[2008] Southcape Resort

[ecwinch]

I could be wrong, but I do not think the current SA is for capital improvements. I think there is a definite distinction between maintenance/repairs and capital improvements. Replacing rotting siding is not a capital improvement, nor is replacing worn out carpeting or furniture.

For instance if the roof needs to be replaced, vs adding a new pool. Clearly the by-laws do not suggest that owner vote is required if the roof needs to be replaced, but would if the decision was to build a new pool complex.

I suspect Cliff is using the "its a legal issue" to avoid answering this question - even though it is from an owner.

 

[Sou13]

Welcome, JackB62!

Welcome, JackB62, and thank you for joining the chorus of UNHAPPY Southcape owners! And thank you for taking the time to study the Master Deed!

To add my reply to london above, by keeping this discussion going we are able to reach more online searchers looking for info and discussion groups. We may be reaching more Southcape owners than we would by starting a Yahoo! group. Thank you for finding us and joining TUG. And keep in touch!

FYI I revived the Southcape Resort discussion as a result of a personal encounter with the scare tactics of Outfield Marketing, and determined to fight this "hostile takeover" as a result.

The Southcape documents available by email are of interest to anyone who wants info on the Festiva Adventure Club and New England Vacation Services. I have added a line to my signature because this info is available to all who email me.

There is a lot more info in all my posts, starting on p. 1 of this discussion.

Hello All,

I have skimmed the last few pages and am really glad that I found this message board as I think every Southcape owner who wishes to remain an owner must try to communicate with each other.

We are at a severe disadvantage in our relationship with our own Board and I think this assessment issue is a perfect example of how we are being taken advantage of.

The way I understand the Master Deed it seems that there has been a blatant disregard for many of our legal rights.

Right now I can be listed as an UNHAPPY OWNER. I was at the resort last week and it is looking better than it has in years. However, I don't recall voting for the capital improvements (over $10,000) and I didn't know the work had started already. What happens if half of the owners walk away without paying the SA (as I almost did)and the rest of us are stuck with the bill?

How is the Board, which is supposed to have seven members, have a quorum to vote for the most expensive renovations in it's history? (There are only three members.) Can't they appoint at least one Interval Owner to be represented on the Board?

How do you have an SA with no budget list of what work is specifically being done and what the costs are?

I will be the first to say I am happy to see the resort upgraded from its' poor condition, but as an owner I feel I'm being pushed around and kept in the dark.

 

[Rebecca]

Cliff - Are you still available to answer questions?

My name is Cliff Hagberg and I am a trustee at Southcape Resort. I
am concerned about a number of untruths and misrepresentations that
have appeared on this board and i am perfectly willing to address
issues of concern for any owner at Southcape Resort. Please
understand that I cannot discuss legal issues nor will I respond to
any personal attacks. Having set those ground rules, I would
very much appreciate an opportunity to try and answer those questions
that any owner at Southcape might have. I look forward to a fruitful
dialog

Hi Cliff,

I have been browsing through the posts, and I have some comments and a couple of questions.

First of all, as there are a lot of posts and I haven't read them all, I do not know what everyone has said about the nature of their concerns. In that regard, I want you to understand where I am coming from. My initial concerns regarding Southcape came up because of a) the special assessment, and b) the visit from a representative, claiming to be part of the southcape community who attempted to force my parents to sign a deed AND pay him to do it. The second portion was particularly concerning. While I am aware that special assessments happen, I will be interested in learning further details at the upcoming meeting. The visitor however - who judging from your posts must have been a Festiva representative - is of particular concern. This person represented that he would be able to give a full update on the on goings of Southcape and the special assessment, and instead showed up Deed in hand, asking for a signature and a large sum of money from my parents in order to switch to Festiva points. He insinuated that the whole resort was switching to Festiva, and that if we didn't switch we would not be able to use the resort in any destination other than Southcape. These scare tactics are not welcome, and are what has brought on the concern about the wellbeing of Southcape. In my opinion, you should look into the marketing tactics of Festiva, and perhaps send out a letter to all unit owners indicating what you have stated in your posts, and that unit owners are under NO obligation to transfer to Festiva points.

As for my questions. It appears that you are already fully aware of the discrepancies and unusual set up of the condo docs that established Southcape. I understand and respect that you do not wish to answer any questions that you feel are legal in nature, so will there be an attorney at the owners meeting who can answer these legal questions. Also, I have several legal questions that I would like to ask prior to that meeting. Can you direct me to the attorney who will be able to answer these questions prior to the meeting. I can be reached at southcapeowners@gmail.com.

Thanks in advance for your response.

Rebecca

 

[Fig]

Hi Cliff,
The visitor however - who judging from your posts must have been a Festiva representative - is of particular concern. This person represented that he would be able to give a full update on the on goings of Southcape and the special assessment, and instead showed up Deed in hand, asking for a signature and a large sum of money from my parents in order to switch to Festiva points.
Rebecca

Rebecca, I hope things work out well for your parents. Your post was very enlightening. According to other posts, Outfield Marketing is given the role of visiting with owners to communicate changes at Southcape. If, as Rebecca states, someone is giving owner deeds to reps to carry into a home and have them sign them over for thousands of dollars, this would be of great concern to me if I were an owner or had parents who owned. How is Outfield Marketing, a firm out in TX getting these deeds? If Steve Lamantia and Tom Franks of Outfield are trustees of Southcape, how are they acting as Trustees? Who are these sales reps who are visiting owners with deeds in hand---if they are not trustees (Steve or Tom) how are they getting deeds?

 

[SCapeOwnersRUS]

Rebecca WELCOME BACK

Rebecca,
Welcome back. We need you and your good counsel. There appears to be things occuring at our resort that merit answers and uncovering in full daylight.

To: CLIFF HAGBERG ... please provide Rebecca with the name of the legal counsel that can answer the questions that you are choosing not to answer.
Also would appreciate you answering the questions I have raised.

Lets understand and have out in the "Sunshine" the mechinisms, motives and machinations that are occuring between NEVS, Hagberg et.al., Outfield and Festiva, to the possible detriment of deeded owners and possibility of inuring to their benefits or combinations thereof of this apparent interwoven group.

CLIFF straight up WHAT IS GOING ON? WHO IS BEING SERVED HERE? WHAT ARE THE FIDUCIARY OBLIGATIONS OF TRUSTEES AND HOW ARE THEY BEING MET? HOW ARE THE RIGHTS OF DEEDED OWNERS BEING PROTECTED AND MAINTAINED?

 

[ecwinch]

I understand and respect that you do not wish to answer any questions that you feel are legal in nature, so will there be an attorney at the owners meeting who can answer these legal questions. Also, I have several legal questions that I would like to ask prior to that meeting. Can you direct me to the attorney who will be able to answer these questions prior to the meeting. I can be reached at southcapeowners@gmail.com.

Thanks in advance for your response.

Rebecca

Great questions!

 

[Sou13]

More info found

I was intending to wait until this evening to return to the discussion but something else has turned up and I couldn't wait to share it.

Thank you, Rebecca, for replying to my email and posting these questions for Cliff Hagberg. You have many documents from me to review and there will be more on the way ASAP.

I knew I had to have more Southcape Resort newsletters somewhere and one has miraculously turned up. It's the first that was mailed after the introductory letter from Barth and Woods. This one is so chock full of enlightening info that I can hardly wait to scan it into an email attachment. I hope to be able to do that this evening.

To summarize the newsletter, It was printed on two 8 1/2 x 13 double-sided sheets stapled together and mailed without an envelope, costing just 25 cents postage. The return address is "Rumor Mill" Southcape Resort PO Box 1198 Mashpee MA 02649. It is dated August, 1990 and summarizes the annual meeting held on July 28, 1990. It explains the change of procedure and how Barth and Woods became trustees of both Condo I and Condo II which previously had separate trustees and still must have separate Master Deeds. The outdated Master Deed to which I entered a link in my signature is for Condo I, where my week is located. It explains how All Cape Resort Management Company, Inc. became inactive and how the two condo entities became combined under the management of Pam Summersall* who has since been replaced by Rosaleen Cassidy.

One very interesting item in this newsletter is to confirm the posts by e.bram about becoming year-round residences. This was actually offered in 1990 when six units in Condo II became available for $147,000! I do not know whatever became of that offer. I have more documents to unearth and hope they will miraculously turn up soon!

The second page is a detailed trustees' report. The income from Condo I and Condo II is reported separately.

That's all I'm going to report for now. I will email these documents to all Southcape owners who have subscribed to my egroup and to anyone who requests them so long as they have a legitimate interest in them. Nearly a quarter of a century of ownership of a week at Southcape had to be good for something!

 

[JackB62]

New Owners...No MFs or SAs

Hello All,

Thanks for getting together and providing such a forum. I haven't been able to respond yet to a few e-mails but I definitely will.

I have spoken with a couple of lawyers and I am going to follow up with them. As much as I have loved our Southcape experience over the years, I am reluctant to pay lawyers in a losing cause. I would definitely chip in if a group of us were to share the burden.

Here are question I have: If I wanted to buy 5 weeks at a distressed price, and I file deeds, how do I get away without paying maintenance fees and special assessments? How did our current "owners" do that? Where in the docs is this addressed?

Thanks!

 

[ecwinch]

That the units are exempt from the special assessment is specifically outlined on Page 76, paragraph 21(a).

The issue about m/f is a little more complicated, and subject to some interpretation. The challenge is that the resort was formed under, and the Master Deed complies with the requirements of Mass. Code, Chapter 183A - Condominiums.. Timeshares are now governed under Chapter 183B, the Real Estate Timeshare Act. This act clearly states that the provisions of Chapter 183B prevail over the provisions of Chapter 183A where they conflict.

If Chapter 183A, still prevailed, the following would apply - “Unit owner”, the person or other entity owning a unit, including the declarant.

Declarant means the Developer. Under 183A, expenses are shared by all Unit Owners.

However Chapter 183B, stipulates that the allocation of expenses is determined by the timeshare plan. Which is were the problem lies. The timeshare plan documents outline that the expenses are only shared among the units that are committed to interval ownership (Page 071, paragraph 14). A unit becomes committed to Interval Ownership by the process outlined on Page 090, paragraph 3 .

The argument is that the Developer units are not committed to the Interval Ownership under the provisions of Page 090, paragraph 3, and there for are not assessed m/f as they represent the Developer inventory.

In addition, Cliff has further covered himself by assigned those units to the Association for rental, and allowed rental income to be retained by the association. He says no consideration was given in return, but I suspect their is something that frees him from m/f if the issue is challenged.

Clear as mud?

 

[Carolinian]

It most timeshares, once a unit is committed to interval ownership, every week in that unit is so committed. Now, there may be something in Massachusetts statute or case law that may be different from other places, but in my neck of the woods, the argument that any such weeks in such a unit were not committed to interval ownership would get tossed out on its ear.

 

[e.bram]

Does that mean if inly one unit was committed, that owner would have to pay the expences for the entire complex. Does not seem to make sense. Definatly some legal issues here need to be resolved. Do not let the lawyers for the "management team" answer them for you.

 

[JackB62]

Partitioning?

Eric and Carolinian, thank you for your insight. I feel better knowing there is a legal area that may answer what is happening at Southcape.

Since this has changed the entire makeup of the complex, you would think that the interval owners would at least have been allowed to vote yea or nay on a new Declarant.

Here is a stupid question, but in the 183B legalese there is a section that states there will be no "partitioning" of the units. Does that mean physically?
Or, could it have to do with what Carolinian said along the lines of "if one is committed to interval ownership than they all are?"

 

[ecwinch]

It most timeshares, once a unit is committed to interval ownership, every week in that unit is so committed. Now, there may be something in Massachusetts statute or case law that may be different from other places, but in my neck of the woods, the argument that any such weeks in such a unit were not committed to interval ownership would get tossed out on its ear.

I agree with you. The argument is weak and would be a great point to challenge on.

As a side note, this is not case law since the case was settled before going to trial, but that there are a number of similarities between this situation and the situation at Bluebeards Castle in USVI.

USVI does not have specific timeshare laws, and timeshares are governed by condominium law, like SC was when it was formed. In the Bluebeards case, the Developer was not paying m/f on their owned units either. When Fairfield acquired the Developer, they began making payments on the Developer inventory, but non-payment of m/f fees over the prior period (10 years) was one of the main claims.

I only thought of this as I had drinks with an attorney from the USVI the other night, and this came up. Here is the original complaint in that case.

Link
Link 2

 

[e.bram]

One could make the argument that since the units were sold by the original owner developer to cliff the are now committed and obligated to pay MFs and SAs. Once a unit is sold by the original developer either one by one or in bulk it is sold and no longer belongs to the developer.

 

[e.bram]

Even though I do not own at Southcape this post effects me and others who could find themselves in a similar situation with older seasonal weeks resorts. A positive outcome fo Southcape owners would make those who take advantage of similar situations think twice. Thus TUG could have a major impact on this aspect of the timeshare industry.

 

[ecwinch]

One could make the argument that since the units were sold by the original owner developer to cliff the are now committed and obligated to pay MFs and SAs. Once a unit is sold by the original developer either one by one or in bulk it is sold and no longer belongs to the developer.

I do not think so. The Master Deed clearly states that the Declarant (Developer) rights are assignable (page 20, paragraph i), and Cliff has previously stated that he acquired those rights from the former Developer. He never maintained that his purchase was of just the unsold inventory. That claim should be vetted, however.

Chapter 183B, further supports his position:

"Developer”, any person who (i) offers to dispose of or disposes of his interest in a time-share not previously disposed of, or (ii) succeeds under section twenty-two to any special developer right."

Anything can be argued however. You could argue that the corporation formed under the provisions of Chapter 183A, and so the definition of "Unit Owners" as defined by 183A should apply.

Cliff alludes to this fact in earlier posts - that the governing documents are in conflict.

 

[Sou13]

Southcape Rumor Mill

I've finally cleaned up the promised documents and forwarded them to everyone in my Southcape owners egroup. There are some enlightening facts and figures in them which may be of interest to non-owners who are learning from our Southcape experience.

Thank you, Eric, for researching the legal questions and for returning to the discussion. I hope we can find a legal means to challenge the present situation, especially since there are some legitimate concerns to be addressed.

One curiosity to note since Woods & Barth combined the two trusts in 1990 is that there were four members on the board of trustees, whereas today there are only three.

The documents also address the legitimacy of the owners of the unsold weeks not paying maintenance fees. According to this newsletter, the Master Deed does not require them to do so.

The newsletter also advises owners that they can apply for a position of the board and request matters to be discussed at the next meeting.

So, you see, Cliff Hagberg et al have been keeping us in the dark about our "rights" as deeded owners. They may also be taking credit for policies and impovements that were in place when he and his cohorts took over as our "developers"!

If anyone has documents similar to the above from the 20-year Woods&Barth period of our history, would you please share them? Thank you!

I was intending to wait until this evening to return to the discussion but something else has turned up and I couldn't wait to share it.

Thank you, Rebecca, for replying to my email and posting these questions for Cliff Hagberg. You have many documents from me to review and there will be more on the way ASAP.

I knew I had to have more Southcape Resort newsletters somewhere and one has miraculously turned up. It's the first that was mailed after the introductory letter from Barth and Woods. This one is so chock full of enlightening info that I can hardly wait to scan it into an email attachment. I hope to be able to do that this evening.

To summarize the newsletter, It was printed on two 8 1/2 x 13 double-sided sheets stapled together and mailed without an envelope, costing just 25 cents postage. The return address is "Rumor Mill" Southcape Resort PO Box 1198 Mashpee MA 02649. It is dated August, 1990 and summarizes the annual meeting held on July 28, 1990. It explains the change of procedure and how Barth and Woods became trustees of both Condo I and Condo II which previously had separate trustees and still must have separate Master Deeds. The outdated Master Deed to which I entered a link in my signature is for Condo I, where my week is located. It explains how All Cape Resort Management Company, Inc. became inactive and how the two condo entities became combined under the management of Pam Summersall* who has since been replaced by Rosaleen Cassidy.

One very interesting item in this newsletter is to confirm the posts by e.bram about becoming year-round residences. This was actually offered in 1990 when six units in Condo II became available for $147,000! I do not know whatever became of that offer. I have more documents to unearth and hope they will miraculously turn up soon!

The second page is a detailed trustees' report. The income from Condo I and Condo II is reported separately.

That's all I'm going to report for now. I will email these documents to all Southcape owners who have subscribed to my egroup and to anyone who requests them so long as they have a legitimate interest in them. Nearly a quarter of a century of ownership of a week at Southcape had to be good for something!

 

[SCapeOwnersRUS]

Where in "The World is Waldo"

Where did Cliff Hagberg disappear to?

No answers ? No responses ?

 

[ecwinch]

He has been on the board today. I guess he is looking for easy questions from owners.

An owner should ask him what color the drapes will be after the refurbishment.

 

[NEVMSLLC]

I couldn't tell you, Eric, I'm color blind . . .

 

[ecwinch]

Ok, then here is a non-color related questioned.

Can you provide the owners with the name of the firm that represented the Southcape Community Association, Inc. in the transfer of the Developer rights?

Or if you have already provided this information to any of the owners or their representatives, then just confirm that it has been provided.

Thanks

 

[Fig]

I couldn't tell you, Eric, I'm color blind . . .

You are too much for him, ecwinch. He wishes he knew how to quit you...

Thanks for all your great posts, Eric. Now if only Cliff would chime in with some helpful answers.

 

[NEVMSLLC]

I've said right from my very first post that I will not discuss legal issues, period, and I meant it. If there are questions other than legal ones, I'm happy to answer them, otherwise, you can ask away but this is not the forum to address those issues and I won't be baited into it.

I find it curious that, with all of the issues facing Southcape, not one owner has asked questions about them, nor has a single owner asked what they can do to help.

The question of trustees, etc. hasn't changed in twenty years and it's no different now, except that there are new trustees who actually want to fix the problems. Not one question about what's gone on the past twenty years with the former developer. Not one question about how did the resort get into this situation and what is being done to correct the neglect of the last twenty years.

I guess the owners who haven't cared the last twenty years still don't care what happened and what's being done to fix things. We do have real issues at the resort and I'd like to talk about them and I do want input from owners about what needs to be done to fix things. I'm just not going to respond to name calling, libel and innuendo.

So let's go, folks. If you really do care about the resort, let's have a discussion about Southcape.

And by the way, Fig, I'm not the least bit anxious to get rid of Eric. I have a lot of respect for him and I respond to him even though he's not an owner. I do that for one reason, he actually listens and, even though we don't always agree, I think we at least respect each other enough to try and understand the differing viewpoints. If we had more owners like Eric, I'd be delighted. Now if we could only focus on the problems facing Southcape . . .

 

[e.bram]

As I see it the main problem is many owned units are claiming their rights to waive payment of MFs and SAs. If all non HOA owned units payed there would be no problem.

 

[NEVMSLLC]

E.bram

You are correct. What you may not know is that the problem is not with the inventory that NEVS purchased, even though NEVS isn't obligated to pay maintenance fees. The maintenance fees that NEVS would pay on their weeks would be roughly $300,000. NEVS assigned their rental rights for the weeks to the association and, based on previous years, the rental income is projected at about $300,000 for 2009. Remember, NEVS did not have to do this and NEVS has voluntarily given up that income.

Probably more important are the almost 600 delinquent owners that the previous trustees let slide. That's about $350,000 a year in non-paying owners. We have hired a professional collection company to start the collection process to recover as much of that money as we can. The total delinquent balance that we inherited from the previous trustees is over $2,500,000. For the first time in twenty years, we're making a serious effort to collect that money. Why the previous trustees didn't do it, I don't know.

If you think there's a better way to handle it, I really would like to know.