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Ask the HOA Expert
Q&A |
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Modifying Design Policy Answer: This kind of policy is generally amendable by the Board when it’s in resolution form (a separate document outside the recorded governing documents). If the policy is part of the governing documents, a vote of the members is needed. But even if the board has the authority to amend, it is strongly recommended that proposed amendments be circulated to the members for comment prior to voting to enact them. A 30 day review is not going to make much difference in the long run and members will be more likely to comply when they've had a chance to be heard. BACK Director Power of Attorney Question: Does a director of the board have the authority to give a power of attorney to another person to act on his/her behalf? Answer: No. Directors are elected by the members and cannot give that authority to another person. BACK Unit Damage Repair Question: We have a board member who argues that damage done to the interior of a condo unit from a roof leak is the responsibility of the homeowner association. I have been telling the board that the HOA is not responsible for the interior damage unless the board does not address the roof leak in a timely manner. Who’s right? Answer: Technically, this board member is correct. When HOAs purchase insurance for the structures, that insurance extends to the units themselves. However, the governing documents often have (or the board can establish) a requirement for unit owners to carry insurance for their individual units and be the primary insurance in the event of a claim, regardless of the source of the problem (kitchen fire, toilet overflowing, flooding from the upstairs unit, sprinkler system leaks leaks through foundation, etc.). This kind of policy is necessary to protect the HOA's insurability. The rationale behind this is if every unit owner was allowed to file claims against the HOA's insurance, it would not be long before the HOA's insurance would be cancelled due to excessive claims or the premium increased beyond affordability. Spreading the risk out to unit owners keeps the HOA's insurability viable. BACK Director Slander Question: What can be done about a board member that slanders another board member? He not only does it at meetings but spreads his accusations around the neighborhood. Answer: It is inappropriate and divisive for a board member to engage in character assassination. The remaining directors should take action to rein him in in a diplomatic but firm way. The director with the best rapport with him should have a heart to heart with him and explain the damage that is being done. Insist that he keep such personal opinions to himself. While the board doesn't have the authority to remove a rogue director from the board (only the members do), the board can remove a director from his office (President, Treasurer, Secretary) if he has one. That may be necessary to make the point. BACK
Trash Cans Answer: Most HOAs have a requirement that trash receptacles are only allowed out on pick up day and need to be stored out of sight within 24 hours. This is both reasonable and desirable from a curb appeal standpoint. BACK
Chronic Rule Breakers Answer: Three special "scofflaw" penalties come to mind: caning, tarring and feathering, and the stock and pillary. But seriously, rules that carry no penalties are useless. If you need a rule, it needs an effective enforcement mechanism in the form of a fine significant enough to get noticed. Scofflaws often refuse to pay fines so failure to pay them must be treated the same way as failure to pay regular HOA fees. Process them through the normal collection process. Eventually, even the most persistent scofflaw will come to understand the price of being a jerk. BACK
Odor Complaints Answer: Obnoxious odors qualify under the description "nuisance" (something that disturbs the neighbor’s quiet enjoyment of his or her property). The board should issue a letter to the offending neighbor explaining the problem, the health and pest concerns. But don't be surprised if it has no effect. People that live in these kind of unhealthy conditions often have psychological issues. The next step is to contact friends or family that have personal influence over this person. Finally, if absolutely necessary, file a lawsuit to get a court order. BACK Removing Committee Members Question: Can committee members be removed from committees for good reason? We have a number that volunteer and then never show up. Answer: Unlike directors who are elected by the members and can only be removed by the members, the Board President has authority to un-appoint committee members for cause (like not attending scheduled meetings, etc.). Of course, the committee has to have clear marching orders and deadlines to which members can be held accountable. BACK Director Trouble Makers Question: How should we deal with a board member who is a trouble maker? This guy is backbiting and stirring up issues outside the board meetings that is making the board’s job much harder. Answer: If a board member is being disruptive and divisive, first have a heart to heart discussion with her about being a team player. Explain that these bad behavior alienates the other board members. The board cannot establish rules that penalize directors for contrary behavior because directors have the right to be contrary. However, if she is disrupting a meeting, the President can demand civil behavior or adjourn the meeting. BACK
Racial Tension Answer: Verbal assaults can escalate into physical assaults and the board should encourage the complainer to call law enforcement if she feels threatened. BACK
Common Area Planting Answer: Common area belongs to all members of the HOA and no member (or group of members) has the right to commandeer or plant in it. Resistance or not, the board is elected to protect the rights of all members and is correct in requiring removal of personal plantings. If the offender doesn’t do it willingly and quickly (three days is plenty of time), the board should order it done and bill the cost to the offender. BACK
Wood Play Structures Answer: Many wood play structures contain chromated copper arsenate (CCA). CCA is the most prevalent wood preservative in the United States and has been used to pressure-treat wood play equipment, picnic tables and benches for years. Medical studies have demonstrated that arsenic, a CCA component, is carcinogenic. To improve safety, reduce maintenance and improve curb appeal, upgrade to a powder coated steel play structure which complies with OSHA regulations. It's pretty easy to spend $10,000 or more for a commercial grade play structure but it’s worth it. BACK
Voting for Officers Answer: The normal procedure is that directors are elected at annual elections by the membership. Following the annual meeting, the directors decide amongst themselves who will hold which office. While some candidates may run assuming that they will serve in a particular office, it’s up to the board majority to agree to it. BACK
Guests at Meetings
New Owner Information Answer: These are common complaints with HOA sales. While it’s extremely important that all buyers read and understand the nature of HOA obligations, it’s not the HOA's responsibility to inform them, it is the seller's. If the seller does not provide the information to the buyer, then the buyer may have a legitimate complaint against the seller but is not relieved from paying HOA fees or obeying HOA rules and regulations. Once the sale is closed, the buyer is subject to the HOA's authority whether informed before closing or not (as long as the board or manager did not withhold requested information).. The HOA can and should notify its members regularly that they are obligated to inform prospective buyers of the HOA’s obligations and should provide it long before closing. One way for the HOA to help reduce the number of uninformed closings is to have an HOA website that has most of the information that a buyer should know before closing a sale. Posting a sign at the HOA entry with the web address will inform buyers, real estate agents and sellers so there is little excuse. The website should also have key contact information if the buyer needs additional information. For a checklist of important HOA resale disclosure information, see www.Regenesis.net Resale Disclosure section. BACK |
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