CAs with rights to assess their members for the maintenance, management or upkeep of property operated for the common benefit of their members have been bearing an ever-increasing burden of expenses and obligations historically paid for and performed by local governments. For example, a large percentage of CAs provide their own snow removal, private garbage collection, street cleaning and street lighting.

It seems reasonable that property taxes imposed on members of CAs should be imposed on the same terms and conditions as property taxes on other non CA homeowners. However, CA residents are often double-taxed for basic municipal services. It is odd that municipalities have no problem charging the same taxes to CA members even though tax subsidized services like road repair, sewage disposal, public transportation, tree maintenance and security patrols are not included.

Many cities try to justify this discrimination policy by arguing that their employees are subject to liability problems when they venture onto community association property. However, a simple "Release of Liability" agreement seems to have solved this issue for cities that do provide the services for CAs.

Many believe that it is important for municipalities to stay consistent with the Equal Protection clause of the US Constitution when it comes to providing services equally to all taxpayers, including those in community associations.

In the spirit of fairness and equity, lawmakers across the country have an obligation to correct this inequity and free CA members from a deal they had no part in. Solutions include requiring public service providers to perform the services or compensate CA members for the cost of services not provided.

Where this issue moves in the future depends on many economic, social and political factors. But, until all homeowners are treated fairly by municipal governments, the call for elimination of double taxation is certain not to go away.

While the Board has a fair amount of power, it has no authority to allow individual owners exclusive use of the common area unless an appropriate majority of the members approve an amendment that allows it. So, to tie up these loose ends, a list of violations must be compiled. If the type of violation is widespread, it’s best to grandfather it rather than face an angry mob. If the violation is unique and glaring (like that 8' pink flamingo), put it on the It’s Gotta Go list.

All violators should be given written notice of their violation together with a request to remove it. All requests should be done with respect, cite the reason(s) it doesn’t work and offer an opportunity to appeal. If the Board has a number of similar violations, it needs to be careful not to make radically different deals with different owners. In other words, be as consistent as possible to avoid the perception of playing favorites. While the Board may compromise, the burden of that compromise should be placed on the petitioner. That means, the owner needs to make an offer that removes the violation at the owner’s expense. The Board can compromise on the timetable but not whether it stays or not.

To avoid future misunderstandings or misinterpretations of the governing documents, it best to enact a Board Resolution or amend the governing documents (amending is better) which outlines the issue clearly. This should include these conditions:

1. The Board has no authority to grant an owner’s exclusive use of the common area. It may, however, grant permission to modify a limited common area which is used solely by one owner such as a deck or patio.
2. Prior written approval of the modification must be obtained.
3. The modification must receive regular and adequate maintenance, repairs and replacement by the owner. "Regular and adequate" is in the Board’s sole discretion.
4. Cost of repair of damage to common area landscaping and structures caused by the modification is the sole responsibility of the owner.
5. If not properly maintained and the owner does not bring it up to standard within 30 days after written notice from the Board, the Board has the authority to have the addition removed and get reimbursement from the owner.
6. The HOA has no maintenance responsibility for the addition.
7. A description of the modification and the conditions of approval will be recorded against the unit title to give notice to future purchasers. Document preparation and recording fees are to be paid by the owner.

Having this kind of procedure in place protects the interests of all the members and give clear guidance to the Board. Don’t leave loose ends that will unravel the HOA’s appearance standards. Tie them up with accord.

In an effort to resolve the problems, the Board often enacts a parking policy. In considering such a policy, the Board should first review the governing documents for guidelines. As a rule, all owners have a right to use undesignated parking. Assigning parking spaces to a particular owner would be illegal since it is common area. However, controlling the type of vehicles that are allowed to park is within the Board’s authority.

To preserve parking availability, it’s generally permissible to prohibit parking of stored, inoperable and commercial vehicles. Restrictions can also apply to trailers, RVs, large trucks, boats and jet skis. As long as these vehicles can be garaged without displacing resident vehicles to common area parking, they are allowable.

Restricting certain kind of commercial vehicles can get dicey if they are the primary mode of transportation for the residents, like a utility van or small truck. Exceptions might have to be made especially if your HOA is populated with blue collar workers.

Adequate guest parking is something that should be provided for in various strategic locations. They should be clearly marked so nearby residents don’t commandeer them for their own. Of course, frequent guests should be instructed to park in the designated area or in the resident’s driveway if available.

Fire Lanes are no car zones. You can aggressively tow without warning since violators obstruct emergency vehicles. Simply make sure the curbs are brightly painted and lettered with NO PARKING - TOW WITHOUT WARNING. Then, all that’s needed is a phone call to the local towing service.

Steer clear of parking permits if at all possible. Tracking permits is labor intensive, expensive and bound to clash with guest and rental cars. Rather than saddling the HOA with a cumbersome administrative system, let affected residents inform the Board or Manager when there is a parking abuse. Most of the time, there are only a few scofflaws that need to be dealt with. A tow or two generally solves the problem.

Car Wars. This is not a battle easily won. It’s more like a fighting guerilla warfare with snipers popping up here and there. Stand your ground and be prepared for the long haul.

For a sample Parking Policy see the Policy Samples section.  BACK

How to Avoid Board Blowback
Certain rules in a homeowners association are subject to the governing documents. While the board has authority to enforce them, when they don’t, it can set off a series of negative responses or "blowback".

When this happens, what is a member supposed to do? The first thing, of course, is to go to the board and ask it to abide by or enforce the governing documents. But that doesn’t always work. The board’s failure may be willful, and it may refuse to change its ways. When that happens, the member may have to resort to the courts.

Over the years, it has come to be pretty clear that courts don’t like to become embroiled in HOA v. member(s) disputes. But, as a recent decision from California’s Fourth Appellate District Court of Appeal (Ekstrom et. al v. Marquesa at Monarch Beach Homeowners Association) makes clear, the courts will not always defer to the decisions of an HOA board.

In the Marquesa case the dispute had to do with HOA rules regarding view-obstructing trees. Marquesa at Monarch Beach is a planned community where a number of the lots have ocean views, which are not only pleasant, but also worth a lot of money.

In the Marquesa governing documents section titled "Trees" it states "All trees, hedges and other plant materials shall be trimmed by the Owner of the Lot upon which they are located so that they shall not exceed the height of the house on the Lot; provided, however, that where trees do not obstruct the view from any of the other Lots in the Properties, which determination shall be within the sole judgment of the [Architectural Committee], they shall not be required to be so trimmed."

Regrettably, the HOA board chose not to enforce this provision evenly when some homeowners complained that their views were being blocked. Even though the Trees section had been enforced with respect to a variety of trees, "The majority of the board was of the opinion the aesthetic benefit to the entire community from the maturing and now very lush looking palm trees outweighed the value of preserving views of just a few homeowners." Never mind that one of the board members "owned a property on which over 20 palm trees are planted, several of which are among those now blocking the Plaintiffs’ views."

The board attempted to have the Trees section amended, but there were not enough votes in favor. When the affected homeowners whose views were blocked requested mediation, the board declined. Naturally, a lawsuit followed.

The trial court said that "the HOA did not have discretion to exempt from enforcement palm trees that were found to block views," and it ordered that the trees be trimmed and/or removed.

The board raised the judicial deference rule, in effect saying that the court ought not to second guess its decisions, and it appealed. But the appellate court agreed with the trial court. It said that the judicial deference rule applied "as far as ordinary managerial decisions are concerned." But the rule did not extend "to board decisions that are outside the scope of its authority under the governing documents." The board had no authority to ignore the governing documents. "The board’s interpretations of the governing documents were inconsistent with the plain meaning of the document and thus not entitled to judicial deference."

So much in life is a question of balancing. HOA boards ought not to have to worry that every business decision they make might be subject to judicial review. On the other hand, they should never think they have the right to ignore or violate the governing documents just because they disagree with them. This ruling confirms that.  By Bob Hunt    BACK

Court Upholds Ban on Exclusive Cable Contracts
On May 26, 2009, the United States Court of Appeals upheld the Federal Communications Commission’s order banning cable companies from entering into exclusive contracts to provide telecommunications services in multi-unit developments such as condominiums and homeowner associations. The court also upheld the portion of the FCC order prohibiting the enforcement of such exclusivity provisions in existing cable contracts.

The court agreed with the FCC that these exclusivity agreements "which involve a cable company exchanging a valuable service like wiring a building for the exclusive right to provide service to the residents", have an anti-competitive effect on the cable market and significantly impair the ability of their competitors to deliver programming to consumers.

Undecided Issues. There are several related issues which are still pending before the FCC:

• Should private cable operators be covered by the exclusivity ban?

• Should the FCC regulate exclusive marketing agreements between cable companies and multi-unit developments?

• Should contracts for bulk services be banned or otherwise limited?

Existing and Future Contracts. Any HOA which currently has an exclusive cable contract should have counsel review their particular agreement to determine how to proceed. Additionally, HOAs should carefully review the proposed terms of any future contracts with telecommunications service providers including those which are not covered by the FCC order such as satellite companies and phone companies. Watch out for provider attempts to use side "exclusive marketing agreements", "inside wiring control agreements" or "bulk rate agreements" as de facto exclusivity agreements which indirectly keep competitors out for long periods of time. Also, check to see if the provider seeks to retain the right to unilaterally increase prices after these side-agreements are executed, or if the provider wants to obtain long term exclusive control over inside wiring.   BACK

Chiropractical Amendments
A homeowner association’s (HOA) governing documents are the backbone of the organization. As chiropractors can demonstrate, adjusting the backbone can produce beneficial results. Adjusting or amending an HOA's documents impacts both legal and practical considerations. Since amending them is both time consuming and expensive, the reasons to do so should be compelling such as:

1. To delete or add use restrictions
2. To conform with federal or state law
3. To correct clerical errors, or
4. To eliminate a restriction in violation of the Fair Housing Act.

There are two ways to amend documents. The first is to amend individual provisions by editing, deletion or addition. The other way is to "amend and restate" the entire set of documents. Legally, "amended and restated" documents are simply an amendment to the existing documents. Practically speaking, they produce a new, organized and easier-to-read set of documents.

A restatement is a much more extensive, time-consuming and expensive project than a partial amendment. While not appropriate for every situation, an amendment and restatement should be considered if current governing documents have either been amended many times or that they are cumbersome or confusing. It’s also appropriate if the HOA is contemplating a substantial number of changes at one time.

Before beginning any amendment project, an important consideration is what level of vote is required to pass the amendment. Requirements are usually found in the governing documents themselves or may be governed by statute. If the amendment requires a high percentage of owner approval, it may be prudent to forego the amendment since the chances of passage are remote.

Here are some general recommendations:

1. Amend the Amendment Procedure. If your documents have difficult or onerous amendment procedures, consider "amending the amendment procedure" to ease future changes. Provisions that require a super majority (2/3rds or more of the membership) to approve make amending almost impossible. This restriction can produce catastrophic results if the board needs a super majority to set a reasonable budget to run the HOA. Consider a procedure that allows an amendment by a simple majority vote at a valid membership meeting.

2. Withhold Controversial Changes. If you are trying to pass several amendments simultaneously, withhold controversial amendments that may serve to defeat otherwise approvable changes. Present controversial changes individually at a later date so that you have the opportunity to adequately focus on the issues surrounding that amendment.

3. Retroactivity & Grandfathering. Amendments should not be retroactive, such as banning existing pets, and should provide for a "grandfather" provision which permits existing violations or for a reasonable time period so compliance can take place. This is particularly important when it comes to imposing rental or pet restrictions.

4. Developer Language. Resist the temptation to amend simply to delete references to the original developer. These amendments serve little purpose.

5. Member Forum. Consider holding a special meeting to answer questions and address concerns regarding proposed amendments before they come up for vote. Educating the membership can go a long way in helping to get amendments adopted.

6. Use a Lawyer. Amending governing documents should be done only in consultation with an attorney knowledgeable in homeowner association law. Lawyers know things that the board does not and can make sure the process is done properly,

including recording the documents at the right place and in the proper manner.

7. Don’t Amend at All. The governing documents often give the board the authority to enact policies that are "in keeping" with the governing documents. Sometimes the objective can be accomplished without amending the documents.

8. Use Plain English. User friendly documents are more likely to be read and understood. Legalese is not required.

Performing a therapeutic "adjustment" can streamline policies, rules and procedures and raise the level of compliance. Thoughtful amendments make for a kinder community.  BACK

Discrimination Claims
It’s a bright spring morning and the real estate market is beginning to defrost from its long winter chill. Spring buyers are out including Polly Purchaser who is looking to move her family to your homeowner association. While looking around, Polly asks a board member what the community is like. The board member responds, "It is a great neighborhood, very quiet. Not too many kids though."

Polly moves on and looks at the HOA next door. While speaking to the board president, he states that the community is a great area and very quiet because owners are encouraged not to sell to families with kids.

While the comments from the first board member are fine, the comments by the second expose that HOA to claims of discrimination. The federal Fair Housing Act establishes a number of protected classes that a homeowner association may not discriminate against. These classes include familial status, race, age, sex, religion, national origin and disability. Even if an HOA does not have a formal policy to discriminate, it may be subject to a discrimination claim based upon comments of the board, a committee or members with apparent authority to govern the HOA.

If a board expresses a preference for owners to sell to families without children, that board has discriminated even though there was no formal discrimination policy.

The Fair Housing Act not only applies to the formal actions of the board, but also to the informal actions. Any actions that have a discriminatory affect on a protected class could result in liability exposure. In the examples, each board member was merely describing the neighborhood; however, one board described a policy to discourage sales to families with children.

In a recent case, an HOA was required to pay $112,500 to a victim of familial discrimination and an additional fine of $15,000 (United States v. Latvian Tower Condominium Association, Inc.,) as a civil penalty for the systematic efforts to prevent sales to families with children. So you see, discrimination claims are not taken lightly and can result in severe penalties.

In conclusion, a homeowner association must treat all owners and prospective owners the same in both written policies as well as in board actions. Treating a member of a protected class differently than others could result in a heavy price to pay.

Dog Obedience Training. There are a variety of companies that provide training to stop barking. Ask a professional trainer to speak on the subject at the Annual Owner Meeting with an opportunity to leave business cards and brochures.

Dog Daycare. Putting the dog in a controlled environment helps prevent boredom and removes the problem from the HOA. Look at it this way, would you leave your small children at home unsupervised. Remember Home Alone?

Citronella Anti-Bark Collar. This device humanely sprays a light mist of citronella in front of the dog’s nose when the dog barks. Dogs do not like the hissing sound or the smell of the citronella.

Bark Free. This electronic device made by Lentek responds to a barking dog up to 50 feet away by emitting a high pitched tone that humans cannot hear and that dogs do not like.