Attorneys Thomas Affeldt and Scott Byrd (with different law firms) were hired by some Burning Tree South lot owners, to study the documents. These attorneys advised Burning Tree Master Association board of directors that unless the Master Association has to the authority to make such assessments against the lot owners in Burning Tree South, then, the filing of any lien for failure to pay the assessment would be unauthorized and unlawful. They also advised the Burning Tree Master Association board of directors that filing of an unauthorized lien for failure to pay dues would constitute slander of title. Both the Master Association and the President could be liable for treble damages, court costs and attorney fees in such a situation.
A covenant is binding and unlike other additions, there is nothing in the Burning Tree South Addition Certificate of Dedication that says lot owners would become a member of Burning Tree Master Association.
BOTH BURNING TREE MASTER ASSOCIATION ARTICLES OF INCORPORATION STATE THAT THEIR MEMBERS ARE OWNERS ASSOCIATIONS, SO WHY DO THEY CONTINUE TO DEMAND MONEY FROM BURNING TREE SOUTH ADDITION LOT OWNERS?
SEE FOR YOURSELF WHAT THE BURNING TREE MASTER ASSOCIATION GOVERNING DOCUMENTS STATE:
- Articles of Incorporation: ARTICLE V MEMBERSHIP Every Burning Tree Area Owners Association approved by Declarant shall be a member of this corporation.
- By-laws:ARTICLE III MEMBERSHIP Every Burning Tree Area Owners Association approved by Declarant shall be a member of the corporation.
THE OFFICE OF THE OKLAHOMA SECRETARY OF STATE HAS ADVISED THAT BURNING TREE MASTER ASSOCIATION ARTICLES OF INCORPORATION HAVE NOT BEEN AMENDED TO CHANGE THIS TO THE LOT OWNER. THERE WOULD HAVE TO BE A LAWFUL MERGER, FOLLOWING OKLAHOMA LAW, IN ORDER TO MERGE THE CORPORATIONS. (FURTHER, THE BY-LAWS OF A CORPORATION CANNOT CONFLICT WITH THEIR ARTICLES OF INCORPORATION. OWNERS ASSOCIATIONS, THAT WERE APPROVED BY DECLARANT*, ARE STILL THE ONLY MEMBERS.) To find out if a particular owners association is a member you will need to refer to the Certificate of Dedication.
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TAKE A LOOK AT THE BURNING TREE SOUTH CERTIFICATE OF DEDICATION
WHAT ASSOCIATIONS DO THE BURNING TREE SOUTH CERTIFICATE OF DEDICATION STATE THAT BURNING TREE SOUTH LOT OWNERS BELONG?
The Certificate of Dedication for Burning Tree South Addition states that Burning Tree South lot owners are members of Burning Tree Area #4. Assessments will be made for ACTUAL repairs, upkeep, and maintenance of the common area of the Association of which the lot owner is a member. Burning Tree South lot owners have an easement to use BTMA’s facilities. )
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THE BURNING TREE SOUTH COVENANTS STATE:
H (c) Membership in Home Owners Association.
- Any owner of any lot within said subdivision shall become a member of Burning Tree Area #4 Association, Inc.
- lot owners have an easement to use the facilities of the Association of which said lot owner is a member, and of the Burning Tree Master Association, subject however, to the rules and regulations thereof.
- Membership in the Association shall be subject to assessments for the actual cost of maintenance, repair and upkeep. Annual assessments for maintenance, repair, and upkeep shall be a lien upon any lot of any owner in said subdivision,and shall be subject to enforcement as provided in the By-Laws of the Association.
H (d)
- The owner of any lot, by acceptance of a deed therefor, shall be deemed to have accepted membership in the Burning Tree Area #4 Association, Inc. agreed to abide by the rules and regulations of the Association concerning the use of the facilities, open spaces and recreation areas;
- and agreed to pay assessments made for the maintenance, repair and upkeep of the common areas of the Association.
Title company attorneys have advised that Burning Tree South lot owners do not belong to Burning Tree Master Association. The Burning Tree South covenant is very clear that Burning Tree South lot owners belong to Burning Tree Area #4 Association, Inc., thus any reference made to “the Association” in the Burning Tree South Certificate of Dedication refers to Burning Tree Area #4 Association, Inc.
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According to the office of the Secretary of State Burning Tree Area #4 Homeowners Association, Inc. is a “stand-alone” corporation, with no ties to the Burning Tree Master Association. The Articles of Incorporation have never been amended.
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Burning Tree Master Association board of directors have ignored requests made by lot owners and attorneys for homeowners in Burning Tree South to see any document that give s any authority to the Burning Tree Master Association to assess and/lien Burning Tree South lot owners.
However, while refusing to produce any authority Burning Tree Master Association board of directors continue to demand money from Burning Tree South lot owners under threat of a lien, and they have actually filed liens on Burning Tree South lots owners. Burning Tree Master Association board of directors have also refused to provide lot owners with the audits or required documentation to support their claim that the by-laws were amended, to no longer require an audit.
Based on laws of the state of Oklahoma and the Burning Tree Master Association by-laws, Burning Tree Master Association board of directors claim that Burning Tree South lot owners are members of the Burning Tree Master Association then lot owners in Burning Tree South must be allowed to inspect records to see where the money that was demanded of them, by threat of lien, has been spent.
Oklahoma State Law and Burning Tree Master Association By-Laws that provide for an Inspection of Books and Records by any member:
- Oklahoma statute Title 18. Corporations Chapter 22 – Oklahoma General Corporation Act Meetings, Elections, Voting, and Notice Section 1065 – Inspection of Books and Records Section C:“ 1. 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 pursuant to the provisions of subsection B of this section or 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 for an order to compel an inspection. The court may summarily order the corporation to permit the shareholder to inspect the corporation’s stock ledger, an existing list of shareholders, and its other books and records, and to make copies or extracts therefrom; or the court may order the corporation to furnish to the shareholder a list of its shareholders as of a specific date on condition that the shareholder first pay to the corporation the reasonable cost of obtaining and furnishing the list and on other conditions as the court deems appropriate.” providing to attorneys or lot owners that they do, in fact, have that authority.
- Burning Tree Master Association By-Laws ARTICLE X (1) Books, records and papers of the corporation shall at all times during reasonable business hours, be subject to inspection by any member. The Declaration, the Articles and these Bylaws shall be available for inspection by any member at the principal office of the corporation, where copies may be purchased at reasonable cost.
Oklahoma General Corporation Act § 1014.1. Interpretation and Enforcement of the Certificate of Incorporation and Bylaws Any shareholder, member or director may bring an action to interpret, apply or enforce the provisions of the certificate of incorporation or the bylaws of a domestic corporation in the district court.
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Required of the Burning Tree Master Association board of directors by their by-laws:
- A COMPLETE RECORD OF ALL ACTS MUST BE KEPT: ARTICLE VIII POWERS AND DUTIES OF THE BOARD OF DIRECTORS It shall be the duty of the board of directors to: (a) cause to be kept a complete record of all its acts and corporate affairs and to present a statement thereof to the members at the annual meeting of the members or at any special meeting, when such statement is requested in writing by one-fourth (1/4) of the members who are entitled to vote;
- ANNUAL AUDIT ARTICLE X BOOKS AND RECORDS 2. There shall be an annual audit of the books and records of the corporation by an independent public accountant and a copy thereof shall be sent to each member within thirty (30) day after completion thereof
- RECORDING OF VOTES AND MINUTES OF ALL MEETINGS AND PROCEEDINGS OF THE BOARD ARE TO BE RECORDED BY THE SECRETARY: Article IX Secretary (c) The secretary shall record the votes and keep the minutes of all the meetings and proceedings of the board and of the members;
- IN THE ABSENCE OF A MEETING THEY CAN TAKE ACTION BY OBTAINING WRITTEN APPROVAL OF ALL DIRECTORS: Article VII 4. The directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written approval of all the directors.
- EVERY ACT OR DECISION DONE OR MADE BY A MAJORITY OF THE BOARD SHALL BE REGARDED AS AN ACT OF THE BOARD: ARTICLE VII MEETINGS OF DIRECTORS 3. Every act or decision done or made by a majority of the directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the board.
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Burning Tree Master Association board of directors refuse to have a true audit claiming that the “review of the taxes” the BTMA board of directors has had in the past is good enough yet the by-law require a complete record be kept.
Again, Based on laws of the state of Oklahoma and the Burning Tree Master Association by-laws, by Burning Tree Master Association board of directors claim that Burning Tree South lot owners are members of the Burning Tree Master Association lot owners in Burning Tree South must be allowed to inspect records to see where the money that has been demanded of them, by threat of lien, has been spent.
RECORDS HAVE BEEN REQUESTED BY BURNING TREE SOUTH LOT OWNERS, including all supporting documents* for any amendments for the following:
- An amendment by Burning Tree South Addition lot owners to become members of the Burning Tree Master Association. Burning Tree South lot owners are members only of Burning Tree Area # 4 Association, Inc, according to the Burning Tree South Certificate of Dedication. This Certificate of Dedication states that to amend the covenants it requires a written instrument signed by a majority of Burning Tree South lot owners and filed with Tulsa is required to amend the covenants within the Burning Tree South Certificate of Dedication. Tulsa County has advised there is no amendment.
- Burning Tree Master Association Articles of Incorporation AND the Burning Tree Master Association by-laws state that the members are owners associations, not lot owners. The office of the Oklahoma Secretary of State has advised that there has been no amendment to the Burning Tree Master Association Articles of Incorporation to change the membership from owners associations to lot owners.
- A merger of Burning Tree Area #4 Inc and Burning Tree Master Association Inc would require a vote by members of both Burning Tree Area #4 Inc and Burning Tree Master Association. (There are also specific requirements in Burning Tree Master Association Articles of Inc and the by-laws in order to change the membership from owners association to lot owners. ) Burning Tree Master Association needs to provide all supporting documents. The office of the Oklahoma Secretary of State has advised that there has been no amendment to the Burning Tree Master Association Articles of Incorporation for a merger.
- Burning Tree Master Association is required to have an annual audit, and provide copies of the audits to all members, according to their own by-laws. If there has been a vote taken by the members then a request has been made for Burning Tree Master Association to provide all supporting documents that a legal vote to change their by-laws, was taken.
- Burning Tree Master Association board of directors claim that a review of the taxes is just as good as an annual audit of the books and records. Burning Tree Master Association would need to provide all supporting documents that there was an amendment to the Burning Tree Master Association by-laws in order to avoid having audits and providing results of the audits to the members.
*Supporting documents include but are not limited to: the agenda and meeting notes from where it was recorded that it was discussed to be put out to vote, votes of the directors, a copy of the notice that was sent to all lot owners (including those in the apartments and duplexes as they are lot owners, just as the lot owners who have homes on their lot and who have been assessed) advising that a meeting would be held where the lot owner would vote in person or by proxy for an amendment to bylaws and/or the articles of incorporation, along with the board minutes showing lot owners who did vote in person or by proxy, along with the signed proxies, the sign in sheets from the meeting, etc.
Burning Tree South Subdivision 