Defending the "little guy"
Organized by: The McFadden Family
Hello everyone, hope this finds you well. After much stress, worry, hesitation and debate, we humbly come to you to ask for much needed help. We are currently unable to go into full detail, ie names, etc, because this is a legal matter and we would like to protect all involved including the offending party but our attorney has quoted us a very substantial sum for not only a retainer fee needed to take our case to litigation but to cover all the associated fees beyond the retainer fee, (much more than our fundraising goal) to finally end a misinterpretation of the terms of a very clearly written, long standing contract and force those in breach of said contract to honor it by court order, as it's been honored for almost 50 yrs. We are just an ordinary little family and funds like this would take much longer to earn and save up than we have time to proceed but we also know that standing up for what's right shouldn't be hindered by what's in the bank either, that is why we are putting pride aside and asking for your help. Please help us defend ourselves and stand up for what's right and true, by donating. From the bottom of our hearts, thank you so much for your continued prayers and support!
My grandparents bought a house back in the 1930’s that had it's water supplied by a community water system (the system also supplied water to 6 other homes) that was fed by a natural spring. In 1949 the property where the system and supply were located was sold and after being made aware of the supply/system, the new owner of the land made sure to deed an easement/right of way, to those "users" (the term "user" is specifically defined in the 1959 Deed of Easement and Agreement to include, those current users, as well as all future purchasers, tenants, etc of those “users” properties) in 1959 so the “users” could continue to use and maintain the community water system that had been established more than 30 yrs before. In 1966-67, after that owner had passed, the property was sold again, this time to a Corporation. The corporation saw that we had a water supply, community water system as well as the Agreement and Easement for access to our water supply and decided to negotiate with the “users” so they could develop that land. An Agreement and Release of Easement was negotiated, drafted and agreed to by all parties. In that 1968 Agreement and Release of Easement it states that “the easement and water supply would be released under certain terms and conditions…” Those terms and conditions included that the corporation would supply water... that which could be carried by a 2 inch pipe... to those “users” and their assigns and successors in interest... in EXCHANGE for the easement and water supply/system.
Not long after the agreement was reached, the original corporation sold the land/water supply to another corporation with the requirement that they honor our agreement and supply our water, again in EXCHANGE for the easement and water supply that they still, to this day possess. They have built 600+ homes in this private development through the years, and because they possess that easement property, they have been able to parcel and sell 49+ more properties than they would have, using that easement land in the parcels, monetarily benefitting not only by each of the property sales but also by the HOA dues and water bills that are paid to the corporation by the homeowners of those properties.
The agreement has been honored for the last 48 yrs on not only our property but our 4 neighbors properties as well. Even after my dad, (an original signer) moved and new owners took possession of the property in the late 90’s, the agreement was still honored and again it has been honored since we bought it to raise our family in 2006. I even made sure it was included in the closing documents at escrow just to be safe.
Through the years, after talking to the neighbors whose properties this agreement also includes, we discovered that the corporation for some reason, either because of a innocent misinterpretation or heaven forbid by blatant deceit for unknown reasons, had told the new “users”/property owners that the agreement applies to "descendants only.” That was the first breach of the agreement in 2000. Knowing that my neighbors were being wronged, when the next house went up for sale the spring of 2015, I approached the new owners and questioned them about the agreement that covered their property. They were never told until I talked to them about it so they contacted the corporation to find out more info. The corporation, again used the "descendants only" reason and added "that he didn't want to open that can of worms as it hadn't been opened in many years." Again saying they were terminating the agreement on that property bringing the total to 2 breaches. About 2 months after my new neighbors contact with the corporation, in spite/retaliation for informing my neighbors of their rights, I can only assume, we received a termination letter from the corporation, saying that "the agreement only applies to the original users and their descendants," and they were now sending us to the local water co-op (that didn't even come into existence until 1970) for our water supply and that we would be billed monthly because the property had fallen out of descendants hands back when my parents moved away, bringing the total now to 3 properties they're in breach on.
I hired an attorney in late August 2015 to represent us as I have all of the documentation dating back to the original 1959 Agreement and Deed of Easement and 4 of the original signers willing to give statements that also completely refute their claims.. Our attorney sent a letter to them showing the many ways they are in breach and where it can be found in the documentation to prove they are wrong with their "descendants only" hogwash and again demanded they honor the agreement. We even supplied all the documentation to their attorney upon request because they didn't have complete, accurate records. We finally, after several months, received a response. Instead of doing the right and honorable thing by admitting they’re wrong and correcting it though, the corporation responded by avoiding any mention that we have indeed proven their reason for termination is wrong and instead made another ridiculous excuse as to why they don’t feel they need to honor the agreement, offering a very insulting settlement so we don’t seek an enforceability judgement/court order against them. If we are able to take this matter to litigation to get a judgment it would also afford the other property owners that this agreement affects, the ability to stand up for their rights as well. Litigation to seek an enforceability judgement is very costly though, hence our dilemma.
Their new claim is also very easily refutable and shows how little they actually know about the history of the agreement. Their actions over the last 48 yrs also prove that they know the agreement is indeed enforceable. Back in 1973, the local water co-op tried to sue the corporation for supplying our properties water. The corporation used us/our agreement in their defense, sighting the 1968 agreement and the history behind it, stating under penalty of perjury, that they, (the corporation) "are bound by the agreement and were required to assume responsibility of the agreement when they took possession from the prior corporation... to supply water to these “users” and their assigns and successors in interest... in EXCHANGE... by any source." The result was, the water co-op backed down, the corporation prevailed and has continued to honor the agreement all these years, up until now that is.
We are not seeking any monetary gain, we are not asking for any amendments, nor to negotiate a new agreement or anything of the sort, we are only asking that the corporation corrects their grave error and honors the agreement , just has they have for almost 50 yrs, and that they never try to challenge/breach/terminate it again.
Thank you so much for your time and attention. We greatly appreciate all of your prayers and continued donations of support to defend “the little guy.”