Ask the Expert

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

A board member was given a gift certificate from the President and Vice president of our association who used their personal funds for the certificate. Gift certificate was for outstanding work for the community. Our documents prohibit compensation to board members from association funds. Was this appropriate, ethical, etc?

- M.

I do not consider a personal gift from the president to a deserving board member in recognition of that board member's volunteer efforts on behalf of the association to be considered compensation or a conflict of interest.

Sincerely,

Margey

We have an Association that has let their status become inactive with the State and have been sent an arbitration notice regarding a fence we have erected. The exact design of the fence is on at least two other properties in the community and the Architectural Committee of the Board who didn't file to remain active are sueing us to take it down. Our Deed Restrictions do not specify design, only that the fence be of wood construction (which ours does meet) and there are at least 25 other fences in the same neighborhood which also have various designs. First, can an inactive Corporation file suit and second can an Architectual Committee decide something doesn't meet aesthetics when it already exists in the neighborhood? Thanks for any help you can provide.

- Darlene

A community association jeopardizes its insurance coverage and legal protections by not maintaining its corporate status, but in most situations it remains a valid entity. Therefore, its board of directors maintains its authority to enforce the governing documents.

Please enter "deed restriction enforcement" or "architectural control" (without the quotation marks) in the search field on the left side of the page to learn more about whether the board may prohibit structures that were previously approved.

Sincerely,

Margey

I have to send out proxy forms to have the owner members vote on issues of their condominium association. Does the proxy form require that their name and address be on the proxy form or should the vote be anonymous and not have a name and address on it? Thank you.

- Jim

Homeowners execute proxies when they want to assign their vote to someone else. General proxies authorize the proxy holder to vote in any manner he or she sees fit; directed proxies instruct the proxy holder exactly how to vote.

The actual vote must be by ballot, conveyed to the proxy holder at the meeting in exchange for the original proxy form -- the proxy holder hands the proxy form to the manager or elections person and, in exchange, the proxy holder is given a ballot. If proxies are allowed to be submitted by mail, the association retains the form and gives the ballot to the proxy holder when he or she signs in. If you are intending to allow homeowners to vote without having to attend a meeting, an absentee ballot would be used.

Your state statutes and/or Bylaws contain detailed information regarding the election process, including whether a vote must be cast by secret ballot.

Sincerely,

Margey

At our annual meeting of our HOA the candidates presented proxies they had obtained from residents, the question is regarding the acceptance of said proxies. The board mailed out proxy forms. Many of the proxies submitted were on copies of the form with the signatures of the voters on the original. Many residents had misplaced or not received forms. Are these proxies valid not on original HOA letterhead? (The presidents' signature on the proxy forms is copied.)  The neighborhood newsletter made note that the proxy must be one community letterhead.

- Lisa

In most situations, if the annual meeting notice stated that only the proxy form provided would be accepted, then no other formats would be allowed. However, copies of the form, as long as the signatures are original, should be permitted.

Sincerely,

Margey

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I live in an Illinois HOA community. According to our Declaration and IL State Statutes, "the board of managers shall annually supply to all unit owners an itemized accounting of the common expenses for the preceding year actually incurred or paid".

Our HOA board has decided against mailing these out at any time, and to make the accounting available to owners only upon request or at the annual membership meeting.

My question is, in what manner is the board required to "supply to all unit owners an itemized accounting"?

Neither the Declaration or statutes specify, but I know that all owners are not getting expense/financial reports because they do not attend meetings or make a request. "Supply to all" indicates to me that they should be mailed to each and every owner annually.

Also, the board has said that because the dues amount and budget amounts haven't changed, there is no "proposed budget" that they are required to distribute.

Please clarify and thanks very much.

- K.

Your board members may be trying to control costs as much as possible in order to maintain maintenance fees at a reasonable letter. Since your association's governing documents do not specify how the board must provide the annual accounting to the owners, it's possible that the mandate to supply that information is open to interpretation. It doesn't sound like the directors are trying to hide the information since they are willing to provide it when asked and to distribute it at the annual meeting. Reflecting the belief of many community association board members, your directors' philosophy may be that if an owner is interested in the financial condition of the community, he or she will take the time to make a phone call to request a report or attend board and annual meetings.

On the other hand, not drafting an annual budget may indicate that the board is not focusing on the impact oil prices and weather-related disasters has had on the financial operations of your community. Services and supplies such as common area property and liability insurance, electricity and gas service for common areas, asphalt roof shingles and trip charges for contractors are all affected by rising oil prices and natural disasters. Specifically, insurance premiums have risen precipitously over the past few years. I would recommend that your board prepare a budget line item by line item, consulting with the association's accounting advisor as well as service providers including the insurance agent to determine as closely as possible the anticipated cost of each category of expenses.

Sincerely,

Margey

Escrow closed on my on my condo November 2005, my HOA budget and all related items were presented when I signed loan documents. Every realtor representing sellers in this community notes in their MLS listing, the complex is being repainted and patios being rebuilt. It took 6 months to inquire with a neighbor about the painting and why it was taking so long. At this time my neighbors advised of several failed attempts to pass an assessment to make emergency repairs for years. Rebuilding of the patios was just part of the assessment that was never passed. Now 2-3 units had tarps on the roof for several months, those roofs were torn of this week. So a few people will get new roofs, but rumor is a small assessment will be levied to pay for that.

How can realtors and their clients, mislead buyers? I feel my HOA documents were held until the last minute to cover up several issues, and the termite inspection ordered by my HOA shows extensive termite damage to my unit. When signing loan documents on Thanksgiving weekend I was overwhelmed and did not read all of the many reports provided. I feel realtors and the sellers should be forced to delete all notes in the listing about paint and patios, since the HOA has no money at this time to complete either. The special assessment was $6-$8000 2 years ago when it was voted down, so today I would guess it could cost upward of $13,000.

If I started my own campaign to pass this assessment, could I use public record to show what each unit owner paid for their condo, and how much they owe? I have the information, to date in my complex I am the only unit owner that owes over $350,000 and I am in favor of passing this assessment to ensure I can one day sell. Of 50 units, less then 10 owe more then $200,000, 10 are free and clear, and the rest owe between $1-$199,999. With my purchase price of $465,000 everybody in this HOA has the equity to pass the assessment.

- Jacque

If you believe your Realtor or title company committed fraud in the sale of the condominium to you, consider filing a complaint with the local Board of Realtors and your title insurance policy. However, one should always carefully and thoroughly read any contract before executing it, despite the volume of small-print pages.

Many states require that community associations' governing documents and other relevant closing information be provided to the buyer a specified number of days before the scheduled closing. You can find out if your state statutes have such a requirement by going back to our State Resources page.

Determining your neighbors' balance on their respective mortgage and their original purchase price is not relevant to the need to approve a special assessment to return your association to sound financial footing. I urge your board to retain a Reserve Specialist (a designation conferred by the Community Associations Institute at to conduct a reserve study to determine the remaining life and replacement cost of the major common area physical components and calculate how much money the association should have on hand now and in the future for the replacement of those components. The reserve study can also identify deferred maintenance and suggest reasonable operating fund goals.

With information from the Reserve Specialist in hand, your board can determine the deficiency in the operating and reserve accounts and the special assessment amount necessary to adequately fund anticipated capital (major) projects. The evaluation of deferred maintenance obligations will guide the board in setting realistic maintenance fees.

For more information regarding community association funding requirements, click on "Search" on the left side of the page, and enter "special assessment", "budget" or "reserve fund" (without the quotation marks) in the keyword field.

Sincerely,

Margey

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I live in a community where the ARB (Architectural Review Board) regulations have been loosely enforced for a number of years. Recently there have been a new slate of ARB committee members who have sent letters to the majority of the homes in the neighborhood stating that they have one or more violations. I have two questions: Are the ARB members who "patrol" the neighborhood permitted to come on the homeowners property, including entering the backyard to look for offenses? Also, is there a point when they can be declared as harassing a homeowner i.e. when one "violation" is corrected there is another letter with a new complaint sent within another month.

- Karen

In most community associations, the Architectural Control Board reports to the Board of Directors which has ultimate responsibility for the operations of the association. The board should develop a policy resolution addressing the inspection and enforcement parameters of the ARB, and ensure that no ARB member oversteps his or her authority.

Your association's governing documents may permit access onto a Lot under specific circumstances. However, local ordinances or state law, both of which supersede the governing documents, may consider nonemergency access to be trespassing. I urge the board to consult with a competent attorney knowledgeable in your association's governing documents and community association law to determine the appropriate authority of and limitations on the ARB.

Sincerely,

Margey

Can you please help me with a couple of issues that I have as a new association president.

1. I am the president of a homeowners association and had numerous complaints about issues in the covenants. When I address these issues to the homeowner am I under any obligation to give that individual the names of the people that complained? In some cases, I feel this could become a dangerous situation depending on what the violation was.
   
   
2. If we have common areas like ditches and retention ponds that were turned over to the association, how do we do maintain them? I have a homeowner that is telling us we cannot spend money if the task does not benefit all of the other homeowners. If these ditches were to flood from lack of maintenance, it would only affect a small percentage of homes. However, the water that is in these ditches comes from 95% of the homes.
   
   
3. Last question, can we form a welcome committee and use homeowner dues to buy an inexpensive gift to welcome a new homeowner to our community. Thanks.

- JS

Resolving deed restriction violations can be stressful and distasteful to everyone involved. Why not consider crafting a policy resolution on deed restriction compliance in which residents are encouraged to resolve their differences themselves before asking the board for assistance? The resolution could include a provision stating that the board will disclose the name of the complainant to the alleged violator except in circumstances that require sensitivity, diplomacy and/or discretion. By encouraging residents to talk with each other to resolve differences, the board is fostering a sense of "community" in your community and has more time to focus on the business of the association while leaving the door open to intervene in disputes when necessary.

In most homeowners (not condominium) associations, the association owns the common elements and is responsible for their maintenance. Your association's governing documents or plat should specify if the ditches and retention ponds are indeed common elements and the obligations of the association with regarding to maintenance. While all owners may not be personally affected by flooding ditches and retention ponds, their property values would be impacted by declining values of those homes in the neighborhood that are damaged by unmaintained drainage facilities.

A welcome committee is a wonderful way to introduce new residents to their neighbors and their homeowners association. While the authority to offer a small gift could be considered a general "power" of the board as typically detailed in an association's Bylaws, consider the Old West tradition of welcoming new pioneers with bread and salt, representing the hospitality of folks isolated far from one another in a large country and indicating that they will never go without the necessities of life.

Sincerely,

Margey

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I live in a development of 180 homes. The builder that I signed my contract with went bankrupt after 3 years and another builder took over. He made it known on several occasions that he was in no way responsible to us for our homes, he was a completely different "entity" (as he put it). Now 8 years later, he is done with the development and wants to turn over an association that he claims is in place to the homeowners. He never formally formed an association, he just billed us $120.00 a year for the last 8 years, he never informed us of a board or presented us with documents pertaining to a board. He wanted only to collect funds. We would get a bill payable to a PO Box, when we questioned who the board was and where it exists and what the bylaws of this so called association were, we could not get an answer. We now have some people in our development that want to take over this association, they are claiming they have the legal right to put liens on our homes for all arrearages owed. We are claiming that there was never an association and the people that paid those bills issued by him were incorrect in paying them. Needless to say, it is a big mess with a lot of hostility. My question is, do they have a legal right to put liens on our homes when we never signed any contract with their builder and our builder went bankrupt... also, we were never informed of anything to do with an association, we were just issued bills for money owned, the bills never even stated what the money was owed for. Any assistance is greatly appreciated. Thank you.

- Nanci

I suggest you talk with the Realtor, attorney or title/escrow company that you used when you purchased your home to determine if any governing documents for your association existed at that time. If there was a Declaration/Covenants/CC&Rs/Restrictions document (the name varies in different parts of the country) that established a community association with mandatory membership and lien-based assessments prior to your closing on your home, then that entity probably continued to exist unless it was deliberately disbanded in accordance with the dissolution provision in the governing documents and/or state statutes.

If the homeowners association existed prior to your purchase of your home and your Realtor, attorney and title/escrow company did not provide you with the appropriate and necessary notification of its existence, you may have recourse against one or more of them. Similarly, if the lien for assessments was established before you closed on your home, the association may be legally responsible for collecting the assessments by all legal means available, including recording the lien and possible foreclosure, to ensure that there are adequate funds to meet the association's financial obligations. Your attorney should be able to advise you with regard to possible legal action you may have if any statute-mandated notification of the association was not provided to you prior to or at closing.

With regard to what your assessments pay for, I would hope that your new board of directors, which consists of homeowners like yourself, prepares a budget that details the expenses incurred by your association which could range from landscape maintenance of the common areas utilities for amenities and irrigation system to liability and common area property insurance policies.

Sincerely,

Margey

My subdivions is 6 years old. I have lived here 5 years and owned 2 homes. The Deed of Restrictions was never presented to me at either closing. A voluntary HOA was formed 2 years into the development and at that time they decided to start enforcing the original Restrictions of which many home owners never received a copy of or worse yet were never presented these documents at closing. And I might also add, that the original developer filed bankruptcy prior to the formation of the HOA. The bank holding the note on the land repossessed it and sold the remaining lots off to local builders. Half the people have the Deed, the other don't. So....can the HOA force the residents to comply to the restrictions if there was never an acknowledgement of the Deed at the closing?

- Christina

A similar question was sent to me within three days of your query; perhaps it was a neighbor of yours concerned about the same issue. See the response I sent her above.

Sincerely,

Margey

I have just been named the President of our HOA. At the first Board meeting I asked for a copy of the deed restrictions and bylaws. I was told that the deed restrictions could be located, but the bylaws were probably "lost in time". Six weeks have passed, and no copy has been located yet.

I have two questions:

1. If we cannot locate a copy of the Association bylaws, can we create another set? And if so, do we need to specify that the new set supercedes the old one?
   
   
2. Is there a resource available that I can access over the net with available templates for bylaws?

Thank you for your help, this is all very new to me and I appreciate the information on your website and will share it with the Board of Directors.

- Mark, Louisiana

Congratulations on your election to the presidency of your community association!

While it is possible to create a new set of Bylaws, first exhaust all efforts to find the existing ones. Send a notice to all association members asking if they may have received the Bylaws when they closed on their home.

Ask Realtors who are active in your community if they may have a copy. Ask title companies who closed on homes in your community the past year if they have a set. Contact the original developer to see if he or his attorney still retains a copy.

If you're still unsuccessful in locating the original Bylaws, I recommend that you utilize the services of a competent attorney knowledgeable in community association law to develop a set of Bylaws appropriate to your community and its unique circumstances and to ensure that the document is valid.

Sincerely,

Margey

Our Association is challenged by many residents simply ignoring their lawn care. We have a rather vague item in our Covenants that covers such but our Board wanted to develop a Bylaw that would specifically address our expections of the home owners. What is a good resource or example of an existing Bylaw on what is and is not acceptable lawn care?

- Michael

Rather than amend your association's Bylaws, which typically require a certain percentage approval by the homeowners, consider crafting a resolution that addresses acceptable lawn maintenance standards. The Community Associations Institute offers several publications that specifically address landscape maintenance specifications.

For information describing the process of developing a resolution, click on "Search" on the left side of the page, and enter "resolution" (without the quotation marks) in the key word field.

Sincerely,

Margey

Our association entered in to a multiyear masonry agreement with a vendor in 2003. The vendor's work is not the greatest and has been questioned. They were supposed to do one stage of the work in 2005, but overscheduled, so it was planned for 2006. They have two remaining stages of the original agreement yet to do. However, they are a year behind and will be $16,000 (>10%) over budget if we continue. We have identified another vendor whose price for the same work is cheaper and more comprehensive, so we decided to change vendors.

We subsequently instructed our property management company that we no longer want to work with this vendor, but the property manager claims that the agreement is an enforceable contract requiring us to pay for the work whether it is completed by the original vendor or not and that the vendor will take us to court if we do not comply.

We've review the original agreement and it does not appear to be a binding contract, only a work agreement.

What is a board to do about a situation like this? We are seeking legal advice, but your thoughts are appreciated.

- John

I would hope that your contract or work agreement contained provisions specifying a completion date and consequences for failing to perform satisfactory. If the contractor breached the agreement, it is no longer valid. However, if there is a dispute over whether the contractor has breached the contract, your association should retain the services of a competent attorney to represent the association's interests and determine the best manner to legally extricate the association from the situation.

Sincerely,

Margey

I am the current chairman of our Architectural Design and Review Committee. Our Board of Directors a couple of months ago requested the committee to make a list of guidelines which we did. The Association has been operating for the past 8 years without Architectural Guidelines. Our current DCR has a few restrictions stated and states all homeowners to submit applications for approval before proceeding with a project. which we followed. The committee introduced many new items. The board recently sent out a community letter letting homeowners know they were amending the DCR (Declaration of Covenants and Restrictions) to include the guidelines. I reminded the board the only way to amend the DCR is thru a community vote. For the guidelines to be followed and the changes be made is a board resolution appropriate in this case or should the DCR be amended by is a community vote? 

- Marci

Yes, a resolution would be more appropriate than amending the Declaration in order to implement design guidelines. For more information on architectural guidelines, click on "Search" on the left side of the page, and enter "architectural guidelines" (without the quotation marks) in the key word search field.

Sincerely,

Margey

Our community has just been informed that the past president has embezzled money (over $10,000) from our Association.  We have also just discovered that this past president was not a property owner, but instead lives with a property owner and has done so for approximately 18 years in our community. Our bylaws state that a board member/officer must be a property owner.

1. Will it be necessary to hire an attorney before calling law enforcement?
   
   
2. Is insurance for this act covered under our policy of liability insurance?

- Susan

Community association board members and officers have a fiduciary duty to act in the best interest of their community. Breach of that trust can result in very serious legal implications. I urge your board to immediately report the suspected theft to the appropriate law enforcement authorities. If you association was covered by fidelity insurance during the period of the alleged theft, your board should immediately file a claim with the insurance agent.

I encourage your board members to consult with your association's attorney to determine their own potential liability for the theft which may have resulted from their negligence or inattention. The attorney can also advise the board regarding the possible necessity of filing a personal lawsuit against the former president. Additionally, with professional advice from both the attorney and a CPA, the board should develop a policy regarding access to association funds to prevent recurrence of this sordid and inexcusable situation.

Sincerely,

Margey

I understand by-laws are the rules by which the association is governed and deed restrictions are rules regarding property.

Can a deed restriction change (i.e., fence issues, height, etc.) be put through as a by-law change? 

- Michelle

In the hierarchy of governing documents, Bylaws, which address the administration of the association, typically are below the Declaration, which generally addresses the operations of the community. Consequently, in the event of a conflict, the Declaration would prevail.

Sincerely,

Margey

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We have a homeowners association which is trying to use association funds to pay for lawn care at the entrance to our community. The only problem is that this land is owned not by the association but by individual property owners and is shown on the development plat. There is a five foot easement owned by the township on the edge of the road, but has been cut by individual homeowners up to this point. Can the homeowners' association use association funds to cut grass on association member's land even if it is not a common area?

- Tami

While governing documents and state statutes address the major issues affecting community association operations, there are times when boards of directors must make decisions based on reasonableness, with no predetermined rule guiding their way. Entrances into a community have a significant impact on property; positive first impressions increase or substantiate property values while an unkempt and unattractive entrance can depress values. As long as maintenance of the entrance does not require extraordinary cost or effort, the board may have a valid reason to provide association funds for grounds care purposes, and justify the expenditure with the business judgment rule (see previous discussions about this rule by using the Search function on the left side of the page). However, if there is significant dissent over the decision, I would suggest that the board obtain an opinion from a competent attorney knowledgeable in your state's community association laws.

Sincerely,

Margey

The entrance to ***** was landscaped by our developer in 1992. The HOA took over in 1999. The shrubs had been maintained by the developer and then the assoc until 2002. Part of the shrubs are on a homeowners property and a group of homeowners no longer want the HOA to pay for maintaining these shrubs. It would cost the HOA $150.00 per year to take care of them. The homeowner is willing to give an easement to the HOA to continue maintenance however this group has threatened to sue the association if we do this. Some BOD members (including myself as I am a BOD member) feel that we should have control over how the entrance should look and an easement would give us this control. Do you feel that this group would have a case against us in a lawsuit and do you have any other recommendations on how this could be handled differently?

- Mary

I received a very similar question recently, perhaps from a neighbor of yours. See the response I sent her above.

Sincerely,

Margey

The house that we reside in is nearly thirty-years old. It is severely termite infested and will require nearly $23,000 in wood repair. We've been trying to get our neighbor to trim back her trees off our roof. Also, in order to fumigate our house, the termite tent must go over our roof and into the neighbor's yard. The neighbor threatens to call the police if we touch her trees or if our termite company goes into her yard. This situation has continued now for nine years.

Our CC&R's states very clearly that we have a 3-foot easement extending onto our neighbor's property. The CC&R's also states that we have the right to go onto her property for the purpose of maintaining our wall and wood trim from her yard and that we, as homeowners, need to keep our respective properties well maintained, in a neat, orderly, and safe condition. I'm sure termite tenting would be considered maintaining my property.

If I go onto the neighbor's property, my local (California) police told me that it's possible, even with a CC&R in hand advising of them of my HOA rights, that I could still be arrested.

I believe I have the right to maintain my own home, yet, this neighbor is prohibiting me from this right.  My home's wood and paint looks unsightly and is causing the decline of market value of my neighborhood.

The HOA President stopped by to evaluate my situation.  The President said that I must handle the matter myself by taking the neighbor to small-claims court and offered no other solution. It was rather strange that the HOA President made her determination without consulting with the Board members. without even a vote.

Shouldn't the HOA be obliged, by law, to handle this affair with their own team/lawyers instead of placing the burden on my shoulders? If they continue to sidestep this issue, should I take the HOA to court and force them to be responsible?  If I take the HOA to court, what strategies would you advise?

Please help!  Thanks for this terrifically informative website!!!!

- B.

Your community association's governing documents should detail the authority and obligations of the board of directors. Typically in a subdivision, owners are responsible for the maintenance of the exterior of their homes, including any shared easements with neighbors. Unless the governing documents specifically instruct the association to intervene in disputes between neighbors, your board of directors cannot provide assistance.

To protect you from charges of trespassing and possible harm, I recommend that you file against your neighbor in small claims court where a judge could issue clear directives that will enable you to legally and appropriately maintain your house.

Margey

You were so helpful with a question we had a year ago, that we hoped you would again share your expert advice.

We live in a 24 unit condo complex, three buildings, 8 units per building.  The facilities are approximately 7 years old. In a recent reserve study, the engineer noted that he did not feel there was sufficient attic ventilation in the 6 top center units and felt this could potentially create a moisture problem. While there are no signs of any problems at present, the engineer did recommend that two additional vents be installed in each of the 6 attics.  According to our condo docs, the attics are the responsibility of the unit owners. Would it reasonable to ask the unit owners to have the ventillation installed or would this be an association expense since a moisture problem in a unit owner's attic could potentially cause damage to the exterior and/or roof of the building? Thank you so much for your assistance.

- Susanne

If installing ventilation would extend the life of the common elements, then it would seem reasonable for the association to expend common funds to have the work performed. If homeowners are polarized on the issue, however, I recommend retaining legal counsel to provide a written opinion regarding the issue.

Sincerely,

Margey

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You have an absolutely wonderful website! I've learned SO MUCH just by visiting.

My question concerns Lot Premiums for Location. I live in Florida and our new community has an HOA. Control was just turned over from the developer a few months ago and the Board was elected. I have only lived here for 8 mos. and I've been very pleased until recently.

I chose a lot on the pond at a significant lot premium for the view. We were told prior to building that we would not be permitted to erect a fence over 4 ft. high, it had to be black and it had to be of a wrought iron style because of the view and drainage easement issues. Not a problem.

Now, a neighbor has installed a 6 ft. white pvc fence on the pond. Not only is this a violation of the Declarations and Covenants but it is also built on the public drainage easement. When I emailed the HOA President he informed me that he had approved it and that the Management Company had also approved it. I was told that it was out of his hands and to contact the Management Company. The Management Company has washed their hands of it claiming that they are simply the "middle man" and that the HOA has the control. I'm so confused! I would like to bring my complaint before the Board for action on the violation yet, if they aren't going to act on it as it is a dead issue, who do I go to from here? At this point the Management Company has told me that they are very sorry for my loss (the big $$ Lot Premium to look at a pond not a fence) but that I needed to hire an attorney. I would like to handle this as neighbors and I think that an attorney would inflame the already sensitive issue. Where do I go from here? Thank you for any direction you can give in this matter.

- Bill

You may indeed require the services of a competent attorney knowledgeable in Florida community association law to help educate your new board of directors regarding their fiduciary obligations to the members of your association. Retaining legal counsel doesn't necessarily mean that the issue must be confrontational or disagreeable, so long as both parties maintain open-minded communications with the intent of resolving the issue in the most reasonable and amicable manner possible.

Sincerely,

Margey

Almost six years ago, we installed a natural gas grill alongside our patio at our townhome development in the Chicago suburbs. At that time, the by-laws did not state anything about restrictions for these grills.

Since the time of installation, almost six years has gone by. We have never received a complaint from our Association concerning our grill. Now all of a sudden, it was stated in our last newsletter that these are not allowed per the rules and regulations of the by-laws. This language was added to the rules and regulations well after we installed the grill. Also, the Association has taken several years to even put anything like this in the newsletter and to say they will be inspecting for these grills.

My question is this: Is our grill grandfathered in because it was installed before there was any language in our rules and regulations that prohibited them?

We have not received a notice yet telling us to remove the grill, but I suspect it will be arriving shortly and I want to be prepared. The grill is going no harm and actually looks fantastic (it is a $2,500 item, not something that is lowering property values).

- Eric

Most local municipal ordinances prohibit using a gas or charcoal grill within ten feet of a multi-family dwelling. This law is based on historical data proving that fire and high temperatures from grills closer than ten feet can heat certain exterior surfaces to the combustion point, and the subsequent fire can destroy entire buildings.

Before you challenge your board of directors, investigate local ordinances to determine if there is a prohibition against grilling within a certain number of feet of a building. If no such law exists, consider the potential personal tragedy your grill can cause your neighbors and the possible property damage that can result.

Sincerely,

Margey

I live in a apartment type condominium. And we have one couple that are so bad and have made enemies out of everyone. Now they are fighting with the couple upstairs saying they're dryer is making a lot of noise well the man had it fixed. So what they are doing is posting big nasty notes on the outside of they're condo doors for everyone to read. How embarrassing this is. Can the association insist that these notes be removed? I would realy appreciate your answer we are so desparate. Are the owners of a condo aloud to post anything they want outside they're condo doors? Thankyou so very much.

- Lee

Sometimes a nice chat goes a long way toward resolving misunderstandings and acrimony among neighbors. I recommend that one of your board members visit the couple to determine the real cause of their disturbing behavior and to try to resolve those issues. If those efforts at reconciliation are not successful, it may be necessary to ask an attorney to mediate the problem or perhaps to determine if legal recourse is appropriate.

Sincerely,

Margey

About 12 years ago, our developer put in a pool at the end of a cul de sac. The neighborhood at that time decided against a parking lot (for whatever reasons) and the developer promised the homeowners closest to the pool that there would never be parking.  Now the neighborhood has grown and new streets with new families with small children are being told that they are not allowed to park along the streets or around the cul de sac, but that they have to walk or ride their bikes if they come to this pool.  Some of these newer homes are a mile away from the pool.  The street they have to ride down to get to this pool is 35 mph.  There is, as you may imagine, a huge amount of tension and frustration between the neighbors who want to park (for safety reasons) and the two neighbors living on either side of the pool who do not want to see cars parked in front of their homes during the summertime.  The Township installed eight "no parking" signs up and down this small street. 

The homeowners association put in four parking spaces towards the back end of the pool in the grass, and limited these spaces to people with disabilities, and people with "special needs."  It was left to each individual to determine their own special need. There are 70 homes in this neighborhood so far, but there will soon be 90 once the developer sells the rest of his lots.  The two homeowners on either side of the pool have been relentless in their pursuit to keep the "no parking" rule maintained and have called the police on anyone who has parked there. What options do we have as homeowners?  We were not told there was no parking by the pool when we purchase our homes, yet we never imagined there wouldn't be parking at a community pool.  Where do we go from here? 

- Kelly

While I understand the desire to have convenient parking by the pool, the homeowners adjacent to the pool have the right to protect their property values. It seems to me that if the homeowners in the association are serious about providing nearby pool parking, they might consider collecting a fund to retain legal counsel to determine the feasibility of the association purchasing one of the lots and converting it into a parking lot.

Sincerely,

Margey

Hi,

I live in a new upscale ($600,000 -  $1,200,000 homes) community in California with about 150 homes.  The builder is currently still the majority (2 out of 3 members) on the HOA board and I am the one homeowner. There are only about 4 homes left to sell at this point, so the homeowners own a vast majority of the lots.  I have a question regarding seemingly contradictory CC&R rules on parking/storage of recreational vehicles.

They are:

(b) No boats, trailers, recreational vehicles, campers, or inoperable vehicles may be stored within **** *****, except on the side or rear of a Residence, and screened from street view. (NOTE: There are further restrictions in the ARC rules and bylaws that require 85% screening from street and/or any adjacent lots).

(c) Campers, boats, trailers, motorcycles, commercial vehicles and trucks in excess of three-quarter tons are not to be parked in any carports, parking areas, or otherwise, other than within enclosed garages except for periods not to exceed four hours for the purpose of loading and unloading.

The two seem to contradict each other due to one that says vehicles cannot be parked anywhere (by use of "otherwise") but in enclosed garages.  The exception to that rule is RVs).

There have been 2 applications submitted for the improvements required to park an RV and a boat on the side yards.  Many in the neighborhood are upset about this as most bought thinking this was not allowed (based on paragraph c).  Those that submitted the application argue that paragraph (b) allows it. 

I believe the majority of people in the community do not want these types of vehicles in the neighborhood.  We held a public forum meeting to discuss this and the majority of the people at the meeting did not agree with this type of storage.  The board decided to send out a questionnaire to determine the communities view fully (this is currently underway).

The questions I have are:

1. What trouble can we get into by denying the current applications based on paragraph (c)?  These contradict one another and the community appears to be supportive in denying this use and I am under the impression that we should interpret the rules in the most restrictive meaning.  It appears that we have community support in changing the CC&R to a more restrictive language as well.
   
   
2. Can we delay our decision on these applications until we receive community feedback and potentially change the CC&R?
   
   
3. If we were to approve the improvements (driveway extensions, screening trees, etc.), can we later change the Parking Use restrictions to disallow these types of vehicles and will it apply to them?
   
   
4. Finally, with regard to screening the item from view from adjacent lots, should this include the view from a second story house window?

I really appreciate any feedback you may have. 

Sincerely,

- Van

The two provisions do seem to contradict each other or, in the least, create enough confusion that clarification is in order. I recommend that your board consult with a competent attorney knowledgeable in California community association law to determine the feasibility of denying the two submitted requests to park an RV and a boat pending the outcome of an effort to amend the CC&Rs to reflect clear language regarding this issue.

Your CC&Rs may require the board to respond to variance requests within a specific period of time, usually thirty days. Failure to respond may mean approval of the request, so it is incumbent on the board to respond timely. It's easier to reverse a denial than to later revoke approval.

Sincerely,

Margey

Is it legal, in Texas, to restrict the number of pets a person can have when they are indoor pets and your yard is fenced?

I recently bought a house with two lots and interpreted the rules to be two dogs per lot. Now after specifically asking I was told it is per house.

I'm moving from a sub-division where I was terrorized by Roosters being raised for the animal-fighters in Louisiana, so I'm very much in favor of rules regarding nuisance pets. But if I keep my pets from being a nuisance how can I be prevented from having them? This homeowner Association did not return my calls for several weeks or I would never have purchased there. I am so dedicated to my pets and I will not get rid of them. What can I do now?

This house was extremely difficult to purchase, I doubt I could start over again. Very few people in the subdivision have fences and I will have a very nice and very effective fence. Sincerely,

- Joel

It seems to be that the first obstacle to overcome is getting your association to respond to your communications. I suggest that you send each board member a courteous letter by certified mail asking for clarification of the governing documents that provide for one pet per Lot . When a board member responds to you, be sure to remain polite in your discussions, explaining that the documents are not clear to you with regard to the pet rule.

When governing documents are vague on an issue, the board of directors is often empowered to promulgate a policy resolution clarifying the issue. If your pets remain in your home and you do not walk them around the neighborhood without picking up any excrement, your board could consider granting a variance to the rules and allow you to keep your pets.

If you reach an impasse in your discussions, you might need the assistance of a competent attorney knowledgeable in community association law to advise you of your rights in this situation.

Sincerely,

Margey

Our homeowners association is currently trying to add a restriction to our existing CC&R's. This restriction would limit the height of existing trees to roof-level, or "line of sight" from first floor living spaces that are in the way of the view of a mountain in our neighborhood's background. There is currently no language whatsoever as to the restriction of landscaping other than by architectual committee approval. However, we are an original home owner in the development and at the time of purchase, no committee was formed, nor was that part of the CC&R's enforced. This committee was formed three years after purchase of our home and landscaping of our yard.

Our home is one of the "view" homes on the front side of the neighborhood that faces the mountain. Our front yard has many trees planted 8 years ago upon purchase of the home - two by the city - that would be required to be trimmed every year at our expense, to maintain the view of the neighbors on the back side of the neighborhood who only have partial views.

Can the association make this restriction retroactive to the existing trees, and if so, by what margin must the vote be? 100%?, 2/3rds? How exacting must the language be? And is it within the rights of the association to protect partial view homes at the cost of the view homes - for which the homeowners paid far more to have?

- Sarah

Your board of directors is obligated to act in the best interests of all owners in your community. Their actions and decisions require thoughtful deliberations, perhaps including soliciting owner input, to ensure that all issues and perspectives have been considered. To ensure that all owners receive equitable treatment with regard to trees blocking views of the mountains, I suggest that the board first conduct a townhall meeting at which owners are invited to calmly express their views. With an understanding of all aspects of the situation in hand, the board should then utilize the services of a competent attorney knowledgeable in both your state's community association laws and your association's governing documents. Decisions impacting property values are best made with the input and oversight of legal professionals.

Sincerely,

Margey

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