|
Ask the HOA Expert
Q&A |
|
Pool Lifeguards Answer: Unless your HOA is wealthy enough to provide a life guard during all pool hours, pool operations are typically "use at your own risk". That said, the homeowner association is responsible to keep the fence, gates and locks in good condition. When the pool season is over, a safety type pool cover should be installed. All safety covers must conform to the Standard Performance Specification set by the American Society for Testing and Materials (ASTM) be able to support a certain amount of weight, not permit gaps that a child or pet could squeeze through, and remove standing water. Loop Loc brand covers, for example, are built from extremely strong material and secured tightly to the deck by heavy-duty springs and brass anchors. This design prevents children and pets from gaining access to the water. Prohibiting after dark swimming makes sense since it will likely disturb the neighbors and often attracts party goers that may be intoxicated. Minors 14 years old and younger and all guests should be accompanied by an adult resident. Finally, ask your HOA insurance agent about other suggestions to reduce pool risk. They are usually prepared with a laundry list. BACK
Director Scofflaws Answer: Speak to him in private and review the rule and reason for it. Usually that will do the trick. If he continues to violate the rule, it's appropriate to apply whatever penalty you have for such violations. Another thought. Since barbeques are American as apple pie, if you have a suitable location in the common area, why not designate it for this purpose? The HOA could add the furniture, concrete pad and even the grill. BACK
Off Base Rules Answer: Since Americans suffer from rule overload, my basic rule about HOA rules is that they should be few and absolutely necessary. Unfortunately, some boards feel when it comes to rules, the more the merrier. Some boards make rules to control a few offenders who will never be controlled. Scofflaws eat rules for breakfast so making new ones only feed the beast. Whenever there is evidence that a rule is needed, polling the members should be the very first step. There are few rules that are so urgent that allowing time for member review and comment couldn't allow a better perspective. The public relation aspect alone justifies the effort. BACK
Elections Without Quorum Answer: The reason that quorums are required is so that a few can’t control the many without their consent. If the quorum concept is abandoned, the current board can crown itself emperor and wield the scepter of power with impunity. Kidding aside (I was kidding!), gaining legal quorums is often difficult for annual meetings. That is why the concept of "proxy" is a necessary component of HOA annual meetings. A proxy is a person appointed by another person to act on their behalf. Virtually every HOA is allowed to use them for annual owner meetings so that quorum and voting majorities can be attained. Proxy forms should be distributed along with the official meeting notice with instructions to complete and return them at least a week before the meeting. The proxy giver should have the option to appoint "a director of the board who is not running for election" if no one else is able to attend. The proxy authority can also be designated "for quorum purposes only". A week before the meeting, the proxy returns should be tallied. If there are no enough to meet the quorum, more can be collected door to door until a quorum is achieved. That way, on meeting night, there will always be a legal meeting. All proxy givers that attend can retrieve their proxy and vote as usual. Either way, the meeting stays legal. There is a sample Proxy in the Forms section. BACK
Interference with Vendors Answer: It's not uncommon for certain residents to engage contractors in conversation, usually trying to be sociable or helpful. This is particularly true of landscape contractors. Most landscapers know this and should be instructed not to respond or instruct the resident to "talk to the Board". If this has been done without success, I suggest someone on the Board meet with this person and discussed the reasons for his interference. Some of his concerns may be legitimate. If so, address them in writing with the landscaper and send the owner a copy of the letter. But if the interference is unjustified and just meddling, other tactics need to be used. Try one more letter stating that the previous courtesy letter has been ignored so the landscaper will bill for additional time in dealing with him if he continues to slow them down. Add that if the HOA is billed, he will be charged for it. Then, ask the landscaper to monitor the situation and to journal when interference happens. If it does, ask him to submit a bill to the HOA for the time at his normal rate is. Bill the owner. This usually stops the meddling. If not, have the landscaper submit another bill and charge him again. Make sure to enforce collection if it goes unpaid. Some folks can be pretty stubborn but most come around. BACK Enlarging Decks Question: Our townhomes each have a rear deck. Two adjacent owners submitted a request to add a brick patio in between their two decks. Besides the fact that there is a utility easement (buried cable) where they want to install the bricks, it seems inappropriate to allow this installation since future owners might not be so neighborly. Thoughts? Answer: This was probably a cost sharing scheme to develop additional patio space for half the cost. There are several approaches to responding to the request. If the expansion area is common area, the Board has no authority to permit individual owners using it for private space. Case closed. If the space is limited common area, the utility line easement access would be compromised. Case closed. Your observation about how this would impact future owners of this property is also valid. Again, case closed. BACK Illegal Board Election Question: I recently ran for and got elected to the board. I was reading the bylaws and it occurred to me that we didn't have a quorum so the election was illegal. I did further research and discovered that we've never had a quorum in the three years that the HOA was turned over from the developer. I’m concerned that since none of the board members were legally elected, their acts have not been legal either. I believe all the liens, contracts and other approved actions should be redone. Our property manager believes I’m overreacting, stating that most of the annual meetings she coordinates lack a quorum for elections. Am I making too much of this? Answer: Your concerns about the quorum are valid. While it's true that many owners don't choose to attend the annual meeting, using apathy as the reason to run roughshod over quorum requirements is a lame excuse. The Board is responsible for proper and advance promotion of the annual meeting. There are a number of ways to attract greater numbers and accomplish a quorum. Holding a potluck following the meeting often attracts greater numbers and ensures the meeting doesn’t drag on. One essential component of holding an annual meeting is issuing proxies to all members. A proxy is a form which authorizes another person to act on behalf of the proxy giver. All owners should complete and return one before the meeting to guarantee a quorum. Any member that attends the meeting merely collects their proxy and votes as usual. This way, there is no excuse for lack of quorum. Your concern about redoing past Board actions is unrealistic and would be a nightmare to accomplish. Opening up this Pandora's Box would allow challenge to anything and everything the Board has done. While it's possible a member may raise the issue to justify violating some policy or rule, it's unlikely. It's better to let sleeping dogs lie and strictly adhere to proper quorum requirements in the future. BACK
Pooper Scooper Trooper Answer: The Board should consider installing "pet waste stations" in logical places that serve as reminders and include disposable plastic bags and receptacles just for this purpose. These are used successfully in many HOAs around the country. Here’s one of several websites that offer some attractive options: www.yuckos.com/dogipot.html BACK
Paying Property Tax Answer: The HOA has no say in how property taxes are determined. Generally, condominiums are taxed to the each owner based on an assessed valuation determined by the tax assessor. The assessed value of common area is apportioned to the unit owners in some formula known only to the tax assessor. Call up the entity responsible for this task in your location and ask them how it’s done. BACK
Damaging the Green Answer: The owner’s response is incorrect. The common area is subject to reasonable rules and regulations imposed and enforced by the Board. Damaging the common area is no resident's right and the Board needs to advise this person of that fact in no uncertain terms. All damage can and should be repaired and billed to the offending resident or the unit owner if it’s a renter. BACK
Talkative Director Answer: In World War II, there was an expression "Loose lips sink ships". Careless gossip exposes the Board to claims of libel and defamation of character. Further, talking about such personal matters unnecessarily embarrasses people that may be in difficult circumstances. When neighbors are treated this way, it can have long and negative impact on neighbor relations. For many reasons, tell this person tactfully to "zip your lip". BACK
Draconian Collection Policy Answer: Collection policies should be within the guidance of state statutes and the governing documents, clearly written, reasonable and universally applied. Even though some of the penalties you describe seem excessive to you, the tougher ones are usually not invoked until later on in the collection process to "turn up the heat". The primary goal is to get payment sooner than later without having to pay lawyers. If the debtor pays early, the penalties should be relatively small but as time passes, get progressive bigger. HOA budgets are typically very tight. Every penny is needed to pay expenses. If one or more owners fail to pay, either services must be cut or the other members will have to make up the deficit. Since HOAs have sweeping collection powers, it’s important that they are used in a reasonable way to encourage timely payment. While your penalties seem onerous, they are sometimes necessary to get the job done. The Board needs to apply them wisely. BACK
Standard Copy Prices? Answer: Yes, the HOA can and should charge manager time for making copies and doing personalized research for individual member requests. Of course, much self-help information like rules, regulations, governing documents, budgets, financial statements, etc. should available on the HOA’s website for no charge. (Your HOA does have a website, right?) BACK
Imposing Landlord Fees Answer: It is absolutely discriminatory and probably illegal. The governing documents define how HOA fees are assessed to members and singling out a class of member (landlords) for special assessment is not allowable. Changing the fee structure takes an affirmative vote of the members which may be as high as 100%. That only makes sense. Otherwise, a majority could simply vote to increase fees for the minority. That said, the board can pass on reasonable costs to members. For example, if manager or maintenance cost is incurred to deal with move ins and outs (changing security access, preparing an elevator for moving furniture, etc.), that cost should be passed on to the member that triggers it. But this cost should apply to all, not just landlords. BACK
Failure to Get Competitive Bids Answer: Unless the $7000 was already approved in the annual budget, three proposals are in order. Those proposals should be presented at a regular board meeting and approved with the usual motion, second and vote of all attending directors. The meeting minutes should reflect this board action. Based on the facts as presented, the president is playing loose with his authority and needs to be reined in. The president serves at the pleasure of the board. If he won’t play by the rules, the board majority can remove him from office and replace him with a director that will. BACK
Sharing Repair Costs Answer: Unless your governing documents specifically state that repair and maintenance of limited common areas (like unit balconies) is a unit owner's responsibility, the expense is shared by all members. From a practical perspective, the HOA would not want individual owners messing with structural components or, as is more likely, simply not maintaining them at all. The only way to assure consistent and professional repairs is for the HOA to take responsibility and pay for them. It sounds like the repair responsibility of the two types of structures (low versus high rise) wasn’t separated according to ownership as it should have been. Getting that changed would require an amendment to the governing documents which often requires a super majority and a vote next to impossible to achieve. BACK
Replacing Defective Furnaces Answer: The HOA has the right to demand furnace replacement where there is a documented fire safety issue. A letter from the Fire Marshall would help together with a demand letter that the HOA is prepared to force the issue legally. If such was necessary, the owner would be charged the related legal expenses. But rather than swing a legal hammer, the board could offer to facilitate cost savings by arranging multiple installations simultaneously. Doing this would result in substantial cost savings over an individual installation. Each unit owner would, of course, reimburse the expense. Also, the local utility company or state energy program might offer financial incentives for upgrading old furnaces. Help the hold-outs say "yes" if you can rather than force them to comply. BACK
Fighting Vandalism Answer: The area should be brightly lit as this kind of crime usually takes place at night. Signs should be installed that read "24 Hour Video Surveillance" along with clearly visible video cameras. While expensive security camera systems with recording capability are available, even cheap fake cameras can be effective. The goal is to get the vandals to believe that they are being watched. If persuaded, it often curbs their bad behavior. Deterrent is the goal. And a more bulletproof entry access system should be installed. BACK
Renting Common Storage Answer: Yes, it's a good idea to have a written year to year rental agreement for the storage rooms. Conditions should include: 1. No storage of flammables or toxic chemicals
HOA Website Components Answer: There is a section of www.Regenesis.net dedicated to HOA Websites. Go there and review Recommended Content & Layout. There is also a list of HOA Website Services with nominal costs and template formats that can be updated by the HOA without the need for a paid programmer. The HOA's website should focus on HOA business and steer clear of local merchants, for sales, for rents, garage sales, etc. Such take an enormous amount of time to keep current and accurate. The board has plenty to do just to provide appropriate HOA information to owners and buyers. BACK
Toilet Overflow Damage Answer: "Negligence" in insurance terms means the occupant somehow caused the problem, like leaving the bathtub running, as opposed to a spontaneous pipe break. If there is negligence, the unit insurance may pay for damage to the common area or other affected units. However, normally each unit owner is responsible to repair his own unit’s damage. The HOA's insurance is broad and will often pay for this kind of claim, however the board should set limits on which claims the HOA will pay because if the HOA files too many claims, it may get its insurance cancelled or premium increased substantially. All HOAs should enact a Maintenance & Insurance Areas of Responsibility Policy that defines common elements and who (HOA or unit owner) is responsible for maintenance, repair and insurance. This policy will guide the board in handling repairs and claims. The HOA’s insurance agent should be provided a copy of the Policy so there is no misunderstanding. BACK
Board Failure to Maintain Answer: I suggest you write a detailed letter to the board making demand for repairs and citing the previous requests (what, when, etc.). Put a deadline of 10 days to effect repairs. If they are not done by that time (or in progress), have the work done and submit the paid receipt for reimbursement. You have the right to reasonable and prompt repairs, especially when there is potential damage to your property. Hopefully, the demand letter will prompt action. There seems to be an unprofessional attitude at work on your board. I suggest you run for election the next round, get elected and start making a change. BACK
Work Party Protocol Answer: Work parties are fine although should be totally optional so the few that volunteer don't start resenting those that don't. (It happens). Limit the tasks to those that require no particular expertise and don't involve climbing, roofs, heavy lifting and other higher risk activity. Touch up painting, changing light bulbs, renailing siding and fences and planting flowers are all great low impact activities that will get folks involved that want to and save the HOA money at the same time. BACK
Batting Cage Violation Answer: You are correct in your interpretation of your governing documents. Batting cages are not only unsuitable to a residential environment, there is a noise factor that will definitely impact the neighbors. This is a no brainer. It should be removed and pronto. BACK
Restrictive Parking Rules Answer: These kind of parking regulations are common. Because parking in HOAs is often limited, requiring resident vehicles to be stored in garages ensures more parking for guests. It also limits the number of cars a particular resident can park onsite. The garage storage issue is directly related to the number of resident vehicles. If a resident has a double garage and only one car, there's no reason why half of the garage can’t be used for storage. There is a sample Parking Resolution in the Policy Samples section of www.Regenesis.net which includes the very conditions you point to. Those provisions are reasonable. The board has the authority and duty to enact such rules. However, if you disagree, you have the right to express your opinion to the board. If a majority of the owners agree with you, have them sign a petition to have the rule overturned. You also have the right to run for the board to make a change from within. BACK
Who Selects Mediator? Answer: A mediator’s job is to help forge a non-binding compromise between two parties that have not been able to achieve this on their own. Compromise means there are no losers but neither party gets exactly what they want. Each side concedes something toward the resolution. The process includes no attorneys, no court, no judge...just a trained mediator. Mediation services are often provided by local jurisdictions as a way of lightening the burden on the court system. These services are free or very reasonably priced and don’t require the parties to have attorney representation. Many HOA conflicts can find a solution in this environment. The rest go to court. Both parties should agree on the selection of mediator. It makes sense that an HOA should have a conflict resolution policy that includes mediation as the first step toward resolution rather than jumping directly to dueling lawyers. While attorneys have their place in the tough issues, the contentiousness of court battles is likely to incur lasting financial and emotional scars on the parties that will live long after the judge’s decision. It’s best to settle disputes at the mediation level if at all possible. BACK
Board Retreat a Meeting? Answer: Board meetings are the venues where the board discusses and decides on HOA business. If a retreat is strictly board training, it is not a board meeting. The board, of course, must never use retreats, work sessions or executive sessions to avoid doing legitimate business at open meetings. In HOAs where there is a high degree of suspicion, any gathering of the board would be viewed as a meeting. These days, the most likely tripping point is use of email to decide business outside a meeting. Tread carefully on use of email unless it is merely discussing execution of meeting decision details. BACK
Metal Roofing Answer: Metal roofs have improved a lot over the years but are not recommended in salt air environments. The metal rusts if the paint gets scratched or perforated and salt accelerates the process. Don't buy any metal roofing product that hasn't been in use for at least 20 years, get local references to verify performance and a manufacturing company that has been in business at least as long as the warranty being offered. Be wary of warranties. They are often voidable if the product is improperly installed and there are many loopholes in most warranty fine print. Similar advice goes for the installation contractor. Never use any company that hasn’t been in business for many years and verify both licensing and insurance. For large projects, hire an independent construction supervisor to inspect the various stages of installation to ensure adherence to manufacturer specifications. It's often easier to get the installer to correct the mistake than to get the manufacturer to pony up for product failure. Make progress inspections a condition of your contract. BACK
Drifting Cigarette Smoke Is there anything that the HOA board can do to limit smoking in these areas and other common areas? The by-laws forbid any "noxious or offensive activities that interfere with or jeopardizes the enjoyment of other units or the common elements or which is a source of nuisance to residents." Answer: Assuming you have explained the problem to your neighbor and asked for cooperation (you have, have you not?) and they have refused to accommodate you, the next best thing is to close your windows or fire up large fans when necessary to blow the smoke elsewhere. While this probably isn't what you want to hear, smoking is still legal outdoors. Usually, a smoker will smoke on the deck because a spouse or roommate won't let them do it inside. The building orientation and prevailing winds may further exacerbate the problem by pushing the smoke your way. Again, not much you can do about that. The smoking issue is different when units share a common hallway or heating/ventilation system which allows the smoke to migrate from unit to unit. There have been common wall communities that have banned smoking within any common area under the very nuisance clause you quote. Like loud music, smoke can and does surpass defined perimeters like walls. And in the case of second had cigarette smoke, it is a proven killer. It’s like living next to a meth lab. The board has the duty to deal with the problem once made aware. While no smoking policies in homeowner associations are not the norm, the evidence of the damage smoking causes to the users and others is undeniable. It’s only a matter of time before common sense prevails and no smoking policies an HOA standard. BACK Poly
Plumbing Answer: Poly plumbing has had its problems. See www.polybutylene.com/poly.html for details. Copper has a long history of reliable service. Since your plumbing repairs are likely to go behind walls and will cause a lot of damage if they fail, use copper based on historical evidence. Besides the pipes and parts themselves, it boils down to warranty and who is doing the work. With a project of this magnitude, it's always wise to check with your state's construction contractors board to make sure your plumbing contractor is properly licensed, bonded, insured and has no major unresolved complaints. Since plumbing is supposed to last many years and costs an enormous amount of money, deal only with contractors that have been in business for many years and have a long list of references to verify their competence. BACK
Types of CPA Evaluations Answer: Auditing is a sophisticated process for the examination of financial statements by CPAs. An audit includes examining, on a test basis, evidence supporting amounts and disclosures in financial statements. It also includes assessing the accounting principles used and evaluating the overall financial statement presentation. In conducting an audit, CPAs are required to obtain reasonable assurance about whether the financial statements are free of material errors or irregularities. An audit offers the HOA board reasonable assurance that the statements present the HOA’s financial position, results of operations, and cash flows in conformity with generally accepted accounting principles. CPAs also offer two types of services that are widely used: reviews and compilations. In performing reviews, CPAs apply analytical procedures to financial statements and make certain inquiries of management. Review procedures, which are substantially less comprehensive than those performed in an audit, enable CPAs to express limited assurance on conformity of the financial statements with generally accepted accounting principles. In compilation engagements, CPAs put financial information supplied by the clients into the form of financial statements, but do not express any assurance on the statements. BACK
Charging for Records Answer: The board should provide access to most records except collections, personnel matters and litigation. It may charge a reasonable fee for making copies (10 cents a page is reasonable). 25 days is too long to respond. 10 days should be plenty of time to get these kind of requests done. BACK Sign
Standards Answer: Controlling signs in the common area is entirely fair and right for the board to do. You might bend a bit by allowing an additional real estate sign (18" x 24") to be displayed inside the unit window. Aside from that, hold your ground. There is no Right to Signage in the Bill of Rights. Also, the HOA should carry Directors & Officers Insurance to defend the board against lawsuits like this although these kind of threat rarely get acted on. BACK
Board Changes Design Policy Answer: Adding skylights is not recommended at all since it all too often creates leaking problems. And when the board is presented with architectural change request, curb appeal is a very important consideration. In common wall communities, uniformity is usually an asset to value while variations detract from value. The board five years ago tried to accommodate you without compromising curb appeal. You, in response, had several alternatives at the time: 1. You could have made the case that your goal was to
get maximum light by placing the skylight in the front. I suspect that once you got yours installed, other owners liked the idea of a skylight but realized they were better suited for the front. They apparently presented their case better than you and the board agreed. The good news is that you now have the option of adding another skylight where you wanted it in the first place. BACK
Unauthorized Purchases Answer: The approved annual budget should allow for certain kinds of spending without the need for a board vote. For example, if the clubhouse needs a new table and chairs and the budget is there to buy it, the president or treasurer should have the authority to do so. If the amount or type of expenditure falls outside the approved budget, board approval should be required. The entire board does not need to micro-manage every expenditure. That is what an approved budget is designed to control. But if certain board officers are abusing their authority, they should be removed from their office by a majority vote of the board. BACK |
© Copyright by Regenesis.net
All rights reserved