They will indeed get you!

April 05, 2006

By Lee Lambert (View author info)

I am Lee Lambert, secretary to the Governing Documents Committee of Spring Valley Lake Association (2004-2006 present).

In Spring Valley Lake, in 2000, an effort was begun under the instructive eyes of Peter Racobs of Fiore, Racobs, et al, together with Mark Hopkins of that firm, to restate our CC&R's. This effort was a board sponsored lotowner effort carried out through a CC&R committee of 2000 --2003.

In fairness, the committee was strongly influenced from within to reject much of counsel's recommended verbage. The effort culminated in the creation of a monstrosity of over 7000 words, and in which certain ploys were employed that may be worthy of considerable serious legal and intellectual note.

When I was in freshman philosophy course 101, at UCLA (circa 1954) we learned of the Philosophers' Traps (theirs, and those for us, that is.) Those traps include changing either the definitions of words, or/and the names of things, or/and the descriptions of circumstances to facilitate consistency [for the purposes of evading prescriptions or/and proscriptions of acts of various kinds], in other words, to make "wrong" into "right". This philosophical ploy was used vigorusly by the authors of these restated CC&R's.

In the working definitions, Article 1, the Definition of "Quorum" was given as follows:

1.23 "Quorum" means the presence, either in person or by proxy, of Members entitled to cast twenty-five percent (25%) of the total voting power of the Association. Members whose voting rights are suspended shall be excluded for the purpose of determining the voting power.' Note two apparent errors: all quorums are not, by California Code, 25%; they vary all over the place, from 55% to 15% for various matters. Some but not all specific quorum numbers were included in the restated articles. Also, voting rights are only lost by sale of property, I believe.

The next philosophical "ploy" was in the assessment and enforcement area, and involved changing the name of "fine" to "enforcement assessment". The verbage that followe
s was in multiple sections, of which only the one of specific interest is shown here:

5.11 Enforcement Assessments. The Board may levy, subject to the limitations of the Governing Documents, **enforcement Assessments** [fines] against an Owner and his/her Lot **for failure to comply with the Governing Documents** [description of fines] . In the event the Board imposes an enforcement Assessment, said Assessment shall be subject to costs, late charges and interest as described in the section for delinquent payments. Enforcement Assessments imposed to recover monetary penalties for failure of a Member to comply with the Governing Documents may become a lien against the Member's Lot **that is subject to foreclosure** [speifically prohibited], unless law prohibits such lien and foreclosure remedies.' [which, as they obviously already knew else why change the name, California Code DOES prohibit! You can't write predictive or prospective law, either! They were just being COY! WEeee didn't know THAAaaat!]

The document allegedly included the laws for our convenience as well. The "laws" included were truncated (abstracted) and thus the description of circumstances of their applicability was potentially changed. They were then made into CC&R's, and could not be said to follow from or be consistent with laws, as equitable servitudes must be, I believe)!

I think that Peter and Mark should have sounded the alarm to the board and even possibly to the prospective "victims" of the "legalistic ruse". Failure to dis-advocate has the same effect as advocacy, I believe, and none of the lawyers said anything against these abominations in any of the "Client-privileged communications" my committee has seen. SO, HEADS UP, because they will INDEED get you, if they can.

I don't wish to bring harm to the reputation of anybody, here. I have put this down for the purpose of facilitating thoughtful consideration by my fellows as an apparently applicable, though rueful, example. Such impressions and implications as that might be taken are at the discretion of the reader, exclusively. (Obvious Disclaimer, all!)