Dissection of Amendment Support by Kevin Wine, Jul 21, 2023, 1:08 AM, reply, branch, edit
On July 20, 2023, the board sent a community notice regarding its proposed bylaw amendments. This was clearly an editorial piece biased in favor of the amendments. While their comments provide some insight into their thinking, what they didn't say is almost more interesting than what they did say. What follows is my dissection of their email, with my comments in red.
Amendment Support - July 2023
Society Hill Piscataway Board; July 20, 2023
Earlier this month the Board of Trustees sent out a proposed Amendment(s) to the Society Hill Piscataway By-Laws.
This current Board in 2023 is striving to make improvements in the community for all Members and Tenants. There are many examples, but just this week/this month:
-You have all seen that the Irrigation system is finally being repaired so it can support the purpose for which it exists.
-And we engaged a Landscaper at a very reasonable cost to handle the lawn moving - SO our staff can focus and spend more time on the important functions of making repairs YOU report as problems and all the day-to-day upkeep that is necessary in a community of our size.
-And we passed a Motion to require YOU have a chance to directly question the Candidates for the Election to help decide how to cast your vote.
If the current Board did not care none of those items would have been addressed.
While not related to the bylaw amendments, it is great the sprinklers are finally working.... as we are nearing late July, and after there were no sprinklers for all of last summer. While I don't want to diminish the magnitude of this accomplishment, I do feel it necessary to point out that prior to 2018, we had the irrigation system fully working every summer since taking it over in 2008. In many of those years, we started testing it in May or even April. I understand the prior board president ordered that the irrigation system be turned off last summer (he is gone), and this year the last remaining crew member familiar with the system left. The board then fumbled around with trying to get a contractor, and for some reason that took until over half-way through the season. As we made repairs to the irrigation system from 2008 to 2018, we uncovered numerous irrigation system atrocities, conveniently buried below ground by multiple former irrigation contractors. The system was a mess - two main loop fractures under Buckingham and Chesterfield that were just capped off (breaking the loop), numerous pinched pipes (tree roots), broken control wires (the system was hacked to pieces by cable TV installers and sloppily repaired), dozens of failed valves, and numerous repair "hack jobs" by someone too lazy to get the proper fittings. No one that maintained (the contractors) or oversaw the maintenance (the board) of the system had any sense of ownership or pride in what they did. We are headed right back in that direction. Sorry for the distraction from the main topic - I didn't bring this up - the board did - and as much as they keep saying lets move on from the past, we seem to keep repeating the past, and re-learning old lessons from the past.
YES, those are the functions we were elected to enable - and we are doing it to the best of our ability.
The Board has a responsibility to govern but all of YOU - the Members - have responsibilities. The Association is only funded by the Members. Those Members that choose not to pay their monthly fees impact ALL OF US - YOU. In a significant way. Unlike the Federal government the Board cannot print extra money to pay for our expenses. The money comes from YOU, plus a small amount of extra revenue and interest.
It is very unfortunate that some Members want to "litigate" almost every action the Board takes. Either by actual litigation or by other forms of opposition.
Well, the litigation is entirely under the boards control. If it followed the rules and was open and honest toward the owners, there would be no litigation. For an immediate example, the board is authorized to act only by motion and majority vote of the board at open public meetings. No where in the minutes will you find any motion or vote on sending out their proposed bylaw amendment letter in the first place! The board is trying to "gaslight" us - making it look like someone else is being crazy, when in fact they are the ones being crazy.
To be clear - Members can disagree with what the Board does. That is your right and you can express that by electing new candidates at the Election each year.
Board Members gain nothing themselves by any of the proposed Amendments. It is ridiculous for anyone to suggest any Trustee is benefiting.
It is very curious that the board points this out, since I made no mention that a board member is benefiting from these amendments. The association's attorney/collections attorney is the one benefiting from this batch of amendments.
The proposed Amendments are all common sense and IN THE INTERESTS OF YOU - THE MEMBERS.
Interesting.. the deletion of the last 4 paragraphs of Section 5.11(v) is most definitely not "IN THE INTEREST OF YOU - THE MEMBERS", and neither are the changes to the first paragraph. No where in the boards email is any mention, disclosure, or acknowledgement of the deletion of 4 paragraphs from Section 5.11(v), nor any mention of the impact of that deletion. The text they are trying to delete is:
In the case of any action or proceeding brought or defended by the Association or the Board pursuant to the provisions of these By Laws, the reasonable costs and expenses of preparation and litigation, including attorneys fees, shall be a Common Expense allocated to all Unit Owners.
Money judgments recovered by the Association in any action or proceeding brought hereunder, including costs, penalties or damages shall be deemed a special fund to be applied to (1) the payment of unpaid litigation expenses; (2) refunding to the Unit Owners the cost and expenses of litigation advanced by them; (3) Common Charges, if the recovery thereof was the purpose of the litigation; (4) repair or reconstruction of the Common Elements if recovery of damages to same was the motivation for litigation; and (5) any amount not applied to (1), (2), (3) and (4) above shall at the discretion of the Board be treated either as (i) common surplus which shall be allocated and distributed pursuant to the provisions of paragraph 6 of the Master Deed or as (ii) a setoff against Common Charges generally. Notwithstanding the foregoing, if a Unit Owner(s), the Board or any other person or legal entity affected by any such distribution, shall assert that the damages sustained or the diminution in value suffered by a Unit Owner(s) was disproportionate to his or their percentage of common interest, in which event, at the election of either the Association or the unit owner, the matter shall be submitted to binding arbitration to be decided in accordance with the procedures set forth by the American Arbitration Association.
All Common Charges received and to be received by the Board, for the purpose of paying any judgment obtained against the Association or the Board and the right to receive such funds, shall constitute trust funds which shall be expended first for such purposes before expending any part of the same for any other purpose.
In the event that a Unit Owner(s) succeeds in obtaining a judgment or order against the Association or the Board, then in addition to any other sums to which said Owner(s) would otherwise be entitled by such judgment or order, he or they shall also be entitled to the restitution or recovery of any sums paid to the Board as Common Charges for the litigation expenses in relation to said action or proceeding.
So either (1) the board really thinks they are doing the best thing, in which case they are completely disconnected from us and from reality, or (2) they are saying one thing and then quietly doing the opposite. Neither one of these is good.
This Board would not propose anything except if it benefitted YOU - the Members.
Topic #1: Correcting the Principal office location in the Master Deed. It states the location as "10 Highway 35, Red Bank, New Jersey"
So they finally say what they meant by a "long-standing clerical error". However, this error is in the master deed, not the bylaws! These are two different documents, and there is a different procedure for changing the master deed. How could they not understand something as basic as this? You would think our $12,000/year collections attorney (masquerading as a condominium attorney) would have caught this!??
Topic #2: Allowing YOU TO SAVE MONEY by letting the Association communicate electronically with Members that agree to use format (vs. getting physical mail). Any mailing of any type sent to 545 members is costly - hundreds of YOUR dollars. It is YOUR MONEY and most Association already approved using electronic communication with their Members. It is long over-due that we allow this option, for those that agree, to SAVE YOUR MONEY. As we noted in our cover letter this will NOT impact the Annual Election which will only be conducted via paper ballots.
Curiously, they did not try to allow electronic voting. Why is this?? Because then the voting process has to be conducted by an outside party which will make it more difficult for them to track what is going ton and manipulate the process in subtle ways to their advantage. While postage has gone up, suppose half the owners opt in for electronic delivery, which is only a few mailings a year if the elections are excluded. Each mailing costs 63 cents times 545 which is $343. So four mailings to half the owners is $686. Wow - so that is 0.05% of their yearly $1.4M budget. I guess every dollar matters, but this is "counting the ants as the elephants walk by", and there are much larger wastes of money this board should really be focusing on.
Topic #3: This seems to be the one some misinformed Members are objecting to. They should not be. Here is the actual Current and Proposed language. This is it.
CURRENT By-Law Article
Interest, Late Fees and Counsel Fees.
"The Board at its option shall have the right in connection with the collection of any Common Expense assessment, or other charge, to impose a late charge of any reasonable amount and/or interest at the legal maximum rate permitted by law for the payment of delinquent real estate taxes, if such payment is made after a date certain stated in such notice. In the event that the Board shall effectuate collection of said assessments or charges by resort to counsel or the filing of a lien, the Board may add to the aforesaid assessments or charges a sum or sums of twenty (20%) percent of the gross amount due as counsel fees, plus reasonable costs for preparation, filing and discharge of the lien, in addition to such other costs as may be allowable by law."
"The Board at its option shall have the right in connection with the collection of any Common Expense assessment, or other charge, to impose a late charge of any reasonable amount and/or interest at the legal maximum rate permitted by law for the payment of delinquent real estate taxes, if such payment is made after a date certain stated in such notice. In the event that the Board shall effectuate collection of said assessments or charges by resort to counsel or the filing of a lien, the Board may add to the aforesaid assessments or charges the reasonable costs and expenses incurred post-judgment to collect against any judgment obtained as may be allowable at law and the cost for filing any discharge or warrant of satisfaction, in addition to such other costs as may be allowable by law."
This is "Not it". Again, the proposed change would delete the four full paragraphs following the first one that is being modified. These four paragraphs relate to rules on who pays attorney fees when the association sues or is sued, how proceeds from litigation are handled, and the right of an owner to be compensated if the board screws up and loses a lawsuit. The deletion of these paragraphs will make it more difficult, risky, and expensive for an owner(s) to sue the board in the future, or an owner to recover funds illegally charged to their account. It is very interesting that the board makes no mention of this part of their proposed changes. If all these changes to 5.11(v) are made, the association will be positioned to far more aggressively attack owners that disagree with their future special assessments, both in terms of discouraging litigation, and in collecting un-paid special assessments. And don't think this bunch is done with the special assessments. Wait until they get the next capital reserve study and decide the reserve fund is under funded by $15M. Don't worry, that's only a $27,000 special assessment per unit.
This change COSTS YOU NOTHING - there is no secret assessment to the Owners. Many communities have supported this type of change so that those few that do not pay their share are the ones that bear the burden of that choice. Think about it - if you are a responsible owner, as the majority are, and pay your fee each month do you want to help pay more for the costs to collect the unpaid fees that the Association must try to do?
I have no idea what is meant by "There is no secret assessment to the owners". Where did I say that??
As I know I have explained in the past, collections is not as simple as it appears. Our experience was that the delinquent owners that could would work out some payment plan without having to resort to litigation. There were always a few were there was simply no money, so spending hundreds of dollars, or now it will be thousands of dollars, to file lawsuits and get judgment and try to collect is just throwing good money after bad. And there were a few that were just "gaming the system". Remember that for any collections work, the collections attorney is getting paid up front for all her fees, which are then charged back to the owner as currently allowed. However, if the owner never pays, the association ends up eating those legal costs, which means we all get stuck with the bill. So with the proposed changes, the attorney is the one that stands to gain the most, as she will now be limited only to "reasonable" fees, by her and/or the boards definition of "reasonable", which you can be certain is going to be "several thousand dollars". This attorney is currently charging $450 to put a lien on a unit. The actual cost of filing a lien with the court is $42. I know it takes times to prepare, but not that much for a professional collections attorney, so that's a nice markup, and a good insight into the attorney's definition of "reasonable". With some patience, the association will usually get its money when the unit eventually sells. If the owner declares bankruptcy, or the bank forecloses, there may be no money left to get, so it is important to identify these and other situations and not waste thousands of our dollars trying to extract money from stone.
In summary, all the proposals will help the Association in various ways and will SAVE YOUR MONEY.
If you are unclear on any point do not just vote NO - contact the Board and we will discuss with you.
Really? Well I posted a simple question to the board on the whatapp chat group, and they never answered my question. More "say one thing, and do another"?? Has anyone else had better luck?
No matter the result of this proposed Amendment the Board will continue to advocate for changes to the By-Laws that are in the best interest of the Association and YOU, the Members.