Post by ValOC on May 27, 2017 19:27:21 GMT -7
Here are my comments regarding the proposed “New GLA Election Procedures,” specifically against the part that says, "To be eligible to vote at the Annual Election on November 11, 2017, you [GLA members] must be PAID IN FULL by October 31, 2017.”
There are several problems with this proposed clause (as written above) that appears to harm GLA members and conflicts with GLA Covenant 11.01 & 11.06;
If the GLA the next day receives a payment mailed on November 1st, then does not accept this payment until after November 14th election date, then the GLA, in effect, is withholding and not accepting their late payment or collection for 14 days. Also, if a member makes a payment on May 1st and a special election happened on May 15th, then the “New GLA Election Procedures,” clause above (regarding Oct 31 deadline) does not apply. So this clause appears to be arbitrary and capricious to only deny late payments in November and not deny late payments in June, or some other time for a special election.
Put another way, the GLA to withhold collection by not counting a member late payment, even for a day, would mean that the GLA is deliberately harming the member by causing more interest to accrue to the member and/or denying the member to vote for those 14 days. Since this clause only applies to Board elections in November, you are also creating a new hardship for members to vote in November and not any other election. Which fact refutes your defense (or hardship) to implement it, since it only applies to one election, not all elections.
The bigger problem with this action or clause proposed by the “New GLA Election Procedures,” in effect conflicts with Covenant 11.01 and 11.06, and harms the member to withhold the collection of member payment by not counting the payment toward their account for up to 14 days or more. This is because 11.01 says, "Each present or future Landowner in the Community covenants and agrees to pay to the Association the following described assessments, all such assessments to be fixed, established, and collected from time to time as hereinafter provided."
Notice Covenat 11.01 says the payment and collection of assessments is “fixed, established, and collected from time to time as hereinafter provided” (like in Covenant 11.03 11.06). For the GLA to collect the assessment any other way (such as to withhold payments) is contrary to this covenant. In fact, this Covenant 11.01 clearly states that the GLA can not collect assessments outside of what is already “established" in the Covenants "as hereinafter provided.” At least it would require a Covenant amendment to do so.
Also, the collection of late payments is clearly established in Covenant 11.06 that provides, "if the assessment remains unpaid for thirty (30) days after such due date, a five percent (5%) penalty will accrue ...and one-half percent (11⁄2%) per month…” Notice that this covenant shows that the GLA can and must collection late payments allowed at any time, albeit with interest accrual. To not do so is a breach of this duty established by this Covenant. And yes elsewhere in the covenants it says the GLA has the "fiduciary duty” to collect assessments.
This Covenant 11.06 also provides the sole remedy for collecting late payments as being a penalty and interest. But at no time does this covenant ever say the GLA can withhold late payments and withhold votes. As you can see for these reasons, this “New GLA Election Procedures,” clause above directly conflicts with 11.01 and 11.06 which are both established collection procedures.
Furthermore, this new clause called an election procedure is a collection procedure disguised as an election procedure. This new proposed procedure is NOT an election procedure, because it does not directly involve the action of the elections themselves. Instead, it involves collection of late payments prior to one election (not all elections). This is an important distinction, since late payment collection must happen BEFORE the member can vote. For the GLA to try to now pretend that this is not a collection procedure after all, can later be interpreted as willful collusion to bypass these Covenants 11.01 and 11.06..
Thus, this clause cited above (if adopted) will be seen as an attempt to skirt these Covenants and ignores this obvious conflict in violation of long established GLA collection procedures; which will create even more legal liability for the GLA, not to mention the and potential damages the GLA will cause to the member(s). And one more thing, the fact that the GLA has never withheld late payments before and its only for Board elections, adds to the proof that this cause is used for the sole purpose to try to skirt these Covenants by calling this proposed clause an election procedure, instead of a collection proceedure which it clearly is.
So the best advise that any attorney should give the GLA Board is to drop this clause cited in paragraph one above.
There are several problems with this proposed clause (as written above) that appears to harm GLA members and conflicts with GLA Covenant 11.01 & 11.06;
If the GLA the next day receives a payment mailed on November 1st, then does not accept this payment until after November 14th election date, then the GLA, in effect, is withholding and not accepting their late payment or collection for 14 days. Also, if a member makes a payment on May 1st and a special election happened on May 15th, then the “New GLA Election Procedures,” clause above (regarding Oct 31 deadline) does not apply. So this clause appears to be arbitrary and capricious to only deny late payments in November and not deny late payments in June, or some other time for a special election.
Put another way, the GLA to withhold collection by not counting a member late payment, even for a day, would mean that the GLA is deliberately harming the member by causing more interest to accrue to the member and/or denying the member to vote for those 14 days. Since this clause only applies to Board elections in November, you are also creating a new hardship for members to vote in November and not any other election. Which fact refutes your defense (or hardship) to implement it, since it only applies to one election, not all elections.
The bigger problem with this action or clause proposed by the “New GLA Election Procedures,” in effect conflicts with Covenant 11.01 and 11.06, and harms the member to withhold the collection of member payment by not counting the payment toward their account for up to 14 days or more. This is because 11.01 says, "Each present or future Landowner in the Community covenants and agrees to pay to the Association the following described assessments, all such assessments to be fixed, established, and collected from time to time as hereinafter provided."
Notice Covenat 11.01 says the payment and collection of assessments is “fixed, established, and collected from time to time as hereinafter provided” (like in Covenant 11.03 11.06). For the GLA to collect the assessment any other way (such as to withhold payments) is contrary to this covenant. In fact, this Covenant 11.01 clearly states that the GLA can not collect assessments outside of what is already “established" in the Covenants "as hereinafter provided.” At least it would require a Covenant amendment to do so.
Also, the collection of late payments is clearly established in Covenant 11.06 that provides, "if the assessment remains unpaid for thirty (30) days after such due date, a five percent (5%) penalty will accrue ...and one-half percent (11⁄2%) per month…” Notice that this covenant shows that the GLA can and must collection late payments allowed at any time, albeit with interest accrual. To not do so is a breach of this duty established by this Covenant. And yes elsewhere in the covenants it says the GLA has the "fiduciary duty” to collect assessments.
This Covenant 11.06 also provides the sole remedy for collecting late payments as being a penalty and interest. But at no time does this covenant ever say the GLA can withhold late payments and withhold votes. As you can see for these reasons, this “New GLA Election Procedures,” clause above directly conflicts with 11.01 and 11.06 which are both established collection procedures.
Furthermore, this new clause called an election procedure is a collection procedure disguised as an election procedure. This new proposed procedure is NOT an election procedure, because it does not directly involve the action of the elections themselves. Instead, it involves collection of late payments prior to one election (not all elections). This is an important distinction, since late payment collection must happen BEFORE the member can vote. For the GLA to try to now pretend that this is not a collection procedure after all, can later be interpreted as willful collusion to bypass these Covenants 11.01 and 11.06..
Thus, this clause cited above (if adopted) will be seen as an attempt to skirt these Covenants and ignores this obvious conflict in violation of long established GLA collection procedures; which will create even more legal liability for the GLA, not to mention the and potential damages the GLA will cause to the member(s). And one more thing, the fact that the GLA has never withheld late payments before and its only for Board elections, adds to the proof that this cause is used for the sole purpose to try to skirt these Covenants by calling this proposed clause an election procedure, instead of a collection proceedure which it clearly is.
So the best advise that any attorney should give the GLA Board is to drop this clause cited in paragraph one above.