A PLACE TO BE
Monday, November 11, 2013
COWEN LAWSUIT TIDBIT
LIVOA’s insurance attorney said during Saturday’s meeting that board members get free representation and Bylaw Article XII backs that up with saying the Corporation shall indemnify every Director against all loss, cost and expenses incurred in connection with any action, suit or proceeding to which said Director may be a party.
Does it seem right that directors involved going back to 2008 may be financially immune to this lawsuit while the rest of the membership who had no say in the issue are left paying an unknown amount to defend themselves?
At Saturday’s meeting the insurance lawyer said the primary reason innocent Villagers are being targeted is due to them holding a 1024th common element interest in Sea Shell Blvd. along with having to vote for or against Cowen’s use of this common element.
How true is that?
While it’s true Article II of the Declaration does say members have this 1024th interest, it’s also true that Article II doesn’t say a member has the input as to the usage of those interests.
Bylaw Article IV, Section 10, subsection D does make it very clear the Board has that power over common element usage. It describes the directors as having the power to make and amend regulations respecting the operation and "USE" of the Common Elements. To me that means the Board has the power and not the members to decide Cowen usage of Sea Shell Blvd.
In Saturday’s meeting the Insurance lawyer also added that three fourths of the membership has to vote on amending our declaration towards the “Cowen’s usage” of Sea Shell Blvd. due to it being a material alteration, but didn't the board president previously state it’s due to being a substantial addition. Which is it? It’s neither and saying so is just plain balderdash?
Ratification of substantial additions and material alterations to common elements are found in Article X of our Declaration and in Article XII of our Bylaws. This is what both these guys are talking about and neither address the number of people who shall have access to our Park’s common elements like restrooms, pools, golf course, restaurant, tennis court, or roadways. What does address this deed are policy rules passed by the board.
Article X and Article VII in essence speaks toward substantial (material) additions and or (material) alterations to our common grounds and here's an example. If the board approves the substantial addition to expand Sea Shell Blvd. into four lanes, it needs to be voted on (ratified) by three fourths of the members who are present at a called ratification meeting. However any rules on the usage of these four lanes such as speed limits, stop signs, size/weight of vehicles, and or the number of people who may be allowed to drive on it is decided by the board through policy. Usage of Sea Shell Blvd. is a board policy issue.
To me it is clearly unfair that Villagers have to bear this possible unknown legal burden while board members who are making the decisions get off scot-free. It's only right that board members pass a motion covering a member automatically by the LIVOA’s insurance attorney if individually sued by Cowen. By doing so this should also create the ownership solidarity the board feels is necessary to defeat Cowen's lawsuit.
TIBIT EXTRA
Is the insurance attorney and the board's interpretation about ratification correct? The way I read it, ratification doesn’t need the approval by three fourths of the total membership. Ratification for substantial additions or material alterations need only the majority of three fourths of the members who are "PRESENT" at a called ratification meeting. Article X of the Declaration and Article VII of the bylaws stand alone using the phrase “three fourths of the total members "PRESENT" at a called meeting” while voting for amending the Declaration and or any Bylaw uses the phrase “three fourths of the "TOTAL" membership”.
Opinion?
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1 comment:
very interesting opinion. my main concern, other than clarifying your opinion, is no one has been contacted by cowen by letter or otherwise. the first owner to get that contact needs to make it known to all of us and the attorney but DO NOT PANIC til that happens !!
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