Legal opinions and Opinions of Counsel

LEGAL OPINION OR IS IT SIMPLY AN “OPINION OF COUNSEL”?

A LEGAL OPINION is a document written by a judge which accompanies a legal decision. The opinion explains how the judge arrived at a ruling, and may offer additional thoughts and commentary. In the event that the opinion is published, it becomes part of case law in nations with a common law system, which means that it can be utilized in future legal cases. For this reason, judges craft legal opinions very carefully. Judge explains his/her ruling in a written document, referred to as an opinion. The opinion explains what the case is about, discusses the relevant legal principles and then applies the law to the facts to reach a ruling in favor of one side and against the other.

A legal opinion

the legal document stating the reasons for a judicial decision; “opinions are usually written by a single judge” (Information provided by Princeton University.)

a written statement by a court, judicial officer, or legal expert* as to the legality (or illegality) of an action, condition, or intent. 

 

*Legal expert- Professional who has acquired knowledge and skills through study and practice over the years, in a particular field or subject, to the extent that his or her opinion may be helpful in fact finding, problem solving, or understanding of a situation.

Do not confuse an “opinion of counsel” with a “legal opinion“, as an “opinion of counsel” is simply the written report of an attorney, not a judge.Thus, it does not hold the weight that a court would. (Everyone has opinions and this is why it goes to court to be debated.)

What is a Homeowner's Association (HOA)?

HOA- “Homeowners Association”. An HOA is generally formed to enforce Codes Covenants and Restrictions (CC&R)

HOAs are inclusive of all owners. They levy fees for services rendered for common responsibilities such as:

Maintenance of the grounds and landscaping in the common areas like parks or roadway medians and the general maintenance of recreational building or facilities.

Provide clubhouse or other space for neighborhood functions.

Provide security.

Arrange for street maintenance.

snow removal in common areas during winter months

Enforce deed restrictions. (Your CC&Rs can confirm that it is your HOA that enforces the restrictions and it is not left up to the individual homeowner to take on his neighbor, himself. That is what the money is paid for. )

POA- “Property Owners Association.” POAs are generally nonprofit. They pursue the interests of a specific type or class of property owner. POAs are generally optional for property owners and provide a unified voice in local governments.
Homeowners’ associations, or HOAs, are created to maintain common areas and to enforce deed restrictions.

Homeowner Association Law Oklahoma

Homeowner Association Law Oklahoma – In 1975, the Oklahoma Legislature enacted the “Real Estate Development Act” (REDA). O.S. tit. 60 § 852

A. An “owners association” may be formed by the owner or owners of real estate development for the purpose of: 1. providing management, maintenance, preservation and control of commonly owned areas or any portion of or interest in them, and/or 2. enforcing all mutual, common or reciprocal interests in or restrictions upon all or portions of such separately owned lots, parcels, or areas, or both.

B. An owners association shall be formed by the execution of an instrument signed and acknowledged by all owners of the real property included. Such instrument shall set forth in detail the nature of the obligations of the members and shall be filed of record in the office of the county clerk of the county wherein the real property is located.

The instrument shall include a description of said real property.


C. The owners association shall have the power to enforce any obligation in connection with membership in the owners association by means of a levy or assessment which may become a lien upon the separately or commonly owned lots, parcels or areas of defaulting owners or members, which said lien may be foreclosed in any manner provided by law* for the foreclosure of mortgages or deeds of trust, with or without a power of sale. In an action brought to enforce any lien authorized pursuant to the provisions of this section, the prevailing party shall be entitled to recover reasonable attorney’s fees to be fixed by the court, which shall be taxed as costs in the action.

No lien may be placed or mortgage foreclosed unless the homeowner was informed in writing upon joining the owners association of the existence

and content of the owners association restrictions and rules, and of the potential for financial liability to the individual owner by joining said owners association.

HERE IS WHAT TO DO: Check the Secretary of State’s site to see when your HOA was formed. If it was after 1975, call the County land records (Assessor) and ask if they have on file where all homeowners at the time it was formed signed, agreeing to an HOA. (If nothing was filed, then the HOA is voluntary, not mandatory.)


Important to note that this statute specifically states that the homeowners association is set up to

1. provide management, maintenance, preservation and control of commonly owned areas or any portion of or interest in them,

and/or 

2.enforcing all mutual,common or reciprocal interests in or restrictions upon all or portions of such separately owned lots, parcels, or areas, or both.

So the big question is: Do you have common areas actually owned by your subdivisions HOA and do your CCRs state that it is the Board of Directors who can enforce the covenants….or does it state instead that any homeowner is who brings suit against a neighbor violating the covenants?


Oklahoma Statutes

HOA stalling on letting you inspect records?

Inspection of Records by Homeowners Association Members:
Oklahoma laws require the association to maintain certain documents, books, and records. Often, the governing documents to the association require certain record keeping in addition to legal requirements.

Is the association incorporated? Check here: Secretary of State. This site will also show who the current Registered Agent is for the HOA.



If the HOA is incorporated the Oklahoma Corporation Code 18 O.S. §1065:

requires certain formalities in regards to corporate association recordkeeping and production of those documents when a member makes a records request. (18 O.S. 1065)

provides an outline of how a member may obtain certain books and records of the association. The governing documents themselves might also provide an inspection right much larger than that afforded by statute. Section 1065 is rather self-explanatory.

 

The statute assumes each corporation will retain records of its members. For nonprofit associations, these would be the owner-members. The statute does not outline the specific information the association would retain about each member, but presumably as association would retain the names and addresses of its members, and perhaps other contact information. Governing documents should require owners to furnish proof of ownership to the association, such as a filed deed, before the association must recognize such person as a member of the association.

Inspection of Records

Financial transparency: keeping homeowners educated and informed.



In Oklahoma:

If an association is incorporated, the Oklahoma Corporation Code requires certain formalities in regards to corporate association record keeping and production of those documents when a member makes a records request. (18 O.S. 1065)

Homeowners have a right to open records. If the association is incorporated Oklahoma law provides for an INSPECTION OF BOOKS AND RECORDS Oklahoma General Corporation Act Section 1065 – Title 18.

The homeowners associations governing documents themselves might also provide an inspection right much larger than that afforded by statute.

If the corporation or an officer or agent thereof refuses to permit an inspection sought by a shareholder or attorney or other agent acting for the shareholder and does not  reply to the demand within five (5) business days after the demand has been made, the shareholder may apply to the district court (small claims) for an order to compel an inspection.


The court may summarily order the corporation to permit the homeowner to inspect the corporation’s books and records, and to make copies or extracts therefrom.
The court may order books, documents, and records, pertinent extracts therefrom, or duly authenticated copies thereof, to be brought within this state and kept in this state upon such terms and conditions as the order may prescribe. The records, books, and files of all corporations shall be, at all times, liable and subject to the full visitorial and inquisitorial powers of the State,§ Article 2 section 28. Corporate Records, Books and Files

Any director, including a member of the governing body of a nonstock corporation, shall have the right to examine the corporation’s stock ledger, a list of its shareholders, and its other books and records for a purpose reasonably related to his or her position as a director. 

The district court may summarily order the corporation to permit the director to inspect any and all books and records, the stock ledger, and the list of shareholders and to make copies or extracts therefrom. The court, in its discretion, may prescribe any limitations or conditions with reference to the inspection, or award other or further relief as the court may deem just and proper.
From a record-keeping standpoint, the statute assumes each corporation will retain records for homeowners. For nonprofit associations, these would be the owner-members.


Records Retained by the Association. In the normal course of business, the Association will retain certain books and records in order to operate as a professional and legitimate Oklahoma corporation. The Association will permanently maintain in a bound volume each of the annual minutes, board meeting minutes, policies, and resolutions of the corporation. Any minutes of any executive session of the board or any documents produced for the purposes of litigation or provided by legal counsel shall be permanently maintained in a particularly identifiable volume separate from the Minute Book. The Association will maintain certain other documents and records in the nature of financial records, architectural committee documents, individual owner/Lot files, and the like pursuant to the needs of the Association. Such documents may be maintained in a manner suitable to the Board.

Records requests by Members. Upon request, the Association will make hardcopies of the following available to Members in good standing: a complete copy of each governing document (Covenants and By-Laws), a current budget, a profit and loss statement for the current year, a balance sheet for the current year, and minutes for the current year board meetings and annual meeting.

Burning Tree Master Association Attorney Seems to HAve Misinterprets Covenants

Papers were delivered to the doors of homeowners living in the Burning Tree areas regarding a meeting at Hardesty library advising all homeowners that the Burning Tree Master Association  had a "legal opinion". However, what the Burning Tree Master Association  had was simply an "opinion of counsel". There is a HUGE difference between the two. (A judge gives a legal opinion after making a ruling. The "opinion of counsel" the Burning Tree Master Association actually had is only that --the opinion of the attorney they went to!)
 
Shared by an astute director who attended that meeting and got to see it all first hand.

See how the Burning Tree Master Association attorney misinterpreted this very simple paragraph. 

Taken from the South Deed of Dedication:

2.  The following Covenants are to run with the land, and with the exception of the covenants imposed by paragraph H  (c), (d),  (e), contained hereafter (dealing with membership in the Burning Tree Area #4 Association Inc. ) which covenant shall continue for a period of life or lives it being at the execution thereof and twenty-one years thereafter, the following covenants are to run with the land and shall be binding on all persons claiming under them until Feb. 1, 1993 at which time said covenants shall be automatically extended for successive periods of ten (10) years; provided, however, after Feb 1, 1993, the then owners of a majority of all the lots in said Addition may change or vacate these covenants, either in whole or in part, which change or vacation shall be evidenced by a instrument in writing signed by the then owners of a majority of all lots in said Addition and duly filed of record in the office of the County Clerk of Tulsa County, Oklahoma.

This is what Mr. Schuller, the attorney typed in his “opinion.”

Under Paragraph 2 of the Dedication, the covenants contained in the Certificate of Dedication (including Section 1 and 2) were permitted to be amended on February 1, 1993 or every ten years afterwards by an instrument executed by the owners of “a majority of all the lots.”

Do you see the difference?  The actual covenants say “however” and he typed “or.”

There is a big difference in the interpretation of “however” and “or” within the context of this sentence.

“However” means it gives the people the option at any time to make a change to the Deed after Feb. 1, 1993.

“Or” means that they can only do it every 10 years after that.  This being so, South would not have to have 100% to satisfy the requirements.  They only need a “majority” as stated in the Certificate of Dedication.

Then, the Burning Tree Master Association  actually voted to waste more of the money to send a copy of the "opinion of counsel" to each homeowner (which they did, totally confusing homeowners.)

The Burning Tree Master Association has advised that with their attorneys “legal opinion” they are moving forward to place a letter in the Abstract and encumber homes in Burning Tree South with a lien if  homeowners do not give them money.  A lien can and does negatively affect ones credit and also can be a detriment to one applying for a job.  


See how attorneys for several homeowners in the Burning Tree South Area responded to this: Slander of Title and Treble damages.

Where The Concept Began

                                                 

At the end of the nineteenth century, Ebenezer Howard envisioned a new kind of city that would, he believed, gradually transform society if enough of them could be built. His vision combined both physical planning and social engineering ideas. When the garden city idea was transplanted to the United States it was put into practice by real estate developers who wished merely to maximize profits and did not share Howard’s utopian social beliefs. Consequently, they emphasized the physical at the expense of the social, paying far more attention to the layout of streets, location of swimming pools and parks, and the color of houses than to the nature of the communities they were creating.

American CIDS (common interest developments) thus took on a bifurcated nature: their physical planning became ever more sophisticated, benefiting from constant study and innovation, but their “constitutions” remained antiquated and in adequate. Residents were expected to run each other’s lives through private governments empowered by a stack of boilerplate deed restrictions, endlessly replicated and unchanged since before the Great Depression.

To offer green open spaces and other facilities while keeping density high, developers created common ownership arrangements. The arrangements required ongoing management and maintenance. Cities and counties expressed no desire to undertake that responsibility, and developers had no interest in subjecting themselves to a greater degree of involvement with government regulation, so residential private government evolved as the standard approach. All these factors make CID housing popular with developers.

This excerpt taken from the book Privatopia: Homeowner Associations and the Rise of Residential Private Government.  Author, Evan McKenzie