Ask the Expert

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

I live in *****, SC and developer ******** has just announced they are taking back control of the board of directors. We are over 80 percent built out and the current board has been in place for two years. ******** currently provides two of the seven board members in place today Is this legal? Many thanks.

- Bert

Your association's governing documents should contain provisions that specifically address when the developer must convey control of the association to the members. If the developer is violating those provisions, consider filing a complaint with the state ombudsman or association governing board, if they exist. If those resources are not available, you may need to ask your neighbors to contribute to a legal fund in order to retain the services of a competent community association attorney to guide you in determining the homeowners' rights in this issue and what recourses are available.

Sincerely,

Margey

Problem Homeowners

I live in a 350-household HOA in **** County, and we have a small group of homeowners who are causing the majority of us grave concern. In addition to being incredibly vicious and disrupting meetings, they go door-to-door and harass people, yell at them in their driveways and from their cars as they drive by, stalk homeowners, and leave dead animals on the doorsteps of people they don't agree with. Aside from the obvious -- calling the police -- what recourse do we have?

- Anonymous

There is no reason for the reasonable homeowners or the board to put up with their neighbors' bad behavior which borders on harassment and illegal activities. I urge you to consult with your association's attorney to learn all options available to you. Referring the matter to the police or city/district attorney may resolve the issue without your association having to expend significant funds on litigation, but you do need to first talk with the association's legal counsel.

Sincerely,

Margey

I would like to be able to find out how to set up a Community Association Board. How many members and what job functions do each one serve? (what are the legal guidelines) If anyone can lead me in that direction, please let me know? Thank you so much.

- Kimberly

In most states, community associations are heavily regulated by state statute. If your association is already created but has been dormant for a period of time, it's best to consult with an attorney knowledgeable in community association law to ensure that reconstituting the board complies with the existing governing documents of your association as well as with state statutes. For information regarding the role of the board of directors and each officer, as well as best practices in community associations operations, go to www.caionline.org.

Sincerely,

Margey

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

Is there a resource that gives examples of correspondence between the Board of Directors and Owners. We have a new Board and many of us have served on other Boards but not association boards. We have to communicate with some owners on maintenance issues and the whole association on some capital projects. I want to make sure that our communications are done correctly, but can't find any resources. Thanks.

- Lois

The Community Associations Institute is a national non-profit organization created in 1974 to help foster successful communities. The website contains a wealth of good information, and much, much more is available to members. With publications addressing issues ranging from board meeting conduct to maintenance, and from reserve studies to financial reporting, along with classes specifically for board members, CAI is the best resource for community association board members.

Sincerely,

Margey

Meeting Mnutes - Timing

Our secretary insists on sending out the minutes from the previous month board meeting just a few days BEFORE the next meeting. Some of the board members have requested the minutes be available within the following week after the meeting. Can you give me an acceptable time line on this issue?

- Linda

The quicker minutes can be drafted and distributed to board members, the more time the board members have to review them and suggest revisions prior to approving them at the next board meeting. A one-week turnaround or less is ideal. If your secretary is busy with other personal and professional projects, perhaps you could appoint an assistant secretary with more immediate time to devote to transcribing the minutes, or hire a professional minute-taker with the instructions that minutes must be submitted within a week following the meeting.

Sincerely,

Margey

Regarding condominium budgets - which expenses should be based on percentage of ownership? I understand that the commom expenses should be equal - which should be variable?

My thinking is the following are the variable:

• Gas
• Sewer/Water
• Insurance

- Susan

Your association's governing documents should clearly define how to calculate assessments. If the documents are vague, check state statutes by clicking on Links and Resources, then scrolling down to State Websites and selecting your state.

If neither your association's governing documents nor state statutes clearly defines how to calculate assessments, your board should retain the services of competent legal counsel familiar with your state's community association law to help the board craft a resolution that would explain how assessments will be calculated from this point forward.

Sincerely,

Margey

I am the Treasurer for a 119 unit condo in GA. We have an onsite property manager and all bills for the HOA are paid via check at the property manager's corporate office (his employer's office). The board as well as the property manager would like to establish automatic payments (ACH) for many of the monthly reoccurring bills (ie gas, electric, water, garbage). However, our property manager's boss says we can not do this. I have cut and pasted his response from his email " ONLINE BILL PAY, per the Accounting Acceptable Standard for condominiums, accountability lies with the property management company/online bill pay is not recommended". It seems he is trying to quote Generally Accepted Accounting Principles (GAAP), but I have been told by a CPA that it is doubtful that GAAP specifically addresses anything related to online bill payments and condo association.

We would still receive an invoice and payment can be reconciled with the bank statement and online. the majority of my personal bills are ACH payments or paid online. I think online ACH payments would reduce work and be more efficient. Have any other HOA's established direct ACH payments for their bills or is it really not allowed? Thank you.

- Kelly

I am unaware of any CIRA (Common Interest Realty Association) guidelines produced by the AICPA (American Institute of Certified Public Accountants) that address the ACH concept. Personally, I believe that allowing owners to pay by ACH expedites collections and eases the burden of manually entering deposits. Additionally, setting up the association's recurring charges on ACH reduces labor costs to prepare checks, and ensures that no late charges will be incurred in the event of a payment oversight.

One important caveat in signing up your association for automatic debits to pay bills; someone (typically the management company A/P person and/or manager) still must scrutinize the bills to confirm their correctness.

Sincerely,

Margey

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

Our subdivision is in ***** County Texas. Is there any way to gate or restrict access without making the roads private? They are currently maintained by the county.

Also, if unknown, what is the best way to access the information? Thanks.

- Doug

States, counties and municipalities differ in their requirements to limit access into a community and to privatize public roads. Your association's governing documents may also contain provisions that address this issue. I recommend you consult with an attorney to ensure that your association's board of directors is on firm legal footing to pursue this issue, then contact the Montgomery County Commissioner representing your district for information regarding the possibility of restricting access.

Sincerely,

Margey

This is not really a question but clarification to a statement made in error on your website:

Q.

We are in a situation where our local village will issue building permits for items the HOA will either not allow or will allow with restriction. How can we get the village to request prior approval from our HOA prior to issuing a building permit?

A.

If your Village leaders are approving building permits and variances that violate your deed restrictions, it sounds like some folks at City Hall need an education on the authority and purpose of a homeowners' association. The best way to start the learning curve is to personally talk with your elected representative, either on your own or bring your entire board with you. Give the representative a copy of your governing documents in which the applicable provisions are highlighted, and also present him/her with a copy of your annual budget to demonstrate the extent of your association's responsibility.

Once you have educated your representative, ask him to champion your cause with the Village Planning Department. If that proves ineffective, try organizing other association members to attend the next Village council meeting to discuss the importance of the association's deed restrictions for protecting your community's character and property values. You might also investigate how other villages and cities address potential deed restriction violations resulting from building permits.

I thought you should know that no village, City, Town or other Government Agency is responsible for enforcing a private agreement between a home owner and an HOA. A City, Town, Village, etc may approve a request as long as it is in conformance with the approved Government codes duly adopted by the governing council (ie, zoning, general plan etc.)

It is the Homeowners resonsibility to know what they signed as well as the responsibility of the HOA to enforce their PRIVATE agreement through mediation or Civil Court.

If an HOA rep were to hand me their CC&R's and tell me an approval was in violation of it I would be gracious and say thank you but we dont enforce this nor will we attempt to. The approval was (and will always be) based on an examination and review of adopted City Codes.

Just thought you should know this.

- Joshua

There are indeed municipalities the United States that work with community associations to ensure that building requirements mandated in the governing documents are not violated when a building or contractor submits the house plans for approval. Specifically, the approving authority will check setback, size, exterior finishes, number of stories, outbuildings, and other similar requirements. The approving authority may require a simple affirmation that the plans comply with the association's criteria rather than inspecting the plans themselves, but the process is in place.

In an ideal world, municipalities and community associations would work together to ensure that new construction complies with both local and community requirements. Wouldn't it be nice if planning errors, oversights and violations could be identified and corrected before construction commenced?

Sincerely,

Margey

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

We are a small, self-managed complex in Michigan with units above and below each other.

A lower-unit co-owner called in with ceiling damage. When we sent a plumber out they discovered that the toilets in the upper unit had been rocking. The owner admitted that his toilets had been rocking for over a year, and that the same thing had happened in his previous condo!

The leak was over a period of time before it broke throught the ceiling in the lower unit, so our homeowners insurance policy won't cover the damages. The contractor we hired to repair the ceiling found mold and we had to pay for testing, which showed black mold.

Neither co-owner has condo insurance. Do we have recourse to sue the first co-owner for negligence?

- Mary

You definitely need the help of competent legal counsel knowledgeable in community association law to determine financial liability for the consequential damage from the leaking toilet. If you are unable to identify an attorney who focuses on community association law, contact Mr. Craig Koss, AMS®, PCAM®, President of Kramer-Triad Management Group, an Associa member company with offices in Ann Arbor, Farmington Hills and Troy, Michigan, at (248) 888-4700 or craigk@kramertriad.com. Craig will be glad to point you in the right direction.

Sincerely,

Margey

Our Assocation rules and regulations do not prohibit bird feeders, but about ten years ago, the Board had received complaints about them, and passed a ruling that no bird feeders were allowed on patios and balconies. Slowly many Owners have put them up again, including four of our five Board members. What have others done about bird feeders and the mess birds make?

- Nellie

Many community association boards have drafted rules that prohibit bird feeders because of health and safety concerns. Birds can carry disease, their droppings can be unsightly, unhealthy and dangerous, and the food can attract unwelcome critters.

As long as the rule is on the books, the board members must comply with it. If they want to change the rule, it would be a good idea to consult with professionals in the field or on Google for expert advice on issues relating to bird feeders.

Sincerely,

Margey

Recently I found out that some of our Owners have made electrical alterations in their units. This is prohibited in our By-Laws unless the proposed changes are submitted to the Board and approved. If yes, the Owner is supposed to get a State permit and have an inspection done, which, of course, they have not done. Has anyone else had this problem?

- Nellie

Illegally or improperly installed electrical connections can cause a tragedy as well as void both the association's and each homeowner's personal insurance coverage. Since you believe the installation has occurred over a number of years in an undetermined number of units, it would be wise of the board to contract with an electrician to inspect each unit to determine which ones are in violation. Give the owners an opportunity to bring the installations into compliance with current code if the board decides that it would be reasonable to allow the installations because of today's demands of so many electrical and electronic appliances and devices. If the owners refuse to have the inspection or bring the installations up to current code, it may be necessary to report them to the city code inspector.

Sincerely,

Margey

A unit owner without seeking permission proceeded in Oct. 2006 to build an unapproved,poorly constructed, substandard patio/wall on a hillside on his property. It was not made of the stone used in our complex and sits facing over the front area and into the windows of the next unit. The next door owner complained.It has always been the case that the opinion of the unit effected by any action be asked his say in the matter. This was not done.The next door owner (is residing in Jordan) and only owned the property for 2-3 months when the patio went up. He was informed by a kind neighbor as to what was happening. The owner then e-mailed his objection. It was never addressed. A committee recommended some bushes be planted and all would then be permitted.

The entire sight is ulgy,now deteriorating due to the poor construction and the entire property is one of overgrown, weed ridden disrepair.

Can the next door neighbor sue the association? Could this be an issue of discrimination? Thanks for your opinion.

- Betty

The next door neighbor may be able to involve the city or municipality in his disagreement over the poorly constructed wall that violates your association's deed restrictions. If the wall conflicts with building or nuisance ordinances, the city attorney may intervene. If the city determines that the wall is a private matter, then the neighbor could pursue recourse either against the association or directly against the neighbor who owns the wall. I recommend that the next door neighbor consult with an attorney to determine the most expedient option.

Sincerely,

Margey

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