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Ask the Expert
Marjorie Jean Meyer, CMCA®, PCAM®
Vice President and National Director of Education and Certification
ASSOCIA |
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Board of Directors |
| Developer Problems |

Background: Currently our developer has
complete authority over our homeowners association as this
was agreed to by every homeowner (unbeknownst to them) when
the homes were purchased. It is written in the "restrictions" that
until "not less than 100% of the lots have been sold closed
and conveyed title" the developer has "exclusive
rights to establish bylaws for the Association and to appoint
the Board of Directors, all in his sole and absolute discretion".
It is also written he has the right to raise annual association
fees as he deems necessary. Our subdivision is not completely
built yet. We are about 2/3's completed. However, the developer
is still building to an annexed portion of the sub, which is
located across the major road from our existing sub. The developer
has invoiced the homeowners for the 2004 Association Budget.
In his budget he "estimated" an increase of $20,000.00
for city water/sewer alone. He has increased every line item
across the board, almost tripling our cost from last year.
The fee seems unreasonable.
Questions: Where can I find out the initial development
plans for our sub? How can I find out what costs "should
be" incurred by the developer versus what costs are incurred
by the current homeowners? Should the installation and maintenance
costs of new landscaping, trees, sprinkler systems, water/sewer,etc.,
on newly developing but not occupied homes and vacant lots
be charged to the existing homeowners of same subdivision?
Should the developer be incurring these costs?
- Mary B.

All the answers to your questions should be found in your community's
Declaration of Covenants, Conditions and Restrictions, and Bylaws.
These two documents, along with any Rules and Regulations and
Architectural Guidelines, should have been delivered to you either
before or at the time your settled on your home, and together
comprise the "contract" between you and your homeowners
association, as one-sided it may be with regard to your developer's
rights.
Typically, developers want to keep very tight control over
the homeowners association during the sales period. They want
to make sure that the property looks in optimal condition to
entice buyers. The developers worry that if control of the common
elements is turned over to a homeowner-run homeowners association,
the volunteer board of directors won't have the same ability,
care and concern for the common elements, resulting in a less
attractive community with little curb appeal to prospective purchasers.
With regard to the increases in your annual budget, is it possible
that the additional expenses are a result of the increased number
of residents in your community, opening new common areas that
require irrigation, landscape maintenance, and perhaps increased
insurance on the common elements? Could you talk with the developer
or his agent about your questions? Perhaps you could suggest
to the developer to create an "Advisory Board" of homeowners
that would relay information between him and the owners, helping
him to explain his actions and receive comments and suggestions
from the owners. An Advisory Board can reduce the friction between
the developer and the homeowners, increasing word-of-mouth sales
and hastening the day when the developer turns over control of
the association to the owners.
Sincerely,
Margey
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| How Community Associations
Work |

I am a homeowner in a new community (1
yr). We currently have an outside property management company
acting as the Association, but myself and all the other homeowners
are now interested in establishing our own association. One
of the owner's here is also the builder and has expressed resistance
to this idea. (He now is the one "calling the shots" with
the property management company.) We have been virtually voiceless
in any and all decisions being made by the property management
company. How should we approach this situation and how do we
go about setting up a homeowner's association without having
to get legal force behind us?
- Katherine R.

There seems to be some confusion over who controls your community
association, so here's a brief explanation of how the process
usually works.
In most situations, the governing documents for your association,
including the Articles of Incorporation, Declaration and Bylaws,
are filed before the first home is sold. The developer and the
people s/he selects, usually employees, serve as the initial
board of directors and control the operations of the association
until a certain date or until a certain percentage of homes are
sold (the exact "transition" occurrence is described
in the Declaration). Since most developers do not have the time
or expertise to run the homeowners association, they hire a management
company to perform that service. The management company acts
as an agent for the association, NOT the developer, although
the two entities are not easy to separate since the developer
is the CEO of both.
Developers usually retain control of the association during
the period in which their primary concern is to sell his homes
because they want to ensure that the property sparkles with good
maintenance provided by the association. Once the owners have
control of their community, it's possible that deed restrictions
will not be strictly enforced and the common areas not adequately
maintained, conditions that affect curb appeal and diminish sales.
Although the developer probably does not want to relinquish
total control of the association until the time specified in
your Declaration, he might be willing to form a 'Homeowner Advisory
Board" to work with him on issues that affect the residents
in your community. Or, perhaps he would appoint a homeowner to
the board of directors. The homeowner may not have a majority
vote, but s/he may provide important insight and suggestions
to the board.
If your director is interested in the National Homebuilders
Association-endorsed method of addressing homeowner association
issues during the development period, perhaps s/he would read
the attached report (Transition
Best Practices Report) prepared by a task force
comprised of members of the National Homebuilders Association
and the Community Associations Institute. I'm also attaching
for your review "Community
Association Living", a very detailed explanation
of what it means to live in a community association.
Sincerely,
Margey
These documents are in PDF format. Viewing
them requires Adobe Acrobat Reader, which is a free downloadable
software available by clicking here:

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| Problem Board |

I live in a community of over 200 homes.
Since 1975 our CC&R's have placed the responsibility of erosion
control of common areas on the Association. Over the last 5 years
there has been serious eroding of land at our tennis courts.
This and past Boards have dragged their feet in correcting the
problem. Now there are 6 homes with even more serious threat
of erosion behind their houses on the common area. Problem: the
current Board is intent on changing the by-law and shifting the
liability onto the homeowner. This has caused a drastic rift
among our community. A small percentage has appealed to the Board,
written letters, to no avail. Short of any lawsuit is there any
recourse or help we can solicit?
- Laura B.

It sounds like the members of your homeowners association are
polarizing on this issue, a situation that never bodes well for
a productive, effective, successful community. As you indicated,
litigation should be the last resort; perhaps one of the following
suggestions would better resolve this frustrating and emotional
issue:
- Try to convince the Board to amicably resolve the situation,
perhaps through mutually agreed to mediation or arbitration.
There is usually a Dispute Resolution Center in most cities that
can help mediate these kinds of disagreements.
- If there is neighborhood support, the owners could attempt
to remove the Board and vote into office board members who would
carry out the majority of members' intent.
This quicker this situation can be resolved, the better it will
be for the residents in your community. I hope reason and compassion
prevails among all involved so together you can explore potential
amicable alternatives.
Sincerely,
John Carona, President
Associa
(Regular contributor to Association Times and "Ask the Expert")
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| Votes Needed for Change |

Our condo association is having a big dispute on whether
to continue to use a private company for trash collection or
use city services. We do need the money saved to help build up
a reserve fund. At the last special meeting the argument for
and against got very heated. The board members are also evenly
divided on this issue. We are now having a ballot sent out for
members to vote on this issue so it can be settled before the
next meeting to prevent the heated arguments. I expect the vote
to be quite close. Do we need a 2/3 vote for this to pass? There
is nothing in the bylaws about this.
- Ruth M.

Please review your community association's Bylaws
and Declaration of Covenants, Conditions and Restrictions to determine
the percentage of votes needed to change from private to public
trash collection, or if a homeowner vote is even necessary. Is
it possible that the board of directors can make this decision
without a homeowner vote? If so, would it be prudent for the board
to survey the owners before making a decision that will impact
all members of the association?
If your governing documents are unclear about this issue, I urge
you to consult with your association's legal counsel to ensure
that the appropriate procedures are followed. I'm sure you want
to make the right decision that will not be challenged by potentially
unhappy owners and board members, so talking with your attorney
may be the best first step to take.
Regards,
Margey
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Communications |
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Finances |
| Association Fees |
How do I find out if my condo fees are comparable for
my area? Our fees went up $50 per month this year an I would
like to find out if what I'm paying is average for the area.
- Christie

You might be able to find out the assessments for neighboring
communities by accessing an online real estate listing service
such as www.realtor.com.
However, just knowing how much another community is charging doesn't
mean that the assessments are comparable. For example, smaller
condominium communities typically pay higher fees than larger ones
because there are fewer units to share expenses such as insurance
premiums that are not dependent on size of the community, i.e.,
a boiler and machinery policy to cover controlled access gates.
There are many other variables to consider as well: age of buildings,
type and number of amenities, type of roofs, type(s) of building
exteriors, physical condition of the buildings and common elements,
utilities provided by the association, optional services provided
by the association, type of management (volunteer, onsite employee
or offsite management company), form (if any) of controlled access,
and amount in reserve funds.
So, even if you are able to find out the maintenance fees of nearby
condominium communities, it may not help you determine if your
own fees are reasonable. A lot more research would be necessary
before you could conclude that your association's budget is excessive.
Sincerely,
Margey
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| Association Fees |

I believe that the maintenance fees at
my community are relatively very high based on the value of
my/our condo(s). How can I compare fees with similarly valued
properties in our area?
- Steven L.
You might be able to find out the assessments for
neighboring communities by accessing an online real estate listing
service such as www.realtor.com.
However, just knowing how much another community
is charging doesn't mean that the assessments are comparable.
For example, smaller condominium communities typically pay higher
fees than larger ones because there are fewer units to share
expenses that are not dependent on size of the community, such
as a boiler and machinery insurance policy to cover controlled
access gates. There are many other variables to consider as well:
age of buildings, type and number of amenities, type of roofs,
type(s) of building exteriors, physical condition of the buildings
and common elements, utilities provided by the association, optional
services provided by the association, type of management (volunteer,
onsite employee or offsite management company), form (if any)
of controlled access, and amount in reserve funds.
So, even if you are able to find out the maintenance
fees of nearby condominium communities, it may not help you determine
if your own fees are reasonable. A lot more research would be
necessary before you could conclude that your association's budget
is excessive.
Sincerely,
Margey
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| Facilities Fees |

Our site condo home owners association is a nonprofit
corporation. The condominium is located along a lake. Recently
the association installed a few docks and started accepting fees
from individual members who wish to use the docks. Does accepting
this fee for the service of a community facility change our nonprofit
status? Is it permitted in a nonprofit corporation? Wouldn't
that fee be reported as not exempt income?
- Kim H.

While it's always best to consult with tax experts regarding homeowner
association tax issues, in general the IRS allows the nonprofit
status for a homeowners association so long as 60% of the association's
income is derived from member assessments and 90% of expenditures
are to maintain, manage or construct association property.
Sincerely,
Margey
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| Reserve Funds |

Is there a formula for computing how much
an Association should be setting aside each month for Reserves?
- Margie P.

Many years ago, FHNMA and Freddie Mac required that a certain
percentage of the annual maintenance fee billings be allocated
to a reserve fund. However, that was during the original conceptualization
and implementation of a new type of residential community called
a homeowners association. Thirty years later, it's now recognized
that each association is unique, and the amount necessary to
be allocated to a reserve depends on many issues including number
and type of amenities, the association's maintenance responsibilities,
the age and condition of the common elements, and the current
amount in reserves.
If you want to know how much you should be setting aside in
a reserve fund for the eventual replacement of your community's
capital components, you should consider hiring a Reserve Specialist,
the designation awarded by the Community Associations Institute
(CAI) to individuals who have fulfilled strict professional criteria.
One of the most respected companies that offer Reserve Specialists
is Reserve Advisors at www.reservesadvisors.com.
For a list of all Reserve Specialists, contact CAI at 703/548-8600,
or online at www.caionline.org.
Regards,
Margey
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General |
| CC&R's Copy |

Is there a copy of my CC&Rs in here some where?
- G.

Association Times is a national e-magazine for homeowners residing
in community associations. We do have a special affiliation with
Associa, a company with member management offices nationwide, one
of which may manage your community. Check your management company's
website to see if there is a link to your community's website where
you may be able to download your governing documents.
Sincerely,
Margey
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| Questions about "Ask the Expert" |

Who answers these question? How often do you check for
questions?
- G.

Questions are automatically forwarded to me for response. I try
to answer all queries within 48 hours.
Regards,
Margey
|
Collection of Delinquent
Association Fees
&
Resale Certificates |

I have learned quite a bit by reviewing your
archived Q's & A's. Thanks for posting them. I have two questions:
- I am currently on an association board
and have been in positions where I get vague or conflicting
information from our management company and our attorney
regarding processes for collecting delinquent dues. Could
you please tell me where to search for information to improve
my understanding of the collection process for delinquent
dues in a Home Owner's Association in Texas?
- We also have a few situations where
the property has changed hands without a resale certificate
when the previous owner owed assessments and fees. If the
title company didn't catch this is the title insurance liable
for the balance? In one case, the closing papers state "No
HOA" in another, there were two liens on record.
- Mary

Thanks for your positive feedback!
Your question indicates that you're living in a homeowners association,
not a condominium, so my questions are based on that understanding.
Please get back with me if I misunderstood and you reside in a
condominium community instead.
With regard to your first question, there are indeed both state
and federal resources that can help you determine how your association
should be collecting maintenance fees. The first place to look,
however, is the governing documents for your community, especially
the Declaration of Covenants, Conditions and Restrictions ("Declaration").
There are usually provisions in the Declaration that state the
due date and late date for maintenance fee payments, as well as
penalties for nonpayment.
In addition to the Declaration, your board of directors may have
approved a policy resolution which elaborates on the provisions
in your Declaration. For example, your Declaration may simply state
that assessments are due on the 1st of the month and late after
the 15th, while a resolution might address late charges, partial
payments, insufficient funds, and the actual collection process.
Chapters 201 through 209 of the Texas Property Code (www.capitol.state.tx.us/statutes/pr.toc.htm)
also detail specific procedures, actions and behaviors required
or prohibited of homeowners associations, some with specific regard
to assessment collection. Finally, the federal Fair Debt Collection
Practices Act (www.ftc.gov/os/statutes/fdcpa/fdcpact.htm)
requires that debt collectors treat you fairly and prohibits certain
methods of debt collection.
With regard to your second question, if the title company failed
to contact a representative of your association prior to closing
on a home, the title insurance policy would normally be responsible
for paying to the association delinquent amounts incurred prior
to the date of closing. Depending on your Declaration, it may not
even be necessary to file the lien in order to alert anyone searching
ownership records to learn of the debt. Most documents refer to
an "automatic" lien on the property for maintenance fees
which is recorded when the home is sold, and no further action
is necessary to protect the association's rights to collect those
funds.
On the other hand, the State of Texas requires homeowners associations
to record a Management Certificate in the county records in which
the community is located so that anyone who wants to contact a
representative of the association has a name, address and phone
number. If your association did not file this Certificate, it's
possible that the title company had no way of knowing whom to call
for delinquency and closing information. In that scenario, it's
possible that the title company would not be responsible for failing
to collect amounts due the association at the date of closing.
Here's the specific language in Chapter 209 that discusses Management
Certificates:
"§ 209.004. MANAGEMENT CERTIFICATES. (a) A property
owners' association shall record in each county in which any
portion of the residential subdivision is located a management
certificate, signed and acknowledged by an officer or the managing
agent of the association, stating:
(1) the name of the subdivision;
(2) the name of the association;
(3) the recording data for the subdivision;
(4) the recording data for the declaration;
(5) the mailing address of the association or the name and mailing
address of the person managing the association; and
(6) other information the association considers appropriate.
(b) The property owners' association shall record an amended management certificate
not later than the 30th day after the date the association has notice of
a change in any information in the recorded certificate[0] required by Subsection
(a).
(c) The property owners' association and its officers, directors, employees,
and agents are not subject to liability to any person for a delay in recording
or failure to record a management certificate, unless the delay or failure
is wilful or caused by gross negligence.
Added by Acts 2001, 77th Leg., ch. 926, § 1, eff. Jan.
1, 2002"
Mary, if you have more questions, please don't hesitate to write
me at info@associationtimes.com.
Regards,
Margey

That is the most concise and helpful information
I have received from anyone. (see above Q&A) I
have been considering ordering the CMCA home study course just
so that I can understand all of the requirements and processes.
Would it be beneficial to me for the purpose of better understanding
the laws and regulations based on the questions I asked? I am
also considering geting into this business. I know the certification
is voluntary but is it worth going ahead with it?
- Mary

With regard to your obtaining the CMCA certification,
you will certainly learn a lot about managing a community association
by attending the prerequisite M-100 course offered by the Community
Associations Institute. The CMCA certification will also look good
on your resume if you apply for a job with a management company.
On the other hand, CAI's "ABCs of Community Associations" is
designed specifically for board members. It's a different version
of the M-100, geared specifically to volunteers who serve on
the board of community associations.
CAI offers the M-100 class in chapter cities throughout the United
States. Local CAI chapters conduct the ABCs course, usually once
or twice a year.
Regards,
Margey
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| Incorporating |

I own a condominium in the State of Washington
and the board of directors have decided to make the Association
a Corporation after 28 years of not being a corporation. My question
is what type of impact does this have on the owners and what
exactly does becoming a Corporation mean?
- Anne

Not being an attorney, I'm hesitant to provide legal
advice about the reasons for incorporating a homeowners association.
So, I went to my favorite resource – the Internet. I entered “advantages
of incorporating” and, believe it or not, came up with 29,401 sites!
I've cut and pasted information from two randomly-selected sites, www.ailcorp.com and www.bizfilings.com,
which specifically address your question.
www.ailcorp.com:
There are several different types of corporate
structures. Although it is not necessary to use a lawyer or an
accountant when incorporating, American Incorporators recommends
that you consult with either your lawyer or tax advisor to determine
the value of incorporating your business and which type of corporation
is most appropriate for your business.
Corporation
Although the most formal corporate structure, a general business
corporation is the most widely used by both small and large businesses
and offers the fewest restrictions. A general business corporation
may have an unlimited number of stockholders/owners whose personal
assets are generally protected in the event of a lawsuit against
the corporation or if the business fails. A stockholder's liability
is usually limited to the amount of investment in the business
and no more.
Protection of Personal Assets
The major reason why individuals choose to incorporate their
business is to protect their personal assets, such as a home,
car or family savings. In the event of a lawsuit or if your
business should fail, your personal assets can not generally
be touched. This limited liability feature of corporations
is not available in a sole proprietorship or partnership, where
the individual or partners are personally liable for all business
debts.
Tax Advantages
Corporations and LLCs can take advantage of tax savings options
that are not available to sole proprietorships or partnerships.
For example, corporations can establish pension, profit-sharing
and stock ownership plans, which can lower the corporation's
taxable income. Medical, life and disability insurance premiums
are also completely tax deductible for corporations. In addition,
a corporation can own shares of stock in another corporation and receive
80 percent of the dividends tax-free.
Corporations can raise capital by issuing stock,bonds
or other securities.
Corporations and LLCs are the most enduring form
of business structure. If a corporation owner dies, their portion
of the business can be transferred quickly without interruption
of the corporation's operations.
Estate and family planning is simplified since
shares of a corporation can be easily distributed to family members.
Corporations and LLCs often experience a greater
ease in doing business. Many stores and banks favor corporate
accounts and offer discounts.
www.bizfilings.com:
What are the advantages of incorporation?
One of the primary advantages of incorporation is the limited liability the
corporate entity affords its shareholders. Typically, shareholders and directors
are not liable for the debts and obligations of the corporation; thus, creditors
will not come knocking at the door of a shareholder or director to pay debts
of the corporation. In a partnership or sole proprietorship the owner's personal
assets may be used to pay debts of the business. Maintaining the limited
liability of a corporation requires that the shareholders and directors follow
all the rules of governance, including holding annual meetings and maintaining
meeting minutes, which is why we offer corporate forms disks and corporate
kits as part of our complete incorporation package.
Other advantages:
A corporation's life is not dependent upon its members. A corporation
possesses the feature of unlimited life. If an owner dies or
wishes to sell his or her interest, the corporation will continue
to exist and do business.
- Retirement funds and qualified retirement plans (like 401k)
may be set up more easily with a corporation.
- Ownership of a corporation is easily transferable.
- Capital can be raised more easily through the sale of stock.
- A corporation possesses centralized management.
What are the disadvantages of incorporation?
The primary disadvantage to a corporation is double taxation. Profits of
a corporation are taxed twice when the profits are distributed to shareholders
as dividends. They are taxed first as income to the corporation, then as
income to the shareholder. All reasonable business expenses such as salaries
are deductions against corporate income and can minimize the double tax.
Further, the double tax can be eliminated by making an S corporation election.
Other disadvantages:
- There is more complexity and expense with forming a corporation.
- There are more extensive record keeping requirements.
- Operating a corporation across state lines often requires
the corporation to qualify to do business in the other state.
Regards,
Margey
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Insurance |
| |
|
Legal |
| Enforcement of Fines |

Does Missouri have specific laws in regards
to the enforcing of home owner's association indentures... ie:
fines, litigation, etc?
- Julie W.

A quick look through Missouri's state statutes (www.Moga.state.mo.us)
revealed Section 274, the Cooperative Act, Section 355, the Not-for-Profit
Act, and Section 448, the Condominium Act. While Section 355 contained
provisions that would affect property owners associations, on my
quick scan I didn't see anything specifically addressing the operations
of homeowners association.
If you need specific information regarding state laws affecting
Missouri homeowners associations, I suggest you contact one of
the Community Associations Institute chapters in Missouri -- Chapter
Executive Directors Deborah Howard in Kansas City, dhowar6@attglobal.net,
telephone 816-356-172, or Robin Nagle in St. Louis, nagle@sbcglobal.net,
telephone 314-725-3273.
Sincerely,
Margey
|
Maintenance |
| |
|
Management |
| Management Problems |

I'm in the process of selling my townhouse.
An offer was accepted and during the inspection, it was noticed
that the roof needs replacement. The buyer's attorney is trying
to inquire when the roof will be replaced and who is responsible
for the cost of the replacement. The buyer's attorney, my real
estate agent and myself have attempted to contact the property
manager numerous times to get these asnwers, however she never
returns phone calls. Not only does this look bad to a prospective
buyer that the management company is never available if problems
arise, this is jeopardizing my sale. What recourse do I have
if this sale falls through?
- Mike M.

While the governing documents for your homeowners
association can tell you if the owner or the association is responsible
for roof replacement, they cannot give you a time line. Since your
manager has not responded to your phone calls, ask to speak to
the manager's supervisor. This will accomplish two goals -- you
get the information you need, and the supervisor learns that his/her
manager may need closer observation and perhaps retraining in customer
service.
Sincerely,
Margey
|
Rules |
| Altering the Common Areas |

A year ago I received a letter from the Association,
requesting that I remove all items placed in the common area
around my townhome. Those items are:
- A large professionaly landscaped ($2000.00) area
installed in 1994 with approval from the Association.
- Cementing along my home, done by me, to stop rising
water from entering my home.
- Pots in the alley with beautifully maintained flowers.
- All white vinyl lattice and lighting placed behind
my garden and along my home. This is a dividing fence from
actual homes, not townhomes, and was installed and paid for
by them. This fence does not belong to the Association.
All the residents love and enjoy my beautiful gardens
and don't want any of it removed. I hired a lawyer, Association
hired a lawyer, I fired my lawyer, now it is going to court
in May. They gave me two weeks to rip it out. I served on the
board and was landscape chairman for years, plus supervised
a $800,000.00 renovation. Could it be jealousy?
- Peggy

I would like to think that your board's actions are not out
of jealousy but, rather, an effort to comply with your governing
documents which your directors are charged with upholding.
While it sounds like you have put a lot of time, effort and
money into improving your area, your documents may contain a
standard provision prohibiting owners from altering the common
areas without prior written approval from the board. If you have
in writing a previous board's approval of your improvement projects,
now would be a good time to present it to the board. Even if
the previous board approved your work, the current board is obligated
to rescind that permission if it determines that the approval
was granted inappropriately or contrary to the board's authority.
Rather than litigating this issue, is there a possibility of
reaching a compromise over the extent of your improvements? Your
board is probably quite limited in authorizing an owner to encroach
on common elements, but perhaps there is a little leeway in allowing
some landscape upgrade around your townhome.
Sincerely,
Margey
|
| Pets |

We have a serious problem in our community
with dogs barking at all hours of the day and night. A number
of home owners keep a dog house in their yards. The animals bark
at anything and everything. Is it possible to restrict the use
of dog houses where these dogs are kept indoors or at least in
the garage?
- Jim

Barking dogs can certainly create a strain among
neighbors, and whatever the board decides to do to resolve the
problem may not satisfy everyone.
The first step in determining the association's authority to control
dog and people behavior is to look at the governing documents,
primarily the Declaration of Covenants, Conditions and Restrictions,
or perhaps what may be called the Deed Restrictions, as well as
the Rules and Regulations. Are there already limitations in those
documents regarding allowing dog houses in the back yard or excessive
dog barking? If so, then your board should enforce the restrictions
that already exists.
On the other hand, if there is no reference in any of the above-referenced
documents to limiting dog houses or barking, the next step is to look at
the bylaws of your community association. Is the board authorized
to promulgate rules and, if so, is there a required rule development
process?
Finally, before beginning the process of creating a rule regarding
barking dogs and dog houses, check your state's statutes to determine
if there is a specific procedure describing the steps the association
must take in order to adopt a rule. Absent language dictating the
process in either your governing documents or state statutes, consider
adopting the following method:
- At a board meeting, discuss what you would like to rule to
say and how it will be enforced. Create a draft of the proposed
rule.
- Announce to your members that the board will be considering
a rule prohibiting dog houses and controlling barking dogs. Be
sure to include in the announcement the date, time and location
of the meeting in which the board will vote on the rule, and
invite owners to offer their opinion on the proposed rule. It's
best that they submit their comments in writing by a certain
date. It could happen that an owner with a different perspective
on the issue may provide essential insight that could result
in a revision to the wording or scope of the rule.
- At the announced date and time, the board should meet for
final discussions, consider the previously-submitted input from
your members, and vote on the rule.
- Some states require that rules be legally recorded before
they can be enforced. Check your state statutes and governing
documents to determine if such language exists. Even if it doesn't,
it's not a bad idea to record the rule, in a form of a resolution,
to ensure that all future owners receive a copy of it when title
to their home is researched for a resale.
- Mail the recorded resolution to all owners and lessees, advising
them that you will begin enforcing the rule on a certain date
at least 30 days from the date of the mailing. Check your documents
and state statutes again to determine if the letters must be
sent by certified mail.
- Be sure to enforce the rule fairly and consistently.
One more critical consideration. If your Declaration or Bylaws
specifically authorize dog houses in back yards, and/or allow dogs
to remain in fenced yards whether they bark or not, then the rules
development process is not the answer. You cannot make rules that
conflict with your governing documents. Instead, you will have
to follow the amendment process detailed in the document that contains
the wording you want to change.
Before you ask your members to approve an amendment, or before the board approves
a new rule, be sure to consult with your legal counsel to ensure that you are
complying with your documents and state law, and that your new regulation is
appropriate.
Sincerely,
Margey
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