March 20, 2015
Dear Mr. Puleo,
This will address the issues raised in your call on the 17th about why the Phelps pay a double assessment.
As you know from your vast experience in real estate law, the Developer in the Declaration for the purpose of a Declaration of Covenant, Conditions and Restrictions with provisions that pertain to whatever properties that the Developer declares to be subject to said CCR's. The right of the Declarant to subject addition parcels of real estate to the provision of the Declaration and to waive or amend as to any lot the provisions of the Declaration are typically not limited they are not limited for the Wood's Edge development.
In 1999 Bill Murry, representative of The Murry Companies / Sher-Wal, Inc. Joint Venture and Developer for Wood's Edge, decided to build duplex, tri-plex and quad-plex structures and to include them in the Wood's Edge development. At that time, in order to ameliorate the HOA's concerns about removal of lot units from the Association, Mr. Murry declared that each owner in a duplex, tri-plex or quad-plex unit would pay two reserve fees, two assessments and receive two membership votes.
As owners of one of the tri-plex properties, the Phelps are affected by Mr. Murry's 1999 determination. Records indicate that at the time of their purchase in 2001 the Phelps were advised of their obligations and they paid a double ($960) reserve. Since that time, the Phelps have paid a double assessment each month and they have exercised two membership votes. Even if they believe that had a legitimate claim against the Developer for his determination that duplex, triplex or quad flex owners would pay double reserve and assessment, your clients tacit approval over their fifteen (15) years in the property would certainly weaken any such claim.
Because it is based upon the Developer / Declarant's right to subject additional parcels of real estate to the Declaration and his right to waive or amend as to any lot the provisions of the Declaration, the Board of Directors see no reason to revise the terms under which owners of duplex, tri-plex and quad-plex units are members of the Association.
I trust that the Phelps will accept this clarification of the terms under which they bought into the community and their obligations under the governing documents. We look forward to prompt receipt of their pending fine and full restoration of their membership privileges.
Very truly yours,
Angela M. Ward
Ms. Ward asserts (twice): "...the Developer / Declarant's right to subject additional parcels of real estate to the Declaration and his right to waive or amend as to any lot the provisions of the Declaration are typically not limited" suggests that Ms. Ward understands Mr. Murry has a right to waive or amend the provisions of the Declaration. He has done so by filing updated Subdivision Plans showing that the lots were consolidated. In later Subdivision planning, Mr. Murry started with larger lots, knowing that the ranch-style town homes were more popular and easier to sell.
Ms. Ward asserts: "Mr. Murry declared that each owner in a duplex, tri-plex or quad-plex unit would pay two reserve fees, two assessments and receive two membership votes." No written proof that Murry made such a declaration has been offered. An attempt by WEHOA to include Murry via cross suit was thrown out by the court in 2016.
Ms. Ward asserts: "Records indicate that at the time of their purchase in 2001 the Phelps were advised of their obligations and they paid a double ($960) reserve." The Phelps received no legal proof at closing of the "double lot" assertion. Their paperwork shows a single reserve fee was paid.
Ms. Ward asserts: "...your clients tacit approval over their fifteen (15) years in the property would certainly weaken any such claim." A number of the homeowners have approached the Board with their assertion that they do not actually have a "double lot." In each case, their assertion is ignored without receiving any written proof of the existence of a "double lot." The court has thrown out Ms. Ward's motion to dismiss this case because of the lateness of the claim. Let us also state that since non-payment of dues is subject to fine, no "double lot" owner has the ability to refuse to pay the double fee. Calling this "tacit" approval is ridiculous. As you can see, when the Phelps' attempted not to pay the double lot fee, they were immediately threatened with fines.