Ask the Expert

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

Our HOA recently adopted a Rules & Regulations document and we live in Minnesota. Statements within this document say they (the Board) does not have to notify residents of board meetings, keep meeting minutes, and gives them the power to "modify, add or delete to these rules from time to time without the requirement of a special meeting and/or votes of the Association."

Also, I am told that the Rules/Regulations DO NOT need to be filed with the city, county or state. How is this legal?

Secondly, can they change statements/meaning of paragraphs within our Amended Declaration (ie, covenants) within the Rules & Regulations -- basically changing the intent/wording of the covenants without our consent?

I thought they could modify/add/delete the Rules & Regulations, but anything that is covered in the covenants would require a vote as originally intended.

I'm really worried what our Board is trying to do here.

- Cory

Your board of directors must comply with your association's governing documents and state statutes. They cannot modify the Declaration, Bylaws, Rules and Regulations or other dedicatory instrument without diligently following the specific amendment process detailed in those documents or statutes. However, if there are provisions that are ambiguous or unclear, the board may interpret them so long as the explanation does not create a conflict with the documents or statutes.

To determine if the board must file of record the revised Rules and Regulations, review Minnesota's state statutes regarding community associations by going to our State Resources page and locating "Minnesota".

Sincerely,

Margey

There are five people on the Board of Directors in my Planned Community. Two of the five are the Declarant and his wife. Declarant control was over almost three years-ago and they won't turn over the necessary documents to the HOA. The remaining Board members have removed them as Officers according to our By-laws and they still try to remain in control by asking neighbors to take sides with them in picking a new Board. My question is this: There are three homes owned by the Declarant. Are we as Homeowners able to file a law suit to take the remaining homes since his declarancy is over? Thank you.

- Robin

While you cannot force a homeowner to vacate his home because of his actions as a board member, you can certainly remove him as a board member. Either at your next annual meeting or at a duly called special meeting, homeowners can vote in new board members. If the Declarant refuses to turn over documents and material belonging to the association, he may be violating both state statute and your association's governing documents. A competent attorney knowledgeable in your state's community association laws can probably quickly educate the Declarant about the legal implications, including personal liability, for failing to submit the books and records of the association to the legally-elected board.

Sincerely,

Margey

I live in a 350 unit HOA. We have just acquired the 2/3 majority to take control of the board. We are assuming transition will begin to take place as soon as the last 2 members have been elected. Please give me the top 3 concerns we should have dealing with this transition phase. I really appreciate the help. Thanks.

- Joann

Please use the search function with "transition" in the key word field for several useful articles addressing transition to homeowner control from a developing community's board of directors.

Sincerely

Margey

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I own and operate an LLC that provides commercial pool furnishings to Associations. Where or whom would you recommend I contact to provide my company information as a resource to the many associations that reference your's and other useful sites?

Thanks for your attention to my inquiry.

- Doug

The Community Associations Institute has an excellent program for contractors and vendors interested in servicing the community association market. You can contact Joe Howard for membership information.

Sincerely,

Margey

Delinquent Accounts - Publishing

I am a member of a condominium H.O.A. located in the State of Georgia and I have a question as to delinquent accounts.

Is the home owners association allowed to publish a list in the Association Newsletter of the names of owners whose assessment payments are delinquent by more than 30 days?

Our By-Laws do not reference this and I cannot find anything in the Georgia statutes regarding this. Thank you in advance for your response.

- Buddy

Community associations should not post the names of owners delinquent in their maintenance fees. To do so would violate several provisions of the federal Fair Debt Collections Practices Act. Board members should be very sensitive to laws protecting the privacy and rights of their association's members or risk costly litigation which may not be covered by the association's Directors and Officers Liability Insurance policy.

Sincerely,

Margey

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A diversified community. How would you handle holliday decorations on the common grounds? Thank you.

- M. K.

A community association's board of directors must be sensitive to the issue of holiday decorations, ensuring that no group is offended by the seasonal celebrations. I suggest the formation of a Holiday Decorating Committee comprised of residents representing each cultural and religious interest, charged with developing a policy addressing this issue and submitting it to the board for approval. The policy should contain provisions addressing both the community association's expenditure of common funds for decorations, as well as guidelines for association members with regard to decorating their own homes.

Sincerely,

Margey

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On September 16th we had an elections meeting where after being appointed Secretary and sitting at the table I noticed that the quorom was only 12 and as stated in our by-laws it needs to be 15 and that this meeting is to be cancelled before anymore actions take place. I was told by the President that the # of the quorom was changed to 10 in the previous by-law change meeting. It was left at that.

After 2 days I pressed the issue because I was at that meeting and I was out-voted and I remember it stayed the same. After finally getting ahold of the minutes from that meeting it turns out that I was right. Therefore, the required forum was not met and that meeting is null and void. Here lies my problem. No one on the old board wants to stay on except 2, treasurer and member at large. If the 2nd meeting doesn't have the 15 people then the board remains status quo. The new president doesn't want to take that chance and is trying to get the old board to resign their positions but they only had until 2 days ago to get this done. She wants to "move forward" . I say we have to have another election it is the law. Is there a way to continue on as the new board without any repercussions? Or do we have to hold another meeting??

- Alicia

While an argument could be made that the board made an effort to legally conduct the annual meeting, any actions of the new board could be challenged because a quorum was not attained. Please go back to our keyword search, and enter "quorum" in the keyword field for more information on achieving quorum.

Sincerely,

Margey

I recently bought a lot in a rural subdivision that was recorded in 1962. Just in the past 5-10 years has the subdivision been in development mode. There is no county zoning laws for this county in Missouri. Is this still a valid subdivision and deed restrictions?

- John

Check with your Realtor or title/escrow company to determine whether there is a community association in place. If there is, you should have been provided with the legally-binding governing documents of the association before you closed on the lot.

Sincerely,

Margey

I live in *****, WV. On 2/2004, I purchased a new construction home from *****. The development consists of 12 new construction homes. The "common area" is a drain area for water run off. When we signed for the home a copy of the HOA declaration started by ***** but not filed in the court was provided. In that copy, the annual dues are $150.00. The last house was sold 11/2004 and on 9/2006 ***** turned over the HOA to the owners. Mr Ryan never communicated with homeowners regarding changes to the copy we were given or other items to be done. There is a school bus stop at our corner being constructed. We didn't know anything about that.

The homeowners received a letter on 9/1 stating that a meeting would be held on 9/18 to hand over HOA to homeowners. My question is can this be done?

Can the homeowners get the city to take care of the water drainage site and roads?

- Sandy

Your developer should have recorded the community association's Declaration and other governing documents, if applicable, prior to selling the first lot in your subdivision. It is possible that you and your neighbors are not obligated to comply with your community's deed restrictions if they were not recorded timely. Check with a West Virginia attorney familiar with your state's laws regarding community associations to determine the validity of the HOA and the legality of amending the documents without notifying the members.

With regard to the bus stop, the developer probably had little influence on the location of the stop. Your municipality may have determined that the additional number of residents in your subdivision warranted the bus stop. If you and your neighbors disagree with the location of the stop, appeal to your local elected officials.

Sincerely,

Margey

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What measures should be taken to resolve maintenance issues at a property? Currently, we as renters continue to get a lot of lip service and promises that are not being kept. Despite contacting the President and CEO of the property management company here locally - whom should I contact to make sure issues such as cleanliness and upkeep of the property are not charged to us the renters?

- Philip

If you believe that the community association board of directors and/or management company are not adequately maintaining the common elements, talk with your landlord. There may be a misunderstanding regarding obligations of the association; if so, homeowners have more standing with the board to address possible inequities and pursue resolution.

Sincerely,

Margey

Exteriors

We live in a condo in Broward County, Florida. During hurricane Wilma we lost several window screens and frames. Our insurance carrier states the responsibility for replacement is with our condominium association, and visa versa. Therefore no one will take the responsibility of replacing our window frames and screens. Please help. Thanks

- Bonnie

Your association's governing documents, in particular the Condominium Declaration, should detail owner and association responsibilities for the exterior components of the buildings. Typically, if a component is not described as a common or limited common element and is not included in the list of maintenance responsibilities of the association, the owner is responsible for its maintenance. You may need the assistance of an attorney to intervene on your behalf with the association's and your insurance companies.

Sincerely,

Margey

I live in a condominium in California where the attic is plagued with rats.  Despite many phone calls and e-mails on the danger these rodents pose to my child because they are viciously trying to claw their way through the ceiling in her bedroom, nothing has been done because the association does not have the money.  What are my options?

- Debbie

If the Condominium Declaration clearly imposes on your association maintenance responsibility for attic space, then your board of directors must find the funds to eradicate the rats as quickly as possible. If the board is resisting your pleas for help, report the infestation to your municipality's Department of Health. If it appears that resolution may be protracted, consider hiring a pest control expert to eliminate the rats, then pursue reimbursement by the association in small claims court.

The critical issue is to protect your child and yourself from vermin bites and disease. If neither the board nor the Department of Health can respond immediately to your complaint, the perilous circumstances you describe mandate that you act in your family's best interests to ensure that the rats do not penetrate through your unit's walls.

Sincerely,

Margey

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Our By Laws state "The Association has An irrevocable right to access for repairs, Maint., etc." I reside in the unit year round and have never denied access to the association when within their rights. My question is does this mean They have a right to a key to my unit or I simply must give them acess?

- Laura

Typically, when the wording in the governing documents authorizes emergency access to the units, it does not require owners to give a key to the association. However, should an emergency arise such as a broken pipe that is flooding other units, the owner may be responsible for paying for the services of a locksmith that the association hired to gain access to the unit.

Sincerely,

Margey

Our BOD seems to think they have no responsibility to enforce our CC&R's. When we complain about something like a incessantly barking dog, for example, we are told to call the city animal control. In looking over our governing documents it appears to me they are acting irresponsibly, for sure, but perhaps even illegally. Opinion please? To my knowledge no one in the seven years I've lived here has ever paid a fine or had a lien placed against them which, according to our laws, is the prescribed method of dealing with stubborn violators. Is the board not required to LAW to uphold our governing docs---like it or not?

- Faith

Yes, your board is obligated to enforce all provisions of your association's governing documents. However, if there is an external resource that can enforce the deed restrictions without the board incurring costs to the association, I highly recommend they pursue that course of action.

There are many external resources to help owners and board members protect their community's deed restrictions: Fire and Police Departments, Zoning/Planning Boards, Health Department, Animal Control Department, Building Department, Permit and Licensing Department, to name just a few. However, if there is no assistance available, then the board must initiate enforcement actions. I would recommend that the board consult with a competent attorney knowledgeable in your state's community association laws to help them craft an enforcement policy that addresses both internal and external measures to ensure compliance with the association's governing documents.

Please use our keyword search, and enter "enforcement" in the key word field for several articles and Ask the Expert archived responses addressing this issue.

Sincerely,

Margey

My question is about rules about street/driveway parking and requirements to keep a garage clear for parking and prohibiting use for living space or storage. I have found several references in your Q&A that say such rules are enforceable and that a board has a duty to do so. I need to know why a board would refuse to enforce it saying that it is "difficult" to enforce. What exactly is difficult about it? And what is easy about enforcing the other rules? They all involve identifying a violation and sending a letter. I see garages open with boats and trailers all the time.

If you can't answer my question for your column could you at least let me know who I could ask that could help? Thanks.

- Wayne

Perhaps your board members are unsure how to proceed with enforcing the parking violations, since this issue can certainly be overwhelming to volunteer leaders. Why not suggest that the board consult with a reputable attorney knowledgeable in your state's community association laws who can guide them through the process of equitable, reasonable enforcement of all of your association's deed restrictions?

Sincerely,

Margey

I bought a converted 500-square-foot condo unit on the marina waterfront in San Diego. With the help of a large architectural firm in downtown San Diego, I submitted a remodel plan for the unit. I waited two months for the HOA to form, since the developer was advised by his lawyers not to approve my remodel outright prior to HOA formation.

The HOA came back with a partial approval of my remodel that prevents me from installing a washer/dryer unit inside my condo. Other units in the complex have washer/dryer units. There are also over-priced vended washer/dryers in squalid rooms in the basement of the building.

The HOA first suggested that I would be squirreling out of indirectly paying my fair share of the water bill by not using the pay washing/drying machines. When my architect responded convincingly to that comment, all but one Board member was satisfied. She related an experience in which her living room was flooded by a poorly installed washer in another condo building in which she resided years ago. Citing that personal experience from another time and place, and a history of drainage problems at the waterfront condo property now in question, she persuaded her fellow Board members to disallow my washer/dryer placement.

Does the Board have the right to so preclude me since some units contain washer/dryers? I searched the CC&R's and found only this with regard to washers and dryers:

"5.11 ....Washing machines gas or electric dryers, and any other such major clothes laundering appliances are permitted in a unit only if the unit is equipped with appropriate hookups installed or approved by Declarant, or if the installation of such hookups is approved in writing in advance by the Board or the Architectural Committee and the installation is done by a licensed contractor."

I received prior approval for the washer/dryer from both the developer (aka the Declarant) and his representative, the conversion construction company, before I bought my Unit. At the time there was no HOA from which to seek such approvals.

Please advise.

Interestingly enough, when I asked the dissenting Board member if she lived on the property, she admitted she did not, but that her son did. Since very few residents use the squalid vended washer/dryers it's safe to assume he goes home to mom to do his laundry. I do not have that option. So again, can the Board so limit my options on something as fundamental as my right to cleanliness in my home?

Thank you, in advance, for your response.

- Rosalind

If the current or former board members approved the installation of washing machines and dryers in other condominiums, they should explain why circumstances differed in your situation which prompted a denial of your application. Since your governing documents authorize the installation of the equipment pending board approval, as long as you comply with the criteria established in the CC&Rs your application should be approved. I suggest you resubmit your application, addressing in writing the concerns expressed by the board members.

Sincerely,

Margey

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