Mea Culpa & Happy New Year!
Gwendolyn Hallsmith
Hi all –
I was wrong. I made a mistake. I apologize. I was doing some research yesterday and reread the state laws that apply to Common Interest Communities, and the state law says that you are entitled to get tax returns and receipts if you ask for them – for the last three years. So we’ll pull them together and upload them to the HHA file when they’re ready. I imagine the tax returns we’ll get done tomorrow, the receipts as soon as I can. The tax returns are confidential, please treat them as such.
Laws and bylaws are like Matryoshka Dolls, those Russian dolls that are the same doll, smaller and smaller, nested in the larger ones. Headwaters is ultimately governed by state and federal law regarding condominiums and common interest communities. Our bylaws were drafted with these laws in the background and can be enforced through the state. Enforcement means that if someone is in violation of the Headwaters bylaws, legal action can be taken that may involve 1) injunctive relief where the state can prohibit someone from taking a certain action, 2) damages, where the person taking the action has to pay for the damage they cause, or even 3) penalties if the person continues to ignore the law.[1]
Our bylaws were written to protect each of us and the whole community from actions that harm us – physically, financially, or otherwise. It is not a mystery that sometimes things that are done in the spirit of friendship and cooperation can unravel when there is tension in the community or conflicts between individual members. So the bylaws protect us from tensions and hostilities having an impact on our common infrastructure and/or our individual homes.
We are a community and we were set up explicitly to behave like a community, which means that our individual rights are modified. Our rights are not the same as someone who owns a piece of land outright and can do whatever they want. One example of this is that explicit agreements about facilities and utilities which are shared between members are not needed because the bylaws cover those arrangements.
So, for example, imagine what would happen if Michael and I got tired of all the debate about the need for more water in the pond, gardens, and greenhouses. We decided to tell the Welters and the Kings that they need to drill their own wells, and we said that our well was really only being used temporarily to help them save money but the need for water in the meadow now trumped the shared arrangement.
If we did that, the Kings and the Welters would have legal recourse to either stop us from doing that (injunctive relief) and/or to get us to pay for the costs of their new wells (damages). If we ignored those legal sanctions, we could find ourselves in contempt of court (jail time) and liens could be placed on our property for the value of the damages. Liens mean that even if the person doesn’t pay, if they try to sell their house, the debt would be paid first. A mortgage is a form of a lien that comes with a debt, for example.
Of course, the legal recourse they would have would follow our conflict resolution process. The ideal solution to the problem would be for us to work cooperatively to find ways to accommodate all the needs in question through a reasonable search for lower cost alternatives without resorting to legal action, but legal action can be taken if that fails.
If you imagine that the legal costs associated with enforcing the bylaws would be a barrier to enforcement, think again. A successful case also means that the offending household is liable for the legal fees and court costs. So while the injured party would have to pay up front to make it happen, it would be reimbursed later when they win.[2]
When I agreed to let the Welters and the Kings use my well, the well effectively became a shared utility, no additional agreements or work was needed to do that. Any service that goes to more than one house or building here is governed by that feature of our bylaws and CCR[iii]. So the well Monique and Tomas share is like that, too, the electricity that goes through Oliver’s house to our house and the Earthship, and the well Luigi will share with Home Site #3 are all shared utilities because they go to more than one home or building. They become community property, effectively, and the individual no longer has complete control over them, even if they own it, even if it goes through their house.
There is, in fact, a provision in the bylaws that allows the community to enter people’s homes to enforce the bylaws without being guilty of trespassing. It’s under the “violation” section[iv]. It seems draconian, I never imagined we would ever need to use it. But it’s there.
Every condominium, every common interest community has these bylaws. It is critically important that people read them before they join, or have their lawyer explain the bylaws to them if they have a hard time reading legal language. Ignorance of the bylaws is not an excuse anymore than ignorance of traffic laws would be an excuse if you were pulled over by the police for speeding. If I were to do it all again, I’d give workshops and a written test on the bylaws before I allowed people to buy home sites here, but hindsight is 20/20. I never imagined people wouldn’t read them at all or would resist when recourse to the bylaws was needed. Live and learn.
I have heard all sorts of ideas about the bylaws from people here who seem to be more inclined toward libertarianism, or who are opposed to bylaws governing something they like to see as more like a family. They have been compared to the fine print you check (usually without reading) when you buy an app for your phone. Be sure that they are real. Ideally, we don’t typically need to use them because we all joined Headwaters with a commitment to this experiment we call “Living in Community.”
It’s also not true that people who move here somehow need to agree to the bylaws before they would apply to them. “The act of purchasing or leasing a Unit or any portion of the property, or conducting business on the property, constitutes acceptance and ratification of these Bylaws and the attached Covenants, Conditions, and Restrictions by such person.” (Charter and Bylaws 2. Membership).
The bylaws and the state law governing common interest communities require things like budgets and assessments, there is no option for just winging it with bills that come in. Condo fees are assessments, if people don’t pay them, liens can be placed on the individual homes to secure payment (along with the legal fees for securing the liens – it is much cheaper to just pay it). So any idea people might have that we don’t need to set a budget and collect condo fees should be dismissed. It’s just not true.
I do understand that it’s often hard to read bylaws when there is no specific situation that helps you understand them. It’s not like reading a story or a novel. Even though I spent a large part of my professional career writing them for towns, I don’t like reading them either. Several years ago, Michael and I were thinking about getting a hotel condo over at Bolton, but we reversed course after reading the bylaws when we realized that we were essentially agreeing to very expensive cleaning services if we came there with Bela. Just last month we backed out of our plan to buy a lot at TerraVie when we researched the possibility of putting a septic system on the lot, even though the owners there told us it was buildable. It wasn’t. They weren’t development professionals, I knew I needed to do more research, and I’m glad I did.
[1] Failure to comply with any of the terms of these Bylaws, and the Rules shall be grounds for relief which may include without limiting the same, an action to recover any sums due for money damages, injunctive relief, and other relief provided for in these Bylaws, or any combination thereof, and any other relief afforded by a court of competent jurisdiction, all of which relief may be sought by Headwaters, the Council, or, if appropriate, by any aggrieved Household. (Charter & Bylaws X 2. Legal Proceedings).
[2] In any proceeding arising out of the fault of a Member or Household, Headwaters shall be entitled to recover the costs of the proceeding, and reasonable attorneys' fees. (Charter & Bylaws X 4. Attorney’s Fees).
[iii] All Houses are subject, by this Declaration, to Headwaters right to install, maintain, operate, repair, monitor, and improve all underground electrical lines, phone lines, cable television lines, water piping and water system components, waste treatment system piping and components, and any other common or individual utilities that Headwaters may deem to be necessary to be installed on any portion of any or all Houses. This includes the right of town of Cabot regulatory authorities to conduct all necessary inspections from time to time. Headwaters shall operate, maintain, repair, replace, upgrade and/or expand, as necessary or appropriate, all common facilities, including the Shared System (as described in Section 9), utility systems for electrical and phone service and delivery of potable water which serve more than one house or building. (CC&R 9. Easement Rights and Reservations)
[iv] The violation of any Rule adopted by the Council or the breach of any section of these Bylaws shall give the Council the right, in addition to any other rights set forth in these Bylaws, to enter the Unit in which, or as to which, such violation or breach exists and summarily to abate and remove, at the expense of the defaulting Household, any structure, thing or condition that may exist therein contrary to the intent and meaning of provisions hereof, and the Council shall not thereby be deemed guilty in any manner of trespass; to enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any such breach; or to suspend or limit the right of the Household committing the violation to use any part of the Property during the continuance of such violation. (Charter & Bylaws X 7. Violation).
Tomas Vondra
Gwen,
this is not a great example since it was officially submitted and permitted – read Aaron Fullers documents from 12/18 2014 Wastewater System and Potable Water Permit – as shared well. The same goes for Monique and I – we are working these days on official contract and payment. I remember there were some amendments later, but it is still in writing, that house site # 4, 7 and 8 share the well.
I don’t think there is precedent in our community to how Oliver and Jana helped me to supplement electricity demand for my household during my stay in the Tiny House (already then it was undersized) and sustain your house during construction and beyond. You saved money by not upgrading your solar system or running legal powerline from the grid. You even let us all pay for the electricity you took from them. They helped you, because they are nice people and big Thank You is what they deserve for that.
I don’t like the theme of threats and bullying which is lately the baseline for your emails. If you think it’s a Council problem, make it agenda item for the next meeting.
Tomas
From: head...@googlegroups.com <head...@googlegroups.com> On Behalf Of Gwendolyn Hallsmith
Sent: Saturday, January 1, 2022 18:38
To: head...@googlegroups.com
Subject: Mea Culpa & Happy New Year!
Hi all –
I was wrong. I made a mistake. I apologize. I was doing some research yesterday and reread the state laws that apply to Common Interest Communities, and the state law says that you are entitled to get tax returns and receipts if you ask for them – for the last three years. So we’ll pull them together and upload them to the HHA file when they’re ready. I imagine the tax returns we’ll get done tomorrow, the receipts as soon as I can. The tax returns are confidential, please treat them as such.
Laws and bylaws are like Matryoshka Dolls, those Russian dolls that are the same doll, smaller and smaller, nested in the larger ones. Headwaters is ultimately governed by state and federal law regarding condominiums and common interest communities. Our bylaws were drafted with these laws in the background and can be enforced through the state. Enforcement means that if someone is in violation of the Headwaters bylaws, legal action can be taken that may involve 1) injunctive relief where the state can prohibit someone from taking a certain action, 2) damages, where the person taking the action has to pay for the damage they cause, or even 3) penalties if the person continues to ignore the law.[1]
Our bylaws were written to protect each of us and the whole community from actions that harm us – physically, financially, or otherwise. It is not a mystery that sometimes things that are done in the spirit of friendship and cooperation can unravel when there is tension in the community or conflicts between individual members. So the bylaws protect us from tensions and hostilities having an impact on our common infrastructure and/or our individual homes.
We are a community and we were set up explicitly to behave like a community, which means that our individual rights are modified. Our rights are not the same as someone who owns a piece of land outright and can do whatever they want. One example of this is that explicit agreements about facilities and utilities which are shared between members are not needed because the bylaws cover those arrangements.
So, for example, imagine what would happen if Michael and I got tired of all the debate about the need for more water in the pond, gardens, and greenhouses. We decided to tell the Welters and the Kings that they need to drill their own wells, and we said that our well was really only being used temporarily to help them save money but the need for water in the meadow now trumped the shared arrangement.
If we did that, the Kings and the Welters would have legal recourse to either stop us from doing that (injunctive relief) and/or to get us to pay for the costs of their new wells (damages). If we ignored those legal sanctions, we could find ourselves in contempt of court (jail time) and liens could be placed on our property for the value of the damages. Liens mean that even if the person doesn’t pay, if they try to sell their house, the debt would be paid first. A mortgage is a form of a lien that comes with a debt, for example.
Of course, the legal recourse they would have would follow our conflict resolution process. The ideal solution to the problem would be for us to work cooperatively to find ways to accommodate all the needs in question through a reasonable search for lower cost alternatives without resorting to legal action, but legal action can be taken if that fails.
If you imagine that the legal costs associated with enforcing the bylaws would be a barrier to enforcement, think again. A successful case also means that the offending household is liable for the legal fees and court costs. So while the injured party would have to pay up front to make it happen, it would be reimbursed later when they win.[2]
When I agreed to let the Welters and the Kings use my well, the well effectively became a shared utility, no additional agreements or work was needed to do that. Any service that goes to more than one house or building here is governed by that feature of our bylaws and CCR[iii]. So the well Monique and Tomas share is like that, too, the electricity that goes through Oliver’s house to our house and the Earthship, and the well Luigi will share with Home Site #3 are all shared utilities because they go to more than one home or building. They become community property, effectively, and the individual no longer has complete control over them, even if they own it, even if it goes through their house.
There is, in fact, a provision in the bylaws that allows the community to enter people’s homes to enforce the bylaws without being guilty of trespassing. It’s under the “violation” section[iv]. It seems draconian, I never imagined we would ever need to use it. But it’s there.
Every condominium, every common interest community has these bylaws. It is critically important that people read them before they join, or have their lawyer explain the bylaws to them if they have a hard time reading legal language. Ignorance of the bylaws is not an excuse anymore than ignorance of traffic laws would be an excuse if you were pulled over by the police for speeding. If I were to do it all again, I’d give workshops and a written test on the bylaws before I allowed people to buy home sites here, but hindsight is 20/20. I never imagined people wouldn’t read them at all or would resist when recourse to the bylaws was needed. Live and learn.
I have heard all sorts of ideas about the bylaws from people here who seem to be more inclined toward libertarianism, or who are opposed to bylaws governing something they like to see as more like a family. They have been compared to the fine print you check (usually without reading) when you buy an app for your phone. Be sure that they are real. Ideally, we don’t typically need to use them because we all joined Headwaters with a commitment to this experiment we call “Living in Community.”
It’s also not true that people who move here somehow need to agree to the bylaws before they would apply to them. “The act of purchasing or leasing a Unit or any portion of the property, or conducting business on the property, constitutes acceptance and ratification of these Bylaws and the attached Covenants, Conditions, and Restrictions by such person.” (Charter and Bylaws 2. Membership).
The bylaws and the state law governing common interest communities require things like budgets and assessments, there is no option for just winging it with bills that come in. Condo fees are assessments, if people don’t pay them, liens can be placed on the individual homes to secure payment (along with the legal fees for securing the liens – it is much cheaper to just pay it). So any idea people might have that we don’t need to set a budget and collect condo fees should be dismissed. It’s just not true.
I do understand that it’s often hard to read bylaws when there is no specific situation that helps you understand them. It’s not like reading a story or a novel. Even though I spent a large part of my professional career writing them for towns, I don’t like reading them either. Several years ago, Michael and I were thinking about getting a hotel condo over at Bolton, but we reversed course after reading the bylaws when we realized that we were essentially agreeing to very expensive cleaning services if we came there with Bela. Just last month we backed out of our plan to buy a lot at TerraVie when we researched the possibility of putting a septic system on the lot, even though the owners there told us it was buildable. It wasn’t. They weren’t development professionals, I knew I needed to do more research, and I’m glad I did.
--
You received this message because you are subscribed to the Google Groups "Headwater" group.
To unsubscribe from this group and stop receiving emails from it, send an email to headwater+...@googlegroups.com.
To view this discussion on the web visit https://groups.google.com/d/msgid/headwater/BL0PR18MB2081A91EAD957A04CC154E8AB2479%40BL0PR18MB2081.namprd18.prod.outlook.com.
Monique Gerbex
--