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Management Articles |
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Protecting Aesthetics Where does the board get the authority to control architectural design? The authority of an HOA board and Architectural Review Committee to review plans prior to construction can typically be found in the HOA’s governing documents. A common provision might say the following: "No building, addition, fence or other structure shall be built or altered on any lot within the XYZ Homeowners Association until plans have been submitted and been approved in writing by the Architectural Review Committee appointed by the board." In addition to the governing documents, many HOAs adopt architectural standards, rules or restrictions designed to help streamline the review and approval process. These standards may provide specific guidelines about what sorts of structures will be approved. For example, there may be limitations on height, roof/paint color or building setback requirements. Other rules are procedural, outlining the process for submitting plans, obtaining a hearing with the committee, or appealing an adverse decision to the board. Why is it important to observe the governing documents, standards, rules and restrictions carefully? Architectural Review can become a contentious issue and some aggrieved owners turn to the court system to resolve architectural review disputes. Lawsuits often arise in two contexts: 1. An owner receives an adverse decision preventing him from building his dream home. 2. A neighbor is unhappy with the structure going in and seeks to have construction halted. Some neighbors have sought to have structures torn down for being in violation of the governing documents. Litigation is unpleasant, costly and time consuming so the more proactive the board and ARC is to get compliance before construction, the easier it will be to avoid litigation.
What can the board do to prevent the disputes and resolve them quickly?
2. Enforce rules fairly and uniformly. Once the board has a clear set of rules in place, they must be enforced uniformly. Members are often more angry about "selective enforcement" than they are about having their plans denied. These owners may argue that the HOA denied their plans based on a set of rules that other neighbors violated without penalty. Selective enforcement undermines the Board’s authority. 3. Get expert counsel. If a dispute develops, contact an attorney or other specialists who has experience resolving architectural review disputes. If the board is served with a lawsuit, contact your attorney and insurance carrier immediately so that you can protect the HOA’s rights. Controlling the look of property within a homeowner association is one of the board’s greatest responsibilities. Protect values by protecting aesthetics. For more on architectural and design standards, see www.Regenesis.net Article by attorney Jason Grosz of Vial Fotheringham LLC BACK
The Board Secretary Here are the pieces of a secretary’s job well done: 1. Recording and disbursing accurate minutes for all meetings whether board, executive session, special, annual or committee. Minutes record the actions taken and demonstrate that the proper process was followed. 2. Announcing Meetings. Giving proper and timely notice of meetings is essential to fulfill the board’s fiduciary duty of keeping the members informed and HOA business transparent. 3. Preparing Agendas. Every meeting should have a preset agenda so the meeting doesn’t meander or get commandeered by a squeeky wheel. Distributing the agenda and related material ahead of time with instructions to review in advance so the meeting can move smoothly and produce shorter meetings. 3. Maintaining HOA Records. Keeping files and information current, organized, safe and accessible is crucial to the continuity of the HOA. Digital backups now allow easy, cheap and remote duplication of records. 4. Witnessing signatures on financial, board resolutions, governing document amendments and legal amendments. 5. Maintaining accurate and current contact information for board members, committee members, officers and general members. There is nothing as fundamental to getting business done as an accurate contact list for billing or notifications. 6. Distributing and retrieving proxies for member meetings. With many HOAs falling short of required quorums at meetings, having the adequate number of proxies makes the difference between having a legal meeting or not. 7. Filing Forms. This includes employment forms, corporate documents, annual reports and other official filings. 8. Managing Correspondence. Secretaries can be invaluable in corresponding with the manager, board members, committees and responding to information inquiries. That correspondence should include proper tone, form, grammar and spelling. 9. Producing the HOA’s Newsletter. Newsletters should convey need to know information, rules and news. 10. Managing and/or providing content for the HOA’s website. As the internet now makes it easy to record and keep records in a non-paper format, the secretary can maintain critical information accessible 24/7 by the board, manager and members. There is the huge bonus of instantaneous and cheap communication that can save thousands or dollars each year in paper, postage and handling costs. So, the secretary can have a significant and beneficial impact on the budget by drastically lowering communication costs. As board jobs go, the secretary’s may be the most mundane and labor intensive yet most valuable of all. It is a job for a detailed oriented person with a knack for organization. If your secretary is performing this work well, provide the recognition for a job well done. BACK
Rule Tone &
Texture Since homeowner associations in their current form have only been around since the 1960s, they continue to evolve as lifestyles change and their strengths and weaknesses are better understood. The concept of "carefree living" promoted by early developers was largely hype intended to help close sales. As time and experience bore out, HOAs require a lot of care and attention for them to work right. Due to the dynamics of neighbors ruling over neighbors and members being owners, not renters, the challenges are more complex than other forms of property management. In commercial and rental property, for example, a lease or rental agreement can be terminated for non-compliance. Not so in an HOA. Private property rights have a profound impact on how homeowner associations must be run. Homeowner associations have the unique ability to customize how their business is done. This allows one HOA to do business very differently than virtually every other HOA if the board and members choose to. While most don’t, there are often policies, procedures, rules and regulations that vary somewhat from one HOA to another. These differences can range from minor nuances in parking and pet regulations to major policies on architectural design restrictions. And like other forms of government, what was the policy two years ago may not be the policy today if the board or members vote to change it. Caveat emptor. Buyer beware. Regardless of the tone and texture of rules and policies, there are some fundamental principles which all HOAs should follow when enacting and enforcing them. Some of these principles are common sense and others deal with the unique "neighbor" aspect of HOAs: 1. All rules need to be written. In days before the written word, laws were passed on by oral tradition. Since clans were closely knit, this system worked pretty well. But with modern fractured families living global lives, writing has a distinct advantage for keeping newcomers informed. Funny thing is, many HOAs have unwritten rules that offenders don’t discover until they break them. Judges, however, don’t like the idea of unwritten rules and often smite HOAs that have them. So all rules should be written in clear language. 2. All rules should be available for inspection. Written records are usually controlled by those that keep the records, the board or manager. With the advent of email and the internet, humankind has been set free of the paper prison. HOAs can now make rules, policies, information and records available 24/7 by way of a self-help website. Prospective buyers can also access this information to ensure there is nothing that would create a problem after closing the sale (like, the buyer has an RV and RV parking is not allowed.). 3. All rules should be consistently enforced. If a rule is important, it should apply to everyone, including the board and friends of the board. 4. All rules should be necessary. In a world gone mad with regulation, having a whole new set to adhere to at home is an unnecessary aggravation. If there is a city ordinance to control wandering or defecating pets, the HOA doesn’t need the same rule. Only add the rules the HOA really needs. 5. Never try to out rule scofflaws. Scofflaws love it when the board enacts rules to control them. They thrive on confrontation and rules are the line in the sand over which they must step. Fortunately, scofflaws are rare. If confronted by one, the board should address their special needs by other means which may include compromise. 6. Rules can be compromised. Since all humans are unique, one size does not fit all. The board may have its rules challenged in a way that is headed to a judge’s ruling that the board may not like. Since the board is elected to govern, the board has the power to compromise. If faced with the prospect of an expensive court battle or compromise, it is often in the best interest of the HOA to opt for the latter. Courtrooms are nasty places that often only further inflame disputes. 7. Run new rules up the flagpole. HOA boards can get myopic about the need for rules. Problems that loom large to a board may be of little importance to the majority of members. The board can make much ado about nothing. Or worse, the board can fan the flames of rebellion by enacting an unpopular rule. (Is that tar I smell?). There is no rule that is so urgent that couldn’t wait for a 30 day member review and comment. Proposed rules circulated to the members generally gain buy-in and compliance, rather than defiance. 8. Provide for a right of appeal. It’s very American to have an excuse. And extenuating circumstances may actually be legitimate. Appeals are not only fair, but expected. The board should never engage in a game of "Gotcha". Look for ways to catch someone doing good. At the end of the day, HOA rule breakers are neighbors. So the tone and texture of HOA rules needs to take this into consideration to avoid ongoing skirmishes between warring neighbors. Rather than plan for battle, groom the rules to help neighbors be better neighbors. BACK
Protector, Planner & Provider Previous employment involving customer service and managing employees is an asset to pursuing an HOA management position. In the past, individuals with a background in building maintenance have advanced to manager positions with their strengths and knowledge of building mechanical systems. However, this path is becoming less common as employers place greater emphasis on administrative, organizational, financial and communication skills. It appears that there is a severe shortage of experienced HOA managers because it’s such a challenging line of work. It takes perseverance and dedication to not get burned out. Managers must navigate the waters carefully to survive. Managers that are passionate about their work are dedicated and committed. It’s not a nine-to-five job and requires after hour attendance of board meetings and addressing emergencies. A great HOA manager is a protector, planner and provider. The Protector. The HOA needs to feel confident that the manager is there to guard and protect its assets. As such, the manager must be proficient in understanding financial reports and the budget process. It is essential for managers to not only maintain the property properly, but also to be adding value, saving money and improving efficiency. It is important to be knowledgeable about and make recommendations concerning green initiatives, retrofitting, or investing in smart building technologies. Boards expect managers to have a clear understanding of what it takes to manage a building from capital expenditures to utility conservation to repair, maintenance and supply costs. The Planner. Managers that practice preventive maintenance are proactive. Preventive maintenance extends the useful life of the common elements, reduces inconvenience to residents and reduces expenses. Strategic planning provides a basis for evaluating performance and progress. The Provider. The manager has access to information, resources and statutes which affect the HOA’s management duties. Great managers recognize problems, seize opportunities and create solutions. Great managers are detail oriented, organized, flexible, follow up and follow through. This is a team effort where the manager integrates staff, vendors, attorneys, accountants, insurance agents and other professionals. To meld the team requires exceptional interpersonal and communication skills. Continuing education allows the manager to gain the knowledge and skills required to keep up with new laws, technology, and products. Managing people is a challenge. Author Brian Tracy says, "Practice Golden Rule One: Manage others the way you would like to be managed." Those that do this well can make a huge impact on how effectively a homeowner association operates. The manager that has the passion to be a protector, planner and provider can achieve greatness in this profession. Excerpts from an article by Marcy L. Kravit, CMCA, AMS, PCAM BACK
Avoiding Rule Enforcement
Pitfalls Some homeowner associations are faced with the reality that at one time or another they will need to take an owner to court to enforce restrictive covenants. Many pitfalls leading to such action can be avoided by using some common sense precautionary measures. Education. Boards must familiarize themselves with the governing documents so they can properly initiate enforcement. Frequently, homeowner associations lose enforcement efforts because of the failure to follow basic procedures set forth in the documents. Communication. Governing documents should be available to the member. Recurring rules enforcement can be avoided through reminders in newsletters, flyers, and open forums at board meetings. Consistency. Board and architectural control committee members should be familiar with how similar covenant provisions have been handled in the past. If a new board decides to embark on a more stringent or less stringent covenant enforcement process, it should thoughtfully articulate the reasons why it is doing so. Those enforcing covenants should be able to justify with objective common sense reasons why similar covenant enforcement actions were or are handled differently. Compliance, Not Punishment. The purpose of covenant enforcement is compliance, not punishment. A phased approach to enforcement may start with a friendly phone call or personal contact, followed by written communication. If these are ignored, a letter from an attorney is appropriate. Each step should give a reasonable period of time within which to achieve compliance before the next enforcement step is taken. All steps taken should be carefully documented, so that the HOA can demonstrate all the efforts it made prior to initiating legal action. Remain Impartial. If a board member has a personal stake in the outcome, that person should not participate in any enforcement steps. Documenting conditions through a written complaint form, photographs, and personal visits is appropriate and avoids claims that the enforcement action is subjective or one-sided. If the board makes an effort to establish personal lines of communication with owners during a covenant enforcement process, it usually makes litigation either unnecessary or more successful if the communicative steps can be proven in a court action. By William H. Short, Esq. of HindmanSanchez P.C. BACK (Circle Yes or No) 1. Do you find it difficult to fall asleep at night, even though you feel tired much of the time? YES NO 2. Do you often fall asleep at board meetings? YES NO 3. Is your blood pressure too high? YES NO 4. Have you given up hope that anyone will ever show appreciation for your work? YES NO 5. Are your concerns about your homeowner association interfering with your employment? YES NO 6. Are you solving homeowners’ problems, but letting your personal life fall apart? YES NO 7. Do you often feel that the homeowners are out to get you? YES NO 8. Do you believe that you had better get them before they get you? YES NO 9. Have you requested an unlisted phone number due to homeowner calls? YES NO 10. When a homeowner greets you, do you question his ulterior motive? YES NO 11. If you make a mistake, do you usually find someone else to blame? YES NO 12. Are open meetings a source of anxiety and stress for you? YES NO 13. Do you frequently "tune out" what other people are saying? YES NO 14. If your ideas are challenged, do you "lose your cool"? YES NO 15. Have you developed an "I don’t really care" attitude? YES NO 16. Do you spend most of your time at social functions discussing HOA business? YES NO 17. Do you avoid HOA social functions for fear being assaulted with complainers? YES NO 18. Do you envy homeowners who have more free time than you? YES NO 19. Are you convinced that you are the only board member doing any work? YES NO 20. Do you often wonder why you ran for the board in the first place? YES NO TOTAL:___YES ___NO If your "yes" responses outnumber your "no" responses, you may be burned out. It’s time to hire a homeowner association manager or let your current manager do his/her job. From The Board Member Toolkit by Community Associations Institute. BACK |
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