existed in this development was used for boating and fishing by our clients it was located between two subdivisions they the states and the states west on a parcel of land that was owned by the dayton states then the water company  our position is that the data states they have and water company is a homeowners association administering a common interest community that as that's the find in our stashes there are a lot of different references the common interest communities in our statutes the most frequently referenced is the definition contained in the code of the civil procedure then the reason for that is because in  organizations that had long existed but had never had any statutory definition applied to them so that the records of which these are first used that definition when describing these sorts of organizations it's important that the court determined that the this is a common interest community and that that's because there's a special legal duty and special legal duties that go along with that characterization and specifically the directors of such an organization  containing the governing documents that the there are a long list of obligations that are required by the the corporation or the association the most prominent of which in the earth as a corporation or make as a maintenance of the van essentially the main true that's the only other thing right and as i understand it no water system is the address of course question no water system was ever created despite the fact that was one of the things that was intended to be would like it despite all of the duties that are imposed on the association here the fans would like the courts except the fact that there's no remedy for lies we have we had a lake when we purchased our property we don't have a lake anymore that's unfortunate but a common interest in dissociation and second we wanted the court to determine that as such there are a list of duties most prominent of which is that is the maintenance of this dam will of the court we want to the court also to determine that there is was a breach if you should claim against individual board members we believe that breach to be ongoing as we stand here today and so that that then is restored and count seven was a contract like back to the  homeowner's association ministry of common interest again it's the final several statutes at interestingly very right now before the general assembly has a bill pending to adopt a definition can think of a common comprehensive manner than had ever been done before in the past because they were really governed mostly by common law the economy kind of moves are different because they were created by statute in this case it's quite the reverse the statute was created to so also there are lots of cases that are before the creation of this particular association that identify as litigants homeowners association so there's no there's this was not a recreation  that came along with the one nine hundred eighty four amendments the causal procedure they existed for a long time and they were being recognized by those that the reason why it's important again is because the directors condominium have an obligation to strictly adhere to the provisions of their got governing instruments and that failure to do so can be it is a breach in moreover that can result not only him he which will live or a levels of the association but individual liability  directors who don't follow their their insurer council has raised and rightly so that that that strict adherence rule as the condominiums has been diluted somewhat they raised the goldberg another condominium case v the proposition being that a court will not disturb the judgment of a board of a condominium provided they've if  trumpeting or own governing instruments provided they've done so in a reasonable manner i'm going to suggest in a moment that they couldn't possibly have done that in this case couldn't possibly be reasonable on the written declaration than the rest written documents that we have here so the be raised but again that is designed to protect directors from honest mistakes of judgment one of the requirements is to be coming form of their duties one of the we also argue that that means it has to repair it when it's no longer serving its motion and replaced our position is that it could not possibly be a reasonable reading of the governing instruments to say that there is no obligation to do that or they can do that is to obtain a legal opinion that says we think you have the authority to take the action or take in this case we had the opposite we have a legal opinion rendered on behalf of the association by mr martin who's a partner of one of the now associations counsel that said i believe that this is associated as ate the right and the duty to do these repairs and this was done in connection with  a loan several years ago where funding was being sought for engineering to evaluate what was going to have to happen to get this thing replaced and so there's a little bit in that says i think that there is an obligation to do that so not only the documents clear about what the obligations are the little opinion says yes that's the obligation of this association we think they've acted in a matter consistent with both and that is where individual  become exposed the liability for this to the contractual relationship thank you this is a contract because it is the organiser of the southerners are governed by covenants that run with the land every single homeowner knows when they take title what the conditions are that affect the property or take the declarations were recorded in this case identify that there's going to be a corporation created for the purpose of maintaining a dam and it also sets forth the articles incorporation set forth  created by the dam the purpose of which is the critical way this is an ongoing breach of the contractual obligation of the association to the homeowners of the association and particular ours because of the lakefront nature of their property that doesn't any longer exist we got damages as a result now the consideration for this relationship is that we are clients pay assessments and always have the association has the authority to collect assessments for the purposes set forth in the in  to the point of said meet certain statements about the contents of these documents which i believe is an accurate instead of going on what the contents of the documents are i think it would be clearer if i said what they don't you to address the course last question the answer is yes there have been expenditures in assessments for the purpose of repairing the damage the past it's it's hear it from time to time and the association has assessed homeowners to fix done are are very clearly indicative of their status as an associate they seem homeowners to collect assessments that's the next hour mr doppler listed the whole list of things that they can't do exercised that the board of directors to suggest that they didn't have that power certainly flies in the face of what they've done  need to do that never mind we're not one of those is entirely this ingenuous i tried to emphasize that the brief he did is something the court needs a close friendship also the legal opinion i don't know what the practice of most attorneys is provisions of the declaration the the association has an obligation to to maintain property insurance in taxes and they have the right and authority to assess for that purpose that's the definition of common interest essentially there's no magic act or ceremony that has to happen before this is what it before it's been cleared to be that and the point of the the act that first defines it is that one of the the controversy that existed from the moment the dam washed away and we need a demand on this association to bring it back or to do its duty to assess to repair the standards that you know requires the last levels of that here's my honest understanding is that they haven't done anything mostly because of the lack of resources to do a lot of course none of these things but that's how  was first of all we are the man said hey you notice told us we have to do certain things here so let's get in here and do it if you don't we think you're liable for for the lack of action we did ask the court for an injunction initially so read we wouldn't completely remove it and return requires the destruction and potentially a more plus the fashion but that doesn't prevent the acts of preparation to do it it just i don't want one too far afield from your question here i hope i've answered it but mr devil are suggested that perhaps the court has to make all these different determinations about cost