$5,893.32 special assessment for Diamond's Point at Poipu

[Geckowest Junior Member Find all posts View Profile Close Geckowest]

I agree

The last post suggest a plan of action that has some good elements. Here is what I plan to do: Contact the media in both the Islands and mainland. DRI is holding two "snap" meetings next week and I plan to contact the media in both So Cal and Nor Cal to see if they are interested in covering some fireworks (assuming people in California show up & and what about the rest of owners) I also registered the domain concernedowersofpoipupoint.com and will put together a rudimentary site for owners to register if they want to be part of an effort to replace the board, hire representation, terminate DRI or some other concerted action. I have by no means all the answers or even know what the questions are but along the lines of some of the comments - I am willing to step up and help coalesce some action.

I contacted the city editor at the Honolulu Star Advertiser - will let you know if they are interested and may bring a video camera to the HOA meeting (wonder if they will let me record?)

We Thank You for setting this up, and we will follow. We are sick of the DRI crimes, Mainenacne Fees...and now the SA. We need this to stop

[T. R. Oglodyte Moderator Find all posts View Profile Close T. R. Oglodyte]

Jim - There have been ongoing complaints over the past few years about roof edge & corner problems at this resort. As it turns out they were the outward symptom of a far bigger problem - it appeared to be mostly a cosmetic, relatively small issue in very limited sections of the resort buildings. As it turns out it was a symptom of a far more pervasive and costly problem.

But, to answer your question, yes there have Ben complaints for the past couple years about water damage visable to owners.

The Board also deferred repairs on those items because they were commencing litigation against the insurer, and to have repaired the damage would have destroyed evidence in the litigation, thereby sinking the case.

Many people complaining here are harping about why didn't the board act sooner to control the damage and why they haven't pursued litigation against the insurer.

Those are mutually exclusive options - pick one or the other, but you can't have both.

*****

Another consideration in why detailed information has not been provided sooner is that, being involved in litigation, you can't release all of your documents or information or you make it easy for the opponent to set up a defense.

That being said, I certainly believe the Board could have earlier given an indication of the magnitude of the problem, even if they maintained privllege on the studies and reports pending litigation.

[Carolinian Super Moderator Find all posts View Profile Close Carolinian]

Since I have owned at five resorts, three in the US and two abroad, where owners have indeed organized and kicked out the developer, I beg to differ over whether it is possible to kick out developers. At one of them, they had to fight all the way through the courts, but they whipped the developer's ass at every level up to the state Supreme Court. The other four did not have the protracted court battles, but they also forced the developer to walk the plank. In all of them, they compelled the developer to sign over his unsold inventory, and in one of them also got a nice six figure sum in cash out of the developer as part of the settlement over its leaving.

Anybody who has been involved with Wastegate, and thus understand the futilty of individual owners, should understand that it would have been impossible to have wrestled management away from DRI.

It would have been a futile waste of energy.

Having not tried is no excuse to excuse incompetent management, if that has been the case, or to say it is now too late for owners to take action.

Now that the fruits of DRI management have been fully revealed, now may be exactly the right time.

JMHO

[Carolinian Super Moderator Find all posts View Profile Close Carolinian]

Has anyone spoken to a Hawaiian attorney about whether it might be possible for an independent board to get around those provisions? They were likely entered into at a time that the HOA board and management were in the same hands and were thus self-dealing. It smells a lot like an ''unfair or deceptive business practice'' to me! (and remember under those consumer protection laws, it only has to be one - unfair or deceptive - not both.

Replacing the management replacement requires a majority vote of all deeded interests at the resort. That's not a majority of the votes at a quorumed meeting, but a majority of all interests.

At present the Trust owns ~35% and Diamond itself holds about ~10% of the interest, leaving the general deeded ownership at about 55%. Of course that means that unless the Trust agrees to replace management, it would require that virtually all deeded owners affirmatively vote to replace resort management. If even as few as 5% of deeded simply fail to return a proxy, the deeded owners cannot replace the management company.

****

BTW - this is not hidden in the resort documents. It is very clearly described in the Timeshare Disclosure Statement that is required by Hawaii law, and that every purchaser of a deed from the developer received. The Disclosure statement specifically notes that this provision will make it virtually impossible for the owners to involuntarily replace the management company.

[Carolinian Super Moderator Find all posts View Profile Close Carolinian]

Management that willfully refuses to obey the clear provisions of the law is rogue management and needs to be replaced. This article shows that this has been the situation at Point at Poipu even before this disaster with the SA.

Having three employees, a majority, as members of the HOA board is also a massive conflict of interest. Indeed, I would never buy at a resort that had any employees of management sitting on the HOA board. This puts the relationship between the boss and hired help exactly backwards.

Hmmmm?!

Timeshare owners still disgruntled


Hawai‘i Revised Statutes Chapter 514A states, “The resident manager or managing agent or board of directors shall keep an accurate and current list of members of the association of apartment owners and their current addresses ... The list shall be maintained at a place designated by the board of directors and a copy shall be available, at cost, to any member of the association as provided in the declaration or bylaws or rules and regulations ...”

“Whoever controls the owner’s list controls the resort,” Batchelder said.

DRI also still controls a majority of the Vacation Owners Association and Association of Apartment Owners board members, as three of the five directors are employees of the management company, according to Batchelder.


Read more: Timeshare owners still disgruntled

[Carolinian Super Moderator Find all posts View Profile Close Carolinian]

Did they ever follow through with any lawsuit against anybody? If so what were the results?

Also please remember that this is not an independent HOA Board since a majority of its members are employees of the management, a highly unethical arrangement. HOA board members have a fiduciary duty to the members, yet are employed by management. What happens when they become aware of management deficiencies, particularly those which might give rise to a lawsuit against management? Their fiduciary responsibility to members says they should pursue it, but the fact that their paychecks come from management virtually assures they will sweep it under the rug.

The Board also deferred repairs on those items because they were commencing litigation against the insurer, and to have repaired the damage would have destroyed evidence in the litigation, thereby sinking the case.

Many people complaining here are harping about why didn't the board act sooner to control the damage and why they haven't pursued litigation against the insurer.

Those are mutually exclusive options - pick one or the other, but you can't have both.

*****

Another consideration in why detailed information has not been provided sooner is that, being involved in litigation, you can't release all of your documents or information or you make it easy for the opponent to set up a defense.

That being said, I certainly believe the Board could have earlier given an indication of the magnitude of the problem, even if they maintained privllege on the studies and reports pending litigation.

[edwardrich01 Junior Member Find all posts View Profile Close edwardrich01]

thanks for sharing it

[JLB Please excuse me, I'm a Dick. Not a moron just a Dick Find all posts View Profile Close JLB]

Another consideration in why detailed information has not been provided sooner is that, being involved in litigation, you can't release all of your documents or information or you make it easy for the opponent to set up a defense.

That being said, I certainly believe the Board could have earlier given an indication of the magnitude of the problem, even if they maintained privllege on the studies and reports pending litigation.

To the first point, that's my position personally, too.

To the second point, as I mentioned, disclosure would seem to be important both to owners and buyers.

I'm trying to visualize what would happen if the same thing happened at a resort we own at here, and, since I know many of the owners personally, it would not be taken lying down. Over the years, the resort community the TS resort is situated in has been plagued with developer issues, so if a developer had forced control of the board, it would be more certain that there would be an outcry.

Any way it goes down DRI has a tough road ahead.

[JLB Please excuse me, I'm a Dick. Not a moron just a Dick Find all posts View Profile Close JLB]

Since I have owned at five resorts, three in the US and two abroad, where owners have indeed organized and kicked out the developer, I beg to differ over whether it is possible to kick out developers. At one of them, they had to fight all the way through the courts, but they whipped the developer's ass at every level up to the state Supreme Court. The other four did not have the protracted court battles, but they also forced the developer to walk the plank. In all of them, they compelled the developer to sign over his unsold inventory, and in one of them also got a nice six figure sum in cash out of the developer as part of the settlement over its leaving.

Still an unlikely scenario at a timeshare, despite your personal expereience. An uphill battle few have the stomach for. And they should not have to in the first place.

[JLB Please excuse me, I'm a Dick. Not a moron just a Dick Find all posts View Profile Close JLB]

Just one more piece of poo-poo being stacked on the anti-timeshare pile.

[Carolinian Super Moderator Find all posts View Profile Close Carolinian]

Still an unlikely scenario at a timeshare, despite your personal expereience. An uphill battle few have the stomach for. And they should have to in the first place.

Not exactly. It happens more than you realize. Looking to the Caribbean, owners at Guanahani Village in the Bahamas, mostly American, hired a Bahamian lawyer and stopped the developer dead in his tracks in the courts in a plan to undercut the rights of members. At Bluebeards Castle, in the USVI, the members battled Fairfield, the developer, for control of the HOA's (a total of six seperate HOA's as I recall within the timeshare), won most of them, fought off a Fairfield counterattack trying to regain control, and then took Fairfield to court. After gaining control of the HOA's they also kicked Fairfield out as management. Ultimately, Fairfield declared its Virgin Islands subsidiary bankrupt, waved a white flag and beat a retreat from the Virgin Islands. The level of thuggery that Fairfield (now Wyndham) employed at Bluebeard's Castle would probably even make Wastegate, who are quite thuggish themselves, blush.

[T. R. Oglodyte Moderator Find all posts View Profile Close T. R. Oglodyte]

Did they ever follow through with any lawsuit against anybody? If so what were the results?

Also please remember that this is not an independent HOA Board since a majority of its members are employees of the management, a highly unethical arrangement. HOA board members have a fiduciary duty to the members, yet are employed by management. What happens when they become aware of management deficiencies, particularly those which might give rise to a lawsuit against management? Their fiduciary responsibility to members says they should pursue it, but the fact that their paychecks come from management virtually assures they will sweep it under the rug.

Well, as has been discussed already, statute of repose precludes suit against the builder. And as you are aware there's the question of potential product liability against the manufacturer of the building materials.

I have shared that information with a California attorney acquaintance who does real estate work in California, including condominium law. He is also an owner at Poipu is hoping to be able to attend the owners meeting in San Francisco and intends to pose various questions to the Board should he be able to make the meeting.

******

The board has given less information about insurance coverage, except to indicate the pessimism of legal counsel about success on that front. Personally, having some experience in doing cost recovery against insurance companies for similar situations (environmental contamination of properties where the contamination occurs incrementally over a long period of time) I am not at all surprised at that assessment.

After the courts decided in environmental law in the 1980's that, standing by itself, the phrase "sudden and accidental" is indistinguishable from "slow, steady, and unknown" casualty insurers have greatly tightened their policy language to ensure they are only providing coverage against act of God tyeps of sudden events, and to specifically exclude the type of long-term, incremental situations such as this.

As the policies for the resorts wouldn't have been in effect until the early 1990s, I would be surprised if the policies didn't have the new language that excludes slow and gradual events.

I'm really not trying to defend the Board. Not surprisingly, we have a lot of new people suddenly appearing, many of whom have clearly been uninvolved owners before, and who conflate various aspects of the situation. I think it's worthwhile to help sift through the information and correct the perceptions.

As I've tried to note , DRI and the HOA legally are not the same entity and in that regard many of the issues that people are directing toward DRI are more property directed at the HOA. You, however, provide a complementary perspective as to how the veil between DRI and the HOA might be pierced.

From my rudimentary understanding of environmental law, were we dealing with damages caused by a leaking underground storage tank, there would be considerable legal basis to attach liability to DRI. Unfortunately, that is not directly applicable to a property management situation as the environmental liabilities are governed by federal law, and the US Congress crafted an environmental liability framework that is deliberately and specifically more far-reaching than that provided in ordinary real estate law.
framework specifically to be

[JLB Please excuse me, I'm a Dick. Not a moron just a Dick Find all posts View Profile Close JLB]

Good luck owners. I wish you the best.

Keep in mind that most lawsuits never see a courtroom. They just drag on and on (one in our neighborhood for four years now). Various endings, seldom anywhere near what the plaintiffs envisioned.

OTOH, just lying down and taking it does not seem palatable.

Companies tend to pursue the course that will be least expensive to them.

[Carolinian Super Moderator Find all posts View Profile Close Carolinian]

With a slow deterioration as in this situation, one also wonders if the management and / or HOA board was negligent in not addressing this earlier. If the damage and the repair costs would have been substantially less in dealing with it earlier, then that might be a theory on which there could be a recovery on behalf of the owners.

You have noted in another post that often repairs require improvements to items not directly damaged that have to be brought up to new building codes. While I don't know that it would apply in the situation at hand, I hope most resorts have paid the extra charge for the insurance riders to cover such repairs. Normally property insurance will not cover those repairs without the rider. Having been an HOA member during a major hurricane repair, I was very thankful that our resort had always paid for that insurance rider, as we had to replace all plumbing and wiring in the whole resort thanks to changes in the building code. IMHO, for resorts in areas subject to hurricanes, floods, etc. not paying for such a rider would be misfeasance on the part of an HOA board.

[T. R. Oglodyte Moderator Find all posts View Profile Close T. R. Oglodyte]

Good luck owners. I wish you the best.

Keep in mind that most lawsuits never see a courtroom. They just drag on and on (one in our neighborhood for four years now). Various endings, seldom anywhere near what the plaintiffs envisioned.

Yep. And the first victim in any courtroom is usually the truth.