Letter

Greg Allen apparently decided to publicly issue a very disingenuous and dishonorable communication. The letter disparages the homeowners that are asking questions and is hiding the fact that Greg Allen had met with one of our attorneys himself. Greg Allen is also very aware that our analysis is well founded and verified by several competent independent law professionals.

We cannot even be sure Greg Allen wrote the letter himself. It is not dated nor signed. The letter is a collection of already debunked misinformation and deception that was presented to homeowners earlier in a meeting with Rick Byers. The fact that the letter is not signed and dated does not free Greg Allen from liability. The letter will be legally attributed to him by the fact that the Administrator posted it as official HOA statement.

The central claim of the letter is the HOA is run on “de-facto” regulations and rules. De-facto means: exercising power as if legally constituted (Miriam Webster). Claiming “de-facto” is nothing else than a confession the HOA is not run on legally constituted rules. Which is exactly the point concerned Homeowners are making.

Special interests are massively interfering with Homeowners rights to manage their affairs in a democratic and fact based way. Rick Byers is paying for lawyers to push his agenda with pandering unqualified legal opinions and has undue influence on the Administrator and acting board. This is preventing a constructive dialogue and resolution of problems.  The Board and the Administrator rely on lawyers paid by Rick Byers which poses a tremendous conflict of interest.  Any reasonable Board and Administrator would stay away from such an arrangement.

Unfortunately this letter removes the last doubts that the acting Board and Administrator are wholly in the pocket of the former developer and are working against the Law and the best interest of property owners.

Detail 

The following page examines the arguments from an undated and unsigned letter of the Chairman of the acting Oversight Board that the Administrator posted in a Facebook Group.

1. Approval by the Municipality

When a developer requires permits for a subdivision, they must present the plans, required land use documentation, environmental studies and other documents related to the development. The Municipality will approve those plans and the real estate development.

This Municipal review and approval does not include a legal review and approval of the Regime bylaws and regulations. This missing legal verification is a known problem in Mexico and has led to many Condominium Regime throughout Mexico to be incorporated with illegal bylaws.  Any objective and qualified attorney familiar with Condominium Regimes will be able to inform our Oversight Committee about this.

It is therefore patently absurd to say, because the Municipality has approved a development project, this is proving the incorporation of the Regime was legal.

It is also absurd and patently false to say anybody has said the development was illegal. The subdivision and the deeds are fine, what is wrong is that the Administrator enforces unlawful regulations in the operation of our Condominium Regime.

2. Notarization

A notarization is an act of documenting the authenticity of a document. It does not signify that the content of a document is legal or correct in any way.

The Oversight Committee could notarize meeting minutes in which Rick Byers is declared King of Haciendas Palos Verde. Such a notarization would make Rick Byers as much a King as a notarization of other unlawful meeting minutes would magically make those lawful.

To argue a notarization makes a document legal is absurd and only demonstrates a shocking level of ignorance.

3. Requirements to hold a position in HOA Management 

 The law requires Administrator and people involved in the management of a HOA to be educated and knowledgeable in the law.

Our Administration and Oversight Committee are far off from meeting that requirement. That is why they exclusively rely on resources provided by special interests.  To fulfill their obligations, one would expect they would obtain independent, objective and qualified counsel and compare notes with the objective and qualified counsel that are provided by the Homeowners asking these questions.  This is the obvious path to a resolution that is in the best interest of all Homeowners.

Instead they behave like the shoplifter who was caught and complains about police “harassment” at his arrest.

4. Touristic Residential

On request of our counsel the President of Oversight Committee and the counsel provided by special interests confirmed that they have no documentation whatsoever to support the claim HPV would be Touristic Residential.

After that was established beyond any doubt, the acting President of the Oversight Committee brings up a “de-facto” claim.

What does de-facto mean? (from Miriam Webster dictionary

Definition of de facto 

1: being such in effect though not formally recognized 

2: exercising power as if legally constituted

De facto describes practices that exist, whether or not they are officially recognized by laws or other formal norms. (Wikipedia)

Claiming HPV a “de-facto” Touristic Residential really says:
We behave like it, although we are neither recognized nor legally constituted as such.
A clear admission that the Oversight Committee very well understands they are acting completely outside of legal norms.

The apparent believe on part of the acting President of the Oversight Committee and the Administrator that a claim of “de-facto” would grant them any kind of legal cover for their illegal administration is mind blowing. It is a testimony to their  utter incompetence combined complete and utter lack of any necessary qualifications for the positions they pretend to fill.

5.  Homeowner Assembly as highest Authority

There is a priority of laws in Mexico. The highest law is the Federal Law after that comes the State Law, in case of Baja California Sur The Civil Code and then the Regime Law. After that come Regime Regulations and after that the Bylaws of a Regime.

If any of this levels conflict with a higher level the higher level prevails over the lower level.

Example: if there is a State Law that conflicts with Federal Law the Federal Law prevails. Same thing with Regime Regulations, if they conflict with the Regime Law the Regime Law prevails.

While the Homeowner Assembly is the highest authority in a Condominium Regime it is still subject to all the upper laws. An assembly can not override Federal or State Law but is subject to it.

If regulations do not comply with the law, either by their process of creation or in their content, they are illegal and void and the Law prevails. If such null and void regulations get enforced it makes the enforcement in illegal act.

6. One major consequence of an illegal administration

The board claimed at one point there were about 10 lots past due on their HOA fees. This means the HOA is lacking about 10% of actual funds it needs to run the HOA.

The ultimate remedy for past dues is that a HOA must eventually go to court and ask for enforcement like a public auction which proceeds will be used to settle the past dues.

The court will verify if the demands of the HOA are legal. If, like in our case, the Administrator is assessing the dues not in conformity with the law, the court will throw out any demands for payment the HOA may have.

Illegal acts by the Administrator ultimately cripple the ability of the HOA to enforce payments. As a result, there will be permanent budget deficits. As a possible result vital services will have to be cut and in the extreme the HOA can cease to function all.

Therefore it is the best interest of all Homeowners that an HOA Administration operates within the Law.

7. Special interests

The method of calculating HOA dues in HPV does not conform with the Law and favor empty lots heavily over build lots. In the beginning the developers held many empty lots. By shifting HOA expenses from empty lots to build lots the developers have saved over the years an estimated 100-200k USD.

Rick Byers claims he has by now sold all lots and is no longer involved as developer and has handed the HOA to the Homeowners. Yet he continues to strive for inappropriate influence by heavily pushing misinformation. If one can believe Greg Allen, Rick Byers must have paid thousands of pesos for attorneys to do his bidding. It really raises the question, why is he doing this.

It is completely inappropriate for an Administrator and Board to favor special interest over the interest of legitimate Homeowners