What different times we now find ourselves in. Yet, if one must practice social distancing, what better place to be than within the boundaries of our beautiful Big Canoe. With nature at our doorstep and wildlife oblivious to the problems of the world beyond our mountain ridges, we are sheltered in a truly special place.
All that being said, given our world situation, it is with some reluctance that this article is written. However, considering the recent succinct and informative Town Hall presentation regarding our water rates along with various chatter on social media, it seems relevant and timely to include an additional discussion about what may be a little known governing document that specifically pertains to our water system.
This article is not an evaluation of Utilities, Inc. or water rate increases. Rather it is about any associated property owner rights related to our water system . . .
As a brief background, most all property owners are aware that our water system was purchased from Big Canoe Utilities, Inc. (BCU) in April 2018 by Utilities, Inc. of Georgia (UIG). The principals in BCU were/are also principals in Big Canoe Company.
On April 5, 2018, outside a regular board meeting and without property owner discussion, the POA board (Anderson, Wilson, Goldman, Farinholt, DeVore and Crawford) voted unanimously by consent (1) to execute an agreement called the Service Level Operating Agreement (“the SLO agreement”) between the POA and UIG along with the Third Amendment to a Trust Deed dated November 29, 1984 in favor of Big Canoe Property Owners Association, Trustee. The SLO agreement sought to institute certain controls and conditions, but most importantly, the Third Amendment removed certain protections provided to the property owners by the original Trust Deed. Further, if UIG meets key performance indicators outlined in the agreement for five consecutive years, the “Utility shall be entitled upon request to a full reconveyance of the utility system and property subject to the Trust Deed and the Trust Deed shall be canceled of record.”
The SLO agreement (2) is presently posted on the POA website along with the Third Amendment (3) to the Trust Deed under the governing documents tab.
Unfortunately, the 1984 Trust Deed was never posted to the POA website . . .
Instead, the Trust Deed along with the first and second amendments were later obtained via superior court records in Dawson County, Georgia. Without the benefit of that information, property owners and possibly even the new board members may not be fully aware of the language and any significance of the Trust Deed. A link to that document can be found here. (4) WaterTrustDeed11291984
Under the Trust Deed, it appears the POA, as trustee for all owners of properties connected to the water system, was granted numerous rights regarding the water system and its assets. Interestingly, paragraph one states “Trustee shall hold title until the utility system is taken over by either a governmental authority or public utility for maintenance and operation or other adequate utility service is provided either by a governmental authority or public utility . . . “
-
- Utilities, Inc. of Georgia is not a governmental authority or public utility.
Further, paragraph five (which was partially amended) states that majority approval of the owners of the properties connected to the utility system is required to even transfer the system to a government authority. And lastly, the Trust Deed and subsequent amendments contain pages and pages of legal descriptions pertaining to the water system itself.
The precise significance of this Trust Deed can not be fully determined. Once again, a review by legal counsel might be in order to at a minimum determine and/or confirm:
-
- Exactly what did the POA agree to give up as trustee for the property owners?
- Can the Trust Deed be canceled of record without property owner approval?
Yet even without that legal opinion, it is obvious that this Trust Deed is much more important than originally disclosed or believed. (5)
Assuming the third amendment and future release of the Trust Deed was a stipulation of the sale, it has obvious value to the POA and all property owners. Consider the following:
-
- According to the Third Amendment, all property owner rights regarding our water system as described in the 1984 Trust Deed will be relinquished by the POA board in another three years if Utilities, Inc. continues to meet all key performance indicators.
-
- Meanwhile, Big Canoe Utilities walked away with $8,460,000 upon it’s sale. (6) It appears, the POA received minimal, temporary concessions and no compensation from this agreement.
-
- It also appears, the Trust Deed, which has been in effect 35 years, will be canceled and simply go away in three more years, and property owners will have no future legal assurances of an adequate and/or properly run water and sewage system.
Even the water system traces back to the 2016 land deal . . .
Insults have continued as it was learned just last spring that Blackwell Creek in the heart of “Mother Canoe” which was believed to have been purchased in the 2016 land deal was actually excluded from that transaction. (7) Instead, eight months later that property was transferred by Big Canoe Company to Big Canoe Utilities and later included in the sale of the water system to UIG.
With over $150k spent by the POA in legal fees (8)
-
- to assess the water situation;
- file a lawsuit against BCU;
- and advocate legislation to establish a water and sewer authority
only to withdraw those actions and agree to the acquisition of the water system without any concessions just months later is perplexing at best. And the developer remains with all rights intact.
Perhaps this writer has overreacted regarding the importance of that 1984 Trust Deed and sincere apologies are extended if that is so, but this involves an inordinate amount of money and exposure not to have been fully documented and understood by both leadership and the property owners. In the meantime, perhaps this very important 1984 Trust Deed including the first and second amendments can be posted to the POA website along with other governing documents pertaining to our water system.
*****
Please feel free to share your comments on this site regarding these suggestions or contact me at thepcrosses@gmail.com for questions or further discussion. Should you like to see additional articles posted in the future, please subscribe for an email notification. Meanwhile . . . take care and stay safe.
Patricia Cross (10438 Big Canoe)
1 POA Board of Directors Meeting, Minutes, April 19, 2018 (POAwebsite>login>POA>meetings>minutes>April2018)
2 Service Level Operating Agreement, April 18, 2018 (POAwebsite>login>POA>governing documents>BoardDocuments> UtilitiesIncOperatingAgreement)
3 Third Amendment to Utility Trust Agreement, April 18, 2018 (POAWebsite>login>POA>governing documents>board documents>Third amendment to Utility Trust Agreement)
4 Trust Deed dated November 29, 1984
6 Big Canoe Utilities, Inc. to Utilities, Inc., of Ga, dated April 30,2018, Recorded in Deed Book 1147, Pg. 764, Pickens County, GA showing sales price of $8,460,000.
7 POA Board of Directors Meeting, Minutes, March 21, 2019 (POAwebsite>login>POA>meetings>minutes>March2019)
8 Income from Operations, December 2018 (POAwebsite>login>POA>Financials>SummaryOfOperations>December2018)
Thank you very much for the time and effort you put into researching our community. This post is particularly important.
Natural beauty’s solace and the comfort of owning a home here is eclipsed when the land and water source is rendered vulnerable by policy makers systemically pulling it out from underneath you. Very unsettling times within these gates as if the outside wasn’t enough. Once again Patricia your efforts are appreciated.
I ditto the many comments from others. Thank you Patricia for all the continued time, energy and efforts to expose “all things under the radar and hidden”. we appear to have an unlimited expense account of which we’ve already exceeded; which continues as new assessments without detailed support or justified explanation. Where is the distribution of all these reserves we hear about going?
And, what are our rights to invoke class-action toward full financial transparency. Your information uncovers a lot. Until there is uprising from the populous within the community and registers as “enough is enough”, all this will only go down as continued good information. The bleeding and losses have got to Cease and Desist!
Mark, I agree with ALL your comments. Now, who can answer your questions?? How do we get the ball rolling because OUR money, not theirs, is being wasted/lost everyday. We must understand the their/our system before it can be fixed….Property Owners Association right. Patricia is doing ALL the heavy lifting at the present. How can we help?? Your words, The bleeding and losses have got to Cease and Desist! is a call to action.