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Ask the HOA Expert
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Illegal Hot Tubs Answer: Modern hot tubs generally pose fewer problems than early versions in regards to weight and leaking. As long as the deck is structurally sound, the hot tub doesn’t exceed a certain weight limit (which can be calculated by a structural engineer) and doesn’t leak, they should be permitted. However, the Board should adopt formal standards and policy which include: 1. Details of hot tub (brand, size,
weight. etc.) Plumbing Leak Responsibility Question: From time to time, our condominium has suffered damage due to a unit water leak flooding units below. We are considering an inspection of all unit plumbing by a licensed plumber, followed by replacement of all hoses, valves, etc that need it. We’re also considering water leak sensors and washing machine hoses that have a 20 year guarantee. Answer: Rather than getting involved in unit plumbing repairs, the HOA should adopt a policy of making unit owners responsible for damage to common area and other units caused by unit plumbing failure. This kind of policy puts all unit owners and their insurance carriers on notice of their responsibility and limits the financial exposure to the HOA for something it has no control over. The Board should adopt an Areas of Responsibility Policy which clarifies for the unit owner and their insurance carrier which party, unit owner or HOA, is responsible. BACK
Parking Junk Vehicles Answer: There are several issues: The number of vehicles being parked as well as condition of the vehicles. Since the Board has the right to restrict unsightly vehicles, use this authority first. Don't be surprised if he raises the argument that other vehicles in the neighborhood aren't too pretty either. This isn't a justification for violating the rules but if he has a point, you'll need to notice other offenders as well. Rules need to be uniformly applied. If parking is tight, the Board might want to expand the parking policy to restrict the number of resident vehicles to two. BACK
Behind Closed Doors Answer: Most HOA boards should meet at least quarterly. All non-emergency board meetings should be advertised to the homeowners. Owners have the right to attend the meetings so they should be held in a place that allows a reasonable number of guests. BACK
Providing Disability Services Answer: ADA requires HOAs to make "reasonable accommodations". That means that the HOA would not prohibit a resident from using disability related equipment and assists. This usually affects parking and access however can extend to other disability accommodations. Requiring the HOA to provide and pay for a special service like this one exceeds the "reasonableness" condition. However, the HOA can voluntarily provide such services and a deaf member should be allowed to bring a sign language interpreter to the meeting. BACK
Husband & Wife
Directors Answer: As long as both the Treasurer and President each own a unit, they are both entitled to serve on the Board. It's up to the Board to decide who serves in what office. It is common practice for the President and Treasurer to be signers on the HOA bank accounts. You are free to express your concerns about this arrangement but barring convincing evidence of wrongdoing, raising this issue is bound to imply wrongdoing and cause hard feelings. Tread carefully. As a matter of good management practice, the HOA should carry fidelity insurance to help safeguard against fraud and embezzlement. As an HOA member, you have the right to review all financial records with exception of confidential ones like collection activity on members. Requesting a special delivery of financial records is not reasonable unless you are willing to pay for staff time and copy costs. You do have the right to arrange an appointment and go to the place where records are kept and review them. You should expect to pay for reasonable copying costs. BACK
Window Repair
Responsibility Answer: Usually, window repair is an owner responsibility unless the governing documents indicate otherwise or the problem is related to structural settling. If structural settling caused the cracked window, the HOA should do the repair and stabilize the structural issue as soon as possible. Of course, if the crack is present in this unit, other units should be checked for similar problems. BACK
Who Enforces Rules? Answer: If the HOA has a manager, the manager should process complaints. However, the Board must adopt policies and procedures so the manager knows how to respond. If those policies are in place, the manager simply executes them (the policies, not the rule violators☺). Neither the Board nor manager should automatically accept a complaint. If this is a first time complaint about a neighbor, the complainer should be required to first take the matter directly to that neighbor both in person and in writing rather than expect the HOA to do the dirty work. That way, the manager knows that reasonable action was taken to resolve the issue before it was presented for resolution to the HOA. If this has been done, the manager should accept the complaint in writing with precise details which include the time and events together with copies of correspondence between the neighbors. That way, the manager knows that the complainer took personal action to resolve the issue. If the complainer is not willing to put the matter in writing to both the offender and the manager, the manager can assume it's not important enough for the HOA to deal with. Of course, there can be extenuating circumstances, like a aggressive or violent neighbor. The manager can make the judgment whether to intercede or not. The manager may have a question from time to time on how to proceed with a complaint. Specific direction should be provided by the Board President. Aside from this, the manager should have authority to handle most matters. This is one of the great advantages of having professional management...not having to enforce rules on neighbors. Finally, not all complaints are the HOA's responsibility to do something about. For example, if spouses are having violent altercations, it's a matter for the police and the complainer should be directed that way. BACK
Single Family Dwelling Rule Answer: Extended family is generally accepted under the "single family residence" definition as long as no rent is being charged. The friend issue is pushing the definition envelope. However, late night activity that disturbs the neighbors, whether by family or guests, is a violation of HOA rules. This particular homeowner is a board member so the duty to comply with basic rules is even more important. The real issue is the disturbance, not the rental arrangement. The issue needs to be framed plainly: Either the kids abide by the rules or there will be ramifications (assuming that the HOA has established fines and penalties). Of course, the neighbors should be encouraged to call the police if there is any illegal activity going on which frequent late night traffic often suggests. BACK
Prohibiting Signs Answer: If the Board has the authority to approve signs, the Board has the authority to enact a Sign Policy. However, the Board cannot enact a policy that prohibits signs since the governing documents imply that signs are allowable. Only an appropriate majority of members as defined by the governing documents can vote to amend the governing documents to eliminate signs altogether. But such an amendment is not recommended. For Rent and For Sale signs are standard fare in every part of the country with the exception of a few elite communities. These signs are temporary and designed to assist members in a legitimate business enterprise which all will undertake at some point in time. It is, however, appropriate to control the size, look, number, longevity and topic of signs. Political signs, for example, can only be displayed for, say, 30 days before an election and then be removed within 48 hours of the event. There is a sample Sign Policy in the Policy Samples section that can be adapted to your use. The sample policy is a reasonable approach to this issue. BACK
No D&O Insurance Answer: If the governing documents require the HOA to have Directors & Officers insurance, that's what it means. D&O is specifically designed to provide legal defense for the Board in situations like you describe. There are many HOA Boards that haven't a clue what D&O insurance is and have never read the governing documents to even know there is a requirement for it. As long as the HOA doesn't get sued, they look like heros because they saved the HOA premium expense. But now that your Board has been sued and there was no D&O, they don’t look so smart. So, was the oversight out of ignorance or deliberate defiance of the requirement? If the board made a conscious decision not to spend the money for this insurance, to quote Ricky Ricardo, "You (The Board) got some ‘splaining to do". Since D&O is usually inexpensive, there is no good reason not to have it. BACK
Vacancy Plumbing Leaks Answer: Generally, the HOA has the right to enter owner units in emergency situations to protect the life and property of others (fire, flooding, gas leak, etc.). This may require forced entry because it is not advisable for the HOA to hold unit keys due to liability concerns. Random access for "checking up" should only be done with written approval from the owner. Or, a policy can be enacted that any member planning to be absent for longer than, say, 30 days, must have a local representative authorized to give access to the board or management if necessary. BACK
Central Hot Water Heat Answer: Damage resulting from resident negligence should be paid for by the unit owner. The HOA should arrange repairs but pass the cost through to the owner. The HOA has no direct authority over renters so should not bill a renter for damage. The unit owner should deal with the renter. The HOA cannot afford, as you've discovered, to pay for all manner of claims without expensive consequences. In some cases, with too many claims, the HOA may lose its insurance altogether. To protect against that, all owners should be required to carry adequate insurance to protect their own finishes and personal property. If either is damaged, regardless of the cause unless there was clear negligence by the HOA, the damaged owner's insurance should pay the claim. It’s obvious that you need individual temperature controls for each unit so this kind of thing is less likely to happen. Temperature control should be available to all. Power to the People! Even older systems can often be retrofitted for individual controls. If not, it may be time to install electric wall heaters that don’t require an electrical system upgrade. BACK
Discussing Litigation Answer: Board meetings should be open to all members. Executive sessions should be reserved for selected topics like litigation, personnel and contract matters. The board should use executive session rarely and announce when such is taking place and the general nature of the discussion so that it is clear it’s not a violation of open meeting requirements. BACK
Prosecuting Embezzlers Answer: From a principle standpoint, filing criminal charges seems like the right thing to do. However, it would unlikely further benefit the HOA, particularly if the money has already been recovered. Considering that the person is no longer a board member, nothing more need be done. It does, however, raise the issue of fraud for which all boards should be ever vigilant. There are a number of fraud prevention practices that should be followed to reduce the possibility of embezzlement including having duplicate copies of the bank statement made available to another board member like the president and requiring two signatures on checks (although the bank will cash them without two signatures). Also, the HOA should have Employee Dishonesty (Fidelity) Insurance coverage in an amount equal to the reserves plus three months of assessment to protect against embezzlement. BACK
Undoing Landscape Precedent The board now wants to follow the governing documents and informed the courtyard owners that the maintenance service would be discontinued Several of the homeowners are threatening to take legal action. The board's alternative is to amend the governing documents so that maintenance does include the courtyard. Answer: First of all, the board has no authority to amend the governing documents. That can only be done with an appropriate vote of all members. If given that opportunity, the non-courtyard owners are unlikely to approve such an amendment. Change of a routine that has been in place for so long should be handled very carefully. It's not surprising that the board has been challenged. When making radical policy changes, it is always in the board's best interest to have a knowledgeable attorney review the matter before moving forward. However, it sounds like the board made a correct judgment to correct the past. It might consider allowing the service to continue with the affected owners reimbursing the cost to do so. BACK
Curtailing Speeders Answer: Installing traffic control is a highly sensitive issue and should be discussed in an open meeting with owners. Is this a general problem or are there relatively few offenders that can be identified? Have the police been called to do periodic speed control? Speed bumps should be your last option and may be illegal because they hinder emergency vehicles. In some cities, a low profile speed bump has been developed which spans the width of the street and is 6 feet deep. The impact is noticeable but not as radical as traditional speed bumps. And they are generally put in series, say, every several hundred feet so that driving more than 25 MPH gets to be a real pain. There are also traffic circles that cause traffic to slow at intersections and, of course, stop signs. Your local government has a traffic flow expert that could provide the options. BACK
Triggering Lawyer Expense Answer: It's not good policy to allow individual board members to spin the attorney's meter. While your question(s) may be legitimate, your legal budget is likely very small. Discuss your question(s) with the whole board and if a majority agree to get the attorney’s opinion, so be it. You also have the option to consult your own attorney for information and pay for it. BACK
Limiting Board Candidate
Platforms Answer: This restriction is neither normal nor sensible. If a candidate wants to write a full page, let him write it. Most will write little or nothing. BACK
Amendment Voting Timeframe Answer: Usually, bylaw amendments are discussed and voted upon at either the annual meeting or a special meeting called for that purpose. Mailing bylaw amendments to owners should only be done if many of them live far away. And if that is the case, 30 days is plenty to return the ballots. More time will not get greater compliance. When a deadline is set and the needed ballots aren't received, the board should keep making phone calls until the absents return the ballot. BACK
Circulating Draft Minutes 2 Answer: Passage of time will not improve the secretary's memory and critical details will likely be left out. Also, there are likely action items that need to get done before the next meeting and the DRAFT minutes will remind those tasked to do them. Unless there are extenuating circumstances, minutes marked "DRAFT" should be made available to both the board and membership within a week. (The DRAFT, of course, must be formally approved at the next board meeting). BACK
Charging Landlord Fees Answer: The governing documents define the formula of how HOA dues are distributed. This formula can typically only be changed by a vote of the owners which may be up to 100% approval required. So, the board has no authority to surcharge landlords. The board can, however, charge landlords for real costs incurred due to their tenants. These same charges should be levied to owners that incur them. BACK
No Board Candidates Answer: There's a saying "Don't worry about tomorrow because tomorrow will worry about itself". Volunteers usually shy away because of fear of the unknown. The board job was not designed to be overly difficult or time consuming but it can be if you try to self manage, particularly if there are members who don't pay or won't obey rules. Getting qualified management (specializes in HOAs) is a good move because it will reduce the amount of time the board needs to deal with things. Time involvement is a major obstacle to getting volunteers. Once management is hired, the board should need to meet no more than four times a year. In between, let the manager run the show according to the approved budget and governing documents. That level of organization will encourage volunteers who know they aren't being set up for another full time job. BACK
Breaking Tie Votes Answer: All board members, regardless of office held, are entitled to cast a vote. So the president is entitled to cast a vote but often doesn't unless to break a tie. However, when it comes to controversial votes, it is in the president's best interest to cast a vote, particularly when he/she is opposed to the motion. BACK
Cleaning Roof Gutters Answer: It depends. If there is tree coverage, absolutely, at least twice a year and more often where there are regular clogs. If there is no or little tree coverage, once a year might suffice. However, even when there is no leaf debris, composite roofing sheds rock granules which wash into the gutters and create a sludge that impedes rainwater from draining. This sludge needs to be removed every year so the gutters are running to maximum efficiency. BACK
Failing to Reserve Answer: The concept of planning for future projects is called a "reserve study". It is a tried and proven way of dealing with these predictable expenses and events. Moreover, a fairly funded reserve study shares these costs with all members along the, usually, 30 year time line rather than nailing the unfortunate ones at special assessment time. Special assessments are the product of poor or no planning since virtually all reserve events can be anticipated many years in advance. The board has a fiduciary duty to run business in a reasonable way. It also has a duty to protect the interests of current and future members. Any board that fails to plan for foreseeable events and expenses has failed in its duty. Most governing documents obligate the board to budget for known (or knowable) expenses. Failure to plan for reserve events is usually indicative of a systemic problem like the operating budget being underfunded and poor maintenance. The results are plain to see: erosion of the property and home values. The board usually has the authority to set the budget and reserves at a level to take care of HOA business without approval from the members. If your board is required to get member approval, it could easily roadblock getting things done. But often, the board simply doesn’t raise the issue because nay sayers won’t like it and the board doesn’t want to get yelled at. However, nay sayers are usually few and far between because most want to protect the value of their property and know it costs money to do it. Take this message to the board: "You have fiduciary duty to reasonably protect and maintain common assets. Reserve planning and funding is an accepted and fair way to do it. Well?" BACK
Decisions by Petition We had an owner who wanted to paint their home a different color and the board told him to put together a written request and color samples for a member and lender vote as required. Instead, he wrote a petition and went door to door to gather signatures. One of the signatures belonged to the board president. Almost half of the members never saw the petition. He has started painting. Answer: I hope your board president has been removed from office for allowing and encouraging this violation to take place. HOA decisions should never be made by door to door petitions although petitions can certainly be used as the basis for holding a meeting. But the final decision should be made at a meeting where all owners are allowed to discuss the pros and cons and then make an informed decision. By the wording of your governing documents, approval of 100% of the mortgagees is required in addition to 50% of the members. No mortgagee approval was obtained so that killed the request. But realistically, getting any of the mortgagees to respond to such a request is impossible since there is no mechanism for such decision making. The person that wrote this provision into the governing documents was ignorant about how the homeowner association system is designed to work and may have tied the members' hands forever from making a paint color change. However, the board should require the offending member to repaint according to the standard. He was told what the procedure was and circumvented it. If the board allows the offense to stand, it will be difficult to enforce any standard at all. BACK
Appointing Officers Answer: It's up to the directors to select the officers so the scenario you describe is normal. If you want things to change, someone (you?) needs to campaign with the stated goal of becoming president. That strategy needs to include getting other directors to support that goal before the selection meeting. BACK
Enacting Rental Restrictions Answer: The HOA can enact rental restrictions but it should be carefully thought through. The ability to rent one’s property is considered a basic right. And it’s not just investors that rent their property. Someone that has lost their job, a down real estate market and military deployment are all valid reasons for needing to rent. Any rental restriction policy should provide for exceptions like these. Having a large percentage of rentals (percentage varies) can affect lender financing options and reduce resident owner appeal. Avoid having a policy that allows some to rent and others not. If a restriction against rentals is desirable, it should apply to one and all. To do otherwise grants a privilege to some not enjoyed by all and inevitable conflict will ensue. To achieve uniformity, allow, say, up to a one year grace period for those currently renting out their property to comply. Finally, the board should not enact a rental restriction policy on its own. It should be done by an amendment of the governing documents approved by a appropriate majority of members. Once amended, the governing documents should be recorded to put all potential purchasers on notice of the restriction. (There are several sample Rental Restriction policies in the Policy Samples section of www.Regenesis.net available to Gold Subscribers.) BACK
Board Voting Proxies Answer: The board cannot take or use someone's voting right just because they don't respond to a proxy request. A proxy should be provided to every member well in advance of the meeting (whatever the governing documents require) to be completed, signed and returned. A member may designate whoever they choose (a neighbor, a family member...anybody) to represent them at the meeting. That person, of course, must be able to attend the meeting. If the proxies aren't returned within several days of the meeting, the board needs to round them up by making calls, going door to door to pick them up or whatever it takes. At the meeting, if the required quorum is not represented by the proper number of members and their proxies, a legal meeting cannot be held. This is how the proxy process works. Don't let the board ramrod any proposal through, especially a bylaw change, without proper member representation. BACK
Firing the Landscape Contractor Answer: If the board majority wants to retain the landscape contractor, the president should not go contrary to the majority or go looking for the support of homeowners. If, however, it must be done, the board is authorized to do so. But changing landscape contractors should not be done lightly. In fairness to the contractor, there are usually some identifiable problems that he should be made aware of in writing and given a reasonable opportunity to correct. To track performance, appoint a Landscape Supervisor (could be a board member or another resident) to monitor the contractor's work. The contractor would then be instructed to leave a Job Slip detailing work performed on the Landscape Supervisor's door when the crew has finished. The Landscape Supervisor would then inspect the work and give thumbs up or down within 24 hours of completion and inform the contractor. If the contractor fails to correct the deficiencies, the board would have the ammunition it needs to terminate the contract. BACK
Enforcing Paint Color Standard Answer: Member property is often subject to architectural guidelines found in the HOA's governing documents and/or policies enacted by the board. However, if there was no objection to your color choice years ago, it is not reasonable for the current board to enforce it now. The length of time that has passed has everything to do with it. To protect its enforcement authority, the board must act within a reasonable time. It’s doubtful that a judge would agree with the current board’s approach. Write the board a letter or email detailing the age of the paint job and lack of challenge to it by previous boards. Indicate that you will comply with whatever color requirements in effect when you repaint. This kind of response puts the matter into its historical perspective as well as your willingness to comply. BACK
Dealing with Parking
Enforcement Answer: Rather than plastering offenders’ cars with notices, try an information campaign explaining the need for parking regulations and compliance. Advise that fines and towing are a possibility if residents and their guests fail to comply. Get the message out through meeting minutes, newsletters and Parking Rules signs. Move the signs around frequently so they don't get stale. After 30 days, assess the effectiveness of the campaign. While most will comply, some won’t. Identify those who haven't and send them a personal letter explaining, again, the reasons for the regulations and the need for compliance. Cite the fine and towing alternatives which will begin on a certain date. On the designated day, place signs at the community entrances which explain the Tow Without Warning policy. Arrange a contract with a local towing company. Have residents self help by calling the towing company directly if someone is parked in their personal parking space. This will reduce the work load for the Committee. The Committee can authorize tow for any car parked in Fire Lanes. Tow offending cars. The owner will have to pay the tow charge to get the car back. Usually, towing someone's car once is all that is needed for them to get the message. Let residents know in the newsletter that X number of cars were towed last month for violating parking regulations. Towing will become rare as the message gets out. The system works. BACK |
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