Beware of Pickpockets!

Pickpockets in Francestown?

Absolutely! White Collar and White Gloved!

Revel in the Special Treatment that comes with Perks ... oh, wait those are not perks but rights given to Unit Owners at Eastside at Crotched Mountain Condominium Association via The NH Condominium Act, The Declaration and Bylaws of Eastside at Crotched Mountain Condominium Association.

Todays post is entitled "Beware of Pickpockets" and the subtitle should be "ECMCA 2016 Proposed Amendment to the Bylaws.

Are you prepared to hand over your debit card # and pin# to ECMCA? Are you prepared to hand over a full sleeve of signed blank checks to ECMCA?

The Board of Directors are seriously considering this as an amendment to our bylaws to secure condominium fees, legal fees, utility fees, parking fees, violation fees, reserve for replacement of the common area fees, working capital fund fees, landscape fees, roof raking fees and any other fees they feel necessary.

Why are there not more members of ECMCA watching their wallets by reading and understanding the governing documents?

Why are more members not asking "where is the Reserve for the Replacement of the Common Area (aka The Capital Reserve)? Where is the Working Capital Fund (aka the Operating Reserve)?

Todays lesson on Regular and Special Assessments according to the Bylaws of ECMCA ...

Article V Operation of the Property, Section 1c Assessment and Payment of the Common Expenses pages 15 and 16

All expenses of the Condominium are are Common Expenses ... true or false?
Let's examine the ... Regular Common Expenses ... those expenses for goods or services delivered to all. Regular Common Expenses such as Mountain Maintenance, Insurances, Reserves, Snow Removal, Landscaping, Loan Payments, Maintenance, Administration of the Condominium, Management Services, etc are expenses we all share equally according to the budget which determines our monthly assessment (condo fees). If the Board of Directors spends beyond the budgeted amounts and/or, if they are unable to collect fees that are delinquent, they have two separate avenues to recoup those shortages from members:

1) Reimburse the operating fund with monies from the Working Capital Fund aka Operating Reserve and impose a Special Assessment on the members to bring that reserve to adequate(2X estimated monthly common charges) as defined in Article V, Section g Working Capital Fund, page 17, in accordance to Article V, section 1d Reserves, page 16.

2) Any net shortage shall, if the Board of Directors deems it advisable, be added according to each owner's votes (1/24th) in the Unit Owner's Association to the installments due in the succeeding six months after rendering of the accounting. Article V, Operation of the Property, Section 1c, Assessment and Payment of Common Expenses, page 16.

According to our Declaration (which trumps the bylaws) Special Assessments are not to be done, but we will save that argument for another post.

The Bylaws allow for a Special Assessment in Article V, Section 5 Additions, Alterations and Improvements, page 20.
While many associations around the country use this same passage, some with additional language such as; "in emergency situations only", "not to exceed 20% of the total operating budget", there are differing arguments as to whether this applies to any and all expenditures requiring a special assessment or not. Since ECMCA settled the Kelly Lawsuit before the Judge ruled on this particular item as it pertained to the 2012 Special Assessment for The Capital Reserve in anticipation of new roofs, our Association has an answer in the form of an order signed by Judge Abramson on 13 May 2013 ...

"The Board of Directors possesses "ajl of the powers and duties necessary for theadministration of the affairs of [Eastside]." (Bylaws, Article III, ^ 1.) These powers arenot unlimited, however. Article V, paragraph 5 of the Bylaws provides when the Boardof Directors determines the need for additions, alterations, or improvements to "theCommon Area ... costing in excess of Five Thousand Dollars ($5 ,000) during anytwelve (12) consecutive months ... the making of such additions, alterations, orimprovements shall have been approved by a majority of the votes of the Owners .,.."Here, the special assessment, costing $24,000.00 ($1000.00 per unit), was levied inorder to fund capital repairs to chimneys serving units, which chimneys are part of the common area." (Resp't's Memo, of Law in Support of Resp't's Mot. to Dismiss 13.)Therefore, a majority vote of owners should have been held to approve the specialassessment levied for the purpose of improving the common area. (See Article V. H 5.) Instead, the special assessment was ratified merely by a vote of the Board."- Order of Judge Abramson, Hillsborough County Superior Court North May 13. 2013.Docket # 216-2012-CV-654

The Attorney representing the BOD in that action argued that that passage did not apply in that particular situation. That Attorney is no longer with the firm he was employed by for more than 20 years and is no longer practicing law in the State of New Hampshire.

Let's examine The Bylaws Document as a whole and then ask some tough questions:

1. The Bylaws, is for all intents and purposes ...  a contract. All unit owners accepted and consented it's terms by accepting a deed for property at ECMCA.
2. The Bylaws were created as a 'constitution', a manual not a guide. This document assigns rights, responsibility, property lines and methods to accomplish objectives. Simply put ... Bylaws, not BySuggestions, created to continue the Association on in perpetuity.
3) Unit owners past, present and future must follow the bylaws ... BOD Members are unit owners.
4) All unit owners, past, present and future are responsible for all of the expenses of the condominium. Herein lies conundrum #1and conundrum #2.
5) The Bylaws protect:
 a) Physical Property
b) Financial Property
6) The Bylaws allow for the governance of the Association by a Board of Directors. The Board of Directors are voted by the Association according to the directives of the Bylaws. Herein lies conundrum #3. The Board of Directors are legally obligated to act in the best interest of the Association Members by following the bylaws, making sound business judgements, following accepted safety principles ... all above their own self interest ... fiduciary duty. Conundrum #4.
7) The Bylaws must conform to the directives of the of the State of New Hampshire and must not conflict with the Declaration and NH RSA 356B. Conundrum #5.

Conundrum #1 - Past, Present and Future

If the Bylaws mandate Reserve Funds for Replacement of The Common Area and Operating Reserves for Contingencies and there are none ... What Happens Now? Where are they?

Conundrum #2 - Past, Present and Future

What if the bylaws are violated and the result encroaches upon the rights of the Association members?

Conundrum # 3 - Governance of the Association

In a democracy, (which by definition as it applies to our association;("control of an organization or group by the majority of its members" ) that is governed by unduly elected officials ... then corruption exists. Ask the questions ...
 If the Board of Directors is in the place of power, not because elections were held correctly (orchestrated by themselves) and lawfully, but through their own devise than does that element not question what other actions by the Board of Directors may be an abuse of power and therefore corrupt? 


Conundrum #4 - What is Fiduciary Duty?

A legal obligation of one party to act in the best interest of another. The obligated party is typically a fiduciary, that is, someone entrusted with the care of money or property. Also called fiduciary obligation. Does the Board of Directors have the right to decide that any bylaws are not in the 'best interest of the Association?'.

What is the health of our Association? Has OUR money that we entrusted to the Board of Directors gone where it was claimed to have gone or for the reason it was assessed? Are the Physical Assets of our Association in good condition and maintained according to the Bylaws? Is there monies available to adequately provide for future major repairs and replacements?


“Say what you mean, mean what you say, and do what you say you’ll do”


Conundrum #5 - The Association Members and Board of Directors are obligated to obey the Bylaws, The Declaration and The Condominium Act (RSA 356B).

Do the Association members honestly believe that The State of New Hampshire would allow Condominium Governing Documents to exist that would put the financial burdens of 30 years on a select set of owners for an infinite amount of money at indiscriminate times and terms? Wake up!

While the Board of Directors is busy looking for bylaw infractions like clotheslines, trailers, improper storage etc so they can fine members and line their pockets ... why aren't more members suggesting we fine them for every day they haven't followed the bylaws themselves ... depriving members of our rights?  Since when do the bylaws suggest some get and some don't? 

While during the Annual Meeting, it was suggested that we hold hands, sing Kumbaya and move on!

Certainly, a good Christian thought for a Sunday Morning in January ... if only they did not continue to violate the bylaws! If only they had admitted to their wrongdoings and put measures in place to keep these events from happening rather than continuing to violate the bylaws that protect us ... Kumbaya would have been possible ... behold we must ... behold the burdens, ramifications not of our doing with dignity and grace while it breaks us  financially ... Kumbaya!

Are the Association Members part of the problem or part of the solution? What are you?

You are part of the problem if ....

a) you do not pay your share of the regular common expenses

b) you do not put forth the effort to know and understand the rights of all and the provisions that protect those rights.

c) you do nothing to stand up for what is right, legal, just and required

d) you allow yourselves to be manipulated ... through an abuse of power, promises of payback for favors, you support ideas that are contrary to the bylaws.

In the coming weeks ... this blog will provide proof ... prepare to be enlightened!  It is not what you know ... it is what you do with it that counts!

From Subpoena of Materials to Penchansky and Co

The Board of Directors are responsible for the design and implementation of programs to detect fraud... Fox watching the henhouse!

From Subpoena of Materials to Penchansky and Co

Not one Board of Director Meeting Minutes shows the authorization or approval for inter-fund transfers. The Association as of 1/19/2013 had pledged assets as collateral on the loan refinance.

Has anyone seen the Capital Reserve Study done in 2007? If the Board of Directors collected funds for future replacement of the Common Area ... where are those funds and why are they not on our Audits? More relevant today ... Why do we not have funds available for the roofs? Did anyone receive an offset to condominium fees or get a refund?

What are you willing to do, to help stop the transgressions  against the members of our association that is causing the destruction of our properties ... both in the physical sense and the financial sense?

Everyone has a voice ... use it! Our Association was supposed to hold an election this year for a new director ... we did not ... why?  The Bylaws provide for a new director each year.  No wonder the same people have been running this association into the ground for the last ten years.  Even after being noticed that Boards were unduly elected our Association 'Officials' continue to rule without corrections since 2012.

Parting Words ... If ... When

What one person receives without paying for ... another person must pay for without receiving.
The Association cannot give anything to anybody that the Association does not first take from someone else.
You cannot multiply wealth by dividing it.
If people pay what they are assessed for and do not get what they are promised then they will refuse to pay twice for something they have already paid for but not received.
When half of the members get the idea that they do not have to pay because the other half is going to take care of them then the other half gets the idea that it does no good to pay because somebody else is going to get what they pay for.
When few in the association are chastised for standing up to the abuses of power of those who lie, cheat and steal all while not doing their fiduciary duties because they are too busy covering up their own misdeeds, by those who are ignorant of wrongdoing or ambivalent, then, they too are complicit and therefore liars, cheaters and thieves.
This is the beginning of the end!