Yep, we hired a lawyer

The frustration with our HOA Board over allowing storage in our parking garage continues. The Committee (of which I was a member) that was formed to address the issue concluded after a ridiculous amount of time and multiple meetings to let things remain as they are, recommending that we implement a few rules to ensure things were safe (storage shelving wouldn't tip over, etc.) and we were within compliance (no exits or entrances were blocked, nothing was placed directly underneath a sprinkler, etc.). The Board, seated with members all opposed to this idea, decided to go against the wishes of the homeowners. But they are smart in how they chose to proceed. They want homeowners to buy a ridiculously priced storage cabinet - I believe they picked a pricey cabinet because they knew people wouldn't want to spend the money on them, which would ultimately result in people not storing things in their spaces. If you happen to have an item that will not fit in the cabinet, you have to fill out some form and the board will determine if you can then place the item in your spot outside the cabinet. Oy vey. 

Darr and I hired an attorney to fight back. I feel as if I did my part. I got involved. I was on the committee. I drafted the proposal. I even tried to get on the board when a position opened up. All to no avail. So, I'm waiting to hear if/when they respond to this letter: 

Dear Directors: 

Our firm represents Christie --- and Darren --- relative to certain rules adopted by the Board of Directors (the "Board") of the Riverpark Condominium Association (the "Association") relative to the Riverpark Condominiums (the "Project"). 

On or about February 8, 2011, the Board adopted a regulation (the "Regulation") requiring parking unit owners to purchase a brand and model of cabinet from the Association in order to store items within their exclusive, privately owned parking units, and if such cabinetry is not purchased and used, then any items stored within an owner's parking unit wil be removed. Please be advised that the Regulation is an unauthorized exercise of the Board's authority and violates Oregon law. 

The parking units affected by the Regulation are not common elements or even limited common elements under the Project's Declaration; the parking units are units purchased and owned by the unit owners, in the same manner as the residential units, and are subject to the same limitations on regulation. 

In order to be valid, a rule adopted by the Board must be rationally related to an express grant of authority. The Board cites no express basis or authority the Regulation-only the general provisions of Section 10.5 of the Declaration and 4.2 of the Bylaws, and Section 4.3.8 of the Bylaws, which is clearly inapplicable because Section 4.3.8 only applies to regulation of common areas, and the affected parking units are clearly not common areas. In fact, the Declaration clearly distinguishes between parking units owned by unit owners, which use is not expressly subject to rules and regulations in Section 6.2, and the general common element parking spaces, which use is expressly subject to rules and regulations in Section 6.4. The Board appears to be confusing their rights and authority relative to parking units owned by unit owners and parking units that are general common elements. 

Even under a general grant of authority, Oregon law requires restrictive covenants to be interpreted under the maxim of strict construction to promote full use of property and to help avoid imposing a restriction on a buyer of property that the buyer could not reasonably expect to know. Yogman v. Parrott, 325 Or 358 (1997). The Resolution seeks to prevent use of a parking unit that is allowed under the Declaration, and each buyer who purchased a parking unit, including Ms. --- and Mr. ---, did so with the expectation of such use, paricularly given the lack of other storage alternatives in the Project. 

If there is a general grant of authority to the Association and/or Board, then the rules and regulations must stil be reasonable, not arbitrary, and rationally related to a valid purose, a standard that the Regulation fails to meet. The Board cites two reasons for the Regulation. First, the Board states that it is obligated to assist unit owners in "maintaining the harmony and livability of the Association," which is too broad and vague to support the Regulation. The second reason cited by the Board is to assist unit owners in "protecting the property values of the individual members that make up the Association." There appears to be no basis for the conclusion that the Regulation will protect the property values of the unit owners, and no market analysis or other support has been offered by the Board. In fact, it appears that the Regulation will decrease the value of the parking units: if a parking unit owner's property does not fit in the Board required cabinets, then the parking units become less desirable. In addition, to be valid, the rule must be applied to all similarly situated unit owners; here, the Regulation applies only to condominium tower garage parking units and not the other unit owners in the Project, such as the townhome owners. The Board has failed to demonstrate that the Regulation is rationally related to any express grant of authority and equally applied. Consequently, the Regulation is invalid. 

The Board may adopt rules in order to make the Project safe. However, there appears to be no consideration for the safety issues in requiring cabinets that have wheels. Requiring purchase of specific cabinets is arbitrary and amounts to a de facto prohibition on use for anyone who cannot afford the specific types of cabinets that "must" be purchased from the Association. Further, an "annual percentage rate (APR) of 30%" for amounts owed to the Association is a clear violation of Oregon's usury statute. ORS 82.010. 

Finally, please be advised that removal of Ms. ---'s and Mr. ---'s personal property from their parking unit without their consent wil be considered conversion of their property (just as if the Association broke into their home to remove property) for which the Association, the Board and anyone acting thereunder may be liable for damages. 

We therefore urge you to rescind the Regulation to avoid the liability of enforcing an invalid and illegal regulation. Nothing in this letter shall be deemed a waiver of Ms. ---'s and Mr. ---'s rights and remedies and the same are hereby reserved. 

Lawyers are awesome. Also, it should be noted that our attorney did say it was unlikely we'd "win" since folks who fight HOA Boards rarely do. (At least not during the first round, it's usually on appeal.)