Last update: 2008 Dec 12. Click History for a list of changes and updates.
___The continuation of this post is an email to MOA members recommending a "NO" vote on the proposed amendment to the Michaywé Deed Restrictions to add a venue provision.
___Are you satisfied that the board has provided full and accurate information on:
- the financial status quarter by quarter?
- the financial status year by year?
- progress toward a balanced budget?
- not achieving a balanced budget?
___If the answers are "NO" to these questions, do you believe that the board has provided full and accurate information about the proposed amendment?
___If the last answer is "NO", then why would you vote for the proposed amendment based on the information provided?
Don Nordeen
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- Key Words:xx • Attorney Issues, • Governing Documents - General, • MOA Governance, • MOA Members & Members' Rights, CC&Rs, Declaration of Master Covenants, Conditions and Restrictions, duty of obedience, law, members' rights, POA members' rights, restrictive covenant, vote
Vote "NO" on Proposed Amendment to Michaywé Deed Restrictions Regarding Venue (continued)
____ From:_ Don Nordeen
_____Date:_ 2008 December 8 14:02:59 EST
______ To:_ MOA Members
__ Subject:_ Vote "NO" on Proposed Amendment to Michaywé Deed Restrictions Regarding Venue
Dear MOA Members,
Re: Vote "NO" on Proposed Amendment to Michaywé Deed Restrictions Regarding Venue
___My recommendation is that this proposed amendment not be supported because of lack of information from the board. An amendment to the Deed Restrictions must be taken seriously and not be supported without solid rationale and explanation. Further, the board should certify that the proposed amendment is clearly consistent with the statutory and case law and would likely be supported by the Court of Appeals if contested. The board has the resources of all the owners to get it right. An individual owner has only his/her own resources.
___The proposed amendment involves the rights of citizens under the law and proposes to negate one of those rights by an amendment to the Deed Restrictions. Moreover, the owners who may be affected by the proposed amendment (those delinquent in payment of dues) are not even allow to vote on the proposed. amendment. Does this seem right? What is next by the board to further undermine the rights of owners. Whatever, it stinks, and the board hasn't explained — maybe because the explanation would stink.
___I am all for a vigorous collection policy and do not defend those owners who have not timely paid MOA dues and assessments. However, a higher principle is to use collections policies that are legal is involved here.
___I am aware of some of the statutory and case law that may apply. None has been described by the board which has the resources of all owners to make a full examination. (added 2008 Dec 11) The board has provided no information concerning whether or not any other owners association has used a change in venue to collect delinquent dues. No information is provided re any case law on such a provision in the deed restrictions, specifically for Michigan but also for other states.
___The provisions in the Michaywé Deed Restrictions concerning collection of delinquent dues and assessments provide for liens and foreclosure. The rights involved with the proposed amendment concern venue, which are defined in the statutory law. For real estate and property issues, the controlling provision of the law is Section 600.1605 Venue; real actions; replevin. None of the uses involves money collection. Venue is defined by in Section 600.1621 Venue; determination; exceptions. This means that a collection action must be filed in the county of residence. The board apparently recognizes this right under the law as evidenced by the proposed amendment. The proposed amendment seeks to negate the legal right under the law by amendment of the Deed Restrictions.
___(added 2008 Dec 11) The obvious choice is to seek a change in the law, specifically Section 600.1605 to include collection of delinquent dues and assessments. Such a change in the law might produce an interesting debate in the legislature. The current law favors the individual resident who might be named as a defendant, and has only the resources of one owner in defense. A revision to allow the collection action to be filed in the county of the owners association would favor the owners association which has the resources of all the owners (about 2200 in MOA's case). It seems that individual rights are best protected with the current law.
___(added 2008 Dec 12) Even with a venue change to be able to secure a judgment in the courts in Otsego County, will the Association still be required to go to the county in which the owner resides to identify the assets that can be used to obtain the cash?
___Michigan case law provides protections against amendment by less than a majority of all owners. In a 1982 case, Ardmore Park v Simon, the Michigan Court of Appeals (see Headnote 4 on page 58) ruled
"A deed restriction which properly allows a majority, or greater percentage, of owners within a particular subdivision to change, modify or alter given restrictions binds the other owners by properly passed and recorded changes in the same manner as those contained in any original grant and restriction."
Thus under Ardmore Park, a majority of all owners must approve the proposed amendment to make it binding on all owners.___The meaning of amend also applies. Amend means to "to alter especially in phraseology; especially : to alter formally by modification, deletion, or addition" "to change or modify for the better" "an improving by making corrective changes". The message is that amend is limited to correct, refine, improve, adjust, etc. — not large change which is the meaning of the word reform. Courts have held that major changes require approval of all owners since new conditions are introduced. The venue is a new condition because it is unspecified in the original and current Deed Restrictions. The board should state whether or not the Court of Appeals would likely require unanimous approval.
___"Grandfathering" may also apply. Normally, amendments apply forward but not backward. (added 2008 Dec 09) The Michigan Supreme Court described the process in Sanborn v McLean, 233 Mich 227, 229-230; 206 NW 496 (1925):
"... Reciprocal negative easements are never retroactive; the very nature of their origin forbids."
See Ardmore Park, pp 59-60 for the full quotation. See also Sampson v Kaufman, 345 Mich 48, 51; 75 NW2d 64 (1956) quoted on p 61 of Ardmore Park.
See Ardmore Park, pp 59-60 for the full quotation. See also Sampson v Kaufman, 345 Mich 48, 51; 75 NW2d 64 (1956) quoted on p 61 of Ardmore Park.
___There are many, many questions. I asked board member Jay Welter for a copy of the instructions approved by the board to the attorney and the opinion of the attorney, and was advised that both are privileged to the board. Does it sound reasonable that anything that affects the rights of owners/members be privileged to the board? Shouldn't the owners be fully informed? What is the board hiding? In 2007, the board adopted a policy for such information to be available to members.
___There is too much that hasn't been revealed by the board. I am all for collecting delinquent dues, but by legal means with the rights of owners protected by the board. Which owners' rights are next? Vote no on the proposed amendment until the board provides full and accurate information.
Don Nordeen
(989) 939-8240
File: MOA Mmbrs81208 DMCCRAmend.cwk
- History:__
- 2008 Dec 08 — Initial Post
- 2008 Dec 09 — additional information on covenants never being retroactive
- 2008 Dec 11 — no information regarding use by other owners associations or on case law
- 2008 Dec 11 — best choice is to seek a change in the law
- 2008 Dec 12 — will other venues be required to collect the money?
- Links:xxVote "NO" on Proposed Amendment to Michaywé Deed Restrictions Regarding Venue at [http://swagmanmwpoa.blogspot.com/2008/12/vote-no-on-proposed-amendment-to.html]
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