The following will show, at the end, that the HOA has failed to properly maintain records, receipts and other documentation of the business dealings of the HOA since day one of its existence...
Moreover, this will also show how both the HOA Board of Directors AND Management company are not doing their jobs correctly. Especially the management company, having done this for years, should know better in bringing on a new HOA without advising them they were missing resolutions to cover such things as this if they wanted to charge people to examine records of the HOA.
June 22, 2014 email to Angela Shinn at Superior Community
Management
RE: Article VI Records and Audits
Under the BYLAWS OF OAK KNOLL
HOMEOWNERS’ ASSOCIATION (the real ones,
not the ones on the website that have the following referenced section, among
others, purposely omitted), Article VI (5); Records and Audits, as a
homeowner (i.e. mortgage) I want to inspect the books and records of the
Association for the past 15 years.
Please either provide these
records, or schedule the appropriate future date in order for me to arrange a
personal inspection of these records at your office.
Under Section (2): Records of
Receipts and Expenditures, I expect to review the following: “…detailed, accurate records, in
chronological order, of the receipts and expenditures affecting the common
areas, itemizing the maintenance and repair expenses of the common areas and
any other expenses incurred.”
Note, the “common areas” for which
any expenditure have been incurred and paid by the HOA must be compliant
with CC&R 7.1 – which clearly defines what the ONLY common improvements
of the HOA are:
“Oak Knoll has or will have
certain improvements …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.””
If you intend to schedule an
appointment vs. providing copies of the requested documentation to be reviewed,
please make such an appointment for any Monday, Tuesday or Friday.
Please provide several tentative
dates so that I may make arrangements to accommodate my schedule to confirm one
of the provided appointments.
Thank you
July 1, 2014 letter from Angela Shinn of Superior Community
Management
RE: Oak Knoll Association records
review
Dear Homeowner,
Per your request to schedule a date
for your personal inspection of the records of the Oak Knoll Association, we
have the following dates available:
…
July 25, 2015; 9:00 a – 2:00 p
…
This request for review is in compliance with ORS
65.774 and with the By-laws, (sic) Article 6 section 5 which states “At any time any Member or mortgagee may, at
his own expense, cause an audit or inspection to be made of the books and
records of the Association.”
Per the above and ORS 65.771
available records will be provided for review at time and material costs.
Charges for time are $110 per hour for prep and oversight of the review. Any
allowable copies will be charged .18 per page. Review will be conducted at
17300 SW Upper Boones Ferry Rd, Ste. 110, Tualatin OR (sic) 97224.
Please indicate the date and time
you will be meeting at our office for the requested review.
Thank you,
Angela D. Shinn, CMCA, AMS
Superior Community Management
July 2, 2014 email to Angela Shinn
RE: Letter dated July 1, 2014
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 the 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 ORS 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 association
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
accountable; 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 content in which that phrase was
sued not once, but twice in that Article. It is clear upon second reading that
“audit and 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 (Superior 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 subsection (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
proper purpose.
I will be in touch on which date
and time is to be selected once I review my work schedule and make arrangements
for said date and time.
Very Truly Yours
The following is a list of items of records that I wanted to
examine that I presented to Angela Shinn prior to my chosen scheduled
appointment; this list contains her amended response after each:
Requested records to be examined:
The following is a list of
documents and records of the Oak Knoll Homeowners Association I want to examine
that includes but is not limited to:
• Any
and all financial records of the association’s purchase of
obligations of the United States government
o To include ALL financial records on
the establishment and,
if applicable, termination of (to
include an accounting of where the funds were placed once the account was
closed) Asset 1224, Money Market Account – Union Bank noted on the association’s
July 24, 2003 balance sheet
Financials 1999-2005 not available
Financials 2005-present available
• Any
and all financial records of the association’s expenditures for
“professional development" in
the year 2000
NA
• Any
and all financial records of the association’s credit and debit
to the “contingency fund” from
1999-2003
NA
• Any
and all financial and contractual records of the association’s
bids and expenditures for the
budgeted line item “Gardener” from 1999-2000
NA
• Any
and all financial records of the associate’s expenditures for
“maintenance & repairs” from
1999-2000
NA
• Any
and all financial records of the association’s budgeted line
item “Continuency” [sic] from
2000-2001
NA
• Any
and all financial records of the association’s expenditures for
“leasehold improvements” noted on
the August 19 through September 12, 2000 Profit & Loss statement
NA
• Any
financial and contractual records of the association’s bids and
expenditures for the budgeted line
item “Landscape Maintenance” from
2000-2001
NA
• Any
financial records and documentation of the association’s
expenditures relating to the
disbursement of $88.77 to Gerald Fisher, check# 1070, noted on the financial
statement dated February 28, 2001
NA
• Any
financial records and documentation of the association’s receipt
of a “Refund Fence” in the amount
of $311.50 on February 22, 2001
NA
• Any
financial records and documentation of the association’s
expenditures relating to the
disbursements to Louis Larson as of the July 31, 2001 Financial Statement:
o #1097 $24.49
o #1099 $55.10
o #1102 $84.00
o #1103 $8.84
o #1107 $28.00
o And #1106 to Gerald Fisher in the
amount of $15.00
NA
• Any
financial records and documentation of the association’s record
keeping of the “Contengency [sic]
Fund” for the budgeted fiscal year
2001-2002
NA
• Any
financial records and documentation of the association’s budget
line 6791 Miscellaneous Expense –
and – 6821 Community Social events documented on the August 1, 2003 Opening
Statement of the budget
NA
• Any
and all financial records and documentation accounting for the
difference in the balance of the
reserve account from July 24, 2003 with a balance of $2,637.10 to $2,500.00
noted on the projected 2003-2004 budget
NA
• Any
and all financial records and documentation of the association’s
record keeping of the Reserve
account from 1999 to 2005
o To include any documentation and
reports of the missing
funds from this account, and any
Board of Director meeting minutes and/or notes on their decision to no longer
fund this account going forward
Financials 12.2005 – Present provided
• Any
and all financial records and documentation of the association’s
expenditures for the budget line
item Misc. – Social $240 for fiscal year
2003-2004
NA
• Any
and all financial records and documentation, to include Board of
Directors meeting minutes and other
documentation in regards to re-funding Expense 6810 Allocation to Reserves in
the amount of $13,650 noted on the
2011 annual budget
o This includes an itemization of all
expenditures of common
improvements, reserve study to
legally substantiate this reserve funding, and all receipts and accounting for
all expenditures paid out from the balance of this account
Minutes 9.21.10 provided
• Any
and all financial records and documentation, to include Board of
Directors meeting minutes and other
documentation in regards to the repair of concrete sidewalks along Foothills
Drive in 2010
Minutes and Financials for 2010 provided
• Any
and all financial records and documentation, to include Board of
Directors meeting minutes of the
corresponding year from 1999 to present, of any expenditures as it specifically
related to the maintenance, repair, and/or replacement of common improvements
identified in CC&R 7.1
o To include non-common improvements not
stated in CC&R 7.1
that the Board of Directors took it
upon themselves (and without the required 75% majority vote of the homeowners
per CC&R 12.6.2 and ORS
94.630(1)(E)(ii) and
(1)(F)(h)(k)(B)) to make the HOA financially responsible for said maintenance,
repair, and/or replacement thereof; namely the street trees and sidewalks (to
include curbing) along Foothills Drive
Minutes and Financials for 2005 – present provided
• The
specific and exact location of the 98 homes (i.e. addresses, not
homeowner names) letters were
mailed to regarding the placement of street trees from August 2000 to December
2009
• Any
and all documentation submitted to the Design Review Committee
by the homeowner located at 3240
Burlington Drive requesting approval to remove all lawn from the front of the
residence (in contradiction to the CC&Rs that require lawn to be a part of
the landscaping of the front yard)
Purpose?
• Any
and all documentation of the Board of Directors to contract for
a reserve study and all
expenditures relating to said study conducted in
2013
Minutes for October 2012 provided
• Any
and all documentation of the Board of Directors to landscape the
traffic circle located at Foothills
Drive between 2003 to 2006, to include all expenditures to landscape and
maintain since initial completion to present date
Minutes and Financials for 2005 – present provided
• Any
and all documentation and expenditures regarding the landscaping
maintenance, repair and/or
replacement with relation to the residence located at 800 Foothills Drive from
July 2003 to July 2005 (specifically the entire year of 2004)
NA
• Any
documentation accounting for the 75% majority approval of the
homeowners, as required under
CC&R 12.6.2 (12.6.2.1 through 12.6.2.5) of the adoption of the Collections
Procedure Resolution passed by the Board of Directors in June 2003 – and – the
adoption of the “Rental Rules for Those Renting their Homes to Others”
resolution
Mortgagee reference?
• Produce
an outline or actual document of the Robert’s Rules of Order
used at each and every Board of
Directors meeting, to include the Annual Meeting of the Association since 1999
to present day in all its form (previous to updated versions)
See web site link http://www.robertsrules.com/
• Any
and all documentation in proposal form or otherwise in regards
to Tony Roos’ Education line item
that he wishes to have placed on the next proposed budget of the association
for fiscal year 2015
5.2014 minutes provided
• Any
financial documentation of expenditures (to include receipts to
substantiate) of reimbursements to
any Board Member from 2000 to present day from the Association’s ledgers
2005-present Financials provided
• Any
and all financial records and related documentation accounting
for Lots within the Association
currently in collections, specifically by address (not the homeowner’s name)
and the amount(s) in arrears and the date and time the accounting or billing of
said arrears was forwarded to Vial and Fotheringham for collection of the
alleged past due amount(s)
Unable to provide per law.
I would also like to review any and
all current service contracts (e.g.
landscaping, legal, insurance
policies, etc.) that the Association currently holds as well.
Provided: Superior Community Management contract, insurance policies,
I want to examine any and all
records and documents, to include meeting minutes or notes by the Board of
Directors approving waivers to any and all homeowners to allow for any
exceptions to the CC&RS, to include waivers to allow homeowners to leave
their trash and recycle bins visible from the public street to recreational and
commercial vehicles with ladders being allowed to remain on any Lot within the
Association.
Minutes for 2005-present provided
***
Documents have been provided on flash drive as indicated:
Contracts
Superior Community
Management; signed April 2005
Sunrise
Landscape; signed 2009
CFE – Collection Contract
Documents
Articles of
Incorporation
CCRs
Lots 1-41
Collection
Resolution
Declaration
of Covenants and Annexations
Bylaws
Violation
Letter Resolution
Fine
Resolution
Plats
Financials
Year end 2005
Year
end 2006
Year
end 2007
Jan.-Dec.
2008
Jan.-Dec.
2009
Jan.-Dec.
2010
Jan.-Dec.
2011
Jan.-Dec.
2012
Jan.-Dec.
2013
Jan.-June
2014
Minutes
2005; Aug., Oct.,
Dec.
2006;
Feb., Mar., May, June, July, Aug., Sep., Oct., Nov., Dec.
2007;
Feb., Mar., Apr., May, June, July, Aug., Sep., Oct., Nov.
2008;
Feb., Mar., Apr., May, June, July, Aug., Sep., Oct., Nov.
2009;
Jan., Feb., Mar., Apr., May, June, July, Aug., Sep., Oct., Nov.
2010;
Jan., Feb., Mar., Apr., May, June, July, Aug., Sep., Oct., Nov.
2011;
Jan., Feb., Mar., Apr., May, June, July, Aug., Sep., Oct., Nov.
2012;
Jan., Feb., Mar., Apr., May, June, Aug., Sep., Oct., Nov.
2013;
Jan., Feb., Mar., Apr., May, June, July, Aug., Sep., Nov., Nov.
2014;
Jan., Feb., Mar., Apr., May
Annual;
2007, 2008, 2009, 2010, May 2011, June 2011, 2012
Reserve Studies
2014
List of Board of Directors
Pre-2002 - present
Insurance
D&O
8.2013-8.2014
Fidelity 8.2013-8.2014
General
Liability 8.2013-8.2014
The above indicated documents have
been provided per request on a flash drive on July 25,
2014 by Superior Community Management.
