I know I will be skewered for suggesting that non-members not pay assessments to the HOA. In an attempt to preempt any misrepresentation of my position please allow me to go on the record and openly state my personal opinions.
1. I personally believe everyone living in the subdivision should share in the expenses related to maintaining the common property and last November I sent the BOD a certified letter stating my willingness to contribute a full proportional share of such expenses.
2. I believe the HOA bylaws provides for a straightforward formula for calculating such expenses and that the BOD should start using that method accordingly.
3. I believe that there exists a legal precedence for requiring anyone owning property within the subdivision to contribute proportionally to the maintenance of the common property regardless of their status in the HOA.
For me, the dispute regarding inclusion in the HOA has nothing to do with finances related to common property.
Let me state again - As a non-member, I have sent the BOD a certified letter stating my willingness to contribute a full proportional share of the necessary expenses related to maintaining the common property.
Tony Robinson
Wednesday, February 4, 2009
Options
Since the discovery that the developer never recorded the CCR’s against Units 3 and 4 many of us have been waiting for some factual, reliable information on the status of problem. The BOD has refused to fully disclose the facts surrounding the situation but these are the facts we do know as related to this situation.
1. The association has retained the services of Attorney William Knee, the same attorney that filed suit against the association on behalf of two of our current BOD members.
2. It is a fact that, regardless of any claims, insinuation or suggestion, the developer is not required to include all units in the HOA.
3. It is a fact that the developer did not record the CCR’s against any lot in Unit 3 or 4 of our subdivision.
The BOD has made numerous claims regarding the intent of developer with respect to including the lots into the HOA.
It is a possibility that at one time the developer did intend to include all of the subdivision into the HOA but the BOD has not provided any written statements from the developer certifying this claim. To my knowledge, the developer has remained silent – unwilling to get involved (Possibility due to the large legal expense required to fix the problem which would rightfully fall on him).
It is also a possibility that the developer decided against including Units 3 & 4 into the association. There are multiple opinions – each of us will have to decide for ourselves but the fact remains that the developer is not required to include all lots in the HOA and in this instance the developer did not record the necessary documents to include Units 3 and 4 in the HOA.
Next Saturday, February 7th, the Estates of Millbrook HOA will hold its annual membership meeting. The fact that over half of the lots in the subdivision are not in the HOA raises numerous questions, for example:
- How will the association address the fact that half of the BOD members are not members of the association?
- Why did the BOD knowingly appoint a non-member to the BOD?
- How will this affect the legality of any decisions made by this BOD?
- Can the association’s BOD even hold a legal BOD meeting considering the associations by-laws require a majority of 3 to open a BOD meeting?
- What will constitute a quorum at the February meeting?
The question I have been asked to comment on is:
“If I own a lot in Unit 3 or 4, what are my options?”
I believe those of us caught in the middle of this do have options. I am also convinced we have not received full disclosure of all the information. There are numerous possible reasons why but I will not speculate.
What I will do is offer the following suggestions. In order keep your options open consider the following:
1. Consider not attending this Saturday’s meeting. If you do want to attend consider not signing in as a member. You can attend the meeting without signing in. If you chose to sign in you are creating the potential for an implied consent claim.
2. As a non-member, you are not required to pay any assessments. Don’t pay any assessments to an organization of which you are not a member. If you pay an assessment it could be implied that you consent to any actions the BOD might take to subject your property to the CCR’s.
3. Consider sending a letter to the BOD demanding that you be included in the decision making process for resolving this dilemma. It’s your property and you are entitled to be included in the process. The BOD has stated they will file (or already have filed) legal paperwork to record the CCR’s against your property. While you may be in favor of this your have every legal right to insist to be included in this process.
5. Above all, ask questions of the Board and demand answers. Seek your own attorney’s opinion. Do not accept the word of the Board of Directors as legal advice.
Best Regards,
Tony Robinson
1. The association has retained the services of Attorney William Knee, the same attorney that filed suit against the association on behalf of two of our current BOD members.
2. It is a fact that, regardless of any claims, insinuation or suggestion, the developer is not required to include all units in the HOA.
3. It is a fact that the developer did not record the CCR’s against any lot in Unit 3 or 4 of our subdivision.
The BOD has made numerous claims regarding the intent of developer with respect to including the lots into the HOA.
It is a possibility that at one time the developer did intend to include all of the subdivision into the HOA but the BOD has not provided any written statements from the developer certifying this claim. To my knowledge, the developer has remained silent – unwilling to get involved (Possibility due to the large legal expense required to fix the problem which would rightfully fall on him).
It is also a possibility that the developer decided against including Units 3 & 4 into the association. There are multiple opinions – each of us will have to decide for ourselves but the fact remains that the developer is not required to include all lots in the HOA and in this instance the developer did not record the necessary documents to include Units 3 and 4 in the HOA.
Next Saturday, February 7th, the Estates of Millbrook HOA will hold its annual membership meeting. The fact that over half of the lots in the subdivision are not in the HOA raises numerous questions, for example:
- How will the association address the fact that half of the BOD members are not members of the association?
- Why did the BOD knowingly appoint a non-member to the BOD?
- How will this affect the legality of any decisions made by this BOD?
- Can the association’s BOD even hold a legal BOD meeting considering the associations by-laws require a majority of 3 to open a BOD meeting?
- What will constitute a quorum at the February meeting?
The question I have been asked to comment on is:
“If I own a lot in Unit 3 or 4, what are my options?”
I believe those of us caught in the middle of this do have options. I am also convinced we have not received full disclosure of all the information. There are numerous possible reasons why but I will not speculate.
What I will do is offer the following suggestions. In order keep your options open consider the following:
1. Consider not attending this Saturday’s meeting. If you do want to attend consider not signing in as a member. You can attend the meeting without signing in. If you chose to sign in you are creating the potential for an implied consent claim.
2. As a non-member, you are not required to pay any assessments. Don’t pay any assessments to an organization of which you are not a member. If you pay an assessment it could be implied that you consent to any actions the BOD might take to subject your property to the CCR’s.
3. Consider sending a letter to the BOD demanding that you be included in the decision making process for resolving this dilemma. It’s your property and you are entitled to be included in the process. The BOD has stated they will file (or already have filed) legal paperwork to record the CCR’s against your property. While you may be in favor of this your have every legal right to insist to be included in this process.
5. Above all, ask questions of the Board and demand answers. Seek your own attorney’s opinion. Do not accept the word of the Board of Directors as legal advice.
Best Regards,
Tony Robinson
Tuesday, January 13, 2009
The Neighborly way -
Below is my response to the request for opinions – this was sent to the BOD via email, posting on the yahoo site and via certified US mail.
Since I have been asked by others to share my opinion I am posting it here for your consideration.
PLEASE NOTE THE INFORMATION REGARDING HOW THIS SITUATION WAS HANDLED PREVIOUSLY IN ONE IDENTICAL SITUATION WHICH OCCURRED IN KENDALL COUNTY.
It is also noteworthy that in the previous incident in Kendall County, the developer assumed the entire financial burden to rectify the situation.
January 12, 2009
Board of Directors
Estates of Millbrook Homeowners Association
P.O. Box 101
Millbrook, Illinois 60536
RE: Membership Status in HOA
To the Board of Directors;
This is in response to your request for opinions I received last week.
The information you have provided in your January 4, 2009 letter is incomplete at best. It is a shame that this association’s BOD insists on hiding information from the membership and misrepresenting the opinions of individuals referenced in your letter. For openers, your application of the concept of a “Scribner’s error is incorrect and is not the position of all of the individuals referenced in your letter – a gross misrepresentation of the truth.
These are the facts:
1. Based on the documentation currently on file, no person living in Unit 3 or 4 of the subdivision is currently a member of the HOA by virtue of the fact that the CCR’s were never recorded against their property.
2.The BOD has no information or documentation that proves otherwise.
3. Any attempt to record the CCR’s of the Estates of Millbrook HOA against any property in Units 3 and 4 in the subdivision without the prior consent of the property owner would constitute a cloud of title on the part of the HOA should the owner of record choose to pursue legal action.
4. Everyone owning lots in Units 3 and 4 of this subdivision share the exact same status and should be so informed.
Your approach to settling this matter defies logic. You have been less than forthcoming with information and refused to respond to individual inquires about this matter but you expect total, unquestioned support and have implied legal action will be taken against anyone who doesn’t capitulate to your position.
If you had contacted the individual owners of the lots in question and requested they voluntarily sign documentation which acknowledged their understanding of the situation along with an authorization to subject their property to the CCR’s, I believe you would have enjoyed great success.
As I stated many times over the last two months, this is not the first time this exact situation has occurred in Kendall County. In the other subdivision, their BOD did exactly what I stated above and over 97% of the lots owners in that subdivision willingly agreed to have their property included in the HOA.
The membership at large should also know that when that association’s BOD filed suit against one of the two individuals who refused to allow their property to be included in the HOA the presiding Judge threw the case out of court.
Sincerely,
A.D Robinson
Since I have been asked by others to share my opinion I am posting it here for your consideration.
PLEASE NOTE THE INFORMATION REGARDING HOW THIS SITUATION WAS HANDLED PREVIOUSLY IN ONE IDENTICAL SITUATION WHICH OCCURRED IN KENDALL COUNTY.
It is also noteworthy that in the previous incident in Kendall County, the developer assumed the entire financial burden to rectify the situation.
January 12, 2009
Board of Directors
Estates of Millbrook Homeowners Association
P.O. Box 101
Millbrook, Illinois 60536
RE: Membership Status in HOA
To the Board of Directors;
This is in response to your request for opinions I received last week.
The information you have provided in your January 4, 2009 letter is incomplete at best. It is a shame that this association’s BOD insists on hiding information from the membership and misrepresenting the opinions of individuals referenced in your letter. For openers, your application of the concept of a “Scribner’s error is incorrect and is not the position of all of the individuals referenced in your letter – a gross misrepresentation of the truth.
These are the facts:
1. Based on the documentation currently on file, no person living in Unit 3 or 4 of the subdivision is currently a member of the HOA by virtue of the fact that the CCR’s were never recorded against their property.
2.The BOD has no information or documentation that proves otherwise.
3. Any attempt to record the CCR’s of the Estates of Millbrook HOA against any property in Units 3 and 4 in the subdivision without the prior consent of the property owner would constitute a cloud of title on the part of the HOA should the owner of record choose to pursue legal action.
4. Everyone owning lots in Units 3 and 4 of this subdivision share the exact same status and should be so informed.
Your approach to settling this matter defies logic. You have been less than forthcoming with information and refused to respond to individual inquires about this matter but you expect total, unquestioned support and have implied legal action will be taken against anyone who doesn’t capitulate to your position.
If you had contacted the individual owners of the lots in question and requested they voluntarily sign documentation which acknowledged their understanding of the situation along with an authorization to subject their property to the CCR’s, I believe you would have enjoyed great success.
As I stated many times over the last two months, this is not the first time this exact situation has occurred in Kendall County. In the other subdivision, their BOD did exactly what I stated above and over 97% of the lots owners in that subdivision willingly agreed to have their property included in the HOA.
The membership at large should also know that when that association’s BOD filed suit against one of the two individuals who refused to allow their property to be included in the HOA the presiding Judge threw the case out of court.
Sincerely,
A.D Robinson
WHAT IS A "SCRIBNER'S ERROR?
What we are not being told about a "Scribner's error;
Definition: SCRIBNER ERROR - A minor error in notation on a plat (street map) that, upon correction by the maker of the error, would not affect the intent of the plat or its legal validity and therefore not require the consent of the signatories or the reconsideration by the city council. An error in a called bearing or distance, an adjacent street name, a spelling error, or addition of a north arrow would constitute SCRIBNER ERROR.
HISTORY – Originally from the word “scrivener” which is a person who writes a document, such as a deed, for another, usually for a fee.
A scribner's error is an error in the writing and creating of a plat and has nothing to do with the recording of documents with the county.
Furthermore, not everyone quoted in the BOD's January 4, 2009 letter as being in "unanimous agreement that there was a scribner's error" holds to that opinion.
Interesting, isn't it?
Definition: SCRIBNER ERROR - A minor error in notation on a plat (street map) that, upon correction by the maker of the error, would not affect the intent of the plat or its legal validity and therefore not require the consent of the signatories or the reconsideration by the city council. An error in a called bearing or distance, an adjacent street name, a spelling error, or addition of a north arrow would constitute SCRIBNER ERROR.
HISTORY – Originally from the word “scrivener” which is a person who writes a document, such as a deed, for another, usually for a fee.
A scribner's error is an error in the writing and creating of a plat and has nothing to do with the recording of documents with the county.
Furthermore, not everyone quoted in the BOD's January 4, 2009 letter as being in "unanimous agreement that there was a scribner's error" holds to that opinion.
Interesting, isn't it?
Saturday, December 6, 2008
Status of Budget Passed at the November 17th BOD Meeting
At the November 17th meeting our BOD adopted a budget for next year.
My question is why wasn't the membership advised of this action in advance as per the Bylaws?
What is the requirement of the Bylaws regarding informing the membership of the proposed budget? According to Article VII, Section 1, the BOD is required to notify each member, in writing, at least 10 days before adoption of the annual budget.
I didn't get a written copy before the BOD voted on the budget at the November 17th meeting - did you?
I believe we are all entitled to review this important document. After all it is the approved budget for next year.
I believe is should be posted immediately on the association websites and mailed to the membership as soon as possible.
Tony Robinson
My question is why wasn't the membership advised of this action in advance as per the Bylaws?
What is the requirement of the Bylaws regarding informing the membership of the proposed budget? According to Article VII, Section 1, the BOD is required to notify each member, in writing, at least 10 days before adoption of the annual budget.
I didn't get a written copy before the BOD voted on the budget at the November 17th meeting - did you?
I believe we are all entitled to review this important document. After all it is the approved budget for next year.
I believe is should be posted immediately on the association websites and mailed to the membership as soon as possible.
Tony Robinson
Thursday, December 4, 2008
News? What News?
Have you been to the association’s Yahoo website lately. Don’t waste your time. Nothing has been posted or updated for a long time.
My question is: Why?
At a time that our association is hiring lawyers at $220.00+ per hour to investigate the legal status of the association itself shouldn’t we get regular updates even if it’s only to tell us no news is good news?
It appears we have regressed to a time when the BOD will tell us only what they believe we need to know and only when the release of information fits their agenda.
The last time we operated like this is cost us thousands of dollars. I can’t help but wonder what effect this will have on our dues this time around.
Welcome to the world of zero communications.
My question is: Why?
At a time that our association is hiring lawyers at $220.00+ per hour to investigate the legal status of the association itself shouldn’t we get regular updates even if it’s only to tell us no news is good news?
It appears we have regressed to a time when the BOD will tell us only what they believe we need to know and only when the release of information fits their agenda.
The last time we operated like this is cost us thousands of dollars. I can’t help but wonder what effect this will have on our dues this time around.
Welcome to the world of zero communications.
Timely Questions without Answers
Last month I wrote in this blog that I was going to ask the BOD for an update on the status of Units 3 & 4 and that I would pass along additional information as soon as it became available.
The following is the text of the email I sent to all active BOD members on November 18th:
Good Morning:
This will serve as a follow up to last nights BOD meeting.
While Mr. Knees had no answers for our questions he did state, when specifically asked by Mr Duffy, that there was probably something not done correctly.
At this point it is beyond obvious that there is a problem.
Furthermore, the reality of the situation is that the association DID NOT cause the problem. It was either the developer or his legal representative. In either case the association is not the responsible party.
In light of this reality, please give the membership a "point in time" update by answering the following questions to the best of your knowledge based on what you know as of today.
1. Why is the association spearheading this investigation?
2. Why are we paying the bills for this investigation?
3. Is the developer aware of the problem?
4. Has the developer expressed any willingness to get involved?
5. Has the BOD asked the developer accept responsibility and assume the financial burden of correcting the problem and the retaining legal counsel?
6. Will the BOD pursue compensation from the developer to offset our expenses?
Thank you,
Tony Robinson
As you can see it has been almost three weeks since I sent the request for a “point in time” update. I have received absolutely zero response – not even an acknowledgement that I submitted a request for information. (By the way, I did send a follow up email requesting acknowledgement of receipt of my email. No response to that either).
Are we to believe nothing is being done regarding this issue? Or should we just trust that all is well and we will be informed when the need arises?
Candidly, it’s not my nature to trust those who have abused my confidence on previous occasions. I’m definitely a “trust but verify” kind of guy.
This debacle can and will cost the association thousands of dollars unless the membership holds the BOD accountable by asking tough questions and demanding the developer get involved.
A potentially valid case could be made that since the CCR’s have not been filed against Units 3 & 4 that the association has no legal basis for claiming jurisdiction over Units 3 & 4 until the developer rectifies the situation. If that legal position is deemed accurate then the makeup, function and ability of the BOD to even hold a BOD meeting to conduct business is called into question.
Don’t think for a minute that everything will work out fine. Mistakes were made to get us into this situation and mistakes can be made in correcting the situation.
If the BOD is acting without legal authority due to unqualified BOD members holding office (not all sitting BOD members live in a Unit of the subdivision that is subjected to the CCR’s) then this could get become a catastrophe in which none of us want to be caught in the middle.
It’s time for the BOD to update is all –
Please join me in calling on the BOD to respond to these important questions.
Thank you,
Tony Robinson
The following is the text of the email I sent to all active BOD members on November 18th:
Good Morning:
This will serve as a follow up to last nights BOD meeting.
While Mr. Knees had no answers for our questions he did state, when specifically asked by Mr Duffy, that there was probably something not done correctly.
At this point it is beyond obvious that there is a problem.
Furthermore, the reality of the situation is that the association DID NOT cause the problem. It was either the developer or his legal representative. In either case the association is not the responsible party.
In light of this reality, please give the membership a "point in time" update by answering the following questions to the best of your knowledge based on what you know as of today.
1. Why is the association spearheading this investigation?
2. Why are we paying the bills for this investigation?
3. Is the developer aware of the problem?
4. Has the developer expressed any willingness to get involved?
5. Has the BOD asked the developer accept responsibility and assume the financial burden of correcting the problem and the retaining legal counsel?
6. Will the BOD pursue compensation from the developer to offset our expenses?
Thank you,
Tony Robinson
As you can see it has been almost three weeks since I sent the request for a “point in time” update. I have received absolutely zero response – not even an acknowledgement that I submitted a request for information. (By the way, I did send a follow up email requesting acknowledgement of receipt of my email. No response to that either).
Are we to believe nothing is being done regarding this issue? Or should we just trust that all is well and we will be informed when the need arises?
Candidly, it’s not my nature to trust those who have abused my confidence on previous occasions. I’m definitely a “trust but verify” kind of guy.
This debacle can and will cost the association thousands of dollars unless the membership holds the BOD accountable by asking tough questions and demanding the developer get involved.
A potentially valid case could be made that since the CCR’s have not been filed against Units 3 & 4 that the association has no legal basis for claiming jurisdiction over Units 3 & 4 until the developer rectifies the situation. If that legal position is deemed accurate then the makeup, function and ability of the BOD to even hold a BOD meeting to conduct business is called into question.
Don’t think for a minute that everything will work out fine. Mistakes were made to get us into this situation and mistakes can be made in correcting the situation.
If the BOD is acting without legal authority due to unqualified BOD members holding office (not all sitting BOD members live in a Unit of the subdivision that is subjected to the CCR’s) then this could get become a catastrophe in which none of us want to be caught in the middle.
It’s time for the BOD to update is all –
Please join me in calling on the BOD to respond to these important questions.
Thank you,
Tony Robinson
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