Ask the Expert

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

I was wondering if the President and Vice President of a homeowners association are allowed to be married. If you are unable to answer this question can you direct me on where i can find the answer. Thank you.

- Shannon

Unless your association's governing documents specifically prohibit officers or board members from being married to each other or living in the same house together, there's no reason why your president and vice president cannot serve your association in official capacities. If your neighbors are unhappy with the situation, perhaps you all should propose your own slate of directors at the next annual meeting.

Sincerely,

Margey

I am a director for an HOA. I also serve as an officer of the association. Our bylaws state that we must have 3 or any other odd number of Directors, but when it comes to Officers of the association the bylaws state, “The officers of the Association shall consist of a president and a secretary/treasurer, and such other officers and assistant officers as may be deemed necessary, each of whom may be elected annually by the Board of Directors at the annual meeting following the annual membership meeting...”

If we keep three directors, which makes sense because we are a small association, can we have four officers? (President, Vice President, Secretary, and Treasurer) In other words, we know that a director can be an officer, but does an officer have to be a director?

The reason I am asking is that some members of the association have special skills suited to being a secretary or treasurer, but not necessarily both. The VP can serve in several capacities as needed, but if a member simply wanted to serve as an officer, such as secretary only, without the responsibility of being a director too, can he or she do that?

Thank you in advance for your response.

- Robin

Unless your governing document specifically require officers to be board members and/or homeowners, your board may appoint officers from among the membership or even from outside your association. However, officers also are liable for consequences of their actions with regard to decisions made on behalf of the association. All community associations should carry industry -specific Directors and Officers Liability Insurance to protect their leaders from spurious litigation as well as from unintended errors in judgment.

Sincerely,

Margey

Currently we have 6 units. The president is not an owner. Another condo renter is placing everyone in a hostile manner. Our DWP has been turned off. What can we do? The new treasurer has not attempted to make resolution with the past due bill.

- Barbara

Your first priority is to get the power restored, then worry about your unresponsive board members later. Since there are only six units, why not take it upon yourself to find out how much the association owes and collect the appropriate amount from each owner? After the immediate emergency is resolved, then chat among yourselves about electing board members who have more time and desire to fulfill their fiduciary obligations.

Sincerely,

Margey

Problem Board President

Can a board president write scathing, defaming e-mails to homeowners that are not in agreement with him and then use the excuse that he is writing from his personal e-mail address as a homeowner, not a board member so the board as a whole will not be held accountable for his actions? This is happening in our HOA. Isn't there a law in California preventing this?

- Margaret

Board presidents must act "presidentially" in both personal and professional relationships with members of the association. It sounds like the other board members need to consider counseling the president or appointing a new one who will treat the residents with reason and respect.

Sincerely,

Margey

On our ballot form owners checked off "Assign my vote to be cast by the Secretary of the Board." What does that mean? Our property manager said that the vote would just go the the winner, so I would not change the outcome of the election. Is this right?

- Cheryl

The notice of meeting or ballot should contain specific verbiage regarding the board's use of proxies. If both documents are silent regarding this issue, it's possible that the board could use proxies assigned to it to affect the outcome of any election or vote.

Sincerely,

Margey

Top | Board of Directors | Communications | Finances | General
Insurance | Legal | Maintenance | Management | Rules

I moved into my newly built house in late November of 2006. The builder paid for taxes but, I was wondering about the homeowners association fee. I haven't received a bill in the mail.

- Alex

You may have paid 2007 maintenance fees when you closed on your home; check your closing statement to determine if that is indeed the situation. If you're sure you did not pay in advance, then it's possible that because you purchased your home late in the year, the association or management company did not have time to update the owner file before sending out invoices or coupons for the 2007 fee. If you haven't received notification by now, contact your association or management company to ensure that your correct name and mailing address are on the owner roster and make arrangements to pay this year's maintenance fee.

Sincerely,

Margey

I live in California and have a question regarding budget vs. actual for reserve costs. The CA state statute seems to stipulate that the board must review budget vs. actual reserve expenses on at least a quarterly basis. The financial statements provided, however, only reflect the actual year to date reserve expenses as a liability on the balance sheet. Is this presentation adequate for CA?

Thank you for your assistance.

- D.

I asked Ms. Eleanor Hugus, President and CEO of NNJ Management Company, an Associa member company based in San Diego to help me provide you with a California-specific response to your question. Here's Ms. Hugus' reply:

Civil Code Section 1365.5(a)(2)(3) provides that the Association is obligated to "review" current reserves revenues and expenses compared to the actual budget on a quarterly basis. The operative actions are "review" and "reconcile." The board should evaluate the financial reports, usually on monthly basis, in the context of the board meeting and the financial histories\transaction report presented to the Board. The analysis should include ensuring that monies, if available, are deposited into the reserve fund as contemplated in the budget and reserve study. Part and parcel to any reserve expenditure is a cross reference to the reserve amount which had been set aside to determine the adequacy of funds for that particular asset or if monies must be "borrowed" from another category in the reserve budget. Even though the financial report may show a year-to-date reserve expense, it is usually noted in the check disbursement and general ledger the actual amount of reserves spent for the just-ended month.

Legal counsel has advised us that the intent of this section is to ensure that Board members are made aware of revenue and expense changes at least on a quarterly basis. At the end of each year, this information is considered as part of the overall budget adjustment process.

Sincerely,

Margey

Developer Responsibilities

We are an ungated community with public streets and sewers. Our developer used HOA funds to pay the street light bills until they were turned over to the city for payment (1 year). Is that a common practice or should that be a developer expense? This all took place while he was the self-appointed president of our board.

- David

Your association's governing documents should mandate which entity (Declarant or association) is responsible for payment of the street lights until the city assumes maintenance responsibility for them. Since the lights are intended for the benefit of the owners, it's not inappropriate for the association to pay the bills. However, it's possible that the Declarant neglected to properly set up the billing account with the power company when the lights were initially installed and activated. In that situation, the Declarant should admit his error and reimburse the association.

Sincerely,

Margey

Are "small Home Owner Associations" required to pay Federal Taxes? If so, what is it based on? This association has 45 single resident homes...no pool, no club house, etc., just the homes. Dues are collected to maintain entrance and street lights. Does this situation require paying Federal Taxes?

- Lar

Unless they qualify as tax exempt under Revenue Code 501(c)(4), all community associations must pay taxes. Please read the IRS discussion on qualifications for tax-exemption.

If your community association does not qualify for tax exemption, it must file either the 1120H or 1120 tax return forms. The "H" in 1120H stands for Homeowners Associations and is a special tax consideration that requires payment of taxes only on income other than maintenance fees. The 1120 form is for all corporations; however, community associations, if incorporated, can elect which form to use every year, depending on which one is most beneficial and requires the least amount of taxes to be submitted.

There are many consequences of selecting the appropriate tax form, and I urge you to consult with a qualified, competent tax advisor to ensure that your association files the correct document.

Sincerely,

Margey

Recently a Board President of a condo I manage decided he should be paid for his mileage since he drives from out of state to attend to association business. He argues that this not COMPENSATION, just REIMBURSEABLE EXPENSES. I cannot find this addressed specifically in the bylaws or statute, as they both speak to compensation. Your thoughts would be appreciated.

- Cheryl

Board members volunteer their time to manage the affairs of their association. While most documents prohibit board members from being compensated for their service, it is not unusual for the association to reimburse volunteers for their out-of-pocket expenses, including vehicle expense when used on behalf of the association. If neither your documents nor state statutes prohibit reimbursement for actual expenses, then it is acceptable. In facts, owners should be very grateful for and appreciative of their board members for the unpaid personal time they spend on behalf of the association and not begrudge the usual paltry amount they may receive in payment for costs they incurred while acting in their board member role.

Sincerely,

Margey

Reserve Funds

I was just nominated as VP of our HOA board. The first week I was on the board, we had an expense for a spa heater of $3,000.00. We were told by the Management group to use the "reserve" funds, which are pretty low. Should we use the reserves FIRST, or use the amount budgeted for pools, etc.? Thanks for your help!

- David

Your association should have a separate reserve budget, preferably prepared by a Reserve Specialist (go to www.caionline.org for information on this designation), that lists all capital components by category and allocates reserve funds to each line item based on a calculation that addresses replacement cost, replacement life and remaining life. If there are inadequate funds in the spa heater reserve line item to pay for its replacement, then your only choice is to "borrow" the funds from another reserve line item.

If you have budgeted for the spa replacement in your operating budget's pool repair line item, then it is proper to pay for it from your operating fund. However, most operating budget line items for "pool" appropriately include only the cost of contract service and repairs, not component replacement.

Sincerely,

Margey

Working Capital Fund

Our condominium declaration states:

"Working Capital. At such time as a Unit is conveyed to an Owner, other than the Declarant, the Owner of such Unit shall contribute an amount equivalent to two (2) months of the Assessments attributable to such Unit (the "Working Capital Contribution"). The Working Capital Contribution shall be deposited by the Association in a Replacement Reserve Fund for contingencies and appropriate replacement reserves associated with the Common Elements. The Working Capital Contribution shall be in addition to any Assessment attributable to such Unit. and shall not be credited to any Assessments otherwise payable by the Owner of the Unit. All accumulated Working Capital Contributions received by Declarant shall be transferred to the Association at such time as control of the Association passes to the Owners other than Declarant. During the period in which the Declarant holds any portion of the Working Capital Contributions, Declarant shall not use any portion of the Working Capital Contr
ibution to defray or offset expenses Declarant would otherwise be required to incur pursuant to §82.112(b) of the Uniform Act."

This provision is vague. It calls for purchasers to contribute 2x owner dues as a "working capital contribution", but:

1. Are such provisions standard in condominium declarations?
   
2. What is the purpose of the provision? Is it to fund the initial operating and reserve accounts, or is to continue to fund the HOA even after the declarant has sold all of the units?
   
3. Is the intent behind such a provision to assess this charge even on purchasers who are buying a unit from an individual other than the declarant?

- Roger

The establishment of a working capital fund is not unusual in newer community associations. The intent of the provision is to ensure that the association has sufficient funds not only to support monthly financial obligations but also to adequately fund a reserve account to pay for the eventual replacement of the major physical components of the buildings and common facilities.

Some working capital provisions apply only to the first time the unit is sold, typically when the Declarant transfers the deed to the first owner of each unit. However, other provisions create an ongoing obligation of every owner to contribute to the fund so that the financial responsibility is continually shared by every member of the association.

Sincerely,

Margey

Top | Board of Directors | Communications | Finances | General
Insurance | Legal | Maintenance | Management | Rules

Amenity -
Gas Grill

Hi.  I'm a member of our Board of Directors and I have a question regarding the use of a gas grill at our community pool. We are considering allowing residents access to the gas grill outside of special HOA parties/events. During the parties/events, the grill would be supervised at all times. We are concerned over the liability and safety issues of a resident using the grill and someone being burned by accident or leaving the gas on after finishing with their cooking. Many people, especially kids, are at the pool and this poses a big concern with us. What are our options? Do we continue to keep the grill stored and only use it when properly supervised or do we allow residents to use it at their own risk?

Thanks.

- Jon

I asked Associa member company staffers to help me respond to your question, and their recommendations fell into one of two categories -- have the association provide the gas grill to the residents, or don't. Each side had valid justification for their position, so I thought I'd offer you their respective opinion for your consideration.

Dustan Goodell, President of Somerset Management Company in Dallas, Texas; Dennis Bowen, LCAM, Association Manager with Community Management Concepts in Clearwater, Florida; and Robert Armas, Onsite Manager for DCI, Inc. in Hollywood, Florida, all agree that, within reason, the association should offer the gas grills to the residents. According to Mr. Goodell,

Gas grills are “the norm” for our high rise communities and are frequently used by many owners.  It is a wonderful amenity and also serves to create a “gathering spot” for homeowners to unwind and cook their meal of choice.  However, the grills are placed in, and maintained as, part of the “facilities” of the Association as mandated in the governing documents, so here is suggested wording to use to reduce a community association's potential liability with regard to the grills:

Although all Owners, guests and invitees are required to sign releases of liability releasing and holding harmless the Association, Board, employees and Manager from any and all liability, claims, losses, and actions arising out of or in connection with the use of any of the Facilities, the mere use of such Facilities, in and of itself, by any person shall constitute a full and complete release and indemnification of the Association, Board, employees and Manager arising out of and in connection with any such activities.  THE ASSOCIATION EXPRESSLY DISCLAIMS AND DISAVOWS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS OR SAFETY FOR ANY PARTICULAR PURPOSE, RELATIVE TO ANY OF THE FACILITIES OR ANY EQUIPMENT ASSOCIATED WITH THE FACILITIES.

(a)Risk

  Each Owner uses the Facilities and other Common Elements at such Owner's own risk.  The Facilities are unattended and unsupervised.  Each Owner is solely responsible for such Owner's own safety and that of such Owner's guests.  The Association disclaims any and all liability or responsibility for property damage, injury or death occurring from use of the Facilities.

(b)Safety

  Each Owner is solely responsible for such Owner's own safety and for the safety, well-being and supervision of such Owner's guests and any person at the Condominium to whom the Owner has a duty of due care, control, or custody.

Please note that in item #1 above, you can delete the part that states that Owners are required to sign a release.

On the other hand, Chris Evans, President of Vanguard Community Management near Chicago, Illinois; Bonita Vandall, Association Manager with Benson's, Inc. in Ft. Myers, Florida; and Elizabeth Deapan, CMCA, AMS, Association Manager with CMC-Management headquartered in Fairfax, Virginia, caution against the association providing such a potentially hazardous service to the owners. Says Ms. Evans,

No, no, no, don't do it!  It sounds like a wonderful amenity, on the surface.  However in this litigious society where every accident seems to require someone to blame, it seems risky.  Also, since many insurance companies are now asking for rules to prohibit gas grills on balconies and patios as a risk management tool, that prohibition may spark more associations to consider communal grills, creating the potential for damage or injury. Who needs the risk of claims, lawsuits, etc.?

Speaking of insurance issues regarding common area gas grills, Ms. Vandall went so far as to ask an insurance agent his opinion; here's what Steve Brecht of Huff Insurance Agency has to say:

As with anything that is provided by the Association, the Association assumes some risk.  Consider something as harmless as pool furniture . . . I don't think that any insurance company is going to have a problem with it but of course you should check with the appropriate carrier.  You can recall that none of the applications for policies ever ask about BBQs so, I doubt the insurance companies have any great concern about the issue.  I think I would shy away from propane; people might leave the gas on by mistake, etc.  Lightening can result in a pretty big fire ball.  High School kids bent on vandalism could make use of the tank.  The responsibility to maintain the valve and hose properly would fall on the Association.

I think it's probably okay to provide a charcoal grill. I don't think that supervision is needed for adults using it.

Several experts offered alternatives to or precautions for providing gas grills to the residents, such as:

1. Conduct community activities at which appointed residents supervise the use of the gas grills;
   
   
2. Locate the gas grills away from flammable objects including landscaping;
   
   
3. Ensure that the gas for the grills is not tied into the gas for the heated pool, if relevant;
   
   
4. Install timers that will shut off the gas to the grill after a specified period of time, reducing the risk of vandalism or excessive, expensive use;
   
   
5. If your grills use propane gas, consider having the owners purchase the gas so should they leave the grill turned on, they would be responsible for the gas consumed.

So there you have it, recommendations from experts in the field of community association management. My suggestion? When in doubt about the appropriate course of action to take, consult with your association's legal counsel and obtain a written opinion. While the board cannot prevent every accident or incident, the critical issue is that the directors make every effort to properly maintain the common amenities and facilities and comply with the governing documents. If, despite those best efforts, a claim occurs, that's why associations should have property, general liability and umbrella liability coverage.

Sincerely,

Margey

Is there a guideline for Association members preparing for a turn over from a developer? I read an article in the past stating that it is recommended that a committee be formed at least 8 months prior to turn over.

I would appreciate any information on this subject so that I may give the Boards a more educated response.

Thank you very much in advance for your help.

- Carlos

The Foundation for Community Association Research offers a report entitled "Best Practices: Transition" available for free download at their website (click on "Research Projects" and then "Best Practices Reports"). The paper, written by experts in the community association industry, addresses all aspects of transition, from the point in time in which the community was a glimmer in the developer's eyes to the day when the developer is no longer involved in the administration or operations of the association.

Sincerely,

Margey

Compelling Board to File a Claim

I'm at my wit's end and hope you can help me, or direct me to someone who may. My toilet, on the 3rd floor, overflowed in July and did damage to 3 levels of my townhouse. A restoration company came in and ripped the ceilings out, pulled carpet up, moved furniture, etc. to dry it out. It was 95 degrees that weekend. (They are filing a lien against my house.) I filed a claim with my insurance company, ******, and an adjuster came and reviewed the damage and filed a report.

The insurer also asked for a copy of the Association's bylaws. The bylaws say that each unit owner is required to have insurance on their personal property and the association must have coverage as contained in an all-risk form. Based on this, ****** refused to pay my claim. I then sent this information to the Illinois Department of Financial and Professional Regulation. They reviewed the documents and supported ******.

I have given all this information to my Association, but the Board of Managers, refuses to file a claim with the Association's insurer, ******, or get an attorney to review the bylaws. (They have however, hired an attorney to collect my past due assessments. I stopped paying when I found out they wouldn't even make one little phone call for me.) It's been over 8 months and my ceilings are still ripped out and my home is in utter chaos. The damage is over $7,000 and I'm just returning to work after being unemployed for nearly 3 years. I don't have any extra cash laying around. (This is why I have insurance.)

Doesn't the Association have some duty to serve and protect my interest? It seems that they are unregulated and the only way for me to move this matter further, is to spend money to hire an attorney. I keep getting the run around. It's spring now, and I'd like my house fixed. What can I do now? Thanks.

- Mary Claire

Your board of directors is legally mandated to disclose to you the name of the association's insurance agent. I suggest you contact him directly to file your claim. If the agent responds that only the board can file a claim, advise him and the board in writing by certified mail, return receipt requested, that you will file a claim in Small Claims Court, which does not require you to retain legal counsel. In court, you will ask the judge to confirm that the association's governing documents require the association to insure the structure and finished surfaces of the condominium units and to compel the board to file the claim.

With regard to your delinquent assessments, your governing documents do not provide for a homeowner to withhold payment for any reason whatsoever. I urge you to bring your account current to prevent additional collection fees and possible eviction or foreclosure.

Sincerely,

Margey

We had our annual meeting/election last month. During the meeting, no one contested the election when the results were announced; however there are now a few people contesting the election based on (2) things:

1. One of our By-Laws with respect to Voting says:
   
   Section 6. Right To Vote. At any meeting of Unit Owners, every Unit Owner having the right to vote shall be entitled to vote in person or by proxy. Neither the Board of Managers nor its designee shall be entitled to vote, and the Common Interests of such Unit shall be excluded from the total Common Interests when computing the Interests of the Unit Owners for voting purposes
   
   The contesting Unit Owners are saying that the BOM are not actually allowed to cast votes at the Annual Meeting. How is that true if the BOM are Unit Owners and hold titles to their condos? In addition, don't the current BOM's term expire on the date of the Annual Mtg so they aren't actually BOMs on that day?
   
   
2. The contesting Unit Owners say that the proxies that were e-mailed were not "duly acknowledged" and need to be verified (even though they were at the meeting) and they are asking to examine all the ballots and proxies.

Are Unit Owners allowed to examine Annual Meeting Ballots and proxies if they feel the election was not conducted properly?

According to one of our By-Laws pertaining to "Condominium Records", the privacy of the individual Unit Owners must be held confidential, but our management company is telling us that since we did not conduct the election by "secret ballot", every Unit Owner has the right to examine the ballots.

As a Unit Owner and a Board Manager, I don't feel comfortable allowing (2) disgruntled Election Candidates (that did not get voted in as BOM) know how I voted as our community is only 48 Units and I don't want the candidates that I didn't vote for to know this.

According to our By-Law:
By-Law, Article XIII. Books and Records, Section 3: Availability of Documents (page J-34), it says:

"Every Unit Owner or his representative, mortgage holder, and insurer and guarantor of the first morgage, if any,on any Unit, shall be entitled to examine the books, records and financial statements of the Condominium upon request on reasonable notice to the Board during normal business hours or under other reasonable circumstances but not more than once a month. To insure the privacy of all Unit Owners, names of all Unit Owners shall, unless otherwise required by Law shall remain strictly confidential"

- C.

While I urge you to consult with legal counsel to ensure that my response to your questions conform with state statute, I can offer you general observations regarding your annual meeting.

It is unusual for the Bylaws to prohibit board members from voting at annual meetings since they, too, are owners. I would venture to guess that the intent of that provision was to prevent board members from controlling the ballot box by voting proxies; however, the wording as you reference it clearly denies the power to vote. Unless state statute, including the nonprofit or non-for-profit corporation act provides otherwise, your board members probably should not cast ballots at the annual meeting.

With regard to "duly acknowledging" proxies, I'm not sure what the drafter of the Bylaws intended. The provision doesn't seem to require notarization of each proxy, but it may mean that the proxy form needs to be witnessed in writing when executed by the owner. Only an attorney could offer a definition or suggestion as to how to interpret this language.

Finally, most state statutes mandate that the association make all records of the association (except specific exclusions such as litigation material) available to the owners. Your Bylaws seem to authorize owners to see the ballots without knowing who cast them. A simple way to format ballots to protect the privacy of the unit owner is to offer a perforated or tear-away section at the bottom of the form so that the voter can remove identifying information before submitting the ballot.

Since an improperly-conducted meeting or inappropriate ballot can invalidate any actions or decision by the members, I strongly urge you to consult with legal counsel to help you establish a format for the ballot and a procedure for the annual meeting to ensure that the results of any voting are legally-binding.

Sincerely,

Margey

I discovered after attempting to sell my condo that after I paid all HOA back dues and assessments to release the lien on my property (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

I recommend that you send a certified letter, return receipt requested, to the association's attorney demanding that he/she release the lien on your property within five working days of receipt of your letter. In your letter, advise the attorney that if the paperwork is not processed within that time period, you will file a complaint against him/her with the State Bar Association.

There are severe legal penalties for improperly damaging title to property.

Sincerely,

Margey

Our Condo Association needs to have some common area work performed for which a proposal in the amount of $7,800 was signed for by the president;

My question is -- is the proposal a legal instrument for work performance, OR will a contract have to evolve to make it legal?

I would appreciate a quick response to my email address, if possible, since time is of the essence.
Thank you very much.

- Victoria

Typically, proposals do not contain provisions that protect the association from unscrupulous and incompetent contractors, nor do they include workplace requirements and financial protections. A legally binding contract containing all the relevant and appropriate provisions should be executed. It's worth retaining the services of an attorney to draw up a general contract that can be used in all situations by inserting or attaching the specifications for each project.

Sincerely,

Margey

Top | Board of Directors | Communications | Finances | General
Insurance | Legal | Maintenance | Management | Rules

My home is on a fenced cul-de-sac. After Hurricane Wilma the fence was destroyed. Can the Association refuse to put the fence back up?

The cul-de-sac has now become an impromptu thoroughfare and the management company refuses to stop the flow of traffic outside our house.

Thank You.

- Lou

Your board may have determined that the fence was not on common area and therefore not deemed to be an association expense. Check the plat of your lot as well as the association's governing documents for mention of maintenance responsibility for the fence. Also check with your personal insurance company to determine if the fence is included in coverage.

If you still disagree with the board regarding who should replace the fence, you may need legal advice on the best manner to proceed.

Sincerely,

Margey

A neighbor recently installed a fence without ARC approval. The fence is wood, & the Board is making a motion to disallow any wood fences in the neighborhood. (This decision was made prior to the wood fence installation). The meeting to vote on this motion is scheduled in a few weeks. In the meantime, do we send the homeowner a violation letter for not getting the appropriate approval, and/or have him apply for his fence & conditionally approve it until the final decision is made on the fence material?

- Sandra

The board must comply with the architectural review board/architectural control committee provisions of the governing documents with regard to installation of disallowed structures by sending timely notice to the violating homeowner. Since the board is considering amending the documents or revising the architectural guidelines to allow for wooden fences, it would be appropriate to include in the violation notice a comment that the board may consider reversing its decision on wooden fences in the near future but that the fence is in violation according to current rules.

Community associations should immediately notify owners of potential violations during construction of the structure rather than wait until construction is completed. Waiting for completion can result in the courts refusing to require removal of the offending structure because of the additional expense the owner will incur. Providing notice to an owner before or during installation mitigates his or her expenses to remove the structure or bring it into compliance.

Sincerely,

Margey

We purchased a piece of property in a subdivision located near ******, Texas to build our dream retirement home. The subdivision is in ****** County and not located within any city limits. I am a mechanical engineer by trade and a very accomplished carpenter. We have worked clearing and preparing the home site for 7 months and are ready to submit the plans to the HOA. The county has no requirement that prevents an individual being his own general contractor. I have talked to several property owners in the subdivision that were their own general contractors. The county approved my plans and gave me a building permit which is required by the HOA. I found out this afternoon that the HOA just added a rule that they will only approve plans that are submitted by a contractor with a current TRCC Builders Registration Certificate.

This requirement does not exist in the deed restrictions or bylaws in any way.

Does a HOA board have the right to add requirements like that without any vote whatsoever?

- Thomas

According to Ms. LeJean Griffith, Executive Vice President of Houston Community Management Company, an Associa member company based in Clear Lake City, Texas, if your association's governing documents authorize the board of directors to establish architectural guidelines, then the board is empowered to require that any contractor hired by a resident in the community must have a TRCC Builders Registration Certificate.

Sincerely,

Margey

Hello let me start by saying your site is full of info -- its Great!

My Parking question to you is:

I live in a home in ******, CA which has CC&R's. I drive a Company Van the CCR's states that:
"No Boat, Trailer, Recreational vehicle, Camper, Truck Or Commercial Vehicle Shall be stored or parked on any lot or on any of the streets fronting on any lot except within the garage (stection 4.14) "

I park my vehicle on the street and only the street and I got fined. I asked the board if I can drive my van home for lunch and they said if they see it parked on the street or driveway I will be fined again.

I did contact the City of ***** and they said:

Thank you for contacting the Planning Services Division. If you get your RV/Boat registered to park in your driveway you are still bound by your CC&R regulations. These regulations are not imposed by the city nor are they enforced by the city. Even if you are registered with the city to park in your driveway, your RV/Boat may still be restricted by your CC&R’s. Please contact your HOA for further information regarding the enforcement of your CC&R’s. ***** Lane and the streets in your subdivision are all owned by the City and therefore are not regulated by your HOA.

I am very confused --- is the city right or the HOA? Your input would be very helpful.

- Louie

I'm so glad you enjoy our website!

The response you received from the City reinforced the right of the association to impose parking rules regarding its private streets. You are still obligated to comply with the rule prohibiting parking your company van on the street; your alternative is to park the vehicle in your garage.

Sincerely,

Margey

I am on the Board of Directors of a condominum association of 108 units, and at our recent Association meeting we have been requested to a have satellite dish installed at the owners expense. We have already received the FCC bulletin on Satellite dishes but our question involves putting a restriction on the height of the dish to not exceed the height of the patio fence, (6 ft.) This would restrict unit owners who have difficulty receiving the signal at that height. They would need to have much higher poles installed to attach the dish. Dishes are prohibited from being installed on the building or on the roof. Can we offer installation of the dishes in keeping with the "6 ft. patio fence rule" thus restricting the installation of the dish to only those who can receive the signal at the "6 ft fence rule?"

- Richard

The Telecommunications Act of 1996 and in particular the OTARD (Over the Air Reception Device) Rule was adopted to protect both the rights of homeowners residing in community associations as well as property values in those communities. The board of directors is not compelled to accommodate owners who cannot receive an adequate signal within the limitations imposed by the OTARD rule. Some owners simply may not be able to use satellite dish technology because of the location of their units.

Sincerely,

Margey

© Association Times
Permission to reprint any of the information contained in this article is granted provided Association Times is credited as the source.