Ask the Expert

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

I live in a subdivision in ***** County, Texas that owns common property (including 2 pools, tennis courts, community building, parks). As in all community associations, our by-laws allow only one vote per household when a vote is taken by the Board of Directors. That being the case, I question the validity of two members of the Board sharing the same household. In other words, two Directors have only one vote between them when a vote (election of new Board members) is taken. I'd like your opinion about the validity of two Board members from the same address. Thanks!

- Melinda P.

The issue of dual positions by a single household on a homeowners association board of directors has been raised quite frequently over the years. I would first encourage you to consult with your legal counsel regarding this sometimes controversial question. However, I can tell you that many legal scholars have opined that so long as there is no prohibition in the Declaration or bylaws against more than one person in a household serving on the board, the situation is legal and each Director has a separate vote.

More than the legal validity of this issue, though, is the perception by the owners. If a husband and wife both serve on the board, do the homeowners perceive that as a conflict of interest, or that a single household may have enough votes on the board, especially when there are only three board members, to control the financial and facility maintenance direction of the community? If the situation is creating disharmony in the community, either one of the household members should resign, or the owners should vote one or both off the board at the next annual meeting. Perception is reality to the homeowners, and no board member should ever create a situation in which his or her integrity is questioned.

Sincerely,

Margey

Our very large homeowners association (2000 homes) has two corporations, one non profit for "Corporation 1" which has 7 elected directors. Another corporation for our wholely owned water company "Corporation 2", which is a for profit corporation. It has traditionally had 7 directors too, 3 of which were "Corporation 1" directors. The other 4 directors on "Corporation 2" were appointed experts from our community.

Now the "Corporation 1" Board has recently voted to make the "Corporation 2" Board the same people as the "Corporation 1" Board, same 7 people for both.

Since "Corporation 2" does not need to announce to public for their meetings (because they are for profit, etc.), is not any meeting "Corporation 2" holds in private at someone's home, say, unannounced, the same as an illegal meeting of 4 or more directors for "Corporation 1", since these people ARE the "Corporation 1" directors? Seems illegal to me.

- Grant J.

While on the fact of it, it seems possible that your board can wear different hats for their two board positions, there may be laws specific to your state that prohibit community association board members from serving on multiple boards in which the composition is identical. To find out what statutes may address this issue, go to your state's website or find it by entering (your state) legislature in the key word search field of any search engine.

If you're still not satisfied after checking the statutes, the next step would be to consult with an attorney knowledgeable in your state's laws and case law.

Sincerely,

Margey

How best for the HOA board of directors to address personal agendas and personality differences among themselves? Three members of the four member board gang up on the fourth member, who is chairman, and constantly vote against him withour regard fot the community as a whole. Thank you for your advice.

- Bill

Good for you for recognizing the need for board members to focus on decisions that are best for the community, not for individuals or certain groups. If your board is dysfunctional and unable to productively and fairly address the operations of your community, the business aspects of your association suffer -- and so do property values. In the worst scenario, board members may be held legally liable for their failure to act prudently and responsibly.

There are some excellent articles on the fiduciary obligation of board members to put the best interests of the association above all other activities and personal preferences at www.associationtimes.com. Another resource for information on board member obligations and nuts-and-bolts "how to" primers on everything from conducting meetings and enforcing deed restrictions to collecting assessments and promoting harmony and teamwork among association members is www.caionline.com.

I hope your board members take the time to read some of the relevant material available at the two sites I mentioned. In the long run, they will be more satisfied with their accomplishments if they learn how to work together to concentrate on what's best for their community and its members.

Sincerely,

Margey

When putting together a petition for a special meeting is there a special format? I would also like to know the same about putting together a proxy. If you have an example of the two for me to review I would greatly appreciate it.

- W.D.

Petition and proxy requirements vary greatly by state as well as by the community's governing documents. If there are no requirements for either, a petition can be as simple as a few sentences describing what the petitioners expect to occur at the special meeting, followed by signatures of the petitioners, their printed legible names, addresses in the community, and date signed.

Absent specific requirements in state statute or in the community's governing documents, a proxy can also be simple. It should contain the printed name and unit address of the homeowner, the name and address of the proxy holder, a statement that the proxy holder is authorized to vote on behalf of the owner, the signature of the homeowner, and the date the proxy was signed.

Remember, however, that your community's governing documents may contain very specific procedures for petitions and proxies. If the petitioner or homeowner does not exactly comply with those criteria, the effort could be invalidated. Depending on the critical nature of the endeavor, it may well be worth the money to talk with an attorney specializing in community association law to ensure that the process is correct.

Sincerely,

Margey

Can't believe I am writing again, but we have another problem with this association board. Two weeks ago we sent out info to other 115 members (minus 4 board members) with a stamped self addressed envelope. Our plan was to get enough informed people to ask for a special meeting. We have more than enough. Now the board returns our mail unopened and won't pick up a certified letter.

- Grace

It seems to me that, sooner or later, your group is going to need the services of an attorney well-versed in community association law. There may very well be recourse available to homeowners in community associations in which the board is misbehaving and, in the least, unaware of their responsibilities and obligations as members of the board of directors. You may have reached that point in your efforts. If each disgruntled homeowner paid $50 toward attorney fees, the total should pay for several hours of a lawyer's time, and would be money well spent.

Sincerely,

Margey

I am a member of a Home Owners Association, what can we home owners do, when Our Board President & other Board members will not adhere to, nor follow the "Declaration of Restriction", they at times are operating outside the CC&R's.

- R.J.

Whether your association is self-managed by volunteers or by an offsite professional management company, everyone involved in the operations of your community must comply with the governing documents (primarily the Declaration, Bylaws and Rules and Regulations) of your community. These documents dictate, among many other issues, the acceptable behavior of owners and board members and list in detail both the powers and the limitations of the board's authority.

If your board is not complying with the provisions of your governing documents, why not write them a letter reminding them of their obligations and referencing specific provisions in the governing documents that are being violated? In this busy world of ours, time can easily speed by. Give your volunteer board the benefit of the doubt and tactfully alert them to the oversights. If your board continues to demonstrate a reluctance to enforce the documents and, in fact, violates those documents themselves, it might be time to get your neighbors together to talk with your directors about their fiduciary obligations. Still no improvement? The next step could be to follow the procedure detailed in your bylaws to call a special meeting of the owners with the intention of removing board members who are not prudently fulfilling their roles.

Serving as a volunteer on a HOA's board of directors is a commendable activity, but it doesn't mean that a director has unbridled authority to operate your community as he or she sees fit. Every director and every homeowner must comply with the governing documents, and once in a while, a gentle reminder about that obligation may be the only action necessary to bring everyone back into compliance.

Sincerely,

Margey

What should unit owners do when they attend meetings and see the divide among the board members causing delays in voting on crucial matters. Our Board is a mess - with current resignation, board is likely to split 2/2 on all voting matters causing further problems for the association with indecision on voting matters.

- Sandi F.

Little can be accomplished with a dysfunctional board. Before resorting to the more drastic measures described in the next paragraph, why not encourage the board to attend an orientation program offered by some management companies or the Community Associations Institute (www.caionline.org)? The dissension among the board members may be a result of a lack of knowledge and education about their roles and responsibilities, and a "board boot camp" may be just what the board needs to become effective and productive.

If the board refuses to attend a training program for community association leaders or if, even after such a program, they cannot reach consensus on most issues, it may be time to replace them with homeowners who are more capable of focusing on the best interests of the association. Board members can be replaced at an annual meeting, or a special meeting for the purpose of removing the directors can be called by following the process described in your association's bylaws. If you think there will be a floor fight for ballots, gather proxies from your neighbors to ensure that you have enough votes to elect new board members who you think have the desire and the ability to serve as constructive, positive and valuable board members.

Sincerely,

Margey

Please explain the responsibilites/duties of a director. Thank you.

- Susan R.

Many books and articles have been written about the duties and responsibilities of board members. Here's my "Top Twelve List" of the more important obligations:

1. Always act in the best interests of the community as a whole, not in self-interest or in the interests of a friend or a group of owners to the detriment of the other owners or the community;
   
   
2. Consistently, uniformly and fairly enforce the governing documents;
   
   
3. Listen to owners, who are your constituents, when contemplating decisions that will impact their quality of life;
   
   
4. Strictly comply with all federal, state and local laws impacting community associations;
   
   
5. Be thoroughly familiar with the governing documents, not only with the provisions detailing the obligations of the association, but also the limitations on the board's authority;
   
   
6. Recognize that bad board decisions may result in bad media reporting and bad state laws -- realize the broader implications of every decision and action;
   
   
7. Make decisions only after thoroughly researching the issue and ensuring that all aspects of the situation have been addressed;
   
   
8. Fairly supervise onsite employees, if applicable, and know all appropriate employment laws;
   
   
9. Don't abuse contractors by demanding detailed proposals on work that will never be done, or by requiring proposals for every repair job, no matter how small.
   
   
10. Realize that there is more to life than running the community. Put life in perspective and appreciate family and friends.
    
    
11. Don't become a "Condo Commando", a board member who thrives on the sense of power and control that he or she believes belongs to the board position;
    
    
12. Conduct meetings with fairness and focus, adjourning them as soon as the business of the association is completed.

Want more? Click on http://www.caionline.org/rightsandresponsibilities/index.cfm to go to the Community Associations Institute "Rights and Responsibilites: Principles for Homeowners and Community Leaders". It's an excellent, well-balanced treatise on the rights and obligations of both the board and the homeowners in a community association.

Sincerely,

Margey

How many HOA's in California have term limits on their Board members?

- Arthur J.

According to Ms. Cherie McColley, CCAM, Vice President of Management Services, N. N. Jaeschke, Inc. in San Diego, few if any California homeowner associations' governing documents contain a term-limit provision for board members. Further, there are no term-limit requirements in California's Davis-Stirling Act which governs your state's community associations.

Sincerely,

Margey

Can we post the names of the homeowners that has not paid their dues in the newsletter or minutes?

- W. D.

I want to be very clear in my response to your question. Homeowner associations may NOT post the names of delinquent owners in a newsletter or any public place, nor should they be listed in the minutes.

The best method to collect assessments is to establish a collection policy that details the steps the association will take if an owner does not pay his or her assessments. For a step-by-step primer on drafting and passing such a policy, please refer to previous Ask the Expert responses on this website.

Sincerely,

Margey

I have a question for you that I thought you might be able to help me with... Our Association bylaws prevent the Board from voting for a special assessment. It would require a 51% vote of the owners; however, since there is a need for the additional funds, our Board has discussed the possibility of implementing a "rollback." Have you ever heard of this before? Is it done very often? From how it has been explained to me, it would go back (I don't know how far) and back charge the homeowners for every year the regular maintenance fee wasn't raised. Do you know how far back we can go? Please let me know if you have any information on this topic. Thanks.

- R. C.

The concept you described as "rollback" is also commonly called "accumulative assessment increases". It can be a very controversial, explosive decision by the board, so it is critical that every step in the process is approved by legal counsel. In fact, there are now laws in some states specifically prohibiting cumulative assessment increases unless the process is clearly authorized in the governing documents.

Even though your governing documents may provide for a certain annual percentage or dollar amount increase, there should also be a provision stating that if the board elects not to impose an increase in a given year or more, it may accumulate those unimposed increases and, when it decides it's necessary, add up the increases that could have been imposed and raise assessments by that total amount. If this procedure is not specifically detailed in the documents, chances are the board is limited to increasing assessments by only the amount authorized for each year.

There is another method that some boards have implemented that may or may not pass your association's attorney's smell test. The board actually approves an annual increase to the maximum amount authorized in the documents, and sends a letter to that effect to all the owners. However, the letter also says that while the board has approved the increase, it has voted not to implement the increase until a future date. Some lawyers believe that so long as the increase is announced to the owners, the board has retained its options to actually implement the increase at a later date. Your association's attorney may not agree, and it's that opinion on which the board must depend if an owner challenges its decision.

Sincerely,

Margey

We have lived in our condo complex for 2 years - it is not completed yet, the builder is still in charge. We have only seen one financial statement - Dec. 2003 and we just received that last week. Are we supposed to get these financial statements regularly? We were $25,000.00 in debt, will these debts be ours when the association is ours? Thank you.

- Pat O.

The answer to your questions can be found in two places. First, check the governing documents for your association, especially the Condominium Information Statement, which may be called something else in your state but which is one of the documents you received prior to purchasing your unit. This document, along with your Condominium Declaration (sometimes called Master Deed) will contain the specific responsibilities of the developer with regard to the association, including what information must be provided to the owners and at what frequency. Other provisions will detail the developer's financial obligation to the association as well as the process for transitioning control of the association to the owners.

The second source for determining developer obligations to the association and its members is your state's condominium act. While it may be called something different in your state (perhaps the Uniform Common Interest Ownership Act or, if you are in California, the Davis-Stirling Act), this law probably includes provisions similar to the ones in the Condominium Information Statement and the Condominium Declaration. If you are unsure how to access your state's online legislative service, enter "(your state) legislature" in the key word field of any search engine.

One other provision I feel sure exists in both your Declaration and the enabling state legislation addresses the right of association members to inspect the books and records of the association during regular business hours, perhaps requiring notification before showing up on the doorsteps of the office in which the information is located. So, even if your Declaration, Information Statement or state statute does not require the developer to provide financial information to the community association members, you can always obtain the data by following the procedure to access those records.

Sincerely,

Margey

How do I figure out the interest when calculating future value for roof replacement of my townhome community? Some articles suggest that I look at construction inflation, inflation, and the CPI. How do I put these numbers together to get my interest rate? I Live in Denver, Co. THANK YOU.

- Alease

To calculate future costs of a new roof for your townhome community, I suggest you talk with a roofing consultant for a more specific projection. While using CPI and other indices for a general idea of the replacement cost at a future period of time, you can determine a much more precise and realistic number by talking with an expert in the field. The references you mentioned will certainly work, but they don't consider roofing material's unique issues such as the huge rise in the cost of oil, which is the primary component in asphalt shingles, and the soaring costs of workers compensation insurance for roof laborers.

Sincerely,

Margey

Is a reserve necessary? Our community is 2 years old and the items that we have long term maintenance for are 15 to 20 years down the road. Why do we have to start saving now?? Is there a Virginia law that states the HOA must have a "reserve". Also can you define "operating reserve"??

- Lisa S.

According to Robert Diamond, based in the Fall Church, Virginia, office of the national law firm Reed Smith,

"Virginia does not require reserves, but it does require a reserve study every five years and disclosure of how much should be reserved versus how much has been reserved. See Section 55-79.83.1 of the Condominium Act and Section 55-514.1 of the Property Owners Association Act. This can be varied by the project documents, but it rarely is changed. Thus, you need not reserve at all but if you don't, you have a lot of explaining to do."

If your association is not setting aside funds on a regular basis to pay for the replacement of or regularly scheduled renovation to major physical components of your community (such as painting buildings, replacing access gate equipment, replastering pools, and replacing roofs if they fall within the realm of responsibility of your community association), either you've got enough extra cash in your savings account to pay for all exigencies, or your members will have to pay large special assessments when the component has reached the end of its useful life.

It makes much more sense and is easier for your members to transfer a specified amount from the maintenance fees to the reserve account each time the assessment payments are billed (monthly, quarterly or annually). By doing so, the current owner is paying for the deterioration or use of the capital component during his or her occupancy in the community association.

An "operating reserve" typically refers to money set aside to fund unbudgeted expenditures in the operating account. For example, Virginia experienced a greater-than-average snow fall accumulation the past few years, and many community associations did not budget enough funds for snow removal. The association boards used the money in the operative reserves to make up the deficit. Other examples of operating fund expenditures could be extraordinary failures of common plumbing or electrical lines, underbudgeted utility increases, and more common area insurance claim deductibles than anticipated. So, the operating reserve addresses shortages in maintenance or administrative costs, while the capital reserve fund is intended for long term replacement of and periodic scheduled renovation to the major physical components of your community.

Sincerely,

Margey

Why isn't the term "community enhancement fund" or "community enhancement fee" in your glossary?

- Karen D.

Thanks for bringing the omission to our attention! We will add a definition of a "community enhancement fund", also known as a "community improvement fund", to our glossary, with gratitude to you for taking the time to write to us about the oversight.

Sincerely,

Margey

Looking for a sample of a positive strong letter concerning a dues increase.

- H.

No one wants to pay higher maintenance fees, but prudent board members and wise homeowners realize that if their association's dues don't at least keep up with inflation, services will eventually be reduced because of diminishing funds and property values will decrease as a result.

Being frank and honest with your homeowners works best. Start with a paragraph that addresses the hard work the Board has done the previous year, citing examples of where the Board has been successful in cutting expenses -- and then go on to point out valid reasons for an increase.

Also, how long has it been since an increase took place? If more than a year ago, mention that as well. As I've already indicated, though, it may help to remind Board members that, despite their success in holding an assessment rate at a "net zero" increase, some of their costs are not being similarly controlled: contractors are increasing their rates, employees deserve raises, prices for parts and supplies have increased, insurance premiums are far exceeding the rate of inflation, utility rates are climbing through the roof and gasoline prices certainly aren't going down.

There are almost always positive aspects to an assessment increase, and the board should emphasize them. An association that has spent funds to install a new roof will have provided the owner with a strong selling point that will increase the homeowner's unit value at time of sale.

Here are two samples of increase letters that reflect some of the issues mentioned above:

FIRST LETTER:

November 18, 2003

Dear ___________________ Association Member:

In anticipation of the increasing 2004 annual expenses and in an attempt to protect the Association's capital reserve balance, the ________________ Association's Board of Directors has voted to increase the monthly association fees by approximately 8% or $15.00 per month.

This increase is primarily due to an increase in our flood insurance. As you may know, after the World Trade Center tragedy insurance companies significantly increased their rates. With the Houston 2001 flood and the World Trade Center tragedy, the __________ Homeowners Association's insurance carrier separated the flood coverage from the property coverage. Where the flood coverage was once included in our total property policy it must now be purchased separately. Flood insurance for 2004 is $52,000 or a total of $17.81 per unit per month.

In addition to the additional flood insurance expense, the utility costs for electricity and gas have significantly increased from previous years. Our projected gas expense for 2004 is approximately $86,400, an increase of 16% from expected budgeted costs for 2003 and 52% from 2002.

We have increased our capital reserve balance from an approximate balance of $177,000 in January of 1996 to a balance of $223,686 as of September 25, 2003 balance sheet, while also completing all scheduled capital projects such as painting and roof replacement. Maintaining an adequate capital reserve enhances the value of our property. Prospective buyers will hesitate to purchase a unit in an association that does not maintain an adequate capital reserve for emergency expenses or needed repairs. Mortgage lenders may be reluctant to make loans to purchase homes in undercapitalized communities. Associations that do not maintain an adequate capital reserve balance must occasionally assess property owners with a special assessment, indicating a lack of planning and foresight. To date, no special assessment has ever been required at __________ Townhomes.

Our community has enjoyed a significant increase in property values over the last few years. Our investments have increased in value due to the care and level of maintenance and improvements completed on the property. Maintaining the value of homeowners' investment is the Board's primary goal. The decision to increase the Association's maintenance fees was made with this goal in mind.

Your support of our decision is appreciated.

Thank you,

_______________, President

SECOND LETTER:

December 10, 2003

Dear Co-Owners of ___________________:

Enclosed you will find your payment coupon booklet for 2004. As you will notice, the monthly Association fee has increased by an average of $7.00 per month. The Board of Directors recently approved the 2004 budget and a copy of the budget is included for your records.

While developing this budget, the Board spent significant amounts of time reviewing bids for necessary services, scrutinizing prior year's expenses and making cost comparison studies. In addition, the Board reviewed the status of the Association's long term financial requirements and the status of the Reserve Fund, which funds these long term expenditures. It was determined through the budgeting process that there would be an increase in Association fees for this year roughly equivalent to the rate of inflation.

The payment coupon booklet contains address labels on the far left hand side of each coupon. Simply detach the label and stick it on an envelope to insure proper processing of your payment. Association fees are due on the 1st of each month and a $20.00 late charge will be added to any account that is not paid in full by the 10th of the month.

Also included in this notice is information on direct deposit of association fees. If you have already signed up for this time-saving program, no coupon book is enclosed as the new fees will continue to be withdrawn automatically. Those not yet participating may wish to consider signing up now as a means of ensuring payments are made on time.

If you have any questions regarding your fee, the budget or the coupons, please feel free to call.

Very truly yours,

_____________, Community Manager

Sincerely,

Margey

What would be considered the "structural elements" of a dwelling?

- James B.

Typically, the governing documents of a community association define "structural elements" so there is no doubt what comprises common and limited common elements, and unit boundaries. The definition can vary by community, however, and there may even be a definition included in your state statutes. If there is any ambiguity regarding the definition, I suggest you contact an attorney knowledgeable in community association law who can help interpret your documents and perhaps craft a policy resolution that specifically addresses any omissions in your documents.

Sincerely,

Margey

I recently read an article that advised community associations not to become actively involved with neighborhood watch programs due to liability issues. (Unfortunately now I can't locate it.) Could you comment please. Thank you.

- Val G.

I entered "community associations neighborhood watch liability" in Google's keyword search and came up with a book entitled Spotlight on Security for Real Estate Managers, which appears to address the issue of liability for community associations involved in Neighborhood Watch Programs. Perhaps the article you read was written by this author or a review of the book. Here’s the link – http://www.caisecure.net/index.mv?p=R0526.

Sincerely,

Margey

Our CC&Rs are very antiquated and have lots of information that pertaining to the developer. All the lots are now owned by individuals and we have an active Community Association. Can the CC&Rs be re-written, leaving out the data that referred to the builder and put the document in simple words? The Association has amended the CC&Rs on 2 occasions and this is on file at the court house. Could this take the form of a long amendment?

- Patricia S.

CC&Rs cannot be rewritten to exclude certain provisions that were in the original copy, even though those provisions are no longer relevant. Only an amendment to the CC&Rs can add, delete or revise provisions, and that amendment process is usually described in the CC&Rs themselves. If there are no other irrelevant provisions, I suggest you retain your current document. However, if many of the provisions are no longer applicable because of changing conditions, or if the document does not contain the enlightened language of newer CC&Rs, perhaps it's time to rewrite them and ask the owners to approve the entirely redrafted document.

Sincerely,

Margey

I purchased a home in Illinois when the Developer still controlled the Association. The Covenants provide that enforcement of the covenants can be by any lot owner ~ but not the association. The association is responsible for maintaining the common areas. The Board wants to amend the Covenants to give the Board authority to enforce the Covenants. Many of the neighbors are more comfortable with having this left to the person complaining instead of turning it over to the Board. Have you ever seen an association where the Board does not have authority to enforce the Covenants? What do you think about it?

- Anna P.

I can honestly tell you that in my 26 years of community association management, I have never heard of a community association in which the board was not authorized to enforce the covenants. What recourse does the association have if an owner fails to pay assessments on time?

On one hand, I like the idea of neighbors having to talk to neighbors to resolve individual disputes. However, if an owner or his family, guests or tenants are violating general covenants regarding parking, exterior maintenance of the home or an unkempt yard, it would be easier and more feasible for the board of directors to pursue compliance than another owner.

On the other hand, if the majority of owners are comfortable with the current governing documents and expressed disagreement over amending them to empower the board, the board should reconsider its position. As in every democracy, the elected leaders should reflect the desires of the majority of their constituents.

I'm still curious about how your association pursues owners delinquent in their maintenance fees . . .

Sincerely,

Margey

How do I go about filing a lien on a co-owner's property for failure to pay association dues?

- Shana

Many states prohibit everyone except attorneys from filing documents, including liens, that affect real estate ownership. I would encourage you to consult with legal counsel before starting the lien filing process. If the attorney advises you in writing that it is permissible for a community association representative to personally file liens, ask him to provide you with the appropriate format and specific instructions on correctly entering the necessary information.

Sincerely,

Margey

Lawsuit Against Homeowner

I live in Texas and our homeowner's association has filed a lawsuit against us for delinquent maintenance fees. I responded to the lawsuit. However, I have received a final judgment. I did not pay the fees when the lawsuit was initially filed because I thought we would be going to court. The judgment includes an order of sale. Is it possible that I can contact the attorney and pay the maintenance fees and cancel the order of sale.

- M.

Yes, you can stop the foreclosure sale, but you must act quickly!!! The attorney will demand that you pay all fees due the association, including his charges and any other collection and legal fees that were assessed during the association's efforts to collect your delinquency. Please communicate immediately with the attorney to make arrangements for your payment!

Sincerely,

Margey

Thank you so much for responding. (See above) I contacted the attorney's office and they gave the figures that are due. I need to know what document should I request from the attorney when I make payment, so that I will know that the suit will disposed and I won't have to be concerned about the execution of the order of sale.

- M.

For proof that you've paid everything due the association, ensure that you receive a recorded Release of Lien from the attorney. Not only does that document evidence that there is no amount due the association as of the date through which you paid your assessment, but it also removes the lien that was filed against your property.

You should also request recorded documents evidencing that the lawsuit and foreclosure efforts against you have been canceled.

I'm very glad you are taking the appropriate steps to pay the delinquency and keep your home. If you ever find yourself in a similar situation, please contact your management company or board of directors immediately to advise them of your problem, and provide them with a time frame in which you expect to pay the delinquent balance.

Sincerely,

Margey

I am going to the attorney's office today to pay the figures that are due. You stated I should request a recorded Release of Lien and other recorded documents evidencing that the lawsuit and foreclosure efforts have been canceled.

His office said they will give me a receipt and a release of judgment. Because the documents will not be recorded with the court today, will this document be sufficient proof of payment for me until I receive these documents from them. Because I do not want them to attempt to still sell my home after I pay them.

- M.

Yes, the receipt and Release of Judgment should suffice until you receive the recorded documents. I'm so glad you were able to resolve this matter without additional attorney fees or the specter of losing your home.

Sincerely,

Margey

Please explain Article 1396-9.10.C of the Texas Nonprofit Corporation Act. Action Without Meeting -- Can this Article be used to circulate petition to oust Board of Directors and make demands to fire property manager and bookkeeper? Also, sources of information re Owner-managed Condos.

- F. O.

The paragraph you referenced addresses specific language in the article of incorporation of the nonprofit corporation. If such language is not included in the articles, then the action cannot be taken.

More common is language in your community association's bylaws that may detail how to remove board members and to replace them with directors more attuned with owners' feelings with regard to the management company and bookkeeper.

The Community Associations Institute (www.caionline.org) is a one-stop resource for information on operating community associations whether with volunteers, association employees, or a professional management company.

Sincerely,

Margey

We have an 8 unit townhouse association, not for profit. The small turnaround is sinking in front of my home and there is a pothole on the side drive. The four members in front want to blacktop and my neighbor and I want to redo the driveway. Last meeting a motion was raised and passed 8-yes, 2-no, that all owners be board members. How can I resolve this problem? I really don't want to move, but I am thinking about it.

- Jeanne

I don't understand why all your neighbors want to be board members -- the pay isn't all that good since it's typically nothing! -- but the critical issue is what your governing documents say about the number of board members and the maintenance responsibility of the association. Your documents may also address the approval process necessary to change a common element, such as converting the turnaround from concrete to asphalt.

Once you determine the requirements in your covenants, the association members can either comply with them, or vote to amend the documents. The amendment process may require a vote of the mortgagees as well, and could be challenged if the specific procedure is not followed. As with all democratic processes, the majority (or whatever the specified number or percentage of votes) will rule. If you disagree with the decision of the requisite number of votes, your alternatives are to find a home in a community more compatible with your desires, or to lobby your neighbors to change their minds.

Sincerely,

Margey

My mom is plagued by a non-compliant condo association that admits responsibility for common area structural problems (no tuckpointing) that has resulted in severe mold and window problems but refuses to file an insurance claim. My mom has spoken with insurance rep but he says they can't do anything until the condo association or management company files. Its been 6 months. Does she have to get a lawyer?

- Vicki S.

Is it possible that your mom's board passed an insurance administration resolution that details a specific procedure you must follow in order to file a claim for a covered loss? Did your mom's board or management company explain why they will not/cannot file a claim for the mold and window problem? Are you sure that mold is a covered loss under your community association's policy (many policies no longer cover mold, so it would be each owner's responsibility to obtain coverage through his or her personal insurance policy). Have you spoken with your mom's personal insurance agent regarding this situation?

Depending on the answers to the above questions, I suggest that the next step would be to call the community manager assigned to your mom's property to get the whole story. If you're still not satisfied with the response, the next step would be to send a certified letter to the board, management company and insurance agent detailing the damage to your mom's unit and advising them of the steps you intend to take, including legal recourse and involving the state board of insurance, if they do not take action on your claim. Include a specific date, usually thirty days, by which you expect to receive a response. If you are still not satisfied with their explanations, follow through with your promise to involve an attorney and your state's insurance agency.

Sincerely,

Margey

What are HOA's responsibilities in regard to termites? My next door neighbor (attached) has termites boring through her ceiling leaving piles of dust on her bed. The termite inspector visited and determined she was the only one infested and that it would cost $650 to spot treat. The HOA is refusing to pay this cost. The termites are in the attic area of her home boring through her ceiling. As her attached neighbor, I am, of course, worried about them spreading in to my unit.

What are the laws in regard to this situation? Any suggestions?

- Jon S.

Not knowing in which state you reside nor being familiar with your state's statutes or the governing documents for your community association, I cannot offer you specific comments regarding your particular situation.

In general, condominium associations are responsible for everything except the "air space" within each unit. Townhome-style structures can be legally structured as a condominium, planned unit development or cooperative, each of which has distinctly different maintenance responsibilities assigned to the association. In a planned unit development, many associations are responsible only for the "skin" of the building and cannot expend funds on components that fall outside that maintenance purview.

I understand your concern about the possibility of your neighbor's termites eventually infesting your home, but the governing documents and/or state statutes may be very specific with regard to allocating maintenance responsibility for the treatment of the termites. If it is clear that each owner must maintain everything within the exterior surface of his or her unit, perhaps the most expedient resolution is to offer to share the cost of the termite treatment with your neighbor.

Sincerely,

Margey

Decks: are identified as limited common area. Many need repair due to rot. The President says it is up to each owner individually. Many owners say the repairs should come from the dues. All units do not have a deck, some have patios and are affected by the deck of the person above.

Question: should all the home owners be responsible for the decks equally? How do we get the association to pay?

- Linda L.

Even though a component may be identified as a limited common element, it is not automatically the maintenance responsibility of the association. There is usually a provision in the Declaration entitled "Owner Responsibilities" or "Owner Maintenance Responsibilities" that details what limited common elements owners must maintain. There may be a concomitant provision regarding specific association maintenance responsibilities.

Absent any language in your governing documents regarding who's responsible for maintaining the decks, go to the website for your state's legislature (if you don't know the URL, write "(your state) legislature" in the key word field of any search engine). Use the legislature's search engine to enter either "condominium", "townhome" or "planned unit development" (whatever type of community yours is), then "decks". If the search comes up empty, there's probably no state requirement for maintaining decks in your type of community association.

We've eliminated the existence of maintenance responsibility provisions in your governing documents and state statutes. The next step is to check your documents again (this time, the bylaws) to determine if the board is empowered to pass rules and regulations and other resolutions. If so, your directors should follow the resolution process detailed in other Association Times "Ask the Expert" responses to declare whether the owner or the association is responsible for maintaining the decks.

Sincerely,

Margey

One of our townhome owners had water on their garage floor following rain or even melting snow. The Declaration for owners maintenance states "Each owner shall be responsible for the upkeep and maintenance of their dwelling, garage, patio, decks and all other areas, features or parts of their unit to the extent not otherwise maintained by the Association." The Declaration for association maintenance responsibility states "In order to further preserve the uniform and high standard of appearance of the Property, the Association shall have the exclusive responsibility for the maintenance and repair of the driveways. Such responsibility includes responsibility for application of driveway sealants, and to the extent the Board deems necessary or desirable, periodic repair to or replacement of blacktop." The Board decided to remove a 3 foot by 20 foot section of driveway asphalt that was not in poor condition and replace it after adding a subsurface base so that the driveway was sloped away from the garage floor. This did not resolve the water problem on the garage floor. This work was considered an Association expense. Other owners contend that it should have been the individuals expense since the problem resulted from an improper application by the Builder some eight years prior. A less costly action would have been to install a garage door threshold on the floor that keeps out rain and snow, etc. This would also be at the owners expense estimated at $150 versus the $1000 spent by the Association. Many feel that the Board failed to use good judgement in exercising their privilege under the Declaration. Can the members of the Association object to the Boards action and ask that the owner be held responsible for the expense incurred for replacing a perfectly sound section of asphalt?

- James B.

It sounds like your board investigated the problem with the water in the owner's garage and, based on the information they received, determined that the driveway had negative slope. Since correcting the slope apparently did not resolve the problem, perhaps the board has recourse against the expert or company that provided the in correct advice.

If the re-sloped driveway did not cause the problem, did the board determine why water continues to penetrate into the garage? Is it possible that the board advised that owner that he or she would be responsible for payment of the driveway work if it did not solve the problem? What kind of "improper application" by the builder are you referring to?

I'd like to give you an answer, but I need more information before being able to evaluate the situation. However, I can tell you that, in general, the homeowners have the right to express to their board their opinions regarding the operations of their community. In addition, the board has a responsibility to listen to reasonable, courteous dissent and constructive criticism and, above all, always act in the best interests of the community as a whole.

If further evaluation determines that the board should not have made the attempt to resolve the problem, then the directors should decide if it's appropriate to charge the owner with the $1000 repair cost, or if the Association should accept responsibility for the debt because the board made a good faith effort to resolve the problem.

Sincerely,

Margey

Our Condo association has asked it's management company to arrange for it's First Election Meeting and it's first Annual Meeting to be held on Dec. 3rd. this year.

The date suits most of our owners many of whom are seasonal visitors and there is nothing in our Bylaws that say this date doesn't meet with all the legal requirements and yet our management company says - without any explanation - " It's not on!".

We're not impressed with the performance of this management company so would like to establish what reasons there might be for their response before starting other actions against them.

- John M.

I didn't understand what your manager's response was so cannot comment on it. However, the date, time and location of annual meetings should be detailed in your association's bylaws, typically either by stating that the annual meeting must be on a certain day of a certain month every year, or on any day of a certain month as determined by the board. Absent any language regarding when to hold the meeting, and assuming that there is no relevant provision in your state statutes addressing this issue, the board may set the date. Be sure to check your governments and state statutes for any notice requirements.

Sincerely,

Margey

I am on the board of directors for a over 55 condo complex of 248 units in Florida. Our contract with the management company is coming due soon. Do we write the contract or does the Management Company? In the past we have written the contract and we are not sure we are doing the right thing. Do you have sample management contract that we could use as a guideline? If so, please e-mail me the samples. Thank you.

- Diana H.

Typically, the management company prepares the contract and submits it to the board for execution. However, if the board is preparing a request for proposal for management services, it is appropriate to include specifications and provisions that must be included in the contract.

For information on selecting a management company and preparing the contract, go to www.caionline.org, and click on "Bookstore". Item #5761, "Choosing a Management Company", may help you customize a contract that conforms to the needs of your community.

Sincerely,

Margey

Can an architectural committee go out and approve or disapprove yard decorations without first setting up some sort of guidelines specifications sizes, colors, etc? When there is a dispute about yard decorations that are not clearly defined in the deed restrictions concerning size and locations of yard decorations? In Florida.

- Leo A.

In general, Architectural Control Committees do not have the authority to approve or disapprove variances without the Board of Directors first establishing guidelines. It's similar to the relationship between legislature and the Supreme Court -- the Court is not supposed to create new laws, but only interpret and enforce existing laws.

To determine the power and limits of authority of the Architectural Control Committee, go to the source -- the Declaration of Covenants, Conditions and Restrictions. Is the Committee described as mandatory (required), with authority independent of the board of directors, or is it listed as a standing committee, which means it has an ongoing purpose but no authority, similar to a landscaping, rules, budget or finance committee. Or, is it not even listed but just charted by the Board?

If the Declaration imposes limited independent authority on the Architectural Control Committee, then the Committee should act in a judicious, fair and impartial manner. With respect to your particular question, it doesn't make sense to try to enforce rules and policies that are not widely known and practiced. Even worse is to try to make up rules as each issue arises instead of carefully and thoughtfully crafting a set of architectural guidelines that address most situations that may exist in your community. Once adopted, the rules should be delivered to each owner and included in all subsequent "new owner" packets so that everyone is aware of the regulations. Some states also require that all rules be recorded in the deed records of the municipality in which the community is located.

Unless specifically authorized in the governing documents for your community, the Architecturally Control Committee probably does not have the power to independently create and adopt rules regarding the appearance of homes. That authority is usually vested only in the Board of Directors. Therefore, unless otherwise provided in your documents, the Board should establish architectural guidelines and the Architectural Control Committee should enforce them. If the ACC believes a variance to a guideline should be approved, it would submit a recommendation to the board for such action.

In the alternative, if the Architectural Control Committee does have the authority to make and enforce guidelines regarding the appearance of the homes in your community, there should be an appeal process in which homeowners who disagree with the ACC's action can ask the Board to reconsider the ACC's decision.

Sincerely,

Margey

Are the rules and regulations of the HOA online?

- V. K.

I am not familiar with your association's website. I suggest you contact your management company or board members for the answer to your question.

Sincerely,

Margey

I have been asked to serve as architectural committee of an association of 125 units. Our original CC&R does not list a mandatory association nor does it list any fine schedule. This association is voluntary and we do collect voluntary dues each year. We have had owners and renters in violation of several restrictions despite several letters. We consulted with an attorney who never gave us a clear answer on whether we could impose fines for non-compliance.

- Richard

As a volunteer association with no mandatory dues or enforcement power, it doesn't sound like your board has the authority to impose fines for violation of deed restrictions. Depending on where you live, it may be possible for your municipal government to step in to enforce city code, but that may not help you on strictly aesthetic violations or "house rules".

Give your attorney a deadline for submitting a roadmap to help your association maintain the attractive appearance and property values in your community. If he or she fails to meet the time frame, find another one with community association expertise and more time to focus on your issue.

Sincerely,

Margey

How do you feel about an owner of a townhome renting rooms out? I have a single woman who owns a three bedroom townhome and has 3 roommates. The Board of Directors is not happy with this - are there any restrictions regarding this? The Association Documents do allow for rentals.

- Susan B.

Most governing documents for townhome associations specifically prohibit renting out anything less than the entire home. However, roommates may be considered a different situation -- it's more friends living together to help their financial situation than renting each bedroom to a stranger, as boarding houses do.

If the governing documents for your community do not address these circumstances, check your state statutes to see if there are any laws that do. However, perhaps more to the point is why your board is not happy with the roommate situation. What harm is it causing the community association, and why do the directors want to prohibit it?

Sincerely,

Margey

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