Ask the Expert

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

As a member of a newly created "Finance Committee" for a HOA in existence for about 2 yrs (PA), I would like some direction on what is perceived as the duties and responsibilities of a "Finance Committee" at this point in time (its onset), when the builder still runs the BOD, homes are still being built and the HOA only has 1 member of the community on the BOD. Secondly as we, the community, become more involved (as the builder begins to exit over time) we obviously take on more of a role with increasing responsibilities, then what should our duties and responsibilities encompass? We would like to develop a timeline to guide this newly formed committee as it progresses and to ensure we are on the mark (we are where we need to be) for the betterment of our community. Please provide us with some guidance. Thank You.

- Ron

The Foundation for Community Association Research has developed several "Best Practices" reports that directly address your questions, in particular the "Transitions" and "Financial Operations" studies. You can view the reports by going to http://www.cairf.org/research/bp.html; you'll see both the two mentioned papers as well as others that may be of use to you as your association transitions from developer to homeowner control.

Sincerely,

Margey

What is your opinion with regard to an association board member being an executive with the company which manages the association?  Being board president? Thanks.

- K.

Having a board president who is also an executive with the management company could be considered a conflict of interest. However, if the president discloses his relationship in writing, the remaining board members accept the relationship in writing, and the president diligently ensures that he does not vote nor otherwise act in potentially conflicting situations, the conflict of interest is mitigated.

Realistically, however, it would be very difficult for a board president who also works for the management company to always comply with his or her fiduciary duty as an agent for the association without considering the impact of all decisions and actions on his management company. Ideally, the two positions should be mutually exclusive.

Sincerely,

Margey

We have a board member that sells real estate within the community.  This seems to be a conflict of interest as how would he be able to make a decision for example on a roof replacement on a building that he had a unit under contract for sale...or how would he be able to make a decision on a major special assessment that involves three of the units he currently has listed for sale.  Thanks for your time.

- Bob

Realtors can bring a unique perspective to the board of directors; the attractiveness of the common elements and buildings and the financial viability of the association can directly impact property values and the "sale-ability" of the units. However, I concur with your concern about your board member's potential conflict of interest which may result in divided loyalties.

The board member must understand his fiduciary duty to the association, meaning that he must always focus on the best interests of the association as a whole. Perhaps it would be wise for your association's legal counsel to appear at a board meeting to discuss the nature of fiduciary relationships so that all board members understand the legal repercussions of breaching that trust. The attorney may suggest inserting into the minutes a statement indicating that while the board recognizes the Realtor's right to earn a living, the concept of fiduciary duty imposes on him as well as all board members the obligation to eliminate any conflicts of interest that may detrimentally impact the community or bias any decisions. Consequently, the Realtor board member may sometimes be required to abstain from voting on issues that, either in reality or perception, be a conflict.

Sincerely,

Margey

When, pursuant to the bylaws, unit owners must vote to accept or decline a sales offer from another unit owner, is it a conflict of interest for the unit owner making the offer to participate in the vote?

- David

If the association's governing documents do not prohibit an owner from voting on his or her own potential sale, then he or she must be allowed to cast his ballot.

Sincerely,

Margey

We are a 4 unit condo association, all owner occupied. We have seen our insurance premium rise by 165% in the last 3 years. We cannot even find another company to insure us so we are stuck. We have never filed a claim in the past 14 years this is when our building was built. We would like to dissolve our Association and insure ourselves individually. How hard is it to dissolve and what legal measures are needed. We live in Washington State.

- Tom

Dissolving a condominium association can result in unintended consequences with far-reaching impact. I urge you to consult with a competent, qualified attorney knowledgeable in Washington State law who can advise you of the implications and, if the four of you still want to proceed, lead you through the intricacies involved in dissolution of your association.

Sincerely,

Margey

I am hoping you can assist me. I am the VP in the BOD for our community. We are not an HOA and are trying to figure our what exactly we are. We are a community of 285 homes that offer irrigation for lots and all homes have bridle paths to the back of their properties. We have 4 separate sections as each section was built at different times. There are approximately 35 homeowners that do not receive irrigation nor pay for any maintenance of the system or bridle path maintenance.

The BOD is looking to find documentation that would support us stating that the paths and irrigations systems throughout the community are common interest as we are looking at having all homeowners regardless of receiving water or not still be financially responsible to assist with maintenance fees for repairs of irrigations system and grading and clean-up service of the paths. Can you provide any insight? I will look forward to hearing from you.

- Desiree

It would seem reasonable to believe that at some point during the development of your community, documents such as a Declaration; Covenants, Conditions and Restrictions; CC&Rs, Covenants; and/or Bylaws were drafted that created the board of directors and perhaps the homeowners association as well. Hopefully, these governing documents were recorded in the appropriate repository of your county, state or parish - whichever is applicable. If those documents exist but no current owner has access to them, I suggest you contact an attorney or title company to research the relevant municipal records to locate them. If no documents were ever filed of record, your attorney should be able to provide you with recommendations for the next step to take to define the association's and each owner's obligations and responsibilities.

Sincerely,

Margey

Should board members act as "policemen"?

- Morris

Board members are obligated to enforce the provisions of your association's governing documents and state statutes. To the extent that enforcement mandate is viewed as "policing" the community, the title may be appropriate. However, board members must also be reasonable and compassionate in ensuring compliance, and that's where some fall short. Better training and education and a commitment by each board member to be reasonable and willing to listen to his or her "constituents", eliminate much of the acrimony that is sometimes rampant in a community.

For more information on the role of board members, use the "Search" on the left side. Then enter "board responsibility" to find many Association Times' and archived "Ask the Expert" responses that address this issue.

Sincerely,

Margey

I am the association manager for a 221 single family home association. A new Board member has come on board and is micro-managing the President and the management company, creating hours of extra work. How does one stop this counter-productive behavior without offending the new Board member.

- Fran

A micromanaging board member certainly can make it difficult for a manager to efficiently and productively perform his or her duties. Here are some suggestions for training board members regarding their role in the operations of their community association:

1. Soon after a new board is installed at the annual meeting, conduct a board orientation program at which you educate the board about their responsibility to determine policies for the association and your obligation to implement those policies. Association Times has articles regarding board orientation programs that can be found through our search engine; enter keyword "board orientation" in the search field.
   
   
2. During your board meeting, prepare an action list of items you must accomplish before the next meeting. Before the meeting adjourns, summarize your list to ensure that everyone concurs with the assignments. Have the board agree that you must complete those assignments before starting on other projects unless the president advises you differently.
   
   
3. Keep you board informed of your progress in completing the action list items. Don't wait until the next meeting to submit your management report; email weekly updates of your action list (which can easily be created in a Word table or Excel spreadsheet) to each board member.
   
   
4. Refer to your management contract which may contain a provision stating that all communications to the manager must come through one board liaison, typically the president.
   
   
5. Solicit the help of the association president in taking the micromanaging board member aside and helping him or her understand the historical perspective on administering the operations of the community. Mentoring from a colleague may be just the right approach to gently guiding the new board member in the right direction without offending him or her.

Sincerely,

Margey

I have been elected Vice President to the HOA of a 200+ home community.  The Board of Directors consists of seven members.  Since the Annual meeting, two of the Board members have been very uncooperative and frustrated every attempt to conduct the business of the community; and obviously ran for the Board to set forth a personal agenda, namely to have the Management Company fired, gain control over community finances, and to change the Landscaper (who currently is paid over $40,000 per annum) to someone of their choosing. 

After much heated argument and insulting and belligerent email correspondence, one of these Board members has resigned. This position will be filled by appointment by the remaining Board members. The other Board member, however, continues to cause problems and seems to have the chief objective of having the President of the HOA and myself removed from the board.  In doing so, she refuses to participate in votes and makes outrageous demands of the Board President and the Management Company.  She also continues to send insulting email messages to Board members, calling them "idiots", and "unprofessional". All productive business of the community has come to a halt in our attempts to deal with this problem.  To make matters worse, this particular Board member works in the Property Management field (primarily with condominiums); and attempts to use her "experience" to railroad other Board members.  What recourse do the other remaining 5 board members have in this situation?  Can we silence this Board member?  What steps do we take to have her removed from the board, if it comes to that? 

- Annabelle

Please refer to Association Times' search function with keyword "board orientation" to learn about this training program that may help your board become more cohesive and less dysfunctional. If the orientation program does not resolve the one board member's confrontational behavior, it may be up to the remaining four board members to ensure that the business of the association is conducted despite attempts at disruption and controversy. While every board member has the right to speak at meetings, a timed agenda that allocates a certain period of time to each issue and an agreement by the four other directors to limit board meetings to two hours are management tools that foster productive meetings even in the face of adversity.

The use of parliamentary procedure is another useful tool to control the board meeting and ensure that informed decisions are made on a timely basis. Using keyword "parliamentary procedure" in the search function will result in both articles and resources to help you learn about this method of successful managing board meetings.

With regard to removing the board member, most governing documents require a vote of the membership to elect or remove directors. Read your association's Bylaws and Declaration/CC&Rs/Covenants/ Deed Restrictions (the name varies in different parts of the country) to determine the removal process for your association.

Sincerely,

Margey

Recently our Association held officer elections. 2 open positions. 3 candidates, 2 are incumbents.

32 ballots cast of differing percentage of ownership and value. Ballots are counted based on % of ownership.

7 ballots were marked for only 1 candidate and 6 of those were for the same person who held proxies equaling the exact percentages cast by those incomplete ballots.

Our elections take the top vote getters to determine the winner. 2 officers one year, 3 the next to staff a 5 member board.

My question is simple: Does a half filled out ballot violate the equal vote principle? Can an owner vote this way and by NOT voting for the other candidates skew the results towards one candidate and are those ballots thus cast valid? No provision is in our By-Laws for this. No prior election has had this occur.

- A.

In general, voters are not required to fill out their ballot completely. Rather, they vote for whatever candidates and issues they want, and leave the remainder of the form blank.

Sincerely,

Margey

Our annual HOA meeting is quickly approaching.  The is usually a number of proxy votes that are submitted due to the homeowner's absence from the meeting.  The sitting board members in the past have voted on behalf of those proxies for the candidate that they want on the board.  This year there are four people running for two positions.  Two of those people are currently holding positions on the board and are thereby voting for themselves when they exercise the proxy votes.  Can they do this or should there be a third party exercising the proxy vote?  There is extreme dissention between the board and the homeowners so the homeowners are trying to get some "new blood" on the board to address issues that are falling through the cracks.  

- Karen

Proxy verbiage is usually mandated in the Bylaws of a community association as well as in state statutes. It's important to check both sources for a thorough understanding of your community association's proxy requirements. To determine your state's limitations, if any, on an owner's right to assign his or her proxy and on a proxy holder's right to vote however he or she sees fit, go to our State Resources page.

In general, a directed proxy instructs the proxy holder exactly how to vote; a general (or "undirected") proxy allows the proxy holder to cast the owner's ballot in any manner the proxy holder deems appropriate. It's not unusual for the board to collect enough proxies to ensure the board members' re-election. However, homeowners are equally authorized to campaign for proxies in order to vote in new leadership.

For more information on proxies, click on "Search".

Sincerely,

Margey

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

At the last members meeting of the association our management company handed out the minutes of the previous members meeting.  I asked for the minutes of the board meeting which occurred in between the member meetings.  I was told there were no minutes as it was not a members meeting only a board meeting.  I know the board meeting had a quorum, discussed association business, and took votes on association contracts.  Should there have been minutes of that board meeting?  And should they be available to the members?

- Michael

Your management company was correct in distributing minutes of the previous members' meeting rather than of the last board meeting. Members of the association approve minutes of membership meetings; board members approve minutes of board meetings. Approved minutes of both types of meetings should be available for review by the members.

For more information on parliamentary procedure, go to our Links and Resources page.

Sincerely,

Margey

We are a large condominium association located in Virginia.  Last year we started a very basic website that only contains bulletin board types of notices for our residents.  We have been requested to post approved board meeting minutes on this website.  We have minutes available at the onsite association office for residents.  What are the good and bad points of posting minutes of board meetings on open websites?

- Margaret

It's an excellent idea to post approved (not draft) Minutes on your website so that your owners can be informed about the decisions and actions of the board and of the operations of their community.

The down side? Minutes are the formal record of the board's actions and should not contain verbatim discussion or detailed conversation. They should contain motions that are seconded and the results of the board members' votes. Extraneous information can be misinterpreted, creating controversy and conflict.

For more information on Minutes, please click on "Search" on the left column, and enter "Minutes" in the keyword field.

Sincerely,

Margey

My question relates to community websites.  I've volunteered to do some research since I've been a vocal advocate for a wholesale change of our existing community website.  It is provided at almost no cost to us through our existing Management Company it exists really to serve as electronic bill payment for dues.

I have my own ideas about what a site can do  for a community - but wondered where are the articles, or vendors, or other websites that I could use as resources as I'm building up my recommendation to the BoD.

In our subdivision of over 600 homes in suburban Atlanta , I'm biased to recommend a professional website moderator and not a home based volunteer. Thanks in advance.

- Scott

Community websites are an excellent source of information and resources for association members! If someone locally prepares your association's website, he or she is welcome to use the articles and Ask the Expert archives so long as every article and response is credited to us along with a live link to our website. If you are interested in hiring a company that specializes in professional community websites, consider evaluating the services offered by business partner members of the Community Associations Institute.

For more information on the development and benefits of community association websites, enter "websites" in our keyword search function on the left side of your screen.

Sincerely,

Margey

If the Annual Property Owners' Assessments have not been paid, would it be adviseable to post a notice to contact the POA Management Company about the Property Owners' Assessment for that residence on the doors of homes that are empty and are in the process of being resold?

We are a small POA of single family dwellings in Texas. Our community has a very high resale/turnover rate. Partly due to the inaction of previous boards, partly due to poor practices of the previous management company, our owner contact file is out of date and Assessment receivables are high. In five years, no lien has ever been filed. The new Board and Management company are working as quickly as possible to update the owner contact file, but we need to notify Real Estate professionals, potential buyers, investors etc. that there is a balance due on that property. For some reason, these assessments are not being collected at closing. Our management company has the correct documentation filed in the Real Property Records etc. We're just getting skipped in the closing process. Consequently, we're going to make our lawyer's year! Any other suggestions would be appreciated.  

- Suzie

Check your community association's Declaration of Covenants, Conditions and Restrictions (or similarly-named recorded document) for a provision establishing an automatic lien on each lot for the collection of assessments. If that verbiage exists, then it is not usually necessary to record a lien in order to alert potential owners, potential lenders and credit companies of a delinquency. Rather, it is the obligation of the title company or investigating agency to contact the appropriate parties, including the association's management company or, if the association is self-managed, the designated contact person, for delinquency information. The State of Texas requires every community association to file in the appropriate county records a "Management Certificate" which details contact information for the association's representative so that current and potential owners and other related parties can obtain information about the association, making it relatively easy for title companies to access the needed data.

If the Management Certificate has been filed for your association and the title company fails to contact the management company for delinquency information prior to closing, then the new owner should be able to file against his or her title insurance policy for any delinquency not paid by the previous owner. The management company could consider directly mailing a copy of the Management Certificate to the major title companies in your area advising them of their legal obligation to contact the company prior to closing, since it sounds like this process is being overlooked.

If no Management Certificate was filed, there may be some question as to recovery by the title insurance policy, but the current owner may still have the right to require the previous owner to pay the delinquent balance if the lien was established in the governing documents. Additionally, the association may have the right to judicially pursue collection from the previous owner.

If the lien for assessments was property created in your governing documents, you do not need an attorney to represent you with the title company -- all you need to do is contact the closing agent and file a claim with the company. If the lien was not established, you will need the services of an attorney to pursue the previous owner's personal obligation to have paid any balance owed at closing.

Finally, it is recommended that you not post or publish the names of delinquent owners. Such action would be exposing your association to potential litigation.  It is better to pursue legal means to prevent liability exposure for your association.

Sincerely,

Margey

Our Treasurer has held that position for over 18 years. There seems to be some question as to where some of our money is being spent. Would like to have the books audited. Can we demand to have that done and once demand made how do we make him comply? Seems that he is actually controlling entire HOA. For instance trying to get our pool area fixed up. We are in the 3rd committee to work on this over the years and as of last night he motioned to dissolve us of our duties!! There is over $76,000 in the bank which in my opinion should be more and all should be put back into the community. Please advise. Thank you.

- Henrietta

In most community associations, the governing documents contain a provision stating that the books and records of the association must be made available to the membership during reasonable hours within a certain period of time following receipt of a written request from an owner providing a legitimate reason for the request. Most state statutes contain a similar requirement; you can access your state laws by going to our State Resources page.

Governing documents and/or state statutes may also require an annual audit of the association's records by an independent accountant or CPA. It's always a good idea to have an audit to ensure that the financial statements prepared by the Treasurer reflect the actual financial condition of the community. However, standard audits are not intended to discover fraud or improprieties; that type of investigation would require a more expensive forensic audit or accounts payable/receivables audit.

Additionally, officers of the association serve at the discretion of the board of directors. That means that the board can remove an officer at any time, without cause, and appoint a new one. If your association's governing documents (probably the Bylaws) contain similar verbiage, and if the treasurer has overstepped his authority by acting outside the parameters of his responsibilities as described in the Bylaws, then the board may determine that it's time to appoint a new treasurer. Since the board is ultimately legally responsible for everything that happens at your community, the directors must be attentive to their fiduciary responsibility to ensure that all actions and decisions are made in the best interests of the association.

Sincerely,

Margey

How are reserves for replacements handled on the Balance Sheet?

- George

There are two primary methods for reporting replacement reserves on the balance sheet of a community association: 1) fund reporting; and 2) commercial reporting.

In the fund reporting method (recommended by the American Institute for Certified Public Accountants), financial activity affecting the reserve funds are itemized in a separate column on both the operating statement and balance sheet.  Although the separation of operating and reserve line items provides a thorough and detailed picture of the association's finances, it can be more difficult for the untrained person to comprehend and is more often utilized by more sophisticated financial preparers and CPAs. 

In the commercial reporting method, there is no separate column for reserve fund activity.  Reserve funds are either grouped together or individually listed in the Equity or "Fund Balance" section of the balance sheet, and the corresponding various cash components are listed under Assets.  Most management companies utilize the commercial reporting method in the preparation of their periodic financial statements.

Sincerely,

Margey

Where can I go to get information concerning what can legally be done with a home owners identity?

I live in a community where it seems violators or repeat offenders are not paying their Home Owner Association Dues.  What can be done?  I lived in N.Y where they would print your name and address in the local paper if your land taxes were unpaid.  I've been told by our board of directors that this is illegal. Is it?  What can we do to enforce the laws of the HOA? Pleas any help would be  greatly appreciated. Thank you so much.

- Chuck

Good for your board for realizing the potential liability of publicly posting the names of delinquent owners! That practice certainly is not recommended and, if fact, has resulted in significant judgments against some boards for defying privacy and slander laws.

For more appropriate collections methods, use the Search link on the left side of the screen. Enter "collection" in the keyword field and you'll see several articles and archived Ask the Expert responses addressing this issue.

Sincerely,

Margey

My subdivision has 23 homes designated as existing on private access roads (PAR). I own one of these homes. These roads are truly not private, as they are accessible to the entire subdivision and their purpose is to provide access to the driveways of these 23 homes. There are a total of 252 homes in the subdivision. The HOA covenants have various sections that reference the private access roads. Some sections refer to them as 'common area'. In the covenants, maintenance costs for the common areas are covered by the reserve funded by the general HOA assessment. There is a section in the covenants that states the HOA may additionally assess these 23 homes for maintenance of these roads. In fact, these 23 homeowners pay $750 per year as opposed to the $600 per year paid by the non-PAR homeowners. There has always been this additional fee assessed to cover snow removal costs and any excess from year to year is added to the general reserve. Last year the HOA board decided there needed to be a separate reserve established for the eventual replacement of these roads. The path they have chosen is to have the 23 PAR homeowners exclusively fund this reserve. I do not argue that the vagueness and interpretation of the covenants empowers them to take that approach. This additional assessment will raise the annual cost for these 23 homeowners to be anywhere from $900 to $1500 per year which would be 1.5 to more than twice the amount paid by other homeowners. My question: Is there some precedent/law that limits the discrepancy allowed for HOA dues between the members. Our fear is that this discrepancy will adversely impact our ability to market our houses. We have unsuccessfully tried to make the argument that if this impacts the 23 homes, it will have a trickle down affect on all homes in the subdivision. No one wants to take legal action so I am looking for something to present to the board that will dissuade them from taking this approach.

- Bill

I'm not aware of any law or case law that supersedes a community association's governing documents with regard to allocation of maintenance fees so long as the allocation is fair and equitable. It would seem that the 23 homes' additional maintenance responsibility for the P.A.R. was clearly delineated in the recorded governing documents and was therefore disclosed when you purchased your home. Although it may seem to the 23 homeowners a hardship to share the maintenance expense only among themselves instead of among all the homes in the community, there doesn't seem to be any doubt regarding the intent of the covenants.

There should be a provision in the covenants detailing the process involved in amending the document. You could consider attempting to amend the covenants if you believe you have the support of the requisite number of owners in your community as well as any required lender approval to reallocate maintenance responsibility of the road.

Sincerely,

Margey

I live in a HOA in California. We have a new board of directors who don't know what they are doing and choose to self manage. In preparing our annual budget they have included in the operating budget: a) speculative income and b) the costs for reserve items. We don't believe that these items belong in the operating budget. Please can you advise as to the proper procedure for the operating budget?

- Kevin

Please click on the Search function on the left column, then enter " budget" in the keyword field to see 76 results addressing the preparation of and need for budgets.

Sincerely,

Margey

I am the new treasurer for a condo HOA in San Diego, California. In the year ending Dec 31, 2005 the association had an operating deficit (borrowed from reserves). I have asked the Board to come up with a resolution  to repay the reserves. If the Board does not come up with a resolution (worry about it later attitude) what should I do?

- John

It is not unusual for community associations to run low on operating funds, necessitating the need to borrow from the reserve account. That doesn't mean it's a recommended practice. While reimbursing the reserve fund is essential, the underlying reason for the cash shortage must be determined. Maintenance fees should increase every year by at least the cost of living just to keep up with inflation. Insurance premiums increase more than the consumer price index, as do the cost to replace some physical components such as roofing and paving. If regular maintenance fees are inadequate to pay for these and other economy-related expenses, the association could find itself on the slippery slope toward a depleted reserve fund.

Please review the many articles and Ask the Expert archived responses regarding reserve funds on our website.

Regards,

Margey

Polybutylene Piping:  Our Condo Association is in the process of introducing to our residents that we need to have our Polybutylene Pipes replaced in all 230 units.  Due to the increase of insurance costs and the possibility of being uninsurable we feel this upgrade is a must.  Being a member of the board I have volunteered to create a 'Memo' to send out all of our residents explaining this concern.  In order for the "total replacement" to be approved we need 75% of our residents to agree to $2000 out of their pocket for these repairs. Do you have any advice to help me get the point across? 

- C.

Please use our "Search" on the left column and enter "special assessment" in the keyword field to view previous responses to situations similar to yours. Then, use the "Search" again and enter "quorum" in the keyword field for more suggestions on engaging your homeowners in the special assessment process.

Sincerely,

Margey

Is there a cap on the amount of money asked for renovations?

I purchased a condo three months ago for $75,000 and have received notice there is a $28,000 assessment per unit for renovations - this was not disclosed when purchasing - what was disclosed was a $300,000 roof repair that was to be split between 117 units - help!!!

- J.J.

Please click on "Search" on the left column and enter "special assessment" in the keyword field to view previous responses to situations similar to yours.

Sincerely,

Margey

Do you have any information (commentaries, articles, case law, etc.) on the creation by one Board of a special or restricted fund and the ability of a subsequent Board to invade it or apply it for other purposes? My understanding has always been that once a Board lawfully creates a restricted fund (e.g., for capital projects), it was funded in a segregated account, and so maintained and so described in the Association's audited statements, a subsequent Board is bound by those restrictions.  I'm not sure if state or common law restrictions on the invasion of trust funds apply to associations that are creatures of condominium statutes, but it seems the issues are quite similar.

My query is in re: NJ law, but the issue should be fairly universal in all states adoptiong the Uniform condo statute.

- Gil

Your board's obligation to continue segregating and increasing a special fund depends on the mandates of your association's governing documents, in particular the Condominium Declaration and perhaps the Bylaws. There may also be state statutes that address special or restricted funds of a community association. You can review state laws by going to our State Resources page.

Sincerely,

Margey

Our past on-site manager and on-site bookkeeper (both homeowners) filed as independent contractors even though neither met the legal definition.  The bookkeeper filed 1099's for herself and the "manager". Whose responsibility is it to ensure that the correct forms are filed?  Was it the Board's responsibility?  I doubt that the IRS will audit a non-profit HOA, but I am worried about the back taxes we would owe if they did.  Why didn't our recent audit question the legality of what was being filed? Shouldn't the bookkeeper have known better?  Could she be held liable? Thank you!

- Jen

Your board of directors is ultimately responsible for everything that occurs in your community, including complying with IRS requirements. Don't think community associations are below the IRS' radar screen; many HOAs have discovered, much to their dismay, that the IRS investigates any possible fraud or deception that comes to their attention.

I recommend that you hire a competent CPA to review your association's financial management and reporting procedures and submit any adjustments to the IRS. Don't wait for the IRS to find your association -- the current board is responsible for ensuring that any errors be corrected as quickly as possible.

Sincerely,

Margey

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

I am in the State of Washington and I have a question on secretly recording a conversation during our homeowners association meeting, we have a homeowner that records our conversation without our consent, we have ask the homeowner not to record but yet he still does it. Is there anything that we can do about this and if so what? Thank you.

- W.

I asked Mr. Brian McLean, an attorney in the law firm of Leahy.ps in Kirkland, Washington (www.leahyps.com) to answer your question from a Washington State perspective. Here is his response:

As an attorney in Washington State, I can tell you that it's unlawful (with some exceptions) to record a private conversation without the consent of all the parties to that conversation. Association Meetings, however, are typically Open Meetings. There is no Washington State law that prohibits the videotape or audiotape recording of a Board meeting open to Owners and Members. A total ban on tape recording probably won't work.

Consulting with your Association's attorney, you might find that, even if a total ban won't work, your Board might be able to adopt reasonable guidelines that encourage reasonable behavior. Here are some illustrative starting points: (1) a ban on recording executive sessions of the Board; (2) a requirement that the recorder provide notice to all in attendance before recording; (3) a requirement that any recording not be replayed to or reproduced for any person not entitled to attend or observe the meeting; or (4) a requirement that, if any part of the recording is disseminated or reproduced, the recorder has to agree to provide the entire recording to the Association or any Owner or Member who requests it, at no charge except for the cost of the tape. By adopting and enforcing reasonable guidelines, you might be able to find a middle ground with the Owner (without making (literally) a Federal case out of it). Good luck.

Brian P. McLean, Leahy.ps

Sincerely,

Margey

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

As a board of directors we took over the association six months ago, I see many mistakes and irregularities in the record of the Insurance company that we are insured with right now,  can we bring an auditor to check the records?

- Mehmet

As a board member, you can act in any manner determined to be reasonable and legal to protect the assets of your community association. If you think the insurance records are deficient, by all means arrange for an audit.

Sincerely,

Margey

Do HOAs have to make their common facilities ADA (Americans with Disabilities Act) compliant if no additional fees are charged and the facility is only open to owners and their guests. The facilities are a pool, tennis courts, gym, club house and restrooms at the pool. They are not open to the public and we don't charge any extra fees to the homeowners to use these facilities. Thanks.

- Cameron

Most community associations are subject to the Fair Housing Act and not to the Americans with Disabilities Act. If the common areas are not open to the public, such as a golf course, then the Fair Housing Act is applicable and does not require the association to retrofit the common areas to accommodate disabled persons. Generally, however, the association must allow a disabled person to personally pay to retrofit a common element for improved accessibility (an example would be installing a graded sidewalk or ramp to replace a street curb).

For more information on the Fair Housing Act, go to our Links and Resources page.

Sincerely,

Margey

We have had 2 consistent members over a period of years.  In fact , one has not paid assessment and our legal fees to try to collect.  In order not to single out these individuals, the board has changed their yearly operating assessment delinquency to a "fee" instead of interest, with notice of attorney fees to be paid by delinquent members.  Our "fee" starts at $25/month and doubles each month to a maximum of $100 per month until paid. We have also established an additional fee of $100 if the assessment, fees and legal are not paid at the end of a year.  This is sent to our members at the start of each year and has not be questions or objected to.  Now, the one delinquent member is questioning our right to collect.

Are we legal here in Michigan?  We have a site condo association with private home deeded and balance of land and lake commonly owed by each lot owner.

Thanks - hope you can respond ASAP as we have board meeting coming up.

- Linda

The collection of community association assessments is governed by the association's governing documents -- particularly the Declaration/Covenants/CC&Rs/Deed Restrictions (the name varies in different parts of the country), state statutes, and federal law (the Fair Debt Collection Practices Act).

Because of the overlapping and sometimes confusing requirements imposed on community associations by various legal and governmental entities, I encourage your board to consult with a competent attorney knowledgeable in community association law, state statutes and federal law to ensure that your directors have crafted an enforceable collection policy.

For more information on imposing and collecting community association assessments, late charges, fines and other fees, use the "Search" on the left side of the screen. Enter "assessment collection" in the keyword field and you'll see several articles and archives from "Ask the Expert" addressing this topic.

Sincerely,

Margey

Hello there,

We built 2 detached homes on a single lot with two legal addresses to sell. City suggested we change SFR to CONDO status to make it easy for us to sell. In doing so, CC&R was required for these 2 units. How simple can we draft this CC&R. The samples we looked at were way too complex & involved. Our purpose is to keep it simple so that we can sell these homes AND unburden the buyers from too much administrative work with these properties. HELP!

- John

Drafting a set of condominium documents is not for the lay person. There are too many state and federal requirements about which only a competent attorney who focuses on community association law is knowledgeable. Spend the money on effective legal counsel now to ensure that the governing documents are legal, relevant and enforceable.

Sincerely,

Margey

Our POA is about 20 years old and the Board wants to modify some of the covenant to bring it to the 21st Century. We first need to lower the aproval percentage from 75% to 66.66%. Any suggestions for a strategy?

- Cedric

Congratulations on your efforts to bring your community association into the 21st century! I concur with your plan to first lower the amendment requirement so that subsequent proposed amendments have an easier chance of being approved by the owners.

Typically, the biggest challenge in passing an amendment to the governing documents is to pique the interest of your owners enough for them to participate in the voting process. If the document you want to amend requires a meeting of the owners at which the issue is discussed and voted on, review the article entitled "Achieving Quorum". If you can succeed in persuading your owners to either attend the meeting or send in their proxy, you have a good chance of obtaining that 75% approval you need to lower your quorum and proceed with the other proposed amendments.

Sincerely,

Margey

If Covenants and Restrictions are changed by the Board after threatening lawsuits against homeowners, wouldn't they need to grandfather all existing people in? 

- Jeff

Your board of directors must comply with the governing documents of your association and state statutes with regard to exempting current owners from new rules. On a kinder, gentler note, board members must also be compassionate towards their residents and considerate of their unique needs.

If there is any doubt regarding the appropriate measures the board should take to pass and enforce a new rule, consult with an attorney. The board must be careful not to exceed its authority and to ensure that its decisions are appropriate and valid.

Sincerely,

Margey

I took my HOA to small claims court due to a lack of maintaining the gutters and downspouts.  The maintenance man left and they did not hire a new maintenance man.  I had a water intrusion with damage to my living room. With necessary remediation, reconstruction and carpet replacement costs of $4,100.  I won in small claims.  Then the HOA appealed.  The judge was not sure about the HOA laws and so he will take the next two weeks to research the California HOA laws.

In the mean time the HOA sent out a letter to specially assess the homeowners including myself for $400 each to pay for the litigation costs if they lose.

Our bylaws state Special Assessments must be voted on by majority of voting power before approval.  The HOA did not take a vote they just decided to implement the Special Assessment without the owners vote.   The civil code and our CC&R states Special Assessments can be done without homeowners votes for: an extrordinary expense required by an order of the court.  But, is it necesary if we have $60,000 in the reserves?  Another question is do the bylaws override the CC&R's?  Since our bylaws state no special assessment can be done with the majority voting power of the association. Thank you!

- M.

In the hierarchy of community association documents, the Declaration rules over the Bylaws. So, if the Declaration authorizes the board to impose a special assessment without a vote of the owners for specified reasons and the Bylaws require homeowner approval for all special assessments, then the Declaration's provision prevails unless there is specific verbiage in the Declaration stating otherwise.

With regard to borrowing from the reserve funds, it is never a good idea to spend reserve money on the general operations of the community. Reserve funds are set aside for the eventual replacement of the capital components of a community. Expending those funds on general operations can result in severe tax consequences as well as a shortage of funds when it is time to replace a major physical component. The consequence is usually a special assessment or bank loan to pay for the renovation project or, without the needed funds, the inability to effect any repairs while the component continues to deteriorate. If that component is a common roof, the result could be water leaks affecting multiple residents.

Sincerely,

Margey

Do the A.R.S. over ride the CC&R's of our Association?

- Glenda

Typically, the CC&Rs ("Covenants, Conditions & Restrictions" also known as "Master Deed" or "Declaration" in other parts of the country) prevail over the A.R.S. ("Architectural Review Standards").   However, just to be sure, read both documents to determine if priority is established; there would be language that specifically states that the A.R.S. takes precedence in any conflict with the CC&Rs.

Sincerely,

Margey

Our homeowner association sent a proxy with the annual meeting and election notice.  This proxy had the date and time of the meeting correct on the top of the form.  But, had the incorrect date (used 2005 instead of 2006) in the legal write up of the proxy. Will this void the proxy or can the Board accept this error and count the proxies it received?

- Jeff

According to Mr. Roy Hailey of the Houston law firm of Butler and Hailey, "it is difficult, if not impossible, to give a definitive answer without seeing the proxy and confirming if there is anyway to somehow "cure" the typo as only a scrivener's error that is only a "form over substance" oversight. Having said that, if the text of the Proxy where all of the "legalese" is contained is inaccurate then the Proxy itself would, in all likelihood, not pass 'legal muster'".

Sincerely,

Margey

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Insurance | Legal | Maintenance | Management | Rules

Our condo membership consists of three buildings with eight units per building. The buildings were built between 1998 & 2000. Our Board recently hired an outside firm to do a maintenance and reserves study, a very valuable and important service. The engineer performing the study noted that the fire wall between the top floor middle units only goes to the attic and he believes this is not to code.

Although our board is having a difficult time keeping our association dues reasonable (we currently pay $350 month for units averaging $250,000), the board is ready to spend association funds to correct this. I asked them if they would verify the engineer's finding with the fire department and the city, as well as review our condo docs, since the wording in our docs seem to indicate the wall is the unit owners responsibility. Their response to date has been that the engineer would certainly know code and "it doesn't cost that much".

If the board chooses to spend association funds and it is determined that the buildings were in fact built to code and/or the walls in reference are the unit owner's responsibility, what recourse does our association have to be reimbursed. Kindest regards.

- Susanne

The board of directors has an obligation to ensure that they have investigated all aspects of an issue, conducting due diligence in exploring options so that they can make an informed, educated, logical and reasonable decision. If there is any doubt regarding the responsibility for fire wall code compliance, the board should defer to expert opinions from not only the engineer but a competent community association attorney as well. Contacting the city Building Department for confirmation of code requirements regarding the fire walls is an easy phone call that can quickly resolve the issue. It's possible that the building code has changed since original construction in 1998, but any building inspector should have that information for you.

I recommend that all issues be resolved before proceeding with the planned fire wall modification. It's better for the board to find out beforehand who is ultimately responsible for repairs than have to admit they're wrong and attempt to collect reimbursement from each owner, creating acrimony and divisiveness among the owners.

Margey

Hello, I am seeking assistance as to what course of action, if any can be taken when an HOA is non-responsive. I pay my HOA fees on a monthly basis and would wish that at least a few of the services required be addressed. I live in *****, CO. I have contacted the HOA many times, only recently started to keep the emails, regarding the stairway off my unit leading outside.

They are EXTREMELY slick where the moisture leaks down onto them creating literal sheets of ice and are uncrossable. The HOA has not responded to any recent emails. I have informed them that in the past the previous neighbor had fallen down the stairs because of the ice build up on the stairs. I did get one response, last year, I believe it was, stating they only had two individuals to work the complex and were unable to get to all the units. I offered to spread the ice melt/salt whatever chemical used on the stairs in our complex as the lady upstairs had young children. Of course, no response from them. I have offered to be of assistance if they are unable to take care of the stairs and do not understand why they are still unresponsive. Is there anything that can be done BEFORE someone, their child or pet get hurt?? Thank You.

- Esther

It's possible that your association does not have the resources to address hazardous conditions community-wide. The more each resident can volunteer his or her services to help the association and their neighbors, the more effective and productive your association will be. Rather than asking for permission, why not send a certified letter to your board advising them that you will be glad to apply the ice melt/salt to your stairs when conditions necessitate the work, and share the cost of the material with the residents who use the stairs? Perhaps you could galvanize a community-wide committee of volunteers whose responsibility is to apply the nonslip material on every stairway when the surface is icy, with other volunteers standing by to back up the primary contact when necessary.

Board members are homeowners, too, and sometimes feel defensive when verbally attacked by an association member. Please be sure to address them with the courtesy and respect they've earned as unpaid volunteers committed to addressing the needs of your community.

Sincerely,

Margey

Thank you for your thoughts.

Our complex has one of the highest HOA's fees in our area. Not just are hazardous items not addressed, the whole complex is degenerating quickly.

Upon review of the budget numbers presented, the maintenance folks make more of an income than most of the residents here.

I doubt, given the fact that maintenance is already paid for once via HOA fees for material and labor, that many would be willing to pay again and end up doing the work themselves (which many are not physically able to due to age and or disabilities). The services we are paying for are not being provided.

From your response I am believing I'm to inform other residents pay twice and do the work ourselves.

- Esther

Given the additional information you provided in your response, I would suggest that the homeowners concerned about the lack of maintenance identify among you a person who is an accountant or CPA, or contract with an independent accountant or CPA, to inspect your association's records. It is possible that unique and legitimate administration, construction and maintenance issues have resulted in your higher-than-average fees and the board is not doing a good job of communicating those problems to the membership. On the other hand, if the investigation determines that the board of directors is not acting in a fiscally responsible manner, it may be time for your group to campaign for a special election to remove the errant board members and elect ones more experienced in managing the operations of a community association.

Sincerely,

Margey

Two and a half years ago, when my wife was taking a bath in our whirlpool bathtub with the jets going, our downstairs neighbor called and stated she had water entering her unit from her window surround.  We stopped using the jets and taking bath's thinking it could have been a bad connection with one of the lines or overflow drain.  The problem seemed to stop then she called again stating she was getting some water.  I then looked at the caulking around the tub and replaced it since that could have been the only other exterior source of the problem.  Again the problem seemed to stop in her unit. 

Two weeks ago, while showering she called and said water was dripping through the window surround again.  We then got together and ran several tests to see if we could repeat the problem, which we couldn't.  Our condo docs state the pipes are considered limited common elements, however, the association president is stating it is up to the unit owners to find out what the problem is and if it is determined that it is a pipe they will then pay for it.  The unit owner below is saying that it is our responsibility to hire a plumber because the water is coming from our unit, even though we have no damage in our unit.  I think she should be responsible because she has the problem in her unit and it is no guarantee the water is from our unit, albeit a good probability it is. 

Who should be responsible for paying for the plumber to find out where the water is coming from?  What happens if they can't find out where the water is coming from?

- Shaun

If your Condominium Declaration is not clear with regard to maintenance responsibilities for a water leak between units, it's time for the board, with the help of competent legal counsel, to craft a policy resolution clarifying the ambiguity.

Even though the Declaration may impose the obligation on the association to repair the pipes, the leak could be caused by something as simple as loose caulking, a deteriorated washer or a loose fitting. A possible alternative to the current stalemate is for the association to take the lead in determining the cause of the leak, obtaining written authority from you and your downstairs neighbor to act on your behalf and in which each of you promises to timely reimburse the association if it is determined that the cause is within the parameters of each homeowner's responsibility.

Sincerely,

Margey

I live in a townhome community in Illinois. There was a leak from the unit above with extensive water damage.  The unit owner above had no insurance, which is required in the by-laws.  I have requested via phone, letter and in person from the townhome management company, information to contact our townhome association board members regarding this situation.  The townhome management company states they will not give me this information, as it is confidential. They know I am a homeowner and they have not been pro-actively intervening in this matter with the unit owner above as there was water damage to the common areas as well. This water damage and repairs occurred one month ago.  Shouldn't the townhome management company provide me the requested board member contact information?  Also, shouldn't they be intervening in this matter as there was water damage as well as damage to common areas? Thank you.          

- Suzanne

Most state statutes and governing documents require that board contact information be disclosed to owners in a community association. Read your association's Declaration/Deed Restrictions/Covenants (the name varies in different parts of the country), Bylaws and state statutes, for relevant provisions. Those same documents and state statutes may also address response and repair responsibility for the kind of damage your townhome incurred.

As an alternative, consider turning in a claim on your personal homeowners' insurance policy. Your insurance agent may decide to pursue reimbursement from the homeowner who caused the damage or from the homeowners association, and may have an easier time collecting the necessary information from your board and neighbor.

Sincerely,

Margey

We have a professional management company who has performed all administrative duties (dues collections & all payables) for our 24-unit condo building in California since the 1980s.  Over the past 4 years, we have discovered, to our utter amazement, that the management company failed to renew our Master policy on 1 occasion when payment became due (after several renewal notices had been sent to the management company)... AND on 3 other occasions failed/neglected to make the deadline payment on our building's earthquake policy; therefore creating full exposure until we could ourselves arrange for immediate payment.  In addition, they have passed on the expense for utility late payment charges, caused by their neglect.  Other than the obvious need for finding a responsible replacement, do you believe that we have ANY LEGAL RECOURSE for breach of fiduciary responsibility?

FYI:  Many local HOAs use this same company. I can only imagine that they haven't encountered such degree of negligence.

- Laura

To make sure I provide you with a response relevant to your California community, I asked the Presidents of three California management company members of Associa for their help. Carole Murphy of M & C Management in Stockton, Mike Packard of N. N. Jaeschke in San Diego and Grant Shetron of American Oak Management in the San Francisco area all agree that if your management company's error resulted in additional expense to the association, the management company should either reimburse the association directly or file a claim with its Errors and Omissions insurance carrier.

Be sure to have all the facts before considering any action; is it possible that the management company prepared the checks timely but your board delayed signing them before the due date? If the management company was indeed remiss is paying bills on time, resulting in the imposition of late fees, then it should not pass those fees on to the association. If a mistake was made, admit it, fix it at the responsible party's expense, and move on.

If there is a pattern of omissions and inattention, consider looking for a new management company. There are many good ones in California, including the three mentioned above.

Sincerely,

Margey

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Insurance | Legal | Maintenance | Management | Rules

I was given a speeding ticket in my parking lot for going 25 mph. How he knew this, I don't know -- he had no radar gun anyway I am going to appeal it . Come to find out the man who who gave me the ticket is the head of the ***** and he told me that since he was the head of the *****  that I should not waste my time. I know that I was not speeding. We do not get along the head of the ***** and I know he did this to be unfair. The information I need is if he gave me the ticket can he still rule over the case? Or does he have to stepdown? Seeing how he gave me the ticket how can he rule over it? It would be like a judge getting a ticket and then ruling on it himself????

- Steve

Community associations should provide an appeals process to enable owners who dispute a fine or board mandate to petition for a review by another group. Many states and community association governing documents require specific due process before fines can be imposed against an owner. Check your Declaration/Covenants/Deed Restrictions/CC&Rs (the name varies in different parts of the country), Bylaws and states statutes to determine any required procedures in your community and state.

Sincerely,

Margey

My question concerns a tall wooden privacy fence that was erected by the developer when he first started our development.  The fence runs behind about twelve of our association's 28 homes.  The fence is located on the property of all the homeowners which it crosses.  The developer is long gone, but the fence has been the topic of many discussions.  My question is as follows:  who owns the fence and who should maintain it?  The fence is not on any common area or anything like that. The board has had many discussions concerning the fence with one group thinking that the fence and its maintanence is the responsibility of the homeowners who have the fence behind their house.  Another group thinks that the fence is owned by the Association and is the responsibility of the Association.  There is nothing in the By-Laws or Covenants that covers the fence issue.  We would appreciate your opinion in this matter. Thank you.

- Larry

If your association's governing documents do not contain a reference to the fence as a common element or an association maintenance responsibility, then the association may not expend common funds for its repairs and each owner would be obligated to maintain the portion on his or her lot.

Sincerely,

Margey

My home is in a small community of about 70 homes in the *****, TX area. The home behind me had an 8' high fence already in place when I purchased my home. In fact, there were many homes existing in the community with 8' tall wood fences already in place when I purchased the home. The CC&R's that I received from the secretary prior to closing on the home had no wording about a height restriction. Now, five years later, after installing a new 8' fence, I find out that there is an amendment setting restrictions to 6' that the secretary failed to deliver to me. All other fence owners had been allowed to retain the 8' tall fencing, even those that installed 8' fencing after the amendment to the restrictions. In fact, the association encouraged the homeowners along one strip of homes to install 8' fencing along the back of their properties. Since I brought that to their attent6ion, they had an email vote to change the covenants to force 8' high restrictions on those homeowners (they say it passed) and change the 6' to 8' for everyone else voluntarily (they say it didn't pass). So here are my questions:

1. If an association permitted some homeowners to install these fences and did not seek to enforce the covenants, then is selective enforcement against me with my fence legal?
   
   
2. If a restrictive covenant is not enforced for a length of time and many homeowners are allowed to have these fences in violation of the covenants, does that part of the restrictions become void?
   
   
3. I don't believe that the board acted properly in the vote. Texas law says it must be by a vote of a quorum of the members at a called meeting with stipulations on the amount of time of notice or by sending a mailed ballot to be completed and returned by a specified date. In addition, the law states it must first be registered with the county that the committee is seeking a restrictive covenant or change before the vote is submitted to the members. This was not done, either.

My next questions are:

1. Is the association required to retain records of the members' votes?
   
   
2. Am I entitled to review these votes to substantiate them?
   
   
3. If the votes were by email, and state law says by mail with a ballot, is the email vote valid if there is no provision for this in ther CC&R's?

Finally, the HOA refuses to call annual meetings or give notice of board meetings. An assessment of $400 was recently applied against each member without a vote or quorum as stipulated in the CC&R's. Do we just have an out of control board?

- Robert

Hello, Mr. McInnis, and thank you for writing to Association Times' Ask the Expert.

While many of the issues you raised have already been addressed either in an Association Times' article or an Ask the Expert response, there are some concerns you expressed that  require the expertise of a qualified attorney knowledgeable in Texas community association law.

Do you have an "out-of-control board"? In the least, your directors should read the association's governing documents, state statutes and relevant advice and information offered by Association Times, the Community Associations Institute, and the Center for Community Association Research (then click on "Best Practices"). The board has an obligation to provide to their homeowners reasonable, fair diligently-investigated decisions and actions.

Sincerely,

Margey

We have a house that's subject to a HOA.  We want to construct a gazebo which will be 12 feet high.  Our association has denied our request and stated that the structure has to be only 9 feet high. 

There is no height restriction in our city for outside structures nor does our CC&R state that outside structures have to be limited to 9 feet.  Our CC&R does state that an architectural committee can make restrictions to outside landscaping by homeowners.  There are several homes in our development that have structures higher than the 9 feet limit.  Can the association enforce the 9 feet limit on us when they have not done so for others in our development?

- Natasha

Community Association boards of directors must consistently and uniformly enforce their association's governing documents. If your board granted a variance to other owners for their structures to exceed 9', they must approve your application as well so long as the circumstances are identical as to design, size, location, color, visibility from the common areas, and any other considerations.

On the other hand, perhaps your board has promulgated new architectural standards that no longer permit structures exceeding 9' in height. If so, they may have grandfathered existing non-conforming structures that were previously approved, requiring those structures to be removed when they reach a point in which significant repairs are necessary.

One more consideration -- is a gazebo considered "outside landscaping"? The board obviously thinks so, but there should be a definition in the documents or by board resolution that confirms that understanding. If it's considered an "outside structure" then, according to your comments, it falls outside the parameters of board control.

Keep the lines of communication open with your board. Ask questions respectfully, discuss this issue courteously. You may be able to hammer out a compromise that satisfies both you and the board members. If not, you may need the services of a competent attorney knowledgeable in community association law or a trained mediator to help resolve this matter.

Sincerely,

Margey

I am a newly appointed Board member and the last Board we had was not very functional.  In an effort to solicit board officers, to no avail it ended with only 3 of us volunteering.  Since we have been on the Board, we have constituted the necessary changes with opposition on every hand.

My question is dealing with parking for our community.  Upon purchasing my home, I was told those homes without garages would have two parking spaces to accommodate the homeowner and those with garages would use those and their driveways.  We are right now at an impasse because some homeowners with garages are stating that because they pay their homeowners fees, they are entitled to park in the spaces of the homeowners that do not have garages.

Seeking a way to find a solution that will satisfy all that are involved. Thanks.

- Debby

Please go to click "Search" on the left column, then enter "parking" in the keyword field to see 41 articles and Ask the Expert responses addressing parking issues, including situations similar to yours.

Sincerely,

Margey

I have been a board member for about a year now. Previous boards did a very poor job of enforcing our CC&Rs, particularly when it comes to parking. Our governing documents clearly state that a garage should be able to accommodate two vehicles. As this rule has not been enforced for about seven years, residents are parking their vehicles on the street and using their garages for dens, party rooms, wood shops, storage, etc. The current board is attempting to have a patrol company initiate a parking permit program in which residents would not be able to purchase a permit unless they fit two cars in their garage (exceptions made for vehicles that cannot physically fit).

Is there any law that states if the CC&Rs have not been enforced for a certain period of time then they are null and void? Thanks for your insight. This community is located in the state of California.

- Lynn

According to Mr. Michael Packard, PCAM, CPM, CCAM, President of N. N. Jaeschke, an Associa member company based in San Diego, California, there is no law that forbids enforcement because a former board or boards failed to do so in the past. In fact, some of the newer CC&Rs in California have a waiver provision in them that addresses the failure to enforce issue. Therefore, if your new board intends to commence enforcing the parking provision, they will need to notice their membership of their intent and provide a reasonable amount of time -- perhaps thirty days -- in which the residents can bring their vehicle parking into compliance. The board will also need to be consistent in their administration of the violations.

If enforcement of the convents was dormant for several years, I would encourage the board to consult with a competent attorney knowledgeable in the intricacies of California community association law to ensure that the re-implemented parking provision is valid and enforceable.

Sincerely,

Margey

I live in a condominium with 20 units.  I have lived there for 15 years.  Our board consists of 3 members, one who lives there, and the President and VP who are from one household and own 3 units but do not live there. 

In November, my next-door neighbor's washing machine hose burst and flooded my garage for several hours. I immediately informed the President. After 15 years, we had a lot of stuff in the garage and it was a total mess. Many meaningful items were destroyed or damaged. It has taken us weeks to clean it up and we are still working on it. Our bylaws do not prohibit storage in the garage area. Our condo building has one large common driveway which has the fire lane and then each unit has its own driveway large enough for one car to park in. Needless to say, we could not park in the garage and I had everything salvageable drying out in the driveway and yard. I used our Suburban to load all the wet and destroyed things and take to the dumpster.  The only place I could leave it waiting was in the common driveway.  I was making runs to the dumpster every 30 minutes to 1 hour. I have almost never parked there in the 15 years. My next-door neighbor had a visitor who parked there that day. The resident board member complained about the cars and the President came out and told me I also had to move the Suburban to be fair to my neighbor, the only way I had of recovering from this distressful flood! He was there in front of us seeing the mess we were in and the wet, dirty work we were doing. My wife was extremely distraught and griped him out about this treatment in such a bad situation. A couple of weeks later, he saw our car out there again and fined us $100, the first time being a "warning". I appealed on the basis that it was obviously an emergency, the fact that I was moving the car often (not parking), and pointed out that neighbors usually help out in such bad times. I even offered to accept the second time as a warning but they "unanimously" rejected my appeal.

For the record, this is our only fine in 15 years. My neighbor, whose machine flooded our garage, parks out there so often there are grease marks inside the fire lane.  He has not been fined. This flood has cost us at least $500 so far and now this fine on top of that. Is this fair treatment and what is your advice as to where to go from here?  Are there usually allowances for "emergency" parking or extenuating circumstances like this? Do I have any other recourse?

- M.

Board members may not selectively enforce the governing documents of their community association. They must treat all owners consistently, fairly and, probably most importantly, with compassion and understanding.

I would encourage your board to consider the hardship you've suffered as a result of the water damage and grant a variance to the parking rule. If the board members attempt to collect the fine through judicial means, they'll be hard pressed to prove that they were reasonable in their efforts to resolve a temporary parking problem.

Sincerely,

Margey

Our condo association has a no pet policy. There are several people in our building however that have cats. We know it for a fact, we saw them and food is blatantly delivered to the building.

We would love this condominium to be pet friendly. Small pets under 20 lbs. The president told us this past week the owners had prescriptions from a doctor to keep the cats as they were considered pet therapy. This sounds absurd to me and rings of favoritism. What is your opinion? Thank you.

- Ruth Ann

If the pet policy was established by board resolution as a rule and is not mandated in the Declaration or Bylaws, and if the board is authorized to promulgate and enforce rules, then your board may want to survey the owners to determine if there is a consensus regarding allowing pets. Perhaps the current rule could be revised to allow no more than two household pets less than a certain size as long as they remain within the confines of the unit. Or, the board could craft alternative criteria such as designating pet relief areas, restricting noise and odors, or requiring all pets to be leashed when outside the confines of the unit, that conform, within reason, to the desires of the membership.

I understand that there has been precedent in some communities which, under very specific and unique circumstances, would permit pets that are deemed a medical necessity, even though prohibited by the rules or restrictions.  You would need to seek advice from an attorney that specializes in community association law in your area to determine if the pets in your community meet the relevant criteria.

However, it's also important for the board to be responsive to the other owners who would like a pet. Unless there's a compelling reason to prohibit pets other than those that are medically necessary, I would urge the board to be reasonable in determining the feasibility of implementing a more lenient pet policy.

On the other hand, if the restriction against pets is contained within a provision in the governing documents, then the board has no option except to prohibit pets on the property except those that are medically necessary. There's still hope, however; the homeowners could gain the support of the requisite number of neighbors to amend the documents to allow pets -- read your Declaration to determine the specific manner in which it can be legally amended.

Sincerely,

Margey

I am a new VP of my HOA.  The previous officers passed a variance to a covenant that was clearly in violation of OTARD in regards dish placement.  This variance was not voted on by the membership and the explanation was that current covenant was unenforceable and needed to be clarified.  Now it is specific to location despite objections from the membership on the interpretation.  Bylaws seem to be silent on the issue.

Can they do that and can we "grandfather" people into the new covenant?   

- Jason

No community association board of directors may pass a rule that supersedes federal law. For more information regarding restrictions on satellite dishes, please go to Links and Resources page.

Sincerely,

Margey

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