Item 26 - Public Hearing Vista Heritage Charter School (601 North Fairview Street)

Home Browse Search

December 7, 2023 Page 3 of 4 Exhibit D to the Second Amendment pictorially represents the Buildings A/B Common Area and Buildings C/D Common Area. As noted above, Parcels 3 and 4 are not included in the Association anymore. As such, the Buildings A/B Common Area is set aside for the exclusive use of the Buildings A/B Owner pursuant to the Second Amendment. We have included in this letter certain information regarding the financial responsibilities of Buildings A/B and Buildings C/D to each other pursuant to the Second Amendment. It seems clear the intent of the Second Amendment was to relieve both the Buildings A/B and Buildings C/D owners of any financial responsibility for the maintenance costs for each other's respective buildings. Section E of the Preambles to the Second Amendment makes that plain. We can only surmise that the Buildings C/D owners wanted to limit their financial exposure to the maintenance costs associated with Buildings A/B and, to effectuate that goal, essentially "gave up" their respective rights to the Buildings A/B Common Area. Pursuant to the Second Amendment, Buildings C/D owners were relieved of any financial obligation to maintain the Buildings A/B Common Area and, in return, ceded the exclusive use of the Buildings A/B Common Area to the Buildings A/B owners. In my opinion, that appears to be the exchange the Association contemplated by the Second Amendment. By all terms of the OCRs, this agreement, in our opinion, seems fair and reasonable; the Buildings C/D Owners cannot demand to manage the use or operation of the Buildings A/B Common Area without maintaining fiscal responsibility for those areas. We would note that a public comment submitted on or about December 6, 2023 to the commission references a "Unanimous Written Consent of Members Document" apparently dated June 9, 1993. In response, please note the following. First, a unanimous written consent is not a document. It is a certificate memorializing a type of corporate action used to authenticate a document. In any event, the reference to the consent appears to be a unanimous written consent used to update the Association Bylaws sometime in 1993. However, the bylaws were last updated in 2009 so any previous versions are now void. Second, the Bylaws in any event could not override or confer any legal rights separate and apart from the CC&Rs. Whatever map may have been included as an exhibit to the 1993 bylaws are therefore irrelevant as a result. Have included a copy of the 2009 Bylaws as an Enclosure to this correspondence; we received these Bylaws directly from Dr. Wilson who, we can attest, received them from the Association's Property Management consultant. Based on my review of the CCRs, it is our opinion that the owners of Buildings C/D owners do not have any property rights in Parcel 1, Parcel 2 and Hansberger & Klein, A Professional Law Corporation z nez ui e 357, emecu a, 9z591. ice: 577 0 3 ax: 909 49 City CciC�l www.hkschoollaw.com '� /2024