JimL6
Posts: 45
Posts: 45
Posted:
The dictionary defines an assessment as a charge for an expense and the amount of the charge, not as a payment or a collection of a payment, and it defines improvement as the act of making something better (change), and it defines maintenance as the act of keeping something the same (non-change), neither making it better nor allowing it to become worse.
The language of the Articles and the Bylaws and the Declaration which govern the Board appear to me to be consistent with these dictionary definitions of an assessment (a charge for an expense and the amount of the charge) and improvement (change) and maintenance (non-change).
Section 3.2a of the Articles states that the Board has the power “to make and collect Assessments against Members.”
The Board cannot “make” and “collect” a payment or a collection of a payment “against” the membership. However, the Board can “make” a charge for an expense “against” the membership, and the Board can then “collect” the amount of the charge.
So an assessment is a charge for an expense and the amount of the charge in the regulations which govern the Board, just as it is in the dictionary.
Section 8.04 of the Bylaws states that “Regular annual Assessments [charges] against a Lot Owner for his share of the items of the budget shall be made [shall be imposed] in advance [before the calendar year] on or before December 20,” and that “Special Assessments [charges] may be made [may be imposed against the membership] from time to time [at any time] by the Board ... with membership approval where required.”
So the annual charge for the expense of the annual budget is the “Regular Assessment,” and every other charge for every other expense, such as the expense of an improvement (a change) of the membership’s Common Property, is a “Special Assessment,” and some (not all) “Special Assessments” (charges for expenses other than the expense of the annual budget) require “membership approval.”
Section 6.04c of the Declaration states that the Board “may levy [may impose against the membership] a Special Assessment [a charge for an expense other than the expense of the annual budget] for the purpose of defraying ... the cost of any construction ... of a described improvement [a described change] to the Common Property,” and that “Special Assessments [charges] for improvements [changes] must be approved by at least sixty (60%) percent of the votes cast by Members,” and that “Special Assessments [the amounts of any charges for any expenses other than the expense of the annual budget] shall be payable [shall be owed by the membership for payment] at such times [a single payment] and in such installments [multiple payments] as may be determined by the Board.”
It is logically impossible for the membership to approve “Special Assessments [charges] for improvements [changes]” unless it approves the “improvements” (the changes) themselves, hence the phrase “approved improvements” in section 8.02 of the Bylaws, which states that “a budget for each calendar year ... may provide funds for specifically proposed and approved improvements.”
So “at least sixty (60%) percent of the votes cast by Members” must approve every “improvement” (every change) of the membership’s Common Property and every “Special Assessment” (every charge) for the expense of every “improvement” (every change) before the Board can “levy” (can impose) against the membership the approved Special Assessment (the approved charge) for the expense of the approved improvement (the approved change), the payment of which can be collected from the membership at whatever “time” (a single payment) or in whatever “installments” (multiple payments) are “determined by the Board,” as stated in section 6.04c of the Declaration.
The logical manner in which to collect from the membership an approved and levied Special Assessment (an approved and imposed charge) for the expense of an approved improvement (an approved change) of the membership’s Common Property is to collect it in the payment for the annual budget for the next calendar year (a single payment) or in the payments for the annual budgets for subsequently calendar years (multiple payments in installments), hence the statement in section 8.02 of the Bylaws that “a budget for each calendar year ... may provide funds for specifically proposed and approved improvements.”
Section 8.02 of the Bylaws states that “the Board shall adopt a budget for each calendar year which shall include the estimated funds required to defray [1] the Common Expenses and funds for [2] reserves, if any, and may provide funds for [3] specifically proposed and approved improvements.”
The reason that the phrase “approved improvements” in section 8.02 of the Bylaws has to be a reference to membership approval and cannot be a reference to Board approval is that whereas the Board must approve all three things (the “Common Expenses” and the “reserves” and the “approved improvements”) stated in this section, the only one of these three stated things which is characterized as having been “approved” is the only one of these three stated things which “must be approved by at least sixty (60%) percent of the votes cast by Members,” as stated in section 6.04c of the Declaration, namely, the “improvements.”
So the regulations which govern the Board give the membership the authority to decide what can or cannot be done with its own Common Property (the 60% membership vote-of-approval requirement for every improvement [every change] of its Common Property) and with its own money (the 60% membership vote-of-approval requirement for every Special Assessment [every charge] for the expense of every improvement [every change] of its Common Property).
That’s how it appears to me. Am I wrong?
Prior to the Board meeting held on 03/26/08, the Board agreed with its improvement project coordinator that a vote of approval from the membership had to occur before the Board’s improvement project could proceed.
But in the minutes of the Board meeting held on 03/26/08, the Board reverses itself and begins to claim that, according to its attorney, it can evade the 60% membership vote-of-approval requirement by simply “handling” or “treating” whatever required membership approval as if it were something else which did not require membership approval.
So the Board decides to “handle” or “treat” the Special Assessment (the charge) for improvement (change) as if it were a fee (a charge) for maintenance (non-change), and it decides to “handle” or “treat” the membership’s deciding vote as if it were a nonbinding opinion, and it is stated in these minutes that “a motion [was made] that the renovation cost would be in the form of a maintenance fee,” and that “there would be no special assessment and no upfront payment option.” Apparently, the “special assessment” is being defined as a type of payment instead of what it is (a charge for an expense).
According to this logic, the repayment of a bank loan could be evaded by simply handling or treating the borrowed money as if it were a gift. But I don’t think that any bank would go along with this kind of reasoning, and neither do I think that the membership should go along with this kind of reasoning regarding the 60% membership vote-of-approval requirement.
In the subsequently written letter dated 06/05/08 from the Board’s attorney in support of the Board’s new position, the attorney admits that the Board’s project consists of “changes” which are “considered improvements,” and that the Board has the right “to borrow money” for “improvement,” and that “the levy of a Special Assessment to fund improvements ... may be levied only upon the affirmative vote of not less than sixty (60%) percent of ... members,” all of which supports the Board’s original position (prior to the 03/26/08 Board meeting) that a vote of approval from the membership must occur before the improvement project can proceed.
But then she attempts to evade the 60% membership vote-of-approval requirement by changing the definition of a Special Assessment (any charge for any expense other than the expense of the annual budget) to a payment which is collected apart from the payment for the annual budget, and by then concluding that if the payment for the improvement (the change) is collected in the payment for the annual budget, then there is no Special Assessment and consequently no 60% membership vote-of-approval requirement.
But in doing this, she ignores the statement in section 8.02 of the Bylaws that “a budget for each calendar year ... may provide funds for specifically proposed and approved improvements,” which refutes both her conclusion and her altered definition of a Special Assessment.
In a second letter dated 08/25/08, she reverses herself and claims that the Board’s project consists of “work” which is “considered maintenance,” and that the Board has the right “to borrow money” for “maintenance,” and she cites section 4.06c of the Declaration, which states that the Board has “the right ... to borrow money for the purpose of improving, replacing, restoring or expanding the Common Property, or adding New Common property.”
However, not only is the word “maintaining” not included among the stated purposes for which the Board has the right to borrow money, but also the nature (non-change) of maintenance is incompatible with the nature (change) of the stated purposes: improvement, replacement, restoration, expansion, addition. So the Board has the right to borrow money for improvement (change), but it does not have the right to borrow money for maintenance (non-change).
I think that the definition of an assessment (a charge for an expense and the amount of the charge) is clear enough in any dictionary and in the language of the regulations which govern the Board.
However, is there a universally accepted statement of standards for home owners associations (HOA), which clarifies the meaning of assessments for HOA Boards, and to which I could direct the Board (and its attorney) so that it would stop playing these word games in its attempt to evade the membership approval requirement?
The language of the Articles and the Bylaws and the Declaration which govern the Board appear to me to be consistent with these dictionary definitions of an assessment (a charge for an expense and the amount of the charge) and improvement (change) and maintenance (non-change).
Section 3.2a of the Articles states that the Board has the power “to make and collect Assessments against Members.”
The Board cannot “make” and “collect” a payment or a collection of a payment “against” the membership. However, the Board can “make” a charge for an expense “against” the membership, and the Board can then “collect” the amount of the charge.
So an assessment is a charge for an expense and the amount of the charge in the regulations which govern the Board, just as it is in the dictionary.
Section 8.04 of the Bylaws states that “Regular annual Assessments [charges] against a Lot Owner for his share of the items of the budget shall be made [shall be imposed] in advance [before the calendar year] on or before December 20,” and that “Special Assessments [charges] may be made [may be imposed against the membership] from time to time [at any time] by the Board ... with membership approval where required.”
So the annual charge for the expense of the annual budget is the “Regular Assessment,” and every other charge for every other expense, such as the expense of an improvement (a change) of the membership’s Common Property, is a “Special Assessment,” and some (not all) “Special Assessments” (charges for expenses other than the expense of the annual budget) require “membership approval.”
Section 6.04c of the Declaration states that the Board “may levy [may impose against the membership] a Special Assessment [a charge for an expense other than the expense of the annual budget] for the purpose of defraying ... the cost of any construction ... of a described improvement [a described change] to the Common Property,” and that “Special Assessments [charges] for improvements [changes] must be approved by at least sixty (60%) percent of the votes cast by Members,” and that “Special Assessments [the amounts of any charges for any expenses other than the expense of the annual budget] shall be payable [shall be owed by the membership for payment] at such times [a single payment] and in such installments [multiple payments] as may be determined by the Board.”
It is logically impossible for the membership to approve “Special Assessments [charges] for improvements [changes]” unless it approves the “improvements” (the changes) themselves, hence the phrase “approved improvements” in section 8.02 of the Bylaws, which states that “a budget for each calendar year ... may provide funds for specifically proposed and approved improvements.”
So “at least sixty (60%) percent of the votes cast by Members” must approve every “improvement” (every change) of the membership’s Common Property and every “Special Assessment” (every charge) for the expense of every “improvement” (every change) before the Board can “levy” (can impose) against the membership the approved Special Assessment (the approved charge) for the expense of the approved improvement (the approved change), the payment of which can be collected from the membership at whatever “time” (a single payment) or in whatever “installments” (multiple payments) are “determined by the Board,” as stated in section 6.04c of the Declaration.
The logical manner in which to collect from the membership an approved and levied Special Assessment (an approved and imposed charge) for the expense of an approved improvement (an approved change) of the membership’s Common Property is to collect it in the payment for the annual budget for the next calendar year (a single payment) or in the payments for the annual budgets for subsequently calendar years (multiple payments in installments), hence the statement in section 8.02 of the Bylaws that “a budget for each calendar year ... may provide funds for specifically proposed and approved improvements.”
Section 8.02 of the Bylaws states that “the Board shall adopt a budget for each calendar year which shall include the estimated funds required to defray [1] the Common Expenses and funds for [2] reserves, if any, and may provide funds for [3] specifically proposed and approved improvements.”
The reason that the phrase “approved improvements” in section 8.02 of the Bylaws has to be a reference to membership approval and cannot be a reference to Board approval is that whereas the Board must approve all three things (the “Common Expenses” and the “reserves” and the “approved improvements”) stated in this section, the only one of these three stated things which is characterized as having been “approved” is the only one of these three stated things which “must be approved by at least sixty (60%) percent of the votes cast by Members,” as stated in section 6.04c of the Declaration, namely, the “improvements.”
So the regulations which govern the Board give the membership the authority to decide what can or cannot be done with its own Common Property (the 60% membership vote-of-approval requirement for every improvement [every change] of its Common Property) and with its own money (the 60% membership vote-of-approval requirement for every Special Assessment [every charge] for the expense of every improvement [every change] of its Common Property).
That’s how it appears to me. Am I wrong?
Prior to the Board meeting held on 03/26/08, the Board agreed with its improvement project coordinator that a vote of approval from the membership had to occur before the Board’s improvement project could proceed.
But in the minutes of the Board meeting held on 03/26/08, the Board reverses itself and begins to claim that, according to its attorney, it can evade the 60% membership vote-of-approval requirement by simply “handling” or “treating” whatever required membership approval as if it were something else which did not require membership approval.
So the Board decides to “handle” or “treat” the Special Assessment (the charge) for improvement (change) as if it were a fee (a charge) for maintenance (non-change), and it decides to “handle” or “treat” the membership’s deciding vote as if it were a nonbinding opinion, and it is stated in these minutes that “a motion [was made] that the renovation cost would be in the form of a maintenance fee,” and that “there would be no special assessment and no upfront payment option.” Apparently, the “special assessment” is being defined as a type of payment instead of what it is (a charge for an expense).
According to this logic, the repayment of a bank loan could be evaded by simply handling or treating the borrowed money as if it were a gift. But I don’t think that any bank would go along with this kind of reasoning, and neither do I think that the membership should go along with this kind of reasoning regarding the 60% membership vote-of-approval requirement.
In the subsequently written letter dated 06/05/08 from the Board’s attorney in support of the Board’s new position, the attorney admits that the Board’s project consists of “changes” which are “considered improvements,” and that the Board has the right “to borrow money” for “improvement,” and that “the levy of a Special Assessment to fund improvements ... may be levied only upon the affirmative vote of not less than sixty (60%) percent of ... members,” all of which supports the Board’s original position (prior to the 03/26/08 Board meeting) that a vote of approval from the membership must occur before the improvement project can proceed.
But then she attempts to evade the 60% membership vote-of-approval requirement by changing the definition of a Special Assessment (any charge for any expense other than the expense of the annual budget) to a payment which is collected apart from the payment for the annual budget, and by then concluding that if the payment for the improvement (the change) is collected in the payment for the annual budget, then there is no Special Assessment and consequently no 60% membership vote-of-approval requirement.
But in doing this, she ignores the statement in section 8.02 of the Bylaws that “a budget for each calendar year ... may provide funds for specifically proposed and approved improvements,” which refutes both her conclusion and her altered definition of a Special Assessment.
In a second letter dated 08/25/08, she reverses herself and claims that the Board’s project consists of “work” which is “considered maintenance,” and that the Board has the right “to borrow money” for “maintenance,” and she cites section 4.06c of the Declaration, which states that the Board has “the right ... to borrow money for the purpose of improving, replacing, restoring or expanding the Common Property, or adding New Common property.”
However, not only is the word “maintaining” not included among the stated purposes for which the Board has the right to borrow money, but also the nature (non-change) of maintenance is incompatible with the nature (change) of the stated purposes: improvement, replacement, restoration, expansion, addition. So the Board has the right to borrow money for improvement (change), but it does not have the right to borrow money for maintenance (non-change).
I think that the definition of an assessment (a charge for an expense and the amount of the charge) is clear enough in any dictionary and in the language of the regulations which govern the Board.
However, is there a universally accepted statement of standards for home owners associations (HOA), which clarifies the meaning of assessments for HOA Boards, and to which I could direct the Board (and its attorney) so that it would stop playing these word games in its attempt to evade the membership approval requirement?