Ask the Expert

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

I live at *********** Condo in ********, FL. My question is: our bylaws state that we can have no less than 5 and no more than 7 boardmembers. We had 6 apply to be on the board and now our president says we need to have an election. I also, read 718.112 that states that you do not need an election. The only time you need an election if more candidates run than vacancies exist. Thank you very much.

- W.

While Florida law prohibits me from interpreting your legal documents, I can tell you that typically community associations must conduct annual elections even if there are no contests for the positions in which the terms have expired. As corporations, community associations must comply with both their governing documents and state nonprofit corporation law in order to maintain their corporate status.

On the other hand, if a board member has resigned, leaving an unexpired term position, most bylaws will detail whether the replacement board member must be elected at the next annual meeting, or may be appointed by the other board members for the remaining term.

Sincerely,

Margey

Can a board member give another board member a proxy for them to vote on all actions at that regular monthy meeting? And if so what are the pro's and con of that measure? Thank you.

- Duane

Unless the bylaws for your community association specifically authorize the use of proxies for board meetings, board members may not assign their vote to another board member. The board members were elected by the association membership to act in the best interests of the association; assigning the vote to another director removes the direct relationship between the owners and the director.

Sincerely,

Margey

I sit on the Board of my condo association. We are often asked to approve or not approve potential unit owners or renters; however, our management company tells us that there is no basis on which we can turn someone down. I don't see the point in going through the motions if we have no real authority to turn anyone down. We have approved people with criminal records because we are advised to not turn them down. What authority do we really have in regards to approving renters? Awaiting your response.

- Thank you, Diana

Your questions raise an excellent point -- why expend time and effort when your board has no power to deny a prospective owner's or tenant's application? Is there a provision in your governing documents -- probably the Declaration -- that requires the board to review every purchase or lease agreement? If so, does the verbiage say the board "shall" review or "may" review" If it says "may", then there's no obligation on the board to review every rental application. If it says "shall", then the board must comply with the requirement unless it amends the document to delete that provision. When the governing documents of a community association impose on the board the obligation to perform a particular task or service, there usually is some means of enforcement also provided. For example, if the board has the "right of first refusal", which may be the situation in your association, it has two options:

1. approve the purchase or lease application; or
   
   
2. deny the application and purchase or lease the unit in the name of the association, under the same terms and conditions as the original contract.

On the other hand, if the board has broader authority granted by the documents to deny purchase and lease contracts based on certain habitability criteria, then it should strictly comply with that criteria to ensure that it is treating each application fairly and consistently. If the criteria defined in the documents are too vague, then the board may create its own set of standards to which each prospective owner or renter must comply. Previous Ask the Expert responses detail the resolution process by which a board may approve a new rule or procedure.

Sincerely,

Margey

If the board has an even number of members and there is a tie vote, does the president's vote count?

- Kim S.

Not only can the president vote to break a tie, but he or she actually can vote along with all other officers and board members unless your association's bylaws dictate otherwise. Robert's Rules of parliamentary procedure make it very clear that presidents have the same voting privilege as all other members of the board.

For more information on parliamentary procedure, go to http://www.constitution.org/rror/rror--00.htm or http://www.csufresno.edu/comm/cagle-p3.htm.

Sincerely,

Margey

Voting

What are the pro and cons of giving the HOA Board president the right to make a motion and vote on a motion? Thank you.

- Duane

Robert's Rules of Order clarifies the role of the president of a corporation (which most community associations are) by saying that, as a board member and/or officer, the president has just as much a right to make motions and vote as do other members of the board. If the president is a board member elected by the members of the homeowners association, s/he was elected to represent those owners, and one important part of that representation is to be able to make motions for board action and to vote as s/he thinks is in the best interests of his or her constituents.

Sincerely,

Margey

Hello - I am currently on a Townhome association board and am planning on increasing the dues from $70 per month to $80 (14% increase). The Dues have not changed in 5 years and due to additional expenses, etc, we all voted to increase the due by $10.

I wanted to get your opinion on : 1) Do you think this is fair? 2) Can the homeowner dispute this? 3) How do you recommend we build as business case for the increase? Thanks for your help.

- Roger

A 14% increase over five years averages less than 3% per hear, just barely keeping up with inflation. However, insurance and utilities have increased far more than inflation, so I suggest you create a spreadsheet indicating your year end expenses as of five years ago and as of the current year. There should be three columns – expenses 1999, expenses 2004, and percentage difference. Be prepared to explain to the owners what steps the board has taken to control increased costs, such as bidding insurance, ensuring that there are no water leaks, and using low-wattage bulbs in common area fixtures.

Can your owners dispute your decision? The answer should be found in your association’s bylaws and/or Declaration. There is typically a provision in those documents which detail whether or not the owners must vote to approve the annual budget or if the board has the authority to pass the annual budget, and therefore the assessment amount, without owner approval. If the board has the authority to determine the annual budget and assessments, the owners can protest it at the ballot box by electing new directors more sympathetic to their protest.

Perhaps the board should consider approving a small increase every year to prevent the hefty increases that become an absolute necessity after a period of time.

Sincerely,

Margey

Our home association is still run by the subdivision builder. This builder just increased our annual fee by 18%. According to their own indentures they can only raise it 3%. When we complained and told them the rules in their own indentures we were told that was the bill. Period. Do we have any rights/recourse. We are concerned that each year they can raise it by whatever number they choose whether the indentures allow them to or not. We live in Jefferson County, Missouri. Thanks.

- Laura

If your Indentures state that annual fee increases are limited to 3% without an affirmative vote of a specified percentage or number of owners, then there are no options for the builder. Missouri has a Department of Community Affairs, Planning and Development which appears to have some ombudsmen-type position that may help mediate this issue. The establishment of the Department can be found in Section 251.030 of the Missouri Revised Statutes, at http://www.moga.state.mo.us/statutes/c200-299/2510000030.htm. To locate the Department, go to Missouri's state government website at http://ltgov.mo.gov/index.htm.

If your volunteer efforts to persuade the developer to comply with your association's Indentures and state statute are fruitless, let me know. I'll give you the name of a Missouri attorney who focuses on community association law and may be able to assist you, perhaps with a single letter to the developer.

Sincerely,

Margey

What are my chances if the following was brought to mediation, or court? I am a new Board Member representing one of eleven (11) neighborhoods within our community. I believe the BODs to date have failed to interpret and enforce a covenant to charge "each" neighborhood some type of Neighborhood Assessment as directed in the Declaration. Currently only five (5) of the eleven neighborhoods are charged, as has been the case for many years. After thoroughly reading the C,C,&R I found the following... "Upon resolution of the BOD, "each" neighborhood "shall" be responsible for paying, through neighborhood assessments, costs of maintenance of certain Common Areas within or adjacent to such Neighborhood....." Many residents complain that they have been subsidizing the other six (6) neighborhoods for many years unfairly. I believe this covenant has not been enforced according to the Declarants instruction. What's your take? Legally enforceable?? Thank you so much.

- C.

While it certainly seems reasonable to expect each neighborhood to contribute its fair share to the general fund which pays for the maintenance of the common elements, I am concerned about the provision you quoted which started out with "Upon resolution of the BOD . . ." As you quoted this paragraph, it could mean that the board must vote on each neighborhood individually in order to mandate payment of its assessment. Not knowing the entire provision or the state in which you reside which may have laws specific to circumstances such as the one you describe, I can only encourage you to pursue your investigation of this issue.

It may not be necessary to arbitrate or mediate, once you complete your analysis of the situation. I would hope that when you present your findings to your colleagues on the board, should those findings support your contention that every neighborhood is obligated to contribute to the general fund, your directors will vote unanimously to immediately correct the inequity and begin charging each neighborhood its designated assessment.

Sincerely,

Margey

I received a letter from our Board of Trustees informing us that they were raising our monthly condo fees by $5 a month for each unit owner and that they were also charging each unit owner a $1,500 special assessment for structural repairs. My condo is located in Massachusetts. I have always thought that condo fees and special assessments where charged based on percentage of ownership based on square footage? That is how our current monthly condo fee is charged and calculated. Can you tell me if they should also calculate increases and special assessments based on percentage of ownership? Thank you.

- M.

The answer to your question regarding the appropriate method to assess unit owners should be found in the Declaration/Master Deed for your community association. There is usually a paragraph that very specifically details how to calculate the assessments for each unit, and whether the formula is based on percentage ownership (unit square footage divided by total square footage) or by a flat amount (total assessment divided by the number of units). In addition, the Declaration/Master Deed should also contain a provision describing the manner in which special assessments may be imposed.

As you mentioned, the state of Massachusetts also has specific laws pertaining to the operations of community associations. To investigate the ones that are relevant to your assessment question, go to http://www.mass.gov/legis/legis.htm.

If, after reading your governing documents and state statutes, you determine that your board has erred in the manner in which they increased assessments and imposed a special assessment, I recommend that you bring your findings to the directors, with copies of the relevant paragraphs. It's possible that your board was unaware of the mandated nature of the assessment process, and will appreciate your bringing this matter to their attention to prevent potential litigation and internal controversy.

Sincerely,

Margey

I am the Treasurer of a small 35 unit incorporated HOA in NY State. I am transitioning out of this role at the end of 2004. The President wants an "audit" performed of the financial records. However, an audit by an outside CPA was never performed. As a matter of fact, the records I inherited were less than robust with missing documentation, etc. The board was remiss in not asking for one previously but that is water under the bridge. While there are no irregularities currently, I have misplaced a few receipts for member disbursements. Our by laws say nothing about required documentation but obviously common sense pervails here. However, since the bylaws are so loosely worded in my opinion, how do I protect myself from any potential baseless lawsuit? Thanks.

- D.

Unless a forensic audit is requested to determine if fraud or theft occurred, the purpose of a typical audit is to confirm that the financial reports prepared by the association substantially reflect the financial condition of the organization. The auditor will inspect the books and records in order to issue a management letter describing the general practices of the accounting person, and he or she may note if some receipts are missing. However, he or she may also state that no intentional improprieties were observed.

Would it be possible for you to ask the members to whom you reimbursed expenses to sign affidavits stating the purpose and amount of the payment? With those documents in hand, there should be no question about the appropriateness of the reimbursements.

There are several good software packages available for small, self-managed community associations that may help the treasurer keep track of receipts and disbursements. "CAI Treasurer", offered by the Community Associations Institute (www.caionline.org) is one such package that may make it easier for volunteer treasurers to better manage the responsibilities of his or her position.

Sincerely,

Margey

I am the newly elected President of the Board of Directors. The Developer, and former president, still holds a seat on the board, as he still has several units to sell. The Developer failed and refused to perform almost all his duties as President of the Board of Directors, including timely formation of an advisory committee, and turning over the association to the non-developer co-owners. We have just hired a forensic accountant, as no annual accounting was ever done, contrary to the by-laws and the Michigan Condominium Act.

The developer failed to pay association dues on the units titled in his name since July 2000. He has failed to produce records, receipts and invoices for association expenses for utilities, insurance and maintenance as well.

The by-laws are poorly drafted regarding the developer's liabilities and duties, but do state that association dues commence with the purchase and title of a unit(s). Also, that all associated costs are to be split evenly between the 61 units. (maintenance, sewer, water, snow removal and insurance)

The Developer has admitted that he did not pay any association dues (over $236,000 due since formation) and now is creating "registries" of "offsets" for the dues he neglected to pay. He is claiming deductions for the above listed costs stating, in part, that some of the units were VACANT and he is not liable for any dues or costs if units are vacant. However other co-owners are required to pay even if their unit is un occupied for one to several months. This appears contrary to the by-laws, vague as they are.

Even though the Developer has not provided an accurate accounting of association expenses, he states that the Development did pay all the associated expenses relative to the RENTED units, (insurance, sewer, water, snow removal), and that he did not charge the association for these.  The Board is being provided with these "registries" of "offsets" with no supporting documentation. These "offsets" are deductions against the dues he is liable for, and are presented as his pro rata shares of payments he made for association costs that he did not pay out of the association funs, but from the Developers account.

I have not found any specific reference to the Developer's responsibility regarding assessments and association costs for units owned by the Developer in the Michigan Condominium Act.

As a developer and co-owner, (as provided for by verbiage in the by-laws- "one who holds title") is the Developer liable for association dues and a pro rata share of association expenses on all the units he holds title to, rented or vacant?

Any insight or guidance would be appreciated. Thank you

- C.

Not being a Michigander myself, I asked Mr. Craig Koss of Kramer-Triad Management Corp with offices in Ann Arbor and Troy to respond to your question. Here's his answer:

"The developer would be responsible for a pro rata share of actual expenses (not including contributions to reserves) for the unit they own compared to the total number of planned units in the community. Units are considered owned by the developer once the foundation is put in. Additionally, the developer is responsible for actual dues once a certificate of occupancy is issued. Commonly, a certificate of occupancy is not issued until the unit closes so the developer is not required to pay actual dues, only a pro rata share. The actual condo documents language would give the specifics.

It sounds like there are more issues with the developer that just not paying the assessments and it would be appropriate for the homeowners to have an attorney review this for them. The local municipality should also be involved since they should hold some bonds to assure construction is complete."

Sincerely,

Margey

I live in a townhouse in Maryland that is a condo with association fees. 6 months ago I received a letter from my condo association master insurance policy stating that any deductible will be $2,000 raised from $500. After making several calls it had turned out that for the past 7 years (since they have been built) there have been some insulation issues in the above ground basement and pipes have frozen and burst in many of the units causing this increase in deductible. My pipes have frozen each winter and in fact one had burst. When I approached the board in June 2004, they said they would look into some remedies. I shortly received an email from the board director which stated that some things were being looked into and hopefully the residents would get something done in the fall. Come December 2004, I emailed the director saying that now it is winter, should I assume that the board is doing nothing and do I need to take care ofd this on my own. I asked if I should hold my condo fees in escrow until we can resolve who is responsible for this. His response was one of anger, saying I should never contact him again and I was being put on his Spam list. He attacked me for "never bothering" to attend any more meetings since the one time (when I told them I work late and would not be able to attend more meetings. He accused me of threats when I thought I was doing the right thing. A recent call to the association has found that they did investigate, they "believe" it is up to code, they have a quote, which I never received, that they will forward to me. My questions this: Do I have a right to go ahead and insulate my basement and fix my pipe and hold my condo fees in escrow until we resolve who is responsible. The quote was for $1,200, the deductible is now $2,000, however, if this issue had ever been disclosed to me I most likely could have paid the $500 deductible and resolved the problem last year. Sorry for the long story but I believe the background was necessary. Thank You.

- L. S.

The governing documents (primarily the Declaration/Master Deed) probably contain a provision prohibiting owners from escrowing or withholding maintenance fees under any circumstances. The safest action for you would be to read the paragraphs relating to imposing and collecting assessments to determine what recourse you might have.

There are two bigger issues that need attention, though -- the response you received from your board member, and the allocation of maintenance responsibilities. Let's address the board member's response first. Serving on the board of a community association can surpass one's professional job in stress, particularly because it often entails making decisions that may detrimentally impact neighbors while being in the best interests of the community as a whole. That being said, homeowners who volunteer to serve on their board of directors must have the temperament and ability to fairly, consistently, respectfully and judiciously address the "constituents" concerns, realizing that open, frequent communications may be the single most important responsibility of office. If a board member becomes too emotionally or politically involved in the operations of the community, it's very difficult to maintain an impartial, courteous demeanor which should be a prerequisite for the position.

With regard to the allocation of maintenance responsibilities, if your Declaration/Master Deed does not specifically address whether the association or the unit owner is responsible for plumbing pipes in the basements and the walls that serve individual units, it would be appropriate for the board to pass a resolution clarifying that issue. While no board can approve resolutions that contradict the governing documents, it can certainly craft responses that address new issues as they arise, so long as the determination is equitable to all owners.

As you indicated, it appears that time is of the essence since another round of freezing weather is probably in the near future. The board should discuss this matter in an open meeting, reach a decision, then announce to the membership which entity is responsible for the pipes. If it's the association, the board should announce the manner in which it will address a solution to the problem. If the homeowners are determined to be the responsible party, at least everyone now knows and can take the necessary steps to prevent damage.

One final caution -- the board members should consult with the association's legal counsel to ensure that their decision is defensible and viable.

Sincerely,

Margey

Under California's Davis-Sterling Act Section 1365.5, may long term reserve funds be "pooled" or should the major items identified in the reserve study be separately accounted for using sub accounts within the reserve fund account? Under the later, money identified and budgeted for roof replacement could not be spent for street repair, etc.

- Mark S.

For the right answer to your question, I went to Ms. Cherie McColley, CCAM, Vice President Management Services, N. N. Jaeschke, Inc. based in San Diego. Cherie is an expert on every aspect of community association operations and responded as follows:

"All components should be classified in the Reserve Study, such as roofs, streets, pool equipment, lights, etc. Monies should not be "pooled". It is also prudent to have your budget match the reserve study with the major components. In the budget funding for the reserves you do not have to have as much detail such as breaking down how many lights and what kind. Monies that have been allocated for a certain component should not be used for another. There is a process where you can borrow from the reserves; however you must have a plan to pay it back within one year."

Sincerely,

Margey

I am a member of the board of a homeowners association in a country club community. I am interested in finding out how to determine the percent of the total budget that should be dedicated to funding reserve aacounts, and what might a reasonable limit for reserve funds (CAP) be, where current reserves are substantial. Our community contains 134 condominiums, two separate associations, 300 homes under one homeowners association and a country club. The HOA documents outline the proportionate financial share for each separate entity in the community required to maintain roads, drainage, security, limited common area property (pool, golf course and other amenities owned by the country club). Is there a rule of thumb regarding the percentage of the budget that should be dedicated to the reserve. As an an example, if the operating budget is $750,000 how much more above the operating budget should the reserve be. I appreciate your input.

- Perplexed

Several decades ago, during the initial phase of creating the new concept of community associations, FHNMA and the VA required specific provisions in the associations' governing documents mandating that a certain percentage of the annual budget be allocated to a reserve fund. Nowadays, those requirements have changed to reflect more advanced knowledge of the need for a realistic reserve. In fact, many governing documents written in the past several years require associations to have a reserve study performed to determine exactly how much money should be in a reserve account.

Rather than picking an arbitrary percentage to allocate to reserves, consider hiring a Reserve Specialist®, a designation conferred by the Community Associations Institute (www.caionline.org ). These trained experts will conduct a reserve study to identify all the capital components for which your association is responsible to maintain, determine the replacement cost and remaining life, and calculate how much you should budget annually to set aside in a reserve fund in order to have the money available when a component fails.

Sincerely,

Margey

Special Assessments
&
Loans

I am on the board for an 81 unit townhome planned unit development in Southern CA.  Each building has four units.  Our CC&R's say each homeowner is responsible for maintenance, repair and replacement of their own roof even though they are attached in groups of four.  We have wood shake that is long past its useful/safe life.  Lots of leaks and insurance problems not to mention fire risk.  No way to force all homeowners to replace all at once.  We are going to go out to a vote to amend CC&Rs to have the HOA take over responsibility (but not ownership) for the roofs (as they have currently for exterior stucco/wood) so the project can all be done at once even though there are no reserve funds for it.  If passed (our CC&R's require 75% to pass or 50% and a court order) we will have to special assess for virtually the entire project except maybe $1,000 to $1,500 per unit we could probably afford from "excess reserves". No one wants wood shake anymore.  Three homeowners have already had to replace and were forced to do so with wood shake as it's the current "standard".  Since each building of four includes some single story units and some two story units, it would be very difficult to change to composite shingle for anything less than per building - especially with sheeting changes, etc.  And unless done all at once, materials will not be consistent looking.  Now the challenge... if passed, how to successfully special assess $6,000 - $7,000 per unit in a short enough time where the bid is still good and satisfies the contractor.  Been advised AGAINST HOA loans.  Any advice?

- TR

I applaud your collective efforts to resolve the wood shake issue, and empathize with the dilemma regarding finding the funds to pay for the shingle replacement program.

Unless your owners have enough spare cash during the holiday season to pay the full amount of the special assessment, a bridge loan may be the only solution. With the loan, you can have the work performed quickly, at the best price possible, and pay it back with the proceeds of your special assessment which can be arranged on a pay-out schedule over a defined period of time. For example, the owners could be offered the opportunity to pay the assessment in one lump sum, or paid monthly or quarterly over a twelve-month period with an additional fee to offset the interest paid on the loan.

Of course, both the authority to borrow money and to stretch out special assessment payments must be described in your governing documents. If the documents do not contain such language, then it may be possible to amend them to reflect current reality, so long as the appropriate number or percentage of owners agrees with both the replacement program and the means to pay for it.

Sincerely,

Margey

Any ideas if we are UNABLE to pass the transfer to the HOA with the required 75% (or at least 51% to petition the courts needed)? Forgot to specifically ask that one.

- TR in CA

Your options are certainly limited if you are unable to obtain the requisite number of owners to approve the transfer of responsibility. In fact, absent the needed vote to approve the amendment to the documents or petition the courts, the current situation will continue in which each owner is responsible for the replacement of the roof over his or her townhome.

I would like to think that given the facts, your neighbors will understand the need to amend your documents or petition the courts and vote affirmatively for that action. So, before you call the special meeting at which you’ll call for a vote, collect all the information the owners should know so you can present it in a manner that is clear and comprehensive. Prepare handouts for each owner that detail the current cost of individual roof replacement and the concomitant problems with effectively tying down the new roof to the old. Show how it will cost each owner more money to individually replace a wood shake roof than to replace all four roofs with composite shingles. My 26 years of community association management experience tells me that when owners realize how a change in procedure can positively impact their pocketbook, they usually support the board’s recommendation.

Good luck, Terry. Let me know how it works out.

Sincerely,

Margey

I would like to know if our community will have a community pool or any other changes made to the community?  In my opinion we need a pool and better landscaping to improve the neighborhood.  Please let me know what are the upcoming changes to our community.

- Dana M.

I regret to tell you that I do not know in which community or state you reside. Perhaps you could contact your management company for answers to the questions you posed?

Sincerely,

Margey

A few of my neighbors and I want to start a community association. Where do we start??? I can not find any help online. I just need to know the steps to get the ball rolling. We are in the great state of Maryland. Thank you.

- Debbie L.

I've got three very specific references for you to help you start a community association. First, go to the website for the Maryland Homeowners Association for information on Maryland law regarding community associations as well as links to the laws themselves. Then, go to the website for the Community Associations Institute (CAI), to find a chapter in your area as well as publications that contain more information than you can imagine regarding the formation and successful operations of community associations. Finally, through your local chapter of CAI, find an attorney who focuses on community association law and can help you through the intricacies of creating a homeowners association that benefits the owners and the surrounding area.

Sincerely,

Margey

I am a board member in the State of Florida. Recently, we had a special board meeting to give the office manager a raise. We had a quorum. It was passed for a dollar an hour more. The president told the office manager that she would get the raise starting January, 1 2005. The secretary didn't take minutes. At the next board meeting the raise came up again and they took the raise from her. Is this legal since it was passed and she was told about it?

- S.

While Florida law prohibits me from providing you specific legal advice with regard to your association, I can tell you that, in general, giving and then eliminating an employee's pay raise is unfair and inappropriate to the employee. Even though minutes were not drafted of a meeting at which a quorum is present, they can and should still be written and approved. Revoking a previously authorized salary increase, while not illegal unless a union is involved, certainly gives a mixed message to an employee who may decide that the lack of board support, coupled with possible board internal conflict, is reason enough to look elsewhere for employment.

Sincerely,

Margey

I would like to know the person who is the president of *********** Homeowners Association. Haven't gotten any newsletters about meetings are anything else. Been in our home since September 30 and knowbody has said anything about the association, please advise us.

- William V.

If you would provide me the name of your management company or the city in which your community is located, I will try to track down the name of your community association manager who can contact you regarding your association's board of directors.

Sincerely,

Margey

I was wondering if you could tell me the difference between a Resolution and an Amendment? The Board of Directors would like to make a Resolution as to the 2nd floor of the building not allowing any new homeowners to be able to install hardwood, pergo or tile in there units due to the noise level that you can hear on the first floor. (Lots of complaints from 1st floor owners.) We are being told that you have to get a 51% vote from all the owners to add it to the CC&Rs as an Amendment which is very costly. Why can't the Board state this in a Resolution? Thank you for any help you can provide.

- M.

The purpose of a resolution is to clarify ambiguities in the Declaration, Bylaws or other documents that govern the operations and administration of a community association. On the other hand, an amendment revises those documents, either deleting or modifying existing wording or adding new provisions.

I concur that prohibiting second-floor residents from installing certain floor coverings requires an amendment to the governing documents, not a simple resolution. An amendment requires a certain percentage of owners to approve it before it is effective, and is appropriate for significant changes to the current standard of living. Such changes should be approved by the appropriate number of owners, not just the board of directors.

In addition, you will probably have a much easier time enforcing an amendment to the documents than a resolution. I would imagine that a judge would prefer to enforce an amendment, since it indicates that the requisite number of owners supported the revision. On the other hand, if a board passes a resolution that is very unpopular, the owners can force a special recall election to remove the board members and elect new directors who more closely reflect the wishes of the membership -- and pass a new resolution reversing the previous one.

Sincerely,

Margey

We are looking for an insurance company for our club house. Any ideas or can you recommend one? We are trying to keep the cost down.

- Steve

To find an insurance agent in your area who is knowledgeable in community association insurance requirements, including the coverage mandated in your governing documents, I suggest you contact the Community Associations Institute, then click on "Find a Chapter". If there is a chapter in your area, there are probably insurance agent members from whom you can solicit bids. When comparing the proposals, be sure to confirm that the coverage and exclusions are similar.

In addition to coverage on the clubhouse, you might also consider Directors & Officers Liability, General Liability, property coverage on all common areas such as pools, perimeter fences, access gates, and entry monument, and a minimum value workers compensation policy if you do not have employees.

Sincerely,

Margey

Amenities

Hi, I love your website. I am the President of a HOA which recently transitioned from Developer Board of Directors (BOD) to homeowner elected BOD of an age restricted community. We have a question about who can use our recreation facilities. I have been told that individuals who do not live in our community cannot use our facilities except as guest, and then not on a regular basis (such as playing pool on a weekly basis). I have been told that even though our Declarations state that the BOD can authorize use of the common area, that the BOD cannot authorize that use as it violates the HUD and FHA statutes. Also I have been told that we cannot authorize the facility for "public use" such as a polling place for elections. Can you please help? I live in Arizona. Thanks for your assistance.

- Paul

I'm so glad our website is useful to you!

Age-restricted community associations must comply with very strict federal criteria in order to maintain that restricted status and not be accused of discrimination. Mandates from both HUD and FHA govern your community, and the IRS determines your nonprofit status -- which could be revoked if the community offers activities that fall outside the provisions of your state's nonprofit corporation act. Look to your association's Articles of Incorporation for the purpose of your association, to your bylaws for the administration of the corporation, and to the Declaration for the operations of your community. Perhaps doing so will give you a better idea of the fine line your board must maintain in order to protect your community's age-restricted and nonprofit status.

Sincerely,

Margey

Thanks for the input.  (see above) I have checked out Declarations, Conditions, Covenants and Restrictions and they state that the Association thru the Board of Directors may control and operate the Common Area (of which our recreation center is a part).  Considering that we are in an age restricted community where could I locate the FHA and HUD statutes that outline the restrictions which the Board must follow when allowing members, guests, and others to use the facilities?

- Paul 

I found the following article at www.condomgmt.com that provides a good overview of the laws governing age-restricted communities. It is called "Age restricted communities" by Laurence E. Kinsolving.

Sincerely,

Margey

I live in a rural HOA in Missouri. The HOA was properly filed in this county; but the CC & Rs were NOT on file with the county. We have been told this makes them invalid. Therefore, since there are many disagreements with the old, unenforceable CC&Rs, we are rewriting them. There are 16 homes in the association. At least three do not wish to have CCRs at all - and the other 13 don't agree on the fine points. The board is now consulting an attorney as to wording, but my bottom line question is, now that we know the old CCRs are not legally filed, must we ALL agree and sign the new ones? What if some of us do not sign them?

- Stephanie

I'm very glad you're consulting with an attorney on this matter, because homeowner association laws vary by state, and what Missouri statute says must be accomplished in order to form a new homeowners association may be very different from other states' requirements. My only caution is to ensure that you have an attorney well versed in Missouri community association law, not just real estate law.

I can tell you that many state laws allow current owners to "opt out" of a newly-formed homeowners association; if they don't sign the creation documents, they will not be members of the association. While these owners may not be required to adhere to the governing documents of the new association, subsequent owners of the home may be obligated to comply with the Declaration, Bylaws, Rules and Regulations and legally-adopted rules.

Sincerely,

Margey

I am a member of the HOA management team for my neighborhood.  Our home owner's dues are payable in January and February of each year. We have 2 major assets:  swimming pool and playground area.  Our annual dues are adjusted by the HOA budget, based on past year's expenditures.  In 2004, we had one HOA member who did not pay dues, even after repeated letters, including a certified one, telling him of his requirement to pay dues or we would file a lien against his property for payment. We don't intend to start foreclosure; we merely want to file the lien against the property so that when the member sells, we will be paid the dues and the fines related to them. What document do we use to file the lien in Texas?  I have contacted the county clerk and they will process the document, but didn't know what document to use.

- Gerald L.

In Texas, state statutes prohibit anyone except attorneys from filing documents that affect property records, so you will need a lawyer to file the lien against the delinquent owner.

If you are hesitant to foreclose but worried that the delinquent owner will live in his home for decades before selling it, all the while accruing unpaid assessments, you could sue him or her personally for the balance due. Once you have a money judgment of record, credit agencies will be on notice and it's possible that they may not approve loan requests for vehicles or property, or credit card applications, until the judgment is satisfied (paid off).

Sincerely,

Margey

I am on the Board of a 16 unit condo complex in Los Angeles, CA. I recently learned that one of the units is registered as section 8 (government subsidized) housing. I and other owners are not happy with this as we feel it has a very real chance of lowering our property values. The current tenants are elderly with mobility problems, speak no English, and have virtually no interaction with the other residents, they clutter their patio with boxes and household items... And they are probably a best case scenario when it comes to possible Section 8 tenants.

I learned of their status when the housing inspector knocked on my door to inform us of a violation that must be remedied. Section 8 requirements are stricter than the general standards. Our association does not have the funds (approximately $1500.00) to make the repairs and had already discussed putting them off for several months. The repairs needed are not dangerous, nor do they affect the quality of life for any residents. Our building is designed so that all our patios face an interior courtyard, so the actions of any single owner can obviously dramatically affect the rest. Our CC&R's are weak on any kind of enforcement rules and mute on anything like the section 8 matter.

1. Can/should we require the individual homeowner to pay for the repairs?
   
   
2. Should the existence of this section 8 designation have been disclosed to those of us who purchased recently? And should we disclose to future buyers? (It would not have affected our decision to buy here, but frankly I resent not being informed.)
   
   
3. Does the association legally have the power to block or limit any more units from being designated?

- Thanks, Scott

Not being an expert in Section 8 Housing, I found someone who is - Mark P. Southall, CPM, PCAM, CMCA, AMS, President, Principal Management Group and frequent contributor to Association Times.

According to Mr. Southall, the Section 8 program probably works similarly in Los Angeles as it does in Dallas. "Here locally the Section 8 program for individual rental housing is coordinated by Dallas Housing Authority. Unit owners have the option of placing their units in this program designed to provide affordable housing to low income residents.

The housing authority will pay the unit owner the full rental amount, and the resident will typically pay a nominal amount directly to the housing authoity. Many individual unit owners prefer this type of program because it provides a guaranteed timely check each month, and it relieves them of the need to market their vacany and screen potential renters. The obvious problem is that the housing authorities who run these programs sometimes do not adequately screen potential renters, which leads to less than desirable residents.

In response to Mr. Pettyjohn's questions:

1. This would depend on what repairs are being asked. Presumably these are common area items for which the Association already has a responsibilty to maintain. The Association, acting through its Board of Directors, has the authority to schedule routine repairs to the common element based upon the needs and resources of the Association.
   
   If the requested repairs are indeed not dangerous, and do not affect the quality of life for the residents, then the Board may be correct in its decision to postpone them until such time as adequate funds are available. The Section 8 housing inspector may very well inform the unit owner of the required repair, but unless a code violation exists involving a common element, the Associaton may not have a responsibility to immediately address the issue.
   
   
2. The Section 8 program is a voluntary program that is likely available to virtually any unit owner of rental housing in your market.
   
   Disclosing its existence prior to sales would not be practical for the Association, nor do I feel that the Association necessarily has a responsibility to address it with future buyers.
   
   
3. Based on their individual governing documents, some Associations have the authority to restrict or limit the number/percentage of rental units within the Association, but the decision to attempt to restrict government subsidized low-income housing programs should be carefully considered by the Board along with the Association's legal counsel.

Such action could potentially lead to claims of discrimination and violation of both local and federal fair housing laws. Too often the defendant in such a claim is viewed as guilty until proven innocent, and such proof can be very costly to the Association."

Sincerely,

Margey

What, if any, rights do Illinois homeowners have against developers, Municipal Boards, etc, who propose housing developments that will dramatically reduce the value of their property?

- T.

According to Ms. Christine Evans, President and CEO of Schaumburg (Chicago) Vanguard Community Management Company (cevans@vanguardcommunity.com), the best way to protest a planned development that may detrimentally affect neighboring property values is to talk in person to the city council member who represents your area as well as to your mayor -- both really are accessible to their constituents. If you are not satisfied with their response, organize as many homeowners as you can to appear at a city council meeting - the more protesters, the more impact you will have. Also, galvanize your neighbors to call and fax the mayor and your city council member with their objections -- keep the messages brief and to the point.

Don't give up after one appearance and a single round of calls and faxes, though -- it may take several organized efforts to get their attention and to have a chance at reversing the decision to construct the development in your neighborhood.

Sincerely,

Margey

I am having problems with the ************* Homeowners Association. I am being sued for storing a boat on my property; this is false. What can be done to take care of the problem without going to court? I have 10 neighbors that can verify that the boat has not been here longer than a 24 hour period, only for clean up. The people hired to monitor the neighborhood get paid for every citation. Do these people live in my subdivision or just people wanting to make a buck?

- D.

I spoke with Ms. LeJean Griffith, Vice President of Houston Community Management Services (HMCS), about your concern. Ms. Griffith assured me that neither the manager nor HCMS receives additional compensation for pursuing deed restriction violations; it is their contractual obligation with your board (the members of which reside in your community) to observe and follow up all violations.

If you have proof that your boat is not and has never been stored for more than a 24-hour period, you should submit that documentation to the association's attorney as quickly as possible to avoid additional legal fees. Neither your manager nor your board members want this matter to go farther; they only want to ensure that everyone complies with the governing documents so that the attractive appearance and the property values in your community can be protected.

Sincerely,

Margey

Our association has denied my request to install a satelitte dish. How do I find the legality of their decision?

- C. S.

The Federal Communication Commission has published an excellent FAQ Sheet on the installation of satellite dishes and antenna in homeowner associations. You can download the document at http://www.fcc.gov/mb/facts/otard.html.

Sincerely,

Margey

What is the web address for Missouri condominium law? Our board of 3 has meetings in their homes and make decisions on projects for the community without any knowledge that these gatherings have happened. Public meetings are to be opened to the residents. Please help.

- Linda

I went to my favorite search engine, Google, and entered "Missouri condominium law" in the keyword field. Here is the result:

http://www.moga.state.mo.us/statutes/chapters/chap448.htm takes you to Chapter 448 of Missouri state statutes, titled "Condominium Property".

For more information on how to foster responsive, successful community associations, try www.caionline.org.

Sincerely,

Margey

(Also, see our State Information page.)

Our HOA has a very long 6 foot wood perimeter fence along the exterior. The fence is along private residences, and serves no community value. It just screens private residences along the perimeter of the neighborhood from the bordering street. The builder put the fence up to sell the perimeter homes. Our covenant states we must maintain this fence. The fence is NOT community property, for the community derives no value from it. Interior fences for our individual homes are purchased and maintained by individual homeowners.

The fence is three years old, and the board has become fixated on replacing it. It is fine, and some boards could be replaced. They propose tearing down the entire fence, and building perhaps a BRICK fence. The cost could run $200-400,000. There are 189 homes in our neighborhood. OUCH.

In addition the board illegally built a fence along another portion of the neighborhood. No HOA vote was taken to approve this fence. It is 1 year old, and it has added about 30% to the exterior fence line. This fence borders a drainage retention area. They want to tear this down and replace it as well.

What legal recourse do we have? Can we demand the illegally built fence not be replaced, and can we just turn over the fenceline to the rightful owners - the private residents?

Also, there appears to be some issues with erosion from yards destroying the "community" fences. This is a personal homeowner liability issue, if it is indeed destroying this "commuinty fence".

What a mess. Please HELP!

- Bob

You've raised several issues in your question, so I'm going to address them individually so that we can get a clear picture of what's happening in your community.

With regard to the perimeter fence, as long as your governing documents identify the fence as a common element to be maintained by the association, your board has no authority to do otherwise -- it must maintain the fence. However, there's a big difference between "maintaining" and "improving", and that's where I see the problem developing.

The same issue applies to the new fence the board had constructed along the retention pond. Board members must always look to the association's governing documents for authority to act, so there must be a provision, probably in the Declaration of Covenants, Conditions and Restrictions/Deed Restrictions/Declaration/CC&Rs (there are different names for this document in different parts of the country)authorizing the board to expend association funds on improvements without homeowner approval.

If your association's governing documents do indeed authorize the board to construct improvements on the property and spend significant association funds on those improvements without approval of the membership, then homeowners have recourse at the ballot box if they disagree with the actions of the board. If the specified number or percentage of owners disagree with the board's decisions and actions, they can follow the procedure established in the bylaws to call a special meeting for the purpose of removing the existing board, or certain board members, and elect directors who better reflect the opinions of the community's constituency.

Before taking such drastic action, however, I encourage you to bring your concerns directly to the board and open a dialogue with them regarding why they have made the decision to replace the fences with brick. Perhaps the only problem is that of communication, and the board needs to better convey the reasons for their actions and decisions.

Sincerely,

Margey

Have you specification sheets to addend a landscaping agreement? I don't need maintenance specifications at this time. I need details covering installation such as preparing the site, need for testing the soil for ingredients and chemicals or fertilizers recommended to be added, proper mulching, proper irrigation installation, and so on. The site in question is in South Florida where the water table is relatively high, summers are hot, and winters are dry. Your thoughtful reply is genuinely appreciated.

- Norman L.

Since the climate and soil conditions vary not only by state but by many areas within a state, I recommend that you hire a local certified agronomist or horticulturist in your South Florida area. Such an expert will be intimately familiar with the local growing conditions and soil supplement requirements. You could find these experts in your Yellow Pages or through a recommendation from a respected landscape company in your area.

Sincerely,

Margey

As treasurer of my homeowners association I am now sending out bids for roof cleaning and home painting. I have read your article regarding the painting format. Do you have any info regarding the roof cleaning that may be available for my use? Thank you for time and effort.

- Z. M.

I entered “roof cleaning specs” in Google’s keyword search field and came up with pages of links on this topic. One that appeared to be right on point with information on various ways to clean a roof is http://www.naturalhandyman.com/iip/infxtra/infroo.shtm.

Sincerely,

Margey

I own a condo in an HOA that the majority owner 36% is a company comprised of people that work for the management company of the property. The story I have heard is that this company was formed and bought out the developers of the property, owning almost all of the units originally. The management company rents the units owned by the company as well as an apartment extension of the property not in the HOA. The apartment rentals run an office out of the HOA clubhouse and use of the HOA pool with no compensation to the HOA. The HOA board was elected while the company still retained approx. 50% of the property over 2 years ago. We have not had a meeting since. My question is, this seems like a HUGE conflict of interest and what can I do to get some things changed?

- C. J.

Based on the information you've provided, it would appear that your HOA's facilities are being used for non-association-related purposes. However, the first step to take is to read your governing documents -- especially the Declaration and the Bylaws -- front to back to confirm that the activities and actions being taken by your board/management company are in conflict with those documents. If the documents authorize the board or a third party to operate a business from the association's premises, there's not much you can do except to galvanize your neighbors to support an amendment to the documents revoking that authority.

Let's assume that you've done your homework, read your documents, and determined that there is no authority to conduct a separate business on the association's premises, using the association's facilities. Since your majority owner doesn't own a majority of the units, why not solicit the support of the other 64% of the owners to install new board members who have no conflict with the best interests of your association?

To ensure that the election is valid, carefully read your association's bylaws in which the specific procedure for calling an annual meeting and collecting legitimate proxies should be detailed. If the current board refuses to call an annual meeting, go back to your bylaws to find the petition process to call a special meeting. You might also check your state statutes for possible laws regarding the election of board members in community associations.

If, after all your efforts, your board/management company still declines to call an annual or a special meeting, consider reporting their actions to your association's insurance agent.

Sincerely,

Margey

In a nutshell... Our present manager has been here about 8 months now. During this time she has made a great deal of improvements and, has also uncovered many scandals within the board and administration. The board is now terminating her position, obviously because she knows too much. We would like to have a few board members removed. Can you offer any suggestions on how to handle this worsening situation.

- Thanks, Phil C.

While the effort to remove community association board members can be a daunting task, it is not impossible. As long as you have the support of the majority of your neighbors, your efforts will be successful.

The bylaws for your association, or perhaps state statutes on homeowner associations, should contain detailed steps for replacing board members who no longer represent the best interests of the members. Typically, the procedure calls for a petition signed by a specific number of eligible members demanding that the board call a special meeting for the sole purpose of removing one or more board members. The board is obligated to call the meeting so long as the members follow the specific process detailed in the bylaws.

As soon as the board/manager mails the special meeting notice, it's critical that you and your colleagues commence an intensive effort to either collect proxies from your neighbors granting you the right to vote on their behalf, or persuade the neighbors to attend the meeting themselves and vote in support of your campaign to remove the directors and elect your candidates.

If you have any doubt as to they appropriate manner to remove directors, I urge you to consult with an attorney. It would be a shame if all your efforts proved fruitless because the procedure you followed was not the exact process detailed in your bylaws or state statute.

Sincerely,

Margey

Can you please direct me to where I can find the answer or email me back with the answer: how long must a management company keep condominium bank records, and paid bills? Also how long must a management company keep home owner association bank records and paid bills? Thank you.

- Brigid G.

I'm going to respond to your question from two perspectives, because I can't tell whether you've terminated a management company's contract and they're withholding your association's records, or your management company is retaining records that date back decades.

With regard to the first possibility, management companies may not withhold the books and records of a community association after the contract is terminated. All documents belong to the association and must be submitted to the association's representative when requested, even if there is a dispute over money allegedly due to the management company by the association.

With regard to the second scenario, while the management company is the agent for the records of the association, that doesn't mean that it must store archival material in the management company office. It is typical for the immediate past and current years' records to be kept by the management company for easy reference. However, prior years' records may be stored at the association's onsite facility or an independent storage facility. If your question relates to how long certain documents must be retained before they are discarded, I recommend you consult with your CPA and attorney, and also read "The Board Secretary" published by the Community Associations Institute and available at its bookstore at www.caionline.org. This publication contains a list of typical association records and the suggested retention schedule for each.

One final piece of advice: while the management company may be responsible by contract for maintaining the books and records of the association, it may be wiser for the association's board of directors to determine which records to discard after a defined period of time, and which should be retained indefinitely. "The Board Secretary" can help you develop a resolution addressing this issue.

Sincerely,

Margey

Before I purchased my townhouse I read all the covenants and rules & signed the agreement. 14 months later, I got a letter from the HOA telling me to replace a tree. There was no tree when I bought & no tree in the real estate promo picture & the inspection form the HOA rep signed prior to my purchase showed no discrepancy in covenants & no mention was made of a missing tree. I am being harrassed & threatened with a $900 fine. Is it legal for them to make me buy & plant a tree that I never knew about? They refuse to answer my emails or letters. Thank you.

- Marie D.

The issue that caught my attention first was the fact that the association is not responding to your emails or letters. Is that because they have referred your situation to legal counsel and may no longer communicate with you directly?

If you have been referred to the association's attorney, please ask him or her to provide you with documentation that requires you to have a tree in your yard. If the association and previous owner provided you with disclosure statements which should have included a statement regarding whether their were any deed restriction violations prior to your purchasing your home, check to see if any mention of the tree is included in those reports, and forward them to the attorney as well.

However, we've only addressed one part of the issue -- whether you were aware of the tree requirement when you purchased your home. Most courts consider "constructive notice" as any document that is filed of record in the appropriate jurisdiction. So, if the recorded governing documents, including rules and regulations, for your community association require each lot to have a tree, you were "constructively noticed" of that requirement when you received those documents, whether or not you read them.

The bottom line is this: if your association's recorded governing documents require each lot to have a tree in a particular area of the yard, then you must plant a tree in the yard, whether or not the previous owner complied with that mandate. As the current owner of the lot, you must ensure that your lot is in compliance with the governing documents. If there is no written requirement for the tree, then you have a better argument. However, will the tree improve the appearance of your lot and the surrounding lots?

Most Realtors agree that trees can add to the value of a property, so perhaps planting a tree will cost you less than fighting your association, and increase your resale value as well.

Sincerely,

Margey

We are a new 30 Unit condo. A new owner rented her condo for one year to people who own a 24 lb dog. The man is in a wheel chair and his companion does not walk the dog. They put the dog in a cage to do its duty (this cage is on the back screen porch) the neighbors on the underneath floor can smell this due to their porch being extended out 10 feet from the building. New board members were asked to ok them moving in, not realizing that our rules do not permit pets to renters. Our management person was brand new to the job, which we did not know and she didn't advise us of this. So now we told the renters they need to keep the cage in the condo, until we revisit the issue. Where do we go from here? We now have a new board in place (3 members) and are starting the year with this situation. Thank you for your help.

- Barbra

I've got a question for you: is the rule prohibiting renters from having pets a part of your original governing documents or was it passed by the board? If it was passed by the board, were the appropriate procedures followed, i.e., do your documents or state statute detail a specific process the board must follow in order to legitimize new rules?

Here's why I'm asking those questions: If the rule against renters having pets is in the original documents, then the owner of the unit was obligated to advise potential tenants that they could not have pets. If the board legally passed a rule prohibiting pets in rental units, then the owner of the unit is still on the hook for enforcing that prohibition.

The fly in the ointment is the fact that the board permitted the dog in the rental unit. As fiduciary agents of the association, each board member must be intimately familiar with all the rules and regulation, whether or not there is a manager to advise them. The board is ultimately responsible for everything that happens in the community, so how can you resolve this issue so that there is no ongoing violation of a very visible rule?

You're going in the right direction by requiring the renter to keep the caged dog inside the unit; I would imagine that the city Health Department would have cited them if the odor and unhealthy conditions had continued to impact the resident in the lower unit. The next step should be to advise the owner that the lease may not be renewed unless the dog is permanently removed from the premises. It would be appropriate for the board to pass a special resolution granting temporary permission to keep the dog until the expiration of the lease, as long as the term was not for more than twelve months, detailing the situation and the reasonable solution. A resolution that considers all sides of the situation should be satisfactory to all affected parties.

Sincerely,

Margey

Do proxies have a time period as to their validity? For example, we are a homeowner's association less than 2 years old.  2/3 vote is required to change amendments to our covenants and restriction. We have 336 homes and the Board members went door to door collecting proxies. Three days before the election, one of the Board members failed to collect a single proxy, citing "a change in medication" prevented her to go out and collect the proxies. We gathered 20 proxies out of 80 homes and failed to pass an amendment. We came up 40 votes shy. We adjourned the meeting. Is it possible to go back to the homes, once the meeting is over and votes counted, in an effort to pick up more of the votes, in an effort to pass the amendment. Or do we wait and present it at another time?

- Greg D.

The first places to look for answers to your questions are the governing documents of your association and your state statutes. They both may contain information on proxies and the wording necessary to extend the validity of the document past the first meeting.

If the proxy form that was signed by your owners did not state that it was valid unless revoked, then it was probably effective only for the meeting at which the quorum was not attained and cannot be used for a reconvened meeting. While you should consult with an attorney to ensure that the following advice is appropriate for your association, inserting the following language can extend the proxy term to more than just one meeting:

"I here authorize ____________ to represent me/us on the issues to be discussed at the Annual Meeting, or in the event a quorum shall fail to attend, at such time and place as the recessed meeting shall be continued. This proxy shall remain valid until revoked in writing by the issuer."

The significance of the above language is this: if you do not attain a quorum, do not adjourn the meeting. Rather, recess the meeting to a specific date as authorized in your association's bylaws, and do everything you can to have your members represented in person or by proxy at the continued meeting to ensure a quorum. How? Read the article "Achieving Quorum" in the archived articles section of associationtimes.com. And . . . be very sure to consult with your attorney before implementing these suggestions, since state laws and governing documents can impact the legality of both the proxy wording and recessing the meeting.

Sincerely,

Margey

Suppose interior damage was caused to a condo unit due to a water leak from the exterior.  The by-laws provide that repairs to the exterior shall be paid by the HOA.  Who pays for the interior damage?  The individual owner (or their insurance) or is the HOA responsible since the problem originated from the outside?

- Teresa

If your association's governing documents don't detail whether the owner or the association is responsible for the damage to the interior of a unit caused by a failure of a common element component, your board of directors should check your state statutes to determine if there is a provision addressing this issue. Still no answer? Then the board should pass a resolution clarifying this issue (check October's Ask the Expert archive for the resolution process). There is no set answer to your question if it's not found in the documents or in state statute; it's up to your board to evaluate all alternatives and craft a resolution that can be fairly and consistently implemented under similar circumstances.

Sincerely,

Margey

Recently my HOA has sent me 3 notices about having my "trash cans out". The issue started in the summer when I called our trash collector to schedule a time to pick up an old mattress... The trash collector neglected to pick it up for 4 straight days. After each day I or my wife called asking them if they were going to pick it up, and each day they stated they would. A few weeks later I got my first notice with "trash cans out and garbage on the front lawn". Which had obviously been taken care of, so I ignored it. About 3 months later I received another notice with the same wording. After which time I called the 'please call for further information number' and had (which I thought) cleared this all up. Last week, after another 3 months had passed, I received yet another letter stating this was my 3rd notice, but this time with just the 'trash cans out' as the reason for the notice. This notice also included a photo of my trash cans against the side of my house.

Locating my CC&R's, I found the following regarding trash can placement "No rubbish, trash or garbage or other waste material shall be kept or permitted upon any Lot, except in sanitary containers located in appropriate areas screened and concealed from view, and no odor shall be permitted to arise therefrom so as to render the Project, or any portion thereof, unsanitary, unsightly, offensive or detrimental to any other property in the vicinity thereof or to its occupants. Trash containers shall be exposed to the view of neighboring Lots only when set out for a reasonable period of time (not to exceed twelve (12) hours before and after scheduled trash collection hours). There shall be no exterior fires whatsoever except barbecue fires contained within receptacles therefore and fire pits in the enclosed yards designed in such a manner that they do not create a fire hazard. No clotheslines, lumber, grass, shrub or tree clippings or plant waste, metals, bulk materials, scrap, refuse or trash shall be kept, stored or allowed to accumulate on any portion of the Project except within an enclosed structure or appropriately screened from view."

I know for a fact that the HOA is not fairly going after everyone in the neighborhood on this policy as my neighbors across the street keep their trash cans in front of their garage in plain view. Further, simply walking down the street I can see many garbage cans placed next to the house similar to ours. Furthermore, if I were to put them behind my side gates, they would be just as visible, as the metal bar gates do not obscure the view into the back yard. Any recommendations on what I should do to get the HOA off my back on this absolutely stupid issue?

- D. B.

I'd like to think that your board of directors is being reasonable, consistent and fair in their enforcement practices. Let's give them the benefit of the doubt; try talking with a board member, preferably the presid