Here is the status:
Dear Board Member,
I urge you to consider and act upon the attached attorney’s letter. Specifically, the non-compliant Board members (and they have been non-compliant for a very long time) need to resign immediately as per the laws cited in the attached letter. In addition, hiring an unqualified, unlicensed person as the manager for Sky is irresponsible and not in the interest of Sky owners.
Regards,
Thomas MichaelChief Executive Officer
-------------
Michael Management Corporation
SAP training made easy.http://www.
Michael Management Corporation
SAP training made easy.http://www.
From: David Williams [mailto:davidwilliams329@
Sent: Thursday, March 24, 2011 2:17 AM
To: undisclosed-recipients:
Subject: SKY: HOA Concerns (READ ASAP)
Sent: Thursday, March 24, 2011 2:17 AM
To: undisclosed-recipients:
Subject: SKY: HOA Concerns (READ ASAP)
IMPORTANT REGARDING SKY LAS VEGAS
Dear Sky Owners:
I am sending this email regarding my deep concern for the Homeowners Association and the operation of SKY Las Vegas. I would encourage you to read the following email and attached legal letter regarding issues at SKY. The legal letter was recently sent to the HOA Attorney (Michael Schulman) and the HOA Board. I personally hired an attorney to help with the situation given my level of concern and wanted to share this with you so you are informed and have the opportunity to influence the outcome.
CURRENT SITUATION
As you may know, our HOA and General Manager has resigned her position. This position is responsible for managing our entire building and oversees all operations, so its important for us to get a qualified person with experience. The HOA Board is looking to fill this vacant spot and is unfortunately considering non-qualified candidates based on information shared with me, which is the reason for my communications.
· HOA Board is considering the developer's Leasing Agent as a candidate for this position. I am told that this applicant has no experience managing hi-rise buildings or an HOA but is enrolled in classes currently. This was validated and noted in the legal letter. It seems that all of her prior experience is in sales and leasing. These qualifications do not meet minimum qualifications to manage a hi-rise building like SKY.
· A temporary HOA Community Manager has been put in place by The Prescott Companies. Her name is Susan Green and she is an experienced hi-rise manager. She will remain in place until a permanent manager is hired. This gives the HOA Board time to find a qualified candidate.
· The Prescott Companies have provided other qualified candidates to the HOA Board. While I cannot speculate as to what decision the Board will reach with regard to hiring a manager, I have heard that the Board is leaning toward hiring the developer’s Sales/Leasing agent as the manager.
CONCERNS AND IMPLICATIONS
· Breach of Fiduciary Responsibility: The HOA Board has fiduciary responsibility to make decisions that are in the best interest of the building based on all information provided. It would be a breach of fiduciary responsibility if the HOA Board hires someone who is unqualified especially if they had qualified candidates provided to them by The Prescott Companies.
· Conflict of Interest: There is a clear conflict of interest with the HOA Board looking to put the developer's Leasing Agent in this role. We all need to be very concerned if this decision is made given we already have 3 out of 5 Board members (Aaron Yashouafar, David Pourbaba, Homan Taghdiri) affiliated with the developer. If we have a community manager who is also affiliated with the developer, we run a greater risk of having building decisions made in favor of the developer versus the remaining Sky owners.
· Board members behind on SKY HOA dues: From what has been shared with me in prior Board meetings and what I located in our HOA Financials, the developer owes the HOA significant amount of dues. Its against our bylaws to have anyone on the Board who has been delinquent for 30 days or more. Therefore, we have individuals making decisions for all of us homeowners and clearly shouldn't be based on the bylaws. The bylaws indicate that these individuals should resign immediately. This is even a greater concern given they are wanting to hire their own leasing agent as our next community manager and this is clearly a conflict of interest.
Needless to say, if the HOA Board decides to hire an unqualified candidate, they have breached their fiduciary duty and acted negligently. I find it unconscionable that our elected Board members would vote in favor of hiring someone without qualifications to assume the monumental responsibility which is the management of our building. They cannot actually think that doing so is in the best interest of the owners, association or residents. I also have requested that all delinquent Board members resign immediately to uphold the bylaws that we have in place.
WHAT YOU CAN DO
1. Respond to the HOA Board via email ASAP: Send email to bod@skylasvegashoa.com and let the Board know you share these concerns. They are likely to make a decision any day so time is of the essence. If you cc: me on your communications, I will also make sure the Board receives copies of your responses at the upcoming Board meeting. Its imperative that you reach out to the HOA Board with these concerns ASAP. I think once you read the letter from the attorney you will have a better understanding of the legal implications and reason for my concerns.
2. Rally fellow residents: Talk to your fellow homeowners as its going to take all of us to make change. We cannot afford to take a back-seat when our property investment is at risk.
3. Attend the next Board Meeting: The next Board Meeting is scheduled for this upcoming Tuesday, 3/29 at 5pm and would strongly encourage you to attend. I don't live full-time at SKY, but planning to make it a priority to attend given what is at stake. I look for the HOA Board to push for a decision in this meeting.
Thanks in advance for your help.
Sincerely,
David Williams, Sky Owner
Unit #1111
This is a copy of the letter from Attorney Thomas Harper
https://docs.google.com/If there are images in this attachment, they will not be displayed. Download the original attachment
Page 1
Law Offices
THOMAS D. HARPER, LTD.
A Professional Corporation
THOMAS D. HARPER, ESQ.
606 South Ninth Strbet
Telephone: 702.383.9744
Las Vegas NV 891Ql
Facsimile: 702.383.9765
e-mail: harperltd@msn.com
March 18,2011
VIA FACSIMILE and REGULAR MAIL
Michael T. Schulman, Esq.
Wolf, Rifkin,
Shpiro,
Schulman
&
Rabkin, LLP
3556 E. Russell *,oad, 2
nd
FI.
Las Vegas NV 8t120
Re: My clients, David Williams and Barry Bartl and SKY Las Vegas Condominium Unit
Owners Association and SKY Las Vegas Master Association
Dear Mr. Schuln1an:
This is to advise
ou
that my office has been retained by David Williams and Barry Bartl who own
Unit No. 1111 at the SKY Las Vegas Condominium complex and who are therefore members ofthe
SKY Las Vegas Condominium Unit-Owners Association ("Association") as well as members ofthe
SKY Las Vegas Master Association ("Master Association") to represent them with regards to the
interpretation, aprlication or enforcement ofthe Bylaws ofthe Association and Master Association
as it relates to
th
Board of Directors of the Association and Master Association and the potential
violation ofNRSiChapter 116 as it relates to the Association's and Master Association's Board of
Directors hiring
o
a community manager who is not properly licensed, experienced and/or certified
pursuant to NRS Chapter 116, et seq.
As you know, dl'lring prior Board and/or Association meetings it was pointed out that three (3)
present members bfthe Board ofDirectors ofthe Association are delinquent in the payment oftheir
assessments and
hat
this delinquency has continued for a period in excess of thirty (30) days.
Specifically, Boara members Aaron Yashouafar and David Pourbaba acknowledged this delinquency
in the last Board Imeeting of the Association. Further, it is my understanding that the financial
records ofthe Asspciation confirm the said delinquencies. It is also my understanding that both Mr.
Yashouafar and Pourbaba violated NRS 116.31 034(8)(b) as they failed to disclose that they were
delinquent on their assessments at the time that they were elected Board members ofthe Association.
As legal counsel for the Association I trust that you are aware of Article 6, Section 6.3 of the
Association's Byllaws which provides, in pertinent part, as follows:
Page 2
Michael T. Schulman, Esq.
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP
March 18,2011
Page 2
... All Directors, with the exception of any Declarant-appointed Director, must
be current in the payment of the Assessments imposed upon the Unites)
associated with the Director and may not have any material violations of the
Govemg
Documents or Master Association Governing Documents
outstanding. In the event a Director who has already been elected to the Board
becomes non-compliant with the preceding sentence and such non-compliance
continutfs for a period of thirty (30) days, such Director shall be deemed
automatically resigned from the Board and his successor shall be elected in
accordance with Article 6 of these Bylaws. (Emphasis supplied)
As you know, this Bylaw provision is valid and enforceable pursuant to the laws of the state of
Nevada and doe$ not conflict with any other governing documents ofthe Association. I trust that
as legal counsel for the Association that you are also aware that Article 6, Section 6.1 ofthe Bylaws
of Master Association has an almost identical provision which means that this also has application
to the affairs ofthe Master Association and the fact that it is my understanding that Mr. Yashouafar
and Mr. Pourbaba are also Board members of the Master Association.
As legal counsel for the Association I also trust that you are aware of the language in Article 6,
Section 6.9 ofthe Association's Bylaws which provide that upon resignation of the non-compliant
Board members of the Association that the vacancy in the Board shall be filed by a vote of the
majority ofthe remaining Directors, even though they may constitute less than a quorum. As legal
counsel for the Master Association I further trust that you are aware ofArticle 6, Section 6.7 ofthe
Master Association's Bylaws which provide that upon resignation of the non-compliant Board
members of the Master Association that the vacancy in the Board shall remain open until the next
appointment by members of the Master Association.
Accordingly, demand is hereby made that the Association and Master Association immediately
certify the resignation of all non-compliant Board members and that within the next ten (10) days
the remaining Directors ofthe Association vote to fill the vacancy left by the resignations ofthe three
(3) Board members ofthe Association and that the vacancies in the Board ofthe Master Association
be appointed by appropriate members ofthe Master Association. Please be further advised that the
Association's failure and the Master Association's failure to take such action will leave Mssgrs.
Williams and Bartl no other alternative but to commence an appropriate ADR action with the
Nevada Real Estate Division which will also request an award ofattorney's fees necessitated by the
said arbitration proceeding.
Additionally, it is my understanding that the Boards ofthe Association and Master Association are
presently considering and/or have hired Deanna Allen as the community manager ofthe Association
and Master Association. Mssgrs. Williams and Bartl have grave concerns about the hiring of Ms.
Allen as they believe that she has little or no experience as a community manager for the Association
Page 3
Michael T. Schulman, Esq.
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP
March 18,2011
Page 3
and Master Association and the high-rise complex and that she is not certified as required by NRS
116.400. In this regard, please be advised that I have checked the Nevada Real Estate Division
website and I found that while Ms. Allen is licensed as a salesperson she is not licensed as a
community manager and has not been certified pursuant to NRS 116.400.
As the Boards of the Association and Master Association well know, the Boards interviewed and
considered various applications ofqualified community managers and therefore the choice of Ms.
Allen who is clearly an unqualified, unlicensed and inexperienced community manager constitutes
a breach of the fiduciary duties of the Boards of the Association and Master Association who
pursuant to NRS 116.3103 are to act on an " ... informed basis, in good faith and in the honest belief
that their actions are in the best interests ofthe association."
Further, it is the understanding ofMssgrs. Williams and Bartl that Ms. Allen is the leasing agent for
Board members Mr. Yashouafar and Mr. Pourbaba and like the failure to have proper certification
pursuant to NRS 116.400, that Ms. Allen has pecuniary relationships with the said Board members
that makes it improper for her to act as a community manager pursuant to NRS 116.610. As I am
sure you are aware, before Ms. Allen can enter into a management agreement with the Association
or Master Association she must make a written disclosure including, without limitation, any
pecuniary relationships she has with any owner, member of the executive board or officer of the
association. NRS 116.610(3).
As a long-time homeowners association attorney, I'm sure you're further aware ofNA C 116.405 that
provides that in determining whether members ofan executive board have properly performed their
duties pursuant to NRS 116.3103 that the Commission ofthe Common-Interest Communities may
consider whether a Board member acted for reasons ofself-interest and personal gain. As the leasing
agent for Board members Mr. Yashouafar and Mr. Pourbaba, the obvious perception ifnot the reality
is that because ofthe pecuniary relationships between Mr. Yashouafar and Mr. Pourbaba that they
may receive a potential benefit from Ms. Allen as the community manager ofthe Association. While
this would be in the best interests of Mr. Yashouafar and Mr. Pourbaba, it would not be in the best
interests ofthe Association and therefore a violation ofthe business-judgment rule. Obviously, the
concerns ofMssgrs. Williams and Bartl are not only confined to Ms. Allen but anyone else who may
have pecuniary relationships with any Board members ofthe Association or the Master Association.
Therefore, as legal counsel for the Association and Master Association, I trust that you will advise
the Association and Master Association and their Boards of Directors that they should not violate
NRS 116.400, NRS 116.610 and NRS 116.31 03 and that ifthey do so that Mssgrs. Williams and
Bartl will proceed, ifnecessary, with an action pursuant to NRS 116.200, et seq. including a request
for injunctive relief pursuant to NRS 116.910 and an award of attorney's fees and legal costs
incurred by Mssgrs. Williams and Bartl as a result ofthe said proceeding against the Association and
Master Association.
Page 4
Michael T. Schulman, Esq.
Wolf, Rifkin, Shapiro, Schulman
&
Rabkin, LLP
March 18, 2011
Page 4
In conclusion, I trust that this letter adequately sets forth the position ofMssgrs. Williams and Bartl
and that the Association and Master Association will comply with the demands contained
hereinabove so that it will not be necessary for them to bring these matters to the attention of the
Nevada Real Estate Division, the Ombudsman's Office or the Commissioner for Common-Interest
Communities.
TDH:mb
cc via e-mail:
David Williams
Barry Bartl
Board of Directors
Linda Gorman-Visalli, Division Manager
Susan Green, Interim HOA Community Manager
The Prescott Companies
N:\Thomas D Harper, l'dIMichaeJ
T.
Schulman, Esq 3·17·11 Williamsv SKY
wpd
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