NEWSLETTER TAPED TO YOUR DOOR?…THE REST OF THE STORY

NEWSLETTER FOUND TAPED TO YOUR DOOR ON THURSDAY MAY 24, 2011.

PLEASE DO NOT BE CONFUSED BY THE THREE GUYS CLAIMING IN THAT NEWSLETTER TO BE  “BURNING TREE SOUTH AREA NEIGHBORHOOD DIRECTORS”.  IN REALITY THEY ARE ACTUALLY WITH BURNING TREE MASTER ASSOCIATION!

WE HAVE RECEIVED NUMEROUS REPORTS THAT THEY HAVE BEEN SHOWING UP ON THE PORCH OF HOMEOWNERS CLAIMING THE SAME THING!  THEY ARE NOT, NOR HAVE THEY EVER BEEN DIRECTORS FOR BURNING TREE AREA #4  (Burning Tree South subdivision)! 
                                                                                              

Those three are not working in the best interest of homeowners living in Burning Tree Area #4 (Burning Tree South subdivision). They are working for Burning Tree Master Association,  in direct conflict of Burning Tree Area #4 (Burning Tree South). Their loyalties lie with Burning Tree Master Association. This has caused much confusion and has upset many homeowners by the three representing themselves as “BURNING TREE SOUTH AREA NEIGHBORHOOD DIRECTORS”.

If you need answers about the Burning Tree South subdivision PLEASE be sure to contact someone who is truly a director on the Burning Tree Area #4 board (Burning Tree South Subdivision.)

The residents of Burning Tree are entitled to hear the rest of the story. You need to hear about what the Burning Tree Neighborhood newsletter did not tell you. While the newsletter stuck on your door may sound all “warm and sunshiny”; trying to indicate that all is well with the pool and the ADA, nothing could be further from the truth. The rest of the story is not a pretty picture.

BURNING TREE MASTER ASSOCIATION BOARD IGNORES ADA REQUIREMENTS FROM THE DEPARTMENT OF JUSTICE FEDERAL MANDATE

The Burning Tree Master Association board of directors has only worried about the pool lift and has completely ignored the remainder of the federal requirements. Over the years the residents of Burning Tree have paid more than a million dollars in assessments. What do they have to show for your contributions? The monies collected were more than sufficient to already have met all federal obligations concerning the facilities. However, NONE of these requirements have been implemented. Ask yourself what all the money was spent for and why the Burning Tree Master Association board of directors has ignored using that money to meet ADA requirements.

FINES BY THE DEPARTMENT OF JUSTICE FOR  VIOLATING (BY IGNORING) THE FEDERAL MANDATE

The Americans with Disability Act (ADA) Standards established specific rules concerning accessibility for handicapped individuals to facilities and pools. The ADA Act went into effect on March 15, 2012; with the exception of ADA approved pool lifts installation. According to the Department of Justice, the pool lift is the ONLY requirement that received an extension. All other aspects of the ADA Standards Act must be in compliance by the March 15, 2012 deadline. Failure to follow this federal law can have serious consequences, up to and including a $55,000.00 fine for the first violation, and $110,000.00 for the second.

UNITED STATES DEPARTMENT OF JUSTICE HAS ASSURED HOMEOWNERS THE COMPLAINTS ARE BEING INVESTIGATED

Several complaints have been filed with the United States Department of Justice concerning Burning Tree Master Association facilities. We have been assured these complaints are currently being investigated by the Department of Justice and HUD.

IS HAVING A “PLAN IN PLACE”  PROTECTION AGAINST FINES?

The board of directors have stated that  all the Department of Justice requires of them is to have  “a plan in place”, so they don’t have to do anything now to make the facility accessible to those who are handicapped.  However,  the DOJ advised that any HOA using that as a defense must be able to “support the claim” that they don’t have the money to do the work.

In addition to the video, a few of the items listed on the complaints that the Department of Justice has received regarding Burning Tree Master Association total disregard for the  ADA Standards of Accessible Design, which were effective March 15, 2012 and which are required to be in place before the facilities was to open include: The ADA’s specific requirements regarding location of accessible handicapped parking spaces and their number,  how many of those must be van accessible, “level ground” for parking space and access aisle, parking space size for cars, access aisle and vans, “van accessible” and international symbol of accessibility  signs along with their placement and height, marking of the accessible route connecting each access aisle to accessible building entrances (Section 502.3)  firm, stable, slip-resistant surface for accessible route with no steps or steeply sloped surfaces and adjoining each access aisle serving accessible parking spaces, the minimum clearance at the parking space, the adjacent access aisle and along the vehicular route to the space and vehicular exit. There are also specific requirements for the size of the access aisle next to the van parking space to permit a person using a wheelchair or scooter to exit or enter a van with a side-mounted lift along with the allowable slope of walking surfaces,  compliance under 302 for floor and ground surfaces, Section 303.3- when changes in level (surfaces with slopes and to surfaces with abrupt rise requiring ramps, turning spaces, for wheelchairs and other mobility devices, to maneuver in order to use doors, fixtures, and telephones. Such changes in level are prohibited in required clear floor and ground spaces, turning spaces, and in similar spaces where people using wheelchairs and other mobility devices must park their mobility aids such as in wheelchair spaces, or maneuver to use elements such as at doors, fixtures, and telephones.  

Floor or Ground Surfaces floor or ground surfaces along accessible routes and in accessible rooms and spaces must be stable, firm, slip-resistant, and comply with  section 302  of the 2010 Standards.

Read it all HERE

1.  Accessibility to the recreational facility from the parking lot is almost impossible for a handicapped person trying to access it in a wheel chair. The parking lot is gravel, then you must first navigate a steep downhill pathway with no handrails to get to a concrete bridge built across a creek with no side safety rails, next the concrete pathway leading uphill to the recreational facility is steep and narrow, and then the gate cannot be opened by a handicapped person. 

2.  Burning Tree Master Association believes a handicapped person could drive their vehicle from the parking lot across the bridge and drive thru the double gates at the recreational facility, located to the left of the pedestrian gate. There is no room to park vehicles inside the fenced area of the recreational facility that is adequate for handicapped parking. Handicapped parking signs must follow the federal guidelines. There is no ramp leading to the pool area gate from here and the area is not paved.   This area does not meet Federal standards.

3.  Further, the concrete used to support the bridge, the ONLY entrance to the recreational facility, may not have the compressive strength and supports necessary for vehicle use on a regular basis. The bridge does not have side safety rails to keep a vehicle or a person from falling six to seven feet into the dirty creek below. There is not low voltage lighting on the bridge for after dark access. The culverts fill up with litter and stop the flow of the creek. The walk area from the bridge to the recreational facility is prone to flooding during heavy rains because of the lack of proper drainage. You sometimes have to wait for the water to subside, leaving no exit until it does.

4.  The parking lot is an open area; no parking spaces are marked and it is covered with gravel. There is no paving in the parking lot for the handicapped allowing them the ability to maneuver around without problems. There are two handicapped designated parking spaces for cars but no space for a van.  

Areas of Sport Activity

5.  There is not a handicap accessible route connecting the recreational facility and the basketball courts, just an uneven steep downhill grassy area which is the only means of access. To get to the gate for the tennis courts from the basketball courts you must climb a very steep grassy embankment and open a narrow gate. There is another gate to the tennis courts located inside the enclosed pool area behind the pool slide; you must navigate the pool slide supports to reach this gate. The narrow gates and lack of a ramp make it non handicap accessible.  

Drinking Fountain 

6.  There is not a drinking fountain for persons who use wheelchairs. The drinking fountains are attached to the wall. The 2010 Standards require drinking fountains mounted at a height for wheelchair users to provide clear floor space for a forward approach with knee and toe clearance.

Dining Surfaces 

7.  The eating area is not handicap accessible. There is a small concrete ramp too narrow to allow a wheelchair to enter the eating pavilion and there is a set of stairs. There is not sufficient knee and toe clearance for a wheelchair at the tables inside the eating area. Dining Surfaces Section 226.1 of the 2010 Standards require that where dining surfaces are provided for the consumption of food or drink, at least five percent (5%) of the seating spaces and standing spaces at the dining surfaces comply with section 902. Section 902.2 requires the provision of accessible knee and toe clearance.

Accessible Means of Entry to Wading Pool 

8.  The wading pool is enclosed by a fence,  the gate is not handicap accessible.

Detectable Warnings 

9.  There are no detectible warnings at transit platform edges which sound on contact from adjoining walking surfaces by a distinctively textured surface of truncated domes.  These help to assist someone with poor eyesight move around.    The 2010 Standards, sections 218, 810.5, 705.1, and 705.2  require detectable warnings at transit platform edges.

Handrails along Walkways  

10.  The cement pathway after the bridge leading to the recreational facility and the pool area is steep and narrow, approximately two and a half feet wide, and does not have handrails or adequate lighting. The slope, width, and pitch of the pathway are not correct for the handicapped. (2010 Standards: where handrails are provided along walkways that are not ramps, they shall comply with certain technical requirements.)

Toilet Facilities

11. ADA 2010 Standards requirements for Toilet Facilities include one hundred percent (100%) of multiple single-user toilet rooms clustered in a single location are required to be handicapped accessible, water closet location and rear grab bar, toilet paper dispensers location, size, delivery control and  continuous paper flow, lavatories installed adjacent to the water closet are prohibited from overlapping the clear floor space at water closets,  toilet room with in-swinging doors cannot swing into the clear floor space required at any fixture. Section 603.2.

Turning Space Section to be either a circular space or a T-shaped space. Section 304.3 permits turning space to include knee and toe clearance complying with section 306. See http://www.access-board.gov/ada-aba/html/tech-03.html

Lavatories and Sinks

12. The 2010 standards  technical requirements address clear floor space, height, faucets, and exposed pipes and surfaces. The clear floor space at sinks is required to be positioned for a forward approach and knee and toe clearance to be provided under the sink.

Dressing rooms

13.  Dressing rooms are required to comply with the accessibility requirements of sections 222 and 803 of the 2010 Standards. Where these types of rooms are provided in clusters, five percent (5%) but at least one room in each cluster must comply.

Service Counters

14. The 2010 Standards, at section 904.4, contain technical requirements for service counters (such as where one would check in).  The nondiscrimination requirements of the ADA regulations require the level of service provided at the accessible portion of any service counter to be the same as the level of service provided at the inaccessible portions of the counter.

Thresholds at Doorways.

15. 2010 Standards have requirements concerning the height of thresholds at all doorways that are part of an accessible route along with requirements for raised thresholds that exceed ¼ inch in height.

 IMPORTANT NOTE: These are the minimum requirements of the ADA. State and local government have the authority to adopt and enforce their own building codes, but must meet or exceed those contained in the ADA. 

The Civil Rights Division enforces civil rights laws in a wide variety of contexts. Submit a complaint or report of a potential civil rights violation.

You can file an Americans with Disabilities Act complaint alleging disability discrimination against a public accommodation (which Burning Tree Master Association is).

To file an ADA complaint regarding the above areas of non-compliance: fill out this ADA complaint form http://www.ada.gov/t2cmpfrm.htm , which can be used for any ADA complaint.  Then choose one of the following to get it to the Department of Justice:

• fax the form  to:  202 307-1198 or  202-307-1197
• e-mail to ada.complaint@usdoj.gov
• mail to:

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section, 1425 NYAV
Washington, D.C. 20530

(Mailing is VERY slow as it has to go through security checks.)

To learn more about filing an ADA complaint, visit www.ada.gov/fact_on_complaint.htm).

If you have questions about filing an ADA complaint, the DOJ provided these numbers to call:

• ADA Information Line: 800-514-0301 (voice) or 800-514-0383 (TTY).
• Civil Rights Division (202) 514-4609
• Main Section Telephone Number: 202-307-0663 (voice and TTY)

ADA Title VIII federal anti-discrimination laws not only protects those who have suffered discrimination, it also protects those who alert the DOJ to discrimination.

The DOJ does not tolerate any type of retaliation against those who report claims of unlawful discrimination or for assisting in the investigation of such a charge. Discrimination in all its forms is unacceptable.

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THREE OTHER AREAS THE BURNING TREE MASTER ASSOCIATION IS NON-COMPLIANT AND MAY RECEIVE FINES:

1.) ACCESSIBILITY TO THE INTERNET  Website is  non-compliant

The Americans with Disabilities Act (ADA) also covers accessibility to the Internet. Burning Tree Master Association  website burningtreetulsa.com excludes the blind and the deaf from full and equal access and participation in using the Internet 

The Americans with Disabilities Act (ADA) requires covered entities to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. See 28 C.F.R. 36.303; 28 C.F.R. 35.160.  The policy ruling states that ADA Titles II and III require  the business sector to provide effective communication whenever they communicate through the Internet. The effective communication rule applies to covered entities using the Internet for communications regarding their programs, goods or services since they must be prepared to offer those communications via an accessible medium.

Those who have a disability and attempt to access a Web site are entitled to equal access as are any other members of the public

Burning Tree Master Association offers Paypal on their site. How does a low vision person access it, so they are treated the same as anyone else?) People who are blind or deaf and others with different disabilities may also have a problem with accessing the information.

United States Department of Justice Policy Ruling, 9/9/96: ADA Accessibility Requirements Apply to Internet Web Pages 10 NDLR 240 In an opinion letter dated September 9, 1996, The U.S. Department of Justice stated that:     “Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.”

According to a 1996 settlement letter from The Office of Civil Rights of the United States Department of Education (OCR):     [T]he issue is not whether the [person] with the disability is merely provided access, but the issue is rather the extent to which the communication is actually as effective as that provided to others.

The Civil Rights Division enforces civil rights laws in a wide variety of contexts. Submit a complaint or report of a potential civil rights violation.

You can file an Americans with Disabilities Act complaint alleging disability discrimination against a public accommodation (which Burning Tree Master Association is).

To file an ADA complaint regarding the website: fill out this ADA complaint form http://www.ada.gov/t2cmpfrm.htm , which can be used for any ADA complaint.  Then choose one of the following to get it to the Department of Justice:

• fax the form  to:  202 307-1198 or  202-307-1197
• e-mail to ada.complaint@usdoj.gov
• mail to:

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section, 1425 NYAV
Washington, D.C. 20530

(Mailing is VERY slow as it has to go through security checks.)

To learn more about filing an ADA complaint, visit www.ada.gov/fact_on_complaint.htm).

If you have questions about filing an ADA complaint, the DOJ provided these numbers to call:

• ADA Information Line: 800-514-0301 (voice) or 800-514-0383 (TTY).
• Civil Rights Division (202) 514-4609
• Main Section Telephone Number: 202-307-0663 (voice and TTY)

ADA Title VIII federal anti-discrimination laws not only protects those who have suffered discrimination, it also protects those who alert the DOJ to discrimination.

The DOJ does not tolerate any type of retaliation against those who report claims of unlawful discrimination or for assisting in the investigation of such a charge. Discrimination in all its forms is unacceptable.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

2.)  The Virginia Graeme Baker Pool and Spa Safety Act which went into effect on Dec. 19, 2008 requiring federally approved covers, which are domed instead of flat, to prevent swimmers from being trapped under water by drain suction. These must be installed in the pool and wading pool. Also no preparations have been made by the BTMA to comply with the amendment to the Virginia Graeme Baker Pool and Spa Safety Act  which must be implemented by May 28, 2012.

This particular one falls under the Department of Justice ~ U.S. Consumer Product Safety Commission.

TO FILE A COMPLAINT WITH  the Department of Justice U.S. Consumer Product Safety Commission:

Use Contact Form  (or you may fill out this ADA complaint form http://www.ada.gov/t2cmpfrm.htm , which can be used for any ADA complaint.  Then choose one of these to get it to the Department of Justice:

or

Mail to:

U.S. Department of Justice
U.S. Consumer Product Safety Commission
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

(Mailing it takes much longer as it must go through security. It was suggested that complaints be e-mailed or faxed, allowing them to be investigated sooner.)

E-mails to the Department of Justice, including the Attorney General, may be sent to AskDOJ@usdoj.gov.

Toll-free Consumer Hotline:
Phone: (800) 638-2772 TTY (301) 595-7054
Hours: Mon.-Fri. 8 a.m. to 5:30 p.m.; messages can be left anytime.

Phone: (301) 504-7923 Hours: Mon.-Fri. 8 a.m. – 4:30 p.m. ET

Department of Justice Main Switchboard – 202-514-2000

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3.) UPDATE!!! We have just learned that the Burning Tree Master Association board of directors has also failed to comply with the ARCHITECTURAL BARRIERS ACT which has been around for years.PLEASE READ IT.

To report non-compliance for this one, simply, print out a complaint form to provide the necessary information then send the complaint by e-mail to the Board at enforce@access-board.gov.

Mail and Fax:

A complaint can be submitted by mail or fax.  You can print out a complaint form to provide the necessary information.  Then mail or fax it:

Compliance and Enforcement
U.S. Access Board
1331 F Street, N.W.
Suite 1000
Washington, DC 20004-1111
Fax: (202) 272-0081

More on how to file a complaint

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WORRIED ABOUT LIENS/ MUST READ

I’m sure you we have all received our annual demand for money and threat of lien notice from the Burning Tree Master Association.  You will have found enclosed three pages, if you have refused to pay their unlawful assessments. The first page is a NOTICE letter from the Burning Tree Master Association stating that in Sept. 2012 they placed a lien on your property for the assessment year 2012-2013.

This letter is not truthful. Let’s look at the facts as stated by the Tulsa County Clerk’s Office, Department of Land Records. There is not a lien on your property. What the Burning Tree Master Association has filed is a NOTICE OF ASSESSMENT LIEN in the amount of $250.00 for the assessment year 2012-2013. As you will read below there is a great deal of difference between a Notice of Lien and a Lien. A Notice of Lien merely stays with the property until it is sold. At that time most sellers will just pay it in order to complete their sale and do not present the facts that they do not owe this money. The Burning Tree Master Association has for years counted on this method and only on a rare occasion actually brought suit for a judgment against a homeowner. When they did bring suite for a judgment they spent over $11,000.00 to collect $11,000.00. Total wash out as far as monetary value to the Burning Tree Master Association coffers was concerned. Just a big show of authority. If these defendants had presented the actual facts they might have won their cases. Burning Tree Area #4 Association, Inc. DOES have the necessary documents to help any residents win their case if the Burning Tree Master Association again tries to take lot owners to court for non-payment of assessments. JUST GIVE US A CALL IF THIS HAPPENS.

The second page is a demand for money and threat of lien assessment notice of $250.00 for the assessment year 2013-2014. The third page is a copy of your Customer Ledger at the Burning Tree Master Association, Inc. This page states the amount of past dues you currently owe. It does appear that the Burning Tree Master Association has charged a late fee of $40.00 to each one not paying the unlawful dues.

According to the Burning Tree Master Association minutes they were given a presentation by Marshall Dyer, an attorney, about collection of past due accounts. They also state that they have hired an attorney to soon begin to collect delinquent accounts. Perhaps they hired this gentleman to whip us into shape. It may be hard to do when the legal documents are presented in court. It is my contention that this attorney does not know all the legal facts.

FACT: Before a lien could even be put on property Oklahoma law requires certain steps must be taken. The BURNING Tree Master Association, Inc. has not been doing this.

O.S. §, 12 706 Creation of Lien. A judgment shall be a lien on the real estate of the judgment debtor within a county only from and after a Statement of Judgement has been filed in the office of the county clerk in that county. The Burning Tree Master Association board of directors has skipped the steps that allow members “due process”. Burning Tree Master Association has simply slapped Notice of Assessment Liens on property!!  This action has deprived homeowners of their legal right to a hearing to defend themselves in court and never allowed a judge to look at the documents which very clearly show that homeowners are NOT the members! (See the links at the bottom to see much more about this subject.)

Read on to see why this action can have serious consequences for the Burning Tree Master Association board of directors who do so.

ATTORNEYS LETTERS SENT TO THE BURNING TREE MASTER ASSOCIATION (SUMMER 2011)

• First attorney’s letter to the then Burning Tree Master Association president advised that “unless the Master Association has authority to make such assessments against the lot owners in Burning Tree South, then, the filing of any lien for failure to pay the assessment would be unauthorized and unlawful.  Filing of an unauthorized lien for failure to pay dues would constitute slander of title. Both the Master Association and you could be liable for treble damages, court costs and attorney fees in such a situation. “(Note this letter was sent to the BTMA President and when it says “you” in that last sentence it was referring to her, not to the homeowners.)
• Second attorney’s letter stated: “Please provide the Burning Tree Master Association’s authority for filing liens against property located in the Burning Tree South Addition. If no authority exists, this letter is a demand that the Burning Tree Master Association cease and desist the filing of such liens and that it file releases of any such liens currently recorded. If the Burning Tree Master Association fails to comply with this demand, the affected lot owners may be forced to file a Quiet Title action to remove the cloud on their titles. In any such action, they would likely seek all available damages, including their attorney’s fees and court costs.“

TO DATE, BURNING TREE MASTER ASSOCIATION HAS FAILED TO PRODUCE ANY DOCUMENTS THAT SHOW THEY HAVE THIS AUTHORITY!  (The only two documents they have are the Articles of Incorporation and their By-Laws.  Should they go to court to attempt to put liens on homeowners their own  Articles of Incorporation state the members were to be the area associations, after the Declarant (61st and Memorial, Inc, which is now inactive) approved them. The Oklahoma Secretary of State does not show the associations were ever approved to be members.)

TAKE AWAY POINT
Oklahoma law provides that before any lien can be placed there are several important steps that the Burning Tree Master Association is required to do. This includes, but is not limited to, notification to “members” of any upcoming court date thus allowing “members” the right to defend them. (Besides “members” money may already be protected, from garnishment, under Federal and State laws.)

Depending on the outcome the Burning Tree Master Association could end up paying all court costs and attorneys fees, for each and every homeowner they attempt to lien.

GOOD NEWS FOR HOMEOWNERS: Should Burning Tree Master Association go ahead and put liens on without any authorization, attorneys have stated that in addition to Burning Tree Master Association being held liable board members could be also!!   And remember they said the Burning Tree Master Association board could be liable for treble damages, court costs and attorney fees in such a situation. “might be paid to the homeowner they have done this to.

HERE ARE THE STATUTES THE ATTORNEYS WERE REFERRING TO:

Oklahoma Statutes  Title 21. Crimes and Punishments

§ 1836.1. Execution of Deed to Remove Cloud  Any person, firm, or officer, representative, or agent of any firm or corporation, who has at any time violated the provisions of the above section shall, upon the written request of any person who has and holds any right, title, or interest in such real estate, immediately execute and deliver such deed or conveyance as may be requisite to remove from the record the cloud on the right, title, and interest of such owner to the title and possession of said real estate.

§ 1836.2. Failure to Comply With Demand – Damages  Any person, firm, or officer, representative, or agent of any firm or corporation, together with such firm or corporation, failing to comply with such demand to remove the said cloud upon the right to title and possession, shall be deemed to be guilty of a tort, and shall be held to respond in damages to the owner of any right, title, interest or right to possession of the real estate involved in a suit to quiet the title to said real estate in the amount of the cost, reasonable attorney’s fees, and other damage suffered on account of the said tort.

• www.hoatalk.com on Liens Scroll down to the Oklahoma post.
• Homeowner Association Law in Oklahoma 
• burningtreetulsa 
• assessment-liens-in-Oklahoma

 

By-Laws for Burning Tree Area #4

To all homeowners in Burning Tree Area #4 Association, Inc.                        11-15-11

The board of directors of Burning Tree Area #4 Association, Inc. has just completed writing by-laws for the Association. Burning Tree Area #4 Association, Inc. did not have a set of by-laws to help administer the business of the Association. These by-laws were carefully written and reviewed by all members of the board of directors keeping in mind the Corporation Laws of the State of Oklahoma and the Covenants and Articles of Incorporation of Burning Tree Area #4 Association, Inc.

Several points of interest include:

1. The use of electronic communications for voting and notification of meetings as permitted in Oklahoma State statutes. The cost savings will be significant if we do not need to mail as many notices. We realize some members do not have computers, and of course these members will continue to receive their notices by mail.

2. Requiring a vote of all members to increase the amount of the annual assessment. *As a note, the current board of directors is recommending an assessment of zero ($0) dollars for 2012 which must be agreed to by a vote of the members. You will receive your ballot in the mail soon, with the annual meeting notice.

3. There are no special assessments mentioned in the by-laws.

4. The by-laws were aligned with the covenants which specifically state what the annual assessment can be used for. An annual assessment if voted by two-thirds (2/3) of the members can be used only for (as the Covenants have always stated) the actual cost of upkeep, repairs, and maintenance of recreational facilities located in said subdivision . However, Burning Tree Area #4 Association, Inc. does not own common areas, or have any common facilities.

The IRS, in numerous conversations, advised that any assessments collected by Burning Tree Area #4 Association, Inc. will be subject to federal and state taxes. Additionally, if assessments are collected, there would also need to be a bookkeeper, an auditor hired each year, a treasurer, a checking account, and several other things that have not yet been considered.

Below is a portion of the Covenants as found in the Certificate of Dedication, filed in 1976, with the Tulsa County Clerk:

c) Membership in Home Owners Association.

Each and every lot owner shall have an easement (limited right to make use of a property owned by another) to use the facilities of the Association (according to the attorneys anytime the word Association is mentioned without the specific name of the Association before it, it is the Association the document is written about, in this case Burning Tree Area #4 Association) of which said lot owner is a member, and of the Burning Tree Master Association, subject however, to the rules and regulations thereof. Membership in the Association (Burning Tree Area #4 Association)shall be subject to assessments for the actual cost of maintenance, repair and upkeep shall be a lien upon any lot of any owner in said subdivision, (Burning Tree Area #4) and shall be subject to enforcement as provided in the By-Laws of the Association. (Burning Tree Area #4 Association)

(d) The owner of any lot, by acceptance of a deed therefore, shall be deemed to have accepted membership in the Burning Tree Area #4 Association, Inc. agreed to abide by the rules and regulations of the Association (Burning Tree Area #4 Association) concerning the use of the facilities, open spaces and recreation areas; and agreed to pay assessments made for the maintenance, repair and upkeep of the common areas of the Association. (Did you notice that it does NOT state that Burning Tree South lot owners  are members of Burning Tree Master Association? No, just Burning Tree Area #4 Association, Inc.)

(Again, please remember that Burning Tree  Area #4 Association has no common areas for which they can assess and that is why Burning Tree #4 never has!)

It is the desire of the board of directors of Burning Tree Area #4 Association, Inc. to provide you with the information you may need to help understand the by-laws attached to this letter. Please read the by-laws carefully.

 

 

Without further ado………

BY-LAWS OF BURNING TREE AREA #4 ASSOCIATION, INC.

ARTICLE I
NAME AND LOCATION

The name of the corporation is BURNING TREE AREA #4 ASSOCIATION, INC. referred to in these By-Laws as the Association.  The principal office of the corporation shall be located within Burning Tree Area #4, at the Secretary of the Board’s Residence for the term of their office. The meetings of the members and board of directors shall be held at such places within the State of Oklahoma, County of Tulsa, as may be designated by the board of directors.

ARTICLE II
DEFINITIONS

1.  “Association” shall mean and refer to Burning Tree Area #4 Association, Inc., its successors and assigns.
a. For general use the term “Burning Tree South Neighbors” can be used as an acceptable but not legal title for signage, newsletters, correspondence, etc.b. Any reference on the plat or City of Tulsa, or State of Oklahoma documents that say Burning Tree South or Burning Tree South Addition may refer to the legal name of Burning Tree Area #4 Association, Inc.

2.  “Articles” shall mean and refer to the Articles of Incorporation of the corporation.

3.  “Properties” shall mean and refer to the following described real property situated in Tulsa County, State of Oklahoma. All of Blocks One (1), Two (2), Three (3) Four (4), Five (5), and Six (6), except Lt19, Blk4 and Lt1, Blk1 of BURNING TREE SOUTH ADDITION, an Addition to the City of Tulsa, Tulsa County, State of Oklahoma, according to the recorded plat thereof.

4.   “Declaration” shall mean and refer to the certificate or certificates of dedication applicable to the properties recorded in the Office of the County Clerk of Tulsa County, Oklahoma.

5.  “Lot” shall mean and refer to any separately numbered plot of land shown upon any recorded subdivision plat of the properties

6.   “Living Unit” shall mean and refer to any portion of a single-family structure situated on the properties designed and intended for the use and occupancy as a residence by a single family.

7. Members” shall mean and refer to those persons or entities entitled to hold membership in the Association as set forth in the Articles of Incorporation.

8. “Owner” shall mean and refer to the record owner, whether one or more persons or entities of a fee simple title or notarized contract for deed to any lot or living unit situated upon the property and which is subject by covenants of record to assessment by Burning Tree Area #4 Association, Inc. including contract sellers but excluding those having such interest merely as security for the performance of an obligation.

ARTICLE III
MEMBERSHIP

Every owner of a lot described in paragraph 3 of Article II shall be a member of the Burning Tree Area #4 Association, Inc.

ARTICLE IV
MEETINGS OF MEMBERS

1.  The annual meeting of the members shall be held on the FIRST Thursday of November at 7:00 p.m. If the day for the annual meeting of the members is a legal holiday, then the meeting will be held at the same hour on the first day following which is not a legal holiday.  The board of directors, by resolution, shall fix (confirm) a date for the meeting no more than thirty (30) days before or after that date.

2.  Special meetings of the members may be called by the president or by one-half (1/2) of the members of the board of directors. A special meeting shall be called upon written request of one-third (1/3) of the members who are entitled to vote.

3. Whenever members are required or permitted to take any action at a meeting, notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, absentee ballot if allowed, the means of remote communication, if any, by which members, or proxy holders may be deemed to be present in person and vote at the meetings, and in the case of a special meeting, the purpose for which the meeting is called. The written notice of any meeting shall be given not less than ten (10) or more than sixty (60) days before the date of the meeting to each member entitled to vote at such meeting. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the member at his address as it appears on the records of the corporation. The secretary or person authorized to call the meeting shall be responsible for the notice. Any notice to the members given by the corporation under any provision of the By-Laws or the Certificate of Incorporation shall be effective if given by a form of electronic transmission consented to by the member to whom the notice is given. The consent shall be revocable by the member within three (3) days after transmission by written notice to the corporation. The board of directors may determine that the meeting shall not be held at any place, but instead be held solely by means of remote communications.

4.  An affidavit of the secretary that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein. Electronic transmission means any form of communication, not directly involving the physical transmission of paper.

5.  The presence at the meeting of members entitled to vote or of proxies entitled to vote of one-half (1/2) of all the membership entitled to vote, including proxies shall constitute a quorum for any action except as otherwise provided in these By-Laws, the Declaration, or the Articles. Each member is entitled to one vote per lot. If such quorum shall not be present or represented at any meeting, the members entitled to vote thereat shall have the power to adjourn the meeting until a quorum shall be present or represented. The meeting may be adjourned to a date not less than forty-eight (48) hours, no more than thirty (30) days after the original meeting. When a meeting is adjourned to another time or place notice need not be given of the adjourned meeting if the time and place of the meeting are announced at the meeting at which the adjournment is taken. At such reconvened meeting, the presence of members entitled to cast at least twenty-five percent (25%) of all the votes in person or by proxy shall constitute a quorum.  A meeting may only be reconvened once. Thereafter, a new meeting must be called and the original quorum requirements shall be applicable.

6.  At all meetings of members, where members are required to take any action, each member may vote in person or by proxy. All proxies shall be in writing and filed with the secretary prior to the beginning of any meeting where the proxy is to be exercised. Every proxy shall be revocable unless otherwise noted. Proxies shall specify definite voting choices.

7.  Wherever the Articles require the assent of the members, the assent shall be obtained at a meeting called for the purpose, pursuant to the notice, quorum and adjournment requirements applicable. In the event that a quorum is present but the required majority of members are not present in person or by proxy, the members not present may thereafter give their written assent to the action taken.

ARTICLE V
BOARD OF DIRECTORS

1.  The affairs of the Association shall be managed by a board of directors who must be members of the corporation. The number of directors shall be between three (3) and forty-one (41) and will be determined by the members present at the each annual meeting. All members of the board of directors of Burning Tree Area #4 Association, Inc. shall disclose any potential conflict of interest. If it is decided by the remaining board members that there may be any impropriety or breach of the established fiduciary trust of the board, that board member can be recused.

2.  All elections of directors shall be by written ballot.

3.  The board of directors may designate one or more committees consisting of one or more of the directors of the corporation. The President of the Board of Directors is an ex-officio member of all committees, except for the nominating committee.

(a) A nominating committee, for election of the board of directors, shall be appointed by the board of directors at least 45 days before the election, to recommend candidates who have a working knowledge of the documents that govern the Association and are willing to serve on the board for the coming year.

(b) A financial audit committee, consisting of one Board member and two lot owners shall be appointed by the Board of Directors to oversee the management of funds, to provide accountability of any financial transactions, It shall their duty to audit the Treasurers accounts at the close of the fiscal year and prepare a written report to be presented at the following March meeting.

4. Directors shall serve for a term of one (1) year.  Any or all members of the board may be removed from office with or without cause by a majority vote of all the members of the corporation.  In the event of death, resignation or removal of a director, their successor shall be selected by the remaining members of the board, elected at the next meeting of the board and shall serve the unexpired term of the predecessor.

5. No director shall receive compensation for any service he may render to the corporation; however, any director may be reimbursed for his actual expenses incurred in the performance of his duties.

ARTICLE VI
MEETINGS OF DIRECTORS

1.  Regular meetings of the board shall be held monthly at a stated time and place as determined by the board of directors.

2.  Special meetings of the board shall be held when called by the president of the corporation, or by a majority of the directors, after not less than three (3) days’ notice to each director.

3.  A majority of the directors shall constitute a quorum for the transaction of business.  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. Members of the board of directors or any committee designated by the board may participate in a meeting of the board or committee by means of conference telephone or other means of which all persons participating in the meeting can hear or otherwise communicate with each other.

4. Any action required or permitted to be taken at any meeting of the board of directors may be taken without a meeting if all members of the board or committee as the case may be, consent thereto in writing or by electronic transmission, and the writing or electronic transmission are filed with the minutes. Any action so approved shall have the same effect as though taken at a meeting of the directors.

5. All board meetings are open to the membership.

6. All votes shall be recorded by name.

ARTICLE VII
POWERS AND DUTIES OF THE BOARD OF DIRECTORS

1.  The board of directors shall have power to:

(a) Exercise for the Association all powers, duties and authority vested in or delegated to this Association and not reserved to the membership by other provisions of these By-laws, the Articles of Incorporation, or the Declaration;

(b) declare the office of a member of the board of directors to be vacant in the event such member shall be absent from three (3) consecutive regular meetings of the board of directors; and

(c) employ a manager, an independent contractor and such other employees as they deem necessary, and to prescribe their duties and compensation.

(d) administer any contract, which could extend beyond one year or is valued at more than $1,000 that is approved by a resolution of the membership at an annual or special meeting. If approval is sought at a special meeting, it must be announced on the agenda in advance.

2.  It shall be the duty of the board of directors to:

(a) cause to be kept a complete record of all its acts and corporate affairs and to present a statement thereof to the members at the annual meeting of the members or at any special meeting when such statement is requested in writing by one-fourth (1/4) of the members who are entitled to vote;

(b) supervise all officers, agents and employees of this Association, and to see that their duties are properly performed;

(c) as more fully provided herein, and in the Declaration,

1. fix (confirm) the amount of assessment against each lot at least thirty (30) days in advance of each assessment, as hereinafter provided, in Article X.

2.  send written notice or electronic transmission of each assessment to every owner subject thereto at least thirty (30) days in advance of any assessment.

(d) cause all officers or employees having financial responsibilities to be bonded, as it may deem appropriate

ARTICLE VIII
OFFICERS AND THEIR DUTIES

1.  The officers of this Association shall be a president, a vice president, a secretary, and/or a treasurer, who shall at all times be members of the board of directors, and such other officers or committees as the board may from time to time by resolution create.

2.The election of officers shall be voted on by the board of directors, no later than the next Board meeting where the transfer of office will be performed.

3.  The officers of this Association shall be elected annually by the board and each shall hold office for one (1) year unless he or she shall sooner resign, or shall be removed, or otherwise disqualified to serve.

4.  The board may elect such other officers as the affairs of the Association may require, each of whom shall hold office for the remainder of that Board’s term, have such authority, and perform such duties as the board may from time to time determine.

5. Any officer may be removed from office with or without cause by a majority vote of the board. Any officer may resign at any time by giving written notice to the board, the president or the secretary. Such resignation shall take effect on the date of receipt of such notice or at any later time specified therein, the acceptance of such resignation shall not be necessary to make it effective

6.  A vacancy in any office may be filled in the manner prescribed for regular election.  The officer elected to such vacancy shall serve for the remainder of the term of the office they replaced.

7.  The offices of secretary and treasurer may be held by the same person. No person shall simultaneously hold more than one of any of the other offices except in the case of special offices created pursuant to Section 4 of this Article.

8.  The duties of the officers are as follows:

President

(a) The president shall preside at all meetings of the board of directors; shall see that orders and resolutions of the board are carried out; and shall sign all leases, mortgages, deeds, and other written instruments as directed by the board of directors. The President of the Board of Directors is an ex-officio member of all committees, except for the nominating committee.

Vice President

(b) The vice president shall act in the place of the president in the event of their absence, inability or refusal to act and shall exercise and discharge such other duties as may be required by the board.

Secretary

(c) The secretary shall record the votes and keep the minutes of all the meetings and proceedings of the board and of the members; keep the corporate seal of the Association and affix it on all papers requiring said seal; serve notice of meetings of the board and of the members; keep appropriate current records showing the name and address of the members of the Association together with the number of votes to which each member is entitled, and shall perform such other duties as required by the board. The Secretary shall sign all checks and promissory notes of the Association, along with the Treasurer of the Association as co-signor.

Treasurer

(d) The treasurer shall receive and deposit in appropriate bank accounts all monies of the Association and shall disburse such funds as directed by resolution of the board of directors; shall sign all checks and promissory notes of the Association, along with the Secretary of the Association as co-signor. The Treasurer shall keep proper books of account; cause a monthly cash flow statement, prepare an annual budget, and cause and insure an annual corporate federal, state local income tax return to be filed as prescribed by law.  It shall be the responsibility of the Treasurer to give a summary report of financial condition at the annual meeting along with each monthly meeting.

(e) The alternative signor of drafts shall be the Vice-President in the case of the Secretary and Treasure being the same person, or if either Secretary of Treasurer is not available to sign.

ARTICLE IX
BOOKS AND RECORDS

1.  The books, records and papers of the corporation shall at all times during reasonable business hours, be subject to inspection by any member within five days after written request by certified mail is received. The Declaration, the Articles and these By-Laws shall be available for inspection by any member at the principal office of the corporation, where copies may be purchased at reasonable cost.

2.  There shall be a cash flow statement and an annual statement of financial condition detailing all expenditures matched to the meeting notes, at the end of each fiscal year, by the financial audit committee and a copy thereof shall be available to each member after the following March meeting.

3. Financial books and records of the corporation shall be maintained by the Treasurer for a period of not less than 7 years. Other books and records shall be maintained by the Secretary.

4. An annual audit of the books and records of the corporation by an independent public accountant can be conducted upon a vote of two-thirds (2/3) of the members.

5. The fiscal year of the corporation shall be the calendar year.

ARTICLE X
ASSESSMENTS

1.  Burning Tree Area #4 Association, Inc. has the right, but not the obligation, to collect annual assessments.

Any assessment collected shall be exclusively for the actual cost of maintenance, repair and upkeep of the common areas of Burning Tree Area #4 Association, Inc.

And pay all expenses in connection therewith and all office and other expenses incident to the conduct of that business, including all licenses, taxes, or governmental charges levied against the properties of Burning Tree Area #4 Association, Inc.

And for the purpose of promoting recreation, health, safety and welfare of the residents within the described properties mentioned in Article II.

If anyone shall violate or attempt to violate any of the covenants, 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 inequity against the person or persons’ violation or attempting to violate any such covenants and either prevent them from so doing or secure damages or other dues for such violation.

2. The Board of Directors of Burning Tree Area #4 Association, Inc shall recommend to the members the amount of the annual assessment against each lot or living unit at least thirty days in advance of each annual assessment period. Written or electronic transmission notice of the annual assessment shall be sent to every owner subject thereto. The due dates of the assessment shall be the calendar year January 1^st thru to December 31^st. Assessments will be voted on by the membership at the Annual Meeting. Assessments are due March 1st of each year and past due thereafter.

3.  The maximum annual assessment may be increased above that previously established by a vote of the members for the next succeeding two years and at the end of each such period of two years, for each succeeding period of two years; provided that any such assessment shall have the assent of the members entitled to cast two-thirds (2/3) of the votes eligible to be cast by members at a meeting duly called for this purpose. Written or electronic transmission notice of said meeting setting forth the purpose thereof shall be sent or delivered to all members not less than thirty (30) days in advance of the meeting. In the event at any such meeting there are not sufficient members present in person or by proxy to cast two-thirds of those votes eligible to be cast by the members but there are sufficient members present said votes but such members fail to assent to such increased assessments by the vote required thereof. Members not so present or submitted proxy at such meeting may within 30 days thereafter get the written assent to such assessments, and upon delivery of such written assent to the Secretary of the Association within such time.  The votes of such members not so present at such meeting shall be deemed votes cast at such meeting in favor of such assessment,

4. The Association shall upon demand at any time furnish a certificate in writing signed by an officer of the Association setting forth whether the assessments on a specified lot or living unit have been paid. A reasonable charge may be made by the board for the issuance of these certificates. Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid.

5. Any assessments which are not paid when past due shall be delinquent and may be collected by any lawful means. Members who have not paid their assessment will not be eligible to vote.

6.  The following property subject to this Declaration shall be exempt from the assessments created herein: (a) all properties dedicated to and accepted by a local public authority or conveyed to a public utility; (b) the common area; and (c) all properties owned by a charitable or nonprofit organization exempt from taxation by the laws of the State of Oklahoma, as long as such property is not used for residential purposes.

ARTICLE XI
CORPORATE SEAL

The corporation shall have a seal in circular form having within its circumference the words:  BURNING TREE AREA #4 ASSOCIATION, INC.

ARTICLE XII
AMENDMENTS

These By-Laws may be amended, at a regular or special meeting of the members, by a vote of a two thirds (2/3) majority, of the eligible members present in person or by proxy.

ARTICLE XIV
MERGERS AND CONSOLIDATIONS

Burning Tree Area #4 Association, Inc participation in mergers or consolidations with other non-profits or corporations organized for the same purpose, or acquisition by gift, purchase or otherwise of real estate, land, or personal property shall require the assent of two-thirds of members eligible to vote either in person or by proxy at a special meeting called for that purpose. Notice shall be delivered by mail or electronic transmission to all members at least 30 days in advance of the special meeting stating the purpose, date place of time of the meeting.

Adopted this 3rd day of November, 2011.

(Corporate seal)                                          BURNING TREE Area # 4 ASSOCIATION, INC.

ATTEST:

( signed by Gail Hauke)                                                      By: ( signed by Joseph Nappo)

Secretary                                                                              President

 

A “MANUAL” IS A MUST FOR RUNNING A HOA

A “Board Manual” is something every HOA MUST have. It is the critical information that must be available for easy and quick access in order to respond to questions and emergencies. Every director should have a copy that they pass on to the next board of directors.

Up-to-date information should be organized by subject in a three ring binder or portable computer file so updates can be easily made. Provide a full copy to each board member. With this information readily available, most questions and crises can be addressed without scrambling.

Some of the essential components:
•   Governing Documents (Declaration, Bylaws, Articles of Incorporation)
•   Rules & Regulations
• State statutes and federal laws that apply
•   Current Operating Budget & Reserve Study
•   Insurance Coverage Recap & Agent Contact Information
•   Management Planning Calendar
•   Maintenance & Insurance Areas of Responsibility
•   Current Financial Report
•   Meeting Minutes (last 12 months)
•   Newsletters, if available. (last 12 months)
•   List of board members and contact information
•   Management key contact, phone #s, email address
•   Utility companies (trash, water, power, gas, cable, telephone) contact information
•   List of preferred vendors and contact information
•   Site map showing streets, buildings, homes, utility meters, fire extinguishers,
underground plumbing, equipment, etc.
•   Security Information (keys, passwords, etc.)
•   Tool and Equipment Inventory
•   Equipment Information (elevator equipment, parking garage door, pool equipment,
etc.)

….borrowed from THE BUSINESS OF HOAs

 

RESPONSIBILITY OF DIRECTORS

RESPONSIBILITY OF DIRECTORS

Being a member of an HOA board is a major responsibility. You are to be the eyes and ears of the residents, and the decisions that you and your fellow board members make have an impact on everyone in the community. It is of utmost importance that you get your “feet on the street” and visit with neighbors. You must understand from the beginning that how you vote is to represent your constituents and not simply yourself.

There should always be a nominating committee for director candidates. This helps keep out “permanent” board members and cliques putting in those who vote their own agenda. Questions that should be asked of candidates in regards to their qualifications for the responsibility need include business background, involvement in the community, volunteer work, public relations connections, if they actually live in the neighborhood, have they read and feel that they understand all the governing documents and more.   For more ideas: nominating committee survey 

Ringing of phones, the kids’ making noise and barking dogs make it quite impossible to focus. Consider meeting in a community room. Libraries are a good place that has them available for little or no charge with the advantage of an available copier and peace. Local churches are also options.

Before making any decision always get competent and educated advice.  Boards often fail to seek out good advice. This can save you from lawsuits. Use your insurance agent, an attorney specializing in homeowner association law, a CPA, reserve analyst, engineers and architects when the subject matter is beyond the expertise of the board. Do not get creative to save a few dollars. There is too much riding on the outcome and the homeowners are depending on all of you. The board is  charged with making well informed and thought out decisions. Use experts, gather and use key information for a board manual and study your by-laws and Covenants.

Board members should always carefully consider all options, seeking the advice of an expert before acting or reacting. No decisions should be made on a whim. Should anything ever come up that could be considered a conflict of interest the board member should be sharp enough to recognize it on their own and immediately recuse him/herself to avoid having other members point it out.

Architectural changes and rules enforcement issues should only be considered after full and complete written request is received and reviewed.

The HOA system is a business, but it is also an extension of our democracy. Representatives from the community as a whole are elected to help decide the fate of the community within which they live. It may not be the best system, but it is the best one that we have so far.

….borrowed from THE BUSINESS OF HOAs

 

FIDUCIARY DUTY FOR BOARD OF DIRECTORS

FIDUCIARY DUTY FOR BOARD OF DIRECTORS 

Volunteering your time and effort to be on the HOA board? Were you aware that the position carries serious legal consequences, even if you accidentally breach that duty?

When you’re acting as a fiduciary, you’re serving in a representative capacity, and you have the legal duty to put first the interest of the association’s homeowners. You must exercise sound business judgment and a healthy dose of common sense while protecting the fiscal and structural security of the association along the well-being of its inhabitants.

You can breach your fiduciary duty by failing to do the regular tasks that are involved in overseeing an association. Board members can breach their duty when they:

• fail to hold regular meetings
• fail to attend meetings
• spend money for anything not specifically mentioned in the covenants
• don’t use information from past years actual expenses to properly set up a budget
• hire family members to do jobs instead of taking bids from those non-related
• fail to recuse themselves when there is  a conflict of interest
• treat some owners differently than others – letting one homeowner slide on certain things when another is treated differently (DISCRIMINATION SUIT WAITING TO HAPPEN THAT D&O INSURANCE WILL NOT COVER.

An example of a breach of fiduciary duty- one HOA who went after a homeowner for not paying his assessments, refused to communicate to the neighbor except through high priced lawyers, and lost the lawsuit sticking every homeowner with close to a $1000 assessment.

This is another reason why an HOA needs a strong financial oversight committee.

 

WHEN CAN A SUBDIVISION CHANGE THE COVENANTS

Taken straight from the Covenants:

Burning Tree South… after Feb 1, 1993, the then owners of a majority of all the lots in said Addition may change or vacate these covenants, either in whole or in part, which change or vacation shall be evidenced by a instrument in writing signed by the then owners of a majority of all lots in said Addition and duly filed of record in the office of the County Clerk of Tulsa County, Oklahoma.

Burning Tree One:.… after February 1, 1993, the then owners of a majority of all the lots in said Addition may change or vacate these covenants, either in whole or in part, which change or vacation shall be evidenced by an instrument in writing signed by the owners of a majority of all lots in said Addition and duly filed of record in the office of the County Clerk of Tulsa County, Oklahoma.

Burning Tree East:…. after November 1, 1993, the then owners of a majority of all the lots in said Addition may change or vacate these covenants, either whole or in part, which change or vacation shall be evidenced by an instrument in writing signed by the then owners of a majority of all lots in said Addition and duly filed or recorded in the office of the County Clerk of Tulsa, County, Oklahoma.

Burning Tree Plaza …after November 1, 1993, the then owners of a majority of all the lots in said Addition may change or vacate these covenants, either whole or in part, which change or vacation shall be evidenced by an instrument in writing signed by the then owners of a majority of all lots in said Addition and duly filed or recorded in the office of the County Clerk of Tulsa, County, Oklahoma.

Burning Tree West:…. after November 1, 1993, the then owners of a majority of all the lots in said Addition may change or vacate these covenants, either whole or in part, which change or vacation shall be evidenced by an instrument in writing signed by the then owners of a majority of all lots in said Addition and duly filed or recorded in the office of the County Clerk of Tulsa, County, Oklahoma.

ARE YOU ARE TRYING TO AMEND YOUR COVENANTS TO BE RID OF THE MASTER ASSOCIATION? THERE IS GOOD NEWS!!

None of these subdivisions owners associations are tied to the Burning Tree Master Association as subassociations! This can be confirmed by a call to:

• The office of the Secretary of State. (Those who formed the HOAs for the different subdivisions did not make them part of the Master Association, thus they are NOT part of it.)
• Tulsa County Assessors office (ask for Land Records) They have advised that the required document to set up an HOA was never filed for any of the HOAs. According to Oklahoma statutes it 100% of the homeowners in each area acknowledging it and signing it the document.  (Because the associations were formed as corporations that was when they were set up.  See the depositions given under oath, by Ray Hall, Frank Speigelberg and Roger Spencer in 1983. They all testified UNDER OATH that the Burning  Tree Area #4 Association, Inc was FORMED in 1978. It was stated that Len Stark from Burning Tree subdivision–the subdivision that some mistakenly refer to as Burning Tree One– came over and told them now that they had 50% occupancy of lot owners in Burning  Tree South they needed to go ahead and form the Burning Tree Area #4 Association, Inc referred to in the Burning Tree South covenants.)

Further, according to both the Burning Tree Master Association Articles of Incorporation and the Burning Tree Master Association By-Laws it is NOT the lot owner (home owners) who was ever supposed to be the member!!!
However, as Claudia Nelson, vice president of the Burning Tree Master Association has pointed out, her area (Burning Tree West) along with, Burning Tree East and Burning Tree Plaza covenants (found within the Certificates of Dedication) do state that the lot owners are to pay assessments to the Burning Tree Master Association.

Julie Lindquist, Joe Hirsch, Marcia Lysinger, Carol Anderson all live in  one of the subdivisions that require them to pay assessments so of course, when they read their covenants they see that THEIR covenants do require them to pay the BTMA assessments. However, if they will take a few minutes to look at the covenant for Burning Tree South it is easy for most people to see that it NOT required of those who are under the Burning Tree South covenants.

However, the certificate of dedication for Burning Tree South does state that lot owners in Burning Tree South do have an easement to use the facilities of the Burning Tree Master Association if they follow the rules and regulations of the BTMA.  (The BTMA by-laws allow the board of directors to set the amount of entrance fee when one uses the facilities.)

 

CONTRACT REQUIREMENTS

§15‑1.  Contract defined.

A contract is an agreement to do or not to do a certain thing. R.L.1910, § 875.

_____________________________________________

§15‑2.  Requisites of a contract.

It is essential to the existence of a contract that there should be:

1.  Parties capable of contracting.

2.  Their consent.

3.  A lawful object; and,

4.  Sufficient cause or consideration.

R.L.1910, § 876.

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§15‑51.  Essentials of consent.

The consent of the parties to a contract must be:

1.  Free.

2.  Mutual; and,

3.  Communicated by each to the other.

R.L.1910, § 896.

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§15‑53.  When consent not real.

An apparent consent is not real or free when obtained through:

1.  Duress.

2.  Menace.

3.  Fraud.

4.  Undue influence. or,

5.  Mistake.

R.L.1910, § 898.

_____________________________________________

§15‑55.  Duress defined.

Duress consists in:

1.  Unlawful confinement of the person of the party, or of husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband or wife.

2.  Unlawful detention of the property of any such person; or,

3.  Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly, harassing or oppressive.

R.L.1910, § 900.

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§15‑56.  Menace defined ‑ Threats.

Menace consists in a threat:

1.  Of such duress as is specified in the first and third

subdivisions of the last section.

2.  Of unlawful and violent injury to the person or property of any such person as is specified in the last section; or,

3.  Of injury to the character of any such person.

R.L.1910, § 901. _____________________________________________

§15‑57.  Kinds of fraud.

Fraud is either actual or constructive.

R.L.1910, § 902.

_____________________________________________

§15‑58.  Actual fraud defined.

Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

1.  The suggestion, as a fact, of that which is not true, by one who does not believe it to be true.

2.  The positive assertion in a manner not warranted by the information of the person making it, of that which is not true, though he believe it to be true.

3.  The suppression of that which is true, by one having knowledge or belief of the fact.

4.  A promise made without any intention of performing it; or,

5.  Any other act fitted to deceive.

_____________________________________________

§15‑59.  Constructive fraud defined.

Constructive fraud consists:

1.  In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or,

2.  In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.

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§15‑60.  Actual fraud a question of fact.

Actual fraud is always a question of fact.

R.L.1910, § 905.

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§15‑61.  Undue influence defined.

Undue influence consists:

1.  In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him.

2.  In taking an unfair advantage of another’s weakness of mind; or,

3.  In taking a grossly oppressive and unfair advantage of another’s necessities or distress.

R.L.1910, § 906.

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§15‑62.  Kinds of mistake.

Mistake may be either of fact or of law.

R.L.1910, § 907.

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§15‑63.  Mistake of fact defined.

Mistake of fact is a mistake not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in:

1.  An unconscious ignorance or forgetfulness of a fact past or present, material to the contract; or,

2.  Belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing, which has not existed.

R.L.1910, § 908.

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§15‑64.  Mistake of law defined.

Mistakes of law constitute a mistake within the meaning of this article only when it arises from:

1.  A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or,

2.  A misapprehension of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify.

R.L.1910, § 909.

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§15‑66.  Mutual consent defined.

Consent is not mutual unless the parties all agree upon the same thing in the same sense.  But in certain cases, defined by the article on interpretation, they are to be deemed so to agree without regard to the fact.

R.L.1910, § 911.

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§15‑67.  Consent ‑ How communicated.

Consent can be communicated with effect, only by some act or omission of the party contracting, by which he intends to communicate it, or which necessarily tends to such communication.

R.L.1910, § 912.

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§15‑68.  Mode of acceptance.

If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted.

R.L.1910, § 913.

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§15‑69.  When consent deemed communicated ‑ Acceptance.

Consent is deemed to be fully communicated between the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer, in conformity to the last section.

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§15‑70.  Certain acts as acceptance.

Performance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an acceptance of the proposal.

R.L.1910, § 915.

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§15‑71.  Acceptance must be absolute.

An acceptance must be absolute and unqualified, or must include in itself an acceptance of that character, which the proposer can separate from the rest, and which will include the person accepting. A qualified acceptance is a new proposal.

R.L.1910, § 916.

 

FINANCIAL RESPONSIBILITY

FINANCIAL RESPONSIBILITIES

One of the most important responsibilities that the Board has is to manage the financial responsibilities of the Association.

A homeowners association board has a fiduciary responsibility to make disclosures to homeowners. The entire budget is required to be open and available to every homeowner, at all times.

BOARD MEMBERS MIGHT BE SURPRISED TO LEARN THIS:

In most states, if a board member does not carry out their fiduciary duties, they can be PERSONALLY be sued (along with the entire board).

Violation of fiduciary duty may not be covered under the HOA’s insurance for officers, thus a director could be responsible for his personal attorney fees.

 HOW ASSESSMENTS ARE TO BE USED

Covenants should spell out exactly how assessments are to be used. Board members have a Fiduciary Duty to make sure that they follow what is stated in the Covenants. (All money the HOA collects is to be deposited to serve the common community property, such as for beautification. The Board has no authority to fund anything else outside the cause of the association, such as parties, unless the Covenants specifically state otherwise.) To do so, would be a misappropriation of HOA funds.

Covenants usually state what action can be taken should anyone, including members of the board, violate the Covenants. Covenants should include on what assessments are to be used. (EX: Maintenance assessments are called that because they are for just that–maintenance.)

Money cannot be spent unless it is allocated for in the budget or by a vote. (By-Laws should state the dollar limit that the Board can approve, before it goes to the homeowners to vote.)

ACCOUNTING REQUIRED TO BE GIVEN (TOTAL TRANSPARENCY)

Most by-laws require that there be an accounting given at the annual meeting and also an audit of the books and records of the corporation by an independent public accountant and a copy sent to each member within a certain period of time after it is completed.

VOTING BY BOARD MEMBERS

All voting done by the board of directors is to be representative of homeowners (constituents) wishes and not just a personal desire of the board member.

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. (The directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written approval of all the directors. Any action so approved shall have the same effect as though taken at a meeting of the directors.)

 

RECORDS OF HOMEOWNERS ASSOCIATION

Board members refusing to let you see records?

EXPENDITURES should always be OPEN to ANY member through a meeting or a board member.


Most HOA boards pass out financial reports at meetings. During the meeting the Treasurer goes through each expense matching it to the date of the meeting where it was approved.  Documenting the expenditure to meeting notes shows that only the approved amount was spent and makes it easier for the CPAs audit.

Can’t make the meeting? Many Homeowners Associations put their financial online and show at what meeting the expenditure was approved. Should your HOA not post the information ask a board member, who should be able to get a financial statement for you.

If an association is incorporated, the Oklahoma Corporation Code requires certain formalities in regards to corporate association recordkeeping and production of those documents when a member makes a records request. (18 O.S. 1065);

 The law provides for an INSPECTION OF BOOKS AND RECORDS

If the corporation or an officer or agent thereof refuses to permit an inspection sought by a shareholder or attorney or other agent acting for the shareholder and does not reply to the demand within five (5) business days after the demand has been made, the shareholder may apply to the district court for an order to compel an inspection.


The court may summarily order the corporation to permit the homeowner to inspect the corporation’s books and records, and to make copies or extracts therefrom.

The court may order books, documents, and records, pertinent extracts therefrom, or duly authenticated copies thereof, to be brought within this state and kept in this state upon such terms and conditions as the order may prescribe.

Any director, including a member of the governing body of a nonstock corporation, shall have the right to examine the corporation’s stock ledger, a list of its shareholders, and its other books and records for a purpose reasonably related to his or her position as a director.

The district court may summarily order the corporation to permit the director to inspect any and all books and records, the stock ledger, and the list of shareholders and to make copies or extracts therefrom. The court, in its discretion, may prescribe any limitations or conditions with reference to the inspection, or award other or further relief as the court may deem just and proper.

From a recordkeeping standpoint, the statute assumes each corporation will retain records for homeowners. For nonprofit associations, these would be the owner-members.

Inspection of Records by Association Members
If the association is incorporated, 18 O.S. §1065 provides an outline of how the member may obtain certain books and records of the association. The homeowners associations governing documents themselves might also provide an inspection right much larger than that afforded by statute.

Records Retained by the Association. In the normal course of business, the Association will retain certain books and records in order to operate as a professional and legitimate Oklahoma corporation. The Association will permanently maintain in a bound volume each of the annual minutes, board meeting minutes, policies, and resolutions of the corporation. Any minutes of any executive session of the board or any documents produced for the purposes of litigation or provided by legal counsel shall be permanently maintained in a particularly identifiable volume separate from the Minute Book. The Association will maintain certain other documents and records in the nature of financial records, architectural committee documents, individual owner/Lot files, and the like pursuant to the needs of the Association. Such documents may be maintained in a manner suitable to the Board.

Records requests by Members

Upon request, the Association will make hardcopies of the following available to Members in good standing: a complete copy of each governing document (Covenants and By-Laws), a current budget, a profit and loss statement for the current year, a balance sheet for the current year, and minutes for the current year board meetings and annual meeting.