Ask the Expert

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

Can a Board member use the proxy of another Board member to nominate themself as an officer? May they use a proxy to second a motion?

- Will R.

Unless the bylaws for your community or a state statute specifically grant proxy privileges to board members, Robert's Rules of Order indicates that proxies are not generally permitted for assigning board member votes or fulfilling quorum requirements for board meetings. For more information regarding parliamentary procedure, go to Robert's Rules of Order, Revised.

Sincerely,

Margey

Thank you. (See above.) If I understand right, it is not acceptable for Board Members to give proxies to other Board Members for any Board meeting purpose unless specifically spelled out in the Declarations or by-laws. Correct?

- Will

Yes, you understand correctly.

Regards,

Margey

What is the rule regarding residents participating in discussions on agenda items at monthly board meetings?

- Gerald F.

Many states have regulations regarding how residents can participate in board meetings. For instance, the law may require that there be ample time allowed for a member to discuss an agenda item prior to the board voting on such a matter. In other instances, there may be specific times to be set aside for a member to bring forward matters either on or not on an agenda. It would be a good idea to ask your management company and/or research your state laws regarding corporations and/or homeowner associations. If your state does not have anything specific, bring the matter up with the board members, perhaps before or after the meetings. Another format may be to correspond with the Board members and ask how you can participate in the discussions. Some associations develop a formal Board meeting “etiquette guidelines” allowing members 2-3 minutes to speak on a give subject. If you feel the Board is not addressing your matter, consider running for the Board. Once you are elected, bring forward your concern that you feel the members are not being adequately permitted to participate.

- Mark Lewis, AMS®, CMCA®, PCAM®

On May 25, 2004 I submitted a request to an ARB for installation of a pool. The above ground pool will be placed 2 1/2 feet into the ground with decking completely surrounding the pool which makes it an inground pool. The pool will not be visible to the public since our lot is totally enclosed by a fence. The pool will be placed in our backyard. Our covenants do not address "pools" in our association. The ARB has 30 days to approve or deny the request. On July 1, 2004 we contacted the ARB to see if the request was approved. The Treasurer of the association holds the mailbox key and she stated she hadn't been to the mailbox in quite awhile so she didn't even know about the request. She now has denied even receiving the request. The president of the association phoned me and told me that since the ARB did not approve it they would have a meeting when he returns from out of town in a couple weeks and decide. Since it has been well over the 30 day limit on the ARB returning their decision, is it not correct that we can have the pool put in and the ARB cannot make us remove it? It is to be installed this week by a professional contractor, permits and all regs will be followed. The covenants are very vague and do not address pools at all. Thank you.

- Karen

Your comment about the covenants not addressing pools specifically is not unusual. Most covenants generally do not address each and every possible submittal or home project a member may conceive of. Usually the covenants detail that the member is responsible for submitting to gain approval for any exterior changes. In this way, if a new landscape design concept were to be available on the market, the member could submit and the Association could review and make a decision. Since the covenants are not easily amended (usually requiring a super majority of the members), it is not advisable to include a lot of details about homeowner projects as this would be a very inflexible document. What most associations do is develop and implement Design Guidelines which provide a homeowner with standards in regards to paint colors, pools, landscaping, etc. The Design Guidelines can generally be revised by the Board of Directors, thus making it a flexible working document.

The verbiage you commented about ("30 days to approve or deny the request") in association CC&R's causes much controversy, both for the member and for the Board of Directors. That is one of the reasons why attorneys and management companies recommend that CC&R's that include this wording be removed or at the very minimum be amended to state "30 days to approve or its denied". The biggest problem looms just as you noted - how does either party validate mailing and receipt of the submittal request. Unless the person who mails in the ARB submittal sends it via certified mail, he/she has no proof of mailing or receipt. And without a signed mail receipt, the Association could disavow any knowledge that the submittal was ever received. It appears from your question that this is what occurred in this case. Your question "is it not correct that we can have the pool put in and the ARB cannot make us remove it?" is a question that can and probably only will be answered if the pool installation is completed and the Board decides upon what action it will take on your submittal. How your Board or any Board for that matter will handle the matter if a member proceeds on submittal without prior approval will vary with each association.

It is obvious from your email that you want to do what is best for everyone and to make things work out. Hopefully this will assist in your decision making. Please visit our website again.

- Mark Lewis, AMS®, CMCA®, PCAM®

I live in a condo in Virginia. The Board is currently reviewing the cost and use of amenities. They are leaning to start charging a "dog fee" to use the common area pet areas. Currently, and for the past 30 years, the use of these area did not involve the payment of a fee (it was part of the monthly maintaince fees. No other amenities are being assessed a separate use fee. The pet areas are not the most expensive amenity item in the budget nor are they the least used. Where can I look for rules or laws regarding the ability of the Board and steps that should be followed to implement such action. Thanks for any help!

- Pamela

Interesting question. More and more these days Associations are researching ways to keep assessments low while maintaining a high level of service to its membership. One of the ways is to implement a "special use fee". The first place to look is in your Covenants Conditions and Restrictions (CCR's). Generally this section of the CC&Rs would detail something to this effect "if the Board determines in the exercise of its reasonable judgement that members benefit in a substantial way from a particular feature, characteristic, or service, the Board may levy a special use fee for the actual or reasonable estimate of costs incurred in connection with that service....." It is not unusual to have this type of fee. For instance, many Associations impose a fee for the rental of recreation facilities if a member is having a large party. Under the governing documents, the Board can be empowered to implement any number of programs related to budgeting and service standards. Again, thanks for your question and please visit us again.

- Patti Jo Lewis, AMS®, CMCA®, PCAM®

Where can I locate on the web all of the State of Florida laws and the Federal laws governing the Home Owners Association?

- Kristel

For the State of Florida, the website is www.flsenate.gov; the applicable laws would be Chapters 718-720 (condos, hoa's etc). Select Statutes, then View Statutes for the complete listing. As for the federal laws, that is a little more tricky. Since most HOA's are recognized as corporations in the eyes of the law, then every federal law that applies to a corporation would apply to an HOA. For instance if an HOA were to hire employees, the Association would need to comply with hiring practices, hourly labor laws, non-discrimination, etc. There is no one federal depository for HOA laws. Equal Employment Opportunity Commission, Department of Labor (employees), Fair Housing (age restrictions), Federal Communications Commission (satellite dish), are just some of the applicability. There is an article posted on Association Times, January 1, 2003, "Federal Laws do Apply to HOA's" that describes these laws and which federal website to reference for a full text and understanding. Again, thanks and please visit our site again.

- Patti Jo Lewis, AMS®, CMCA®, PCAM®

Toxic Mold was found in a condo. This was caused by a roof leak. The roof has now been replaced. Who is responsible for repair of the condo mold?

- Sharon

One of the key points for this discussion is what is written in the Association CC&R's. That document will detail who has responsibility for roof leaks and associated damage caused by the roof leak. Is the Association responsible for the roofs or is the individual unit owner responsible? Depending upon what the CC&R's state, that will assist in determining what course of action to take. If the documents are not clear, what has the Association done in the past if/when this problem has occurred? Since the problem with mold has been a recent phenomenom for condos, many associations have not established a maintenance responsibility protocol to address this issue. Another area to research is the Association insurance policy. Does the policy address the roof leak and associated mold damage? The Board of Directors and/or the management company should be involved in your matter so that things are handled promptly. Please contact us again with additional questions.

- Patti Jo Lewis, AMS®, CMCA®, PCAM®

I am in a senior condo community that elected its first board of directors in April. We were very quickly advised of "rules" with which I have a very large problem. E.g., no benches or chairs in the front of the property (by the front door), no more than two flower pots in the mulched area in the front, no more than two tomato plants in the mulched area in the back, no trellis in the front (no matter how small/low)etc., etc. The reason given for not allowing any chairs/benches in the front by the door is 'because they may hinder EMT entrance into the dwelling'. I am infuriated! What right does the board have to dictate whether the EMTs can enter my home? (As an aside, I KNOW that if EMTs encounter an obstruction, they throw it aside in order to do their job). I know of one board member who said, "One of the first things we'll do is get rid of the ***** in front of ****'s house and the **** in front of *****'s house". I do believe this board has a vision of their personal utopia---without any consideration of the membership. We have not been asked for our opinions or expectations before the mandates were voted by the board. I believe our board is of the opinion that however they perceive the community, that's how it shall be, without regard to the membership. I would appreciate knowing from you, whether I am being a whiner; and if not, what would you suggest as the best approach to remedy an ulcer-inducing situation? I'm so anxious to hear from you! Thank you in advance.

- Pat

As with any association, the CC&R’s or Bylaws will detail the powers and duties of the Board of Directors. Many of these documents allow the Board to create design guidelines as well as rules and regulations. It appears that is what your Board of Directors have done. How much the Board has the authority to regulate is generally included in these documents as well. In the case of condominiums, since the exterior areas are generally under the control and maintenance of the association, the rules and regulations may be more restrictive than you would find in a single family residential community. Where there may be difference of opinion depends upon each individual’s concept of what is “reasonable” in the rule-making scenario. In your case, you feel the current rules are too restrictive. Another member in your same association may feel the rules are not restrictive enough. Over time, as Board members change, the rules change. You mention this is the first Board of Directors. Generally speaking, we find that the first Board will want to make a lot of forward progress on implementing policies and procedures, perhaps reacting to what they perceive to be the will of the membership. One suggestion to change the rules may be for you to run for the Board of Directors at the next election. If elected, review the existing rules and regulations and make revisions as voted upon by the Board.

- Mark Lewis, AMS®, CMCA®, PCAM®

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