Part 1: GWLUA/GW Inc legal issues

Part 1: GWLUA/GW Inc legal issues Gillian Fryer posted 8 months ago

Since the GW Inc Board is acknowledging that there are some among us who do not consider them to be legitimate, I figured it was time for me to explain things again. I wrote a series about all of this when GW Inc was first established, but reading the whole thing might be a bit tedious. I figured posting a new series in the forum would be easier to digest and it would allow for discussion... so here goes.

First off, we need to establish the hierarchy of law and documents for an HOA. It goes like this: Federal law > State law > Local Law > Covenants > Articles of Incorporation/ Association > Bylaws. So if any laws exist that conflict with our founding documents, those laws will prevail. I have always considered the Land User's Code (LUC) to be our covenants because they 'run with the land,' applying to the land directly regardless of the ownership and they are not intended to expire. The GWLUA and GW Inc, are organizations that seek to oversee behavior of the property owners. It makes sense that the LUC should prevail over the GWLUA documents if there is a conflict.

It is established in law, that you cannot be forced to be a member of an HOA, if none existed when you purchased your property. If however, an HOA exists prior to your purchase, you must be a member of the HOA. For years Mike insisted that the GWLUA was NOT an HOA and some of us have closing documents that state that no HOA exists at GW. Mike only changed his tune when he was sued in 2015 by Jody Rhines, et al. The outcome of that lawsuit is still pending.

If you went through a title company when you bought your property, you should have been given a packet of all the documents ever filed against your property. These include all of the documents pertaining to the formation and development of the GWLUA, the precursor to GW Inc. Since the Board filed the GW Inc documents with Taos County in 2018, the county will have filed those documents onto the records for your property, regardless of whether you accepted the GW, Inc.

I must admit that when I purchased in 2012, I only read the most recent GWLUA document at the time, dated 2003- 2005. I made a major assumption that all the documents were properly created and filed. If our most recent GWLUA documents were not created or filed properly, they would be unenforceable at law. But how about the older documents? If any of them was not legally binding, then ALL of the subsequent documents would likely be unenforceable as well!

When I purchased, I never conceived that there would be any problem, as I assumed that the documents were created by a qualified lawyer and reflected the law. I now believe is was very wrong.

The document that formed the GWLUA, the Greater World Land User's Association, was filed in April 1994, and it is titled: the Articles of Association. It references NMSA 53-10 as the law that allows for the creation of the GWLUA, otherwise known as the Unincorporated Associations Act. The text of the act is here: https://www.greaterworldcommunity.org/file/document-page/1636198732/MzVP0hLDGGutzzo8.pdf

Back in 1994, there were already a few Earthships under construction at Greater World. What SHOULD HAVE happened when Mike created the organization, is that he SHOULD HAVE gone to the various owners and involved them in the creation of all of the documents that formed the GWLUA, since he was requiring them to be members. NMSA 53-10 requires several things you might find interesting: the duration of the organization is a maximum of 20 years, the members decide the rules, the members decide the expenses to be paid and the members decide the dues to be paid. Upon termination, the members receive their share of whatever assets remain of the organization. Instead, Mike was the sole director until the early 2000s. (I believe that Mike violated the intent of NMSA 53-10 right from the start.)

The initial GWLUA documents are available here: https://www.greaterworldcommunity.org/file/document/2850934796/qAO3vgajIInnHUl6.pdf

The Articles of Association state that Mike will run everything for 5 years, but that a board will be created at 7 years. It is silent as to when happens between 5 and 7 years. It also states that the GWLUA will expire after 25 years, but may be extended by a vote of 75% of the membership.

Mike refiled the By-laws in June of 1994.

At that time, Mike envisioned GW as a sort of commune. He was to retain ownership of the land and each member purchased a right to build within a predefined space... sort of a lease, but he called it a membership. Accordingly, the By-laws reflect that it was not intended that any owner make a profit upon the sale of their property. The By-Laws state that the members must pay for the property taxes and the insurance, but since no one owned any land other than Mike, presumably the total costs for the square mile that is GW, were simply divided evenly amongst the members. There was no mention of common lands at that time.

So far what do you think? Did the members from 1994 through 2002 get to determine the rules, the expenses and the fees? Did Mike create a Board, as he committed to, after five years, in 1999 or after 7 years in 2001? Do you think Mike adhered to NMSA 53-10 at any time? Do yu think that the GWLUA expired, and if so , when?

Gillian, our LUC, Articles of Association, and By-laws are all for the Greater World Community Subdivision, August 2003 Edition. I cannot find the date on the Taos County Disclosure Statement. Is Michael Reynolds arguing that this August 2003 Edition restarts the duration of the organization to a new 20 year maximum, good to 2023? Also, if Michael Reynolds created an HOA in 2015 in response to the Rhines lawsuit, why then create the " GW, Inc " with its accompanying turmoil four years later? Wally

Wallace Hammond commented 8 months ago

I will expand on that issue Wally, but the short answer is yes, because of the lawsuit, Mike is now claiming that he restarted the GWLUA in 2003, so it was valid until 2023.

I brought up the issue of incorporating because our lawyer at the time, James Chavez, said that it was required in order to comply with the HOA Act. We were supposed to discuss the issue with the community, but those discussions never occurred. When board members discovered that we would potentially create a new board and new rules, they went rogue and incorporated and filed documents without community involvement or agreement.

I intend to address all of this in more detail in future installments of this discussion.

Gillian Fryer commented 8 months ago