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KellyC6 (Virginia)
Posts: 37
Posted:
Can anyone provide any help or guidance on a non-legally binding basis, of course, with respect to the following sentence:

"There shall be and there is hereby created and declared to be a conclusive presumption that any violation or breach or attempted violation or breach of any of the within covenants or restrictions or any provision of the Bylaws or Articles of Incorporation of the Association cannot be adequately remedied at law or exclusively by recovery of damages."

Say What?! I truly have no idea what this sentence is saying in English. Thanks, K
DonnaS (Tennessee)
Posts: 5,671
Posted:

Say What?

"England and Wales In English law, a conclusive presumption is a presumption of law that cannot be rebutted by evidence and must be taken to be the case whatever the evidence to the contrary"

Me either but I think that it means that if you mess up, you are toast.
FredS7 (Arizona)
Posts: 927
Posted:
If this is part of the CC&Rs...there is no excuse for it. These documents need to be understood and need to be written in plain English. Either the lawyer who wrote this doesn't know how to be understood...or doesn't want to be understood.

DonnaS (Tennessee)
Posts: 5,671
Posted:

This was written by a recent grad from law school, with the presumption that he was going to make his momma proud of all of his book learning.
DyanaH (Florida)
Posts: 20
Posted:
I hope that you are going through your CC&R or Bylaws, or Regulations and you stumbled upon this and you are making things easier to read and understand.

But, I can tell you one thing - if you don't understand it neither do they -----so they just read right past if for sure.
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By DonnaS on 06/01/2011 1:56 PM

Say What?

"England and Wales In English law, a conclusive presumption is a presumption of law that cannot be rebutted by evidence and must be taken to be the case whatever the evidence to the contrary"

Me either but I think that it means that if you mess up, you are toast.

I agree with you Donna … I understood until about the last five words of the sentence which turned it into … say what?

So in essence any violation of the documents … and not sure on last five words (maybe a duh moment).

Dyana has a good point … in essence if none of us understand then how do they expect homeowners to comprehend.

PeterT3 (Illinois)
Posts: 28
Posted:
Kelly:

conclusive presumption means that the presumption cannot be disproved, even if you have overwhelming evidence to the contrary. For example, a 10 year old is considered a child and cannot commit a criminal offense. Even if the 10 year old is a child prodigy wise beyond his/her years and just provided proof for Einstein's Theory of Relativity. If the child murders someone, he or she would still be considered a child and cannot be tried as a criminal in the case. Even if the child cites passages from numerous laws and tells you that he or she was fully aware the murder was wrong.

Now, I am not a law professional, but I do think what your sample sentence means is that if you violate or even attempt to violate the covenants or restrictions, it is assumed that this violation or attempted violation cannot be adequately made right by another law or just by recovering the damages alone - meaning that this gives the board the right to levy fines or other punishments, and since it is conclusive presumption, you have no legal ground to stand on if you don't agree with it. But that is just a guess on my part.
FredS7 (Arizona)
Posts: 927
Posted:
>if you violate or even attempt to violate the covenants or restrictions, it is assumed that this violation or attempted violation cannot be adequately made right by another law or just by recovering the damages alone -

That seems to be right...

> meaning that this gives the board the right to levy fines or other punishments

however this is not in the sentence (although it may well be in the following one).

This does seem to be an excellent example of how not to write. The purpose of writing is usually to be understood. This reads like something from a journal article on semiotics or such.

Another curious thing about the sentence- and perhaps a typical example of lawyerly overreaching..is that it seems to contemplate punishment for only ATTEMPTING to do something...that is...thoughtcrime.

Can you identify the source for this repulsive bit of writing?

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