway and any work required due to root invasion to the sidewalk area on the landscape (planter) strips on Foothills Drive" is a 'common improvement' of the HOA? IT DOES NOT!!! Therefore the following assessment in the Reserve Study conducted by Reserve Funding is completely inaccurate and on its face faulty on their part due to a lack of attention to detail and proper analysis of our HOA's CC&Rs:

Notice the highlighted portion? Even Reserve Funding clearly understands that trees on "private property" is the "owners [sic] responsibility."

The City of Newberg Ordinances cited time and time again to the BOD, SCM and Vial Fotheringham substantiate that the sidewalks and planter strips throughout the entire Oak Knoll Homeowners Association as far as maintenance, repair, and upkeep (i.e. replacement of street trees) are the SOLE RESPONSIBILITY OF THE HOMEOWNER!!

In CC&R 7.1, can anyone point out where it states that the "mailboxes" provided by the United States Postal Service are a part of the "common improvements," thus the responsibility of the HOA to maintain, repair and/or replace? Anyone? I didn't think so...and yet Reserve Funding documented it is a replacement requirement of the HOA because it is "in the common area."

Again, would someone please show me where in CC&R 7.1 it states that the mailboxes are a "common improvement" of the Oak Knoll HOA.

23 mailboxes at a cost of $1,450 each with a future cost of $45,915.07 that is the sole responsibility of the United States Postal Service being passed onto each and every one of us...the homeowner within the Oak Knoll HOA. Is that an expense you're willing to take on despite the FACT it is NOT your financial responsibility?

And once again the street trees along Foothills Drive comes up yet again, a financial responsibility that is NOT the responsibility of the homeowners within the Oak Knoll HOA.

Once again, can anyone show me in CC&R 7.1 where just the street trees along Foothills Drive is a "common improvement" of the HOA that "required" (according to the BOD and this Reserve Study) the maintenance or replacement (NOT TRIMMING - YET THE BOD HAS PAID FOR TRIMMING OVER THE YEARS AT OUR EXPENSE IN DIRECT VIOLATION OF THE CC&RS) of the street trees on Foothills Drive.

"It is estimated there are about 60 trees that the association must maintain on Foothill [sic] Drive."

Reserve Funding...please cite the correct CC&R that delineates as a matter of legal contractual fact that the HOA "must maintain" the trees on "Foothill [sic] Drive."

The next page talks about trimming of the estimated 60 trees along Foothills Drive, yet the same question remains...where in CC&R 7.1 does it state that JUST the street trees along Foothills Drive as a "common improvement" of the Oak Knoll HOA?

It doesn't and the BOD and the attorneys at Vial Fothingham KNOW THIS IS A FACT! I have a recording at a past Board Meeting where an attorney from this so-called "premiere HOA law firm" admitted that the BOD have been misinterpreting the CC&Rs for years...but did nothing during the vote in stopping them from continuing the ignorance of their status quo to benefit only those living on Foothills Drive (that which INCLUDES members of the BOD) and non-other within the HOA, despite the FACT that CC&R 7.1 clearly stipulates that ALL street trees within the HOA are the financial responsibility of the HOA.

It's either all or none at all...period!

Within the conclusion of this study I found an interesting statement that contradicts the premise of many aspects of the study Reserve Funding conducted. Hence, if they failed to "thoroughly" review the CC&Rs in order to provide an accurate Reserve Study...then how does it make them look when they tell us, the homeowners and the BOD of the HOA to do just the same when they utterly failed to do themselves (i.e. do as I say, not as I do):

"You are encouraged to thoroughly review this document and its individual reports for conformity to the description of responsibility for the Association's Common Areas and Commonly Maintained Property as those terms are defined in your Declaration of Covenants, Conditions and Restrictions."

Would it not be reasonable to expect such a company providing a so-called "Reserve Study" required by statute for Planned Communities to have reviewed said community's CC&Rs in order to provide an accurate and detailed analysis of the "common areas and commonly maintained property?" Or is that asking too much? After all...we (all of us) paid for it via funds from the HOA.

Last but certainly not least is the fact that even this inept company recognizes the FACT that state law requires a reserve account and a reserve study in substantiating that account; something that I have been bringing to the attention of the BOD since 1997 when I first moved into this HOA; and it wasn't until this past year that a reserve study was done and a reserve account magically appeared a year before that without a reserve study to substantiate it!!!

I wrote Reserve Funding after reviewing this report, and do you think I got a response? Of course not, who likes to have their failures questioned? No one, but it is one thing to make a mistake and ignore it but something else entirely to make a mistake and OWN IT! The latter speaks volumes as to the nature of the character, integrity, and honesty of the individual or company responsible for the faulty product provided.

I cannot help but wonder, given my experience with the numerous BOD members of our HOA over the years, and SCM, as well as the inept attorneys at Vial Fotheringham that Reserve Funding was cherry picked to suit the interests of the CID of this HOA.

OKHA WatchDog

September 2013 Newsletter LEGAL ERROR - Email to Management Company

Angela,

 

Please pass on to the directors and the HOA attorneys.

I do not know how many times I’ve had to address this, and I even have one of the HOA attorneys admitting to this (on audio recording), but the directors and the management company continues to misread, misinterpret, and misapply Section 7.1 of the CC&Rs.

 

In the September 2013 Newsletter it was declared that the “comment elements” (wrong terminology, it’s “common improvements”) that the association is responsible for includes:

 

·        Foothills Landscaping (including grass and street trees)

 

Section 7.1 makes it perfectly clear as to what the association is responsible for where the “common improvements” are concerned.

 

They are stated exactly as follows:

 

“Oak Knoll has or will have certain improvements which are for the benefit of all Lots. These improvements include: Sign monuments to be installed on Lot 29, Oak Knoll; traffic circle at intersection of Foothills Drive and Center Street; planter strips along Foothills Drive; and street trees on each Lot…All of the common areas and improvements are collectively called “Common Improvements.”

 

Section 7.1 DOES NOT SAY Street Trees “only” on Foothills Drive but rather “…on each Lot.”

 

You either fund the reserve account to take care of ALL street trees in the association or NONE AT ALL! The CC&Rs only allow for the upkeep of ALL street trees, not a selective few that benefits only those who live along Foothills drive.

 

The alleys are addressed in the CC&Rs separately, therefore they are not a part of the “common improvements,” therefore funds from the reserve account cannot be used to attend to maintaining the alleys. That is a separate fee assessed specifically upon those who live in the alleys and those assessments cannot be co-mingled with the funds contained within the reserve account.

 

I am working on a complaint to be filed with the DOJ against this HOA, and now this newsletter along with all the other documents I have on hand that will be submitted with that complaint substantiating each proffered argument in how the directors before and after hiring a management company to present day - and the law firm as well - have continued to run the HOA in a corrupt, discriminatory (e.g. against adults who have children – i.e. families), and unprofessional manner (e.g. misinterpreting the CC&Rs and governing statutory law of planned communities in its selective enforcement of the CC&Rs).

 

At the appropriate time I will be requesting to either receive a copy or have a copy produced of the financial statements and budget of the HOA for fiscal year 2013. If any mismanagement of funds for non-common improvements were spent from the reserve account, that too will be made a part of my complaint to the DOJ.

Additionally, I want a copy of the results of the reserve study as well mailed to me as well. Please forward that accordingly.

 

OKHA WatchDog

Illicit or Delinquent Activities on Meridian Drive?

It was recently brought to my attention by a concerned homeowner who has observed some odd activities on Meridian Drive within our HOA.

The following photos were sent to me of a vehicle known to be seen in the area driven by a young man who does not even own this truck and must live in another part of Newberg.

The young man sometimes parks either in front of the house he and others he brings and/or leaves with, sometimes a couple houses down, or on some specific occasions of unknown reason he will park around the corner on either Foothills Drive or Quail Drive in order to deter attention from himself and those that he is either taking to or leaving from the residence on Meridian.

Another concerned homeowner advised me that when they drove down that street recently they observed a man laying on a mattress in the front yard, and later when they drove by the mattress was up against the house.

I know for a FACT that the management company has been advised of the problem with the residents at the house in question, which also has people LIVING INSIDE THE GARAGE, among other CC&R violations...but do you think the HOA Board of Directors via the $11k paid management company is doing anything about the problem?

Of course not.

So, if anyone has observed the same and wants to be proactive in keeping our community safe for ourselves and your children...please send me any information and/or photos of problems within the community that detract from the "livability" and "attractiveness" of our HOA for which the CC&Rs were put in place for.

Also, don't forget to keep local authorities informed as well.

Sincerely,

OKHA Watch Dog