Owners representing more than 140 homes at Mesquite Country Club have sent letters to the Mesquite Board of Directors telling them to, in effect, roll back the weekend rental ban that was enacted after the vote of the CC&R's in late 2002.

Accompanied by a letter from Attorney David Darrin of the well know Palm Springs law firm of Schlecht, Shevlin & Shoenberger, the letter dated November 14, 2003 stated that "it appears beyond reasonable doubt that the Amended CCRS would not have passed had the Board disclosed in its ballot materials that the minimum rental terms were changed in the Amended CCRS."

The letter was sent to Mesquite Board Attorney Wayne Guralnick, and was also forwarded by separate mail to the Monarch Management Group, which has the management contract for the Mesquite Country Club Homeowners Association.

In the letter Attorney Darrin addressed the claim by the Board that they did not deceive members, a claim they made in the Fall 2003 edition of the "Mosquito" newsletter:

"However, the Board has yet to offer any explanation, in the Mosquito or elsewhere, as to why it failed to make disclosure of the change in the minimum rental term in either the ballot summary of that edition of the Mosquito newsletter wherein it purported to summarize the material changes in the Amended CCRS. Given that the Amended CCRS were barely passed, it certainly appears that this disclosure was not made because such a disclosure would be divisive and result in the ballot defeat of the Amended CCRS."

Attorney Darrin went on to say that it appears that the Board does not accept any degree of responsibility for the breakdown in communication regarding the CC&R vote. He outlined what he says the Board instead has essentially argued:

• The membership was at fault for not reading the Amended CCRS in their entirety before voting on it. However, Darrin said, if the Board intended to “pick and choose” what issues to disclose in the summaries it provided--as it did-- it had a responsibility to clearly indicate to owners that the summaries we incomplete. They did not do so. By providing an incomplete summary to owners the Board, in effect, tried to have it both ways.

• The Board could have changed the rules governing minimum stays anytime in the Mesquite Rules and Regulations . Yes, said Darrin, they could have. Which begs the question, why didn't they just do that? It would have been much simpler. However, he said, the Board presumably understood that any change made simply through the Rules and Regulations could have been changed back by a future Board in the same way. He concluded, “It appears that the (Board's) intent was to cast this particular change in stone so as to effectively hinder its future modification by a successor board.”

• The membership can seek at its own cost to pass an amendment to the Amended CCRS modifying the minimum rental stay. This “Trojan Horse” argument means, as a practical matter, said Darrin, owners will now have to produce 301 of 350 votes (i.e. 86% of the voting membership which cast the original votes) to now reverse this Amendment. "It is disingenuous for the Board to push through a change on this divisive issue in this matter and to shift to membership the responsibility for undoing the wrong through a new membership vote,” said Darrin.

Finally, Darrin suggested that if the Board were really interested in addressing the interests of the nearly 45% of the owners who now say they mistakenly voted “yes” on the original initiative, only to find out months later that they had also revoked their rental rights, they should put the matter to another vote where the outcome could be decided by a simple majority of members who cast their votes.

If the vote is in favor of restating the longstanding rental policy, then a provision could be adopted by the Board to that effect as a settlement of potential costly litigation, said Darrin.

 

At the time of this posting, a response has not been received back by the HOA Board of Directors to Attorney Darrin's letter.

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