In 2012, several important Covenant amendments were improperly “approved” and added to the Covenants even though they failed to garner the required number of approval votes, and in one case with no votes whatsoever. See 2012 Covenant Votes and 2012 Covenants.
At best, “approval” of the failed items was the result of incompetence on the part of the Board of Directors and, possibly, legal counsel.
While it is too late to sue in court to get these improperly “approved” items removed from the Covenants, there are corrective actions that can be taken:
- The current Board could correct and re-record the corrected Covenants.
- The improperly approved amendments could be individually voted on again.
Option 1, correcting and recording the corrected Covenants with Douglas County, has precedent. The Bylaws and Covenants were both improperly amended in 1993. In 1995, a new Board reviewed the amendment procedures used in 1993, documented the problems and corrected corrected both documents accordingly. See 1992-1993 Covenant Issues and 1995 Resolved for more information.
The 2020 Board, as of May 6, 2012, decided not to pursue either option. Since the 2012 voting problems were discovered in early November of 2019, a minority of the Board has urged the Board to notify Bannockburn Members of the those problems. Instead, and by their actions and lack thereof, the Board has decided that it has no obligation to notify Bannockburn Members of these problems and that Bannockburn Members have no right to be informed about them.
This is not the only time the 2019 Board acted badly. When the 2019 proposed Covenants failed to be approved in the 21-day voting period allowed by the Covenants then in effect, the Board decided to ignore the mandatory time limit for voting and arbitrarily extend it. (Fortunately, concerned Bannockburn Members were able to stop this perverse act of malfeasance.)
Since its founding there have been two metrics for who could vote on Bannockburn Bylaws and Covenants. Changes to the Bylaws require approval by 66-2/3% of the “Members in Good Standing” while amendments to the Covenants require approval by 66-2/3% of the Resident Owners. This difference is not uncommon with Homeowner associations and there are good reasons not to change it.
In 2012, the Board decided to use the “Resident Members in Good Standing” metric to approve changes to the Covenants, even though this was clearly prohibited by the Bylaws and Covenants. The 2012 Covenant ballot cover letter states this decision was based on advice of James Bull of Bucholtz, & Bull, P.C. A 2017 letter from James Bull verifies his opinion. While the Bull opinion supports using 66-2/3% of the “Resident Members in Good Standing” as the metric for approving Covenant amendments, this opinion was believed by some to be deeply and fatally flawed. These concerns have been summarized by James Rogers, past Board member and 2020 Board member At Large, and were validated by a 2020 opinion (Aaron Goodlock of Orten, Cavanagh & Holmes, LLC). See Arron Goodlock letter.
See Article XI, 2. Separate Instrument of the 1998 Bylaws, and Article III, 2. Voting, Article X, 4. Amendments and Article X, 5. Manner of Voting in the 2002 Covenants, 2012 Covenant Ballot Cover Letter, 2017 Letter from James Bull, Concerns Regarding Bull Opinion – Summarized and Arron Goodlock letter .
When the Board recorded the 2012 Covenants with Douglas County Clerk and Recorder, the Recitals certified that all items had been approved by 66-2/3% of the Resident Owners. We now know various items failed to meet this standard and that this claim was false. See 2012 Covenant Votes and 2012 Covenants .
In summary, multiple items were improperly added to the 2012 Covenants. While it is too late to sue to get these items removed, the Board can recognize the improperly added items and make corrections accordingly. The status of these items could also be resolved by another vote on them. The Board wants to do nothing, With only one dissenting vote (James Rogers), the Board voted NOT to inform Bannockburn members about these issues.at their May, 2020 meeting.
Bannockburn-Watchdog was formed to:
- Protect the rights of Bannockburn members
- Keep Bannockburn members informed
- Monitor Board actions
- Force the Board to abide by the Bylaws and Covenants requirements
Join Bannockburn-Watchdog now to support this effort!
Documents and pages referenced on this page:
1998 Bylaws
1992-1993 Covenant Issues
1995 Resolved
2001 Covenants
2012 Covenants
2012 Covenant Votes
2012 Covenant Ballot Cover Letter
2017 Letter from James Bull
Concerns Regarding Bull Opinion – Summarized
Arron Goodlock letter