WHY THE BURNING TREE MASTER ASSOCIATION (BTMA) VICE-PRESIDENT RESIGNED (THE TRUTH!)

Dear Burning Tree Residents,

On March 26, 2012 I resigned from the Burning Tree Master Association (BTMA) board of directors where I had held the office of Vice President. This was the third term I had served.  I felt compelled to resign as I could no longer be part of a board that chose to “color” the facts the way they wanted them to be instead of the way they legally are. In my mind that is deceitful. Yes, I did point out this fact, but it fell on deaf ears.

THE BURNING TREE MASTER ASSOCIATION ARTICLES OF INCORPORATION CLEARLY STATES  WHO ARE  MEMBERS OF THE Burning Tree Master Association

Burning Tree Master Association Articles of Incorporation Article V Membership states that Every Burning Tree Area Owners Association approved by the Declarant* shall be a member of this corporation. (It does not state anywhere that lot owners are the members.)

*WHERE DOES ONE FIND WHICH AREA OWNERS ASSOCIATIONS WERE APPROVED BY THE DECLARANT? (In other words, where do you find who belongs to the Burning Tree Master Association?)

As Joe Hirsch correctly stated, it is within the Certificate/Deed of Dedication filed with Tulsa County, where one will find if the HOA was “approved by declarant”. That being said, all attorneys for homeowners who have read the documents, including an attorney who lives in Burning Tree Addition, have seen that Covenants for Burning Tree South Addition and Burning Tree Addition (incorrectly referred to by some as “Burning Tree One”)  do not give ANY authority to the Burning Tree Master Association. However, Covenants for Burning Tree East, Burning Tree Plaza, and Burning Tree West (where I live) do give the Master Association the authority to assess us. The interesting thing is that  according to these covenants, only the Burning Tree Plaza HOA is shown (declared) in their covenants to be a member of Burning Tree Master Association.

Although Joe Hirsch was correct that if BTMA has any authority to assess  it would be found in the Certificate of Dedication that was filed for each subdivision we learned something else.  According to the Secretary of State of Oklahoma there are no “sub-associations” anyway, for Burning Tree Master Association as some of the Burning Tree Master Association board of directors has been referring to the owners associations. We were told that each area owners association is a stand-alone corporation and in not tied to the Burning Tree Master Association through the Burning Tree Master AssociationArticles of Incorporation.  CLICK  HERE: READ THIS EXPLANATION on how some Burning Tree Master Association board members may have gotten so confused.

See for yourself that each is a separate corporation as each was filed with a different number with the Oklahoma Secretary of State:

 

1. Burning Tree Area #2 Owners Association, Inc (Duplexes and Apartments) 2100347247
2. Burning Tree Area #4 Owners Association, Inc (South) 2100328906
3. Burning Tree Area #5 Owners Association, Inc (East) 2100348799
4. Burning Tree Area #7 Owners Association, Inc (Plaza and West) 2100347190
5. Burning Tree Area #1 Owners Association, Inc  2100309967 (This is the Burning Tree subdivision referred to incorrectly by some as “Burning Tree One” when it is legally and simply “Burning Tree” subdivision.
6. Burning Tree Master Association 2100288651
7. Burning Tree Area #6 Owners Association, which, according to the Burning Tree East covenants  was to be  formed, never was, although Burning Tree Master Association board of directors has assessed and  liened lot owners in that area. Burning Tree Master Association board of directors have also chosen to never assess or lien anyone in Burning Tree Area #2 Owners Association Inc.

Title 60. Property Chapter 17 – Real Estate Development   § 852. Owners Association C. The owners association*   shall have the power to enforce any obligation in connection with membership in the owners association*   by means of a levy or assessment which may become a lien upon the separately or commonly owned lots, parcels or areas of defaulting owners or members, which said lien may be foreclosed in any manner provided by law for the foreclosure of mortgages or deeds of trust, with or without a power of sale. In an action brought to enforce any lien authorized pursuant to the provisions of this section, the prevailing party shall be entitled to recover reasonable attorney’s fees to be fixed by the court, which shall be taxed as costs in the action. No lien may be placed or mortgage foreclosed unless the homeowner was informed in writing upon joining the owners association of the existence and content of the owners association * restrictions and rules, and of the potential for financial liability to the individual owner by joining said owners association.    (*THE Burning Tree Master Association IS NOT AN OWNERS ASSOCIATION! The owners associations are the  set up by the subdivisions- Burning Tree Area #1 Owners Association, Burning Tree Area #5 Owners Association, Burning Tree Area #4 Owners Association, Burning Tree Area #2 Owners Association, Burning Tree Area #7 Owners Association)

By-laws CANNOT conflict with the Articles of Incorporation according to Oklahoma Statutes. (In other words, The Burning Tree Master Association Articles of Incorporation trump Burning Tree Master Association By-laws ). Covenants trump by-laws so what is in the covenants is what lot owners accepted when purchasing the property. It is important to remember that the covenants trump all Articles of Incorporation.

The covenants for Burning Tree South Addition and Burning Tree Addition — the subdivision that is incorrectly referred to as “Burning Tree One” by the Burning Tree Master Association — state specifically what must be done in order to amend covenants. A vote cannot be taken in the 1970s to amend them. PERIOD!  It requires a written instrument signed  by a majority of lot owners after Feb 1, 1993 and it must be filed with Tulsa County.  Tulsa County  advised that no written instrument signed by a majority of  lots owners to amend covenants was ever filed for Burning Tree South to allow Burning Tree Master Association to assess or lien Burning Tree South lot owners.

Further, Tulsa County does not show that a written instrument signed by a majority of lot  owners to amend covenants was ever filed for the subdivision with the legal name of Burning Tree (the area some people refer incorrectly to as “Burning Tree One” in order to exclude any lot owners from using the easement they have to enjoy the Burning Tree Master Association facilities  Covenants for Burning Tree subdivision could only be amended after Feb, 1993 and ONLY by written instrument, not by a “vote” taken in 1977, as some board members claim was done.

Thus, the duplexes and apartments in the Burning Tree subdivision have always had an easement to use the pool and other facilities, yet certain lot owners have been kept out, as the Burning Tree Master Association has decided to not assess them as the simple way to keep them enjoying their easement.

Both Burning Tree South covenants and  covenants for THE Burning Tree subdivision  state that the lot owners have an easement to use the facilities in their own subdivision and of the Burning Tree Master Association, if they follow the rules and regulations. The rules and regulations of the Burning Tree Master Association are addressed in the Burning Tree Master Association  by-laws which state: ARTICLE VIII  POWERS AND DUTIES OF THE BOARD OF DIRECTORS 1.  The board of directors shall have power to: adopt and publish rules and regulations governing the use of the common area and facilities, and the personal conduct of the members) and their guests therein, and to establish penalties for the infraction thereof.

Neither Burning Tree South subdivision or Burning Tree subdivisions covenants were ever amended to include the Burning Tree Master Association.  This can be confirmed by calling Tulsa County records for your subdivision. Example: H (c) (d) (e) for Burning Tree South and in the covenants for THE Burning Tree subdivision (referred to incorrectly by some, as “Burning Tree One”) : H (a) (b) (c)   Thus, Burning Tree Master Association board of directors have no right to assess lot owners who happen to live in the areas of Burning Tree South and Burning Tree subdivisions. The covenants all state that while lot owners have an easement to use the facilities. (An easement is a right to do something, not an obligation!   Burning Tree Master Association by-laws state in ARTICLE IV PROPERTY RIGHTS that Burning Tree Master Association has the right to charge a reasonable admission to those who use the facilities. It also states in the Burning Tree Master Association bylaws Article VIII under POWERS AND DUTIES OF THE BOARD OF DIRECTORS (b)  determine a reasonable admission fee or charge for the use of recreational facilities, yet the other board members would not even entertain this, choosing instead to violate the Articles of Incorporation and assess lot owners who are NOT even members!

*Click to read what the covenants for PLAT 3639 Burning Tree South Certificate of Dedication and Plat 3468 Burning Tree Certificate of Dedication  –the subdivision that is incorrectly referred to as “Burning Tree One”– state must be done in order to amend covenants.  (For some reason the Burning Tree Master Association thinks that the Burning Tree Certification of Dedication applies to all of the lots in the area whose subdivision begins with the words Burning Tree, when it clearly could not.) They ignore the plats (maps)  on those links above for Burning Tree and Burning Tree South or they could see that they are different and do not overlap.  They have different covenants as Burning Tree South does not allow any apartments or duplexes.

While it is important to remember that the Articles of Incorporation trump By-laws (in other words By-laws  CANNOT conflict with the Articles of Incorporation) it is more important to understand that what is in the covenants is what lot owners (and/or homeowners) accepted when purchasing the property and that covenants trump all Articles of Incorporation. (Thank you to Joe Hirsch for pointing this out.)

There has never been a merger of Burning Tree Master Association with any of the corporations formed for the area owners associations, according to  long time resident Janie Lyon  who  posted that  there was no merger and so did former Burning Tree Master Association President Wendy Berezowski, who has been President of the Burning Tree Master Association more than once.  Oklahoma General Corporation Act    § 1081. Merger or Consolidation of Domestic Corporations has specific requirements to merger or consolidate corporations. Nothing has been found that ties the Burning Tree subdivision or Burning Tree South subdivision to Burning Tree Master Association.

Yet, for some reason the Burning Tree Master Association board of directors refuse to acknowledge this, and actually sent out an assessment letter demanding payment of assessments, under threat of lien, like it was mandatory to lot owners! They have excluded certain lot owners in the Burning Tree West, Burning Tree East and Burning Tree subdivision (owners of duplexes and apartments) and do not allow them to take advantage of the lawful easement the lot owner was given by covenant. (Yet,  they think that the Burning Tree Certificate of Dedication belongs to them and they have the authority to against every lot owner.)

The Burning Tree Master Association Board of Directors needs to read the Burning Tree Certificate of Dedication. If they truly believe Burning Tree Certificate of Dedication. is for any lot located in a subdivision with the words Burning Tree it would mean that current and former board directors Joe Hirsch, Wanda Downen, Carol Anderson, Dennis Phillips, Mike Perry, Penny Wilkinson, Sandy Forrest and Julie Lindquist are members of the same association ( Burning Tree Area #2 Association, Inc)  with Coventry Park Apartments….in addition to their own owners association!  (This can be confirmed by reading the Burning Tree Certificate of Dedication to see what lots and blocks are designated as duplex lots and check the Tulsa County assessors site to see what their lot and block is.)

By following the covenants of the various associations the Burning Tree Master Association board of directors would be forced to allow into the facilities those in the apartments and duplexes who (according to

The Certificate of Dedication for each subdivision contains the covenants and is a legally binding document. Within that document it states that lot owners have a lawful easement to use the facilities by paying the admission fee that the Burning Tree Master Association by-laws allow to be charged.It does NOT state that to use the facilities they must also pay assessments.

The BTMA picks and chooses whom to scare with unlawful threats of liens that violate their own Articles of Incorporation. (They choose not to allow in the duplexes and apartment dwellers that have a lawful easement  yet they go after lot owners in the subdivisions of Burning Tree (what they call Burning Tree One) and Burning Tree South who are not and cannot be members of the Burning Tree Master Association. (They are not according to the covenants and cannot be according to the BTMA Articles of Incorporation as the member there is the owners association, not the lot owner.

The President of Kingsridge Estates subdivision sent Burning Tree Master Association an e-mail questioning why Burning Tree Master Association was mowing their property last year.  (Yes, paid for with money demanded and taken by threats from lot owners whose HOAs were not even part of the Burning Tree Master Association!)

Prior to my resignation and in early 2012 we, the Burning Tree Master Association board members were provided with papers that stated there had never been a proper vote of the members to amend the Burning Tree Master Association bylaws to allow for a simple CPA  review instead of the required CPA audit. What we were given showed the board of directors, not the members (As they have determined the members are) took a vote in 11/2/1982. While it was never approved by members Wendy Berezowski who was President of the Burning Tree Master Association in 2010-2011 shows she attested to it although she did not even live here in 1982.  (O. Roger Spencer an incorporator of Burning Tree Area #4 Association, Inc testified under oath in District Court in Tulsa County Nov 11, 1983 that he was not aware that BTMA bylaws had ever been changed since incorporated, but Wendy who did not even live here then attested to the fact that it was?) The Burning Tree Master Association board of directors had chosen to call all lot owners  “members” when they demand money (Even though it violates the Burning Tree Master Association articles of incorporation) but when it comes time to vote for something that affects the lot owners they claim it is the area associations representatives (the directors) who are the members and who can vote.

The Burning Tree Master Association board of directors consider the pool area their own personal“vacation spot”. They expect those, who neither have the ability or desire to use the pool, to subsidize their pleasure.

Every decision the Burning Tree Master Association board members make revolves around their personal playground, the pool, and their fun. A farmers market was once suggested for  here in the area for the benefit of all residents, including Kingsridge but no, that would interfere with parking for those who use the pool.

The aging pool and two tennis courts (one is in a sad state of disrepair), plus a run down basketball court  are the only recreational facilities the neighborhood has to offer. Newer housing developments have opted for splash pads, putting greens, walking trails and even community garden plots. As time passed, did the board continue to improve these facilities? Oh, absolutely! They bought a $14,000+ pool slide using money they demanded from lot owners, under threat  for the few who go to the pool and their guests! But they claim they do not have the money to make it handicapped accessible so everyone who has an easement could enjoy it.

No clubhouse for residents to enjoy year round and once the pool season is over, you can forget about having a picnic at the pavilion on a cool autumn day. It is locked up tight as a drum, and you must get permission from the Burning Tree Master Association for any reason to be on those grounds.

And now that many residents are wising up  the Burning Tree Master Association board of directors is in full panic mode spending money, yes, your money they obtained by demanding it from you under threat of liens, on attorneys to spin an untenable and impossible situation. Rather than treat the pool as a business and use good business sense,  Burning Tree Master Association board of directors squandered over the years thousands of dollars. Did they not realize that there would be a time that someone would be able to get access to and read the legal documents and say “enough!”?

When it came time to discuss the American Disabilities Act (ADA) to make the pool facility handicap assessable, the board of directors totally ignored Wanda Downen and me, and many others,  when we tried to tell them that the mandate includes access to the pool grounds and facility, as well as the pool lift. We pointed out that a handicapped person could not even get to the pool, let alone use a lift.

The ADA Mandate must be complied with by March 15, 2012, except the lift requirement which was given a sixty day extension. As usual we were ignored. And guess what, Burning Tree Master Association board of directors did nothing that is required by the American Disabilities Act. Now, several complaints have been sent to the Department of Justice along with pictures, video, and Burning Tree Master Association’s financial report showing they have the funds to do many of the alterations to allow people to get to the facility.

Attorneys  Thomas Affeldt and Scott Byrd (with different law firms) hired by some  Burning Tree South lot owners to study the documents have advised the Burning Tree Master Association board of directors, that putting a lien on the property of a homeowner may constitute “Slander of Title” by the board members who  can be held personally liable. That is not good because Burning Tree Master Association Bylaws ARTICLE VII Meetings of Directors 3. Every act or decision done or made by a majority of the directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the board.  (UPDATE: Their January 2013 minutes state that they are hiring Marshall Dyer to file liens. )

Further, the covenants of every area state: If the parties hereto or any of them or their heirs or assigns, shall violate or attempt to violate any of the covenants herein, it shall be lawful for any other person or person owning any real property situated in said development or subdivision to prosecute any proceedings at law or in equity against the person or persons violation or attempting to violate any such covenants and either prevent him or them from so doing or secure damages or other dues for such violations.

Demanding payment, like it is mandatory, is in my opinion deceitful and shows an extreme lack of integrity. I could no longer serve on a board that willingly chose to deceive the residents of the Burning Tree area.

In His Love,

Claudia Nelson

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IMPORTANT READING

• Burning Tree Master Association Articles of Incorporation
• Quick overview of the Burning Tree Master Association bylaws conflicts