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| 04/24/25 09:33:59 | [ Login ] [ Main index ] [ Post a new message ] [ Search | Check update time | Archives: 1, 2, 3, 4 ] |
| Subject: There are provisions for those things you mentioned | |
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Author: Butch Huber |
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Date Posted: Fri, Sep 18 2009, 0:24:01 In reply to: Lori 's message, "I appreciate where you're going" on Thu, Sep 17 2009, 19:08:11 Lori, The definitions portion of this covenant, which is a part of a contract, does not specify what the term "Common facility" means. You must use a reasonable person theory to determine what a term means if there isn't a definition. If you go to section 5.1, you will see that it more clearly spells things out. In absence of any clear language in one part of a contract you must look to other provisions that are similar and deal with something similar to determine what that language means. It takes a 75% vote of the members, in 5.1 (c) to dedicate or transfer all or any part of the Common Areas to any public agency, authority, or utility. What does the term Common Areas mean? It means, 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 the covenants, whether at the time of filing of the covenants or subsequently by supplementary declaration(s) shall be shown on the plat(s) of Willoughby Station and designated thereon as "Common Areas" or "open Spaces". What does that mean? In 5.1 the board is not authorized to transfer any part of the common areas, including, but not limited to, the amenities, without 75% approval of from a vote of the members. What reasonable person would read Article 5.1 and article 7.1 and not conclude they are attempting to say the same thing except for under different circumstances? Why would the board of directors need a vote of 75% of the voting members to dedicate or transfer any portion, no matter how small or trivial, to a public agency or authority, or a utility, and not need to have the same requirement if they were just going to shut down an amenity? Does that make any sense to you? Of course it doesn't. Lori, I appreciate what you are saying, but this is so plain and simple it is easy to miss. It would be absurd for any judge to conclude that the board would need 75% of the votes of the members to dedicate or transfer any portion of the common areas, which includes the amenities, to anyone, and not need the same level of approval to just shut it down and give away our backboards. I have written what is necessary to walk anyone through this that wants to see the truth, and I will post it tomorrow after I have had some time to re-read it. But it is really as simple as 1+1=2. There really isn't anything complicated about it. They are simply wrong. You and everyone else can tell me I am wrong until you are blue in the face, it still doesn't make me wrong. I have been going after people who step on our rights for a long time. I never give up and I never give in. I am right. To take the position that the term "Common Facilities" means all of the common area would mean that they could shut down all of the amenities. They can't subdivide without 75% of the vote of the voting members, but they could get rid of all of the amenities. Lori, you can't believe that is true. If it isn't true then they can't get rid of any of the amenities because they have to draw their power from the same place to do one as they would need to do the other. The only logical conclusion is that they need 75% of the votes of the voters in both cases. They can't have such broad authority because if they did they could give up all of the amenities without our approval, which would render the common area less than agreed upon when the city approved the PUD. In fact, I am not sure they can legally get rid of any amenity without the approval of at least the planning commission. Just because the covenants don't say anything about getting planning commission approval doesn't mean that they don't need to. Lori, did you know that when you sign a contract that unless you state "all birth rights reserved", that even though the contract doesn't say it, all of the codes of the universal commercial codes apply to the contract? Contracts really aren't necessarily limited to what is on the papers you sign. If there is a law that requires that the board get approval from the planning commission before they remove an amenity, they have to get approval regardless of what the covenants say unless perhaps the covenants specifically address that issue and the covenants are then approved by the board of commissioner of the city. I saw nothing to that effect in the covenants or bylaws. Lori, they are wrong, I have told them where they are wrong and how they are wrong, and if they were to put me on the phone with their attorney I guarantee the attorney would tell them I am right. Even they would say that I am right if I were able to get a bunch of people together to remove them from the board, replace them with people who wanted to fill in the pools and tear down the other amenities and just level everything over there and return the land back to nature. They would be squawking too. Remember the Willoughby station BLVD issue? Covered by the same covenants. It was on the plans when we moved in and there is nothing they could do to stop it. The boards were up when we moved in and there is nothing they can do, except as provided in the covenants, to take them down. Where are all the people who said, "didn't you know there were train tracks when you moved in?" WHere are all of those people on this issue? Isn't it funny how a position seems justified when the person who holds that position is affected, but they never seem to apply the same reasoning when it is about something that doesn't affect them? I don't play basketball, or at least I hardly ever play basketball, but I will stand for my rights and the rights of others to play it. Lori, using the basketball courts isn't conditional upon the approval of the board, it is a "Right". It is a right that passed to us when we purchased our lot. That right cannot be lightly taken away. I encourage you to get angry. You have had your rights usurped. How long as a society will we sit back and let governments that are over us, for whatever reason, erode our rights? A little bit here, a little bit there, and soon we are no longer a free people. This issue is much bigger than "basketball goals". It is about the assertion and protection of our rights in this country. It is about learning to push back when we are pushed. It is about using the law to uphold our rights. To one of the board members this is a trivial matter, but to me it isn't. It is as fundamental as it gets. If we cannot protect our rights against a homeowner's association, how are we ever going to get back our rights from the federal government? Lori, this whole matter has cost me well over a thousand dollars in lost revenue that I could have earned but didn't because I was dealing with this issue. Obviously, this is no little thing to me. It is a shame that the board voted to put the boards back up tonight, because they didn't learn their lesson. Everyone will go back to their lives and this issue will come up again, if not with the basketball courts it will be something else. I would have liked to have the opportunity to prove them wrong so they had to recognize they violated our rights. Ten minutes with their attorney and they would clearly see they were wrong. But then again, I have been wrong before. If I am wrong I would like to know how, I just haven't seen the evidence yet. I am not trying to be arrogant or cocky, I am being sincere, I haven't seen anything that proves me wrong yet, and I don't let people just tell me I am wrong, they have to prove it to me to a point where I accept that they are right. I am not the sharpest tool in the shed, but I am not the dullest either. The facts seem very clear to me. [ Next Thread | Previous Thread | Next Message | Previous Message ] |
| Subject | Author | Date |
| Priorities | Active resident | Mon, Sep 21 2009, 0:27:41 |
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