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Ask the HOA Expert
Q&A |
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Unauthorized Owner Renovation Answer: Every HOA needs a policy for architectural changes. That policy should require proper engineering and permitting. If your HOA is comprised of single family homes, the HOA's concern is curb appeal. In common wall HOAs like condominiums, improper structural changes may degrade the structure which is the HOA's responsibility to maintain. Structural changes can create life safety issues. So in condominiums, the stakes are much higher and the HOA needs to be much more vigilant and aggressive in controlling outcomes. There is a sample Architectural Design Policy in the Regenesis.net Policy Samples section which can be adapted to your HOA's use. Whether the HOA should get involved in retroactively enforcing violations depends on how long the feature has been in place and if it is something that affects structural integrity. If the latter, the board should act and bring the building department into the mix if necessary. BACK
Value of Entry Monuments Answer: It is generally a good idea to have an entry monument or sign since HOAs have rights and responsibilities that single family subdivision homeowners do not have. The sign will help identify that fact to prospective buyers, real estate agents, contractors and others that may be thinking of getting involved is some way. I suggest you do it and include contact information (website, mail, phone) since finding the proper source of information is a major problem in the HOA world. BACK Question: Should the board require that a member’s account be current before they approving an Architectural Review Application? Answer: Timely collections are an essential for all HOAs. The board should enact an aggressive policy that includes filing liens and anything else the governing documents and law allows. Denying an architectural design request is probably permissible as long as your approved collection policy states it is. As with any board policy, it should be reviewed prior to enactment by a knowledgeable attorney that specializes in homeowner association law in your state. There is a sample Collection Policy in the Regenesis.net Policy Samples section which can be adapted to your HOA's use. BACK Annual Pet Fee Question: We are a pet friendly condominium but the number of resident pets has been climbing rapidly recently. We currently have a 30# weight limit on dogs which no one abides by. We are thinking of charging dog owners an annual fee because our carpet cleaning costs are so high. Have you seen this done in other condominiums? Answer: Common area carpet should normally be cleaned several times a year even without the pet challenges. Pet owners whose pets are caught in the act, of course, should pay the cost of special cleaning. But charging all pet owners for something a few are guilty is not fair. As far as your 30# weight limit, the premise is that smaller dogs are better mannered than larger ones. Aside from aggression (definitely a bigger dog concern), the biggest problems with dogs are barking and owners failing to clean up after them. In this, size is no object. The HOA should definitely have some policy for dealing with dog owners that fail in these categories. Post regular reminders of pet guidelines. There is a sample Pet Policy in the Regenesis.net Policy Samples section. BACK
Poorly Maintained Rentals Answer: Unit owners have many protections that extend to their renters. If your concerns is one of fire safety or health (trash, cockroaches, rats), the HOA has the right to demand the unit owner take action. The HOA has no direct authority over renters and should not enter a unit without permission or a court order unless there is an emergency (fire, flood, etc.) Making a case that interior condition affects curb appeal and market value is hard to prove. There have been many court cases affirming the right of residents to live like pigs if they so choose. But unit owners are just as capable of living this way so singling out renters is unfair. The HOA should focus on individual residents, whether owner or renter, and specific issues that directly affect the HOA. If a renter is violating HOA rules and regulations, the unit owner should be notified in writing and given a deadline for correction. If the owner fails to take action, invoke approved fines and penalties to enforce compliance. If there is illegal or dangerous activity, call the police, health or fire department. BACK
Renter Background Checks Answer: The board has the right to require that all rental agreements are subject to the HOA’s rules and regulations and that the landlord be responsible for enforcing renter violations. If the landlord fails to enforce the HOA rules on his tenant(s), the board can invoke whatever penalty the written policy describes as if he violated the rule himself. The board has no direct authority over renters. The board does not have the authority to screen renters or prospective purchasers unless there is specific authority to do so in the governing documents (very rare). Even if that authority exists, the board needs to be very careful not to violate federal fair housing laws which prohibit discrimination based on race, color, national origin, religion, sex, familial status or handicap. Essentially, financial criteria needs to the main basis for screening although criminal history and physical abuse of previous rentals is a valid basis. But the unit owner is the one that is responsible for checking these things out and to decide what criteria a renter should have. BACK
Compensating Board Members Answer: Most governing documents prohibit compensation for the board and committees. Even if not prohibited, it’s strongly recommended not to due to an unavoidable conflict of interest. While volunteer work can be taxing at times, the "volunteer" aspect is extremely important to the outcome. Once the board is paid, outcomes will change and not necessarily for the better. Self compensation has a way of growing over time. If the board needs help to run the HOA, it should hire a management company and have all members share in the cost. BACK
HOA Approving Rentals Answer: A local title insurance company can provide you the names and mailing addresses of the unit owners of record so you can inform them of the illegal rentals. But since the tenants have probably already moved in, I'm not sure what you can do to the owners now other than threaten legal action. The tenants probably have a written leases and are protected under state Landlord Tenant law. If the board feels strongly about controlling rentals, there needs to be a comprehensive Rental Policy enacted which outlines the procedure for getting permission, the penalty for violation and an appeal process. See the Regenesis.net Resolution Process section for suggested formatting. Restricting rentals is a highly controversial issue in HOAs and the board should never adopt any policy that has not been thoroughly discussed and supported by a large majority of the members. To ensure it complies with state and federal fair housing laws, run any proposed policy passed a knowledge HOA attorney. BACK
Cutting Trees Answer: From what you describe, the board acted rashly. Tree removal is a highly political issue. Unless there is immediate danger posed like with storm damage, residents (especially those directly impacted) should always be informed and given a chance for input. While the board does have the authority to make tree removal decisions, this board needs a big lesson in diplomacy and common sense. If the board ramrods over this issue, what other issues are being ram rodded through. There are several things you can do: 1. Get a petition signed by as many unit owners as possible. The petition should state that non-emergency tree removals must be noticed to all owners within, say, 300 feet and they must be given 30 days to give input prior to the board finalizing a decision. Since this approach is entirely reasonable and virtually all non-board members are likely to support it, you should have little problem getting most unit owners to sign the petition. 2. Offer to form and serve on a Grounds Committee. The board can then assign special landscaping and tree issues to the committee for review and recommendations. 3. Run for the board. If successful, you can bring common sense to the board and hopefully derail rash decisions like this one. 4. Get informed. Read the Regenesis.net article on this subject titled "Politics of Trees". BACK Question: Our board president set up a three year budget last year which was passed with only one vote in opposition. Does the budget, having been projected for three years, have to be approved every year even so? Answer: Adopting a three year budget is unrealistic because of costs that are moving targets not in the HOA's control. Contracts and utilities change at varying rates every year. In addition, there will likely be new owners in any given year that have not had the opportunity to review or give input on the budget. Based on practical considerations, the board should review and approve a new budget every year. BACK
Announcing Board Meetings Answer: Yes, all board meetings unless a real emergency need to be noticed to the members. Check the governing documents for notice provisions but if they are silent, two weeks is reasonable. BACK
Board Planning Sessions Answer: Yes, but these sessions can easily transition into decision making sessions and could have the appearance of closed door meetings. As a rule, they are not recommended or, at least, don’t do it very often. BACK
Replacing Board President Answer: Officers are selected by the board and not elected by the membership. So officer titles can change when circumstances do. Vice Presidents are generally chosen because they are willing to fill in for the President when unavailable. But when the President position must be filled full time, the VP may not be willing or able to do so. The board should convene to discuss it. The first choice should go to the VP. If refused, other directors can be considered. BACK
Providing Photocopies Answer: The HOA is not required to produce copies on demand but the members are entitled to review most but not all records. Set up an appointment to review specific records during normal business hours. Personal files for other members should not be made available nor should sensitive issues like pending litigation or contract negotiation. Charge a reasonable copying charge for any copies requested which includes somebody’s time to do it (like 10¢ a copy). This usually limits how many copies are requested. A great alternative to this exercise is to have an HOA website where these kinds of records are posted and archived for all members to see whenever they want to. The cost is surprisingly low. For options, see the HOA Websites section. BACK Replacing Management Question: Our resident manager has just given notice after years of service and we are scrambling to find a good affordable management company. Do you have any suggestions? Answer: Only consider those companies that specialize in HOA management. There are specific laws that apply to this industry that rental managers know nothing about plus the whole dynamic of working with a board of directors and owners that makes HOAs unique. Like with any contractor, references are extremely important as is time in business. Make sure your prospects are geographically close since property inspections, maintenance and meeting attendance are necessary and the HOA pays travel time. Above all, measure all prospective HOA management companies by the same criteria so you can weigh them equally. There is an HOA Management Screening Checklist in the Manager Issues section. BACK
Setting Fine Amounts Answer: Fines should vary depending on the type of offense. They can vary from a flat fine to a per day fine or a combination of both. A flat fee should probably be at least $25 plus, say, $10 a day to get the offender’s attention. If the court ever gets involved in a fine dispute (rare), what a judge considers reasonable is difficult to predict but a general guideline is "fair", whatever that means. The fines need to be enough to get the offender's attention without being outrageous. Of course, fining policies should be consistently applied to all offenders and should not single out particular individuals. BACK
Unpaid Fines Answer: Your Collection Policy should treat unpaid fines the same way as unpaid fees or dues. The HOA should charge interest on past due balances and invoke whatever standardized collection procedure is in place. Some states restrict the HOA’s ability to collect fines in the same way as regular fees so check with a knowledgeable HOA attorney in your state before moving forward. Fine schedules can call for increasing fines for repeat offenders but I recommend that it only apply to those repeat offenses that occur within, say, one year. You need to maintain accurate records to apply this kind of fining. BACK |
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