A Petition and Legal Filing is STILL in the Works!!!

It's just been a slow recovery after having transforaminal lumbar interbody fusion, meanwhile I am catching up on other personal matters.

Homeowners of Oak Knoll...I will not be giving up or giving into the HOA on this one.

They are violating the law where the reserve account and raising the annual dues are concerned; and a Writ of Mandamus is the only legal recourse left to force them to follow state statute (we cannot force them to follow the CC&Rs, unfortunately; as they are discretionary guidelines, per a previous Oregon court ruling), which can and will be done.

Since this legal matter has nothing to do with the CC&Rs specifically, there is no set time frame for filing this motion unlike that if it were a violation of the CC&Rs...which has a statute of limitations of one year from the date of identification or notification of that violation. So the HOA cannot rebut the Writ on that basis.

Anyhow...I am still on top of it, and the HOA will follow the statute in the end and provide a reserve study and maintenance plan, as required per the Oregon Planned Community Act.

If anyone has any questions about this, feel free to response here or via email: okhawatchdog@gmail.com.

In addition to this Writ, I would like to reiterate the option of dissolving the HOA since it really has done this community no good; especially when it pays a professional management company more than $11,000 of our money per year to do nothing but give the  bad advice and force homeowners to do things in the CC&Rs that they are legally not allowed to do (like the street tree issue).

Sincerely,

OKHA Watch Dog

Someone who lives within the OKHA likes to drive around looking for homeowners violating the CC&Rs

It was just recently brought to my attention that there is apparently an overweight older woman in a small vehicle who likes to drive around the Oak Knowll Community and document what she subjectively interprets are violations of the CC&Rs and files complaints with the HOA.

This information was brought to my attention by a trusted friend who use dot reside within the community who was also told that this particular woman picks on some homeowners more than others.

Clearly this woman has nothing bettter to do to than "tattle tail" on other homeowners for things she believes are violations.

If this informatio is accurate, I don't put too much stock in it (i.e. I wouldn't be too concerned) given the fact that the Board of Directors are impotent to do anything about it.

After all, there are several homeowners that never consulted the Design Review Committee before making changes to their landscaping and other structural changes to their homes. Do you think the HOA did anything about it, of course not.

All the HOA does is keep raising our annual dues to pay a so-called professional management company more tha $11,000 a year to do nothing; which includes failing to properly advice, direct and counsel the Board of Directors when it comes to the decisions they make concerning the Oak Knoll Homeowners Association.

The prime example being the reserve account for the new fiscal year of 2011 adding more than $13,000 to a reserve account without the statutory required reserve study and maintenance plan; both of which the Board of Directors absolutely refuses to comply with.

Soon a Writ of Mandamus will be filed with the appropriate court of jurisdiction and we'll see just see about that.

In the meantime, I am still working on another petition to be sent to all the homeowners of this association asking for their vote to abolish the Homewoners Association.

For one thing, it hasn't served us any good since its inception.

Second, the not one but TWO management companies that they hired, along with the law firm(s) they've had on retainer have done nothing to serve the interests of this community either.

Meanwhile both the mangement company and the law firm gets enrichened by a part of our annual dues with no objective positive results.

More importlantly, they are all violating the law and doing so at our expense and don't like being told otherwise.

The current CC&Rs are more than 16 years old...they are outdated and need refined, something of which neither the managment company nor the law firm has suggested or accomplished.

And despite the facts I have presented within this blog and to the Boar of Directors regarding the street trees on each lot, that they have no legal authority to demand that a homeowner has to have them planted at their expense after 2001, they are still doing so. Just because someone buys a home today in the Oak Knoll Community does not restart the clock on documented known violations of the CC&Rs.

The FACT is that the street tree issue is a dead issue and has been since 2001. And once again the Board of Directors are violating statutory law in forcing a homeowner to do that which they are not legally obligated to do.

Shame on our Board of Directors, and shame on us for letting them get away with this malfeassance for entirely too long.

Management Company's Unprofessional 2nd Response to BBB Complaint

On May 27, 2011, the business provided the following information:This remains an issue with the Board of Directors. Superior Community Management works AT THE DIRECTION OF THE BOARD. We will respond no further to Mr. Spurlock.

My Response:
Superior Community Management Company was hired BY the Board of Direcotrs for Advice, Direction, and Counsel given the FACT that the Board of Directors are collectively IGNORANT of how to run an association. Thus the Board of Director's decision to HIRED A PROFESSIONAL ASSOCIATION MANAGEMENT COMPANY: Superior Community Management.

Superior has a FUDICIARY DUTY (and they have lawyers on retainer that can explain the legal ramifications of this duty to them) to not only the Board of Directors, but a de facto fiduciary duty to the homeowners of this community.

Denying this fact with such an immature and unprofessional response as stated above simply will NOT change the LEGAL FACTS of their position in this matter.

If the Board is making an INCORRECT or ILLEGAL decision, it is incumbent upon Superior Management to advise, direct and counsel them otherwise. That is their duty; unless they are suggesting that if the Board directs them to jump off a bridge, they will do it becuase they work "AT THE DIRECTION OF THE BOARD."

Bottom line, Superior Community Management Company IS IN FACT violating State Statutory Law where not only its fiduciary positions are concerned, but also by extension it is violating the Oregon Planned Community Act by allowing the Board of Directors to do EXACTLY what it was hired to stop them from doing.

Therefore they are equally complicit as the Board of Directors and are still subject to my complaint.
Not responding to this VALID and WELL GROUNDED complaint will not CHANGE the FACT that they have a responsibility to the Homeonwers of the Oak Knoll Community.

So once again, no I DO NOT accept this business' response and lack of a resolution.

Illegitimate response from management company to BBB complaint filed.

Got an email this morning that Superior Community Management, the firm hired by our Board of Directors at a tune of more than $11,000 a year for advice, direction and counsel as a "professional" management company who operates within the confines of the law governing Planned Communities in Oregon, responded to my BBB complaint:

RECEIVED BUSINESS RESPONSE : I can tell you immediately that the decisions this Oak Knoll homeowner is complaining about are decisions the Board of Directors of Oak Knoll HOA have made and Superior has no say so in their decisions at all.  Their issue should be with the association and not the management company. 

                                 

                                Tina Brown CMCA, AMS, VP

                                Superior Community Management

                                PO Box 1549, Sherwood, Or 97140

                                503-684-1832   Fax 503-684-1834

This is nothing short of deflection and denial of their responsibility where their fudiciary duties to the Board of Directors and the homeowners of the Oak Knoll Community are concerned. My response is as follows:

RECEIVED CONSUMER REBUTTAL : (The consumer indicated he/she DID NOT accept the response from the business.)

                                The Board of Directors of the HOA are paying Superior Community Management more than $11,000 a year to manage the affairs of the association. Therefore they play a part in the decisions of the association as they carry out those decisions.

                                The management company also has a law firm on retainer who advises both the management company and the board. As such, they know full well that what they are doing in knowingly carrying out their management duties where this complaint is concerned is in direct violation of the Oregon Planned Community Act.

                                This management company has a fudiciary duty to the Board of Directors, and since they are paid with homeowner funds from the association, the management company also has a fudiciary duty to the homeowners of this community as well.

                                The management company breached its fiduciary duty given the fact that they have failed to properly advise their clients, the Board of Directors, to act properly whereas the CC&Rs and  the Oregon Planned Community Act in regards to the illegally established reserve account to fund non-common improvements of this association are concerned.

                                Bottom line, the Board of Directors of the association are volunteers who know nothing (i.e. they are not qualified professionally or academically in the law, either real estate or association law) about managing a homeowners association. Hence their decision to hire a mangement company to carry out those duties with advice, direction, and counsel.

                                Therefore, Superior Community Management Company is a party to this complaint as the management company hired (being the "professionals" in managing homeowner associations) to advise, direct, and counsel the Board of Directors of the Oak Knoll HOA They have breached their fudiciary duty to them and the homeowners of this community in failing to properly carry out its duties in compliance with the Oregon Planned Community Act and the ORS covering fudiciary duty.

When the next response is received, if any, it will be posted here.

Legal motions are being prepared...however there will be a slight delay.

The Writ of Mandamus is being prepared for filing in order to force the Board of Directors to follow the Oregon Planned Community Act where the required reserve study and maintenance plan in establishing a reserve account is concerned.

However due to a personal medical issue that will require some down time, that filing will be delayed.

Notwithstanding, it will be filed well within the legal framework and guidelines specified and filed within the appropriate time frame.

Until then...everyone should really consider entertaining the idea of voting to abolish the HOA, as it really hasn't done anything positive for the Oak Knoll Community over the past 15 years; and do you honestly want to keep paying increased dues with no objective results? I certainly do not; what say you?

Formal Written Response to the Board of Directors RE: Breach of Fiduciary Duty

March 27, 2011

Oak Knoll Homeowners’ Association

ATTN: Board of Directors

C/O Superior Community Management Company

P.O. Box 1549

Sherwood, OR 97140

RE: Breach of Fiduciary Duty

Dear Board of Directors,

As members of the Board of Directors of the Oak Knoll Homeowners’ Association (HOA), each of you has a fiduciary duty to the homeowners of the Oak Knoll Community. As such, you are obligated with the following duties as the fiduciaries of the HOA: care, acting in good faith and fair dealing, trust, confidence and candor. In the performance of those duties, each of you is expected to act professionally as you exercise your fiduciary role when managing the business affairs of the HOA.

First and foremost, each of you has the responsibility and duty of care towards the homeowners of this Community in your respective roles as members of the Board of Directors of the HOA. As such, you are required to pay attention to the specific details of the Covenants, Conditions, and Restrictions (CC&Rs), Bylaws and the Oregon Planned Community Act (ORS 94.550 to 94.7823) that governs the HOA. This means you have to adhere to that which governs our Community to the letter of the law as it is intended (i.e. written), and not by reading into or interpreting what or how you want the governing documents to mean.

The Board of Directors breached this duty of care when it failed to carefully pay attention to that which is clearly stipulated in the CC&Rs by assuming the personal and financial responsibility of the maintenance, repair and replacement of the sidewalks damaged by the street trees along Foothills Drive. As a result, the Board voted to re-establish a reserve account, in part, to fund the future maintenance, repair and replacement of the sidewalks along Foothills Drive damaged by the street trees.

CC&R 7.1 neither identifies the sidewalks along Foothills Drive as a “common improvement” of the HOA, nor does it state that any damage to the sidewalks along Foothills Drive caused by the street trees as being a legal or financial responsibility of the HOA.

CC&R 7.3 clearly demarcates that personal and financial responsibility of maintaining, repairing or replacing damage to sidewalks caused by street trees to that of the homeowner.

Another example of inattentiveness by the Board of Directors is in regards to providing proper notice to each homeowner prior to each meeting of the Board of Directors.

ORS 94.640 (8)(a) clearly states the following:

(8) In a planned community in which the majority of the lots are the principal residence of the occupants, meetings of the board of directors must comply with the following:

(a) For other than emergency meetings, notice of board of director’s meetings shall be posted at a place or places on the property at least three days prior to the meeting or notice shall be provided by a method otherwise reasonably calculated to inform lot owners of such meetings.

Additionally, the Bylaws of the HOA clearly state that notices of each meeting are to be in writing and “mailed to each member at his address as it appears on the books of the association...not less than fifteen (15) days nor more than fifty (50) days prior to the date of the meeting.”

One mailing per year providing the dates and times of these meetings do not meet either the statutory or Bylaw requirements cited above.

Additional examples of inattentiveness is the lack of enforcement of the CC&Rs, that which include numerous violations by various homeowners over the years in complying with the respective CC&Rs covering the Maintenance of Lots, Landscaping, Parking on the Street, among others; to include consulting the Design Review Committee before a homeowner makes any changes to their respective Lot.

Second, each of you has the responsibility and duty of acting in good faith and fair dealing towards the homeowners of this community. This means that you are to treat all homeowners fairly so as not to deny each individual homeowner the realization of the true intent and purpose of the CC&Rs, Bylaws, and statutory law governing the HOA that benefits them as a homeowner and the Association as a whole.

The Board of Directors breached this duty when it personally and financially assumed the maintenance, repair and replacement of the street trees along Foothills Drive; and as a result, voted to re-establish a reserve account, in part, to fund the future maintenance, repair and replacement of those street trees along Foothills Drive.

CC&R 7.1 neither specifically states that the street trees along Foothills Drive as a “common improvements” of the HOA, nor does it identify that only those street trees along Foothills Drive are “common improvements” in being the responsibility of the HOA.

However, Section 7.1 does state that “certain improvements”... “are for the benefit of all Lots”; and one of those improvements is specifically identified as“...street trees on each Lot.”

The Board of Directors assessing the entire association for the maintenance, repair and replacement of street trees isolated to Foothills Drive leaves the remainder of homeowners who do not live on Foothills Drive not only paying for the upkeep of the street trees on Foothills Drive via that assessment, but also the street trees upon their own lots as an individual homeowner expense. This assessment is not in good faith, nor is it fair and equitable treatment of all homeowners.

As such, either all “street trees on each Lot” “are for the benefit of all Lots” and should be maintained, repaired and replaced as one of the identified “common  improvements” of the HOA in Section 7.1; or no street tree on any Lot shall be considered “common improvements” and left to the responsibility of each individual Lot’s homeowner.

Having said that, the Board of Directors will run into two legal conflicts: (1) CC&R 8.1 specifically states that each homeowner has the responsibility to maintain the trees upon their Lot, “in a reasonably clean, neat, attractive and visually pleasing manner so as not to detract from Oak Knoll being a high-class residential neighborhood”; and (2) the City of Newberg Code Section 96.60 and 96.61 more specifically demarcates that same responsibility upon the homeowner of the property adjoining the planter strips containing the street trees.

Thus on the one hand you have CC&R 7.1 that states the street trees on each Lot is a “common improvement” of the HOA; and on the other you have two dominating city codes that irreconcilably conflicts with that section of the CC&Rs.

Newberg Code 96.60 (A) and (B) clearly states that “it shall be the duty of the owners of land adjoining any street or highway within the city to maintain planter strips adjoining their properties.” That maintenance includes but is not limited to “pruning trees...to keep them healthy.”

In addition to 96.60 (A) and (B), Newberg Code 96.61 (A) clearly states that “All street trees that were required to be installed under a street tree plan or similar requirement shall be maintained in a healthy condition by the adjoining property owner,” which includes the replacement of dead trees by the homeowner as well.

CC&R 7.1 unequivocally conflicts with the City of Newberg’s codes regarding the responsibility of maintaining, repairing and replacing the street trees in the planter strips adjoining their respective property.

In the hierarchy of governing documents, local ordinances (i.e. law) supersede that of a HOA’s Declaration of Covenants, Conditions and Restrictions; especially when a clear conflict arises between the CC&Rs (a contract between landowners whose properties are affected by it) and a local ordinance, where in such cases the law always prevails.

Another example of the Board of Directors breaching its duty to act in good faith and fair dealing towards the homeowners of this community is the fact that the HOA had no legal right to demand of homeowners lacking street trees to have them planted at their expense or face an action by the HOA for violation of CC&R 4.6.7.

The issue of the missing street trees was addressed and dropped by the Board of Directors in 2000. It was then readdressed by the Board of Directors in May 2005, who affirmed in the Oak Knoll Newsletter that the responsibility to have planted the street trees legally rested upon the declarant, developer or individual builder of each lot under contractual agreement with the City of Newberg; an agreement that the Board even admitted that the City was negligent in enforcing.

Notwithstanding, the Board of Directors, under ORS 94.780, had only one year from the date of initial identification or discovery of the violation or deficiency to commence a suit or action. As such, the HOA had no legal right to demand homeowners lacking street trees on their lot to have them planted after August 2001.

Third, each of you have the responsibility and duty of trust and confidence that the homeowners of this community reply upon as you carry out your respective roles as members of the Board of Directors of the HOA.

The Board of Directors breached this duty when it committed the aforementioned breaches of its fiduciary duties; in addition to its reliance on a management company that demonstrably breached the same fiduciary duties with the Board of Directors and the homeowners of this Community.

This raises the question of how can any homeowner, or the collective homeowners in the Oak Knoll Community, legitimately trust and have confidence in the Board of Directors when they respond to homeowners’ inquiries and/or comments identifying clear deficiencies and/or violations of the CC&Rs by the Board of Directors with, “we’re volunteers.” Being a volunteer does not negate any of the fiduciary responsibilities and/or duties each of you are entrusted with by the homeowners of this Community.

The trust and confidence of the Board of Directors is further called into question when either certain members of the Board or the Board as a whole acts in opposition to that trust and confidence of the homeowners where the CC&Rs, Bylaws and/or the Oregon Planned Community act are concerned.

The homeowners trust that each member of the Board of Directors is capable of reading and understanding the CC&Rs, Bylaws and statutory law governing our Community for what each respective governing document(s) state.

As such, the homeowners must trust and have confidence in the members of the elected Board of Directors in that they will not read into what is written, thereby creating and placing an unwritten (i.e. unsanctioned) obligation upon the HOA (e.g. the maintenance, repair and replacement of the sidewalks along Foothills Drive damaged by the street trees) without more than 75% approval of the homeowners (CC&R Section 9).

Additionally, the homeowners further place their trust and confidence in the members of the Board of Directors to exercise their duty of care in ensuring that the management company they voted to hire and continue to employ would equally hold that company to the same standards of fiduciary duty between it (the management company) and the Board of Directors of the HOA; which has not been the case as of late given the shared breach of fiduciary duties cited herein.

Last but not least, each of you has the responsibility and duty of candor towards the homeowners of this community as members of the Board of Directors of the HOA. This means that the homeowners expect an honest and straightforward quality in each of you in carrying out your duties as members of the Board of Directors of the HOA.

As such, if a clear and unmistakable error has been committed by either the Board of Directors through its own action or inaction, or that of the management company, then it is incumbent upon the members of the Board to be honest and straightforward in taking responsibility for that error and in seeing that it is immediately corrected.

When it was brought to the Board of Directors’ attention that a reserve study and maintenance plan was required by ORS 94.595 (3) and (4), it relied on the management company to advise whether or not such was required before it actually voted to re-establish the reserve account in the 2011 budget.

In doing so, the members of the Board received incorrect advice from both the management company and attorneys (one of whom conceded, in writing, that even he recommended to the Board of Directors that a reserve study should be completed) of Vial Fotheringham LLP on this matter. As a result, this clear and unmistakable error has yet to be acknowledged let alone corrected by the Board of Directors.

It is a foregone conclusion that under the Oregon Planned Community Act that the Oak Knoll Homeowners Association is a Class I Planned Community; and when the HOA was established, it had an annual assessment exceeding that of $10,000, to include the reserve account.

This fact was affirmed by Kevin J. Kinney of then Coran & Kinney, LLP in a letter dated November 12, 1999, in which he clearly stated that the Board voted in and established a reserve account as of November 9, 1999. In doing so, all subsequent Board of Directors of the HOA were bound or enjoined to follow the statutory requirements of a reserve account and maintenance plan as outlined in ORS 94.595.

Notwithstanding, the premise of the re-established reserve account voted in by the current Board of Directors is based on improvements that are not qualified as “common improvements” of the HOA. Therefore the current reserve account is illegitimate, as the reasons for its re-creation are not sanctioned by either the CC&Rs or ORS 94.595; both of which clearly state that a reserve account is to be established strictly for maintaining, repairing and replacing common property (improvements).

As such, any and all funds collected and deposited into the reserve account were illegally assessed and are to be returned to the homeowners post haste. Otherwise a legitimate reserve study and maintenance plan needs to be conducted and presented to the homeowners before any reserve funds are expended. And should that study show that the current reserve was over budgeted, that difference should be returned to the homeowners as it was illegally assessed.

If the Board of Directors does not cease and desist in its continuous violations of the CC&Rs, Bylaws, and statutory provisions of the Oregon Planned Community Act cited herein by April 15, 2011, I will have no choice but to file a writ of mandamus on behalf of the entire community of homeowners that will have the effect of a court commanding the Oak Knoll Homeowners Association via its Board of Directors to refrain from said violations, and to perform its fiduciary duties and other obligations as required by law.

Please respond with your intentions in these matters or have your attorney contact me immediately with an answer to each of the issues cited herein.

Sincerely yours,

Sent: Email and Certified Mail

Board of Directors meetings...how does a homeowner know when these take place?

A homeowner asked the following in a previous blog posting:

"How does a homeowner know when the meetings are being held? I haven't received any notices about when/where they are held. I assume they are still held at Avamere, but how frequently?"

That's a really good question, which has an interesting answer.

This so-called "notice" of Board meetings was included in the November 2010 letter announcing that the Board of Directors were hitting us with a $13,650 Reserve Account for repair of the sidewalks and replacement of street trees along Foothills Dr. Neither one of which are a "common improvement" of the HOA, as clearly defined within CC&R 7.1 and 7.3 (please read UPDATE to January 18, 2011 Annual Board Meeting blog post below for more details).

Anyhow, the above written notice that is received but once a year to inform the homeowners of Oak Knoll of the scheduled board meetings is in direct violation of Oregon Revised Statute 94.640 (8)(a) which states as follows:

(8)In a planned community in which the majority of the lots are the principal residences of the occupants, meetings of the board of directors must comply with the following:
(a)For other than emergency meetings, notice of board of director's meetings shall be posted at a place or places on the property at least three days prior to the meeting or notice shall be provided by a method otherwise reasonably calculated to inform lot owners of such meetings.

Though state statute supersedes the ByLaws of our association, it's noteworthy to mention that even the ByLaws state notices of each meeting are to be in writing and "mailed to each member at his address as it appears on the books of the assocations...not less than fifteen (15) days nor more than fifty (50) days prior to the date of the meeting."

The above one-time notice is not sufficient notice to all 198 homeowners in this association; which is why there are only 1-3 homeowners (if any at all) that even show up at the board meetings, and only about a dozen at the annual meeting.

One could inductively reason that the purpose of the Board of Directors' failure to comply with ORS 94.640(8)(a) and/or even the ByLaws is so that they can make decisions without any input from any homeowner present.

For example, the Board of Directors, on bad advice from the association attorney, subjectively read into what Section 7.1 of the CC&Rs says and improperly assumed responsibility and liability for the sidewalks and street trees along Foothills Dr; thus making ALL homeowners financially responsible for the repairs and replacement of such without any input whatsoever from a homeowner.

Section 9 of the CC&Rs make it perfectly clear that the Board CANNOT make such an assumption of responsibility or liability for items within the association that is clearly NOT a "common improvement" of the association without an amendment or modification to the CC&Rs; which requires not less than 75% of the homeowners vote affirming that amendment or modification.

Anyhow, I encourage you and as many homeowners as possible to start attending the Board meetings. We need to start holding them and the management company accountable and implore upon them the need to follow the rules and regulations within the boundaries of the laws that govern our planned community.