JUST IN CASE YOU DON'T GO TO THE WPA WEBSITE, THERE ARE TWO IMPORTANT ANNOUNCEMENTS PROVIDED BELOW

To all Wedgefield residents: Since Irma had downgraded to a tropical storm when it passed through our area, it does not qualify for a storm clean-up by the Association.  

All residents are responsible for their own debris. 

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NOTE:  PLEASE PLAN ON ATTENDING.  MAYBE WE WILL FIND OUT WHETHER THEY HAVE BUILT IN MCMILLIN'S NEW IMPROVED PARKING LOT, OR A SHED TO STORE HIS VOLUNTEER STUFF, OR MORE TREE CUTTING ON PRIVATE LOTS AT OUR EXPENSE.

Open Board Meeting concerning the 2018 Budget

Monday, September 18 at 7 pm

SOME DOCUMENTED THOUGHTS ON BOARD MEMBER ANDERSON'S RESPONSE REGARDING THE TREE CUTTING ON PRIVATE CANAL LOTS

A FEW WEEKS AGO, I DECLARED IT GROUND HOG DAY IN WEDGEFIELD, DUE TO THE LESS THAN LEGAL MOVES FROM THIS BOARD.  LOOKS LIKE EVERY DAY IS GROUND HOG DAY WITH THIS BOARD IN CHARGE.  THEY DUG THEMSELVES A VERY DEEP HOLE WITH THE TREE CUTTING ANSWER.  IT CAME FROM TAINTED ILLEGAL, SHAKY GROUND, WHEN THEY FINALLY CAME OUT IN THE OPEN AND ANSWERED!

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Do you have information, or an opinion - agree, or not, you can email The Wedgefield Examiner at wedgefieldexaminerthe@yahoo.com.  We'll remove your name to protect the innocent, and publish it.  P.S.  If you would like your name published, please note that on your email, otherwise we leave your name out.

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I'm providing you my questions to the board, and complete quotes from board member Anderson's response.

HERE ARE THE QUESTIONS FROM MY LETTER:

After my review, I’m left with two questions for the board for clarification.

1)   Did the board assess the private canal lot owners for their share of the expense for tree removal on their lots?  If so, why weren’t we told, and how did you assign their share, when the scope of work details canals, but not lots?

Anderson's response. "No we did not."

2)   If the board has not assessed the private canal lot owners, please reference the section, and specific language in the governing documents that allowed the board to use WPA funds, for the tree removal on private lots.
Anderson's response. NOTE: HE FAILS TO PROVIDE A QUOTE, AS ASKED?????? "I have spoken to John Walton and several board members about your letter questioning the tree removal of tree debi in the canals following the storm last October. All of this was discussed at a regular  monthly board meeting and the vote was unanimous. We did not assess anyone. This was handled as storm clean up and was taken from the emergency fund. It was no different than a tree on the edge of a lot that falls onto the road or other Wedgefield common area. It was affecting navigation and enjoyment of the canal for anyone trying to use them."

Consider the following:
The only thing that was settled in the last canal dredging lawsuits is that the state claims ownership of the canals. I don't care how long you have lived here, you've heard the cry from residents, and indeed our legal chair Garrison, "we don't own them". With that said, how could they be common ground - for common enjoyment - hardly a road used by all? That becomes important, because here is what the by-laws say about use of our assessment dollars: "To levy and collect annual assessments.

To use and expend the monies collected to acquire, maintain, operate, lease, care for and preserve the Common Areas, and to administer the affairs of The Association. "  Additionally, for those of you who live on the golf course, the board wouldn't even discuss options of care at the associations expense.  Where was common enjoyment, and use to your properties?

At least two of the private canal lot owners, whose property was not cleared of trees at our expense, knew their responsibility and paid for tree removal, and wrote the board asking them to notify the others.  The quotations are taken from the WPA correspondence file.


STORM CANAL TREE PROBLEM - # 1:
Here is the letter:  "after all the rain, there is a tree in the canal in front of our house (street named removed).  Would the HOA please contact the property owner so he can take care of this little problem, before it becomes a big problem." There is no response from the board in the correspondence file.  What is important here is that a fellow resident recognizes that the board has a responsibility - according to our governing documents - to notify the resident who owns the lot to clean up the problem at that resident's expense.

STORM CANAL TREE PROBLEM, - # 2:

Here is the letter:  "Additionally, as a result of the 1000 year old flood and recent hurricane, I paid a lot of money to remove several trees that fell into the canal from the canal bank adjacent to my property.  As a friendly neighbor, I sent a letter via email (December 4, 2016) to my friend Larry McMillin (see below), asking the WPA to ensure (and deal with) the several trees that fell in the canal from the other side of the canal bank near the lot on (removed address) and surrounding unoccupied lot be removed.  To date I've heard nothing."

Same resident's earlier email:  "Please have WPA address this and contact the owners as the trees and brush are preventing the unencumbered use of the canal."  There was no answer in the correspondence file from the board on either of this resident's emails.  Again, what is important here is that a fellow resident recognizes that the board has a responsibility - according to our governing documents - to notify the resident who owns the lot to clean up the problem at that resident's expense.

As for the golf course lot owners, and storm tree damage, here is another resident letter:

STORM GOLF COURSE LOT TREE PROBLEM - October 22, 2016 :
Here is the letter:  "I need help.  Trees on the golf course, very, very, near my house are in a dangerous state.  The one broke in half about 20 or 30 feet up.  The 40 ft. limb is resting on my Live Oak, at the moment preventing it from falling on my house."  There is no response from the board in the correspondence file.  I had heard what happened to this resident.  They were contacted by the board, and told that the offending tree was on golf course land, and not their responsibility.  Frankly, that is the way it needed to be handled.  Our governing documents do not allow the board to use our assessment funds to correct this situation.  I believe the resident paid around $400 to have this problem resolved.

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As to Anderson's statement, "It was no different than a tree on the edge of a lot that falls onto the road or other Wedgefield common area. It was affecting navigation and enjoyment of the canal for anyone trying to use them." Remember the only judgement that came out of the last canal lawsuits was that the state owns the canals. Navigation would be the state's problem. Much of the use of the canals since the last dredging has been the public. For quite some time, I provided you pictures of the boaters in my back yard. Additionally, when someone threw trees into the middle of the canal behind my house to make a good fishing spot, and I called the state out questioning navigation, their representative looked around, and claimed there was plenty of room for boats to navigate around it. A few weeks ago, I reposted an email circulated to several residents by the concerned citizens. Here is the quote, "MAKE YOU THINK THERE ARE ONLY TWO CHOICES ABOUT THESE CANALS ----ANOTHER OPTION IS NO SUB ASSOCIATION, NO FUTURE DREDGING AT OUR EXPENSE, NO PAYING THE STATE'S BILL FOR MAINTAINING THE STATE'S PROPERTY."  Where are these people with this issue?

In the end, once again this board unanimously voted to spend $7,950 to take trees fallen during Hurricane Matthew, off private canal lots.  It is illegal - against our governing documents.  What should the board have done?  Maybe the trees need to come out where ever they are, canal lot, or not in order to maintain Wedgefield according to our governing documents.  Your board has the power, and the responsibility to notify those residents that they must be removed, and if they aren't, remove them, and charge them for the removal.  Here is a quote from our governing documents:

FROM THE WPA POLICY MANUAL- REGARDING UNIMPROVED GROUNDS:

1. 4.02  Unimproved Property – Grounds:
   Unimproved property must be maintained in accordance with the provisions of the WPA
   Conditions, Covenants and Restrictions Section 8, as follows:
   “In order to implement effective insect, reptile and woods fire control, the grantor reserves for itself and its agents, heirs, successors and assigns, the right to enter upon any residential lot on which a residence has not been constructed and upon which no landscaping plan has been implemented (with prior written approval of the grantor for such plan), at the expenses of the grantee, his heirs, successors, distributes (sic), and assigns, such entry to be made by personnel with tractors or other suitable devices, for the purpose of mowing, removing, clearing, cutting or
   pruning underbrush, weeds or other unsightly growth, which in the opinion of the grantor detracts from the overall beauty, setting and safety of the subdivision. Such
   

entrance for the purpose of mowing, cutting, clearing or pruning shall not be deemed a trespass”.
If this is not complied with, the WPA will assume responsibility and bill the owners for the work.

FROM THE POLICY MANUAL REGARDING STORM CLEAN UP:

5. HURRICANE DISASTER RECOVERY 5.01 Clean-up After Hurricanes:

1. All owners/residents will be responsible for their own property.
   
2. If the storm is unnamed, residents will be required to transport their own debris
   to the county landfill.
   
3. In the case of a named (category 1, 2, 3, 4, 5) storm, debris should be placed
   along the roadside for pickup.
   
4. Street cleaning will commence as soon as possible following the storm by
   volunteers and/or grounds contractor.
   
5. Only debris such as limbs, trees, etc. caused by the storm will be removed. No
   

personal pruning will be accepted.


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As we end the article I will remind those individuals who have contacted me about bringing lawsuits on numerous issues against the board of a few pieces from the legal article I posted yesterday.  Maybe this mess along with this information will help you decide to move forward.

I.    Breach of covenant by the community association

Homeowners have a basis for an action for breach of covenant against their community association where the association fails to fulfill any of the duties it expressly agreed to perform in the community’s legal documents. "

GROWING INQUIRIES NECESSITATE THE PRINTING OF THE FOLLOWING ARTICLE

HOMEOWNER SUITS AGAINST COMMUNITY ASSOCIATIONS

The relationship between a homeowner and their community association has been increasingly defined in litigation in recent years, due to the rapid growth of common interest communities and the issues being presented to the courts.  The community association is usually an incorporated entity operating under corporate nonprofit status.  The community association was created by the developer/declarant for the purpose of managing the common interest community.  The community association is funded by dues or assessments contributed by the individual unit owners (or members) and is run by an Executive Board, Board of Managers, Trustees or a Board of Directors composed of unit owners who typically serve as volunteers.  The community association is a separate legal identity and may sue and be sued independent of its members.  Courts have held that even unincorporated community associations may be sued by homeowners.  See Murphy v. Yacht Cove Homeowners’ Association, 345 S.E.2d 709 (S.C. 1986).

Prevailing law in most states views the relationship between a community association and a homeowner as being analogous to the relationship between a landlord and tenant.  Like a landlord, the community association is held responsible for the maintenance of those areas over which it exercises dominion and control.  In a common interest community, these areas will usually be the “common areas,” “common elements” or those areas outside of the individual units but within the common interest community.

The purpose of this presentation is to identify and set forth several areas where  homeowner rights have been recognized by various appellate courts from across the country, and to note some recent statutory developments.  Significantly, the cases reviewed and summarized in this paper generally involve the community association’s management and performance of its assigned functions.

I.    Breach of covenant by the community association
Homeowners have a basis for an action for breach of covenant against their community association where the association fails to fulfill any of the duties it expressly agreed to perform in the community’s legal documents.  See Murphy v. Yacht Cove Homeowners’ Association, 345 S.E. 2d 709 (S.C. 1986).  The duties of a community association typically include management and control of the common areas, including landscaped areas and common recreational facilities, and maintenance and repair of the exterior building surfaces and roofs.  Failure to fulfill any of these duties could subject a community association to a breach of covenant claim brought by a unit owner or occupant.

In Schoondyke v. Heil, Heil, Smart and Golee, Inc., 411 N.E.2d 1168 (Ill. App. 1980), the court held that where the community association “voluntarily” covenants or assumes a duty in derogation of those imposed upon it by common law, the association may be held liable for breach of that covenant.  Specifically, when there was no common law duty to remove snow accumulations, but the community association agreed to do so in the legal documents, the association was bound to remove snow and liable for breach of covenant if it failed to.  See also, Feld v. Merriam, 485 A.2d 742 (Pa. 1984).

II.    Breach of the fiduciary duty owed to homeowners by community associations
Homeowners have the right to have the community association exercise ordinary care, in reasonable and good faith manner in the performance of its duties.  For breach of these fiduciary duties, an association may be held liable by an owner.  Breach of fiduciary duty actions may lie where actions or duties not expressly stated in the community’s legal documents are fairly implied by the scope of the duties set forth in the legal documents.  This would include adequate funding or improper management of financial reserves to pay for repair, replacement and maintenance expenses.  Other actions possible to be brought by a unit owner on these grounds may include breach of fiduciary duty due to the failure of the association to sue the developer, declarant or general contractor for construction defects where the units were improperly constructed.

III.    Association director liability
Homeowners have the right to have directors act within their fiduciary duties.  Homeowners may bring an action against a director of a community association on the grounds of breach of fiduciary duty of the director.  Directors, also sometimes referred to as Managers, Trustees, Administrators or the Executive Board, owe fiduciary duties of care to homeowners to exercise ordinary care in performing their duties, to act reasonably and in good faith in their performance of their duties as members of the governing body of the community association.

Directors must exercise reasonable diligence in following through and carrying out the responsibilities assumed by or assigned to them under the governing legal documents.  Generally, directors must remain informed about the community association’s business at all times, be knowledgeable about the legal documents governing the affairs of the association, and attend and participate in the association meetings.  Directors may be held responsible for obtaining and reading the minutes of those association meetings the director was unable to attend.  Directors must also vote against actions taken or adopted by the Board of Directors that they are in disagreement with and record their disagreement in the meeting minutes.  Failure to perform any of these duties in a reasonably diligent and prudent manner could expose the director to liability to homeowners for breach of fiduciary duty.

Homeowners do not have a right or guarantee that the decisions of the directors will be successful, because directors are protected by the “business judgment rule.”  The policy behind this rule is to allow leeway for a director’s business judgment in business decisions, while discouraging the court from stepping into the director’s shoes to analyze the soundness of business decisions.  So long as the decision was made in good faith, the director will be protected from homeowner suits by the business judgment rule.  See Schwarzmann v. Association of Apartment Owners, 33 Wash. App. 397, 655 P.2d 1177 (1982).

Homeowners have the right to expect directors to bring all corporate opportunities to the community association.  If they don’t, directors may be held liable for the usurpation of a corporate opportunity.  Specifically, a director may not appropriate to his or her own use a business opportunity that belongs to the community association.  See Kirtley v. McClelland, 562 N.E.2d 27 (Ind. App. 1991).

Homeowners have the right to have the directors be loyal to just the interests of the common interest community, and not to the self interests of the director.  Where a conflict of interest arises, a director is responsible for notifying the Board of the conflict and removing himself from participation in any decisions regarding the subject matter of the conflict.  If a director fails to do so, homeowners may bring a derivative action for lost profits.

IV.    Negligence of the community association

A.    Failure to perform duties in a reasonably safe and prudent manner
Homeowners have the right to expect the community association to exercise ordinary care.  If it does not, homeowners can bring actions in negligence against their community association for its failure to perform any of its functions in a reasonably safe and prudent manner.  Injuries suffered by unit owners due to association negligence are generally recoverable against the association and not against individual owners.  Typical lawsuits include suits for injuries from tripping over a protruding sprinkler head and slipping and falling on snow-covered parking lots and sidewalks.  In each case the community association had a duty to maintain those areas where the injuries occurred.  See White v. Cox, 17 Cal. App. 3d 824, 95 Cal. Repr. 259 (1971) on negligent maintenance of water sprinklers and Murphy v. Yacht Cove Homeowners’ Association, 345 S.E. 2d 709 (S.C. 1982) and Schoondyke v. Heil, Heil, Smart and Golee, Inc., 411 N.E. 2d 1168 (Ill. App. 1980) on negligent snow removal.

B.    Liability for negligent actions of employees
Homeowners have the right to expect employees of the community association to exercise ordinary care.  If employees breach the applicable standard of care, the community association can be liable under general agency principles.  This would include negligence committed on the project grounds by a management company engaged by the community association to maintain the common grounds, as well as by other employees employed for more specific maintenance or repair work entrusted to the association in the governing legal documents.

C.    Products liability for products distributed by the community association
If a community association distributes food, beverages or other goods of consumption or dispenses such goods through vending machines owned and operated by the association, unit owners have the right to expect that these products are free from defects.  If they are not, an injured owner could maintain actions in tort against the community association for injuries caused by defective products under the chain of distribution theory.

D.     Failure to adequately guard against foreseeable crimes
Homeowners have the right to be protected from foreseeable crimes.  One of the more well-known cases dealing with negligence for foreseeable crimes is the case of Frances T. v. Village Green Homeowners Association, 42 Cal.3d 490, 723 P.2d 573 (1986).  This California case dealt with community association liability to an owner for foreseeable crimes.  Essentially, the case arose out of the negligent maintenance of common areas.

The unit owner, Frances T., was assaulted by a third party who broke into her unit.  She alleged that prior crimes in the area, including at her unit, and poor lighting in the greenbelt surrounding her unit created a dangerous condition on the premises which allowed the third party to successfully enter her unit and perpetrate criminal acts.  The victim-owner successfully argued that the community association was negligent when it knew of the dangerous conditions and failed to take appropriate remedial action to correct the situation.  The owner’s unit had previously been burglarized and the association was made aware of that crime.  In addition, the unit owner had made repeated attempts to have the association improve the lighting around her unit.  External lighting fell within the domain and control of the association.  When the unit owner became frustrated with the association, she took the matter into her own hands and had additional external lighting connected to lighting already in place.  The association then requested that the unit owner remove the additional lighting and stop using the additional lighting until it was removed since its installation and presence violated the community’s covenants and restrictions.  Unfortunately, the additional external lighting was connected to the same circuitry that supplied power to the original lighting, so that the unit owner, in complying with the association’s request, was deprived of the benefit of any external lighting whatsoever.  The same day the owner complied with the association’s request, she was raped and assaulted in her unit.

In the Village Green case, the owner’s unit had been burglarized within the previous month and she had reported that as well as her complaints of the insufficiency of the greenbelt lighting to the association.  In failing to respond to the unit owner’s requests of additional lighting and in ordering her to remove the additional lighting she had improperly erected, the Court held that the association violated the standard of due care owed.

Homeowner rights in this area arise out of the foreseeability of criminal acts in the community and whether the association has acted with due care in attempting to reduce the likelihood of such acts.  The fact that the crime occurs inside an owner’s unit does not relieve the association from liability where the foreseeability of the crime arises out of a failure to provide reasonable safety measures in the common areas.  See Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98, (Fla. App. 1980).

In determining the element of  foreseeability, courts have held that foreseeability of criminal activity was present where there have been repeated criminal incidents in the immediate neighborhood [See Newell v. Best Security Systems, Inc., 560 So.2d 395 (Fla.App. 1990)] and where there have been repeated criminal incidents within the community itself.  Such activity should put the community association on notice that criminal activity in the community is likely.  In Village Green, the community association argued that foreseeability of the precise type of criminal activity committed was required in order for the association to be put on notice of the type of standard of care owed.  The Court held, however, that prior crimes need not be identical to the crime at issue.  Rather, all that was required was the possibility that a particular type of harm might arise out of the dangerous condition for the association to be liable.  In Newell v. Best Security Systems, Inc., the court allowed testimony of a deputy sheriff that the neighborhood in which the common interest community in question was located had experienced a rash of prior residential burglaries.

From the rulings in Newell and Village Green, there appears to be a duty on the part of the community association to investigate the history of criminal activity in and around the community and then to take appropriate precautions for the benefit of the unit owners if crime is foreseeable.  Correspondingly, homeowners appear to have the right to have the community association investigate and stay abreast of crime in the area, and then to take reasonable safety measures if crime is foreseeable.  Failure to take such measures could give homeowners cause for a negligence action against the association.

Yet, homeowners are not entitled to hold the community association to a standard of guaranteeing the unit owners’ safety.  In Feld v. Merriam, 485 A.2d 742 (Pa. 1984), the Court refused to extend liability after residents were assaulted by third parties in the parking lot.  The Court held that the landlord should not be held to the standard of an insurer of a tenant’s safety.  However, it should be noted that the victim-residents in Feld made no allegations that the community association was or should have been on notice of a particularly dangerous condition on the premises, nor that the criminal act in question was particularly foreseeable in light of past criminal activity in the area.

Homeowners have the right to the community association’s exercise of ordinary care in providing safety if the association voluntarily assumes to provide safety.  In Feld, the Court did find that a community association may incur an obligation to provide a general duty of safety on the premises, independent of any duty arising from the foreseeability of criminal activity, where the association voluntarily undertakes to provide such safety.  Where a community association represents or undertakes to secure those areas falling under its control and encourages residents to rely on these actions or representations, the association may incur liability where failure to provide adequate safety measures was a factor in the perpetration of a crime on the premises by a third party.  See also Scott v. Watson, 359 A. 2d 548 (Md. App. 1976).

V.    Liability for trespass
Homeowners have the right to exclusive possession of their unit as well as to certain limited common elements appurtenant thereto.  Homeowners can maintain an action against their community association for unauthorized entry onto the owner’s premises or limited common elements.  An action in trespass appears to lie for entry without permission to any areas in actual or constructive possession of a unit owner.  In Plotkin v. Club Valencia Condominium Association, 717 P.2d 1027 (Colo. App. 1986), the community association entered a unit and relocated a storage locker on the balcony of the unit.  The balcony was defined as a “limited common element” by the condominium declaration and was restricted to the exclusive use of the unit owner.  The owner objected to the relocation of the storage locker because the relocated locker blocked the panoramic view from the balcony.  The owner succeeded in their action against their community association on the basis the association entered the unit without invitation or permission.

VI.    Defamation
Homeowners have the right to some degree of privacy regarding their financial standing vis-a-vis their community.  A homeowner may be able to bring an action against their community association in defamation or for invasion of privacy where the association publishes the name of the homeowners as being delinquent in payment of assessments.  Publication of delinquencies in an association newsletter probably would not give grounds for such an action under the Federal Fair Debt Collection Practices Act (FDCPA), so long as distribution of the newsletter is confined to the homeowners in the community.  Under the FDCPA, a debt collector or collection agency would violate fair practices by such a publication.  However, if the community association itself is attempting to collect assessments owed to it, it is exempt from inclusion within the FDCPA.  Outcomes may vary from jurisdiction to jurisdiction, as some state laws impose stricter requirements in this regard than does the FDCPA.  Where the publication of delinquent owners occurs in a more public setting, such as a common bulletin board, the owner’s chances of success on a defamation action would be greater.

VII.    Breach of Statutory Duty
An owner may assert an action for breach of statutory duty against the community association where standards of operation binding the association have been codified into law, and the association fails to comply with those standards.  An example includes California Civil Code Section 1365.5, which imposes procedures on the association directors for periodic review of certain financial matters.  This statute protects owners against the mismanagement of community association funds and helps ensure adequate funds for maintenance and repair costs of the common areas.  California Civil Code Section 1365.5 provides as follows:

1. Unless the governing documents impose more stringent standards, the board of directors of the association shall do all of the following:
   1. Review a current reconciliation of the association’s operating accounts on at least a quarterly basis.
   2. Review a current reconciliation of the association’s reserve accounts on at least a quarterly basis.
   3. Review, on at least a quarterly basis, the current year’s actual reserve revenue and expenses compared to the current year’s budget.
   4. Review the latest account statements prepared by the financial institutions where the association has its operating and reserve accounts.
   5. Review an income and expense statement for the association’s operating and reserve accounts on at least a quarterly basis.
2. The signatures of at least two persons, who shall be members of the association’s board of directors or, one officer who is not a member of the board of directors and one member of the board of directors, shall be required for withdrawal of monies from the association’s reserve accounts.
3. As used in this section, “reserve accounts” means monies that the association’s board of directors has identified, from its annual budget, for use to defray the future repair or replacement of, or additions to, those major components which the association is obligated to maintain.
4. This section does not apply to an association that does not have a “common area” as defined in Section 1351.

Another example includes provisions in the Colorado Common Interest Ownership Act (CCIOA), effective July 1, 1992.  CCIOA lays out a statutory scheme for the operation of certain community associations existing as of June 30, 1992 and a broader scheme for associations in communities to be formed after that date.  See Colorado Revised Statutes Section 38-33.3-101, et. seq.  CCIOA contains modified versions of parts 1, 2 and 3 of the Uniform Common Interest Ownership Act (UCIOA) and excludes parts 4 and 5 (on consumer protection and creation of a new regulatory scheme).  Under CCIOA, homeowners in Colorado common interest communities existing on June 30, 1992, have the right to require their community association to prepare an annual budget at least annually, the right to request and receive statements of account in a timely manner, and the right not to be fined, except for reasonable fines imposed after notice and a hearing.  In addition, Colorado homeowners have a right to seek their attorney fees from their community association on their claim that the association has not complied with CCIOA, or on their claim that the association has not complied with the community’s legal documents.  Section 123 of the CCIOA sets forth this right to attorney fees provides as follows:

Enforcement.  If any person subject to the provisions of this article fails to comply with any of its provisions or any provision of the declaration, bylaws, articles, or rules and regulations, any person or class of persons adversely affected by the failure to comply may require reimbursement for collection costs and reasonable attorney fees and costs incurred as a result of such failure to comply, without the necessity of commencing a legal proceeding.  For each claim, including but not limited to counter-claims, cross-claims, and third-party claims, in any legal proceeding to enforce the provisions of this article or of the declaration, bylaws, articles, or rules and regulations, the court shall award to the party prevailing on such claim the prevailing party’s reasonable collection costs and attorney fees and costs incurred in asserting or defending the claim.

VIII.    Conclusion
Homeowner rights in a common interest community against their community association arise out of the community’s legal documents and the conduct of the association in carrying out the duties and functions assigned to it in those documents, by state statutes and common law.  While the most clearly defined rights that a homeowner possesses lie in the areas of breach of covenant, simple negligence, and liability for trespass, more complex legal questions are posed by the extent of association liability for the protection of owners from foreseeable crimes and breach of statutory duties.  While the outcomes vary from jurisdiction to jurisdiction, there continues to be an expansion of owner rights and community association liability.  As community associations are increasingly being recognized as quasi-governmental entities with powers greater than a mere landlord, the exact nature of the legal relationship between the homeowner and their community association is in the process of being more clearly defined.  In any event, educated homeowners with expanding legal rights will help ensure the smooth operation of the community by the community association.

IX.    Table of Cases
Murphy v. Yacht Cove Homeowners’ Association, 345 S.E.2d 709 (S.C. 1986).
Schoondyke v. Heil, Heil, Smart and Golee, Inc., 411 N.E.2d 1168 (Ill. App. 1980).
Schwarzmann v. Association of Apartment Owners, 33 Wash. App. 397, 655 P.2d 1177 (1982).
Kirtley v. McClelland, 562 N.E.2d 27 (Ind. App. 1991).
White v. Cox, 17 Cal. App.3d 824, 95 Cal. Rptr. 259 (1971).
Frances T. v. Village Green Homeowners Association, 42 Cal. 3d 490, 723 P. 2d 573 (1986).
Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. App. 1980).
Newell v. Best Security Systems, Inc., 560 So.2d 395 (Fla. App. 1990).
Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984).
Scott v. Watson, 359 A.2d 548.
Plotkin v. Club Valencia Condominium Association, 717 P.2d 1027 (Colo. App. 1986).

SHOULD YOU EVEN BOTHER SUBMITTING BY-LAW CHANGES FOR THE ANNUAL MEETING BALLOT? SHOULD YOU EVEN BOTHER TO VOTE THAT PORTION OF THE BALLOT? WHY THE QUESTIONS? WEDGE FIELD'S GOVERNANCE HAS BECOME SO LAWLESS (GOVERNING DOCUMENTS) UNDER THIS BOARD THAT IT MAKES NO DIFFERENCE WHAT YOU SUBMIT OR WHAT YOU VOTE ON. GARRISON'S AUGUST LEGAL REPORT, COUPLED WITH SO MANY OTHER BOARD ACTION ITEMS, JUST INDICATE THAT IT IS A WASTE OF YOUR TIME, UNLESS YOU START TAKING ACTION AND STAND UP TO THEM

THIS SIGN REALLY SHOULD BE REMOVED FROM THE FRONT ENTRANCE.  THIS BOARD, MANY IN THEIR BOARD SEATS FOR 6-9 YEARS, HASN'T LIVED UP TO "GOVERNED BY SPECIAL COVENANTS AND RESTRICTIONS".  

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Do you have information, or an opinion - agree, or not, you can email The Wedgefield Examiner at wedgefieldexaminerthe@yahoo.com.  We'll remove your name to protect the innocent, and publish it.  P.S.  If you would like your name published, please note that on your email, otherwise we leave your name out.

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As I checked the blog this morning and looked at the stats back page, I noticed that 6 readers had gone all the way back to a May 2012 article.  It is provided below.  The article refers to a by-law change that was submitted by a resident, voted on and passed at the 2011 annual meeting.  Please take the time to read the article, and note the concerns 6-7 months later, regarding your board's failure to follow it. For those of you who bother to go to the board's website regularly, you'll note that 6 years later (throughout the whole period) that your board consistently didn't follow it.  Note that since they got away with that, that we no longer have agendas for upcoming meetings posted seven days prior to the meeting.  A year and a half ago, they quit posting the official tapes of the meetings.  Within the last two months, they removed the approved sanitized minutes, and financials from the site.  If you are a regular attendee at monthly meetings, at least you would receive an agenda.  The printed agenda handout was not provided at the August board meeting.  Just another subtraction from open governance?

The questions posted in the title of today's article are legitimate - even more relevant after hearing Garrison's August legal report.  My concern centers on his report regarding by-law submissions for the upcoming annual meeting.   He tells us that there are two. One that centers around limiting board members running for consecutive terms.  He says it has been submitted before.  The second one would be a modification of a 2014 approved by-law change that required the board to contract services from a certified accountant for our accounting.  The new submission would change the language to read that the treasurer will contract with a certified public account, or OTHER qualified people.  We'll stay in the moment before we go to the history of the 2014 approved (voted in by the membership), and the possible vote on the new modification.  As presented the modification will basically take the board right back to where they want to be.  It would wash away the intent of the 2014 by-law change.  Trust me, it would remove a CPA's touch from the monthly accounting, and we would be back to the board deciding who "OTHER QUALIFIED PEOPLE" are.  It is a concern on so many fronts.  We would go back to what was termed by the board treasurer leading up to the 2014 change, to the accounting function - all in house, until the audit.  There was at that time, a job description for this expert "other qualified people", that didn't even require a high school education.  At the same time then, as is the case now, not one of the board member's possess a degree in accounting, or related industry titles.  For years, a resident has spent time with the financial reports, and written the board about discrepancies.  At many points the board has had to agree that the numbers were wrong.  At one point, because it was month after month of acknowledged errors, and it appears that the board was embarrassed, the board treasurer actually went to the concerned enough to write the board resident, and asked the resident if they would be willing to review the financial report, prior to hand out at the meetings! 

It should be noted that after the 2014 change, your board did everything that they could to circumvent the intent of the by-law change.  They hired a CPA to basically close the books each month, for a sum of about $200.  They also hired the very same accountant who closes the books each month, to perform the annual audit!  This move equates to a statement of a long ago cartoon character would make, in acknowledgement by himself, about himself - "saw right?  saw right?"  Why do you let the board do these things, and not question it?  Name an industry where this is standard practice.  In my 25 years of work for non profits, and on boards of non profits, I never saw this done, and no board - mine as executive director, or any of the others would have allowed this.

Recently, we got a view of once again, of what this board will probably call "other qualified people".  Your board announced that they would need a second person - very limited hours, to assist the current paid office secretary, to do financial entries.  They voted to move forward, and very shortly, we were notified that they had hired the person.  Garrison introduced her as a long time friend, and noted that she had worked in this function for us before.  One would have to assume under that ridiculous qualification job description they have been using.  I have nothing against this person, so don't start writing me about how bad I am, and what a sincerely sweet, talented person she is.  We are hiring people and not looking for miss congeniality!  I put out the request for proposal for real CPAs in 2009, interviewed them with the finance committee chair, and brought recommendations to the board for contract approval.  The expense was $750.00 per month.  No one on this board that is always saving us money, will ever answer to the cost of their current accounting function.  That would be the cost of the hours allocated to the current paid staff person for financial enteries, plus the new person, plus the $200 for the end of the month CPA.  I would suggest to you that it is no bargain financially, and certainly not to secure financial accounting.  For sure if that was the goal, we wouldn't then be hiring the same CPA to approve his own work.

History of the 2014 by-law submission:  First it should be noted that if you review the history of the association as it relates to by-law changes, that board members didn't submit by-law amendments.  It isn't illegal because board members are residents, and have resident rights.  Board member submissions to by-law changes to be brought to a vote pop out in 2010 loud and clear.  Who on this board was there at the time?  McMillin and Garrison, sat at the board table.  Then the board treasurer proposed no less than 5 by-law submissions.  They didn't pass, and he resigned from the board the following day.  

By-law submissions have been the resident's - the membership's opportunity to try and bring forward positive change, and submit them for a vote.  It takes thought, research, and guts to put your efforts up for a vote.  When you submit your paperwork for consideration of your by-law change, and it is announced from the board table, the submitting person's name is not announced or put out there.  I don't know who submitted the 2014 by-law change, I think I have an idea who it is, but I've never asked anyone at the board who it is.  This person felt this change was so necessary that they submitted it in 2012, 2013, and 2014.  Obviously, it didn't get the votes to pass it in 2012.  By 2013 more residents must have felt it was needed because the vote total was higher.  In 2014 the vote moved high enough for it to receive significant resident approval for it to pass!

Why be insulted by the submission for 2017?  I firmly believe the submission is authored by a board or committee member, or a co-hort of this board to circumvent the 2014 vote, and go back to this board's manipulation of financial reporting.  So why bother to make the effort, or vote on the issue? Consider voting "NO".  This apathy is brought to you from watching their manipulation of fact, information, financial moves, and the language of our very basic governing documents - against sound governance, for their personal agendas.

HERE IS AN ACCOUNT FROM 2012 DISCUSSING HOW IMPORTANT -NOT- YOUR BOARD VIEWS, AND IGNORES RESIDENT BY-LAW CHANGE VOTES:

Friday, May 18, 2012

PART V, MAY 15TH BOARD MEETING - CHANGES TO THE POLICY MANUAL

Under Old Business, the Board prepared to vote on several changes to the newly approved Policy Manual.  At the 2011 Annual Meeting, the majority of residents voting passed the following By-Law regarding changes to the Policy Manual:  "A motion to change the Policy Manual must be presented at an open Board meeting, posted on the WPA website for resident comments, and NOT voted on until the following Board meeting."

FIRST A LITTLE RECENT HISTORY:  During the April Meeting a list of changes to the Policy Manual to be voted on at the May Board Meeting were passed out to Board Members, and mention was made that this would be first reading.  No one read the list of changes, or even provided a copy of the document to the audience.

Between the April and May Board Meetings I checked the official WPA website several times to see the list of changes to be voted on.  I did not find them anywhere on the site.  If I missed them during that time period and you have found them, please advise me.  I don't believe I missed them.  I don't believe they were published, as required. 

THE MAY 15TH MEETING:  I encourage you to go to The Wedgefield Times and listen to this portion of the meeting tape.  I am writing what I saw and heard. You'll find this information under Old Business on the tape.

I'm not going to spend a lot of time going over each of the items voted on, tabled, or sent to the attorney for review.  All of those actions did occur during this section of the meeting.  My notes indicate at least eight proposed revisions.  I find it difficult to use the word  proposed.  Why?  The first change up for vote admittedly appeared to be necessary and minor.  It seems that in the section of the manual relating to the use of the office building that a $75.00 fee was inadvertantly added. What was more than interesting is that as the Board Members began to review their Policy Manuals, they had been changed.  What was to be proposed and voted on was already changed in their documents!

If you are saying to yourself, "no big deal on this item."  I tell you that was the case on 2-3 more items to be voted on.  It makes the process look like a sham!

As I advised, listen to the tape for yourself.

THOUGHTS ON THE LARGER PICTURE:  Most important, overall, your Board ignored the By-Law change that you and I voted in legitimately and legally.  First, they handed information to the Board in April.  There was no real first reading in April.  Second, they didn't post the list of potential changes on the official website.  If you found it, can prove it was posted during the required time - not after this article, I will apologize in a letter to the Board and publish it on the blog.  Third, they made some of the proposed changes in the Policy Manual prior to second reading and vote.

To use a term that Garrison used against McBride during the May Meeting, I ask where was due diligence?

DO YOU HAVE A COMMENT?  Send it to wedgefieldexaminer@yahoo.com  Please note whether you would like your name published with your comments.

A RESIDENT HAS A QUESTION AFTER ANDERSON'S RESPONSE ON THE TREE CUTTING ON PRIVATE CANAL LOTS

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Do you have information, or an opinion - agree, or not, you can email The Wedgefield Examiner at wedgefieldexaminerthe@yahoo.com.  We'll remove your name to protect the innocent, and publish it.  P.S.  If you would like your name published, please note that on your email, otherwise we leave your name out.

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HERE IS THE RESIDENT EMAIL QUESTION:

With the possibility of hurricane Irma bearing down on us, does the board now opens themselves up to paying for the removal of trees and debris on private lots.   Don't we have the right to hire a private tree service to do clean up and send the bill to the board?   If my backyard is a mess, it will affect my ability to navigate through it and enjoy it?????   Did they set the precedent?  

THE BOARD ANSWERS REGARDING THE FACT THAT WE ALL PAID FOR THE REMOVAL OF TREES ON PRIVATE CANAL LOTS. ONCE AGAIN, BLATANT DISREGARD FOR OUR GOVERNING DOCUMENTS! GO BACK AND READ THE FACTS, AND THEY CONTINUE TO DO WHAT THEY WANT, WHEN THEY WANT.

WHILE MOST OF WHAT THE BOARD SAYS AND DOES ISN'T A LAUGHING MATTER, OFTEN THEIR ANSWERS TO QUESTIONS ARE!

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Do you have information, or an opinion - agree, or not, you can email The Wedgefield Examiner at wedgefieldexaminerthe@yahoo.com.  We'll remove your name to protect the innocent, and publish it.  P.S.  If you would like your name published, please note that on your email, otherwise we leave your name out.

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I've been at the meetings, and discussion was very limited, and didn't cover "let's all pay to cut trees on private canal lots, and call it ALMOST like common ground, and throw in enjoyment on top of it.  Where is the direct quote from the governing documents, that allowed them to do it, on canals that their co-horts say the "state owns".  Can't check the minutes, because the board pulled them down. 

More to follow.  We are on our way to CT for an important meeting.  Wonder dog, Brady's confinement at home has been taken over by friends.  
HERE IS ANDERSON'S RESPONSE:

Mrs. Claveloux,

I have spoken to John Walton and several board members about your letter questioning the tree removal of tree debi in the canals following the storm last October. All of this was discussed at a regular  monthly board meeting and the vote was unanimous.

After my review, I’m left with two questions for the board for clarification.

1)   Did the board assess the private canal lot owners for their share of the expense for tree removal on their lots?  If so, why weren’t we told, and how did you assign their share, when the scope of work details canals, but not lots?

No we did not.

2)   If the board has not assessed the private canal lot owners, please reference the section, and specific language in the governing documents that allowed the board to use WPA funds, for the tree removal on private lots.

     We did not assess anyone. This was handled as storm clean up and was taken from the emergency fund. It was no different than a tree on the edge of a lot that falls onto the road or other Wedgefield common area. It was affecting navigation and enjoyment of the canal for anyone trying to use them.