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| 05/16/26 16:03:07 | [ Login ] [ Main index ] [ Post a new message ] [ Search | Check update time | Archives: [1], 2, 3, 4 ] |
| Subject: Board may be in violation of covenants | |
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Author: Butch Huber |
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Date Posted: Wed, Sep 09 2009, 10:31:12 In reply to: Nancy Valencic 's message, "Meeting is Tuesday, Sept 15th" on Mon, Sep 07 2009, 19:15:32 From the, "Declaration of Restrictive Covenants For Willoughby Station" Article V: 5.1 Common Areas. Each owner shall have a non-exclusive right and easement of enjoyment in and to the Common Areas which shall be appurtenant to and shall pass with the title to each lot as designated upon the Plats, subject only to the provisions of this Declaration and the Articles of Incorporation, By-Laws, and rules and regulations of the Association, including, but not limited to, the following; Article VII MORTGAGEE RIGHTS AND GOVERNMENTAL REGULATIONS 7.1 Special Actions Requiring Mortgagee Approval. Notwithstanding anything herein to the contrary, unless at least seventy-five percent (75%) of the first mortgagees (based upon one vote for each first mortgage owned) or owners (other than the developer) of the individual lots have given their prior written approval, the Association shall not be entitled to: (C) By act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer the common facilities. The granting of easements for public utilities or for other public purposes consistent with the intended use of the common facilities by Willoughby Station shall not be deemed to tranfer within the meaning of this clause: Article I. Definitions; "Common Area" of "Common Areas" shall mean and refer to any and all real property owned by the Association, and such other property to which the Association may hold legal title, whether in fee or for a term of years, for the non-exclusive use, benefit, and enjoyment of the members of the Association, subject to the provisions hereof, and such other property as shall become the responsibility of the Association, through easements or otherwise, including any recreational areas, swimming pool, tennis courts, clubhouse, or similar structure which may be constructed initially by the Developer or thereafter by the Association. Common Areas with respect to the properties made subject to this Declaration, whether at the time of filing of this Declaration or subsequently by Supplementary Declaration(s) shall be shown on the Plat(s) of Willoughby Station and designated thereon as "Common Areas" or "Open Space". My interpretation of the aforementioned Articles, although I am not an attorney, is that the board has egregiously overstepped its authority in its action to remove the basketball nets and backboards. Their removal of any amenity, once put in place, is, in my opinion, and act of abandonment of that amenity. The way I interpret the definition of "Common Area" includes the basketball court, the backboard, the nets, and the poles. Article VIII General Provisions 8.4 Enforcement. If any person, firm or corporation shall violate or attempt to violate any of these restrictions, it shall be lawful for any other person, firm or corporation owning any property within Willoughby Station to bring an action against the violating party at law or in equity for any claim which these Restrictions may create in such other Owner or interested party either to prevent said person, firm, or corporation from so doing such acts or to recover damages for such violation. The provisions of this paragraph 8.4 are in addition to and separate from the rights of the Association to collect Association. Any failure by Developer or any property owner to enforce any of said covenants and restrictions or other provisions shall in no event be deemed a waiver of the right to do so thereafter. Invalidation of any one or more of these restrictions by judgment or court order shall neither affect any of the other provisions not expressly held to be void nor the provisions so voided in circumstances or applications other than those expressly invalidated, and all such remaining provisions shall remain in full force and effect together with the provisions ruled upon as they apply to circumstances other than those expressly invalidated. Should any aggrieved owner employ counsel to enforce any of the foregoing covenants or Restrictions, the prevailing party in any legal action shall be entitled to recover from the losing party the attorney fees and expenses incurred in such action. It appears to me that any member of the Association can bring action against the board members for removing the backboards and nets unless they had prior written approval from seventy-five percent (75%) of the members of the Association prior to having the Backboards and Basketball Nets Removed. I seriously doubt the board had 75% approval for the removal of the boards and nets, therefore, it would be in the best interest of the Board to reinstall the boards and nets immediately. Furthermore, unless, at least in my opinion, the board has 75% of the people show up at the meeting on the 15th, they still cannot take an action that would remove or abandon an amenity. I as a homeowner have a vested interest in the "Common Areas", which includes the basketball courts, the swimming pools, the tennis courts, the playground area, the parking lot, the land in which those amenities are located, and all other improvements to the land and facilities covered by the term "Common Areas". For a board to improperly vote to abandon any of portion of the Common Areas it is electing to reduce the value of my vested interest and it is abrogating my rights to the enjoyment of the common area abandoned. I don't play basketball very much, however, if my children want me to go shoot some hoops with them, which has occurred on rare occasion, I have a fundamental right to do so and no board member or group of board members have a right to present a barrier to such use, whatsoever, without 75% approval of the membership (or at least that is my non-legal opinion). There is no need for a special meeting unless the board is confident that it can get 75% approval of their intention to remove the boards and nets, because without such approval, it appears they cannot remove the boards or nets. It is ultimately important that the membership hold this board accountable for its actions and demand that they replace the boards and nets immediately. Although the law seems to be clear in this matter, and although past actions not pursued does not legally imply consent to future action, precedents can be established which lead to future actions. What I am saying is that, if we allow the board to make decisions in contravention to the Covenants, it will lay the foundation to establish a precedent upon which their posture and disposition may become such that they feel they have the right to continue to take such undesirable and unlawful actions in the future. Next time it could be the tennis courts, then perhaps the swimming pools, then the playground. Or perhaps they will decide to build a clubhouse. Perhaps they, the board members, like the idea of purchasing a piece of property for the establishment of riding stables or a driving range for driving golf balls. It is important that the board strictly and ardently uphold the covenants when they are taking actions and making decisions so that they do not usurp or violate the rights of the members. I, for one, do not like homeownership associations at all because I think that it is a very tricky and underhanded way for government to abdicate responsibility and off-set costs. The government cannot convey police jurisdiction to the homeowner's association to enforce the abdicated responsibilities. That sets up the whole mess we are looking at here. The city required the common area in order for approval of the preliminary master development plan for the neighborhood, however, they, the government, doesn't seem to want to take on the full required need for police coverage and enforcement of the rules of the association, and in fact, may not be allowed to do so under the laws of the state and federal laws. It creates a very grey area in the law. All of that having been said, "IF" we are going to have homeowner's association, it is paramount that we demand that they not overstep their bounds. Actions taken by the board of directors can have serious consequences. Imagine for a moment if they unilaterally decided to close the pools and have them bulldozed in. You come home from work one day and the pools are gone, along with the pool house! If they have the right to remove the backboards and nets, they have the right to bull-doze the pools. You simply can't have one authority and not have the other. While I believe it would be reasonable to assume that no board would actually do such a thing as to bulldoze in our pools, I wouldn't expect any board to have the audacity to remove the backboards and nets, either. If they were to bull-doze the pools, or make some other extreme decision, the cost to us could potentially significant. If a homeowner wanted to they could take the board to court, sue them for the rebuilding of the pools or rectify the expensive action taken by the board of directors, and either the board members themselves or the members collectively would have to pay the bill for rectification of the action and they or we would be responsible for all the costs of the legal action. Brian, I know you read this board, I would recommend that you take what I have stated here to heart, take it to the board of directors, have the association management have the attorney's investigate whether your actions as a board have been lawful and authorized, and be prepared on the 15th to give an account. [ Next Thread | Previous Thread | Next Message | Previous Message ] |
| Subject | Author | Date |
| Mortgagee = Lender (The Banks) | Lori | Wed, Sep 09 2009, 16:04:06 |
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