Ask the Expert

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

We have a Board of Directors who fail to enforce the Declaration. Our HOA Declaration prohibits boats, commercial vehicles and also covers lawn maintenance. We have permanent boats and commercial vehicles parked in our neighborhood. We also have several houses not taking care of their yards. The Boards stance is "we are not going to encroach on private property". After months of verbally expressing my concerns, I have submitted a formal complaint in writing. It has been three weeks and I have not received a response from the board of Directors. What is my next step? What would you do? Please advise.

- TJ

Please use the Search function to find answers to your questions. Keywords such as "board violation" and "board fail" should bring you the responses you are seeking.

Sincerely,

Margey

How many times can a Board of Directors vote and pass removing their trees that has damaged our property? We are in a townhome development in Virginia.  This has dragged on for months.  It has been voted on and approved for tree removal four times now.  One board member keeps changing his mind and continually throws a wrench in it, so the proposal keeps coming up for revote.  Again, it has been voted on and approved 4 times, but the board has yet to make the arrangements with the tree service, etc.

- C

So long as the vote to remove the trees passed by the requisite number of board members, one board member should not have the power to continually challenge the decision. Your board members, and in particular the president, may need to learn about parliamentary procedure in order to better control the meetings and agenda items.

Sincerely,

Margey

We are a small (75 homes) Senior HOA in New Jersey. We are in jeopardy of not having a Board of Directors soon; present Directors are stepping down and there are no candidates willing to run as replacements. What happens if we don't have a Board? Does the State take over; what are the consequences?

- Thomas

There is no mechanism in place to fulfill the role of a board of directors in a community association. If it is difficult to find volunteers, perhaps too much work is imposed on the directors without assistance and cooperation from the remaining homeowners.

Since the board of directors is ultimately responsible for every action that occurs in the community with regard to the homeowners association, it is absolutely critical that the board is fully staffed and functional. Consider hiring a management company to administer the daily operations of the association so that the board members can provide policy direction instead of personally implementing decisions and supervising the work. Alternatively, consider soliciting homeowners to volunteer on committees to support board actions by providing research and recommendations and sharing in the supervision.

The more the work of the association can be apportioned among its members, the more likely it is to attract and retain qualified board members who will not have to sacrifice time with family and personal demands in order to accomplish their association-related obligations.

Sincerely,

Margey

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I have two questions concerning the minutes of a meeting. Can the minutes of a meeting include the Lot number (not the name) of a homeowner who has not paid their annual dues or has had a violation letter sent to them?

Should the minutes of a meeting state the names of the people who are on the violations committee or should the minutes just use the violation committee’s name? The people who serve on the violations committee are worried that the homeowners who receive violation letters will come and talk to them personally instead of going through the committee. What do you think? Thanks as always.

- Larry

I recommend not including in the minutes any detail of delinquency or alleged covenant violation that another owner could associate with his neighbor(s). On the other hand, if the account number is randomly assigned and does not indicate Lot and/or address of the homeowner, there is less chance of violating privacy concerns, and the board could reference in the minutes the account number of deed restriction violations or delinquencies.

If the board wishes to confirm instructions to the manager with regard to delinquency or violation follow-up, I suggest it do so in broad terms, such as directing the manager to pursue homeowners who have not responded to initial requests for payment or compliance.

While the minutes need not contain the names of the homeowners serving on the Violation Committee and can, instead, reference "the Violations Committee" when describing actions or recommendations, homeowners have the right to know who is serving on the committee. However, I encourage the board to craft a policy addressing the deed restriction violation notice and resolution process, clearly defining the procedure by which the violation is observed and the owner is notified, the time period in which violations must be resolved, the manner in which an owner may appeal a decision, and the duties and obligations of the Violations Committee members.

Sincerely,

Margey

I am a board member of a 243 home association in ****, California. Our management company has been trying to get us to sign up for a website hosted by them for $250 per month. Our dues are very low as we do not have a pool or clubhouse or common area large enough to congregate on. The board wants a web site but is already unhappy with the constant "extras" we have to pay the management company for and are in disagreement over other extras we do pay for. I volunteered to set up a simple website, post the CC&R's, Architectural guidelines, and a monthly newsletter with the help of another board member. The membership likes the idea, but the management company says the following: "we will need Professional Liability (aka Errors & Omissions) insurance with [the management company] listed as certificate holder for the web site company.

Is this necessary? Is it legal? Can the association do a website without this?

- Pamela

The board of directors has the ultimate authority and control over the operations of the community association. The role of the management company is to provide relevant information to the board members so they can make educated decisions and to implement those decisions. The management contract between the association and the management company typically details this relationship between the two parties and contains a provision that indemnifies the management company from actions and decisions of the board. Consequently, there should be no need for additional insurance protection for the management company if the board outsources the website to a third-party provider.

On the other hand, the board should protect the association by executing a contract with the website company that has been approved by the association's legal counsel, who may require the company to carry general liability and advertising liability insurance coverages.

Sincerely,

Margey

Over 16 months ago, our Board approved a proposal to have a 3-year audit performed.  After many inquiries, the CPA finally presented the accounting work.  However, he performed a REVIEW instead of an AUDIT.  What options do we have since he did not abide by the engagement letter?

- Jen

If the CPA didn't comply with the terms of his engagement letter, don't pay him.

Sincerely,

Margey

Thank so much for all the information you have researched for me in the past year. Once again, I and a group of owners of ****** Condominiums need your help.

The Illinois Condominium Act states that the owners are to receive year end financials. SSCA condo year ended October 31, 2005. Several owners have asked for the year end finacials from the management company on several different occasions; the last being May 26, 2006. Management company's response on May 27, 2005 was that the board needed to approve financials for 2005. As of today, July 30, the owners are still waiting for the financials for 2005. Any suggestions on how we can obtain this information.

- Rose

I suggest sending a certified letter to the board of directors requesting a copy of the year-end financial report, including in your letter a copy of the provision in the Illinois Condominium Act requiring the preparation of year-end financials. Your association's governing documents may contain similar verbiage, including a time period within which the financials must be distributed to the members. If such a provision exists, include a copy of it in your letter as well.

If the board members continue to ignore their responsibility to release the year-end financials to the owners, consider volunteering yourself and like-minded neighbors at the next annual meeting elections as alternatives to the existing board.

Sincerely,

Margey

We have paid our HOA dues for the past four years (in *****, CO) to a PO Box. Each year we have requested a copy of the financials along with our payment, but have received nothing. Many of our neighbors were surprised to find that we pay our dues; they never have paid or even received an invoice.

A realtor friend told us not to pay our dues for 2006. We just found out that a lien was placed on our property, without any notification to us. How can we force the HOA to provide us with financials? Who do we contact about the filing of this lien without notifying us first?

Thank you for your help.

- Karen

It appears to me that your first step should be to find out who is managing your community association. The State of Colorado has very specific mandates with regard to the operations of community associations, and it's possible that your association's board of directors is either unaware of state statutes and the mandates of your association's governing documents, or may be deliberately defying them in breach of their fiduciary duty to the homeowners. If the latter is the situation, it would be prudent of the homeowners to consider following the provisions in your Bylaws detailing the process involved in removing board members and electing new ones.

I urge you to contact Ms. Beth Jones, President of Management Advantage AAMC which is an Associa member company based in Colorado Springs. While not an attorney, Ms. Jones may be able to provide guidance to you to resolve the issues you described in your message. She can be reached at beth@managementadvantage.com.

Sincerely,

Margey

Our 2 year old condo association of 58 units is assessing owners for reserves according to a schedule of replacement and repair created by the original developer.  Our independent auditor has recommended that the reserve amounts be updated periodically.  Most members of our Board agree that a study by a professional company with a proven track record would be in the best interest of the community to either validate what was established by the developer or tell us what we need to do to ensure that we are carrying out our fiduciary responsibility.  One Board member thinks that hiring a professional is a waste of money and that we should do the study using talent available in the pool of owners (we have retired engineers, architects and contractors among our owners) or just stay with what the developer came up with since everyone accepted that when they bought their individual units.  While we don't want to offend any residents, those in favor of a professional study feel that it would be totally objective and free from any bias or personal agenda (i.e., hold down costs no matter what or perhaps be overly aggressive in determining replacement and repair costs and intervals).  What is your opinion on professional versus internal reserve studies?

- John

Using homeowners to update or prepare a reserve study reminds me of a lay person who wants to represent himself in a criminal trial. The reserve study is too critical to the long-term success of a community association to let anyone other than a professional Reserve Specialist (a designation conferred by the Community Associations Institute) prepare it. The report preparer also has legal liability for its content, not a welcome situation for a community volunteer.

Spend the money on a reserve study prepared by a qualified Reserve Specialist and preserve harmony in your community.

Sincerely,

Margey

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I have a three part question.

1. Can an Association prevent a member from voting? Our Association is considering adding to our covenants that if a homeowner's assessments are not paid, they are not eligible to vote. If the covenants state a 2/3 majority must agree for a change to the covenants, by disallowing certain members voting privileges, is there a conflict?
   
   
2. Last year was the first year our Board had taken control of the Association from the developer. At the time we bought our home in late August, an assessment amount had not been agreed upon. When we did get the bill, we were asked to pay for the entire year. Shouldn't the Board have held the previous owner's liable for their portion of the assessment?
   
   
3. If we are billed an annual assessment, do the assessment bills necessarily have to be 12 months from each other? We were billed in October 2005 for the full amount of the assessment for 2005 and then in March of 2006 the Board sent bills for the 2006 assessment. Our convenants have a limit on the annual assessment, but would that apply here? According to the convenants the assessments should be due on a "fixed date", but it doesn't state anything else. I would assume yearly assessments should be due "yearly" and not within months of each other.

Thanks so much!

- Julie

Drastic measures such as preventing a homeowner from voting should be implemented only with the approval of a competent attorney knowledgeable in your association's governing documents, state statutes and case law. Typically, such draconian steps require a formal amendment to the governing documents as well as approval by all or a percentage of the lenders holding mortgages on homes in the community. Many state legislatures have prohibited denying a homeowner the right to vote in their homeowner association's affairs, so it is absolutely critical that your board consult with legal counsel before proceeding.

Most governing documents impose the assessment payment obligation effective with the closing on a home. Your board should carefully read the Declaration/Covenants/CC&Rs/Deed Restrictions to learn when an owner's responsibility for maintenance assessments legally begins.

Unless your association's governing documents mandate a twelve-month period between maintenance fee increases or imposition, your board probably was authorized to implement another fee increase in March 2006. It appears that the directors are struggling to understand the association's financial requirements after control was transitioned from the developer, and are working diligently to craft a budget that reflects the actual costs the association will incur in order to fulfill its mandated obligations.

Sincerely,

Margey

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Insurance | Legal | Maintenance | Management | Rules

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Insurance | Legal | Maintenance | Management | Rules

I live in a townhome communityin VA of 189 units. Our association employs a private contractor to do all maintenance. Our board states that if the work is not done properly or if any problems occur as a result of the work done by this independent contractor, the only recourse homeowners have is to pursue the contractor, because the board or the association bears no responsibility. Homeowners feel that they pay dues with the expectation that acceptable services will be provided, and that the board is responsible for seeing that acceptable work is done. Are homeowners responsible for chasing down the contractors hired by the board? Where does the responsibility lie?

- Margaret

If the board dispatches a contractor to repair a common or limited common element that is the maintenance responsibility of the association, the board should ensure that the work is done properly. The board holds the purse strings, which is the ultimate contol over the contractor. If the work is not acceptable, the association, not the homeowner, should require the contractor to remediate it and not pay the invoice until the work is satisfactory. The board should not continue to assign work to a contractor whose work is shoddy or not in compliance with industry standards.

Sincerely,

Margey

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I live in an older area where there is a voluntary HOA (not mandated in deed). Originally, there was an Architectural Control Committee which had control over reviewing building additions, etc. After several years, this ACC became dormant and deed restrictions were not enforced. Now the voluntary HOA has resurrected itself and made the ACC a committee of the HOA & appointed new members. Does the new HOA/ACC have the right to enforce deed restrictions that were not previously enforced? I am being threatened with a lawsuit over a storage building that has been on my property long before I bought this house. I have lived here 8+ years and have never had anyone say anything to me until now. Thanks for any light you can shed on the confusing situation (no pun intended).

- Cindy

Before determining if the ACC can enforce long-dormant deed restrictions, the issue of validity of the community association must be resolved. If membership in the association is voluntary, was the Architectural Control Committee ("ACC") established with independent authority to enforce the deed restrictions without participation by the association? If the ACC has autonomous and legal authority to require compliance with the deed restrictions, then its committee members, rather than the board of directors of the volunteer homeowners association, have the power to pursue violations of the deed restrictions.

With regard to mandating compliance with the deed restrictions, only a local attorney knowledgeable in your state statues and case law can determine if the ACC can require compliance after many years of a breach of the deed restrictions. Depending on the severity of the violation, it is possible that the ACC still has authority to require the owner to resolve the issue. In other situations, the ACC may consider granting a variance, allowing the violation to exist.

Sincerely,

Margey

I just moved into a new townhome styled condo community in Northern VA.  Every 2 units shares a front exterior light mounted in the common exterior area, similar to a entry foyer.  The light is on either a timer or sensor and comes on just at dusk and off at dawn. This being summer, the light attracts numerous species of night flying and crawling bugs in such numbers that it makes it impossible for myself, family, and guests to enter or exit by using the front door.  If you exit or enter, you're virtually attacked by the bugs.

Last evening I installed a 'bug light', an incandescent yellow light bulb.  This definitely stands out from all the others as they are clear incandescent bulbs. Am I in violation of any potential HOA regulations??? (I'm one week new and will ask for all bylaws and regulations this coming week.)

- Jeffrey

The governing documents for most condominium associations authorize the board of directors to control the exterior appearance of units. Your yellow bulb certainly stands out among the white light of the other fixtures. However, if the bugs are a community-wide problem, perhaps the board will consider installing the yellow bug lights on every unit to ensure a uniform appearance but still address the very real issue of potential illnesses caused by insect bites.

Sincerely,

Margey

Help!  We purchased a townhouse in NJ.  We were unable to obtain the master deed and were given a rule and regulation book by the Association management company  We have a deaf brother that lives with us and we have 4 therapy dogs for him.  We filled out an application with a letterhead of the condo association disclosing all information on the pets.  We were never told of a pet limit.  The book sent to us did not state a pet limit.  The application was sent in 2 months prior to closing.  We have lived here 3 1/2 weeks and have been harrassed and told verbally by a board member that this is not a community for us.  We need to move or get rid of pets.  There is a 2 pet limit.  We have not been served with a formal letter, and it has been hell.  We came from our own home never lived in this type of setting.  Can you help?  Thank you.

- Claire

While the Fair Housing Act provides protection for citizens with disabilities, it's unclear whether that protection extends to four companion dogs. I suggest you investigate the federal government's Fair Housing website.

If the association did not have a rule in effect at the time you closed on your home that restricted the number of pets to two, it is possible that it cannot enforce the limit in your situation. However, I urge you and the board to cordially discuss the issue and determine why the directors want to regulate the number of pets. Is your brother maintaining control over them, cleaning up any mess they leave in the common areas and ensuring that they do not run loose? Are they left on the porch or balcony where they bark or whine? Do they create a disturbance inside the unit, bothering adjacent residents?

Usually, it's not the number of dogs that create the problem but their behavior as it impacts the neighbors and the neighborhood. I would hope that once the underlying issues are resolved, the board will grant a variance to the rule and allow your brother to benefit from his dogs.

Sincerely,

Margey

I hope you can help our homeowners’ association find the answers to the following questions.

We live in a small community on a private road. The first question concerns the sidewalk that runs along half of the private road: Is the sidewalk owned by each homeowner where the sidewalk crosses their property or is it public for anyone to walk on? It is set back about four feet from the road. On the developer’s plans, the sidewalk is labeled private sidewalk.

Question two also concerns the sidewalk. If the sidewalk becomes broken, etc….who is responsible for repairs to the sidewalk…the homeowners’ association or the owner?

I have appreciated all of your help in the past and I really enjoying reading all of the inquiries and your answers to them. Your website has been a big help to our community as our Board is always asking me to write to the Association Times for your opinion. Thanks again.

- Larry

Your association's governing documents should specify the maintenance responsibility of the sidewalk. If the Declaration/Covenants/CC&Rs/Deed Restrictions (the name varies in different parts of the country) doesn't mention maintenance of it, look at the recorded plat of the entire development or of each home to see if the sidewalk is located within or outside the boundaries of each lot. Inside the Lot would indicate individual owner responsibility, outside would indicate the association's.

To clarify maintenance responsibility of a physical asset when the governing documents are silent, the board could craft a policy resolution assigning responsibility to the owners or to the association. However, I urge the board to first consult with a competent attorney knowledgeable in your state's statutes and case law to ensure that the resolution is valid and enforceable.

Sincerely,

Margey

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