liability of Current Wall
I want to take the opportunity to explain why this decision was made. As was previously mentioned, we have been discussing the replacement of the wall for several years. Two years ago when we noticed appreciable decline in the structure of the fence, we consulted an attorney to see first who the fence belonged to and who was responsible to fix it. This consultation was mainly to ensure that if it was a common area that all homeowners and not just the owners living along the wall were the ones to bear the cost. Second, we needed to know the exposure the Association had with respect to the wall should it injure someone when or if it fell. Replacing the wall as explained to us by the attorney, is fiduciary obligation of the Board of Directors to protect the Association.
Article VI, Section 2 states in pertinent part:
“COMMON AREA MAINTENANCE Maintenance of the Common Areas and/or private drainage easements comprising a part of the overall Silverhawk drainage plan and system shall be the responsibility of the Association...”
Article III, Section 6 of the Declaration states:
“PERSONAL LIABILITY. No member of the Board, or of any committee of the Association, or any officers of the Association, or the Association manager, shall be personally liable to any Owner or to any other party, including the Association, for any damage, loss, or prejudice suffered or claimed on account of any act, omission, error, or negligence of the Association, the Board, the officers, or any other representative or employee of the Association, or any other comm ittee, or any officer of the Association, provided that such person has, upon the basis of such information as may be possessed by them, acted in good faith, without willful misconduct.” (Emphasis Added)
Professional Evaluations of Structure
After having multiple companies come to evaluate the structural stability of the wall, we were told that it will fall. It is just a question of when. In any case, the Association cannot afford the potential liability of an injury lawsuit. The Board of Directors cannot afford it either as the law protects Board members so long as they act with a duty of care. That duty of care is breached when an issue can be proven to have been known and when no action was taken to correct the issue.
Wood vs. Brick
We wanted to replace the wall with brick (ours is concrete panels) and would absolutely do so if we had the funds available at this time and if the ground could support the weight. We did contact the peering company that fixed the wall for Copper Creek on the East side of Penn. They came out to us and told us in no uncertain terms that they can do what they did for them but that our wall would be leaning again in two years. The issue is the wall weight and its proximity to the drainage ditch. Brick or concrete wall is not an option for the fence’s current location.
All structures have maintenance that needs to be performed over time. This board is committed and are already setting aside money for regular re-staining and other general maintenance on the new fence. We are going to be setting up a place on the webpage were repairs can be requested since much of the structure will be only seen by the homeowner. A well maintained wood fence can last 20 years and look good. The reason several neighborhoods who have wood fences look bad is poor maintenance over time. That is a function of the Directors. We have a plan in place to ensure this will not be what happens to our Association.
Input from the Association Members
We understand that some are not be pleased with the decision and would like to provide their input now. However, we have held many meetings with this particular item on the agenda prior to each meeting spanning several years now and have had very few individuals speak up and provide that input. No one at those meetings spoke up. We always place information in our meeting minutes following every meeting for all Members to be aware of what decisions were made or topics discussed. No one has responded to the comments in those minutes against or decision. Therefore we proceeded with the project and paid a deposit. The purpose of Board meetings is to make decisions and execute. These meetings are open and any member may speak at these meetings when one is scheduled. Additionally, board members may be contacted through email or through SilverHawkHOA.com.
Authority for the Board of Directors to Make Decisions
Some have questioned our ability to make these decisions without a vote of the neighborhood. The board is elected and given Authority in accordance with the Oklahoma General Corporation Act and our governing documents (Certificate of Incorporation, Declaration and ByLaws). We have operated within those documents for this decision and therefore have not breached our duty of care in the performance of our volunteer positions.
Article III, Section 2 of the Declaration states:
“BOARD OF DIRECTORS The Association shall have a Board of Directors, as provided in this Declaration. Any action taken pursuant to the rights, powers, and duties granted to the Association by the Declaration, Articles, Bylaws, Silverhawk Rules and Architectural Rules may be taken by the Association only upon the vote of its Board. The affairs ofthe Association shall be conducted by, and the Association shall act through, its Board and such officers as the Board may elect or appoint, in accordance with the Declaration, the Articles, and the Bylaws, as the same may be amended from time to time. The Association may act only as determined by a majority vote ofthe Board, except where a vote of more than a majority of the Board is specifically required in this Declaration, the Articles or the Bylaws.”
Therefore, since there are no other viable options for the wall other than a wooden fence, we decided to purchase and proceed with the project. Letters were sent out to the neighbors who’s homes were directly impacted to give time for them to bring in pets and move items that they don’t want exposed.
We do understand that many of you are not happy with this but we hope you understand that we spent considerable time evaluating the problem, and looking for good solutions. I’d like to reiterate that we did want to build a brick wall but this Association does not have the funds but more importantly, the ground cannot support it.
You can reach me personally for comment via my email address email@example.com. I will respond after Tuesday evening (1/9/17) as I am leaving town for a few days. I am more than happy to discuss this further. Please note that the Board does not actively monitor Nextdoor and is not an official communication source. Please bear this in mind when trying to reach us for comment.
Chris R. Painter
President | SilverHawk HOA