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RobertR1
(South Carolina)

Posts:2148

07/30/2007 2:09 PM
Jack, From all you say it looks like your concerns may be considered secondary to the problems at hand. All the more reason for all parties to sit down with a mediator aand get each special concern severed from the others and solve them separtely. Without knowing how the law will consider all this the best suggestion I could give to really have a solid paper trail indexed and in a file. Index all the specifics and know where they are located. Inform the Board by registered mail of all your concerns and copy any official you can get interested. Try and get a council member to champion your cause or a state or county representative. Now if your position is simple: They are going to allow me to live in a dwelling of my choice or I am going to court, by all means convey exactly that to the Board and county officials. Sounds like you are not going to have a lot of wiggle room so the sooner settled the better. You might be able to force your way to the head of the line with a little bit of political help. For you, the sooner the better and if things turn sour at a hearing you can always grab the coat tails of any other court business.

JackS1
(Colorado)

Posts:44

07/31/2007 8:51 PM
BOARD OF DIRECTORS MEETING July 26, 2007 San Juan Basin Technical College 7:00 p.m. MINUTES Old Business: Covenant #10: At our last meeting, it was decided to consult a lawyer for clarification on this issue. Jim xxxxxx and Gary consulted with a local attorney, presented him with all the information from both sides and requested a written summary from him. At this time, this is being processed and we should have it by our next meeting. For some reason I did not receive a notice of this meeting. Nor was it mentioned to me at the HOA gathering I attended on July 22 at the BOD president's home. Most of the BOD was present. I did not bring the subject up at this social function. There were only 3 HOA members present according to the minutes. The previous meeting after my letters to all was packed. My personal position has nothing to do with the dwelling of my choice. It has to do with keeping the board honest and seeing that the greater body of the HOA is not harmed by the BOD's actions. It also has to do with seeing that the intent of the covenants as stated in them is being met. A lost lawsuit could easily bankrupt the HOA. Our roads, though not owned by us and probably owned by the county would rapidly become unusable for most vehicles. Road maintance is the major expense for HOA. I don't think we have any commonly held real estate. The only physical property, that I know of, held by the HOA would be some herbicide spray tanks. I say probably owned by the county as the party who sued the HOA has a quit claim from the developer giving him the rights to the roads. However you can't give away something you don't own. My next move will really depend on the advice they receive from the unnamed local attorney. Assuming he is competent and not just a paid tool, he should come to the conclusion that #10 can not be used to support their position. They have already had 60 days to check on my citations Jack

RobertR1
(South Carolina)

Posts:2148

08/01/2007 5:21 AM
Jack, There is a real possibility that the Board is not obligated to divulge the opinion of the Attorney. The Lawyer is hired by the Board and Lawyer - Client privledges may prevail. They could give a verbal explanation of the lawyers input. The decision rests with the Board. I would guess they are not anxious to discuss this with you. This could be for several good reasons. One thing for sure, I doubt they will call you up and say they are sending a copy of the lawyers letter. Keep in mind, they have a butt to cover, as we all do. Maybe they consulted with the lawyer about more than one issue? Was 3 board members a quorum? Any common property should be listed in your documents (Real Property that runs with the Land). Can't you find out from the county who owns and maintains your roads? What webs we mortals weave, when first we practice to deceive. I forget who said that.

JackS1
(Colorado)

Posts:44

08/01/2007 9:15 AM
Robert, I had never considered that they would refuse to reveal the content by way of attorney/client privilege. They said that they would reveal the information to the homeowners. It seems that once again I was not clear enough. 5 of the 7 Board members were present. There were also 3 lot owners present. The meeting lasted for 36 minutes. To the best of my knowledge our roads really are owned by the County, but not maintained by the County. The lack of county maintance is indicated by the use of red rather than green street signs here. Rather than my legal mailing address being on County Road K.3, it is on Road K.3 . We are on Grid system which indicates our location by the distances from (or to) the borders. Hence 35150 Road K.3 would be 35.15 miles from the Utah border to the West and 11.3 miles north of the Nation of the Mountain Ute's border. The quit claim I mentioned was granted long after the county was granted the roads. It was acquired by the holder for the purpose of aggravating the BOD during his previous bout of litigation against the board. The county was also given land to be used for fire department substation. Which after a great deal of squabbling with the original developer( who sued to get it back) did in fact get a station built on it. There is some property adjacent to the station that is cleaned up by volunteers from the HOA. I am not certain, but it may a portion of the fire dept allotment. I must check on that. The biggest part of the HOA budget goes to keeping the roads open and passable year round. Though the county signed off on them, they were substandard in some areas. They get washboards in a hurry, potholes, plugged culverts and washouts. Jack

JackS1
(Colorado)

Posts:44

09/05/2007 11:05 PM
I heard through the grapevine that the BOD has finally received an opinion from their attorney. I also heard that they now want to try for new covenant to ban manufactured housing. No one has formally advised me of this. Nor do I expect them too. I am not certain that they can ban Manufactured homes as defined by Colorado Statutes: TITLE 30 GOVERNMENT - COUNTY: COUNTY PLANNING AND BUILDING CODES: ARTICLE 28 COUNTY PLANNING AND BUILDING CODES: PART 1 COUNTY PLANNING: 30-28-115. Public welfare to be promoted - legislative declaration - construction. See my prior posting this thread Posted:7/7/2007 7:33:55 AM. Any thoughts on this? It seems to me that such a covenant would have to very cleverly written to avoid being discriminatory. The last time they tried to ban all types of factory built housing they just missed their simple majority by one vote. Now they must have a 2/3 membership vote to amend. Jack

Jadedone4
(Virginia)

Posts:495

09/06/2007 5:40 AM
Jack, if your rights now are unaffected by the current applicable covenants, they would not be affected by any new covenants approved by the HOA - UNLESS your stated classification changes. In other words if your status now is "kosher" with the HOA, and they approve a covenant, you are not in violation as your property status is (or should be, and would be defended in court as) "grandfathered." Now if your particular status changes (say you alter your property, or buy new type of home, etc), then you are then exposed to the new covenant's requirements. I fail to see how the issue could "rise" to being "discriminatory" based on an HOA establishing covenants towards what community standards are applicable. If they (community, via the HOA) does not want manufactured homes on lots - in a deed restrictive community owners agree to live by the covenants as applicable - therefore the HOA can "restrict" them. If your community's HOA is not in violation of Federal/State/Local laws - then if they want they can ban just about anything. Not suggesting that the situation is "fair," just that it is what it is.. as you live in a community under HOA's covenants. You mentioned that a previous measure by the HOA failed to reach the appropriate percentages need for passing. I would concentrate my efforts there, mobilizing neighbors to be involved and supportive of my position against the HOA, so that whatever "majority" is required (of board members, or of full community) that I have the support "of the people." I think that it was RobertR1 here who posted recently about how to "take the fight" to an HOA board; and how owners should understand that they need to be part of the process, and not just "buck" the system. In an HOA we do "agree" to live by certain standards - which are "decided" by a board (or majority). I would additionally ask of you, what is it that you hope to really acheieve here? What is to be gained by this new covenant by the board? How will if affect my station in life? Sometimes you have know when to fight a war, battle by battle... and other times you need to accept that the battle cannot be worth losing ultimately the war...

JackS1
(Colorado)

Posts:44

10/24/2007 11:37 AM
Recived from the BOD secretary 10/19/2007 9:37:15 A.M. Mountain Daylight Time Hi Jack, We got your email and passed it on to board members. We do have an opinion from the lawyer and it will be discussed at the meeting on the 25th. We did not have a meeting in Sept. Ruth

JackS1
(Colorado)

Posts:44

10/24/2007 11:37 AM
Recived from the BOD secretary 10/19/2007 9:37:15 A.M. Mountain Daylight Time Hi Jack, We got your email and passed it on to board members. We do have an opinion from the lawyer and it will be discussed at the meeting on the 25th. We did not have a meeting in Sept. Ruth

JackS1
(Colorado)

Posts:44

10/24/2007 11:39 AM
Not quite sure how that got out twice and in the wrong order. This was my letter to the HOABOD president Jim, From the May 31, 2007 BOD meeting minutes. "After a much-heated discussion that was unanimously against the letter from Lot 81, it was agreed that the Board would seek the advice and clarification from an attorney on this issue and report the results at the next meeting. It was also agreed that depending on the ruling from the attorney, we might have a membership vote on this covenant at a later time. A motion was made to consult a lawyer, 2nd and passed." Would you please advise me regarding this matter? Was an opinion received? May I have a copy of it? My opinion has not changed. Covenant #10 is not sufficient to ban manufactured homes from the subdivision. I am open to changing it, however, if presented with a well reasoned and documented legal opinion. Though I am opposed to prohibiting manufactured/factory built homes as defined by CRS 30-28-115. I certainly would not want to see true mobile homes and singlewides in our neighborhood. We need a clearly written covenant proposal if certain types of homes are to be prohibited. It should have a valid reason for it's existence and meet the stated intent of our covenant's preface. Unambiguous definitions are a must and they should comply with current federal and state ordinances. I would be glad to help write one to that effect. Our covenants need to be cleaned up. Accurate definitions need to be included to avoid future problems. I have never had the intent to sue the BOD nor do I advocate it. Suing the board is like suing yourself. My concern is for our mutual safety and financial well being. By creating some controversy I endeavored to promote discussion and participation. I accept the fact that I will alienate some of the membership. I don't present anything that I can't back up with documented facts. I make a point of looking at both sides of the issue. I try and find information counter to my beliefs so as not to be mistaken in my views before presenting them in a public forum. .Having done a vast amount of research, I am all to aware of the financial liability that we share and the risks the Board members are exposed to. The fiduciary duties that the board members need to comply with are frightening in their breadth. .This link will take you to very useful HOA supportive site with some good information on how to avoid problems in that area http://www.cohoalaw.com/governance-fiduciary-duties-of-board-members-an-overview.html Some more discussion regarding the implications of those duties. Though intended more for condos and cooperatives it is still pertinent. http://www.cooperator.com/articles/178/1/Is-Your-Board-Carrying-Out-Its-Fiduciary-Duty/Page1.html Though not always in agreement with the BOD, I still think you are doing a commendable job under difficult circumstances. Would you please see that the other board members receive this information? Jack -------------------------------------------------------------------------------- See what's new at AOL.com and Make AOL Your Homepage.

JackS1
(Colorado)

Posts:44

10/24/2007 11:50 AM
My response to the reply Ruth, I will not be able to attend the board meeting due to a prior commitment. I have a conference to attend. Please be so kind as to promptly send me a copy of the attorney's opinion. That would allow me the chance to send a statement regarding it. The more I read and learn about the CCIOA, Homeowners Associations, and the law, the more concerned I get about the well being of ours. Jack ----------------------------------------------------------------------------------------------------------------- Needless to say I still don't know what the opinion says. No copy recieved. I started this in Mid-May with my letters to the membership and it is now late October. Everything remains as it was. Misinformation and obselete information being spread on the website. I just checked on that. More will be revealed. I hope! Jack

RobertR1
(South Carolina)

Posts:2148

10/24/2007 11:54 AM
Jack, GGGGGGRRRRRRRRRRRRRRRRRR!!!! The BOD takes you input and your money to take your ideas to a lawyer and comnes back and tells you they have an answer. Then after the Board discusswes it in private they will bring it up to the membership at a meeting. GGGRRRRRRRRRRRRRRRRR!!! No wonder Boards have trouble. They apparently believe they can handle the problem but you can only handle it in an open meeting, that's a crock. No reason they should not let you see the reply. At least you are/maybe going to get a reply in writing, my board wouldn't even do that much. But the war is not over, I will win the next battle.

GloriaM
(North Carolina)

Posts:778

10/24/2007 3:14 PM
10. No structure of temporary character, recreational vehicle, camper unit, trailer, mobile home, basement, tent, shack, garage, accessory building or other out-building shall be used on any parcel as a residence. A temporary camp, tent or camper unit may be used for recreational purposes but such structures may not be allowed to remain or be stored on any lot for a period of more than 9 months in a given year. Recreational vehicles may be stored longer than the 9 months per year, provided they are stored in a storage facility, i.e. barn or garage, which meets all the requirements set forth herein. Read the 11th and 12th word in the above quote that you supllied: Mobil Home..a double wide is exactly that. However if they have others there and they have been allowed and they are only pointing yours out, then that is a horse of a different color, because a precendence has been set and if if its been as long as you state, then IMO yours should be granfathered in.

Dr. Gloria J. Martinez, CFO Official HOATalk.com Sponsor Author of "A Guide to Community Living" Faith Management Services, LLC (North Carolina) (704) 799-3791 www.FaithManagementServices.com *See legal notice below (end of page) or go to www.hoatalk.com/legal

RobertR1
(South Carolina)

Posts:2148

10/24/2007 3:37 PM
Gloria, I read his problem is trying to get the covenants changed to a Manufactured home. If fact the board in 2005 agreed a manufactured home was not a mobile home. Then they wanted to include manufactured homes as mobile homes, which they are not. All he is trying to do is get the clause amemded to be specific about what they allowed up to this point. Your last paragraph addresses a part of his problem in that he believes it is against the law to classify a house as a mobile home, and by amending the Covenant he will save a lot of problems in the future. IMHO As always we can only react to how we look at the words.

JackS1
(Colorado)

Posts:44

10/24/2007 6:10 PM
Let me see If I can clarify my positions. First reread this lengthy posting from the beginning. Notice the federal definition of Mobile Home. Then look at How the state of Colorado defines manufactured home. I want the board to acknowledge the fact that manufactured homes were never legally prohibited from the subdivision. I want them to acknowledge that covenant #10 is not suitable for that purpose. Following that I want the misinformation removed from the web site and all of the members and local realtors notified that a mistake was made. (No admission of guilt necessary) Not that I expect that to happen I believe that they are breaching their fiduciary duties and subjecting all of the membership to unnecessary financial risk. Remember our BOD is uninsured and uninsurable. The broad statements they have been making are not in the best interests of the members particularly when those statements are both false and misleading. I am opposed to prohibiting manufactured/factory built homes as defined by CRS 30-28-115. If the membership as a whole wishes to ban manufactured homes from the subdivision( a 67% vote is required by our covenants for amendment) a covenant needs to be written that is in compliance with both state and federal law. They would need a very good reason to do this that would be compatible with the stated intent in the preface of our covenants. The definitions used would have to be concise and in context. I am not sure that under the current Colorado law that they can be banned. They can be regulated to be compatible with the other homes in size and appearance providing all are treated the same. I still have some questions regarding the amending of our covenants in October 2005. Our original documents make no provision for amendment by anyone other than the declarer/ developer. They were amended by simple majority in 2005 and the 2/3 majority clause amendment was added then . As we are in Colorado the Colorado Common Interest Organization Act has some bearing on this. For clarification (courtesy of HUD) Manufactured Homes ...are built entirely in a factory in accordance with a federal building code adopted and administered by the U.S. Department of Housing and Urban Development (HUD) and known as the “HUD Code.” , The HUD Code is a preemptive code which means that it supercedes any state or local codes that apply in the area where the house will be sited. Homes arrive onsite complete with appliances, carpet, paint, lights, and with the utilities ready to be hooked up on site. They are typically 80 to 90 percent complete (those consisting of two or more sections or two stories, require extra on-site completion). The term “mobile home” does not apply today when most manufactured homes are not mobile at all. Many are placed on permanent foundations and are considered real property. For the rest of this interesting HUD document copy and paste to link to this PDF http://www.huduser.org/Publications/pdf/factbuilt_1.pdf Remember that our county has no residential building code. A site built home can be of substandard construction. A Manufactured home must meet stringent requirements and pass repeated inspections. Factory built homes are produced in controlled environments using standardized materials. Today most of the new ones are 4 star energy rated and of 2 x 6 construction. The only reason I care about the grand fathering covenant is because it is poorly written and not pertinent to the current situation. As far as I am concerned it has no bearing what so ever on my home or the others in the subdivision. None of the existing permanent homes are mobile homes. Jack

JackS1
(Colorado)

Posts:44

10/24/2007 6:11 PM
Let me see If I can clarify my positions. First reread this lengthy posting from the beginning. Notice the federal definition of Mobile Home. Then look at How the state of Colorado defines manufactured home. I want the board to acknowledge the fact that manufactured homes were never legally prohibited from the subdivision. I want them to acknowledge that covenant #10 is not suitable for that purpose. Following that I want the misinformation removed from the web site and all of the members and local realtors notified that a mistake was made. (No admission of guilt necessary) Not that I expect that to happen I believe that they are breaching their fiduciary duties and subjecting all of the membership to unnecessary financial risk. Remember our BOD is uninsured and uninsurable. The broad statements they have been making are not in the best interests of the members particularly when those statements are both false and misleading. I am opposed to prohibiting manufactured/factory built homes as defined by CRS 30-28-115. If the membership as a whole wishes to ban manufactured homes from the subdivision( a 67% vote is required by our covenants for amendment) a covenant needs to be written that is in compliance with both state and federal law. They would need a very good reason to do this that would be compatible with the stated intent in the preface of our covenants. The definitions used would have to be concise and in context. I am not sure that under the current Colorado law that they can be banned. They can be regulated to be compatible with the other homes in size and appearance providing all are treated the same. I still have some questions regarding the amending of our covenants in October 2005. Our original documents make no provision for amendment by anyone other than the declarer/ developer. They were amended by simple majority in 2005 and the 2/3 majority clause amendment was added then . As we are in Colorado the Colorado Common Interest Organization Act has some bearing on this. For clarification (courtesy of HUD) Manufactured Homes ...are built entirely in a factory in accordance with a federal building code adopted and administered by the U.S. Department of Housing and Urban Development (HUD) and known as the “HUD Code.” , The HUD Code is a preemptive code which means that it supercedes any state or local codes that apply in the area where the house will be sited. Homes arrive onsite complete with appliances, carpet, paint, lights, and with the utilities ready to be hooked up on site. They are typically 80 to 90 percent complete (those consisting of two or more sections or two stories, require extra on-site completion). The term “mobile home” does not apply today when most manufactured homes are not mobile at all. Many are placed on permanent foundations and are considered real property. For the rest of this interesting HUD document copy and paste to link to this PDF http://www.huduser.org/Publications/pdf/factbuilt_1.pdf Remember that our county has no residential building code. A site built home can be of substandard construction. A Manufactured home must meet stringent requirements and pass repeated inspections. Factory built homes are produced in controlled environments using standardized materials. Today most of the new ones are 4 star energy rated and of 2 x 6 construction. The only reason I care about the grand fathering covenant is because it is poorly written and not pertinent to the current situation. As far as I am concerned it has no bearing what so ever on my home or the others in the subdivision. None of the existing permanent homes are mobile homes. Jack

JackS1
(Colorado)

Posts:44

10/24/2007 11:45 PM
I have got to learn not to double click the submit button. Apologies for redundancy. Some more interesting links regarding manufactured/factory built homes/housing with the recognition that some are industry sponsored. http://www.manufacturedhousing.org/lib/showtemp_detail.asp?id=231&cat=1 http://www.coloradohome.org/docs/perception_vs_reality.pdf http://www.modularcouncil.org/mc/lib/showtemp_detail.asp?id=49&cat=homebuyer_resos http://www.hud.gov/offices/hsg/sfh/mhs/mhshome.cfm jack

JackS1
(Colorado)

Posts:44

10/26/2007 12:34 AM
It is 1:00 AM on Oct. 26 and the board meeting should be over by now. I have yet to received a copy of the attorney's opinion regarding covenant #10 as requested or any information regarding it. I feel that BOD essentially denied me the right to knowledgeably participate in a discussion /controversy that I initiated. I am uncertain as to what an appropriate response should be. Somehow I expected this from them. I had hoped that they would act in a responsible manner. Perhaps they failed to examine the link on fiduciary duties of board members in relation to HOA members or maybe they failed to grasp the implications of breaching them. I still have questions regarding the right to amend the covenants. I still can't find anything that I understand in the CCIOA that gives us the right to do so when that right was not in the original documents. I have repeatedly examined the section on amending. Can anyone provide me with some input on this? Perhaps a Colorado case law reference? Jack

JackS1
(Colorado)

Posts:44

10/28/2007 10:59 AM
Sunday October 28, 2007 Mid day and still no word or copy of the attorney's opinion. Usually the minutes from The Board meeting would have been posted by now. It was on Thursday. Nothing on the web site except the same old misinformation on this issue. I could ask again, but it should not be necessary. Still wondering what an appropriate response should be. I don't even know who the attorney is. I just hope it is not the one whose letter on modular homes they have posted as justification for their position. Jack

JackS1
(Colorado)

Posts:44

10/31/2007 11:20 AM
From the minutes, as I never heard back from the board regarding a copy of the opinion. Covenant #10: Two items need to be addressed on this covenant. Since our last meeting, Jim and Gary consulted our attorney in regard to clarification of the mobile home issue. After much discussion at our last meeting, our concern was if our covenant would stand as written. The attorney stated it would, but he gave an opinion that we should add the definition of the Mobile Home Act C.R.S. 38-12-201.5, subsection (2) to the definition section of our covenants. In order to further uphold our restriction, he suggested that we also modify Covenant #10 by inserting “manufactured home, modular home and double wide home.” These 2 items will be on a ballot for your consideration. It will also be in your packet in December. My response To the Board of Directors xxxxxx xxxx xxxxxxxx homeowners association I have never maintained that covenant #10 would not stand as written provided it is kept to regulating temporary structures. Using it to ban manufactured homes is a real stretch. I know it won't hold up in court if used for that purpose. The other issue is the financial liability potentially incurred by the posting of bad information on the web site and the use of out of context definitions to justify your opinion. I seriously doubt that most of them members have an understanding of their financial obligation to a pay a portion of any judgement against an uninsured BOD or HOA. I don't think modifying #10 is a sufficient solution to achieve the desired intent of prohibiting certain types of homes from the sub division. Just adding words without defining them does not improve the situation. A new specific covenant to that purpose with clearly stated intent and the reason for that intent would serve the members better. This a bit of a slippery area considering the state's position on discrimination against manufactured homes and the way they define them in current law. Singling out Manufactured homes, the only form of built to code, inspected , and energy efficient residential housing in a county that has no residential building code may be a difficult thing to justify. I would like to know your rationales for the opposition to the various forms of manufactured housing and the factual basis for them. I know that some of you are vehemently opposed to them. But only one of you has expressed a reason to me. These issues should be addressed before you even consider writing or revising the covenants. Any prejudgments need to carefully examined in light of the facts. You have obligations to the community that should supersede your emotional responses in this matter. I challenge you to research your personal beliefs on manufactured housing and then present me with the facts supporting them. I have questions that I want answered in a prompt manner by email. Who is the attorney? Has he ever represented any of you personally? Was he shown my letters and given copies of them? Did he spend any serious time examining them and checking the citations? How much time? What questions were posed to him? Is there a written copy of the attorney's opinion? If so I am requesting a copy be emailed to me. Why is a definition from C.R.S. 38-12-201.5 being used when we are not a mobile home park? 38-12-200.2 - Legislative declaration. The general assembly hereby declares that the purpose of this part 2 is to establish the relationship between the owner of a mobile home park and the owner of a mobile home situated in such park. The use of another out of context definition is dishonest and tiresome. Where did the original authority to amend the covenants by simple majority in October 2005 come from? I know there was some discussion of this matter back then. I can't find anything in the original documents. I have repeatedly examined the CCIOA looking for such. I thought maybe it would be in there. All I could find was the allowable percentages when amending was allowed by anyone other than the developer and his reserved rights. While looking for that information, I encountered this. 38-33.3-124. Legislative declaration - alternative dispute resolution encouraged - policy statement required. (b) On or before January 1, 2007, each association shall adopt a written policy setting forth its procedure for addressing disputes arising between the association and unit owners. The association shall make a copy of this policy available to unit owners upon request. Has this been done? I am requesting that you email me a copy. Is the board willing to let both sides of the arguments for and against proposed covenants be presented to the membership with any mailings sent regarding them? I hope you will keep the following in mind as you represent the membership.You elected positions came with fiduciary duties that must be scrupulously observed. You have been placed in a position of trust requiring strict honesty without self-dealing or personal benefit. Duty of Care. Community association boards must give the business of their associations the same degree of care and diligence that prudent persons would exercise in their own affairs in similar circumstances. The duty of care requires directors to invest time and attention in association business, make reasonable inquiry into association matters to enable informed decision-making, and take reasonable, not arbitrary or capricious, actions. Consequences of a Breach of Duty The consequences of a finding of breach of fiduciary duty can be severe. First, the offending board member will be held personally liable in money damages for all pecuniary losses sustained as a result of his misconduct. Such judgments (and the attendant legal fees) are rarely, if ever, covered by directors and officer's liability insurance. In addition, courts are not shy about assessing punitive damages against those board members who breach this most exacting of moral obligations. Finally, the Business Judgment Rule does not inoculate board action from judicial review when there has been a finding of breach of fiduciary duty. Thus, board action which may in fact be highly beneficial to the community is vulnerable to being struck down by a court when it is implemented in such a fashion that it breaches the fiduciary duty. These adverse consequences can readily be avoided with advance knowledge of the nature and scope of the fiduciary obligation and forethought by board members as to the implications of their conduct Jack (John D.) Stillinger I can't say I expect anything like straight honest answers to my questions. I base that opinion on the continued use and periodic changing of out of context definitions. There seems to be a certain pathology present. -------------------------------------------------------------------------------- See what's new at AOL.com and Make AOL Your Homepage.

RobertR1
(South Carolina)

Posts:2148

10/31/2007 1:09 PM
Jack, All the rhetoric aside, and you know they are just going to ignore you and try and push this through come hell or high water, you now have something concrete to go on. I am sure your docoments provide that any owner care request and has to be furnished the means to review and copy, (at a cost) specific HOA files correspondence and the like. If you can prove by the letter the board requested the lawyer review and recommend an opinion on specific references in you documents, you have the right to see them. You really have the right to see all or nearly all files that the regime originates of receives. But, stick to specific and let this wording in the minutes punch a hole in their boat. I really don't know if I am for you or against your position, but no matter, I don't know enough to form an opinion. But I do know, the boards are just like all people and have failing like all people. That also means they are prone to shoot themselves in the foot, just like you and I. Opinion: You should go through what they said in the minutes, they have admitted to doing certain things like consulting with an attorney about the case. The two people that went to his office should be singled out when you request information. But stick to this. You want to see any written comments that were made by anyone involved, their notes, records of phone conversations, etc, etc, etc. They will like you less for this but that is not an issue. Make your request to see the specific documents by certified letter with a copy to your attorney. If you don't have one, get a good one and ask if he would acccept this letter having his name on it. If not that way, go to legal aid and ask the same thing, try to get someone elses name of your letter, maybe a councilman or woman or anyone with an official title and responsibilities. It is much harder for the Board to ignore that kind of inquiry. Stay away from accussing them of anything ar suggesting this is how they should do it. If you want to suggest something suggest that you have a personal meeting with the Board and the attorney. It is impossible to know the whole involved story, but you need to break it down into small pieces. Good luck, and keep picking, you will get it settled.

JackS1
(Colorado)

Posts:44

11/01/2007 3:40 PM
And this is their response. This email is to acknowledge the receipt of your email of October 31 2007. The matter of covenant 10 was discussed at the October board meeting. As the minuets of that meeting reflect it was decided to put the matter of changing covenant 10 and adding a definition for the term mobile-home to a vote of the membership. The terms and definition used were selected with the advice of an attorney. It will not be up to one or a few individuals to make this change but rather 2/3 of the membership. You have a vote just as do all the rest of the lot owners. If you have further concerns, come to the November meeting (Thursday November 29 2007) and you can address the membership and the board on this matter if you wish. Board meetings is the proper place to discuss HOA business. President xxxxx xxxx xxxxxxx HOA

JudithC
(Virginia)

Posts:252

11/01/2007 4:37 PM
Well, that is friendly isn't it? I don't know what the thing is with boards who decide that the only place you can discuss HOA business is at a board meeting. They are usually populated by people who never went to a board meeting before they were on the board. It is a terrific way of being non-responsive, I must admit. In our state, you don't have the right to see the legal advice from the attorney, so though I understand why you would want to do so, the board would not have to provide it here. I doubt if any retroactive change of the covenants would apply to you, though certainly they can try to do so. Tearing down a house is a little different from re-painting a door! Do they have any chance of getting a 2/3 vote of the homeowners (and is that really all it takes to change your covenants -- it seems low).

RogerB
(Colorado)

Posts:3701

11/01/2007 5:55 PM
Jack, I think their response was reasonable and they are using the proper procedures. CCIOA requires 2/3 of all owners unless the HOA's CC&Rs requires less.

Roger Borcherding Official HOATalk.com Sponsor DARCO Property Management (Colorado) (303) 925-0150 *See legal notice below (end of page) or go to www.hoatalk.com/legal

RobertR1
(South Carolina)

Posts:2148

11/01/2007 5:59 PM
Jack, Again, I think the board has made a mistake. It would appear to me that because the Board has openly stated they have consulted with the attorney and are relying on his advice that all would be information that you could request to see. And anything relating to that request and advice of the attorney. Your concern of course is to find out if you, personally, was singled out, and action is being taken because of your interactions. They are also saying you have the same resources to contact and correspond in the same manner the board does. In is getting showdown time, only because of your attention, it is going to go very public (lawyers advice I imagine). You decide what you want to fight now. Is it the changes, is it the boards handling, do you have a better way of doing things, do you want to be grandfathered, and probably more. Gather your support, construct a written "Mission Statement", get it out to the people and knock on doors if necessary. This is a smart move on the Boards Part, and you may even get them to talk a little, give and take talk. Maybe even suggest the attorney attend the meeting I suppose you have pushed the Board into a position they know they have to deal with this and if you get your way, let them save all the face they desire. Always IMHO. Oh, now study your documents to see that the conditions to change or amend you documents is done right. Also, they have issued an invitation to attend a Board meeting to discuss the problems. Get some folks to go along, but, make sure you keep the peace on your side.

JackS1
(Colorado)

Posts:44

11/01/2007 7:53 PM
I am not concerned about my home as it relates to this issue. Other than the fact that I don't like it being treated as a second class residence. The pictures prove otherwise. 11% of the existing homes are manufactured. more are kit built or precut. From The CCIOA (2) Notwithstanding any law to the contrary, no action shall be commenced or maintained to enforce the terms of any building restriction contained in the provisions of the declaration, bylaws, articles, or rules and regulations or to compel the removal of any building or improvement because of the violation of the terms of any such building restriction unless the action is commenced within one year from the date from which the person commencing the action knew or in the exercise of reasonable diligence should have known of the violation for which the action is sought to be brought or maintained. I am just trying to keep the board honest and in compliance with the laws of Colorado. They are rigid in their opinion and not willing or perhaps not capable of understanding the implications of their actions. Long ago in my first open letter to the board I offered them a face saving proposal. The CCIOA is very clear on voting percentages 38-33.3-217. Amendment of declaration. (1) (a) (I) Except as otherwise provided in subparagraphs (II) and (III) of this paragraph (a), the declaration, including the plats and maps, may be amended only by the affirmative vote or agreement of unit owners of units to which more than fifty percent of the votes in the association are allocated or any larger percentage, not to exceed sixty-seven percent, that the declaration specifies. Any provision in the declaration that purports to specify a percentage larger than sixty-seven percent is hereby declared void as contrary to public policy, and until amended, such provision shall be deemed to specify a percentage of sixty-seven percent (4.5) Except to the extent expressly permitted or required by other provisions of this article, no amendment may change the uses to which any unit is restricted in the absence of a vote or agreement of unit owners of units to which at least sixty-seven percent of the votes in the association are allocated or any larger percentage the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential use. Our original documents do not provide for amending the covenants by the HOA. I am not even sure if the revision in Oct of 2005 by simple majority was legal. That issue should be resolved first. I seriously question the expertise of an attorney who would advise them to use a definition that is in conflict with state and federal law. I also doubt that my letters were presented for examination as promised at the May 2007 board meeting. Any competent attorney would see the problems with this covenant being used for the purpose of banning manufactured homes. The state does and has made it clear that it does not do so and can not do so. Case law is clear. I am certain that I have spent more time and effort researching this issue and the laws pertaining to them than any board member or attorney hired to render an opinion. I have made an effort to look at it from every angle. In doing so I encountered some other matters that need to be addressed by the board. I believe our HOA is in serious trouble compounded by lots of denial.All of the lots are sold. 60 of the 139 have homes on them. Most of them are seasonal or to be retirement homes. Many of them purchased their lots after being told Manufatured homes,(mobilehomes)were prohibited. Board meetings are poorly attended. These absentee owners seldom have a clue as to the law and the true meanings of the covenants. This allows the board far more lee way than they should be given. Going to the board meeting to address this matter is an inadequate means of getting information to them. Not to mention the editorial filtering of the minutes in the newsletter. It is written by the presidents wife. Though I think they are wrong in what they are trying to do, ban a specific type of home from the subdivision, I would respect an amendment that was properly written to the purpose and approved by the membership. This is about proper process after all. I do believe that they have a responsibility and a duty to answer most of my questions. The failure and or refusal to do so troubles me greatly. They don't seem to understand who they work for. Currently I am at my winter home 700 miles from the subdivision. They know that. Examining the documents in person would be difficult but not impossible. Thye have to answer about the mediation process. I have yet to take this to local media or legal authorities. Letters to the editor have not been written. I have not threatened any legal action. An injunction to cease and desist the presentation of misinformation to the realtors and on the website has been a consideration. I am trying to avoid a negative financial impact on all involved. Jack

RobertR1
(South Carolina)

Posts:2148

11/02/2007 4:52 AM
Jack, Maybe I have been responding to your posting in the wrong manner. If you feel you can beat them to death with all the documents and all you have left to work with are a few dying embers from your actions, I have to say I don't agree with that. Your interest should be building something you can support and get involved in. It's your association no matter the rights or wrongs of it. You either get yourselve in a position you can sit down and talk and reach consensus or you drag them to court and keep rattling the cage until you shake whatever is inside out. I understand your frustrations, believe me I do, been over the road several times about who is right in our associations, with some sucess but little lasting satisfaction. New problems, or is it the same old problems come up every week. You either make the necessary adjustments to get some change out of all this or you go to the courts. When I get to your stage in these kinds of problems with the board I compromise and live to fight another day. I don't believe they stand a chance of causing you any real expense when it comes to your house. As far as trying to protect the future buyers, you have one vote, just like all people. Have you every thought of what a great asset you would be to the community if you would spend your time, knowledge and drive as a community leader. You know stuff, you work hard, and someone has got to lead the way. Maybe you have a bunch of bums running the show, but more likely they are just people with personal agendas that can't seem to get the job done of leading the parade. I truely hope you get this resolved to your satifaction but if you do, the ship may have more holes in it than it does now. And if no one is left, for whatever reason, you will have gained nothing.

JackS1
(Colorado)

Posts:44

11/02/2007 2:18 PM
I have offered to sit down with board and help them write a new covenant to ban manufactured homes from the sub-division. I consider that a compromise. Though I think their thinking is wrong headed it is preferable to have a covenant that properly adresses the issue. The will of the homeowners should be the deciding factor. Not the misinterpretation of covenant #10. I was a full time resident long before the HOA came into exsistence. I was at the first homeowners meeting and have made a point of attending meetings when ever possible. I participate as actively as I can. I provide verifiable fact and the truth. I do not name names or make personal acuusations. This has been an ongoing issue for many years. Initially it was more personal on my part. That changed as I began to rescearch and study HOA's, The CCIOA, Manufactured housing issues,and the law. When the Board became uninsurable it was the result of non-renwal by the Insurance company. Too much money had been spent on legal defense and a settlement was paid out. (This was a case in which willingness to compromise would have prevented the ongoing battle they are still having with the plaintiff.) That was when I began to realize the serious implications and risk exposure to all of the members. They often use the CCIOA as justification for their actions without citing the particular section. I would be happy to know if we are incompliance with it,hence some of my questions. Promisies were made at the board meeting to present my letters to an attorney. I want to know if they were honored. I was told that I could speak to him and the board. This has not been the case. The BOD has all the facts I can provide them with. They have genearally chosen to ignore them or negate them with with the use of irrelevant or non exsistant definitions. They have made it clear that they want this kept to the board and not to involve the members. "Board meetings is the proper place to discuss HOA business. (sic)" None of the questions I have asked are difficult to answer. The reluctance and or refusal to do so gives the apperance of hiding something. It is not a transperant way of conducting HOA business. I am not sure if a letter signed by the president represents the will of the board. There was no indication that the others got it or provided input. Jack

RobertR1
(South Carolina)

Posts:2148

11/02/2007 2:55 PM
Jack, I don't think you are the problem in your association, they seem to be able to get in trouble without your help. So, it seems evident a change should be made. Are you the one to do it? I don't know but as you have said, this is not about you and them. Like it or not the other owners are involved. Your chances of making a difference increase with the number of folks you have that are interested. Are you the one to bring all this together? I don't know but neither are you the only person involved or should be involved. You can always send correspondence to Board members individually, you can always have a personal talk with each board member. I get the impression there is no one out there that has any sense or knowledge. That's not likely, and maybe you have more support that you know. In any event, you have an opportunity to sit down and speak your piece. How much you gain is a function of how you can present your case. I would look forward that this could be the crack in the shell that will allow you to move forward. All the best, and keep posting, people realy do read this stuff amd learn, even I do that.

JackS1
(Colorado)

Posts:44

11/02/2007 10:33 PM
Letter sent in response. Not sure all of this was appropriate. I tried to tone down some. To : James X. Xxxxxx, President XXXXX XXXX XXXXXXX HOA Thank you for letting me know my email was received. I have never questioned my voting rights. Is this an official reply from the BOD? Did the others get a copy? Did they supply any input? Will I be getting any further answers to any of my questions? If so when? If not why not? Promises were made and I expect them to be honored. I have not seen any indication that they have been . I am truly disappointed by this inadequate response. To date I have kept this away from the legal system and out of the media in the hope that it would be handled in an honest manner and in keeping with the principles of good government. Would you prefer that I make my requests in some other manner, perhaps by certified mail with copies to the appropriate agencies. Where did the idea that the board meeting is the only proper place to discuss HOA business come from? We have far too many absentee owners to limit the discussion of HOA matters to the board meeting alone. Attendance is poor and the minutes cannot possibly contain all that is said. The official web site has no means of open discussion available. I have some real concerns about the CCIOA requirements not being met. CRS 38-33.3-209.4. Public disclosures required (3) It is the intent of this section to allow the association the widest possible latitude in methods and means of disclosure, while requiring that the information be readily available at no cost to unit owners at their convenience. Disclosure shall be accomplished by one of the following means: Posting on an Internet web page with accompanying notice of the web address via first-class mail or e-mail; the maintenance of a literature table or binder at the association's principal place of business; or mail or personal delivery. The cost of such distribution shall be accounted for as a common expense liability. The free exchange of ideas is an essential part of our democratic form of government. John D. Stillinger. May be some of the others will get the point. I did get an intelligent response from one board member. -------------------------------------------------------------------------------- See what's new at AOL.com and Make AOL Your Homepage.

JackS1
(Colorado)

Posts:44

11/05/2007 11:33 PM
That got a partial response. I can't seem to get them to honestly answer some important questions. They may not know the answers Or ? I think my question regarding the state mandated mediation policy is of major importance as is the question regarding our legal capacity to amend. They both have great bearing on potential future actions, both theirs and mine. My notes and commentary in () This email is to acknowledge the receipt of your email of November, 2, 2007. 1. At the July board meeting a motion was made to take all of the available information on the mater of covenant 10 to the attorney and get an opinion on the matter from him, and nothing more. This was done. Attorney Mr. Kent F. Williamson was contacted. After he had had time to do the proper research he met with Gary and I on the matter. He wrote a letter on the matter which was read aloud at the meeting. It is as follows. Gentlemen: Pursuant to your request to reviewed your Covenants, Easements and Restrictions for XXXXX XXXX XXXXXX and in particular in regard to paragraph 10 and the term "mobile home". It would be my recommendation that your definition section be amended to include the following definition of mobile home. "A mobile home means a single family dwelling built on a permanent chassis designed for long-term residential occupancy and containing complete electrical, plumbing, and sanitary facilities and designed to be installed in a permanent or semi-permanent manner with or without a permanent foundation, which is capable of being drawn over public highways as a unit, or in sections by special permit." This is the definition that has be used in the Mobil Home Act found at C.R.S. 38-12-201.5, subsection (2). (Why is a definition from C.R.S. 38-12-201.5 being used when we are not a mobile home park? 38-12-200.2 - Legislative declaration. The general assembly hereby declares that the purpose of this part 2 is to establish the relationship between the owner of a mobile home park and the owner of a mobile home situated in such park.) (no mention of manufactured home being included in this definiton.It could be used to describe a manufactured home. That use would tend to disregard current federal and state law) If it is the wish of the homeowner to have this provision enforced I believe it would be appropriate to use a definition that clearly defines a mobile home. (remember this covenant addresses temporary structures and the limited use of them. It does not prohibit manufactured homes, which is what the BOD wants it to do) If you have any questions, please do not hesitate to contact me. ( I can't see where this says #10 will stand as written. See previous letter from Board. post of 10/31) He also told Gary and I at the meeting with him that we should also add the terms Manufactured home, and modular home to covenant 10. (until I see that in writting it is hearsay and should be treated as such) This was presented at the October meeting. After some discussion on the matter the motion to present the matter to the membership was made, seconded and passed as reflected in the October minutes. 2. The board can only conduct business at a formally called meeting as described in the by-laws of the association. The only exception to this is when the matter under discussion is dealing with legal mater. At which time an executive session may be called. All of the above information was presented at the October meeting. I am supplying you this information because it was presented to the membership at the October meeting and you were not present. If you have any further comments or questions present them in person or in letter at the November meeting. James X XXXXXXX President, and the board of directors of XXX HOA Please note the text of this letter has been cut and pasted without alteration or omissions, other than the removal of names to protect the less than innocent. Why wouldn't they give me this information prior to the meeting? Now why don't they want me sending them emails? I know that Gary (VP) is particularly opposed to any homes that are not stick built and has made statements to that effect. But then he blatantly disregarded the covenants when painting his home yellow and erecting his white vinyl fence. By using a brush hog to cut down and remove the native vegetation from most of his property he violated the statement of intent regarding minimal disturbance of the land. Why should he be concerned about the misuse of #10? He can always get the interpretation covenant changed. Now I can only infer what Jim (president) thinks, but his wife (sect-treasurer) by virtue of her editorialized minutes makes her opinion clear enough. I do not trust these people to uphold the clearly defined fiduciary duties of a board member. Would you trust a BOD president who wore a bandolier while riding his ATV around the subdivision while carrying a rifle during black powder season. This was not black powder gear. Would you trust a BOD VP and his wife after you photographed them trespassing on your neighbors property during construction? They were fortunate that the neighbor was alright with this. It is an issue because they knew this was unacceptable behavior from prior incidents. I am still formulating a reply and a response to this. I am wondering if the attorney will talk to me or if I will be allowed to talk with him. Jack -------------------------------------------------------------------------------- See what's new at AOL.com and Make AOL Your Homepage.

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