Ask the Expert

Marjorie Jean Meyer, CMCA, PCAM
Vice President and National Director of Education and Certification
ASSOCIA

The president of our condo association has rented the front desk (it is also a hotel.) They own over 30 rooms and do little or nothing for the other owners. Can the president own a for profit company to their benefit and still be on the board of directors? I have found discrepancies in the receipts of the association ( I was refused access to the actual accounting books.) I have tried to report this to the State's Attorney, the City Attorney and the police, they don't take the report or don't return my calls. What can I do or who can I contact?

- Edward W.

Your question describes a potentially serious conflict of interest situation that could impact the successful operations of your community, and I commend you for seeking answers.

The bylaws for your association should contain some of the information you are searching for. For example, look for a provision that details the duties, powers and obligations of the board members and officers. This provision usually states that the community's elected leaders must act in the best interests of the community as a whole, and not in their own self-serving interests. There should also be a provision in the bylaws, or perhaps in your Condominium Declaration, that indemnifies (protects) your board members and officers only if they act on behalf of the association as a whole. If they act for their personal betterment (for example, benefiting financially because of their role as a board member or officer), the association's Directors' and Officers' Liability Insurance will not pay for their defense or any court awards or settlements should a homeowner or other board members sue them.

Your governing documents and/or state statutes may also contain a provision mandating that the books and records of the association must be made available to the owners during normal business hours for any appropriate purpose. If your president refuses to allow you to look at all the records of your association, I suggest you show him the specific provisions that require him to do so. If he still refuses, talk with the rest of the board about the possible implications to all of them if they support his decision. You could also remind the board that the officers serve at their whim, and they may appoint another president at any time, if your bylaws allow.

If, after all your efforts, the president and board continue to prevent you from seeing all the books and you believe that the president is still profiting at the association's expense, contact your association's insurance agent to report your findings. The agent or insurance underwriter may intervene on your behalf with the board to ensure that the community association is being properly administered.

Please let me know the results of your endeavors.

Sincerely,

Margey

At our last meeting, the nominations for election of a new board was limited to the existing board members. Three of us have health problems and didn't wish to be re-elected. We were the only ones being nominated. What do we do in this case?? The sign for holding the meeting was posted 5 days in advance, yet we barely had a quorum. We have 50 homeowners and 35 of them chose not to attend. What can we do about this poor reception? Thanking you in advance.

- Carole D.

Owner apathy, evidenced by poor participation at annual meetings and in the management of your community, is not unusual, especially when owners are satisfied with their community and the attentiveness demonstrated by the volunteer leaders.

How do you find your successor? Your best chance is to personally ask someone to help you on the board, rather than broadcasting a call for volunteers. By preparing a summary of board responsibilities and activities, you'll give the prospective board member a good understanding of what's expected of him or her, and a much better idea of anticipated time demands -- hopefully, much less than feared. If your board is spending too much time on association business, no wonder it's difficult to find your successors! Perhaps it's time to investigate alternatives such as a bookkeeping service, a management consultant, or even a full professional management company.

With regard to achieving a quorum at your annual meeting so that you can conduct necessary business, I'm attaching an article that addresses that very issue. I hope it provides you with enough options that you can use one or many of them for your next meeting to ensure that the necessary number of owners is represented either in person or by proxy.

Sincerely,

Margey

When a person is on the board of directors do they have an obligation to the members of the association to treat every unit owner the same. For example: a member of the association received a letter from "the communications coordinator" a board member and the letter states that this owner/resident is forbidden to call and the Treasurer/ bookeeper has blocked this owners phone number but this resident/owner pays dues every month and part of those dues pays for these two board members wage.

- Marie

Your question regarding the board's uniform and consistent treatment of homeowners doesn't have a simple answer. Yes, the board should treat everyone fairly and with respect and, yes, that should include allowing all owners the opportunity to express their opinion.

However, the treatment should mutual; owners should treat board members with respect and appreciation of the time they volunteer to manage their community. It is not unusual for discussions between owners and board members to degenerate into a highly charged, emotional, and very personal issue, and that's when each party needs to step back and cool down. If the board decides that the owner may no longer converse with them, written communications should be allowed so that the owner still has a venue in which to report issues relevant to his or her home or to the common elements that may be the responsibility of the association.

If this situation exists in your community, I urge your board and homeowners to adopt the Community Associations Institute's "Rights and Responsibilities for Better Communities".

Sincerely,

Margey

Recently bought a lakefront home on a small (15-acre) lake in the Poconos. There are a dozen private docks on the lake. When we informed the association that we also wanted to install a floating dock, we were told that the association had decided 10-15 years ago not to allow any more docks (the existing ones were grandfathered). The By-laws make no mention of this; they simply say that any structure must be approved by association and "such approval shall not be unreasonably witheld." So far, the association will not budge and insists that, as the lake belongs to them, they had no reason to inform us prior to purchase. (An aside: the seller's realtor explicitly told us "you need to put a dock here" and pricing reflected the full potential of a lakeside home). Is this kind of thing a common situation? What kind of prior association disclosure is typically necessary? Is there a solution that gets us a dock without taking the association to court? What would probably happen if we just defied them and put it in? BTW, the reason given for the rule is concern over liability -- as if 12 of them were ok, but not 13?

- Stephen L.

It appears that there are several sources of misunderstandings and miscommunications regarding your desire to install a floating dock, starting with the seller's Realtor who told you the value of your home included the anticipated dock and ending with the board who decided not to permit additional docks but may not have followed proper procedures to formalize the decision and advise current and potential homeowners of their decision. I urge you not to install the dock in defiance of the board, because that can result in a predicament for which there are few defenses in court. Instead, consider the following:

1. Enlist the help of your Realtor in talking with the seller's Realtor regarding the potentially false statement regarding the value of the dock and requesting the assistance of both Realtor's in resolving this matter;
   
   
2. Ask the board for the written minutes or approved resolution that prohibited the construction of additional docks. Absent these documents, the board has no historical data with which to deny your request. If the documents do exist, determine if the governing documents or state statute require that they be included in the material provided to you by the seller, Realtor or title company;
   
   
3. If both of the above efforts prove futile, gather enough proxies from your neighbors to elect new board members at your next annual meeting who are more favorably inclined to approve your request. Or, to hasten the process, follow the procedures detailed in your bylaws to petition the board to call a special meeting at which the removal of some or all board members is voted on.
    
   
4. Invite the board to participate in either binding or nonbinding mediation or arbitration facilitated by an experienced person acceptable to both parties;

The above are options available to you that could be more effective, with quicker results, than a lawsuit. Please let me know how you ultimately resolve this issue.

Sincerely,

Margey

Our board of directors has not had a fiscal audit in 4 years. Is this normal, and if not, what can homeowners do about it? Are board members personally liable for the wanton mismanagment of HOA funds? Thank you.

- Linda K.

Although I can't give you the definitive answer about audit requirements for your community, I can certainly send you in the right direction. Both your governing documents (Declaration and Bylaws) and state statutes may contain provisions requiring annual audits. If your community is a condominium, it's very likely that your state's Condominium Act requires annual audits.

While not a regulatory body, the American Institute of Certified Public Accounts recommends that all Common Interest Realty Associations (which, in plain English, include community associations) have audits performed annually.

What can you do to persuade your board to conduct annual audits? Perhaps just educating them about the provisions in your governing documents and/or state statutes would suffice. If that doesn't work, sending a letter to your neighbors explaining why an audit should be conducted may bring enough peer pressure on the board to hire a CPA to perform the audit. Still no success? Gather a sufficient number of proxies and supporters to vote out the current board members at the next annual meeting or call a special meeting for that purpose.

Board members can indeed be found personally liable for malfeasance or intentional wrongdoing in their leadership capacity. Even if a Directors and Officers liability insurance policy is in effect, the policy will not defend board members who intentionally do not act in the best interests of the association, nor will they pay any judgments or settlements for such actions.

The best action a board can take is to attend local training classes for community association board members (go to www.caionline.org to see if there is a Community Associations Institute chapter in your area), read articles at www.associationtimes.com, and make every effort to learn how to be an effective, productive and credible board member.

Sincerely,

Margey

I am a Board Member and the Chair of the Long Range Planning Committee. I recently had a Full Reserve Study conducted by an independent, professionally certified Reserve Specialist meeting the standards set forth by CAI and APRA. Nowhere in the study does it classify our trucks or other vehicles as capital equipment. However, now that we must replace a truck, our management company is asking me to use Reserve Funds to purchase a new truck. I believe the funds should come from operations. This means we would have to loan or lease. Is my reasoning correct? Because a vehicle is not a common element or equipment within a common element (like a furnace) it is not capital equipment and therefore not eligible for reserve funding? Thank you.

- Rita R.

According to Mr. Paul Vinson of Professional Engineering Inspections, Inc. in Houston, Texas, an item can be included in the reserve fund if it meets the following guidelines:

1. The equipment is the responsibility of the association to maintain and repair.
   
   
2. The item is not covered under a maintenance contract that includes replacement (such as an elevator, etc.).
   
   
3. The item is not covered in another part of the association budget.
   
   
4. The item is within any life or replacement cost thresholds established by the association for the reserve fund.

If the vehicle meets the above guidelines, it could be included in the reserve fund, in Mr. Vinson's opinion. Is it possible that the Reserve Specialist who conducted your association's study was not aware of the vehicles? I suggest talking with him or her about adding the vehicles to his/her report to your board.

Sincerely,

Margey

Is there a place here in this website that my daughter can post her availability to babysit? Thanks!

- M.

While Association Times is a resource for all homeowners residing in community associations, we do not offer a classified section. However, please take advantage of the other programs we offer!

Sincerely,

Margey

I am a board member for a 48 condo association located on a great lake in Northern Michigan. The association has been in existence for 14 years since the last of the units was sold. The condos sold in about 2 and a half years. The condos have a management company who happens to be the same builder who built the condos. They have been well managed and most co-owner disputes have been resolved with minimal dismay. A few disgruntled co-owners over removal of overgrown trees and shrubs is about the most controversial event. The condos are mostly summer units and sit vacant for the winter. There is no rental unless board approved and then for a minimum 1 year period.

The problem I am writing about began about a year and a half to two years ago. One of the original owners permitted the occupancy of their unit by their daugher and husband. They moved their 4 member family (2 young kids) from a nearby (1 hour approx.) town and took up full-time residency in a small 2 bedroom unit (1,040 sq. feet). Since that time the management company has been inundated with phone calls from this family requesting minor repairs and also questioning the management of the condos. The management firm has threatened to quit many time and has been retained due to the more level heads of the Board.

The ultimate complaint consisted of a 4 page list of grievances submitted in February to the Board by this co-owner. He requested a special board meeting and had sent his grievances to all of the co-owners with the exception of the board members. Seven signed the petition of grievances and returned them. Even though eight was the number required to call a special meeting of the Board, we held the meeting in mid April and addressed each of his 9 concerns. Many had been addressed in the years prior to his taking up residency (ex. a shortage of parking during summer holiday meetings and trash being dumped in our trash dumpsters by locals using the village's adjacent fishing area).

You could tell at the end of the meeting this co-owner was not pleased and within less than a week, the Board received a letter requesting binding arbitration over a casement window crank unit that needed replacing in his unit. The Board has ruled and backed up by the condo documents that windows are limited common elements and the responsibility of the co-owner.

The latest thing that this co-owner did was to call OSHA on the roofing contractor who is currently re-roofing the units. The contractor is being cited for 2 violations and pays a fine just for OSHA being called out. What is my feeling on this co-owner? I feel he wants the management contract, and thus is pointing out all of the little flaws of our current management firm. He claims to be a contractor and has sent a letter to all co-owners identifying himself as such. The majority of co-owners are upset with this individual and the extra expense he will potentialy cause the association (i.e. lawyer fees, contractors not wanting to come to our condos for fear of OSHA calls, and many others). I have cited only the most recent of the problems we've had with this co-owner.

You cannot reason with this co-owner and his wife. Nothing appears to satisfy them. He has recently proposed that the garage doors, be re-classified from a limited common element to a common element. He has suggested that the maintenance fee be increased to cover all of these areas. He appears to read all of the condo legal documents and appears to use them to his advantage. We as a Board do not know what to do with this individual. We have the majority of co-owners on our side, but are afraid that he will create an environment at the condos that will pit one co-owner against the other and will not enable our management firm to get decent bids from contractors to do work on the units.

He has also requested the insurance documents for the common elements. We have temporarily denied this request. We have a local attorney who is reviewing the situation, but I was hoping that you may have some insight into this situation. I recently found your web site and enjoy the practical advice you give. Hopefully you can shed some light on how to deal with this scheming co-owner.

- Liz

Thank you for the nice words about previous responses.

It seems to me that you, your board and your neighbors have sincerely tried to work with the difficult homeowner and have had no success. He doesn't -- or perhaps doesn't want to -- understand community association living. As unpaid volunteers trying to represent your homeowners to the best of your ability, it's stressful to be constantly barraged with accusations, and it's no fun to always seem to be on the defensive.

My suggestion may seem radical to you, but it may be the only way to bring peace and harmony back to your community. Ask your attorney what he thinks about obtaining a permanent injunction against this owner, restraining him from communicating with any community leader; if he has something to say, he must say it to your attorney. This action may cost you more legal fees than you've budgeted but, in the long run, it may bring a sense of order back to the board, enabling you to focus on the issues the impact the successful operations of your community.

Sincerely,

Margey

When a Condominium Association becomes a corporation do the CC&R's have to be updated and recorded through the County of the change or amended?

- Marie

While some states don't require condominium regimes to be corporations, most developers do file Articles of Incorporation on behalf of their condominium developments so that the homeowner can benefit from the protection afforded nonprofit corporations.

The Condominium Declaration is a different document from the Articles of Incorporation, and does not necessarily have to be changed just because the association incorporates after the Declaration is recorded in the jurisdiction in which the property is located. If revisions do need to be made to the Declaration, the board of directors and homeowners must strictly comply with the amendment procedure detailed in the Declaration. The need to record the amendment -- and any other addition or modification to the Declaration, Bylaws, Articles of Incorporation, Rules and Regulations, Resolutions, or any other document that affects the behavior of the association members of the operations of the association -- depends on state statutes and provisions in the documents themselves.

As a matter of prudent action, even if recording an amendment is not required by your state or your association's governing documents, it's a good idea to do so because of a concept attorneys call "constructive notice". "Constructive notice" means that if you record those amendments, revisions or new rules, making them public record, then your homeowners cannot claim that they were unaware of the contents of those documents, especially with regard to use and architectural restrictions.

Sincerely,

Margey

I would like to know what I need to file with the state of Florida to incorporate a not for profit Homeowners Association. This is not a condominium association but is property owners association.

- Frank B.

Not being an attorney, and more specifically an attorney licensed to do business in Florida, I cannot give you legal advice regarding the process of incorporating a not-for-profit homeowners association. However, if you would give me the location of your community, I can refer you to association experts who can help you.

Sincerely,

Margey

What does exclusively mean in this context: each garage within each lot shall be used exclusively as parking spaces for the automobiles driven by the owner of said lot? Can the garage also be used for storage of tools etc?

- N.

In legalese, the word "shall" has a very specific meaning -- the action or behavior is mandatory. "May" means that the action or behavior is optional. So, in the context of your community association's governing documents, if the provision you reference states that "each garage within each lot shall be used exclusively as parking spaces for the automobiles driven by the owner of said lot", there is no wiggle room with regard to using the garage for other purposes, especially for remodeled living areas. The purpose of this type of provision is to ensure that vehicles are parked in garages instead of on driveways or on streets, which could potentially diminish the value of the homes in the neighborhood as well as create access nightmares for emergency vehicles.

However, as long as the resident can still park the number of vehicles in the garage for which the garage was designed, there is no reason other items cannot be stored there as well. It's a good, thing, too, because I can't imagine having to store gardening and repair tools, bicycles, trash cans, and an extra refrigerator and/or freezer in a living room!

Sincerely,

Margey

There are many references in our docs and in state law referring to "material change". What constitutes a material change as opposed to an improvement in the property. Would putting a patio and benches (installation costs born by donations) under trees in what is now a park atmosphere, constitute a material change? Would installing a pool heater where none exists constitute a material change?

- John T.

While I'm not an attorney, my 25 years of experience in community association management leads me to believe that installing a patio and park benches under common area trees, and a heater in the pool, are not material changes. A material change would be filling in the pool and converting it to a garden, or cutting down the trees in the park and installing tennis courts. "Material change" means an alteration that substantially changes the appearance or purpose of a component. I think the items you listed would more be considered improvements to the community's common elements.

Sincerely,

Margey

I am a condo owner in California and I would like to know if there is a general law or rule or statute of limitations for enforcing a HOA rule. For example, if the HOA Board all of a sudden tells me, the homeowner is in violation of a rule such as window coverings 10 years after we have installed said coverings, is this a valid siting? Is there a statute of limitations about enforcing this because both the HOA and the Management Company had many opportunities in the past 10 years to bring this minor aesthetic "violation" to the owner's attention (color of the window covering is one shade darker than the "acceptable colors". And the owner was never notified of such rule when they purchased the condo unit. What is the usual resolution to this aside from changing the window covering? Thanks.

- Carly

California certainly does have unique laws, not only with regard to community associations, and I suggest that you contact an attorney for specific information regarding the statute of limitations on enforcement of deed restriction violations.

Even though you may not have been alerted to this particular requirement when you purchased your home, if it is included in your governing documents, then the legal term "constructive notice" is used to describe this situation. "Constructive notice" in these circumstances means that so long as the document was recorded in the appropriate jurisdiction, the owner was provided legally binding notice.

With regard to the issue of appropriately-colored window coverings, remember that the purpose of such mandates is to protect the property values of your unit as well as all others in your community. It's possible that previous boards had been lax in their enforcement of this deed restriction and different-colored window coverings were allowed to proliferate. If your current board of directors decided that the many colors of window coverings have reached the point that property values are detrimentally affected, then the directors are obligated and authorized to ensure that the owners bring their window coverings into compliance. They must consistently enforce the requirement, even though your window coverings may be close to the mandated color.

If enough owners believe that the window covering restriction should be relaxed, they can follow the procedures detailed in the appropriate governing document to amend the requirement. However, your board probably does not have the legal latitude to broaden the type of permitted window coverings so, unless the owners approve a different rule, the directors' only option is to strictly enforce the existing mandate.

Sincerely,

Margey

I live in a 48 unit condo in Florida (Delray Beach) on the 2nd floor, a two floor condo. For 6 months I have been getting a noise from the condo below me which came from the air conditioner closet. The noise varies. It doesn't seem to come from the closet anymore. (I was told it was vibrations from the AC below me).

Now I get a machine like noise from the wall next to the AC closet and the ceiling in the foyer next to it. Day and night. The 3 units sharing the space on he roof are unoccupied. I haven't been getting any help from my management company or board. How can this problem be handled and stopped? Thank you.

- E.

To resolve issues emanating from adjoining units, try contacting the unit owners directly. Ask your management company for the names, phone numbers and addresses of the owners, explaining why you need the information. If the management company representative is hesitant about disclosing what he or she feels is confidential information, you may be able to find that data by accessing your jurisdiction's real property records online.

While your association may occasionally act on behalf of individual owners, the circumstances you describe are better addressed by direct contact between the owners. I hope your efforts result in a satisfactory resolution for you and your neighbors.

Sincerely,

Margey

I don't like your answer. (See above.) The noise sounds like its being made in a compressor for air conditioning on the roof. There are 4 compressors over my unit. Mine was inspected and is OK. The other 3 owners are away for the summer. I can't tell them anything until its proven who is at fault. Do I have to suffer the rest of my life. I am 87 years old. Isn't someone responsible to handle this problem. Isn't there an Agency that handles NOISE. Thank you anyway.

- E.

Ma'am, there is a possible resource for you in your local police department. If the a/c compressor noise exceeds a certain decibel, it may be in violation of your municipal noise ordinance. I hope this helps you find peace in your home.

 

Sincerely,

Margey

I had a suppressed break and entry into my locked patio area. This was done by the vice president of the home owners association. My new privacy fence was DAMAGED when he climbed over it. How can I get them to repair the damages? My front door frame needs repair due to severe alignment resulting from age. How can I get them to repair this front door frame?

- Peggy F.

Before I can help you, would you please tell me why the association's vice president climbed over your fence, and what your association's governing documents say about repair responsibility for both the door and the door's hardware?

Sincerely,

Margey

From Florida:

#1, we had several units in a couple of buildings that had a termite problem last year. We (the association) repaired the common elements as required using a licensed pest control company who used ground treatment with Thermador around those units affected. Now we have some people that are asking that the whole building be treated as they are afraid that the termites might get into their units. I believe as a Board member that we fulfilled our responsibility in repairing damage to the common elements and that we are not responsible to treat units that are not having problems, and in fact may never have a problem. I think this may be an expense that should not be shouldered by the community as a whole. I believe the unit owner, at their own expense should have a professional pest control person inspect their unit on a regular basis (at least once a year) for any type of infestation and be aware of signs of possible activity within their units. Am I being fair and within the law in this regard?

#2 Our community is an over 55 senior community and we have recently formed a Beautification Committee, approved by the Board of Directors, and are starting a newspaper recycling program with which funds to begin with as well as possible donations from unit owners, will help to purchase benches that will be placed throughout our site. My question is benches will be placed on the grounds along the roadways for people to sit, no expense will be paid from any of the associations funds and we will be placing these benches into cement slabs in the ground (common element) and our documents state "No material alteration or substantial additions to the common elements shall be made, except upon the affirmative vote of sixty (60%) percent of the unit owners". Does that statement mean we cannot place the benches in and on and around our complex without the approval of the unit owners?

- Lucille M.

With regard to your termite issue, there was a California case within the past few years that seems to be similar to your situation. Based on expert opinions and careful, thoughtful evaluation, the board determined that it was not necessary to treat an entire building if only a few units evidenced termite infestation and were appropriately treated. The judge agreed, using the business judgment rule as a basis for his decision.

Not being an attorney, I cannot advise you whether or not to treat your entire building. However, it sounds like your board has investigated the alternatives and consulted experts for their professional opinion. You've based your decision not to treat the entire building on the information provided to you. Perhaps you would consider a compromise with the owner by agreeing to have the association hire a termite expert to inspect the building annually as a preventive measure since, left unchecked, the resulting damage could far exceed the cost of the inspection

With regard to placing park benches in common areas, I don't think benches could be considered a material alteration or substantial addition. If you're concerned about an owner challenging the board's authority to place the benches (remembering that committees cannot make decisions but may offer recommendations to the board), you could consider obtaining an attorney's written opinion for your files.

Sincerely,

Margey

I moved into a condo March, 2003 and got a set of the bylaws when I purchased the condo. This past May our basement suffered some water damage from a leak. As far as I can tell from my set of bylaws the association is responsible for fixing the foundation. At the last meeting I was handed an "amendment" that I somehow did not have (neither did 2 of my other neighbors that had leaky basements) that was 2 sentences long saying that it was amended in 1984. How can I find out if this is a legal amendment or not?

- Amanda

There are a few ways that I can think of to confirm the validity of the amendment presented to you:

1. Check your association's Minute Book for any 1984 minutes of a meeting in which the amendment was approved;
   
   
2. Contact your title company to advise them of the alleged amendment to the bylaws. Many states require that all documents relating to the operations of homeowner associations be recorded in the jurisdiction in which the association is located. State statutes or the association's governing documents may also require all amendments and Rules and Regulations to be recorded to be effective, and that title companies or Realtors must provide copies of all recorded documents to the purchaser. Let the title company do the legwork to determine if the amendment actually exists.
   
   
3. Read your governing documents to determine if the association members are authorized to revise maintenance responsibilities without approval of a certain percentage of mortgagees.
   
   
4. If the alleged amendment is supposed to have revised the bylaws, check your Declaration to determine if it contains a provision assigning to the association the maintenance, repair and replacement responsibility for foundations. In the hierarchy of governing documents, the Declaration rules over the articles of incorporation bylaws and rules and regulations.

If you have no luck tracking down proof of the amendment, ask the board directly for documentation. Still no evidence? Send a certified letter to your board, quoting the provision in your documents mandating that the association maintain the foundations of the buildings in your community, and asking the board to either prove otherwise within 30 days of receipt of your letter or begin the necessary repair work on your foundation.

Sincerely,

Margey

When installing new windows, can the association require an owner to use a specific brand of window? I feel as long as the integrety of the structure stays the same (windows are same shape and size and look the same as before) they can't tell you who's product to buy. After all it is the home owner footing the bill not the association. My association told me I can ONLY install Anderson Windows. This is a brand that is a much better quality than the orginal windows installed. I have looked on our CC&R's but found no info on brand name. Thank you for your response.

- Lyn M.

While the board of directors of a homeowners association should rightfully be concerned with the exterior appearance of the buildings in their community in order to protect and enhance property values as much as possible, it would be more reasonable to establish architectural guidelines that establish visual criteria. For example, instead of mandating a certain brand of windows, your board could require that replacement windows have the same appearance of a certain model or style, such as bronze aluminum or white wood or vinyl, with a 1/4" lip. Requiring a specific appearance, not a certain brand, provides more latitude to the homeowners while ensuring the consistent "look" for the exterior of your buildings.

I hope that showing this response to your board may result in a more flexible rule regarding window replacement. If the board prefers to continue with the current regulation, the governing documents for your community probably authorize the board to pass reasonable rules that affect the appearance of the limited common and common elements in your community. How can you change the minds of the directors? By showing them this response, by asking them to read the book "Be Reasonable" published by the Community Associations Institute, by asking neighbors to join you in your appeal to the board and, if all else fails, by electing new board members more sympathetic to your situation.

Sincerely,

Margey

I have an association that I manage that is a gated community of 89 homes. They have many houses that have 10' utility gates on the side of the home. Almost all of these owners want to add a driveway to get to the gate. At present the board is not allowing this to happen because the documents are very unclear on driveways. The board wants to resolve the issue by clarifing the documents with an amendment how should this be done and should it be put to a community vote or a vote of the board? The Board members do not own houses with the bigger gates and are opposed to anymore cement and I am sure the amdndment will reflect there attitude.

- Chip S.

Before going to the effort of amending your community's Declaration, I suggest you ask the utility companies if they would authorize the installation of a driveway. They might say no, since they may have underground cables there that they occasionally need to access.

If you've successfully overcome the potential utility company hurdle, the next step is to consult with an attorney to determine who owns the easements -- the owners or the association. If the association owns it, it probably is not legal to allow homeowners to encroach on common elements. If the owners own the easements, the governing documents may address whether or not the owner may convert the area for another use such as a driveway. Your attorney can also advise you of the steps necessary to amend your documents to allow the installation of the driveway, including the appropriate notice, quorum and vote requirements.

Board members often think that the manager should be an expert in all aspects of association operations. However, I like to think of managers more as traffic cops who coordinate the actions of contractors, the intervention of consultants, the behavior of owners and the finances of the association. Of course, managers do a lot more than that, but they should not offer legal or technical advice beyond their expertise. Boards need to understand the limitations of the manager, and approve the expenditure of funds to hire specialists who can offer expert advice on issues outside the realm of responsibility of your management contract.

Sincerely,

Margey

I am interested in starting up a small business that manages HOAs. I will be taking the CAI classes this year to further expand my knowledge, experience and credentials. Could you tell me if there are national or state (Texas) governing agencies or other governing bodies who's criteria I would have to meet in order to start such a business? Thanks for making available your expertise.

- Mary S.

Congratulations on your interest in starting a community association management company! You have already started off your career in the right direction by attending CAI's PMDP courses on track to become a PCAM designee. Once you've obtained that designation, investigate if your company qualifies for the AAMC accreditation. The state of Texas does not have any certification or licensing requirements for community association managers, so your PCAM and AAMC designations are what will set you apart from some of your competition.

As with every small business enterprise, there's much to learn about how to run a company. Take advantage of the information available through CAI, the U.S. government, the Small Business Administration, and local networking groups so you don't have to start from scratch by reinventing the wheel.

Good luck!

Sincerely,

Margey

I thank you for the encouragement and for sharing your expertise. (See above) I have an appointment with the local SCORE volunteer today. Would you have any ideas on software packages that are best suited to HOA book keeping and generation of the monthly financial statement?

- Mary S.

With regard to community association management-specific software, I recommend you go to the website of the Community Associations Institute where there is a wealth of information on software programs for our industry. I believe you mentioned that you will be taking CAI courses in the fall; I urge you to join CAI to ensure that you receive the education and information you need in order to provide quality community association management service to your clients.

Sincerely,

Margey

We are a very small (26 out of a possible 30) homes built and fairly new HOA. The homes are all single-family, upscale homes with water and mountain views and range in value from 500-800K. Because we are new, we don't have much in our Homeowners bank account to pay for a long legal battle.

We have one problem homeowner who is serving as his own builder. Although our CC&RS clearly state a builder has 24 months to complete construction and may request an additional 12 month extension, this homeowner has been building for 6 years now. The exterior is unfinished, the paint, where painted, has now deteriorated and he has never completed landscaping. The interior is only roughed out. We recently found out from the County that his building permits expired in 1999 and he never renewed them. The County is now going to investigate this but this is a separate matter from compliance with our internal CC&Rs. We feel his house has a negative impact on our home values. We have been more than patient and have always encouraged him and even helped him with advice on his home. Recently myself and my spouse (both of us Board Members) approached him personally about his noncompliance with the CC&Rs. He told us in no uncertain terms that the CC&Rs don't apply to him and that we can go to hell. His next action was to put up an ugly concrete block wall that is also in noncompliance to demonstrate that he can do whatever he desires.

We are in the process of drafting a nonthreatening formal letter to him pointing out as well as documenting the noncompliance issues. But once we give him the letter what can we do next? We know he will do nothing to comply and will claim he is being harassed. Can you please advice us on the sequence of steps we could take next? Should we try and find a lawyer to represent us?

Unfortunately our CC&Rs do not provide guidance on noncompliance. Are there any on-line resources available to us to help us resolve this issue.

- Dale K.

Your community sounds beautiful, and I can imagine the heartache you, your board and your neighbors experience every time you and they see the unfinished home.

The good news is that your county's zoning/planning department is aware of the permit violation. You might have to respectfully nudge the process along (remember the adage about the squeaky wheel), but your association will not have to pay anything to enforce this portion of your covenant violation.

Does your county also require their prior approval to erect concrete block walls? If so, would they first check with the community association board to determine if a wall violates the governing documents? If your answer to the preceding questions are "yes", then it's still good news because the county will pursue the owner so you don't have to expend association funds on an attorney.

If the news is not so good and your county has no authority over length of time to complete construction or the erection of a concrete block wall, then your only alternative may be to hire an attorney. Check your governing documents and state law to determine if the losing party in a community association lawsuit must pay both parties legal fees. Or, perhaps with your attorney's assistance, you can persuade your recalcitrant homeowner to agree to mediation by a disinterested third party who is trained to help disputing parties find a mutually agreeable solution.

While your documents may not contain the process for enforcing deed restrictions, there may be a state statute that does. Don't know how to access your state statutes? Try entering "(your state) legislature" in an online search engine, then find "statutes". The next step varies by state, but perhaps you can find a chapter in your statutes referring to property, or you could enter "deed restriction enforcement" in a keyword search field.

If your state statutes do not have a provision addressing a procedure for enforcing deed restrictions in a property owners association (not condominium), your board should consider developing a resolution detailing the process they intend to pursue in the event a homeowner violates your governing documents. Here's a typical process in a community association for adopting a new rule through the resolution process:

1. 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.
   
   
2. Announce to your members that the board will be considering a resolution detailing the deed restriction enforcement process. 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.
   
   
3. At the announced date and time, the board should meet for final discussions among themselves, consider the previously-submitted input from your members, and vote on the rule.
   
   
4. 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 resolution to ensure that all future owners receive a copy of it when title to their home is researched for a resale.
   
   
5. 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.
   
   
6. Be sure to enforce the rule fairly and consistently. 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 the resolution is appropriate.

Sincerely,

Margey

I live in a new over-55 condo community. The association was only recently turned over to us from the developer. The board has been elected and now a committee (including myself) has been appointed to "hone" the rules and regulations. There is a strong effort by a couple people (including the board president) to prohibit rentals entirely--except for the three homes that have already been sold to investors. I, personally, think it would be wrong to prohibit rentals; however, I do believe there should be clear non-compliance penalties in place for the property owner. I would appreciate your opinion on this subject. Thank you!

- Pat

Imposing a restriction on leasing can be a draconian measure, so before your board implements such a rule, consider the following:

1. Check your governing documents, in particular the Declaration and bylaws, to determine if there are references to leasing units. If leasing units are permitted, then the entire membership must vote to amend the document containing the leasing provision;
   
   
2. If your documents are silent regarding leasing units, check your state's statutes to determine if there are any laws addressing this issue;
   
   
3. If there are no provisions in either your governing documents or state statutes that permit leasing units, survey your homeowners to understand what the majority of them prefer. Remember that when they purchased their homes, there was no prohibition against leasing and they may eventually plan to do rent their home and move elsewhere. The homeowners should have input into the decision whether or not to prohibit leasing, since it may affect the financial plans they had developed prior to purchasing a home in your community.

Whether you determine you must amend your documents or poll your members, I encourage you to consult first with an attorney familiar with community association law to help you properly proceed.

Sincerely,

Margey

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