The language is specific

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The language is specific about what it deems as ''defraying'' the cost, and litigation is not specifically mentioned.

Your attorney may interpret it one way, of course, since he would stand to benefit. It would be up to a judge, however, to make the final determination regarding that very specific language - cost of construction, repairs, etc - and if those who do not pay feel strongly enough about it, then you would still have to litigate THAT. If they win, then the special assessment would be void and NO owners would have to pay it, unless they wanted to do so voluntarily.

I would imagine, as a resident, that I would push it to a court judgment, if for no other reason than to make sure that the ''vague'' interpretation of litigation as a ''cost of capital improvement'' be clarified. I spoke to several other lawyers who also strongly feel that LITIGATION is not a ''cost of capital improvement.''



By gf board

Language is specific in CC&Rs

This response may have gotten buried in the thread in reply to you mention on your attorney's opinion:

The language is specific

July 8, 2007
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The language is specific about what it deems as ''defraying'' the cost, and litigation is not specifically mentioned.

Your attorney may interpret it one way, of course, since he would stand to benefit. It would be up to a judge, however, to make the final determination regarding that very specific language - cost of construction, repairs, etc - and if those who do not pay feel strongly enough about it, then you would still have to litigate THAT. If they win, then the special assessment would be void and NO owners would have to pay it, unless they wanted to do so voluntarily.

I would imagine, as a resident, that I would push it to a court judgment, if for no other reason than to make sure that the ''vague'' interpretation of litigation as a ''cost of capital improvement'' be clarified. I spoke to severa

By gfb

special assessment

I can only go by what has been shared by attorneys that have interpreted this statement. It has been passed before the attorney handling the ditch litigation AND now by the attorney handling the assocition affairs. Of course, I am no attorney and can only rely on the information supplied to me. Anyone can pay an attorney and file a lawsuit for any reason and yes, it would go before a judge for decision. This too would be costly for the entire neighborhood. The cost of any lawsuit filed with be paid by all homeowner wether or not there is a specific litigation fund. The dues that we pay would have to be raised to cover the cost of the lawsuits. It would be less costly for all to have a one time assessment than to raise the yearly dues from now on! While I do find it unfortunate to have this litigation exist everyone did in fact vote on this. It was voted by the majority of residences of the neighborhood! I appreciate your input but I hope that anyone that would be a resident would think about it before filing a lawsuit for ''no other reason than to make sure that the vague interpretation of litigation as a cost of capital improvement be clarified.'' The cost of these type of lawsuits would not be advantageous to the association. If you would like to attend the next board meeting, please feel free to do so. We are hoping to have the association attorney attend the meeting as well. Perhaps he could answer your questions in further detail.

May be costly, but appropriate

Attorneys do not decide the cases. Judges do. And I would find this to be a great test to settle an answer once and for all.

It may be expensive, it may not be, there is no way of telling. The CC&Rs are pretty specific. EXTREMELY specific, and do NOT list ''litigation'' as one of the allowable ''defrayed'' costs.

Everyone may have voted on the special assessment, but if it is an illegal assessment per the CC&Rs, it doesn't matter HOW MANY people voted for it.

The APPROPRIATE way to handle this question is to settle it for any FUTURE issues -- which is why I would insist on pushing this particular special assessment to court, to prevent the board or anyone else from abuse the CC&Rs in the future for yet something ELSE that is specifically not allowed in the CC&Rs.

What is the most cost-effective way to do that, besides having a Judge tell you that your vote was illegal and not binding on the residents for liens?

Very simple, CHANGE the wording in the CC&Rs by AMENDING that portion that specifies WHAT IS ALLOWED AS A SPECIAL ASSESSMENT.

If you had the vote to approve THIS one, then you should have no problem obtaining the requisite number of votes to amend the CC&Rs so that any liens associated with the special assessment can stand. Otherwise, regardless of what your attorney says, only a judge can tell you if Up is Down, or Blue is Green.

The CC&Rs are very specific. They define the defrayed costs as costs for Repairs, not legal fees. Change the CC&Rs and you'll be okay. But change them LEGALLY and CORRECTLY.

By gfb