Roads Are Easements Not Planned Communities Or HOAs

[TomK]

There are quite a few who believe me..

Like I said.. you appear to be a danger to yourself and your community

Patricia seems obsessive, but where's your evidence that she's a danger to herself or anyone else? I'm not worried she will stalk and kill me or anyone else. She doesn't come across like that, but you claim she's a danger to herself and the community. Frankly, given your history on PW, I'm much more concerned about you. But please provide the evidence to back up your claim/fear.

[Patricia]

TomK, you concern is touching. Or are you just trying to as some say, "stir the pot?"

The only "danger" I pose (and some on the HPPOA board and their development happy supporters know it) is that MORE people are going to know the truth and understand that most substandard subdivisions in Puna, Hawaii (HPPOA being one of them) are not HOAs or even mandatory community associations. Most are just "corporations" that for some god-awful reason were allowed to "compel" owners to pay them money that is supposed to be restricted and used for roads (roads only).

The other "danger" is that MORE might start wondering WHY a board and their supporters felt that it was okay to just ignore deed restrictions (not the same as zoning) and think it was fine to challenge a HUGE multi-million dollar corporation after the fact.

Or how about this "danger," the fact that this board and their supporters have managed, because of their actions, to get the HPPOA corporation sued. Sued for; breach of fiduciary duty, adopting law that is erroneous, violating bylaw, and violating deed restrictions (which HPP owners, as per the written deeds, have a right to defend).

As I told MyManao, the truth is only dangerous if you have something to hide

[HiloJulie]

Knowing full well that I am in no doubt stepping into a crater full of red-hot lava here by posting this, but the ONLY Hawaii Supreme Court Case dealing with HPPOA (and its predecessors) is from 1983 and not 1981, in which the court found that:

"The court below (lower court) entered findings of fact and conclusions of law, holding that the lot owners in Increment I, whose deeds did not contain road maintenance clauses, nevertheless had a duty to contribute to road maintenance where their lots abutted on the private subdivision roadways. However, the court (lower court) dismissed the action because the proposed relief, by way of a mandatory injunction requiring payments to Paradise Hui Hanalike, a non-profit corporation, was inappropriate. The court (lower court) held that road maintenance by that corporation was ultra vires; that the corporation by-laws deprived out-of-state lot owners of a right to vote for officers and directors of the corporation; and that the proposed means of carrying out the assessments by requiring payments to that corporation were innately unfair."

The Hawaii Supreme Court upheld the duty of Increment 1 residents to pay road maintenance fees but reversed and remanded the method of remedy to enforce that legal obligation back to the lower court.

"We hold, as did the court below, (lower court) that the lot owners whose lots abut on subdivision roads have a legal duty to contribute to necessary maintenance of the roads in the subdivision even though their deeds are silent on the matter. Accordingly, the case is remanded to the circuit court to fashion, by decree, an appropriate remedy to enforce that duty."

Paradise Hui Hanalike v. Hawaiian Paradise Park Corp., 66 Haw. 362 | Casetext Search + Citator

[Patricia]

"but the ONLY Hawaii Supreme Court Case dealing with HPPOA (and its predecessors) is from 1983 and not 1981, in which the court found that..."

You are right about the date. It was 1982 (apologies). But you are incorrect about the "once." Casetext is limiting that way (sometimes you have to go looking for hard copies) and it does not help that PHH (now HPPOA) either forgot the other rulings or decided not to share them.

But yes, the '83 ruling, to which you are referring does state that owners have a legal obligation to contribute to road maintenance. A no brainer (at least for me personally) and probably the least complicated ruling to come out of 6595. Unfortunately, there were more difficult issues, which the lower court and PHH (now HPPOA) were to address, prior to 1983. However, PHH (now HPPOA) did not address all of the issues (or they did and then promptly forgot them again).

PHH (now HPPOA) had a rather cunning attorney. In fact, they had several, who managed to talk their way, through, around, and beyond. In fact, there was so much of this that the cases (it became plural) which spanned 20 years, were so dreaded by the courts, appointed attorneys, receivers, property managers, etc., that they just wanted it DONE. So, when the opportunity presented itself, as in a major case participant died, leaving the case ruling unchallenged, everything was hastily run through, avidavited, signed, and FORGOTTEN. 

There are more Supreme Court rulings. I've seen them. You will just need to dig. It isn't as easy as Google, but it can be done. 

From the SC:

"It is patent that the Plaintiff (PHH now HPPOA ***) seeks to be clothed with quasi-governmental powers to assess land owners for road maintenance where its organizational documents do not appear to authorize the functions for which the assessments are to be levied. Even should that authority be recognized, the proposed means of carrying it out is innately unfair."

*** added for clarity

[Obie]

"were so dreaded by the courts, appointed attorneys, receivers, property managers, etc., that they just wanted it DONE."

Hence the reason the legislature adopted HRS 421J.

[Patricia]

The Hawaii Supreme Court decision addressing one (out of many concerns) of PHH's (now HPPOA's) "innately unfair means" of carrying out their "authority," was their requirement that, "only members of Hui Hanalike are entitled to vote for officers and directors." The Supreme Court called this "utra vires."

That said, PHH (now HPPOA) and their attorneys decided to try to skirt that issue and MAKE all HPP Owners members of the PHH (now HPPOA) club. However, THAT decision was challenged and language, required by the court to advise HPP owners of their rights was ordered. 
That language was to include:

1. that it be made clear that lot owners can decline to be members of the Association; and

2. that it be made clear that mandatory dues be imposed only if the court approves such a provision. 

So, as per the decision of the Hawaii Supreme Court and the lower court, HPP Owners can CHOOSE whether they wish to be association members or not. But, because all HPP Owners must pay mandatory road fees (not dues) HPP Owners are entitled to vote, whether they are asssociation members or not. 

---

Hence the reason the legislature adopted HRS 421J.

Obie, 421J has been around since July 1997. PHH (now HPPOA) was involved in court proceedings during that time and well after. If 421J would have applied back then, why was it not? 

421J is not recent legislation. There were recent modifications (amendments) but these were not major (mostly having to do with proxies). Nothing "new" about 421J makes it anymore relevant now, to HPP and HPPOA, than it would have 27 years ago.

[Patricia]

421J is almost 28 years old. It is NOT new law.

[TomK]

TomK, you concern is touching. Or are you just trying to as some say, "stir the pot?"

I simply asked MyManao a question and requested that he show why you're a threat to yourself and others. You know, asking questions here really seems to upset some people.

[Patricia]

"You know, asking questions here really seems to upset some people."

I STRONGLY encourage asking questions. No upset from me.

[TomK]

But you don't answer them.