POINTS TO PONDER
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- The corporations are separate from each other and from Burning Tree Master Association. The Secy of State says the corporations are not associated/tied together. (They each have their own Articles of Inc filed.)
- Wendy Berezowski, former BTMA president posted that there was no merger to tie them together and there are no documents tying them together
- Janie Lyon posted that there was no merger. She stated that she and Larry Lyon worked hard when they were setting it up and she didn't see any reason to keep the corporations accounts separate.
- Frank Spiegelberg, who was President of the BTMA for several years and was an attorney, sent a letter that many homeowners are in possession of, that it is NOT the homeowners who are the members of the BTMA.
- Only the owners association (subdivision) has the legal right to assess/lien homeowners (NOT THE BTMA) and then the subdivisions association can only for ACTUAL repair, upkeep and maintenance of the facilities and land owned by the subdivision. The covenants are very clear on what can happen to anyone who violates or attempts to violate the covenants.
- Burning Tree Master Association’s Articles of Incorporation(Article VI) and the By-laws in Article III MEMBERSHIP both state that the members are the Burning Tree Area Owners Association -NOT THE HOMEOWNERS!!!
- Claudia Nelson who was the VP resigned when the other board members refused to do things correctly.
- ARTICLE XII ALLOCATION OF INCOME AND EXPENSES states the corporation was to apply all revenue from whatever sources derived and since it was not used then it was to be distributed to members of the corporation in a reasonable manner. (We will find out from the financial records how much was still in the bank account at the end of each fiscal year in the past as MEMBERS should be given that money!) So now that it is time to divvy up the surplus from all years past ais the BTMA board still maintaining that homeowners are the members??
- If the BTMA Board (while still claiming that homeowners are members) ignores the above mentioned ARTICLE XII like they ignored Joe Nappo's original request to see the records ) here is an OKLAHOMA STATUTE of which the BTMA needs to be aware:§ 1014.1. Interpretation and Enforcement of the Certificate of Incorporation and Bylaws: Any member may bring an action in the district court. to interpret, apply or enforce the provisions of the bylaws
- "The corporation shall apply all its revenue from whatever sources derived to the payment of its operating expenses" ARTICLE XII ALLOCATION OF INCOME AND EXPENSES in the by-laws states would include THE CONCESSION MONEY THAT WAS TAKEN BY AN OFFICER! Has the BTMA made any attempt to have her return the money? Do you have supporting documents showing where homeowners were allowed to vote on changing this by-law to allow her to take the money?
- Where are the audits? the by-laws states that there is to be an annual audit - Bylaws Article IX Treasurer (d) The treasurer shall keep proper books of account; cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year and X 2. There shall be an annual audit of the books and records of the corporation by an independent public accountant and a copy thereof shall be sent to each member within thirty (30) day after completion thereof.
- Did the BTMA board send out letters to everyone --meaning the duplexes and apartment owners--to allow them their vote on Monday night? Read Voting rights
- The BTMA had better allow all lot owners mentioned in the covenants for East, West, One, to vote. They MUST send out letters to all of owners.... duplex and apt owners are lot owners.(Look at the covenants and check those lots against the Tulsa County Assessors site and you will see they are in Burning Tree. The duplexes and apartments were not removed by a vote of the people in the subdivision or there would be a written instrument filed at the Tulsa county to amend the Certificate of Dedication (Covenants). The BTMA board needs to learn Oklahoma statutes and see that they cannot discriminate and leave out some just because they decide to! Read: Not assessing all when the covenants spell out whi...
- The Certificate of Dedication for Burning Tree One and Burning Tree South are written differently from the other three subdivisions (BT West, East and Plaza) which were written where they can be assessed or liened by Burning Tree Master Assn, but BTS and BTO cannot be assessed or liened legally! Read Confusion over BTMA Authority
- The BTMA board continues to assert that Joe Nappo and all of Burning Tree South is a MEMBER of the BTMA. (As long as the BTMA continues to claim that Mr. Nappo is a member Mr.Nappo has the legal right to see the books and records and audits to see where every dime was spent. Mr. Nappo had requested them (via certified mail, return receipt requested)yet, the BTMA board refused as they had so many other homeowners. Mr. Nappo took the next step: § 1065. Inspection of Books and Records C. 1. If the corporation or an officer refuses to permit an inspection or does not reply to the demand within five (5) business days after the demand has been made, the shareholder may apply to the district court for an order to compel an inspection.
- The BTMA can be taken to court to enforce by-laws be followed (which would include getting audits to make BTMA board members, past and present accountable) to show where money --including the concession money from past years!) was spent? § 1014.1. Interpretation and Enforcement of the Certificate of Incorporation and Bylaws Any member may bring an action in the district court. to interpret, apply or enforce the provisions of the bylaws
- Why have bonuses been paid to lifeguards when this is going on: Nonsense going on at the pool and your assessments pay for it?
- Do you do background checks on lifeguard applicants? Pool manager?
- How do you advertise for the pool manager and lifeguard job to make sure there is no discrimination? We need to see copies of the ad.
- Why is the BTMA buying expensive D&O insurance when ARTICLE VIII (f) of by-laws only allow for bonding? Do you know the difference between bonding and D&O insurance? (How much is it? It is paid in April.)
- Is the D&O insurance going to pay for an attorney now that the BTMA refused to produce the records: Summons of lawsuit filed by Joe Nappo to force BTMA to produce records
- How much is the BTMA charging Associate Members to use the tennis courts or is this included in the absurdly low price of $140 for a whole season at the pool? (Do the math: If they onlypay $140 for a whole season how much is that per day for them to swim and play tennis all day?)
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THE FOLLOWING IS VERY IMPORTANT (READ CAREFULLY)
Burning Tree One and Burning Tree South covenants do not give the BTMA any authority to assess or lien. The easement that those Burning Tree One and Burning Tree South were given to use the BTMA facilities are just that--an easement. Read: Easement (Those using the BTMA facilities should be charged if they use them! (BTMA's by-laws say they should be charged a fee when they use it. But the BTMA has never had the right to assess in order to subsidize those who use them.).
Owners have always had an easement to use the pool as long as we follow their rules and regulations (i.e. no thongs, cutoffs, no glass bottles etc) The BTMA has caused an incredible hardship on numerous people by forcing all homeowers unlawfully and under threats to pay them money so the pool is subsidized for those who care to use it. They have ignored their own by-laws which state:
- ARTICLE IV PROPERTY RIGHTS(2)The right of the Association to charge reasonable admission and other fees for the use of any common facilities situated upon the common areas;
- ARTICLE VIII POWERS AND DUTIES OF THE BOARD OF DIRECTORS(b) determine a reasonable admission fee or charge for the use of recreational facilities situated upon the common area;
- ARTICLE IV PROPERTY RIGHTS Each owner shall be entitled to the use and enjoyment of the facilities and the owner may delegate his rights to members of his family, his tenants or contract purchasers who reside on the property. Each member shall notify the secretary of the corporation in writing of the name of anyone they gave away those rights to. Homeowners, who do not use the pool and those homeowners in Burning Tree South and Burning Tree One who have been unlawfully assessed have been subsidizing Associate members and babysitters.(They do not charge babysitters!!) Guest passes can be as low as $3 for the entire day! Do the math how much is that per hour? Read this post: Associate memberships and how you are subsidizing them.
Constructive Notice Law & Legal Definition
ReplyDeleteConstructive notice is a legal fiction that attributes notice of something to a person or entity, even though actual notice did not exist. For example, a court may allow a person who is unable to be served personally with notice of a lawsuit to be served by publication in a newspaper, especially when a person has left the state to avoid service (legal delivery of a legal notice). The legal advertisement of the summons in an approved newspaper is treated as constructive notice, just as if the summons and petition had been served personally.
In another example, a city may be held to have constructive notice of dangerous icy conditions on a public sidewalk in a slip and fall case. The court may apply the theory of constructive notice to avoid unjust results in allowing a city to avoid liability for situations in which it has no actual notice. A contrary result may lead the city to fail to inspect the conditions of sidewalks and the constructive notice application reinforces the city's duty of care. Registries exist in county seats for filing records of deeds and liens, etc. By filing, the public is held to have constructive notice of such public records
Covenants do not give authority. They give notice to the public and property owners of conditions and restrictions which accompany the land or lot to which they are attached. Notice of a mandatory homeowners association does not require anything else within the certificate of dedication. The authority of the mandatory homeowners association comes within the corporation articles (if incorporated) and by-laws which are not required to be publicly filed.
DeleteThen how can the covenants be enforced if they do not give authority?
DeleteYou can't have it both ways. Either you have the authority to enforce or you don't.
I stand corrected, in part. Covenants are a contract between the original land owner and property buyer and then extended to subsequent buyers. The authority, or right to enforce the covenants come under contract law and is a right under contract law to the signers of the contract. I should have said Covenants do not have to outline all of the specific authority as pertaining to mandatory owners associations, i.e. all the powers or authority of the mandatory owners association or the structure and operational function of the organization. Therefore, as members of an owners association, the members have rights and responsibilities granted them beyond the covenants but which originate from the covenants or from statute, i.e. the right of a property owner to enforce covenants upon his neighbor is a statutory right whether stated in the covenants or not.
DeleteAs for BT One and BT South's covenants regarding the Master Association and the right (which is defined above as authority), to assess or lien, it is not required for the covenants to be specific to the Master Association's rights. What is required by statute is..."SUCH INSTRUMENT SHALL SET FORTH IN DETAIL THE NATURE OF THE OBLIGATIONS OF THE MEMBERS"... Those obligations are outlined in the membership clause and is specific in that as a lot owner you become a member of your area association and as a member of your area association you and your entire area association are required to pay assessments for the common areas within and without the boundaries of your particular subdivision as well as the facilities of the Burning Tree Development for which you have and easement to use the common areas and facilities of the Burning Tree Master Association. It also states that the assessments shall be a lien on any lot of any owner in said subdivision. This is the detail notification required by statute. The structural organization of the Area and Master Association which facilitates the management of the common areas and facilities is outlined in the Articles and By-Laws of each Association. Your Area By-Laws which is the same as the original By-Laws of each Area Association state in Article X that your Area Association is a member of the Master Association and outlines the voting process by which each individual lot owner elects their representative to the Master Association Board. You are a member of both the Area and Master Association and since the Master is the managing corporation of the common areas and facilities with assessment authority within its documents it has the right to level assessments to its members for which the members are, by covenant, required to pay. These obligations and rights are as equally enforceable in the same manner as your covenants.
One other think I should note. As was mentioned above, all rights and obligations need not be stated in the covenants. In the case of assessments becoming liens, as long as the covenants state that members are subject to assessments it is not required to state the assessments shall become liens upon the property. The ability of assessments to become liens is granted by statute; Oklahoma Statutes, Title 60, Chapter 17, Section 852, Owners Association. There is no statutory requirement to restate this within the covenants.
DeleteBLOVIATE: to speak pompously. One who goes on and on in with excessive self-esteem or exaggerated dignity; pretentious. Last poster above me, who obviously can't see the forest for the trees.
ReplyDeleteI agree. What a bunch of hot air always trying to twist it so people get confused. BTMA Articles of Incorporation specifically states in ARTICLE V MEMBERSHIP: Every Burning Tree Area Owners Association approved by Declarant shall be a member of this corporation. CAN YOU SEE IT NOW: Burning Tree AREA OWNERS ASSOCIATION....A person is not an association)
ReplyDeleteWhat is the definition of an association?
ReplyDeleteWould someone please give me the statute that requires a home owners association to be incorporated?
ReplyDelete