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Ask the HOA Expert
Q&A |
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Manager at Meetings Answer: The management company works for the board and if the board doesn't want the manager there, that’s the way it is. But it's ill advised. The manager is hired to counsel the board about HOA operations. Since the manager is more involved in day to day issues, he knows things the board doesn't. If I were you, I would advise the board of the benefits and the problems that will likely result by making decisions that do not include manager input. If they persist in their thinking, at least they have been warned. BACK
Sale Required Repairs Answer: Unless the repair cost was triggered by a unit owner’s negligence, certain members (like sellers) cannot be singled out for special assessments without amending the governing documents. This may require 100% of the members or a super majority to pass. But there is another issue to consider. Just because a lender says a common element needs to be fixed doesn't mean the HOA has to fix it right away. Even if the HOA has maintenance and repair responsibility, the board does have discretion when the event takes place. Usually a letter to the lender from the board stating that the repairs will be accomplished according to the board’s scheduling suffices for the lender’s file. Of course, if there is a safety issue, it should be taken care of as soon as possible. An even bigger issue to consider is the lack of reserves. A 30 year reserve study is needed to assess long range repairs and replacements and their costs. When the 30 year plan is adequately and regularly funded, special assessments are avoided and costs are fairly shared by all members along the 30 year timeline. BACK
Controlling 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 are an option if allowed by the local jurisdiction. In some cities, an extra deep and relatively low speed bump has been developed for what is labeled "traffic calming zones". This speed bump spans the width of the street and is 3-5 feet deep. The impact is noticeable but not as radical as traditional speed bumps. They are installed in series every several hundred feet to keep traffic at or below 25 MPH. Traffic circles can be installed at intersections to slow traffic. Why not inquire with your local jurisdiction’s street department for traffic slowing options? BACK
Board Rule Making Authority Answer: Governing documents in their original form are often generally worded to allow customization Typically, issues concerning pets, parking and money collection need "fleshing out" to work properly. The board generally has the authority to promulgate rules and regulations that are in keeping with the governing documents. The board, however, cannot enact a rule that contradicts specific rules or policies in the governing documents. And even though the board has authority to make rules, those proposed rules should be reviewed for comment by the members prior to enactment to achieve "buy-in". BACK
Vicious Pet Rules Answer: The board has the authority to make rules but should not do so without feedback from the members. This is especially true of pet issues which are among the most sensitive HOA topics. However, the board does have a responsibility to establish reasonable rules to protect the residents while in the common area from dangerous animals. While rottweilers and pit bulls have a potential for aggressive behavior, there are other breeds and breed mixes that have the same potential. So, policies targeting dangerous pets need to focus on behavior, not breed. Here is an excerpt from a pet policy designed to address this issue: A dog shall be deemed "dangerous" if when unprovoked: 1) Demonstrates aggressive behavior
toward a person in the common area that requires defensive action to prevent
bodily injury; or For more about this topic, go to www.dogbitelaw.com BACK
Member Surveys Answer: The problem with this kind of member survey is that HOA managers do many things that the members have little involvement in or knowledge about. When a member does express an opinion on management, it's often a negative one based on a particular incident when they were personally involved, such as rule enforcement or money collection. Because of this, polling the membership isn't of much value and can actually lead to a distorted perception since unhappy members are much more likely to respond than those that are happy. However, the board should have a mechanism for evaluating management performance since the directors presumably know what the manager is hired to do (if not, reread the management agreement). There is a Manager Screening Checklist in the Manager Issues section of Regenesis.net which can be used to develop a scorecard. BACK
Tenant Rule Violations Answer: The homeowner association only has direct authority to enforce rules, fines and penalties on HOA members so that is where notices of tenant rule violations should be directed. However, it makes good sense to copy both the tenant and the rental manager (if someone other than the unit owner) on the correspondence. That way, all are informed of the issue simultaneously and quicker resolution is more likely. BACK
Increasing Deck Size Answer: No, the board has no authority to do this since it gives a particular owner exclusive use of common area which belongs to all members. Only the members have this kind of authority and it can only be accomplished by amending the governing documents. Approving this kind of amendment may require a significant percentage of the members to pass and should never be done without consulting with an attorney that is knowledgeable about both your applicable state laws and your governing documents. BACK
Manager Counting Ballots Answer: The management company should steer clear of counting votes since there is a conflict of interest. Instead, the board should appoint an Election Committee of two or more HOA members to tally the votes. The votes and the tally sheet should be kept on file until the next election. BACK
Abstention Voting Answer: No. The vote is not counted at all. But not voting may have the effect of a negative vote if a certain number of affirmative votes are required to pass a motion. BACK Toilet Overflows Question: A unit owner called and said their toilet is overflowing. Is the HOA responsible to clean drain lines that cause back ups? Answer: It depends where the back up occurs. If the blockage occurs in a line that serves only one unit, it is common for the unit owner to be responsible for the repair. If the blockage occurs in a common line shared by two or more units, the HOA is usually responsible unless the source of blockage can be traced back to a specific unit. BACK Unit Mold Question: One of our residents has complained of a mold odor within their unit. The board has been investigating dryrot repairs in this building but has not decided on a repair schedule. What should we do? Answer: If the board is aware of dryrot issues in this building and a unit owner has complained of mold issues, the board should order an air quality inspection immediately. If that inspection indicates dryrot related mold, it might be advisable to relocate the resident to other quarters until the dryrot and related mold is remediated. Airborne mold in sufficient concentration can be a real health hazard, especially to those that suffer from asthma and other respiratory ailments. Take this issue seriously and proactively. The source of the mold, of course, could be from a source within the unit itself (failure to use kitchen and bathroom ventilation, resident installed humidifiers, etc.). So, the source of the mold dictates the proper course of action. BACK Countering Rumors Question: We have a disgruntled owner who publishes a newsletter following every board meeting filled with what he calls, "The Real Story". His spin is often inaccurate and filled with implications of wrong doing by the board. This behavior has been going on for years and he has cost the HOA thousands of dollars by delayed renovation projects, CPA audits and other expenses incurred to prove the board’s innocence. No wrongdoing has every been discovered. But several board members have resigned because of the badgering and it is getting difficult to recruit replacements. Suggestions? Answer: America is the land of free speech but free speech does not entitle someone to yell "FIRE" in a crowded theater when there is no fire. And just because a member makes claims does not require the board to react to it. To help counteract his misinformation campaign, the board should publish a recap of the meeting shortly after the meeting to tell the real story. If this person continues to spread lies or defame board members, have the HOA’s attorney send him a letter about the consequences for defamation of character which include charging him with legal expenses incurred by the HOA to put a stop to them. Hopefully, he will understand that there could be a high price to pay. The board should, however, be prepared to take legal action if necessary. Some people are slow learners. BACK Reserve Shortage Question: Our HOA has been in existence for a couple of years. The main entrance is very unattractive and needs lighting and a sprinkler system. The cost of these improvements would be $5000 and we only have $1000 in reserves What would be the best way to handle this? Answer: The governing documents generally provide the authority the board needs to raise money to care for the common elements by special assessment if necessary. But have you done an Operating Budget that includes insurance, utilities, landscape care and other expenses related to this project? Have you performed a reserve study to deal with the long range cost of common the addition? Before moving forward with this, consider the whole expense picture. See Accounting Issues and Reserve Planning. BACK
Upcharging Key Fees Answer: It does make sense from a security point of view that only residents should have smart cards. If extras were easily and cheaply available, they would likely be handed out to friends and relatives. Since security and access are very important to gated communities, the number of smart cards and who carries them should be strictly controlled. $50 does sounds high for a $5 device but regulating and dispensing them does take someone’s time. If someone is being paid to do this and that is their charge, it’s justifiable. If done by volunteers, the price should be the HOA’s actual cost. BACK Home Businesses Question: Our board received a complaint about a resident running a business out of their home. They apparently ship a lot of items and the neighbor wants us to do something about it. Should we ban home businesses? Answer: Banning home businesses is a bad idea since many people do it in a way that has no impact on the neighbors whatsoever. However, controlling how home offices impact the neighbors and the common area is a good idea. The HOA should have guidelines for home offices as they relate to parking, traffic, noise, odors and signs. In other words, control those things that impact the quiet enjoyment of the neighbors or residential character. BACK |
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