Ask the Expert

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

What exactly is expected from the Board President at annual meetings? What should the President's Report consist of? We've never had a quorum in 18 years--does the President call for a vote to continue without a quorum?

- Jennifer

A community association president should preside over the annual meeting. He or she may want to present a "state of the community" report that highlights the accomplishments over the past year and alerts the owners to upcoming major expenditures or other considerations.

According to parliamentary procedure, if a quorum is not achieved at a meeting, no actions or votes may be taken. Only a meeting with a quorum as defined in the governing documents is considered valid, and only decisions made at such a meeting are enforceable.

For more information on meeting conduct, quorums and the role of the president, enter the appropriate words or phrases in our keyword search function.

Sincerely,

Margey

Past board members became friends with the lawn contractor and allowed him to see all the other lawn contract bids so they would be able to raise their bid and still be the low bidder. Is an HOA required to disclose all the bid quotes to the home owners? It's apparent that this leaked information can affect the next round of bidding to the owners disadvantage.   

- Chuck

Your board's actions can certainly be considered inappropriate and detrimental to the best interests of the association. Please use our search function keywords conflict of interest, for more information regarding improper actions of a board of directors.

Sincerely,

Margey

Leaving Board

As a board member I received monthly meeting papers as part of my duties. Now that I am leaving my position as VP. The management company is indicating that I must give those materials back and if I don't they will charge me reproduction costs. Are they correct?

- Ethan

Yes, you must return all material you received in you role as board member. You no longer are authorized to keep them, and they must be included in the books and records of the association.

Sincerely,

Margey

We have read your forums, the Massachusetts General Laws, our Master Deed and By-Laws. We need help because we cannot find a solution or answer. By the way, some things on your site have been helpful... so thank you!

Let me start by saying that my husband and I currently reside in Massachusetts and are owners of a unit in a small condominium complex. The condo association consists of six board members (or six units); one of which is the association manager, or Trustee. This person is the only one in charge of running the assocation. Her name is "J".

In saying that, my husband and I, as well as three other board members feel that "J", as Trustee, is oftentimes rude and controlling. It appears that she nullifies votes that were passed by the majority of the board. We also feel that we are treated like tenants and not homeowners or board members.

"J" seems to show mentally unstable behavior. There have been run-ins with just about every board member, and a past unit owner even sued her for interfering with the sale of her unit. The lawsuit was settled, but her behavior has not changed.

"J" oftentimes comes to each of our units unannounced and reiterates what is already been stated in her previous emails or letters, and then takes the conversations to a more personal level by making comments about her health or family issues. We feel that living in the condo complex does not need to be so chaotic; we want peace. We believe that she creates problems for herself, as well as for the association.

"J" tells us, instead of taking the majority of the board votes into consideration, what is going to take place regarding property maintenance and/or any issues affecting all of the unit owners/board members. In addition, she makes financial decisions without consulting the board members, and has been resistant to the requests of us to provide statements of monthly expenses and transactions, as well as the balance on the condo association bank accounts. This was all brought to light because of a special assessment that we wanted justified.

Last month, in just a few days, all of us received three e-mails or letters from "J" resigning from her post as Trustee, all of which had effective dates. One of these e-mails nominated my husband to take over the position, and he accepted. A day later, we receive another letter but this one stated that she did not want to resign.

Here are my questions:

1. "J" told a board member that a Trustee must be voted in unanimously. Is this true?

As of right now, half of the unit owners would like to remove this person and have an election for a new Trustee because of all of the reasons stated above.

2. Is it legal for us to ask for a monthly statement of expenses and the status of the associations' bank accounts? We were told that only "J" or her husband (who is a board member only) could deposit checks into the bank accounts, because the state was strict about who can access this information. Is this also true?

Thank you in advance for your help... we really need it!

- RD

Check the Massachusetts state statutes regarding community associations as well as your association's governing documents to determine your right to access your association's books and records. Most statutes and governing documents explicitly require the board/manager to make the association's records available to the owners within reasonable time constraints.

As to the erratic and perhaps inappropriate actions of your Trustee, you already touched on the solution -- replace her. Check your association's Bylaws for the specific manner in which to call a special meeting to remove her as Trustee and replace her with an owner more responsive and rational.

Sincerely,

Margey

As board president do I have the authority to limit the actions and behaviors of another board member. Essentially what I would like to do is create a job description for my treasurer. The guy is out of control.

- Paul

As long as your community association's governing documents authorize the president or the board in general to regulate the operations of the association, or impose on the president either clearly or by inference the title of CEO of the incorporated entity, then the president and/or the board may certainly craft job descriptions for each officer. However, any job description may not conflict with one that may already be included in the governing documents.

Sincerely,

Margey

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Yesterday I attended my first Annual Meeting of our Community Association. Although I met a lot of very nice people, I left with uncomfortable feelings about the community's Board of Directors.

The board has been in office for 13 years and seems to be a "clique" that has no interest in input from new members.

Yesterday, we voted on three board members. There were five candidates, three of which were incumbents and two who were new. One incumbent is on the "outs" with the rest of the board. The results were two incumbents being elected, and one new individual. Each person won the election on "absentee ballots" and did not have the majority of those present. The new person elected said he had no idea how he got elected since he did not know anyone in the community and had no idea who might have submitted the the "absentee ballots."

There are several of us that want to be sure that there wasn't a misuse of absentee ballots. Can we demand to see who the absentee ballots were submitted by and contact some of the individuals to ensure that they were indeed the party submitting those votes. We want to ensure that the election was on the "up and up."

Your input would be very much appreciated.

- M.

Most state statutes and community association governing documents mandate that community association members have the right to review the books and records of the association. Your association should allow you to look at the annual meeting ballots and proxies to determine the validity of the vote.

Sincerely,

Margey

Meeting Minutes

I recently spoke at a Condo Board meeting on a very contentious issue in our community.  I read from a prepared statement and gave a copy to each Board member.  I asked that my prepared comments be included in the Board meeting minutes.  Nothing was said concerning my request.  The meeting adjourned and now several directors via email have decided they do not wish to have my remarks in the minutes.  Can they do this?  Must it be done in the next a Board meeting publicly since the meeting adjourned and no Board objection was given prior to adjournment.

- Phil

Since meeting minutes should reflect the decisions and actions of the board and not verbatim discussion or narrative, the board is technically correct in deciding not to include your comments. However, the board could consider approving a motion to attach your written material to the minutes without comment, neither approving nor supporting the content.

For more information on parliamentary procedure, go our "Links and Resources" page and scroll down to Parliamentary Procedure.

Sincerely,

Margey

I really appreciate the information you provide to condo owners.  In fact, I save every issue. Thank you for your great work.

Please tell me whether or not it's ok to notify homeowner's of upcoming meetings by e-mail.  Our by-laws only stipulate mail, but isn't e-mail considered mail?  When you use snail mail there is no proof of ever sending a meeting notice outside of sending a certified letter to every homeowner, whereas at least an e-mail sends notification of any undeliverable e-mail. Your response is appreciated.

- Debbie

Some state legislatures have passed bills approving the use of email for official notification of community association business. To determine if California is one of those states, go to our “State Resources” page and then click on the link to the California legislature.

Sincerely,

Margey

My question is about the monthly dues that are paid each month. The dues can only be mailed and there have been a few times where I have mailed in advance but it did not get in the P.O. Box on the 15th of the month so a $20.00 late fee was charged. We cannot hand deliver the payment so I want to know do owners have the right to just deposit their payment in the account for which the association has set up for these anyway and when doing so, a copy of the deposit slip is made and sent in the mail (like it was a payment) and that way if it does not get to the P.O. Box by the 15th it would not matter because the payment was already deposited.

- Anne

Please take a look at your association's governing documents, in particular the Declaration, which should contain a provision that details dues payment criteria. Typically, there is wording that requires payment in advance by the first of the month, with a grace period before a late charge is imposed. If your association's documents contain a similar provision, I suggest that you mail your check, or set up an automatic monthly payment, to ensure receipt by the first of the month to avoid the $20 fee.

Perhaps your board could investigate creating a lock box account with the association's bank in which owners send payments directly to the bank with a coupon that can be read either by bar code or other electronic means that identifies the payer's account/unit number. Lock boxes enable owners to ensure timely payment to the association and relieve the accountant from the time-consuming responsibility of preparing deposit slips. If your local bank is hesitant to establish a lock box account for your association, there are several national banks that focus on community association banking; go to Community Associations Institute for a list of member banks.

Sincerely,

Margey

Assessments - Payment

We have a newly formed Association. We are a Homeowners Association, not a Neighborhood Association. Please explain the difference. And if a homeowners says he is not a member of the Association, but, as he put it "feels it is his moral responsibility" to pay the fee that has been assessed, how is this money to be handled? Is it a gift, donations or what? He has given the board 30 days to answer some questions, do we have an obligation to answer these questions? And one of the board members wants to answer his question in the form of a letter and also explain that as a non-member he does not have to pay his dues? Is this true and should it be put in writing?

We are having a meeting tomorrow at 4:00, if you could answer these questions for me, it would be a great help. And do we as an Association need an attorney? Thank you for your help in these matters.

- NT

To be considered a community association/homeowners association/property owners association, your association must evidence all three of the following characteristics:

1. Mandatory membership as required in the association's Declaration/Covenants/CC&Rs;
   
   
2. A provision in the recorded Declaration/Covenants/CC&Rs establishing a lien for the payment of assessments;
   
   
3. A set of governing documents, including the Declaration/Covenants/CC&Rs that binds the association and the homeowners to each other in the form of deed restrictions, payment obligations and provisions for common services.

If your association's governing documents provide these three criteria, then payment of assessments is not optional, and the association could pursue legal recourse for nonpayment.

As to the board's obligation to respond to an owner within thirty days, while there is probably no provision in the governing documents or state statutes that mandate such a response, good business sense and common courtesy would suggest prompt responses to owner queries. If a written response is too cumbersome because of the extent of the information to be provided, consider a phone call or informal meeting, both of which tend to resolve issues much quicker and more amenably.

Sincerely,

Margey

We are medium size condo association with 149 units. We are self-managed with 4 staff members, manager, maintenance engineer, maintenance clerk, and a porter. We currently pay for benefits that include life, health, and 401K benefits. We are going through our budget for 2007 and one of our biggest expenses is Personnel. Under the proposed budget, personnel expenses are anticipated to at $285K. This is our biggest expense.

Can you suggest measures where we can effectively reduce cost, continue to provide a good service to the community, and keep personnel happy. We have placed confidence with the manager on cost saving measures, however, her efforts appear to be futile. We had in the past tried partnering with other condo associations but these avenues were not available. Can you suggest association that are open to joining a consortium to increase buying power? Thanks for your help.

- Leven

Medical and workers compensation insurance policies can take a big bite out of a community association's personnel budget. If your board has evaluated the job description of each employee and determined that the association is appropriately staffed, you might consider the potential cost savings of Professional Employer Organization ("PEO") which may offer lower premiums that offset their administrative fees. Enter "PEO" in your favorite Internet search engine or look in the business phone book under "Professional Employer Organization" for both national and local service providers.

Sincerely,

Margey

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I'm the first resident director in a new 400 unit age-qualified community. Soon we plan to become a gated community. Where can I find information on the various options for a gated community, especially related to the equipment used for residents and non-residents to enter the community?

- Frank

Welcome to your new home! For information regarding gated communities and the types of gate electronic and mechanical operators available, go to Community Associations Institute, then click on Bookstore. There are several publications available on the site that address gated communities. There may also be national gate access providers available through CAI's vendor search function that may be able to help you determine the best product for your situation.

Sincerely,

Margey

Your site has been extremely helpful in the past.  Thank you for all your help.

My question today concerns a homeowner who has just decided to rent his home because of the recent decline in real estate purchasing.

We have never had any real problems from this particular owner, other than his making it clear that he did not agree with the POA even existing.  A For Sale sign was in his yard for about six months. 

When we saw that the For Sale sign had been removed and people were moving in, a member of the POA stopped by to welcome them to the community.  The new people informed him that they had purchased the home outright from the owner.  The new people said they had no idea the home was in a shared interest community.  The POA member told them what disclosure they were entitled to from the owner. 

The next the day the realtor called to say that the owner had not sold the home, but had rented it.  We thought this odd since the new people stated more than once that they had purchased the home.  Of course it does not matter to us since we have no restrictions on owners renting their homes, but we do require that renters be given a copy of our Covenants and other rules adopted by the board and we do expect renter to observe them.  We also ask ed for the names of renters be given to us for our records so that we can send general information that may pertain to them about the community events, emergencies, etc.  We also require the owner to update contact information so that we can send important information to owners.

That afternoon we received a very irate call from the owner stating that we were under orders never to contact or speak to his tenants, that he was sending the POA an order of no trespass.  Then we received an emailed "no trespass/no contact from him, as well as one sent by certified mail and regular mail.

We thought this action strange, since we have never had reason to enter his property when he lived in his home, nor did we indicate that we wanted or needed to now with the renters.  We simply asked for their names to send general community info (block parties, etc) and for emergencies.  Also, for our welcome committee.  We think renters as well as owners should have the opportunity and be encouraged to become involved in their community if they choose to.

How legal is this no trespass/ no contact letter for a third un-named party?  Should we ignore it?  We have budgeted to retain an attorney for next year, but this year, we are still a new and poor Association.

Our Covenants give us the authority to enter property with legitimate reason, but of course at this point, we have no reason that pertains to the POA, other than to introduce ourselves as neighbors. How strange!

What is your take on this bizarre behavior?  We have never had this sort of thing happen before.  Thank you.

- Kathy

While I completely concur with your philosophy of inclusivity with regard to renters, your association's governing documents is essentially a contract between the association and the owners, not the tenants. Perhaps the tenants will volunteer the information to you if they see association newsletter s and activities posted on community common areas.

Sincerely,

Margey

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Following some bad investments and major calamity claims, our Association's insurance company canceled our master policy. Other companies gave us bids that were astronomical and outside the limits of our budget. So our Board of Directors decided to require all unit owners to carry their own policies covering their units and their portion of the structure. The Association maintains D&O liability coverage and liability coverage on the common areas.

Both my insurance agent and a real estate attorney in my company have claimed that this decision is "a recipe for disaster" and that units containing contiguous walls, siding, roofs, etc. should be covered by a master policy. I have attempted in vain to find a state law requiring Associations to carry a master policy.

Do you see problems insuring townhomes in this way? What are the issues that might arise? Is it common to insure a townhome community in this way?

Any feedback would be sincerely appreciated.

- Heather

Townhome-style structures that are planned communities (the lot and home are deeded to the owner and the association owns the common elements) and not condominiums (the unit is deeded to an owner and the owner also owns in an undivided interest the common and limited common elements) typically either have a master insurance policy covering all units and the common elements or require each owner to provide adequate insurance on the townhome structure. The association's governing documents usually determine which insurance method to implement; one is not more or less prevalent than the other. My personal choice is for the association to provide insurance on all the buildings and common elements to prevent situations in which an owner failed to adequately insure his unit and has insufficient funds to rebuild.

If your association's governing documents require the association to fully insure the buildings, then your board of directors does not have the authority to change the method of coverage. Depending on the wording in your documents, it's possible that your board must invoke the amendment provision in order to change insurance responsibility; it's also possible that all mortgage companies holding an interest in a townhome in your community must approve such an amendment.

Before making such a momentous decision to switch insurance responsibility, I would urge your board to consult with a competent community association attorney to ensure the validity and enforceability of their decision.

Sincerely,

Margey

My HOA changed the deed restrictions and Architectural Committee Rules (Covenants) without asking any of the homeowners other than those in the board. The HOA's bylaws specifically say that a quorum (voting by all homeowners and 75% approval) must be obtained to change the covenants. This happened about 2 years ago.

Do I have any other resource to challenge this change other than going to court? What is the statute of limitations for this in Texas?

- Z

If the board did not follow the procedure detailed in the governing documents for changing the deed restrictions and architectural guidelines, then it cannot enforce whatever new rules it passed. However, many community association governing documents provide some latitude to the board to make changes to certain provision, such as the rules and regulations, without a vote of the membership. Your governing documents should describe the steps necessary for implementing revisions.

Sincerely,

Margey

We moved into a neighborhood with CCR's approximately 5 year ago.  Upon moving in we placed a freestanding basketball hoop in front of our house.  No complaint has been received until just about 2 weeks ago.  It was noted that it is in violation of the CCR's without even noting the section.  I managed to dig through the general rules and found nothing, then I found it addressed deep within the Architectural Guidelines.

My question is - is there some kind of limitations period by which the association was required to act?  I believe that has been well over 4 years and now they are going to notify us that we have to move it?  Seems a little ridiculous especially in light of their selective enforcement on other issues like barking dogs that disturb everyone vs. a net in front of my own house?

Thanks.

- George

Limitations on enforceability of deed restriction violations vary by municipality and state; the determination of your board's authority to require you to remove the basketball hoop is best left to legal counsel. The more challenging issue, as I see it, is the reasonableness of the restriction. Over the years, conditions in your community may have changed; perhaps demographically there are more young people and health-conscious adults who prefer to work out energy and improve fitness through productive exercises such as basketball games. Board members in community associations should be attuned to their constituents and, when possible, revise architectural guidelines and rules to reflect current reality. To determine the preferences of your community's residents, your board could consider mailing a survey to each owner or posting a link to an electronic survey resource such as www.surveymonkey.com.

On the other hand, if the board is legally authorized to require you to remove the basketball hoop and it is the wishes of the majority of your neighbors that such hoops not be permitted, then you should comply with the board's request to remove the structure.

I urge you to maintain a cordial dialogue with your board as you work through the process of determining the validity of the removal request. Being reasonable in circumstances such as yours is the mark of a compassionate board, the most desirable attribute for volunteer leaders.

Sincerely,

Margey

My HOA has two CC&R rules. One says that you can put down any flooring you want. The other says you can't do anything in your condo that is a nuisance to your neighbors.

My upstairs neighbor put in laminate floor and the quality of my life has gone down the toilet.

I live in California. The Board has pretty much ignored my protest and the guy upstairs refuses to change his flooring. I lived here 15 years before he moved in 4 years ago. Do you have any suggestions.

- Jefferson

You may need the assistance of a competent attorney knowledgeable in California community association law to pursue the issue of the uninsulated floors. Since there are several products on the market that absorb or deaden floor sounds post-construction, you may have recourse against the upstairs owner for not using one of them.

Sincerely,

Margey

Our HOA is barely one year old. We are a non-age restricted community in southeastern NC. There are a number of retirees who have bought homes here and there are families with children as well. We have two swimming pools. One is about 1/3 larger than the other. The developer told all prospective buyers that one pool was for adults only; the larger pool was to be that pool. The owners with kids are extremely unhappy with the smaller pool and now want to initiate a ruling that both pools are to be open to everyone. Would mediation be the best way to approach this "third rail" issue? What would you suggest?

- Patricia

Please go to our "Links and Resources" page, then scroll down to Fair Housing Act. There are provisions in the Act relating to a prohibition against designating pools for "adult" and "children" with which all residential developments including homeowner associations must comply.

Sincerely,

Margey

I discovered after attempting to sell my condo that after I paid all HOA back dues and assessments on my condo to release the lien on my property so I could sell it, and even though I paid this debt 8 months ago, the lien release was never filed or recorded with the court, and the lien is still on my property.

The HOA attorney who collected the money from me will not return my calls and when I go to his office they tell me he isn't in or in court. The HOA board members will only say I don't owe the association any money and to contact their attorney.

I've left my phone number several times and mailed letters but have not received a reply. I'm disabled and can't get around very well so this trying to go downtown to see him is hard because there is no close parking to his building.

Any suggestions or opinions to resolve this problem would be appreciated.

- Ann

As detailed in the governing documents for every community association, there is a continuing lien on every unit/home for payment of assessments and maintenance fees. However, if the association recorded a lien to provide public notice of the delinquent maintenance fees and failed to file a release of lien when the delinquency was paid, it is wrongfully affecting title to your property. I urge you to immediately send a certified letter to every board member and the association's attorney demanding that they clear your title within ten days of receipt of your letter or you will retain the services of legal counsel to sue the association to ensure that your title is clear for transfer to a new owner. You might consider sending a copy of your letter to the association's Directors and Officers liability insurance agent.

Sincerely,

Margey

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Hello,
I live in a HOA in Pennsylvania. I recently discovered that the exterior wall of my property had extensive rot damage beneath the stucco. I reviewed the Declaration, By-laws and Rules and Regulations for my community and found (as I suspected) that our documents clearly stated that as part of the Common Expenses, the Association was responsible for all exterior surfaces (from the exterior side of the exterior stud).

When I brought the problem to the attention of the Board of Directors, the initial verbal response I received was that if the problem was structural in nature, then the Association would be responsible to fix it. The Association hired an engineer to examine the problem and he reported that it was structural in nature. However, at this point the Board of Directors did not accept responsibility to fix the problem and claimed that they were not responsible since it was not considered a common expense.

The Board instead cited a passage from the Uniform Planned Community Act, stating that "a common expense that benefits fewer than all of the units shall be assessed against the unit that it benefits". To be perfectly honest, I had never heard of the UPCA until then and I was of the impression that the Declaration I signed was what governed my community. Upon reviewing the UPCA I discovered that the passage cited by the Board is preceded by the statement "except were provided by the Declaration".

My question is whether the Declaration for my community (which clearly requires the Association to fix the problem and which deals specifically with the responsibility for exterior wall repairs) supercedes the UPCA or whether the Board can use the more general, non specific UPCA to avoid having to do the work.

Also, in the past the Association has routinely maintained and repaired items within the community that only benefitted a select number of units (ie. fewer than all of the units). These repairs are treated as a common expense and subsequently paid for by all of the units, even though they do not benefit all of the units. I feel that if the cost of the repairs to my property were of a lesser amount that the Board would simply have performed the work in accordance with our Declaration, but because the costs are likely to exceed $30,000 they are trying to find any way to avoid responsibility, and they are trying to use the UPCA to achieve this. Thanks.

- Kevin

Since the provision you quoted from Pennsylvania's Uniform Planned Community Act contained the wording, "except where provided by the Declaration", then in this particular instance it would appear that the Declaration takes precedence and your association would be responsible for repairing the wall.

I urge you to consult with a reputable lawyer knowledgeable in community association law and dispute resolution to attempt an amicable resolution of this issue.

Sincerely,

Margey

I live in a condo community where the management company does not do very much. There are other owners that feel the same way. We would really like to replace the current management company with a company that would be more attentive. Where do I find a listing of community management companies in the Philadelphia region and also know what the fees are for comparisons?

Thanks

- D.

I suggest you discuss your management requirements with Mr. Steve Castle, CMCA, AMS, PCAM, President of Mid-Atlantic Management Company, an Associa member company based in nearby Plymouth Meeting. Mid-Atlantic has been managing community associations in the Philadelphia area since the early 1980s, and Mr. Castle is one of the most respected management company CEOs and educators in the industry. He can be reached at:

W. Stephen Castle, CMCA, AMS, PCAM
President & CEO
Mid-Atlantic Management Corporation
4070 Butler Pike, Suite 700
Plymouth Meeting, PA 19462
(610) 834-1350 office
(610) 834-7541 fax

Sincerely,

Margey

I'm part of an association in Miami Florida and have been recently participating and trying to get a new management company to service our association. I've been looking all over but I cannot find some sort of objective source that can provide a service list of what a management company should offer and the fees for those services. I would appreciate your help in any way possible thank you.

- Nat

The websites of both Association Times and the Community Associations Institute contain a wealth of information regarding the services a community association management company should offer. Use the search function with keyword “management company services” to narrow the results.

As for reasonable fees, I suggest you contact Mr. Andy Meyrowitz, President of DCI Association Services, an Associa member company based in Hollywood, Florida , for specific information. You can contact Mr. Meyrowitz at mmeyrowitz@dci-inc.com, or telephone 954/922-3514.

Sincerely,

Margey

Our current property management contract is up for renewal at the end of this year.

Over the past 3 months, numerous substantiated rumors indicate that the President of our community's Master Board (a coalition of 13 independently owned condo associations) wishes to become the paid Property Manager (without property management credentials; professionally, a parttime real estate agent).

One of the 13 Condo Presidents commented that they are not allowed to comment on this to homeowners. No public announcements have been made to yet.

I believe a homeowner, as paid Property Manager is not in the best interest of our community; nor is it a best business practice.

What is your opinion of residents serving as paid Property Managers? And, would you kindly direct me to resources and information regarding same?

Background information on our HOA's structure: Composed of a coalition of 13 separately owned condo associations; since developer built in 13 increments. Each of the 13 condo presidents also serves on a Master Board. A gated community on approximately 1400 townhome units on 500 acres in northwest Illinois with a population of approx. 2500. Has own off site wastewater treatment plant and on site water well.

Thank you for your assistance.

- Robin

To ensure hiring a qualified, competent manager for your master association, the board or a designated Manager Search Committee should prepare a set of qualifications the manager should have, ranging from direct experience in managing a large-scale community association to industry credentials conferred by the Community Associations Institute.

It is unwise to entrust millions of dollars of assets to someone without direct expertise and the support of a professional community association management company. If the board president meets the standards established by the board or committee, and if those standards truly reflect the ideal candidate for the position, then hiring him would not necessarily be considered a conflict of interest.

Just because he served on the board for a period of time does not qualify the president to be a manager, however. I encourage your board and other interested homeowners to read "Selecting a Management Company" published by the Community Associations Institute and available through its online bookstore to learn about the knowledge and many skills a community association manager must possess in order to effectively provide leadership and insight to the board and homeowners.

Sincerely,

Margey

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We have a 5-bedroom house in a community with CC&R's. We have it leased to four 3rd year female med students - one of which is a minority.

Apparently in our CC&R's - it states that we cannot rent to more than 3 tenants, unless they are related. The lease was executed and signed on Sept 1 for one year. The HOA passed a resolution on 11-15-06 requiring that we supply them a "Leased Property Information" form which details the names of our tenants and also that we are in compliance with the 3-tenant unless related condition. We are concerned about violating the Fair Housing Act as these are female tenants who came to us as a group and the fourth tenant (the one who would be asked to move out) is also of a minority race. Do we have any recourse here? Can we challenge the HOA for requesting this information? Is it a direct violation of any privacy acts? The lease was signed by all parties before the Board adopted this new resolution requiring notification of names and number of tenants. We have been told that AZ has a state law that directly conflicts with a limit on tenants as long as the home has the adequate number of bedrooms.

Any help here would be greatly appreciated. Thank you.

- Susie

According to Mr. Mark Lewis, founder of Lewis Management Resources, an Associa member company based in Tucson, it seems pretty clear that if your association's Declaration limits the number of renters per home to three, then you are in violation of the governing documents and the federal Fair Housing Act is not applicable. I suggest you consult with an attorney to determine your rights and obligations as well as potential legal recourse the association may have against you.

Sincerely,

Margey

I live in a gated lake community with a homeowners association of 72. For the past few years the post office gave us free mailboxes at the office since they would not deliver to our community. Now, they say they will charge for the mailbox because they will allow residents to put mail boxes at the entrance to our community. Rather than having a hodge podge of individual mailboxes at the entrance I suggested at a community meeting the association put up attractive cluster boxes. Instead, the members voted to not to have any mailboxes. Can I or anyone else put up a mailbox even though the association has decided they don't want mail boxes? Further, would this postal designated area now be considered "public property" or "common area"?

- Matthew

Check your association's governing documents to determine if an owner has the authority to install anything on a common or limited common element. Most documents prohibit personal use of the common/limited common elements; if yours track this typical policy, then you may not install a mailbox without prior written board approval.

Your board should further explore the possibility of installing a mailbox cluster by the road and requiring the owners with boxes to be responsible for upkeep of the structure. It is a reasonable and valid solution to the changing circumstances.

Sincerely,

Margey

We are a very small Condo/Townhouse community (12 units) in California and are having a hard time with limited parking. If homeowners can not fit cars in our own garages, then according to our CCR's we must park on the public street.

We only have 6 visitor parking spots and one of our homeowners suggested the Association "rents" one or two to any homeowner who does not want to park outside on the street.

I was told several years ago that 6 visitor parking spots was the minimun required for a community our size and location. (Limited Fire Equipment Access). I have looked all over and can not find any regulation. Can you help me or point me in the right direction?

- Deborah

Your local Building Code Enforcement or Zoning Board may be able to provide an answer to you with regard to the required number of visitor parking spaces for your community. If your neighbors are seriously considering converting the parking spaces to an individual owner's use, I urge you to first contact a reputable attorney knowledgeable in California community association law. Many community association governing documents prohibit altering the use of a common or limited common element without approval of most or all of the owners, and possibly the approval of most or all the mortgage companies holding an interest in any home in your community.

Sincerely,

Margey

We live among an eleven lot housing development with no HOA. We do have restrictive covenants that the majority of the neighbors wish to uphold, two years after the date that all of us first moved into our homes.

Within the two years, the covenants have not been enforced. Many of the neighbors have done whatever they wished to their property, under the guise that their home improvements fall within the building guidelines of the covenants.

There is a neighbor who has put up a structure that is not in the guidelines of the covenants. Their argument is that no one has followed the covenant rules verbatim, so they should not be held liable. What are your thoughts please?

- Shelley

Reasonable accommodations should be made for variances to a community association's governing documents so long as the original intent of the document provisions is upheld. If an owner's modification to his house or lot exceeds that policy of reasonableness, then whatever entity has control over enforcing the deed restrictions should become involved in protecting the community's property values.

Sincerely,

Margey

My wife and I live in the state of Maryland, and have been residing in a 28-home community since its development 8 years ago.

Recently, we had a 6' yard fence installed around the 3-sided parameter of our home, not knowing that the H.O.A. By-laws for our community states "no double-fencing".

However, after reading over the By-laws, my wife and I noticed that in the "Fencing" portion of the By-laws, the neighbor residing immediately behind us, (whose backyard fence portion our fencing "doubles") had a 3' picket fence constructed 3 to 4 years ago, and the By-laws state that the spacing between the pickets can not be more than 1' apart. This neighbor's pickets are clearly 2.5" to 3.0" inches apart, (per our physical measurements). [Our By-Laws have no height reference for fences stated in the By-Laws.] Also, our county has its own Homeowners Building Code documents on file that state that any homeowner wishing to construct any water-bearing structure (pool, spa, jacuzzi) that has a depth of 18" or more - then the homeowner must erect a fencing around the perimeter with a height of 6'. My wife and I are in the process of having a pool constructed, and knew that the 3' backyard fencing would not pass the county's safety inspection.

We have since spoken verbally to the H.O.A.'s Architectural Review Board members, one, face-to-face, and another over the telephone, about the situation, (as the backyard neighbor had complained to the ARC to enforce the removal of our backyard portion of fencing). In turn, we stated that a previous breech, or breeches to a HOA By-Laws covenant nullifies a covenant in its entirety.

QUESTION: If there are any breeches to a covenant, does this mean that the entire covenant is non-enforceable?

--Since receiving a certified letter from the HOA's hired property management firm stating that our fence is in violation of the By-Laws, and that we 30 days to remove it from our lot. I thought it best to seek further advice quickly, (we're even pursuing legal representation).

*Note: I have since made a list of multiple breeches to the covenant as written. The ARC had issued many "variances" as they call them to homeowners allowing them to get by with not complying to many of the other written By-Laws, (with no member quorums represented at quarterly meetings to handle such incidences). What a mess indeed! Help!

- A.

As long as the authority is granted in your association's governing documents, your board of directors does have the right to grant reasonable variances to your community's deed restrictions without asking the membership for a vote to amend the original restriction. However, your board must be fair in granting the variances; as long as another owner submits approval for the identical modification and complies with identical criteria, the board must permit the variance. In your situation, it sounds like city code requires the construction of a specific type of fence around your pool; typically, local ordinances supersede a community association's governing documents.

With regard to your neighbors' possibly violating your association's deed restrictions, there is usually no provision that requires waiver of the restriction if it is continually violated. Another possibility may be that a court of law may determine that a particular deed restriction is no longer valid because of continual and long-standing violations, but all other restrictions remain in force.

Sincerely,

Margey

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