Ask the Expert

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

Our board of directors consists of 7 members. Materials for monthly board meetings are distributed to the board members prior to the meeting. It has been a custom here in this Virginia condominion association community to have a courtesy copy of the board package available in the association office which any owner can read prior to the meeting. The board would like to know if this is a courtesy or requirement to have this package availabe for owner's review prior to the board meeting. We do not see this addressed in the governing documents of the association. Is this a common practice in other community associations, and if this is a requirement, do you know if the package must be made available to owners within a certain timeframe prior to the meeting. These questions were asked recently which no one knew the answer for.

- Margaret

To ensure that I give you correct state—specific information, I asked Mr. Brad Brady, Chairman of Community Group headquartered in Richmond, Virginia (bbrady@communitygroup.com) to help me out. Here’s Mr. Brady’s response:

“It is a requirement of Virginia statutes to make available to the membership a copy of the same packet of materials that is concurrently provided to the Board of Directors of a Virginia condominium association prior to its meetings. The only exception is for materials relating to an "executive" or closed session of the Board, and the only items which may be discussed at an executive session are specified by statute. Section 55-79.75(B) of the Virginia Condominium Act states: "Unless otherwise exempt as relating to an executive session . . . , at least one copy of all agenda packets and materials furnished to members of a unit owners' association's executive organ for a meeting shall be made available for inspection by the membership of the unit owners' association at the same time such documents are furnished to the members of the executive organ."”

Sincerely,

Margey

What actions may a Board President of an HOA take without Board approval?

- P.B.

Your association's governing documents, specifically the Declaration and Bylaws, along with state statutes including the Nonprofit Corporation Act as well as any specific state statute such as the Condominium Act, Planned Community Act or Uniform Common Interest Ownership Act, determine what your president may do without approval of the board members. Parliamentary procedure provides guidelines for effectively conducting a meeting.

Sincerely,

Margey

Do you have an written articles requesting homeowners to consider running for election to the Board of Trustees?

- Donna B.

We sure do have an article addressing the roles and responsibilities of the board of directors, which could encourage owners to volunteer to serve on their own board. Go to Articles/by subject, then scroll down to "General" and click on "The Role of Today's HOA Board of Directors" by Linda Bartel, PCAM.

Sincerely,

Margey

Our management company has suggested that the Board/Management have open meetings every other month, and schedule a working session in between. Would this meet the bylaw requirements of monthly meetings? A past Board closed all of their meetings to the unit owners, and I fear a backlash if the current Board does not have open meetings on a monthly basis. What are your thoughts?

- Jennifer

First let's address the validity of conducting "working sessions" which sound like closed meetings of the board. Do your governing documents or state statutes require open meetings of the board? If so, a "working session" may legally be considered a board meeting no matter what your board or manager wants to call it. Check with your association's legal counsel to ensure that you're not violating any state or association requirements.

With regard to the Bylaws requirement of monthly meetings, I think the board should consider presenting an amendment for owner approval that removes that obligation. Monthly meetings may not be necessary if the association's operations are running smoothly, and they can cause both board and manager burnout. Most issues can be addressed by email or telephone and then ratified at the next formal board meeting, expediting actions and responses instead of waiting for a meeting to make decisions.

That said, if the Bylaws currently require monthly meetings, then working sessions probably fulfill that mandate. I've already mentioned my concern about closing any meeting to the owners, however, and encourage you to allow owners to attend all meetings except executive sessions, an issue that I've discussed at length in previous answers.

I would encourage you to consider other solutions to the board's and manager's desires to conduct the meetings in a businesslike and expedient environment. Please refer to Association Times Ask the Expert's Archives for discussions regarding meeting conduct and executive sessions.

Sincerely,

Margey

I am serving my first 3-year term on a homeowner association board. It is a recreational area on a river and we are all lot owners. Some have homes or cabins and others just come for the summer with their RV's. Last year we acquired a bank loan and drilled a new community well - after a membership vote to do so. Besides the well, we have two roads and a bridge that serve as our common areas. There are 2 or 3 people who are consistantly on the board. Board meetings are posted - but not the agenda. Members are not encouraged to attend board meetings. I have brought the subject of CC&R's up twice and been loudly put down because they don't need them. "Don't make your problem my problem" was the answer. My second year I was elected treasurer by the board and was given two shoe boxes full of papers and a check book. I have spent hours setting up member files and separate files for all accounts, and balancing checkbooks, etc. My point is that this community is run by a few people who have developed an unhealthy "sense of ownership" and I don't see anything changing. I had heard that the fire department would not drive over our bridge to a fire because their trucks are too heavy. I was told not to bring it up at the annual meeting. Do I run up and down the roads yelling all of this, or do I go to the Secretary of State (we are a non-profit corporation), the Attorney General? What do I do. The few of us who challange the others are now trying to get ahold of the contracts from the well construction as we think there may have been some overpayments by the main board member who almost single-handedly oversaw the construction; but he won't give them up. Says he may need to contact some contractors for follow up work. No one has ever seen the contracts. We were given a list of numbers prior to construction. He said they were the best numbers he could get. There is more; but time and space don't permit me to elaborate further. Please reply. Thanks.

- Linda

Congratulations on volunteering to serve on your community association's board of directors. I understand your frustration in your efforts to overcome the attitudes and actions or inactions of your fellow board members. Association Times' Ask the Expert Archives contain several articles on ways to resolve this issue, ranging from educating your board members to organizing a coup to overthrow the current board and elect directors more reflective of the desires of the membership. I encourage you to search for those articles, listed under "Problem Boards" in each archived issue.

Sincerely,

Margey

The President of the Board for our Club/Property Owners Association is rude. He curses at people, threatens them, is abusive to other Board Members and still nothing is done. I believe the other Board Members should stop this undesirable behavior and dismiss him from his duties. This is no way to behave and by not speaking out as a Board member I believe they are just as bad. Do they not have a responsibility to do something with him????

- Joan

Homeowners have the ultimate control in a community association since they are the ones who elect their board members. They are also the ones who can remove board members who do not represent the best interests of the association.

I agree that board members and officers should be respectful and courteous to the members, but that attitude must be reciprocated. It's difficult to maintain a professional and courteous demeanor when being personally attacked and verbally abused, as sometimes happens to the volunteers who serve on the boards of their community associations.

However, if an officer or board member is truly abusive, malicious and offensive toward his or her colleagues on the board and to the residents in the community, it's time to make a change. Officers serve at the pleasure of the board; it is the board's duty to remove an officer who is not performing his or her duties in an appropriate manner. If board members are reluctant to take that step because they fear retribution, they need the vocal support of the homeowners to encourage them to take action. If the board members still refuse to remove the officer, then perhaps it's time for the owners to exercise their right to remove ineffective board members!

Sincerely,

Margey

What constitutes an official form for the removal of an officer from a HOA? Is "we request a special meeting for the purpose of removing......from the board of directors, and if.....is removed, electing their replacement" considered an official format with signatures and unit#'s next to signed names also a format which includes:

• 17 signatures of members with 30 days delinquent dues
• Owners who have duplicate ownership in the community but have since sold parcels

Does this follow the Florida Rules of Civil procedure? Please advise.

- Barbara

Typically, homeowners in community associations elect board members. The board members then elect their own officers and may remove them at the board's discretion. Since owners elect their board members, they can also remove them in accordance with strict criteria detailed in the governing documents, usually the Bylaws. The Bylaws usually also establish who is a "member in good standing" and entitled to vote on such issues.

To determine if the process complies with Florida Statutes, go to our State Resources page and click on "Florida Statutes".

Sincerely,

Margey

We have a unit owner who has been a problem owner since she moved in 6 years ago. Every year at Annual Meeting time, she has supplied the Board with a list of demands that she wants done to the common area surrounding only her unit. This is the only time we hear from her. This year she did one better; she informed us of a leak in her roof and the Board acted immediately to remedy the situation, she then denied access to her unit so we could work on the problem, she then installed a very large security door with double key locks to the entrance to deny our workers access from doing further repairs. She did not supply the Board with prior written plans, nor did the Board give her approval to do this. The next thing we know is she sent out a very detailed letter to all the other unit owners, claiming she now has mold in her unit from the recent rains, with a motion and proxies attached that to say the least was detrimental to our Board. We had to seek legal counsel and have paid quite a bit of money to Attorneys (over $5,000- in a 2 1/2 month period) to stop her from doing any more damage than she has already done. It has recently been found she has no mold in her unit, so it is obvious she made up all the accusations.

Do we now as a Board have a right to make her pay for all Attorney costs since she started this problem to begin with? Is there a way to deny this person from attending any more monthly meetings as when she does show up, she just makes a problem. We have asked her to leave meetings in the past, but now she feels she has a right to sit in and not budge.

- Irene

It seems that most communities have a few owners who continually demand personal attention, diverting the board's focus from critical operational issues of the association. It also seems that the more the board ignores these folks, the more belligerent and difficult the owners become until both reach the boiling point. When that situation occurs, no one has the energy or desire to concentrate on association operations and everyone loses.

The key is to diffuse the situation so that both the board and the dissident owner can go on with their lives. Easier said then done? Perhaps, but consider the following:

1. Invite the owner to an executive session of the board; this issue probably qualifies under state statute or your association's governing documents as meeting the standard of sensitive issues. At the meeting, first set the code of conduct -- no raised voices, no personal attacks, treat everyone with respect and courtesy. Put all the issues on the table, and resolve them one by one.
   
   
2. If you feel that the situation has become too emotionally-charged to be able to ensure that cooler heads will prevail, ask a third-party, impartial mediator to help you work through the problems. The cost of the mediator, if there is one, should be split between the association and the owner. Even better, the board could consider paying the entire fee just to show good faith interest in resolving all the issues.
   
   
3. Don't leave the executive session or mediation until you've worked through every single issue and reached resolution. Be committed to keeping your blood pressure down and your mind open!
   
   
4. Take control of both board and annual meetings by crafting codes of conduct that allow the board to conduct the business of the association and provide for owner input. For example, for annual meetings, distribute a sheet containing a Code of Conduct which describes how the meeting will be run, including a statement that issues that involve an individual's home will not be addressed. However, the owner is welcome to report the issue to the management company or to the board on the next business day. Emphasize that the annual meeting is for all the owners, not individual issues, and only discussions on community-wide issues will be permitted.
   
   
5. For the Code of Board Meeting Conduct for board meetings, list when owners may speak if your state statute allows that limitation. Typically, a board will provide an open forum for owners before the meeting legally begins, allowing each owner to talk no more than a specified number of minutes (usually 3 - 5) on an issue. You could consider requiring owners to call the board or manager no less than seven days before the meeting with a request to be put on the open forum agenda and listing the topic of discussion. Further on the Code of Board Meeting Conduct, mention that once the open forum is over, owners are welcome to stay and listen to the board during the remainder of the meeting, but may not speak during that time because the owners delegated the authority to make decisions to their elected board members. Remind the owners that the purpose of the board meetings is to administer the business affairs of the association, while the purpose of the annual meeting is to elect board members and listen to reports of the officers and manager.
   
   
6. If there are still owners who do not feel that the board is sufficiently listening to their complaints, consider holding "townhall meetings", unofficial meetings that provide an additional forum for owner input. Again, though, develop a Code of Conduct that limits personal attacks and verbose speakers.

With regard to the legal costs your association has already incurred, consult with you attorney before charging anything back to the owner. Also, consider the effect the attempt will have on your efforts to find an enduring resolution to this issue. By establishing codes of conduct and going the extra mile to address the concerns of the one disgruntled owner, you may exert more effort for a short period but appreciate quieter meetings and happier homeowners for years to come.

Sincerely,

Margey

Top | Board of Directors | Communications | Finances | General
Insurance | Legal | Maintenance | Management | Rules

I was wondering if you guys have a list of recommended web site service providers for homeowners associations? We are hoping to establish a site for our community. Thanks.

- Ben

The Community Associations Institute has among its members several community association website providers. You can check them out at www.caionline.org.

Sincerely,

Margey

Our condo complex is about to be assessed for a foundation/water accumulation problem costing us around 150,000. plus. We have 50 unit owners. My question is regarding the Association failing to maintain or acting upon the reported problem over 6 years ago. I served on our Board from 1999-2001. I reported two times (in years 1999 & 2000) that my windows would not close properly and that the bricks around the outside of the window frame were starting to invert drastically. The Board did not take ANY action to address/research this problem until 2003. This was 4 years later from when I documented and reported the problem. These last two years the Association HAS been working/investigating on the problem and we now are about to begin FIXING it. The market value of my home plus 3 others have decreased due to the fact that they removed our brick facade on our walls over 7 months ago. Inside my unit I have had to replace a tiled-in shower pan ($2,800.)! and also have numerous cracks in sheetrock.

My question is should I also have to pay the assessment fee since I reported the problem 4 years before ANY action was taken to address our building's problem. I've searched for the answer by reading The Texas Condominium Act, Master Deed, Bylaws etc., and cannot find this answer.

Please.....any information you can give is greatly appreciated. Thank you in advance!!!

- Jessica

It's unfortunate that previous boards did not act on reports of needed maintenance. However, the Texas Uniform Condominium Act does not provide for owner exemptions from payment of regular or special assessments under any circumstances. I would think that your governing documents (in particular your Condominium Declaration and Bylaws) do not contain such wording, either. The repair work is obviously necessary and each owner in your community has a legal responsibility to remit his or his prorata portion of the assessment. Even if the Board had acted upon your report several years ago and found structural problems, you would still have been responsible to pay for your prorata share of the repair costs at that time.

Rather than fight the assessment, I encourage you to work with your board and neighbors to ensure that the necessary funds are collected and the repair work completed in order to restore the common elements and, consequently, each unit's property value.

Sincerely,

Margey

I recently (2 years ago) purchased a condo unit in a community where the majority of the units are owned by a real estate group. Since my purchase, condo fees increased by 20% & monthly assessments of $150 have been levied against individual unit owners. My questions to you are as follows: Is there a cap (limit) on condo assessments in the state of CT. I reviewed the recommended links however limits on assessment are not covered in any of the sections. Any help regarding this issue will be appreciated. Also, the management association is constantly asking me to provide them with a copy of a key to my unit for emergency. I have not done so since I feel this violates my privacy. Is there any law or case statue that would back me up on this?

- Leo

After a quick look at Connecticut's Uniform Common Interest Ownership Act, I did not find any provisions regarding a maximum percentage or amount a community association board of directors may increase assessments. There's one other source to check -- your association's governing documents and, in particular, the Condominium Declaration/Master Deed. If you do not find in that document any provision limiting the increase in assessments, then your board is authorized to raise the fees to whatever amount the directors determine is necessary in order to adequately operate your community and provide the services mandated by the governing documents.

With regard to providing a key to your unit to your management company, I understand your hesitancy. You may fear that an unauthorized person might gain access to your key, no matter what stringent security the management company may have in place. However, if your governing documents require owners to provide to the association access to their units, you must comply or work with your board and neighbors to amend the document to delete the requirement.

There may be an alternative to actually providing your unit's access key to the management company. Ask your manager or board if she or they would consider as an alternative a notarized letter from you authorizing them to hire a locksmith or allow an onsite maintenance person to break into your unit in an emergency. The letter would guarantee to the association that you will pay for any costs the association incurred in such a situation.

Sincerely,

Margey

This may be unanswerable. We have an excellent well run association. Our board just passed the annual budget in open meetings. I am concerned about the high cost of running our office. We use an onsite manager and office clerk system to run the association. We have 100 units with 27 acres of grounds to maintain. Our new budget includes roughly $58,000 for office staff and roughly $6600 for accounting fees. Is there anywhere I can go or anything I can do to find data on just what is a good cost figure for running an on-site office? Thanks for any help you can give me.

- Donald

Community Associations Institute has an online bookstore and one of the available purchases is a periodical, "Community Association Manager Compensation and Salary Survey" which may be helpful in your search for compensation data.

You might also try contacting board members in similar-type communities in your area for insight into their management costs, or call community association management companies to see if they can provide some general numbers. Finally, depending on where you live, there might be a local chapter of CAI that is active in your area. Attending membership functions may provide you with an excellent opportunity to network with colleagues in other communities and obtain answers to your questions.

One final note -- please don't think that cheaper is always better. It sounds like your community is running smoothly; even if it costs a little more than it should, any additional expense is more than offset by having the right people in the right positions professionally caring for your community and its residents.

Sincerely,

Patti

- Patti Jo Lewis, AMS®, CMCA®, PCAM®

Is there a difference between a late fine and late fee? If the bylaws state the Board has the power to levy fines for late payment of assessments, can there be a different late fee or are they actually the same? It is quite confusing.

- James

Community association jargon can certainly be confusing. While I would encourage you to discuss your question with your board members for clarification straight from the source, I can tell you that typically a "fine for late payment" and a "late charge" are one and the same.

Sincerely,

Margey

Can you explain the difference between a financial audit and a review? What benefits do each offer to the board/community? What are the decision factors that need to be considered to decide whether a review or full audit is needed? How often should they be done?

As you can see, our board is grappling with this decision. I don't think we have enough understanding to make a good decision about doing some sort of financial audit---or if it's even necessary.

This all came up recently as we have had some turnover on our board and have 3 new board members. One new member has been digging through some of the past financials and said there are some inconsistencies. This board member tends to be highly over-analytical about everything and has indicated that the inconsistencies of the financials is lack of detailed explanations as to how the funds are being categorized. All board members (including the over-analytical member) feel that the management company is doing a good job managing our assets. However, we don't understand accounting practices so making a good, informed decision on spending association funds for an audit or review is baffling. Can you provide some insight?

- Sandy W.

While an audit is much more thorough than a review, neither will provide a forensic inspection of the financial records that it appears you want. To determine which type of financial assurance you need, first look at your governing documents and state statutes for required year-end reports.

The purpose of both an audit and a review is to confirm that the financial reports prepared by the management company, association's treasurer or bookkeeper adequately reflect the financial condition of the community. The person who conducts the audit (usually a Certified Public Accountant) performs a much more detailed inspection of the records than he or she would for a review. For example, in an audit but not a review, the CPA sends confirmation notices to homeowners and contractors selected at random to verify that the balances and transactions listed on the payables and receivables reports are correct. Also, the CPA physically inspects the records to determine how complete and organized they are, and issues an opinion letter addressing the adequacy of the association's financial reports. The CPA may also issue a management letter detailing the accounting systems and controls and commenting on their effectiveness.

In a review, there is no external verification of balances and transactions, no detailed inspection of the records, no opinion letter, and no management letter. There is a general evaluation of financial procedures, but at much less intensity than that which is performed in an audit.

Because a review entails less time that an audit, it costs less. If price is a consideration for your community, and if neither your governing documents nor state statute specifies that an annual audit must be conducted, then select the review realizing that you will receive much less assurance that your financial statements and systems are adequate. A portion of the money will probably be spent on preparing your association's tax return, so decide what year-end report is best for your community.

Sincerely,

Margey

How does one apply to the IRS to elect nonprofit status for a homeowners association?

- John G.

Community associations are usually corporations established under their respective states' Nonprofit Corporation Act. However, they are typically not tax exempt. To determine if your association satisfies the criteria to become tax exempt, go to the Internal Revenue Service's online information.

Sincerely,

Margey

I have lived in Illinois in an incorporated not-for-profit association run condo for 1 year now and just don't understand how the board has power to make decisions that can possibly ruin my financial life. Our board has ratified a special assessment of $3 million. There are approximately 750 units in our association and the owners were not allowed to vote. The board broke their own rules (voting without owners) by not amending them but their lawyer said they were protected by the Illinois condo act. I don't mind paying the special assessment but they only offered 2 payment options, pay in full or over 30 months at 10% interest. They did not get a loan from a bank & I was wondering if they can legally charge me interest for a profit. If I don't pay the interest can they send me to collections & put a lien on my condo? There is nothing on this matter in our docs. HELP please.

- Suzan

I encourage you to determine for yourself if the Illinois Condominium Property Act does indeed protect board members when they violate their association's governing document with regard to imposing a special assessment. If such language exists, then your only alternative may be to persuade your fellow homeowners to fight the special assessment either by calling for a repeal of the special assessment or the removal of the current board members.

If you determine that the board acted without authority, I recommend that you copy the relevant provisions that describe the appropriate process and present your findings to the board. If your directors ignore your report and persist in the collection of an unauthorized special assessment, then you might consider alerting your fellow homeowners to the illegal action. Again, one of your possible solutions may be to follow the provisions in your Bylaws that detail the procedure to call a special meeting of the members to either repeal the board's action or replace the board members.

With regard to the 10% interest on a payment plan, I again suggest that you review the Illinois Condominium Property Act since you've determined that your association's governing documents are silent regarding this issue. Both the Act and your documents, along with case law and your state's nonprofit or not-for-profit corporation act, guide all actions of a condominium association's board of directors. That's a lot to know for a volunteer group of homeowners, and that's why they need the expertise of a competent attorney knowledgeable in all aspects of community association law.

Sincerely,

Margey

I am on the Home Owners Association Board of Directors for our small Texas community of 325 homes. One of our past homeowners was in violation of the Architectural standards relating to the size of a storage building in their back yard. They recently sold their home without clearing the violations. The new owners bought the home and were never told by the realtor or closing company that there was an outstanding violation on the property. Our HOA has since notified the new owners of the outstanding violations and their responsibility to correct the situation or subsequently be fines or worse. The new owners are refusing to make the corrections. In this case, who is liable to correct the violations? Is the violation now null and void since the property changed hands? Please advise.
Thanks.

- Paul

To make sure I give you the correct "Texas" answer to your question, I asked Mr. Roy Hailey, a Houston attorney with Butler & Hailey, P.C., to address your question. Here's his response:

"Generally speaking, in this type of scenario without reference to the particulars of the situation I would say that the new owners are responsible for the violation, assuming there was no Resale Certificate where the ball was dropped by the association. Clearly, the owner would have recourse against the prior owner of the prior owner had knowledge of the violation. Probably what would happen is that the new owner would sue the old owner when the new owner is sued by the association, assuming it gets that far. Now having said all of that, other factors could come into play, e.g., latches, should the association have taken action earlier against the prior owners, etc.

In a nutshell the new owner is liable for the existing violation on the property, but the new owner MAY have some defenses to the cause of action based upon the facts as they pan out."

Sincerely,

Margey

Top | Board of Directors | Communications | Finances | General
Insurance | Legal | Maintenance | Management | Rules

We are a 55+ community. A previous Board approved a couple under fifty-five to purchase and live in the community. Their home was destroyed when Hurricane Jeanne hit our area. The present Board does not want them to live in the community even though they would like to purchase a new or home for sale in the community. Can the Board refuse residency?

- Joan L.

The Fair Housing Administration promulgated very specific criteria for communities to maintain their "55 and over" status. Here's an excerpt from their website:

"Senior Housing Exemption

Although the FHAct was amended in 1988 to prohibit discrimination on the basis of disability and familial status, Congress intended to preserve housing specifically designed to meet the needs of older persons. Such housing that meets the FHAct definition of "housing for older persons" is exempt from the law's familial status requirements, provided that:

• HUD has determined that the dwelling is specifically designed for and occupied by elderly persons under a Federal, State or local government program or
  
  
• It is occupied solely by persons who are 62 or older or
  
  
• It houses at least one person who is 55 or older in at least 80 percent of the occupied units, and adheres to a policy that demonstrates intent to house persons who are 55 or older.

Therefore, housing that satisfies the legal definition of senior housing or housing for older persons described above, can legally exclude families with children."

Note the requirement that a minimum of 80% of the homes are occupied by at least one occupant aged 55 or older. It would therefore appear possible for the current board to approve a special resolution granting a variance to the governing documents, on the basis of previous occupancy in the community, to the owners of the home that was destroyed in the hurricane, authorizing them to rebuild or purchase another home. It's important that the resolution clearly explains why the board is approving a variance to the "55 or older" criteria so that FHA does not revoke the community's status. To ensure that the association is acting correctly and my recommendation is appropriate, however, I urge the board to consult with a competent attorney knowledgeable in both community association law as well as the Fair Housing Administration's senior housing exemption.

Sincerely,

Margey

I am looking for some information as for putting together an appeal process if a homeowner is not happy with the decision that was giving.

- W. D.

It's very important that a community association board of directors provides an appeals process to homeowners not satisfied with decisions made by an internal community association entity, usually regarding deed restriction violations and architectural variance requests.

Before crafting an appellate system, check both your governing documents and state statutes for a mandated procedure (to access your state statutes, go back to Association Times' State Resources page. If a process is already established, your board must comply with it or follow the amendment process detailed in the document or statute, if offered.

After reviewing your governing documents and state statutes to ensure that an appeals procedure is not already established, consider the following procedure:

1. The Board of Directors appoints five homeowners to serve on the Review Committee which is charged with hearing requests for architectural approval and variance as well as protests against notices of deed restriction violation and threatened imposition of fines. The charter (structure) of the Committee includes a board-appointed Chairman, Vice-Chairman and Secretary (who takes the Minutes for the Committee), and the responsibility to hear requests and protests, discuss the facts presented, and agree by majority vote on a decision. The charter should also address when the Committee meets, either on a certain day every month or only when necessary to hear the request or protest, and how long it may take to issue a decision (usually no later than ten days after the hearing).
   
   
2. A notice is sent to all owners detailing the procedure by which architectural approval and variances, and protests as described above, will be processed. The notice should also include the option to appeal to the full board of directors if an owner disagrees with the Review Board's decision.
   
   
3. The appeal process should detail a specific number of days in which the owner may appeal a decision. Thirty days is typically an appropriate length of time.
   
   
4. If an owner disagrees with the board's appellate decision, then his or her recourse may be a local dispute resolution center or the court system, depending on your jurisdiction.

Trying to resolve disputes internally, keeping homeowner issues out of the courts, is certainly preferable to the time and cost associated with litigation. I applaud your efforts to find reasonable means to address homeowner disagreements with the association.

Sincerely,

Margey

I have a condo at ********, Texas. I cannot get a map, plat, plan or whatever names it may appear, describing the real properties and boundaries. Also, my by-laws and declaration also show 2 tennis courts on them. We allowed the next-door condo regime to destroy one and one is pending repair. I along with numerous owners complained, but they said that they were not our tennis courts. They will not re-map or resurvey our land to protect it or to find out if the tennis courts are truly ours. What can we do? The condo regime is ********** Homeowners Association in ******, Texas.

- David

In Texas, before the first unit is sold, plats must be recorded at the courthouse located in the county in which the community is located. Try asking the county clerk, a title company representative or a Realtor for assistance in locating the plat for your condominium association.

With regard to your tennis courts, I recommend that you engage the services of a competent real estate attorney knowledgeable in community association law. The attorney can help both your and your neighboring condominium associations resolve the question of ownership and maintenance of the two courts.

Sincerely,

Margey

Could you please tell me how often association meetings should occur and how often a newsletter should be sent? Should the residents have the phone numbers of their neighbors? Should the residents be made aware of thefts, etc. in the neighborhood? Should the residents be made aware of someone who is overdue on 3 or 4 monthly assessments? At what level of past due monies should there be proceedings to foreclose on the property? Within the past year, our association has lost over $5,000 on one neighbor and about $1,200 on another. Our dues are in the $175 per month range. Before our board did anything, the owners declared bankrupcy and we got nothing. All this information was kept secret by the management company and the board of directors. When confronted, they admitted it was true. I would be most grateful if you could answer these questions.

- Dixie L.

So many questions! I figured the best way to respond is in the same order they're asked, so here goes:

Your homeowner association's governing documents (probably the Bylaws) should contain specific provisions addressing the frequency, times and dates for your membership meetings. In addition, there may be state statutes that also contain mandates regarding meetings. If you're unsure how to access your state's statutes, go to Association Times State Resources page and click on your state.

Newsletters are excellent means of communications for the board of directors. However, there's only so much that small group of volunteers can do in their spare time. If your directors have no extra time to prepare newsletters, perhaps they can create a committee of interested owners who can produce, with board editorial authority, brief quarterly newsletters to keep the owners updated on board decisions and upcoming events.

Some owners do not want their names published in a community directory, fearing that the book will fall into the hands of a telemarketer or other inappropriate person. The board must protect the privacy of the owners with regard to information submitted to it in confidence.

Alerting residents to area crime is a good idea but not a requirement of the board. Again, it goes back to available time. If a homeowner can volunteer to stay on top of crime alerts, all the better.

Owners should absolutely NOT be advised of neighbors who are delinquent in maintenance fees! There are too many federal and state laws that protect the owner from such public disclosure.

Please see Association Times' Ask the Expert Archives for a lengthy treatise on an appropriate assessment collection policy.

Until a few days ago, homeowner associations were hamstrung in their efforts to collect assessments that came due after an owner filed for Chapter 11 or 13 bankruptcy (Chapter 7 is dissolution of all assets with little chance of collecting any funds at all). However, both the Senate and the House have passed the Bankruptcy Reform Act which is now awaiting President Bush's signature. This Act provides clear authority to homeowner associations to pursue post-petition delinquencies, including the ability to foreclose if the debtor-owner fails to pay maintenance fees.

The board and management company acted appropriately by not alerting the membership about the bankruptcy filings and the efforts to collect the delinquency. However, they should have immediately referred both bankruptcy notices to the association's legal counsel in order to have a proof of claim filed on their behalf. Bankruptcy laws, which affect both pre- and post-petition actions, are very specific and can be confusing to homeowners who are serving on their association boards without any training in their board member roles.

It sounds like you are not pleased with the actions and decisions of your board. I encourage you to be more tolerant and supportive of your volunteer leaders, considering their commitment of time and resources to act in the best interests of your community. However, if you have reached the point in which you can no longer support your board members, perhaps it's time for you to volunteer your services, garnering votes from like-minded neighbors.

Sincerely,

Margey

I am a member of the Architectural Control Committee and we are looking for some info.  Do any kind of guidelines exist that realtors or appraisers might use when they are evaluating a property or neighborhood that lists what kind of additions should be avoided to keep the property value of a house or neighborhood from decreasing?

- Natasha

I went to my favorite search engine, Google, and entered "protect property values" in the search field. I'm sure that not all 70,001 results address your question, but it appeared that many of the first 100 hits included good information that would answer your question.

You might also try talking directly with a local Realtor, Appraiser, or their respective local organization (the Board/Association of Realtors or property appraiser association) in your area, as well as the property taxing district/authority which establishes market values for tax purposes.

Sincerely,

Margey

Our Homeowners Association has taken responsibility from the developer for management of our 700 lot planned community two years ago. We have collected every record of meetings, transactions, changes to guidelines, financial records, personnel records, etc. in file cabinets that are now approaching the bursting point.

Where can I find guidelines for an appropriate record retention system that provides for (a) the classification of different types of records, and (b) retention time for each class of record.

Our North Carolina State General Statutes for homeowners associations (NCGS
47F) only sets requirements for financial records, and there must be other bases or criteria we should use...

- BJ

The Community Associations Institute offers a publication entitled "The Board Secretary" which contains a chart of the typical retention periods for the records of a community association. You can access this book by going to CAI's electronic Bookstore, then click on Bookstore and enter "Secretary" (without the quotation marks) in the search field.

Sincerely,

Margey

What is a resolution book? Is this something the BOD should be keeping. I saw reference to a question on your site. Would this include if something is replaced in a unit and paid for by the Association?

- Julie

For a detailed explanation of a Resolution Book, please refer to the March Archives of Ask the Expert.

Sincerely,

Margey

Top | Board of Directors | Communications | Finances | General
Insurance | Legal | Maintenance | Management | Rules

Polybutylene Piping: I have contacted everyone that I can think of (the claims company set up as a result of the lawsuit, consumer affairs) and have come to the conclusion that I may have to pay for the leaky piping out of pocket. What verbiage should I look for in the master policy (association) indicating coverage? If the association / management company did nothing to replace / repair piping can they be negligent (what would negligence constitute?) Should I be able to file a claim with them? I have had one rupture already so your expeditious response is appreciated.

- Geoffrey M.

In the association's master insurance policy should be sections entitled "Coverage" as well as "Exclusions". In addition, there are usually provisions in the association's governing documents (usually the Condominium Declaration) which detail the insurance coverages the association must purchase and what components that insurance must cover. Between these two documents, you should be able to determine the coverages your association is obligated to provide.

Determining negligence is a matter for a court of law. However, I highly recommend that you obtain your own personal property and liability insurance to protect yourself against potential pipe leaks or breaks in the future. All homeowners, no matter what kind of home they live in, should obtain adequate personal insurance to protect them against damage to or loss of personal property as well as injury to others.

Sincerely,

Margey

To Whom It May Concern:

I represent an International Developer and we are beginning a project to construct 639 homes in Robinsonville, MS. I am looking for referrals of attorney's to assist in the creation of the CC&Rs and management companies to handle the association management. Could you possibly refer anyone for these responsibilities from the state of Mississippi? If not, perhaps you could point me in the right direction for where to find these resources. I have not had tremendous luck searching on the internet. Regards.

- Clinton H.

The Community Associations Institute (CAI) is a national research and education organization that focuses on fostering successful community associations. I contacted CAI for names of member attorneys and managers in Mississippi, but they were able to report back to me with only one reference:

Mr. Ted S. Orkin
Orkin Property Management, LLC.
PO Box 14001
Jackson, MS 39236-4001
601-957-3001 (phone)
601-957-3075 (fax)

However, there is a very large, active CAI chapter in Atlanta whose members include several nationally-recognized attorneys. You can access the chapter through its Executive Director, Ms. Julie Jackson, as follows:

Julie Jackson
Georgia Chapter
PO Box 2943
Peachtree City, GA 30269
Phone: 770-736-7233
Fax: 770-736-7232
E-mail: juliejackson@earthlink.net
Web URL: http://www.cai-georgia.org

I congratulate you and your client on both undertaking the development of your community and your commitment to structuring and managing the homeowners association in the appropriate manner.

Sincerely,

Margey

I own a condominium in Fort Worth, Texas. The Board of Directors has hired 3 different attorneys to try to change the bylaws so that the Association won't have to pay for the common area as stated in the bylaws. I need to talk to someone who knows if the Board can just vote on issues that are in the Associations best interest without even letting the Owners know what is going on.

Also, the Association will not let me get financial copies of what we are paying out in expenses each month. I need some help. Thank you.

- Cynthia C.

In Texas under certain circumstances, the board is authorized to amend the Bylaws. However, the Condominium Declaration is usually the document that contains requirements regarding maintenance responsibility, and amending the Declaration is a much more involved process. Check your Declaration's provisions regarding the amendment process to determine exactly what is necessary -- it may require approval of a certain number or percentage of mortgage companies, not just owners, to change maintenance responsibilities for common elements.

With regard to releasing financial information, the Texas Uniform Condominium Act mandates the release of that information to owners upon request. To review the Act, go to our State Resources page and click on "Texas". Your Declaration and Bylaws may also contain provisions requiring the board to allow owners to view the records during regular business hours.

Sincerely,

Margey

We moved into and closed on our new home in July 2004. When we purchased the home, we worked with the builder on completion of the home. The driveway was not poured yet and so we asked him to extend the driveway because we had a travel trailer that we would be putting there part of the year. He extended it for us and charged us extra. We also had a black vinyl fence put in the backyard at our own expense.

Three months after possession of our home a woman came to the door and asked me to sign covenants for the subdivision. I asked her who she was and she told me that she had owned all the land and had covenants in place for this particular subdivision since February of 2004 and she needed me to sign them. I read them and found that we could not have a travel trailer on the property and we could not have a fence like the one that we have. She came back and asked me for the signed papers a week or so later and I told her that we would not sign them because had we known about these covenants we would have never purchased the home. I did not hear from her again until we moved our travel trailer and brought our boat in to detail it before going on vacation. Her attorney has sent us a notice to comply with the covenants or action will be taken against us. My question is, if we had no idea of these covenants and the builder never told us about them and the selling agent never told us about them and we never signed them are we legally obligated to abide by them?

- Lisa G.

Without additional information, it's difficult for me to give you a thorough response. However, assuming that the covenants were properly recorded prior to your purchasing your home, it's possible that they are valid and you must comply with them. Although you may not have been aware of their existence, the fact that they were recorded is considered public notice. Before you closed on your home, the escrow company, title company or attorney should have conducted a title search which would have revealed the covenants. Also, if you are in a state that requires disclosure statements from the seller and the homeowners association, the covenants should have been included in those reports. To find out your state's requirements regarding disclosure statements or resale certificates, go to our State Resources page and click on your state's statutes.

On the other hand, if the covenants were not recorded prior to the purchase of your home, you may not be obligated to comply with them. Either way, it looks like you need the services of a competent real estate attorney knowledgeable in community association law to help you communicate with the association regarding this issue.

Sincerely,

Margey

Is it legal - in the State of Missouri - for the Homeowners Association to mail a list to the entire subdivision of who has not paid their association fees? Also, can you withhold payment of your fees, if you have requested to view the financial records of the assocation and that request has been denied or gone unanswered?

- Perplexed

Federal and state privacy laws, along with case law and plain old common sense, do not authorize posting the names of delinquent owners. In fact, boards of directors are encouraged specifically not to release the delinquency report to the homeowners even though, in general, the books and records are open to the members of a community association.

Your governing documents, and perhaps state statute, address a homeowner's recourse if he or she feels the board is not complying with those statutes or documents. Typically, an owner may not withhold payments under any circumstances. However, your documents or statutes may provide for specific instances in which withholding payments are appropriate.

Sincerely,

Margey

I purchased my home approximately 4 yrs. ago. At that time, we were notified that the driveway encroached on our neighbors land. Previous owners did not change the driveway specs from original owner. We are the third family to occupy the home. I believe the builder is actually responsible. Now, the neighbor wants us to remove the 10 foot section that encroaches. We were advised when we bought the home not to touch the driveway on the neighbors' land. If he wanted it removed because it was his property, he would need to remove the driveway himself. We just received a letter from our neighbor stating he filed a conditional ingress/egress license. I do not even know what a conditional license is. My husband and I were never advised. He states this license allows us to use the driveway as long as we are primary residence. Our neighbor states, now that we have put our home up for sale, we must remove the driveway. We have 45 days to remove and resod something we were not a part of in the first place. We have an estoppel agreement stating everything was in order with our purchase. There were no outstanding issues.

What are we legally responsible for doing with the driveway. Even reading our covenants we should not be denied the use of our driveway. Based on how the builder distributed land plots it almost becomes necessary to have this small 10 ft. section to pull in and out of our driveway.

The neighbor is getting to the point of harrasment and I want to put this issue to rest the best way possible without any out of pocket expense to my family. What do I need to do???

- Deborah P.

The issue regarding your driveway encroachment is beyond the scope of our Ask the Expert service, which focuses on community association operational issues. I urge you to consult with a competent attorney knowledgeable in real estate law and mediation to help you resolve this matter.

Sincerely,

Margey

I'm president of an association in Florida. We have nothing in our by laws about giving out a list of homeowners either present or living out of state but i understand that the owners living out of state we can not give out because its a state privacy act. Is this true? I understand that we can only give out a phone list of people actually living here.

- Steve

Florida law prohibits me from offering you legal advice, but I can certainly encourage you to read your governing documents and Florida statutes (if you're unsure how to access the statutes, go to Association Times State Resources page and click on Florida). The answer to your question can probably be found in one or the other resource.

Typically, community association members have access to records of the association including names and physical addresses, and perhaps mailing addresses, of all other members. These records may not be shared with nonmembers, and usually phone numbers are not included in the disclosure. However, I recommend that you consult with a competent Florida attorney knowledgeable in community association law to ensure that your association is in compliance with all governing laws.

Sincerely,

Margey

My homeowners association has brought a lawsuit against me for failure to reseal my driveway after repeated warnings. Several of the board members have blemishes on their properties that make mine pale in comparison, including the president himself who has a severely damaged and dirty roof to his own home. Is there any "Selective Enforcement" type case laws on the books where property owners have successfully defended themselves or counter sued for such prejudice?

- John F.

Please refer to the Ask the Expert Archives at www.associationtimes.com for information regarding a board's obligation to uniformly enforce their association's governing documents. There is also an explanation of each board member's fiduciary responsibility to the members of the association.

Sincerely,

Margey

Top | Board of Directors | Communications | Finances | General
Insurance | Legal | Maintenance | Management | Rules

I am the president of a small HOA in ******** County. Our HOA was established in 1938 in the village of ******** and is made up of about 214 homes and 80 undeveloped lots. We have 5 common properties preserved for the community including 2 small lakes, a large field, a beach area, and a wooded park. We have been presented with an issue that is slowly ripping our community apart. The NY DEC has rated one of our earth dams a high risk and has told us we need to address the issues or possible drain the lake.

We have invested about $40,000 into engineering costs and trying to find a resolution that will allow the repair and preserve the lake. The initial proposal came back at $450,000 dollars, but it is slowly being reduced by revising the plan. Even if we can get the amount cut in half it is still going to be hard to get the home owners to agree to cover the bill for the repair.

One of the issues we have identified is access to the lake, many of the home owners state they do not use the lake due to the limited access. The lake is at the back of the property and most of the property around the lake is privately owned. Behind the Lake is the ******** and ********. There is one undeveloped piece of land the borders about a 1/3 of the lake, the property is owned by a lady from town and she has not been able to develop the property for about 15 years for many reasons. We have considered approaching her and asking if she would be willing to sell the property to the HOA to be made into a small public park for picnicking and fishing.

To wrap up the story we were wondering if you knew of any groups than would be able to help us with loans or grants for this type of issues. We are a Not-For-Profit HOA and the land would be deeded to the HOA common properties if purchased. If the HOA is dissolved all of the common properties are donated to the village of ********. Any help or direction would be appreciated. Thank You.

- Troy D.

Your community sounds beautiful and the lake seems to add to both your members's property values and enjoyment of the area. I'm not aware of any grants that may be available -- you could try some Google searches for that. However, I can give you the names and websites for several national banks that specialize in community association loans. Perhaps of them can help you or at least provide you with other contacts or resources.

Community Association Banc
SmartStreet (First Capital Bank)
Kislak Bank

Good luck in your efforts to save your lake.

Sincerely,

Margey

Our neighborhood has a white picket fence through out much of the neighborhood.  HOA takes care of this fence... my question is... if there are sections of it that have termites... can the HOA be sued?

- Michelle

Since the HOA is responsible for maintaining the fence, it may also be responsible for treating it for termites or replacing the damaged sections. To determine if the homeowner whose fence has termites can be held financially responsible for the damage, check your governing documents for provisions describing homeowner maintenance responsibility.

If your association's governing documents as well as your state statutes are silent or unclear regarding this issue and do not unambiguously establish the association as the responsible party under all circumstances, your board could consider crafting a resolution detailing that the owner is responsible for preventing termites and can be held financially liable for ensuring repairs.

Before approving such a resolution, however, I urge you to consult with a competent attorney knowledgeable in community association law. There may be some subtle nuances in your documents or state statutes that already govern the situation you describe.

Sincerely,

Margey

The CC&Rs state the homeowner is to maintain and repair interior walls in the unit (exclusive use). The CC&Rs also say the association is to maintain and repair the common area. I have water intrusion (rain) damage to my living room wall as a result of a common area roof leak (wear and tear and faulty construction - states a building consultant that inspected the property). Who pays for and repairs the damage to my living room wall - homeowner or homeowner association?

- John E.

Typically, the association is not responsible for interior damage caused by common elements unless 1) the association was negligent in responding timely to a report of impending damage, or 2) there is a specific provision in the association's governing documents that require the association to repair all interior damage caused by common element failure. In addition, the association is not a guarantor of the original construction of the buildings and units, so it is not automatically responsible for damage resulting from a construction defect.

That said, some state statutes impose repair responsibility on the association no matter the origination. To determine if your state has such requirements, go to Association Times' State Resources page, then click on your state.

Sincerely,

Margey

There is an issue about the possibility someone having mold in their unit. Is the association or the person who owns the unit responsible for paying to have someone come out and determine if the mold is harmful and needs to be removed?

- Isabella

The issue of mold in a condominium unit can be very complicated. The responsibility for determining the type of mold and maintenance obligation for its removal depends on:

1. Your association's governing documents;
   
   
2. State law
   
   
3. Your association's insurance policy
   
   
4. The unit owner's personal insurance policy

Each of the above entities may contain language that specifically addresses the issue of mold or generally discusses the unit owners' and/or the association's maintenance responsibilities.

The critical issue is to address the matter timely and not allow the mold to continue to grow, especially if it is toxic. In a condominium community, neighboring units may quickly be affected by mold growing in a single unit, so the board should quickly determine responsibility so that, if necessary, remediation can commence before additional damage and expense are incurred.

Sincerely,

Margey

I live in a brand new building with a newly elected condo board. This condo board made the decision that the management company brought on by the builder was corrupt, so they decided to change companies. As it turns out, a couple on the board (married, but do not live in the building as they lease their unit to their niece) supposedly own a management company (we cannot find evidence that they manage any other properties). They convinced the other board members that they could provide services far superior to any other management company in the area, and thus they were hired as the management company. The husband remains on the board as the Treasurer and the wife stepped down in order to maintain her management company duties. My husband and I (and many others in the building) have expressed our alarm that this is a blatant conflict of interest. How can the management company also serve as Treasurer on the Board of Directors of the Condo Association? Adding to our concern, all condo fees were raised by 30 percent since this new management company was hired, yet no one--not even board members--have seen a budget despite repeated requests. The president and secretary of the condo association are our friends and as such we have spoken in confidence with them about our concerns. They remain steadfast that they made the appropriate decision in hiring the management company and insist that this couple does an excellent job and they do not see the conflict of interest that we see. Other members on the condo board have indicated however that this couple is abrasive, verbally abusive, and manipulative. Please advise.

- N.

Serving as a homeowner board member treasurer and manager of a community association simultaneously can certainly be considered a conflict of interest. However, since the board is not only aware of but has indicated approval of the conflict by contracting with the owner, they have assumed responsibility for any repercussions.

The board is a fiduciary agent to the owners, entrusted with ensuring that the assets of the association are adequately protected. Not receiving timely financial reports can even impose more liability on the board should they eventually determine that the association's funds were spent inappropriately.

My suggestion would be for the board to appoint an ad hoc Management Search Committee to assist in crafting a request for proposal (RFP) containing specifications expected of the management company. Invite the current manager to bid, but also ask reputable, professional management companies specializing in community associations to bid as well. The bids should go to the Committee, not to the board since the treasurer is the manager's spouse. The Committee's responsibility would be to:

1. Prepare the request for proposal including the specifications with the help of the board,
   
   
2. Determine qualification criteria of the bidders,
   
   
3. Identify the companies to receive the RFP,
   
   
4. Distribute the RFP to the potential bidders,
   
   
5. Receive the proposals
   
   
6. Review the proposals and create a matrix comparing similarities and differences,
   
   
7. Make a recommendation to the board.

By removing the critical management evaluation process from the board to a less emotional, more impartial group of owners, all owners will benefit from the Committee's due diligence and effort to determine the best management company for your community. It might even be the one you already have -- but the Committee's open and rational approach will ensure that all issues are logically considered in determining their recommendation.

Sincerely,

Margey

During the last hurricane there was damage done to the shoreline behind two buildings. The lake is owned by the master association which has no way to lower the lake during storms as the lake is part of a storm water management system. The condo association maintains that the cost to replace the shoreline should be paid by the master association who owns the lake. I feel the individual associations along the lake should pay for damage to their property. Attorneys are looking at this issue. Whats your experience in matters like this?

- Joe

In the association's governing documents, there are usually provisions which detail the areas of association responsibility. In addition, your association's plat map or subdivision plan would outline the property boundaries and common area responsibilities.

Another aspect to consider is the coverage detailed in both the master's and condominium's insurance policies. The contracts should specify what land areas are covered and, therefore, what the insurance provider will agree to pay for in the event of a loss.

Having your legal representative involved in this issue is the appropriate recourse for you, since it appears that there is a dispute over reconstruction responsibility.

Sincerely,

Patti

- Patti Jo Lewis, AMS®, CMCA®, PCAM®

We live in a 100 home neighborhood with a homeowners' association. We have an architectural committee that approves any and all changes to the exterior of one's home. We have requested to install new garage doors, with windows. There are already two homes in our neighborhood with windowed garage doors, approved by the association. They have denied our request however. We feel strongly that with the previous approvals there is precedent and we really want to go forward with our plan. Does the fact that this was approved for other homeowners give us precedent to go ahead with our plans? Thank you.

- Kristel G.

Just because the board has approved a certain style of door doesn't necessarily indicate that a precedence has been set. It's possible that the board granted a variance to the architectural restrictions because of a certain set of circumstances; if you have identical circumstances, then the board must grant your variance request as well.

Another possibility is that a previous board approved the two windowed garage doors, but subsequent boards decided that the windows were not acceptable. Consequently, the subsequent boards may have agreed to allow the windowed doors to remain until such time that they deteriorated to the point that replacement was necessary. Continuing on with this theory, the board could have voted to require that the deteriorated windowed doors be replaced only with solid doors with no windows, in effect "grandfathering" the existing windowed doors, prohibiting other owners from installing similar doors, and requiring that the owners of the two windowed doors replace the doors with solid ones when replacement became necessary.

As long as the board has documented in writing why they did not approve your request although similar doors already existed, ensuring that the same conditions did not exist or that no more windowed garage doors would be permitted, the directors are acting appropriately. However, if the directors have not explained to you why they denied your request, they should communicate those reasons to you so that you do not feel that they are selectively enforcing the governing documents.

As an inside, most law enforcement agencies recommend against windowed garage doors, advising that it is too easy for a thief to determine that no one is home because there are no vehicles in the garage.

Sincerely,

Margey

Our developer went out of business and now there is a financial company running the association for a union that owns the majority of the land. The problem is the financial company is working hard to sell off the land even it means breaking some of our by-laws. For example, there was just a house built that was under the minium sq. ft. requirements. This could obviously effect my home value. We asked our township to enfore the sq. ft. requirements, but they said it was outside of their jurisdiction. With the township being the legal entity approving home plans, does that seem right? Is our only choice to file a civil suit? Is there any way to forcefully take over an association from a successor developer? Also one other thing, the association corporation has been automatically dissolved with the state and the successor developer has not ammended the articles of incorporation. Is it safe to by our dues with the association in this state?

- Scott

Not knowing the state in which your community association is located nor being familiar with your governing documents, I hesitate to offer any answers to your questions. You and your neighbors certainly are in a precarious, evolving situation with regard to potential harm to your property values. I urge you to consult with a competent attorney knowledgeable in both community association and real estate law to guide you through the legal maze you're confronting.

Sincerely,

Margey

My parents purchased a home in a community that has a home owners association. The association's bylaws clearly states that dirt bikes and motorcycles are prohibited and their next door neighbor continually lets his children ride (their very loud) dirt bikes in this residential community. They have contacted the President of the HOA and have been told that there is "nothing she can do about it"... as it turns out... her son rides a dirt bike with the neighbors kids. This has been a real nightmare for them... what can they do?

- Terri C.

Board members are fiduciary agents of the community association, entrusted by the members to uphold all provisions of the governing documents -- not just the ones they agree with. Board members should also ensure that they set examples for the membership by strictly complying with all governing documents and local, federal and state law.

Your parents might consider writing each member of the board, requesting that the prohibition against dirt bikes be enforced. Include a copy of the page in the governing documents that clearly states that dirt bikes are prohibited. In the letter, your parents may also want to mention that if the board refuses to enforce the rule or restriction, your parents will submit a claim against them with the association's Directors and Officers (D & O) Liability Insurance policy. Because the board is willfully failing to enforce the documents, and especially because the president allows her son to blatantly violate the rules with his dirt bike, the D & O insurance representative may advise the board members that they will be personally responsible for their defense since their misconduct is not covered by the policy.

On the other hand, if enough homeowners agree that dirt bikes should be permitted, they may have enough votes to call a special meeting to amend the governing documents to permit dirt bikes. The board could initiate the amendment process as well. The actual amendment procedure should be found in the document in which the dirt bike prohibition language is located.

Sincerely,

Margey

Hi my question is in regards to CC&Rs. A friend is selling a unit in our 36 unit condo complex in California. The Realtor said that someone was interested in buying the (1 bedroom) unit for herself, her husband and 2 small children. I am on the Board of Directors and I informed the Realtor that our CC&Rs states that there shall be NO MORE than 2 persons per bedroom in any one unit. She is claming that it is against the law to tell an owner how many people can have live in a unit and that it would not hold up in court even though the CC&Rs states that. Is this true? Can someone buying a 1 bedroom have as many people live it in that they wish though its against our CC&Rs and By-Laws? Any help you can provide would be greatly appreciated.

- Annie

According to Ms. Cherie McColley, CCAM, Vice President Management Services of N. N. Jaeschke, Inc., an Associa member company located in San Diego (cherim@nnj.com), federal and state law, local city code and your governing documents can all impact possible answers to your question. In certain situations it is indeed legal to restrict occupants to two per bedroom, while other formulas address the number of occupants based on the square footage of the unit. Still other government entities may forbid any limitation on occupancy.

I encourage you to consult with a competent local attorney knowledgeable in both community association regulations as well as federal, state and local law in order to ensure the veracity of your response to your selling owner regarding his/her Realtor's comments.

Sincerely,

Margey

I live in a condo complex, and am getting ready to place my unit on the market. My neighbor recently had some work done in her bathroom, and relocated all of her pipes to inside the adjoining wall that we share, as a result I can now tell when she leaves her home without showering for the day! Her shower and bath are extremely noisy, to the point everytime she takes a shower I can hear it from clear across the condo, from my bedroom..I think her contractors did not insulate the pipes in the wall. I have approached her a number of times about this, and asked the housing association to resolve this issue, but nothing is being done. I am not a light sleeper, but everytime she showers it wakes me up out of a deep sleep.

- Pat

I can imagine how disconcerting the noise must be from the neighboring unit! To determine what your recourses might be, first carefully read your association's governing documents with specific emphasis on the Condominium Declaration. There may be a provision that prohibits any changes or alternations to a unit that may impact neighboring units, or that requires prior board approval and all necessary municipal permits before commencing the work.

The next step is to review your state statutes to determine if the Condominium Act contains limitations on unit alternations. Unsure how to access the Act? Go back to Association Times' State Resources page and click on your state. If after reviewing these two documents you determine that the board is obligated to get involved in this matter, copy the relevant pages, highlight the appropriate provisions, and submit them to your board with a cover letter requesting immediate action.

Since neither your neighbor nor your board appears to be concerned about your situation, and if your board does not respond to your letter, you might consider involving the permitting department of your local municipality. Your neighbor may have violated city code by installing the pipes in the manner you described; the quickest route to resolution may be through your local governmental resources.

Sincerely,

Margey

I am an owner of condominium in NYC. I have rented my unit for over 20 years. Currently the unit is being renovated (new kitchen, bath, carpet, tile and paint) I have received over $1300 in fines from the BOM for working on weekends and making noise with power tools. After receiving my first $100 fine for working on a Saturday I took days off from work to make repairs during the week. After taking off 6 days from work and getting additional fines for using power tools I am still getting fines. Fines increase exponentially after the first offense. The issue is ther the only by law or house rule states that "No homeowner shall be subjected to continous noise between the hours of 10:00PM and 7:00AM) There is no policy or rule about weekends. I am continually harassed by the BOM because the project has taken three monthe to complete. I am trying to understand my legal alternatives. Please help as the harassment is causing issues in my family.

- N.

I urge you to communicate with your board as quickly as possible to try to resolve this issue. The purpose of fines is to encourage compliance, and it appears that you may not be aware of all the rules of your community.

It's also possible that your governing documents -- either the Condominium Declaration/Master Deed or the Bylaws -- or state statutes detail a specific procedure that the board must follow before imposing a fine. Carefully read your documents to see if there is a procedure which requires notice and the opportunity to discuss the matter at a hearing before the board may charge the fine to your account. Then, go back to Association Times' State Resources page to check New York's statutes for similar language regarding condominium associations.

You've spent a lot of money on renovating your unit, and it's a shame to spend even more on fines that you don't understand. Initiate communications with your board to better understand their perspective, and read your documents and state statutes to determine your rights.

Sincerely,

Margey

We have a parking issue that needs to be resolved, or answered... Our community restricts parking in the driveway, for this reason we built a "motor court" with the belief that when all of our 3 garage bays are full, our children would be able to park in the motor court. Their cars are partially blocked by landscaping.

Unfortunately, this has become a targeted issue for our HOA, which has continually harassed us without mercy. There ONLY resolution is that our children park their cars somewhere outside of the community. This is our dream home and our children are approaching their mid 20's, naturally we want to have them with us as long as possible. More unfortunately, the HOA Board members, because of their power, feel that they can violate the By-Laws at will. I believe this to be selective harassment.

When paying nearly $30,000 in real-estate taxes, and minding our own business, you would think that we were entitled to some peace of mind.

Is this legal, what recourse do we have?

-Charles K. (Florida)

Your board of directors is obligated to enforce the governing documents of your community association. At the same time, owners are obligated to comply with those documents (a provision of which may require owners to obtain written board approval prior to constructing additions or alterations to the home). If enough owners believe that the deed restrictions are unfair and should be changed, there should be a provision in the document that details the process by which the owners can amend it.

For more information on parking issues and the board's duty to uniformly enforce the rules and deed restrictions of your association, please refer to Association Times' Ask the Expert Archives for the months of February and March 2005.

Sincerely,

Margey

Under the regime of 2004's Board (we are a 35 home Incorporated Not For Profit Organization in NY) a home was sold without the new party being introduced to the Board and explaining to them the CCRs, etc. of our particular community. Shame on the Board! We just found out that this new neighbor will not be moving into the HOA until April 2006. The property has a look of abandonment frankly. Our by laws stipulate a "minimum standard of appearance " that needs to be followed. What can we do as homeowners to protect ourselves? Many of us feel that the purchase was made by a speculator who had no interest in ever moving in and we have been given misinformation. Any help would be appreciated. Thanks.

- Doug S.

Although it is a good idea to provide all new members with an introduction to the Board and their new community association, there typically are no such requirements in an association's governing documents. The new owners should have been provided a copy of the association's governing documents either through the seller's realtor as part of a disclosure package, or by their closing agent as part of the title search. Most of the governing documents of an association are public records, and readily available to anyone contemplating a major purchase such as buying a home. It is the responsibility of each new member of a community association to familiarize themselves with their rights, as well as their duties and obligations to their association.

Regardless of whether the member has built a home on their lot or has moved into the property, the member still must abide by the deed restrictions that exist within the association's governing documents. I suggest you review the Declaration (or Covenants, Conditions and Restrictions) or Bylaws (for some condominiums) to determine if the new members are complying with the restrictions to keep their lot clean. Please note that Board of Directors typically do not have the authority to enforce rules and regulations adopted by the Board concerning behavior on individual lots. Such authority can only be granted through the Declaration or, for some condominiums, the Bylaws. Next I would communicate with the new members in a friendly, non-threatening manner to inform them of the association's deed restrictions and to request their compliance. If there are no such restrictions in your governing documents, then I would still contact the new members and request their voluntary assistance to be good neighbors and help keep their new community looking nice.
Sincerely,

Patti

- Patti Jo Lewis, AMS®, CMCA®, PCAM®

I am on the board of my condo HOA in Texas. We are struggling with an issue, and we could use a little help. We have a 75/25 ratio of owner-occupied to non-owner-occupied. I can guess that this is due to the fact that owner-occupied will take better care of their units and therefore the community will have enjoy higher market values. Is there any other legal or financial reason for having a ratio (i.e., Mortgage companies giving different rates for rental properties vs. owner properties)? If we decided to adjust the ratio how low can we go with the owner occupied without incurring any negative impacts (i.e., 66/33)?

Lastly, if we are at the limit and an owner-occupied wishes to rent what should the HOA response be? Put them on a wait list that probably will take a long time to go through? What can the HOA do if he/she wishes to sell the same unit to an investor? Thanks.

- David in Texas

You ask some good questions regarding leasing restrictions in community associations. I encourage you to research Association Times' Ask the Expert Archives for indepth discussions regarding this issue.

With particular regard to your questions, I'm curious about the 75/25 leasing restriction. Is it detailed in your community's Condominium Declaration or Bylaws, promulgated by board resolution, or just a verbal understanding? If it's mandated in your governing documents, then your board must comply with the amendment provisions also found in that document.

If the restriction is a result of the board approving the limitation during a board meeting, then the first action to take is to determine if the governing documents authorize the board to make such decisions without homeowner or lender input. If the limitation was legitimately created by the board, then the board may be able to revise it using the same process.

Why have limitations on leasing? Some lenders believe that their loan is better protected when there is a large percentage of owners living in the property. While there are many communities that can validly assert that their renters take better care of their units and the common elements than some of the owners, lenders still like to see a high percentage of owner-occupied units.

What percentage is considered desirable? It depends on whom you ask. For example, Fannie Mae, which buys mortgages from lenders so that lenders have more money to loan, and the federal government's VA and FHA housing programs all have limitations on the number of owner-occupied homes that must exist in a community before these three entities will agree to fund or buy the loan. The minimum percentage varies by area, usually ranging between 60% and 70%, but there are also many exceptions.

If your community does indeed have a legally-imposed limit on rental units and you've reached that magic number, then subsequent owners wishing to rent their units must wait until a unit already considered a leased unit becomes owner-occupied, either through sale or the current owner moving back into his or her unit. In the alternative, depending on your governing documents and the wishes of the owners, you might consider imposing a limit on the length of time a unit may be leased before having to sell it. Or, perhaps requiring owners to live in their units for at least a year will reduce the number of investor rentals. However, all these options have serious legal implications, so I urge you to consult with an attorney before implementing any of them.

One more caveat to the cap on leased units. Be sure to clarify