Board Minutes, 4-24-2013, Special

Special Board of Directors’ Meeting, 4/24/2013 

Meeting was called to order 7:01 

Attendees: Nola Adler, Rick Baldwin, Linda Carter, Butch Cheatham,  Chris Crouse, Clint Dalton, Carolyn Ferguson, Mike Gupton, FJ Hale, David Hammer,  Annie Hensley, Kevin Hensley, Jim Monaco, Dewitt Vanarsdale 

Guests:  Ben Jackson, Darlene Hammer

Topic of discussion:  Complaint by Ben Jackson regarding liens placed on his property. 

President Chris Crouse asked for discussion; David Hammer led us through the letter of response to the complaint by Ben Jackson.  David identified a few minor edits.  Ben Jackson asked if we talked Elmore (the attorney whose opinion he’d referenced), and David said he saw no need.  Ben Jackson maintained that MALA did not have the authority to levy a lien despite the direct quote from his (Ben’s) deed stating the association had that exact right.  A motion was made, seconded and passed without dissent to accept the letter as written with the minor modifications identified.

David Hammer made a motion that we act in accordance with the bylaws to assess penalties for non-payment of annual dues.  It was seconded and passed without dissent. 

Further discussion on the details of penalties was postponed to next meeting.  

A suggestion was made that the text of the bylaws be brought to the next meeting so we can all see it fresh.  

Another suggestion for discussion at the next regular board meeting was that we have a list of delinquents, and to record them as part of meeting minutes.  Details would include who has not paid, for how long, and what they owe. 

Meeting adjourned at 7:33. 

The corrected letter approved at the special meeting is shown below:

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Merifield Acres Landowner’s Association

PO Box 70

Clarksville, VA 23927

 

April 24, 2013

 

Mr. Ben Jackson

103 Stacy Court

Clarksville, VA 23927

Merifield Acres: Unit 9B Lot No. 61

 

Mr. Robert A. & Mrs. Lorene L. Wenning

125 Stacy Court

Clarksville, VA 23927

Merifield Acres: Unit 9B Lot No. 62

 

Mr. Jerry & Mrs. Carolyn Billingsley

461 Oak Run

Clarksville, VA 23927

Merifield Acres: Unit 7D Lot No. 84

 

Dear Mr. Jackson, Mr. & Mrs. Wenning and Mr. & Mrs. Billingsley: 

Subject: Response to your Association Complaint Letter received February 26 2013 

This letter is in response to your Association Complaint Letter received by Merifield Acres Landowner’s Association (MALA) President, Chris Crouse, on February 26, 2013.  As per your letter, your complaint is that MALA has recorded illegal liens on your properties.   In the attachment to your letter, you provide a copy of a letter of legal opinion by attorney Andrew Elmore dated August 18, 2009 as supporting justification for the basis of your complaint.  Your requested resolution requires MALA remove the memorandum of lien (MOL) from each of your properties.   

In accordance with the MALA Complaint Process, the President of the MALA Board of Directors assigned a panel of Board members to investigate your complaint letter, and provide findings and recommendations to the MALA Board.  After Board deliberations, the Board’s findings and response to your Complaint Letter are as follows: 

Your complaint letter references the legal opinion by Andrew Elmore which was in response to your 3 questions:  1) is the Association subject to the Virginia Property Owners’ Association Act (Act)?; 2) who are the members of the Association?; and 3) is the Association’s lien authority valid?  In response to these questions, Mr. Elmore stated he provided legal opinion based upon the following documentation: 

1.  Copy of Restrictions on Property Belonging to Fielding Development C., Inc., recorded on May 12, 1962 in Deed Book 178, Page 241 in the Clerk’s Office of the Circuit Court of Mecklenburg County, Virginia.

2.  Copy of Articles of Incorporation for the Association dated January 14, 1977, with no indication that it was ever recorded in the Clerk’s Office. 

3.  Copy of an unsigned document, which bears no indication that it was ever recorded in the Clerk’s Office, titled: Declaration of Restrictive Covenants dated March 4, 1977. 

4.  Copy of an Agreement recorded in the Clerk’s Office on April 20, 1983 in Deed Book 307, Page 721

5.  Copy of the Bylaws for the Association dated September 23, 2007.  

Mr. Elmore specifically states in his letter, that he “is not aware of any additional documents, recorded or otherwise that are germane to the issues raised”.   We note, however, that we have not examined the land records of Mecklenburg County and, therefore, are not in a position to determine whether there is a recorded instrument which could alter the opinions contained herein.  As a result, this letter is written subject to that disclaimer.”  

The fact of the matter is there are numerous other Merifield documents recorded at the Clerk’s Office that are germane which Mr. Elmore did not review.  Specifically, there is no indication that Mr. Elmore  reviewed the Deeds to your property. 

Your Complaint Letter fails to recognize that Mr. Elmore’s legal opinion was specific to the 3 questions you asked in paragraph (3) above.  Although the MALA Board respects the legal opinion of Mr. Elmore, based upon the incomplete documentation he was provided, the Board does not agree with his opinion as it pertains to the Associations’ ability to file liens on your property. 

The Association has recorded liens on your property in the Clerk’s Office for failure to pay your Annual Assessment.  The MALA Board invites you to read your Deed for your property.  Your Deed states:  “This conveyance is subject to all restrictions and easements of record in the chain of title including customary public utility easements and road rights of way and is specifically made subject to these restrictions of record in Deed Book 271, Page 325 & 744 (for Unit 9B), Deed Book 263 Page 215 (for Unit 7D), and the Grantees agree to honor and abide by the restrictions just as though they were expressly contained in the body of this Deed.”  If you read paragraph 10 and subparagraph (e) of your Restrictive Covenants in the Deed Books listed above, it states:  “Assessments.  In order to provide permanent funding for street and road maintenance and such additional community services as The Merifield Acres Landowners Association (the “association”) may from time to time deem necessary or desirable in connection with its effort to maintain an attractive community appearance and the privacy and general safety of Lot owners, including such services as maintenance of a security system and security guards, garbage pickup arrangements, maintenance of certain common areas such as picnic areas, community docks and similar facilities or areas provided for the general use of Lot owners without separate charge therefor, each Lot owner shall be a member of the Association, and for himself, his heirs and assigns, covenants and agrees to pay to the Association, its successors or assigns, annually, an amount assessed against each Lot owned by said Lot owner by the Association in accordance with the following provisions: 

(e)  The annual assessment referred to herein, shall become due and payable at such time or times as the Association may determine and shall, when due, become a lien on the Lot against which the charge is made, subject and subordinate only to the lien of any first deed of trust now or hereafter placed thereon.” 

Therefore, the MALA Board concludes that based upon your Deed and its reference to your Restrictive Covenants, you have entered into a contractual agreement with the Association to pay annual assessments and that you agree to liens being placed on your property for not doing so.  Therefore, the MALA Board, as a representative of the Association, maintains its position that the filing of a lien on your property is just and proper.  The MALA Board also concludes that your desired resolution in this matter can quickly be attained by paying your past due annual assessments in full. 

Sincerely,

 

Chris Crouse

President

Merifield Acres Landowner’s Association

 

If, after the Board’s consideration and review of the complaint, the Board issues a final decision adverse to the complaint, the complainant(s) has (have) the right to file a notice of final adverse decision with the Common Interest Community Board (CICB) in accordance with the regulations promulgated by the CICB.  The notice shall be filed within 30 days of the date of the final adverse decision, shall be in writing on forms provided by the office of the Common Interest Community Ombudsman (Ombudsman), shall include copies of any supporting documents, correspondence and other materials related to the decision, and shall be accompanied by a $25.00 filing fee.  The Ombudsman may be contacted at: 

Office of the Common Interest Community Ombudsman

Department of Professional and Occupational Regulation

9960 Mayland Drive, Suite 400

Richmond, VA 23233

804-367-2941 CICOmbudsman@dpor.virginia.gov