Ask the Expert

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

I am part of the "Architectural Review Committee (ARC)" for our homeowners association.

My question is in regard to the ARC meetings in which we review homeowner applications for things such as decks, fences, etc.

We recently held one of our month meetings (which is held in a private residence) to review a packet of applications. Some homeowners (in good standing) came to the meeting but were refused entrance by the owner of the home who also happens to the the head of the ARC. It was stated that if they would have informed us in advance, we would have made arrangements for a bigger venue, but as this was a private home and lacked in space, they were not admitted.

Did we in any way break a Virginia (Metro DC) state law or statute in denying them access to this meeting? Thank you.

- Sam

Whether or not Virginia statutes require open board and committee meetings for community associations is secondary to doing the right thing. Holding secret meetings indicates that the board has something to hide, whether or not there's any truth in that perception. If a board member does not want homeowners in his or home, then find another venue where association members are welcome and will be comfortable.

To determine if Virginia requires open meetings for board and committee meetings, go back to our State Resources page.

Sincerely,

Margey

For the upcoming annual meeting, a nomination form was sent by our new management company to every homeowner regarding submitting names for two board positions.  In the new management company's form it stated that an owner could not run unless the owner was a "member in good standing" being defined as a homeowner of record, current in assessment payments and all other payments and not in violation of exisitng Rules and Regulations. However, The Illinois Condominium Property Act states that the sole qualification for service as a condo board member is to be an owner.  

In addition, our condo rules and regulations do have any restrictions for an owner to run.  I sent a letter to the board and the manager company stating these facts and also stated that all owners must be notified by the management company and/or the board of managers prior to the election that there is no legel impediment to prevent delinquent owners from seeking a board position.  The election was held and prior to the candidate speeches, I again made the statement that all owners were not fully informed as to who could run for the board position.  The management company and the attorney stated that it was not necessary to inform owners of that the "member in good standing rule" was not legal. Since owners were misinformed as to the nomination requirements, is the recent election valid?

Backgound info... The condo is located in Illinois, 33 unit. 9 owners and 4 board members were in attendance for this election. Two (2) proxies were given to the board members prior to the election.   The last election held did not have the "member in good standing" requirement and there were 28 owners present. Thank you for your time. 

- Rosemary

Community association board members must comply explicitly with the provisions of the governing documents, including those relating to the election of directors. Typically, unless the Bylaws or state statutes provide differently, a board may not impose stricter limitations on the right of homeowners to serve on the board of directors. It's possible that the management company used a template for the annual meeting notice, incorporating words from another association that did limit board participation to those owners who were members in good standing.

It would be difficult to prove a correlation between the number of homeowners who participated in this year's annual meeting and the number who attended previous meetings unless you were to poll every owner.  Instead of spending time on a survey, consider working with your board members to re-establish their credibility. It sounds like they could use help in understanding your association's governing documents, parliamentary procedure, their obligations and duties as board members and the role of the management company. The more support they receive from their neighbors, the better your board members can appropriately administer the operations of your association.

Sincerely,

Margey

Thank you so much for your time.  I have tried to work with the board.  Unfortunately, the board either doesn't read the declaration and bylaws and rules and regulations or they are ignoring them and I honestly don't know to do.  If an owner disagrees with the board, violations are imposed.  The board of managers do not conduct "due process" they have the association attorney write the violation letter and the owner is charged attorney fees.   If the owner questions the lack of "due process" , the attorney responds and charges another attorney fees which tend to add up to hundreds of dollars very quickly. It basically is a no win situation.  Thanks again, for your time. 

- Rosemary

Please use our keyword search option and enter "replace board". You'll see many answers in the Ask the Expert archives that address similar situations as yours.

Sincerely,

Margey

Electing Board of Directors through Proxies - I live in Texas and a few members of our association composed of 100 + members has been fighting a legal battle with our Board of Directors. To make a long story short, a few homeowners had a personality conflict with our President of the Association and decided to remove the entire Board. Proxies were obtained to have the meeting and supposedly to remove the Board. However, due to some technicalities of the proxies, they were not allowed to be used to remove the Board and the members at the meeting did not vote for the removal.

As a result, the homeowners hired an Attorney to represent them in removing the Board, as well as filing a lawsuit against the Association as a whole and individually the Secretary and President. The Association's insurance provided them with an Attorney. In lieu of going to court for a TI hearing, an agreement was made between the parties to hold a new meeting and put all seats up for elections. Proxies with 9 names on it were sent to the homeowners vying for 5 seats. One of the Plaintiff's in the lawsuit obtained 1/3 of the proxies and selected themself along with 4 other persons of their choice. Although the results were clear and the new people were voted for by proxy, the remaining Board of Directors refused to allow the proxies to be counted (again) and has decided to go to court to challenge the proxies.

My question is, although the terms are not up for the remaining Directors and the bylaws clearly states that nominations can only occur through a nominating committee appointed by the Board of Directors or from the floor at the annual meeting, even if the Directors agreed that they would put up their seats, can they still refuse to give up those seats when they were not voted for through proxies? Is it legal for them to blatantly disregard proxies to elect Board Members? Also, can something be done if the Judge order them to use those proxies and they still refuse to give up their seats on the Board?

- M.

It's unfortunate that the relationship between your board and your neighbors has deteriorated to the point that legal action was necessary. Legal counsel for the group challenging the board should be the ones to answer your questions, since many of the responses depend on the provisions in your association's Bylaws regarding removal of board members as well as on the judge's specific orders regarding the new elections.

Sincerely,

Margey

The president of our HOA has resigned, as VP  I am assuming that role.  I called a special meeting with secretary and treasurer to discuss/confirm a replacement VP; however, the secretary does not seem to want to acknowledge that the VP assumes the role.  How should we handle this?

There are no bylaws and I am using the Robert's Rules to establish some basic procedures, along with Florida Chapter 671 - corporations not for profit and Chapter 720. Thank you.

- Kathy

Without a set of Bylaws it is very difficult to determine how to administer the corporate affairs of your community association. I urge you to contact the Florida Condominium Ombudsman for specific measures to take to rectify the omission.

Sincerely,

Margey

The developer recently handed over the HOA to the homeowners.  At the annual meeting, the management company declared the 5 nominees for the board to be the new board without a vote.  I checked the deed restrictions and it does require the board to be elected - there are no exceptions. I wasn't thrilled with this - especially when it became clear that one of the newly appointment board members was highly litigious and is liable to bankrupt the HOA, but make the management company very wealthy.  What can I do as a homeowner to stop the management company and to have a real election for a board of directors?  Thank you!

- T.

You are correct in interpreting your association's Bylaws to state that even though there may be no contested positions, a formal election must still be held. However, it sounds like no one else stepped forward to volunteer his or her services and to challenge those litigious candidates.

I suggest that you submit to your management company and board members a copy of the relevant provisions in your deed restrictions regarding the conduct of an annual meeting. Ensure that you are not confrontational but rather reasonable and willing to help reverse the oversight by working together to prepare for another meeting at which valid elections are conducted. If your effort is unsuccessful, you could notify the association's Directors and Officers Liability Insurance agent of the board's oversight.

Since the outcome of the elections will be identical unless more of association membership -- including yourself -- offer to serve on the board, consider inviting the homeowners to a "meet and greet" gathering which will accomplish two purposes -- getting acquainted with your neighbors and educating them about the need to participate in their community association. I recommend that you encourage your board to support your efforts so that you foster a good working relationship between the homeowners and their leaders -- whoever they ultimately are.

Sincerely,

Margey

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I just received the budget for 2006. It has some of 2005 information included but there was one assessment for 150,000.00 that was approved in September of 2005 not showing anywhere on the budget for 2005.  Please advise why this would not be included in the 2005 budget when it was approved in 2005 and paid in full in 2005.  Thank you.

- Betty

The 2006 budget you received which contained 2005 financial information probably reflected only operating revenues and expenses. The $150,000 special assessment may have been intended for the replacement of a physical component that was included as a line item in the reserve budget. Typically, the reserve fund is a separate account subsidized through transfers from the operating account and which can be used only for the replacement of major capital components such as roofs, sidewalks, siding and boilers. Reserve fund expenditures are usually not included in an operating account budget. However, the board should provide the owners with a report of reserve fund activities so that a complete picture of the association's financial operations is presented.

Sincerely,

Margey

Our Missouri HOA has several home owners that refuse to pay annual and special assessments. We have sent multiple letters to each (for totals ranging from $75 to $800 and being as old as 2001). Aside from using the automatic lien as defined in our association rules, do we have any other low cost avenues for collecting? Small claims court was used pre-2000, however, the associated costs were more than the amounts collected. Our fees are used for road upkeep only, thus those not paying still enjoy the services provided.    

- Randy

Typically, the cost of collection efforts can be added to the debt of the delinquent owner instead of being absorbed by the association. Check your association's governing documents to determine if there is a provision assigning collection cost liability to owners who fail to timely remit assessments and fees.

Other than the relatively low-cost small claims court option, another alternative may be a collection agency which usually adds their fee to the amount to be collected from the debtor. Again, however, there must be a provision in the governing documents imposing responsibility for payment of collection costs to the owner.

I urge you to consult with an attorney regarding the ability to collect delinquencies older than two years. Your state may have a law limiting the right to collect a debt to the immediate past two years.

Sincerely,

Margey

Hi, Our community is small 150 homes. Our dues are $150 a year. The board has decided that any $150 payment not submitted by 1/31/05 (within 30 days) will be subject to a 10% late fee each month.  This late fee is accrued on the 15th of each month that payment is not received. I've checked the bylaws and there is nothing specific to this late fee. Is 10% excessive for each month? Or is there a state law that would tell me what the maximum amount could be legally charged?  I've tried the url's that you mentioned for specific state information but was not able to locate the answer to this question. Thank you in advance for any insight you could shed on the matter. Regards.

- Beverly

Your community association's documents may contain a provision authorizing the board to implement reasonable rules regarding the collection of assessments, including the imposition of late charges and penalties. Since the proposed 10% monthly late fee is a charge and not interest, it may not be covered under the usury laws. I suggest you talk with a competent attorney to determine if the charge could be considered legally excessive.

To learn more about collecting assessments in community associations, consider entering "collect assessments" in our keyword search field.

Sincerely,

Margey

I belong to a ******, IL homeowners association comprised of 18 lots/homeowners formed about 1985.  The lot/homeowners had a turnover of the Homeowner Association Board in 1989 from the developer and have been running the association ever since.  The Articles of Incorporation and Covenants under assessments, state "The Developer shall not be obligated for assessments on Lots owned by the Developer."  The developer is long gone but his son is a homeowner on one of the lots and was a partner with him in the development.  He has continued to own 3 of the lots and believes this statement allows him to own the lots and perpetually not have to pay homeowner assessments. 

My question is does the developer have the legal right to insert a statement in the articles of incorporation and convenants that immunes him from ever paying homeowners assessments as long as he owns the lots?  Not sure how the lots are actually deeded at this time. 

This is a friendly homeowners association and we are working together with the developers son to determine the right to continue to not pay assessments or to begin to pay assements and/or pay for back assessments that should have been paid at what date we do not know?

Thank you very much for your response.

- B.

According to Ms. Chris Evans, President of Vanguard Community Service, an Associa member company based in Schaumburg , Illinois, your association's Declaration should contain the answer to your question regarding the right of the developer's son to withhold maintenance fees. Typically, there are provisions which specifically address the rights of the developer during the period of time in which homes in the community are being constructed. Those provisions may say that after the development period -- which lasts perhaps five or so years -- the developer must pay the full amount of all assessments, or that the developer does not have to pay assessments on lots but does have to pay once a home is constructed.

From your question, it appears that the developer attempted to affect an exemption by inserting language in the Articles of Incorporation. However, if there are conflicts between the Declaration and the Articles, the provisions of the Declaration prevail. Therefore, if there is no mention in the Declaration of an exemption for the developer, his son may no longer be in a position to benefit from a free pass on maintenance fees.

If no conflict exists between the Declaration and the Articles, the next issue is whether the developer's son is considering himself a "successor Declarant" because the units were never actually sold to him but, rather, remain in the developer's name. You may need to consult with an attorney to determine if the son should benefit from governing document provisions that protected the developer.

To ensure that you receive an appropriate answer to your question (which could be very specific to your association's governing documents), consider retaining the services of a competent attorney knowledgeable in community association law to guide you through what can be a confusing set of circumstances.

Sincerely,

Margey

I recently bought a single-family home in a neighborhood that is divided in the front by town-home owners and the back by single-family homes. We recently received a $50 per month special assessment that will benefit the town-home owners but not the single-family owners. Is this fair to place such an assessment on the whole community when it will not benefit the single-family homes? I must point out that all the members on the board live in the town-homes. If bias is in place here, how do I go about refusing this $600 a year payment?

- H.

The governing document for your association should contain a provision detailing maintenance and special assessment allocation among the townhome and single family homeowners (some governing documents do provide the ability to assess only a portion of the affected units within the community). By signing the deed to your home, you agreed to comply with those governing documents. If the documents state that maintenance fees and special assessments should be apportioned equally among all owners, then your board of directors has no alternative except to bill each owner the same amount, regardless of whether the funds impact part or all of the community. In effect, all owners, whether they live in the townhomes or in the single family homes, are financially responsible for maintenance of the common and limited common elements as defined in the governing documents.

Sincerely,

Margey

Thank you for your kind reply. (See earlier question) But what is my recourse to address this? Hire a lawyer and take it to court? Is there no other way? The HOA is self-managed and doesn't even have a reserve study done or put part of the HOA fees into a reserve fund!

- C.

According to Mr. Michael Packard, PCAM, CPM, CCAM, President of N. N. Jaeschke, as Associa member company in San Diego, your recourse could be to bring these concerns to the Board at their next regularly scheduled meeting. If that approach does not work, then follow the provisions in your association's Bylaws to call for a special meeting of the membership to discuss your concerns. Retaining counsel would be expensive; however, this approach would probably bring a quicker resolution as the Board appears to be violating their fiduciary duties to the community and is disinterested in rectifying their actions.

Sincerely,

Margey

My family has recently purchased a condo of which was previously a three family rental.  Prior to the purchase, it had been converted into a condominium and the other two units had been sold as such.  All three owners are officers of the association that had been previously established by the original owner of property.  My question relates to a possible future special assessment in order to install a new asphalt driveway.  It is my assumption that we will depreciate the cost of installing the new driveway over the useful life of the improvement, but I am unsure of how to deal with the situation if an owner decides to sell their unit.  I am aware that we are to refund their investment in the special assessment if they sell their unit before the funds have been used.  But, if the improvement is made and depreciated and an owner decides to sell his unit, do we refund the seller their investment portion minus any depreciation?  If so, do we charge the new buyer that amount?

My rationale is that the seller would not have taken full advantage of the improvement by selling his unit before the end of the useful life and therefore should be refunded the amount he put into the project and that the new buyer should in turn repay that same amount since it would now be at their disposal.  We are also buying various landscaping equipment that would also be depreciated, so this question applies to that as well.  I'm not sure if you can help me with this question, I was hoping to get a second opinion before contacting my lawyer on the matter.  Thanks.

- Elizabeth

Your association's governing documents probably contain a provision relating to payment of regular and special assessments. Typically, the current owner is responsible for the payment; if the home is sold before the assessment is paid in full, the current and future owners decide between themselves how to reconcile the remaining balance at closing.

The current owner benefited from the component during his or her stay in the condominium, and the component's useful life was reduced while the owner inhabited the home. That's why the board should be setting aside reserve funds from current assessment and fees to pay for future replacements of an association's physical components. After all, replacement of the component was necessitated because its useful life had expired.

Sincerely,

Margey

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My husband and I have lived in our home in the association for over 7 years... he is on the deed... I am not. I want to save my first time home buyers option. I was told by the previous board and by the people he refinanced with that I have homestead rights and am allowed to attend the meetings to keep current on what is going on. The new board has kicked me out sighting that I am not on the deed therefore I am not a homeowner. So IL State Law does not apply to the association? My Homestead rights are not allowed to be excercised by attending a meeting? IL State law says I have homestead rights, I have the right to know everything and have the right to access information regarding the house. I had to sign off on an acknowledgment form before my husband could refinance even though I am not on the deed or mortgage. But the association will not let me get payment records or attend meetings even though the payments are made with my checking account!

- Michele

A homeowners association is, by definition, an organization comprised by homeowners. Most governing documents for associations clearly state that one must be a record owner in order to participate in the association's operations.

Putting aside the legal definition of an owner, let's focus for a moment on the situation you describe. A reasonable board of directors should permit you to be a spectator at meetings, understanding that you are the spouse of an owner. However, the board is obligated not to allow you to be actively involved in your association's operations, to participate in meetings or to inspect records on your own because you're not a record owner. If your spouse formally appoints you as his agent, though, your documents may have a provision assigning you official status with regard to requesting records and participating in the operations of the association.

Regards,

Margey

Hi, we live in California in a 15 unit HOA. We have 1 problem homeowner who harrasses almost everybody here. She refuses to pay assessments and has filed numerous false police reports on people here. She does not abide by the rules and regs. Can we get together as an HOA and force her to sell?

- Jake

According to Mr. Mike Packard, PCAM, CPM, CCAM, President of N. N. Jaeschke Company (an Associa-member company based in San Diego), California law does not permit a homeowners association to evict an owner. However, Civil Codes 1836 and 1369.510 do permit a community association to pursue Alternative Dispute Resolution (ADR) to try to resolve the problem. If your board feels that the homeowner's behavior and actions are unacceptable despite all efforts to resolve her issues, it might be time to refer the matter to the association's legal counsel for advice and possible intervention.

With regard to the homeowner's failure to timely remit assessment fees, Mr. Packard urges your board to adopt a formal collection policy which would detail specific payment requirements beyond that which are listed in the Condominium Declaration as well as consequences for noncompliance. Please use the key word search function on Association Times to learn more about collecting association dues.

Sincerely,

Margey

I am the Covenants Committee Chair for a very large HOA in Northern Virginia.  We are having a great deal of difficulty tracking applications for exterior modifications and violations and responding in a timely fashion without items slipping thru the cracks.  We believe that a database to track these items as well as perhaps generate some of the letters and notices would be extremely helpful.  We assume that we aren't the only large HOA with this problem and there should be a solution(s) already created out there but we can't find any.  Before we create a database from scratch, can you point us to some resources?

Thank you in advance for your assistance and for the wonderful website.

- Kathleen

Many software companies specializing in community association operations are members of the Community Associations Institute. You can access CAI online, where you'll be able to locate contact information for the software providers.

Alternatively, you could contract with a community association management company for consulting services and access to their violation enforcement software. If this is a viable option for your association, consider contacting Ms. Lana Reynolds, President and CEO of Community Management Corporation in Fairfax, Virginia for more information about the "cafeteria plans" offered by well-established, reputable management companies.

Sincerely,

Margey

Our Board of Directors is still under the control of the developer.  We live in a gated community so the streets are private.  For the last three years we have asked the BOD for some form of speed enforcement.  Several of the affected homeowners have sent certified letters warning the BOD of how serious the problem is.

The BOD had a professional traffic survey done which documented speeding as high as 52 mph (on the 25 mph residential street).  The traffic study suggested Education, Enforcement and Engineering.  That was done 1.5 years ago and none of the suggestions has been implemented, not even the easiest, Education.

They have however created a safety committee which was created by a vote. Unfortunately the speeders are the majority and they stacked the committee with speeders.  In fact members of the chairperson's household have been documented speeding several times (47 mph).

The BOD has now painted a double yellow line down the center of the street. The traffic study clearly stated that this would INCREASE speeding.  The committee has decided the big problem is the parked cars on the street and the BOD is now going to create a no parking zone on the affected street. The president in the past has acknowledged at meetings that parked cars slow down traffic.

You would think we have made this up as illogical as their actions have been.  We and the other affected homeowners feel the BOD members are guilty of gross negligence and when someone's child is injured or killed they can be held financially responsible for their lack of efforts to control the well documented issue.  Any suggestions would be appreciated.

- David

Since any injury or loss of life resulting from speeding vehicles would not only be a tragedy but a liability issue as well, why not talk with your association's insurance agent about your concerns? If the agent concurs with you regarding the potential for protracted lawsuits, perhaps he or she will intervene by offering possible alternatives  to the developer-controlled board.

Sincerely,

Margey

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I am wanting to submit a change to one of our current covenants so it may be voted on at our annual meeting. My question is there a certain format or way to write this? Hope you can help or at least lead me in the right direction. I have looked for sample changes but found none.

- Jim

Instead of exposing your association and your members to potential litigation because of an improperly prepared amendment, I urge you to retain the services of a competent attorney knowledgeable in your state's community association laws to draft the document and ensure that the appropriate procedures are followed.

Sincerely,

Margey

The articles of incorporation for our assocation of 36 homes in Maryland was signed on April 19, 2004 and filed in the Department of Assessment and Taxation on April 21, 2004.  The articles do not bind any property to the assocation.

The Declaration of CC&Rs, which binds the properties, was signed on April 20, 2004 and not filed in the land records until May 12, 2004.

The first settlement of the community was April 22, 2004.  The deed was filed with land records on May 12, 2004.

Is it possible that since the declaration was not filed before the first settlement, that the three homes that settled before the filing date of the declaration are exempt from the HOA?

- Lisa

It is possible that the three owners who settled on their respective homes before the Declaration was filed are not subject to the Declaration unless your state statutes provide otherwise.  I urge you to consult with a competent attorney knowledgeable in both Maryland community association law and real estate law to provide legal advice regarding this issue.

Sincerely,

Margey

I am President of a new community HOA of over 400 homes that just recently got control from the developers.  Or problem is that deed restrictions were not really enforced and now we are not sure what the next step is legally.  We have one resident who has not paid HOA fee's in about four years, and we are considering foreclosing on their home.  We don't want to be the bad guys, but enough is enough.  What can we do legally other than put liens on a resident's home?

- T.

Since your board has not enforced your association's deed restrictions for quite a while, I urge you to retain the services of a competent attorney knowledgeable in community association law to help craft reasonable enforcement and assessment collection policies that can be implemented consistently and fairly. Community associations are nonprofit corporations in the truest sense of the word, and each owner must contribute his or her prorate portion of the common assessments and comply with the association's governing documents to ensure that the community is successfully operated and responsive to its residents.

Sincerely,

Margey 

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I've heard of a condo association in town that requires a mandatory chimney cleaning on a yearly basis as part of their rules/regs. Since the Association does not own the chimney, I am surprised that they can make this mandatory.  Some unit owners never use their fireplaces.  Could they impose the same rule regarding dryer vents?  Comments please!

- Jen

I personally think it's an excellent idea for condominium and townhome association boards to require owners to clean their chimneys and dryer vents annually. A fire in either of those components can quickly spread to neighboring units and cause massive damage and tragic loss of life.

If the association's governing documents authorize the board to pass such rules, good for the directors for tackling a difficult issue and practicing good risk control. With regard to those owners who do not use their respective chimneys or dryers, perhaps the board would modify the policy to require an inspection first to determine if cleaning is necessary.

Since the board requires annual chimney and dryer vent cleaning, I would hope that the directors have made arrangements with several local, qualified contractors to provide the service on a bulk rate basis to significantly reduce the cost to the residents.

Sincerely,

Margey

I previously had written to you regarding regarding my problem with my homeowners association management company. I live in Florida. Briefly, I asked you  how long it should take to repair a pothole.  It had been 6 weeks since I reported it to the management company. I took your advice and called the management company requesting a status on the repair. It has now been 3 months, the pothole is not repaired and the management company does not return my phone calls.  The Board of Directors refuses to list their phone numbers so I can't contact any board member. Meanwhile, the pothole keeps getting bigger and bigger and therefore the cost of repairs will be more. In addition, the pothole is an "accident waiting to happen". I am concerned about the liability to the association, which could be an additional cost. My question is, what recourse do I have?  Why should the association pay a bill to repair a "large" pothole, when the price should be for a "small" pothole. Doesn't the management company bear any responsibility?

- Barbara

Since contacting your management company has proved futile, I recommend you send a certified letter to each board member recounting the efforts you've made to alert your management company to the pothole and reiterating your request to have it repaired before it worsens.  In your letter, consider offering to serve on a maintenance committee or the board itself to help the directors comply with the mandates of the association's governing documents. You could even volunteer to serve as the management company liaison to ensure that communications improve between management and the homeowners.

Sincerely,

Margey

I just received your response to my question and thank you very much for valuable information. However, I am at wits end. Again,briefly, I am in a Florida HOA. It has been 4 months since I advised the management company about my pothole that is now VERY BIG.  You advised to send certified letters to the board members. However, I addressed the board members at a recent HOA meeting. Their response was to direct it to the property manager who said, "I get at least 10 calls per day". That was the end. I don't want to be a trouble maker, but I want this pothole repaired. This is a new board and a new management company and I think they lack knowledge. What can I do?

- Barbara

The State of Florida now has an Ombudsman to specifically address homeowners' concerns with regard to their respective community associations. Why not contact him at the Florida Ombudsman website?

Sincerely,

Margey

The co-op's documents only mention exterior doors, interior windows, and glass.  Windows are the owners responsibility and glass and windows are the Associations responsibility.  What would a sliding glass door (which opens to the patio) be considered?  Thanks.

- Alicia

If your association's governing documents are silent or ambiguous about maintenance responsibility for a specific component, and your state statutes don't address it either, then your board has the opportunity to craft a policy resolution assigning responsibility to either the owners or the association. The board should be sure to follow any relevant statutes that address the development of rules (some states and governing documents require notifying the membership before approving a rule or resolution).

Sincerely,

Margey

This is a condo etiquette question regarding "who pays": We live in an upstairs condo.  Our downstairs neighbor informed us that when we shower, a water spot is forming on the ceiling in his bathroom. He showed us the damp spot. We tried wrapping waterproof tape around the area of the pipe where the shower head pipe fits into the pipe in the wall.  The leak is still occuring.  Our neighbor has asked us to get a plumber to go into the wall to fix it. Is it appropriate to ask him to pay for a portion of the cost, or are we obligated to pay in full? There are no signs of water damage or leaking inside our condo.

- Lisa

The answer to your question should be found in your association's governing documents. Typically, the Condominium Declaration contains very specific provisions addressing maintenance responsibility for plumbing and electrical lines located within the walls between units. There are usually two options -- owners are responsible for all service and utility lines and pipes servicing their respective units no matter where the lines and pipes are located, or the association assumes responsibility for those lines and pipes located within the walls.

If your documents impose maintenance responsibility for the pipes and lines on the owners, then you would be obligated to fix the leak as well as any water damage incurred by your neighbor as a result of the leak. On the other hand, if the documents assign responsibility for the repair to the association, then the association would be obligated to fix the leak and any subsequent damage.

Here's one more consideration, though, for the cause of the leak. It is not unusual for water to drip around the tub onto the floor and then seep through the floor to the downstairs unit. Being more careful with the shower curtain or adjusting the shower head may solve the problem, as would installing shower doors to replace the curtain. If this situation is causing the leak, then you would be responsible for repairing the damage to your neighbor's ceiling -- your insurance policy may cover this type of damage.

Sincerely,

Margey

The Treasurer on the board of directors refuses to let the owners save $44,000 on the installation of the vinyl windows in all of the condo units. the company that will save us money has been in business the same amount of time as the company the board wants to hire.  Here are a couple sections from our CC&R's that looks like we do have some say on this type of issue:

11.5.6  To arrange for and supervise any additional or improvements to the property, subject to the following limitations:

(a)  If the estimated cost of any separate addition or improvement shall exceed the sum of $5,000, the approval of a majority of the unit owners shall be required; and if such expenditure shall exceed $50,000, the approval of not less than 75 percent of the unit owners shall be required.

The common areas and facilities consist of:
5.1  The land on which the buildings are situated (as described in Section 2 herein).

5.2  The foundations, columns, girders, beams, supports, main walls (excluding non-bearing interior partitions of the apartments) and roofs of the building. 

5.3  The elevators and elevator shafts, the stairs and stairways, all halls and corridors outside of the apartments, and entrances and exits to the buildings.

5.4  The yards, gardens, landscaped areas which surround the provide access to the buildings.

5.5  The walkways and driveways, including all parking spaces described in Section 7 which are not assigned to individual units and which are to be utilized for guest parking or other purposes.

5.6  The swimming pool and the room containing all the pool machinery.

5.7  The recreation room,  sauna, and two bathrooms on the first floor of Building 5816. 

5.8  The machinery rooms for the elevators.

5.9  All other parts of the property necessary or convenient to its existence, maintenance and safety, and normally in common use.

The board made it clear that the windows are a common area but that is not what it sounds like in the CC&R's.

I live in Washington State and what can the owners do to so we can save $44,000 on the install of the windows?

- Anne

If your association's governing documents or Washington state statutes do not mention maintenance responsibility for or ownership of the windows, and if those documents or state statutes authorize the board to make reasonable rules affecting the use of the common and limited common elements, then your board may be authorized to approve a policy resolution declaring that the association is responsible for maintenance and replacement of the windows. It might be wise to obtain an written opinion from a competent attorney knowledgeable in community association law to assure your board that they making the appropriate decision regarding the windows.

With regard to the cost variance, be sure that the two bids are exactly comparable by reviewing all the specifications and qualification sheets for each. Usually, such a discrepancy indicates not just a cheaper price but different quality or quantity of material and/or unanticipated labor requirements. If you prepare a comparative spread sheet of the two proposals and the one that is $44,000 less is equal to or better than the contract approved by the board, then I would think that your board members would be interested in learning more. Board members must also pay their prorated portion of the special assessment, so they have a personal incentive to ensure that every contract they approve provides the best service or material at the most advantageous price.

Sincerely,

Margey

Who is responsible for condo windows due to Hurricane Wilma? The condo or personal insurance? Thank you.

- Elizabeth

Your condominium association's governing documents should contain provisions detailing maintenance responsibility for the windows. Additionally, your association's insurance policy should state either: 1) that it will replace whatever the governing documents mandate are the association's responsibility, or 2) itemize what is excluded (typically, whatever is not excluded is covered).

A condominium association's insurance policy is usually primary, meaning that an owner would look first to the association's policy for payment of a covered loss. If both the association's and the owner's policies cover an identical item, in most situations the association's policy would pay for the loss.

Sincerely,

Margey

I am the Treasurer for a "road" association in Maine.  I live on a road within the Assocation with 3 additional dues paying members.  Article I of our Bylaws under "Purpose" state "...maintaining in a reasonable state of repair private ways...and any additional roadways constructed on the land shown on the said Plan..."  The builder who put the road in tried to get the Association to take over the road, but went about it the wrong way, and ended up in court where he lost due to inadequate representation.  I am asking the Board to revisit the issue, but since then, the Bylaws have been amended to require a majority vote to accep additional roads.  Aside from the legal question of whether or not it should be maintained by the Association, does my being on the BOD present a conflict of interest?  What would be the difference between my being included in discussions regarding this issue and other board members being included in discussions pertaining to the main road whi ch most of them live on?  FYI... my road is three-tenths of a mile long and the other association roads are a combined four miles in length.  Thank you for you time.

- Adam

Since you are a board member and have a financial interest in the decision the association makes with regard to maintenance of your road, I think it would be appropriate for the meeting minutes to reflect that the other homeowners acknowledge your personal involvement and they believe it is in the best interest of the association for you to participate in the discussion. It is also appropriate for you to vote on any motion to include your road in the association's maintenance responsibilities, since at least two of the other three homeowners must concur with your request in order for it to pass.

Sincerely,

Margey

What is the best way to find out WHO manages a subdivisions Home Owners Association??

- Terri

There are several methods to determine who manages a homeowners association:

1. Several states require associations to legally record a Management Certificate to formally publish contact information for the association. You can check your state statutes to determine if a Management Certificate is required; if it is, contact the appropriate agency or department to determine how to access the document.
   
   
2. Look by mail box clusters or a recreational facility for any bulletins or announcements which contain contact information for the association.
   
   
3. Ask a resident in the community.
   
   
4. Ask a Realtor who has a For Sale sign in the community.

Sincerely,

Margey

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Insurance | Legal | Maintenance | Management | Rules

We purchased a home in a HOA community just a little over three years ago.  The home came with a split rail fence all around the backyard. This year's HOA board has just delivered a letter saying it is in violation with the HOA covenants and I have to take it down with any replacement fence having to be approved by them.  Do I have to comply with their letter?  No past boards ever complained and as far as we know the home builder (who established the covenants) may have had the fence up in 1997 when the house was built.

- Larry

There are several issues that came to mind while trying to craft possible solutions to your fence issue:

1. Do you live in a state that requires every seller and community association to disclose all deed restriction violations to potential buyers?
   
   
2. Did the current board change the rules by banning split rail fences, or was that prohibition in place when you purchased your home?
   
   
3. If there is a state statute requiring disclosure of deed restriction violations, is there a  penalty or waiver of violation if it's not disclosed?
   
   
4. Is it possible to find photographs of your home when it was built in 1997 to determine if the fence was built during construction?

You can access your state's laws by through our State Resources page. Once you find answers to the above questions, I think you'll be able to determine your course of action.

Sincerely,

Margey

I own the condo in 6 unit association in **** County, Illinois. Complete ban on lease on units is proposed. If voted in, can it be challenged in court?  I am original owner, meaning I bought my condo from the developer. Is there a case law on point?

- Y.

According to Ms. Chris Evans, President of Vanguard Community Management (an Associa-member company located in Schaumburg, Illinois), your association may restrict leasing so long as the amendment process detailed in the Condominium Declaration was followed explicitly. To Ms. Evans' knowledge, there is no Illinois case law regarding this issue.

Please refer to previous responses and articles at Association Times regarding the subject of leasing restrictions in community associations. You can use the key word search field to facilitate your research.

Sincerely,

Margey

We have a dog that barks nonstop when the owners leave the house. We have been asking them over the last 8 months to please do something with the barking dog.  They still have not. How can I find out what the law is, what hours the dog can bark nonstop, or how late at night the dog can keep barking?  We are early risers (the neighbors of this dog) and it is unbearable. Thanks.

- Janis

According to Ms. Chris Evans, President of Vanguard Community Management, an Associa member company based in Schaumburg, Illinois, your homeowners association's governing documents may contain a provision regarding pets' barking, or perhaps more generally addressing nuisances within the community which the board has authority to control. Additionally, there may be municipal ordinances addressing nuisances and noise. To find your city's official website so you can research potential assistance, enter the name of your city in any Internet search engine.

Sincerely,

Margey

I own a condo in a covenanted community, which I have rented out to a very good tenant.  The CCR of this association (unknown to me at the time) states that only "owner occupied" units may have pets.  My tenant has a pet and now I am being fined, per month, for having a dog in the unit.  Is this proper?  Thank you!

- Robin

Being unaware of the rule prohibiting tenants from owning pets does not waive your obligation to comply with your association's governing documents. As long as your CC&Rs were properly recorded and filed, their content is considered public knowledge and no additional action is required by the board of directors to ensure that you understand all provisions. Your situation emphasizes the absolute need to read and comprehend all documents before committing to purchase a home in a community association.

Sincerely,

Margey

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