Ask the Expert

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

I live in Florida and have a few questions and I did a search and did not find the answer to any of the questions but there is so much.

1st Question: Our subdivision has about 90 homes, our treasurer is a homeowner and also managed to appoint her HOA management company she works for without calling a home owners meeting or a vote.  I would say her being on the board and being the manager of our association is definatly a conflict of interest, am I correct? 

2nd Question: Although she is the "treasurer" she is friends with the ARC person and the ARC person is going strickly by the bylaws the developer established the "treasurer" steps in and tells her she has to deny these request when there is not anything in the bylaws. 

I believe the "treasurer" is confusing our bylaws with other HOA bylaws that her company manages and it has gotten to the point that she is trying to enforce things (on her personal standards) that are not visible from the street & are in back of our house only to be seen from the wooded area and it does not decrease property value (chainlink fence in the backside to preserve the wetlands/nature view).  Our bylaws state nothing that we can not have chainlink nor does it even address anything regarding a fence only when referencing lots around the retention pond. When my neighbor and myself (both have chainlink in back) request for her to show us, she comes back with "the developer forgot to put it in it". This is a new development and almost a year since we took over HOA and we have never voted on anything to amend our bylaws. I guess the question is how do we handle the obviouse conflict of interest and at the upcoming annual meeting, are the homeowners able to address this a  nd petition for her to step down and resign from the boad?

Then of course how do we handle the denial of our ARC forms (even though we had these fences now for 1 1/2 years) since we never requested approval prior to now (only because we were told to get it on file). 

Now the final question, when my neighbor consulted an attorney and advised her she can not amend a legal document on her own then she threatened them with if they fight this, the HOA will be required to pay the attorney fees which will cause our dues to go up.  I know you addressed this in a past question but I just wanted to confirm they are unable to use HOA $ for this cost unless we vote on the increase correct?  We want to handle this without it getting personal since I am also friends with the ARC person but I refuse to tear down a fence and have my neighbor tear theirs down, when they paid more $ and theirs definatly can not be seen since our lot is deeper then theirs, I just think she may make it get ugly.  1 more important issue, I live next to a nature walk, that leads to a play area, which is very scary and not maintained within the bylaws (trash everywhere, bugs, snakes) since no one will go there except teens to do things that are not legal. This nature walk has "nothing" in the bylaws regarding anything done around it so don't think it is an issue, correct? Do we have to submit ARC forms if the request is not in the bylaws even if it is a structural improvment such as a fence not located on the retention pond. Thanks.

- Laura

While Florida law prohibits me from providing legal advice to Florida residents, I can tell you that, in general, it would seem to be a conflict of interest for a board member to hire the management company for whom she or he works without the board obtaining competitive bids. That board member should also recuse himself or herself from all discussions and delivery of material relating to the proposals.

With regard to the other issues you raised, each member of the board has a fiduciary responsibility to uphold the governing documents and comply with Florida state statutes regarding the operations of community associations and the powers and duties of the board. One board member alone does not have the authority to make decisions impacting the association's and individual homeowners' assets. I strongly suggest that every board member attend the free classes offered by the State of Florida through its contract with the Community Associations Institute to learn about the legal implications of serving on the board of directors and how to provide fair and equitable leadership. If a board member makes decisions or fails to act as required by governing documents and state statutes, he or she may be held personally liable for the consequences.

Sincerely,

Margey

In a development where the homebuilder is someone other than the developer, would the developer, who controls the board, have a fiduciary duty to the beneficial title holders during the executory period of their contract with the builder to supervise the builders activities and require that the builder make all disclosures required by law regarding construction defects known to the builder, and not known to the first purchaser.

- Steven

In his capacity as board member of the community association, the developer's responsibility is strictly governed by the association's governing documents. Typically, the board of directors has no responsibility to ensure that homebuilders in the community comply with construction industry standards unless the component falls within the parameters of common area maintenance or administration. The quality of a home's construction is a contractual matter between the homeowner and the builder.

Sincerely,

Margey

My association board is a very active dedicated one but lately there are some concerns about the correct response needed for letters from residents written directly to the board president.  The president shares the letters with the full board and the issue is placed on the agenda.  The letters are all related to covenants issues. Our association has a covenants committee and due process procedures in place. I believe residents have found that it is quicker to go directly to the board to have their concerns addressed. During board meetings the letters are discussed and often  information is requested of the site manager in the open meeting about the violator. Where can I find written information or guidelines to give to the board to let them know that what they are doing is wrong?  Or is it ok for a board to address the issue in an open meeting even when the violator is not present.

- Margaret

Many states have statutes requiring open board meetings except in very specific circumstances, typically discussions regarding personnel, litigation, contract negotiations and sensitive issues. To prevent lengthy discussions about less serious deed restriction issues from creating gridlock at board meetings, I suggest that the board craft an administrative resolution detailing the procedure involved in reporting and enforcing violations including deferring the initial investigation and hearing to the Covenants Committee. The board would then act as the appeals process if the owner disagreed with the Committee's decision.

For more information regarding reasonableness in enforcing community associations' governing documents, enter "enforcement" in the keyword search field. Another useful resource for guidance on community association operations is the Community Associations Institute.

Sincerely,

Margey

I live in a mobile home community in which the homeowners only own their mobilehomes and not the land, that is owned by someone else. We have a HOA, we also have an onsite property management company that contracts with the owner of the land and not the HOA to see to our day to day operations of the park.

My question is: How can we be sure our HOA Officers are on the up and up? They seem to have their own agenda. They had decided to have an annual 'membership' meeting and not a typical Annual Meeting, - no ballots were sent out, no proxies were sent out, we only received a poorly handwritten application of sorts if a person wanted to be considered for the Board. The 3 Board Officers that run our HOA have never been voted in or approved on a yearly basis, which is contrary to what our CC&R's state. Who would we need to get a hold of to investigate our situation, we are in Orange County, CA. Thank you.

- Irene

According to Ms. Eleanor Hugus, CEO of N. N. Jaeschke, Inc., an Associa member community association management company based in San Diego (www.nnj.com), both California civil code and the governing documents for your association establish specific standards regarding the format and procedures for annual meetings.

Ms. Hugus recommends that you first write to the Association board to request an explanation for the apparent discrepancy in the conduct of the annual meeting. If the board does not respond to your query, or if you are not satisfied with the response, you have the right as an owner to contact an attorney for guidance. Be sure to use an attorney familiar with California community association law. The Orange County chapter of the Community Association Institute (CAI) has a website at where you can locate attorneys in your area who should be qualified to assist you in this matter.

Sincerely,

Margey

We have a community of 394 homes.  I am on the board and we have one homeowner who has just started to go after the board for anything and everything.  Calling meetings to remove the board (with only 6 votes against) She doesn't think the swim team, social events or anything like that should go on.  She has a lawyer and has already cost the homeowners over $2,000 with her antics.  Even though the bylaws say an audit should be done every year, there has never been one in 14 years.  The management company (handles 200 subdivisions) says only one has ever done an audit.  She is in violation and we sent a letter and that is what started this whole thing... she can just nickel and dime us to death and all of the board is volunteer help?  The management company said some subdivisions have a clause that they will levy a charge against any homeowner that is costing the association additional costs with their constant requests?  We are in North Carolina.  Any suggestions?

Regards,

Bruce

It sounds to me like it's time for the board, the unhappy homeowner, and the manager to sit down with a mediator and hammer out every single pending issue. Many cities offer free or low-cost alternative dispute resolution services that cost much less than the ongoing attorneys' fees the association is currently incurring, and provide a better chance of amicably and satisfactorily resolving the issues so everyone can move on.

With regard to the audit, if your association's governing and/or state statutes require an annual audit, the board has no authority to defy that mandate. Just because other associations may be violating their Bylaws by not conducting an annual audit doesn't mean that your board can do the same. The board has a fiduciary duty to comply with the governing documents; failure to do so can result in personal liability for each director.

Sincerely,

Margey

Hello and thanks for the information provided on your website. I have found it very helpful.  I do have one question though concerning our current Board and the validity of the Board.

We are a newer association.  Currently there are 135 lots out of a possible 183 lots that are occupied by individual homeowners.  The remaining 48 lots are owned by builders and are either vacant lots waiting to be sold or have spec/model homes built on them for sale.

Our Bylaws indicate that each owner of a lot is considered a member of the Association.  It also states that each lot is entitled to one vote. The Bylaws then go on to state that a quorum is met when 20% of those eligible to vote are in attendance either in person or by proxy. 

Based on this, I feel that the required quorum is 37 members (183 owners of lots who are members multiplied by 20%).  Two recent association-wide meetings to elect four directors (two because of term expirations and two because of resignations) had only 27 and 29 members, respectively attend either in person or by proxy.

Did these two meetings of 27 and 29 members constitute a quorum?  I feel the 20% quorum as stated in the Bylaws should be based on the number of total members (183) and not the number of total lots (135) that are currently occupied by individual homeowners.

As a result, I think we have four directors (out of a possible five) who were not elected in a legally binding meeting of the members since a quorum, I feel, wasn't met.  Am I wrong?  If I'm not wrong, what type of remedy is there to rectify some of the controversial issues that the current Board is going forward with?

Thanks for your help and I appreciate all the work you do with this site.

- Ryan

I'm glad you've found our website useful!

Your association's bylaws should contain the answer to your question regarding quorum. Typically, bylaws specifically address whether the developer or owners of unimproved lots have votes equal to homeowners in the community. Either the Bylaws or the Declaration/Covenants/CC&Rs (the name varies in different parts of the country) may also contain a provision defining a "member in good standing" or "members eligible to vote". If your bylaws do not specify a differentiation between the types of ownership and define a quorum as 20% of the eligible votes without defining "eligible voters", then I would agree with you that the calculation would be 20% of 183 lots.

A possible solution to achieving quorum might be to persuade the builders to assign proxies to the board or to attend the meeting.

In order to reverse the election results, I would suggest that the board retain the services of a competent attorney knowledgeable in your state's community association laws to guide the board and membership through the appropriate process.

Sincerely,

Margey

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Am on the board of a homeowners association of a 170 home community in Michigan. My question is regarding when and how is the best way and time communicate to the membership that legal action is being taken against a homeowner in violation of the restrictions. This is our first action above and beyond send violation letters out and placing liens.

Up to this point we have communicated to our membership by posting a violation log which is posted on our website for members to see, however address and identifying the homeowners in violation is removed. We just show that a violation exists and what steps we are taking, etc. With legal action it is a little more expensive and costly and we should notify our members we are proceeding, the question how and when is best.

- Darren

Unless your association's governing documents or Michigan state statutes state otherwise, litigation against owners should be considered privileged information protected by state and federal privacy acts. You may want to disclose in general to the membership that the association is incurring legal fees in the enforcement of the governing documents, but typically it is not necessary to go into detail on the issue. If you still have concerns about appropriate communications, consider consulting with a competent attorney knowledgeable in Michigan 's community association law.

Sincerely,

Margey

We have a association located in Michigan. We pay a Property Management Company to take care of our Association.

The treasurer on the board deposits our association dues in her personal checking account. Is this legal? How do we go about getting her audited. Please advise.

- Donna

Common funds of the association should be deposited into accounts in the association's name only and for which signatory authority is limited to specific officers of the board. Requiring dual signatures on checks and withdrawals further protects those accounts. Since the entire board of directors is responsible for the proper accounting and disbursement of association funds, it would be prudent of them to quickly implement appropriate procedures to safeguard the association's monetary assets.

Consult with an attorney or bank officer, use the "Search" function (above and on the left), and/or investigate recommendations offered by the Community Associations Institute at www.caionline.org for sound financial practices.

Sincerely,

Margey

Fees - Debiting Owners' Bank Accounts

#1-The President of our Association is talking about debiting owners' bank accounts for the collection of association fees-does this not fall under "right of privacy act?"

#2-Our complex is comprised of 144 units-crawl spaces are made of dirt-we have traces of mold in the 2nd floor laundry room of my building-in my unit & others there is a very musty smell that comes from the vent especially after it rains-this is very bad for allergies-can unit owners request a mold/radon inspection? 

- Barbara

No one can debit your account without your providing written permission to your bank, typically in a very specific form, authorizing the bank to accept the debit.

With regard to possible mold in the laundry room, if the governing documents for your association impose maintenance responsibility of common areas on the association, then the association would be responsible for ensuring that the common area ducts (ducts that service more than one unit) are cleaned and inspected for water penetration on a regular basis. Portions of ducts that serve only one unit (even though those ducts may extend outside the unit and through common area walls) are typically  but certainly not always considered the responsibility of the respective unit owner.  An exception to this rule would make the association responsible for cleaning your ducts if it created or allowed a condition to exist which caused the mold to grow in your ducts. Membership reports of mold or other maintenance issues should be investigated timely.

Sincerely,

Margey

Can HOA's cut off water to unit owners who refuse to pay dues? Our Association has an owner who hasn't paid dues for 5 years--litigation is pending.  Wouldn't owners be more willing to pay if they knew that their water could be cut off?  The Association pays the water bill.  Management claims that this a violation of the Fair Housing Act, but I've read on other sites that it is legal as long as the owner is given fair notice.  Help!

- Jen

Several states permit community associations to shut off utilities to individual residents under certain conditions. The most common criteria are:

1. The association pays for the utilities with the common funds collected by the homeowners;
   
   
2. The governing documents authorize the board to disconnect utilities to delinquent owners.

From a practical perspective, it is sometimes difficult to segregate utility lines in order to shut them off to a particular unit, especially in communities where the utilities are master metered and were not originally installed to separately measure each unit's consumption.

Sincerely,

Margey

I am a new board member of a new "active adult", 100 unit community association in Massachusetts.  Since all of our members are 55 or older, I am concerned about illnesses or other situations potentially causing a member to not be able to pay their assessment fees for periods of time.  I also would like to avoid getting into foreclosure scenarios over assessment fee non-payment.  Do you think it possible, given no restrictions in the CCR's, to fund, through a small homeowner assessment (such as $5-10 per month), a kind of homeowner disability insurance fund to which a homeowner could apply for assistance in the case of medical or other emergencies which might make it difficult for them to make a payment? 

I could envision this as a loan, or as an outright grant, given the situation. And, of course, we would have to convince a majority of the owners to include this in our annual budget. I view this as akin to "self-insurance" used in some companies. Is this a crazy i dea?  Do you know of any other associations who have tried such a thing?  What would you see as the advantages or pitfalls of such an idea?  Thanks for your consideration.

- Stephen

What a compassionate and caring idea you have! I don't want to discourage you from pursuing implementation of it, but please talk it over with your association's legal counsel first to ensure that such a program falls within the parameters of your association's purpose as detailed in the Articles of Incorporation or Declaration/Covenants/CC&Rs (the name varies in different parts of the country). If it passes legal muster, or if there are reasonable steps to take that would ensure compliance with the governing documents, the next step could be to survey your members to determine if there is sufficient interest to generate adequate funds to assist neighbors in need.

Sincerely,

Margey

My condo association is on cash basis.  What are long term reserves on the balance sheet?

- Steve

The general ledger title of "Long Term Reserves" on the balance sheet reflects the funds set aside in a separate account for the future replacement of the major common and limited common capital components in your community. Examples would be roofs, pool plaster and deck, sidewalks, and exterior lighting. For more information on reserves, click on "Search", and enter"reserves" in the key word field.

Sincerely,

Margey

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I was very impressed with your article "Condominium Insurance: Are you insured adequately?". Can this article be reprinted and sent to our condominium homeowner clients? Please advise if there are legal issues that restrict this. Thanks.

- Cindy

I'm delighted that our article on insurance can be of use to you. Feel free to copy it to your clients, but please be sure to credit the source as www.associationtimes.com.

Thanks for asking!

Sincerely,

Margey

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I am an association board member in Connecticut with 268 units.  We are in danger of falling into financial trouble due to our states ridiculous insurance requirements for condominiums.  The master insurance policy, by state law, must always be liable for all damages that occur within individual units regardless of who is at fault.  We have had people go off in the middle of winter skiing and left their windows open, heat turned off (electric heat, individual thermostats) in laundry rooms which are adjacent to the garage walls, and let their water heater literally rot in place.  Recently we had a lady flush her toilet, leave without ensuring the toilet had stopped, AND plugged the bowl with too much paper.  That was approximately 1200 gallons of water flowing through her unit.  The most recent example was a gentleman who decided he knew how to do plumbing repairs.  He was wrong. 

Currently there are only five insurance companies providing condo insurance because it has become too expensive for them settling claims.  So our choices are limited as far as insurance coverage goes.

This association is trying to start a movement in the capitol of Hartford to rectify this issue.  We want unit owners to take responsibility for damages just as a single-family owner has to.  We believe this would eventually attract insurance companies back into the state and lower premiums for the master policy. 

But we need help getting the word out so other associations facing similar issues can lend aid in persuading our representatives these laws need to be changed.

Would your organization allow us to draft an article to be published by you for the purpose of soliciting other associations to join our quest? Thank you for your time.

- Kevin

I applaud your advocacy efforts, and urge you to contact the New Jersey chapter of the Community Associations Institute. While most governing documents permit community associations to pursue members for damage to the common elements caused by negligence, eliminating the prohibition against subrogation would allow both associations and the insurance companies to more easily recover funds spent on claims caused by owner neglect or carelessness. Many governing documents already authorize associations to sue tenants who have caused damage because of their disregard for common property, but there is still relatively standard language prohibiting subrogation against owners, perhaps because of secondary lender insistence.

Sincerely,

Margey

If a condo owner washer hose busted and water destroyed 2 lower condos. Would the HOA's inurance have to cover this or the owner who cause the damage? What about if no one had insurance but the HOA?

- Walter

The answer to your question depends on the insurance requirements mandated in your association's governing documents for both the association and the owners. Some condominium declarations require the association to maintain insurance on both the common elements as well as the individual units. In this scenario, the association's insurance policy would probably be considered primary and responsible for restoring the damaged units to their original condition, less any deductible that may be apportioned to the unit which caused the subsequent damage. This type of "blanket" insurance coverage would typically include the built-in appliance and the wall and floor coverings in each unit, but not the personal property of the residents. If liability for the deductible is not stated in the governing documents, it is recommended that the board, with the guidance of competence legal counsel, approve an administrative resolution which assigns responsibility for the deductible under different circumstances.

Many condominium declarations require the association to insure only the "bare walls", or structural components only, of the units, requiring each homeowner to maintain his or her own personal property and liability insurance policy. In this scenario, the owner of the unit where the washing machine broke may be responsible for all repairs. Having a board-approved administrative policy is still advisable to address issues and situations not detailed in the governing documents.

For more information on condominium insurance, click on "Search" on the left column, and enter "insurance" in the key word field.

Sincerely,

Margey

I am looking for the Federal statute that states that residents in a HOA may install solar panels. Arizona has a state statute, but I am looking for the Federal one. Thanks for any help!

- Janet

There are no federal statutes that mandate that residents in community associations must be allowed to install solar panels.

Sincerely,

Margey

If an association has been an in-active corporation since May of 2005 because of administrative dissolution, are the decisions by the BOD valid or must they be revoted?  Also, if they held meetings, are the minutes valid?

- Darlene

Other than cooperatives, community associations are established either by recording the governing documents (in particular the Declaration/Covenants/CC&Rs) or by state statute. If a non-cooperative community association fails to retain its incorporated status, it still exists as a legal entity and the decisions and actions of the board of directors are valid.

Community associations are incorporated to protect the personal assets of the board members and membership. For more information on the benefits of incorporation, click on "Search" on the left column, and enter "benefits of incorporation" in the keyword field.

Sincerely,

Margey

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I am President of a 43 unit Homeowners Association in a suburb of Chicago.  Most of the townhomes in our community are 23+ years old. Some of the units have outside decks which have fallen into disrepair and are unsafe due to their age.  Since the maintenance of the decks would fall under a homeowner responsibility, is there any way the Board could make the homeowners replace or rebuild their decks? Thanks for your time.

- Eric

Many governing documents for community associations contain provisions not just authorizing but requiring boards to regulate the appearance of additions to lots or homes that are the maintenance responsibility of the individual homeowner. Typically, such verbiage can be found in the association's Declaration/CC&Rs/Deed Restrictions/Covenants (the name varies in different parts of the country).

If you can find such wording in your association's documents, your board has the authority to request that an owner bring the addition to acceptable standards (be sure to detail what those acceptable standards are). I suggest first chatting with the homeowners to explain the impact of their eyesore on their neighbors' property values, followed by a formal written request for compliance if the homeowner did not heed the board's initial verbal request.

There may be a state statute that also addresses the board's authority to govern the exterior appearance of homes. To find the relevant laws for your state, go to our State Resources page.

To ensure fair and consistent enforcement of covenant violations if the procedure is not detailed in the governing documents or state statutes, I urge board members to craft and approve a "Compliance Resolution" that details the process involved in enforcing the association's rules.

Sincerely,

Margey

My condos HOA board thinks we the owners are responsible for the maintenance of all the utility services that are behind our walls IE plumbing if it exclusively services our unit. Please note water is a common expense and no unit has a meter for it, most do not even have a separate shutoff for the unit. Worse yet they want to hold us liable for damages that arise when the pipes behind the wall break. This has happened a number of times around here and the damages can run in the 15K range or more. When it does and when the owners turn it in to their individual carriers they deny the claim and say our CC&R's say the association is the one liable each and every time.

The reason the HOA is saying the owners are responsible is that they interpret the wording in our CC&R on owner maintenance that says " and located within the outer perimeter of the exterior bearing walls thereof" as meaning between the walls not around the outside area of the building. The board will not and has not ever turned in any of these claims to our association's policy which we pay for in our HOA dues.

The CC&R's define our common area as ANYTHING that is not part of the living unit. And the definition of the living unit says the pipes ducts flues etc. are NOT part of any living unit just the outlets located within the living unit.

Unit boundaries as provided by the declarant in the plat book:

PLAT BOOK XXX PAGE XXX UNIT XXXX BLDG XX sheet X of X defines the property lines "Property lines are the interior surfaces of the walls, floors and ceilings unless otherwise specified in the owners restrictive covenants". Note X.

NRS 116 Unit boundaries. Except as otherwise provided by the declaration:

1. If walls, floors or ceilings are designated as boundaries of a unit, all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring and any other materials constituting any part of the finished surfaces thereof are a part of the unit, and all other portions of the walls, floors or ceilings are a part of the common elements.

Our CC&R's say the association should insure, repair and or replace damage to the "common area/s". The owner needs to take care of the 'Living unit"

Based in this I feel our Board is incorrect. What is your opinion? I would like to know how you interpet the wording" and located within the outer perimeter of the exterior bearing walls thereof". Thanks in advance.

- Joe

Your board should not assume the responsibility of determining whether or not damage is an insured loss under the association's master insurance policy. The claim should be submitted to the association's insurance company; if the claims adjuster formally determines that the loss is not covered by the association's insurance policy, the individual owner's insurance policy should settle the claim.

Sincerely,

Margey

I'm writing from VA.  Today I noticed that the floor and wall in my spare bedroom (which is on the other side of the kitchen) have water damage.  I tore out the wet sheetrock and found that the common drainage pipe, into which all kitchens (2) above my unit drain, was in the wall directly behind the affected area.

Today I contacted the owners of above and asked them to run water through their kitchen sinks while I observed from below.  In both instances, water leaked down the common drainage pipe and consequently onto my wall and floor.

Given that the leak emanates from both units along a common drainage pipe, we assumed that the master policy would cover the repairs. However, our Association has said that each individual owner is responsible to repair the leak.  I don't care either way, because this needs to be fixed, but what are my options if one of the above owners refuse to make the repairs?  Any guidance you can provide would be most appreciated.

- Stacy

The most expedient way to determine responsibility for the leaking pipe and subsequent damage is to submit a claim to both the association's and your respective insurance company. The claims adjusters will determine which policy is primary to process the claim. If it is determined that your upstairs neighbors are personally liable for the repairs, you may need to seek reimbursement through small claims court.

Sincerely,

Margey

I am on the board of our townhome association.  I joined the board 2 years ago to ensure that our community follow the rules and guidelines set forth...(i.e. to ensure we continue to keep our property free of clutter, etc.).  One of the rules is that the decks cannot be used for the storage (i.e. bikes, sporting equipment) except for 'seasonal' furniture.  I have a neighbor who has a large wading pool up at all times which is an eye sore when I pull into our complex.  They feel (as do several board members) that the rule is frivolous.  I have no problem with the pool as long as they take it down after use.  This has become a hornet's nest.  Your comments please.  Thank you.

-Sheila

It sounds like your board needs guidance from a competent community association attorney to determine the appropriate definition of "deck storage" and "seasonal furniture". The attorney can craft a policy resolution for board approval that details those definitions, including typical approved and unapproved examples.

If the rule is included in the Declaration/CC&Rs/Covenants (the name varies in different parts of the country), the board may not have the option of not enforcing it. Board members have a fiduciary obligation to enforce the governing documents; if the rule is in those documents and if the board believes the rule is frivolous, then the only alternative is to recommend to the membership to amend the document, with legal counsel's assistance. Ignoring the provision is not an option.

Sincerely,

Margey

I recently (2 weeks ago) assumed the HOA president responsibilities for our 30 plus yr old neighborhood.  Upkeep for my neighborhood has been excellent, but as the older generation moves on and the younger people move in, liberties are being taken which are not conforming with the written policies. 

There are several concerns I would like to address immediately- non payment of association dues and should I pursue back dated dues owed?  Parking vehicles in the front yard, homeowners blocking greenbelt public access and boats in front of homes on the street.  I printed a copy of the article posted on this web site "Rules Enforcement" and will proceed cautiously.

The outgoing president is convinced we can not take legal action because we are not incorporated.  Alabama law is not clear.  Our covenants and restrictions are established and IAW the original requirements set fourth by the developer.  Title agencies and realtors are required by law to inform prospective owners of the HOA.  I know you will recommend to seek legal assistance and I believe it will come to that, but can you offer any other advice now. Thank you in advance!

- Lee

Congratulations on your election to the board and on your earnest intention to be a fair and effective president.

In most states, whether or not your community association is incorporated does not impact your board of director's ability and responsibility to enforce the governing documents. In fact, your board could be considered negligent by not complying with the mandates of those documents.

Yes, I do recommend that you retain the services of a competent attorney knowledgeable in Alabama's community association statutes. He or she can guide you through the appropriate procedures to re-establish an effective and equitable enforcement program.

Sincerely,

Margey

I live in Pennsylvania and I'm in the process of installing a 6' vinyl privacy fence.  The CC&R's do not permit any fence to exceed 3 1/2 feet in height.  These rules have been ignored for years and there are 11 like fences in the neighborhood that are 6' and numerous others that are 4'.   The CC&R's state that the association has 30 days to respond in writing to approve the request.  If they fail to do so in writing, then such approval shall be deemed to have been given. Verbally, the president said he would not deny approval since past precedent has already been set with the other fences.   Further, I did not receive anything in writing for 36 days which by default implies approval.  The problem is that my neighbor is upset about the fence and is threatening legal action which the covenants say individual members may do as a member of the association. Should I be concerned that I could be made to take the fence down given I have implied approval (30 day rule) and the association has already set a precedent with all of the other non compliant fences?

- Eric

It seems to me that your neighbor's issue is more with the homeowners association for ignoring or allowing the construction of fences that violated the governing documents. However, he can certainly pursue this matter in court and it will be up to the judge to determine if the board failed to comply with its fiduciary duty to enforce the design requirements of perimeter fences on lots. If the judge rules in your neighbor's favor, it's possible that his decision will impact the viability of the other fences that were installed in violation of the deed restrictions.

I urge you to consult with a competent attorney knowledgeable in your state's community association statutes before expending funds on your fence. It's not just the cost consideration involved but also the relationship between you and your neighbor.

Sincerely,

Margey

When I purchased my condo, the President of the Board of Managers informed me that the condo had a "no pet" policy.  I was charged $3,000 to let my cat live in the condo.  When I read our bylaws there is no mention of a "no pet" policy.  When I approached the president of the Board, he stated it wasn't in the bylaws but "adopted"another buildings "no pet" policy.  The "adoption" was never filed with the State of New York as a change in the by-laws.  Recently a neighbor now has a dog and has not been charged a fee.  How do I get my money back?

- Holly

You certainly paid a hefty fee for permission to have your cat! If there is no written rule prohibiting pets, I suggest that you send a certified letter to the board of directors requesting reimbursement of the $3,000 within thirty days of receipt of the letter or provide you with written documentation of the "no pet" policy and the $3,000 fee for a variance of the rule. If the board does not respond, if it fails to provide you with sufficient proof of the rule or if it refuses to refund your fee without documenting the fee requirement, consider requesting reimbursement through the judicial system.

Sincerely,

Margey

I belong to a California Homeowner's Association.  I was recently fined a penalty for parking my RV on a public street in front of my home.

I have written to the board explaining that they are violating my civil rights by fining me for parking on a street which is not owned by the Association.  This fact is confirmed with each newsletter that the Association sends indicating that problems with parking on public streets must be reported to the county since the Association has no authority to enforce the county ordinance.

The county that I live in allows me to park my RV on the street for 72 hours.  I have followed the county ordinance which is evidenced by the fact that I have never been ticketed for a violation.

In its response to my appeal of the fine, the Association maintained its position and pointed out a paragraph in the CC&Rs which covers parking. This section specifically indicates that parking on public streets is subject to all applicable laws and ordinances.  The section also states that no RV shall be parked on any Lot except in the garage or on another portion of the Lot which was designated as RV parking.

In addition, the Association referenced a section of their owner's manual which states that no RV "shall be parked or stored unless placed and maintained entirely within a lot and screened from the view of adjoining lots and streets, such as within a garage or on another portion of a lot which was designated as recreational vehicle parking by Declarant."

Since the CC&Rs clearly indicate that the streets are governed by the applicable county ordinance does the Association have the right to assess a fine because the owner's manaual says that the RV must be stored within the lot?

- Veronica

Unless your documents authorize the board to enforce restrictions on RVs parked on a public street, the board probably cannot fine you. Yours is a relatively common problem with poorly drafted governing documents which extend the board's authority to situations which conflict with local ordinances, state statutes or federal law. Since community association governing documents are at the bottom of the hierarchy with regard to enforcement priority, your board is charged with enforcing an unenforceable deed restriction.

You may need to challenge the fine in court for a final resolution to the issue. While the board may be performing its fiduciary duty to enforce the governing documents, only the court system can determine that a community association deed restriction is invalid. Another option would be for the members of your association to amend the governing documents to remove the conflict with local ordinances.

Sincerely,

Margey

I want permission to add a sunroom to my park model unit. City codes allow the addition, but our board refuses to grant permission, even after the previous board had given the authority to the Architectural Committee to research all aspects of the addition, which they did.  Upon the election of new board members, that responsibility was withdrawn from the Architectural Committee. How can I get them to reconsider? Thank you.

- John

It sounds like there is a communication issue between you and the new board of directors. Why not chat with the president or one of the board members to determine the reason for the change in direction? Perhaps the new board is unaware of previous progress in resolving this issue and unsure of its authority to grant approval for the sunroom.

You might also consider utilizing the services of a mediator to ensure that cool heads prevail. Many municipalities provide alternative dispute resolution centers at no or low cost to the constituent.

Sincerely,

Margey

Good morning.
I'll try to keep this short & to the point & hopefully it will pertain to many other associations so the info may be helpful to others. I live in CT in a condo association of 166 units which is about 20-25 years old. Windows are currently a common element and the responsibility of the association. Some of the unit owners, for various personal reasons, have, with the approval of the Board, replaced their windows.

The Board & management company are currently acknowledging that window replacement may be a necessary expense in the near future. In the past, a special assessment was created to fund such an expense, as was done recently to replace the roofs in the development.

The Management company & Board are contemplating conducting a 'vote' of unit owners to change the association 'rules, governing laws' (whatever they are legally called) to make windows & window replacement the responsibility of the unit owners. Is such a thing legal?

I have a serious problem accepting such a responsibility, as now I believe I'd be responsible for any issues/damage that would occur due to a faulty window or failure to realize unforseen/hidden issues pertaining to the window or window replacement ie, leakage, water damage from rain, etc. It has been my understanding that CT laws govern Associations, but that the Association can expand on the laws. Any input on this subject would be GREATLY appreciated!! Thank you.

- Nancy

The governing documents for some condominium associations require that any reassignment of maintenance responsibilities be approved not only by a specified percentage or number of homeowners but also by a certain percentage or number of first lien holders as well. However, as long as the board complies with the governing documents with regard to the detailed amendment process, it is possible to impose responsibility for window replacement on the owners.

If the association allocated special assessment funds or regular maintenance fees toward window replacement and the responsibility for windows reverts to the owners, the board should consider reimbursing to each owner his or her pro rata share of the money already assigned for that expense. Alternatively, the board should present a plan to the owners for the reallocation of those funds to another major repair or replacement program.

Sincerely,

Margey

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