Ask the HOA Expert

Director Understudies
Question: Many of our members spend the winter months in Florida or Arizona. Since board meetings take place during their absence, it limits their ability to serve on the board. We are thinking about having understudies who could stand in for directors who are out of town. What do you think of this plan?

Answer: Directors need to regularly attend meetings to stay informed of the issues. An understudy would need to attend all the same meetings to be adequately informed to cover for an absent director. In most HOAs, it's difficult enough to get the elected directors to attend. It would make more sense to amend the bylaws to allow board meeting teleconferences. It’s fairly common in HOAs which are second homes to many members. BACK

Shutting Down Amenities
Question: How can we shut down or discontinue amenities that few members use like hot tubs and tennis courts?

Answer: You need to read your governing documents and state HOA statutes for provisions relating to discontinuing amenities. If there is nothing prohibiting it, an appropriate vote of the members (whatever the governing documents indicate) is enough to get this done. The board may have the authority to do this but it is always recommended that such action be put before the members. BACK

Comments in Minutes
Question: We recently had an incident where a member’s dog bit another resident. There was a discussion at the next Board meeting about whether the HOA’s pet rules needed to be amended. A committee was appointed to research and make recommendations.

Following the discussion, one of the board members made a comment that if any dog threatened him, he would kill it. Should this comment be recorded in the minutes?

Answer: The comment was clearly inappropriate, especially for a board member. And, no, it has no place in the minutes since the minutes are a record of board business, not discussions or comments. Since this comment has nothing to do with board business or HOA policy it would only confuse those reading the minutes and likely outrage dog owner members. Nothing good would come of it.

The outspoken director should be strongly advised to keep such comments private and out of the board meeting. The directors are elected to handle HOA business in a reasonable way. If this director is prone to such behavior, it will not serve the HOA or board well. BACK

Director Abuse
Question: We have several individuals who complain about board decisions and rudely intrude into director homes at all hours of the night to "discuss" their views. Do you have any suggestions on how to protect the board members from being punching bags?

Answer: To protect director privacy, The policy should be that all comments and complaints need to be in writing and written by the communicator. Neither the board members or the manager should accept phone calls or verbal instructions to "tell so and so, etc." Advise the member to write it down and drop it in the suggestion box, mail it to the HOA’s address or email it to HOA’s email address.

When put in writing, the board and manager can effectively deal with it either sooner, if it is urgent, or later at the next board meeting, if it requires discussion. If the HOA has a committee system (Landscaping, Rules, Social, etc.), those communications can be directed to the appropriate committee for further action.

Once the written requirement is invoked, make sure to respond to all communications in a timely way. This system will create problems if written requests, complaints or communications disappear down a "dark tunnel" never to be seen again.

Having a written requirement will drastically reduce the number of communications since writing is more difficult than speaking. Once members are informed of the process, the board members need to respectfully but firmly refuse to receive phone calls or personal visits. In time, the members will understand the need for the written process and potential board candidates will be encouraged to run when they know their privacy is protected. BACK

Mentally Ill Resident
Question: We have a resident owner that is paranoid schizophrenic. He vandalizes the common areas, steals property and verbally assaults the residents. All in all, he poses a significant danger. We have filed police reports and obtained a court order requiring a mental evaluation. The doctor keeps sending him home. We are in the process of amending our governing documents to deal with this kind of situation and we’re back in court to obtain an order to move him off the property. We’re at wits end.

Answer: These kinds of situations are extremely frustrating but it sounds like your attorney is handling it properly. Dealing with mentally unstable people is never easy and courts are reluctant to pass judgment without professional input. Has the board sought out and contacted relatives that might intervene without the need for court action? If there are relatives that can simply take care of what needs to be taken care of (like making alternate assisted living arrangements), much time and expense can be saved.

It is useless to amend the bylaws for situations like this. Some issues simply need to be dealt with on their own merits as difficult as that process might be. Mentally unstable people don’t play by the rules. BACK

Selective Reserve Funding
Question: For many years, the board has not enforced architectural and design restrictions. Consequently, many unit owners have installed storm doors and/or changed the exterior light fixtures on their units. There is now little or no conformity regarding those additions or changes. Our recent reserve study shows that we are woefully underfunded, so conformity is the least of our worries! Should the board ignore reserving for these items and move forward until we are financially solvent? Will the non-conformity affect property values? Is a little individuality such a bad thing in an HOA?

Answer: Yes, your board should reserve for these items for a number of reasons:
1. The HOA is responsible for doing so since it affects the common elements.

2. Non-conformity does reduce property values in common wall housing since the additions vary in quality and, frankly, some additions look awful (no accounting for taste).

3. Individuality should be limited to the unit interior. That is what the governing documents allow and if adhered to, no one will object other than guests.

4. The board has no authority to allow owner changes to the common area. Doing so does not legitimize the action, it only complicates enforcement for future boards and exposes the directors who approved such to personal legal liability for exceeding their authority. BACK

Resident Directing Landscaper
Question: A homeowner at our HOA recently presented a written work order to the landscape maintenance company. The contractor performed the unauthorized task which also happened to be beyond the scope of their contract. Can the HOA be held responsible for payment of unauthorized work? Should the owners be held responsible for directives given to contractors who have been hired by the HOA?

Answer: The homeowner ordered the work, the homeowner pays the contractor’s bill. If the work impacts the common area and is not in compliance, the board should have it corrected, if possible, and bill the homeowner. Advise the homeowner that no further communication should take place directly with the landscape contractor. The board should also inform the landscape contractor that the HOA will pay for no work unless it is approved in writing by an authorized HOA representative. BACK

Reserves & Special Assessments
Question: I recently became a board member. Previous boards for over ten years have failed to plan and properly budget so we have no reserves. The board decided to have a special assessment of $1000/unit to boost the balance in reserves. We are also in the process of having a reserve study done. We are already getting blowback from members on the special assessment. One member questions whether we need to continue operating the swimming pool since it is lightly used. Another suggests selling off the clubhouse to raise money. How should the board respond?

Answer: There are several issues here:
1. Special Assessments. It's best to have the reserve study done first to determine how much money is needed and how soon. The board wouldn’t want to have to do two special assessments close together.

2. Closing the Pool. Operating a pool is one of an HOA's biggest expenses. If a majority of the owners no longer want to pay for it, it may be time to discuss other options. Of course, you need to read your governing documents to see what the process may be, if any, for discontinuing an amenity. Shutting down an amenity may require the consent of the mortgagees. If only a vote of the members is necessary, it may be possible.

3. Selling the Property. This is a much more complicated issue that needs to involve an attorney. It may require 100% agreement of all the owners and their mortgagees.

Just because an owner comes up with a bright idea doesn't mean the board needs to spend time and money chasing down all the details. I would suggest you put these unit owners to work investigating the feasibility of their suggestions. First, a petition should be circulated to the members to see if there is significant support for closing the pool or selling the clubhouse. If a significant number are in favor, say at least 25-35%, it's reasonable to schedule a special meeting to discuss the topics. Be sure to discuss the process with the HOA's attorney to make sure it conforms with applicable state statutes and the governing documents. BACK

HOA Manager Checklist
Question: Our management company seems too busy to handle our HOA business. The board wants to evaluate other management options. Is there some form or checklist we can use? There are many management companies. How do we determine which one is best for our needs?

Answer: Changing managers should be a last resort since every company comes with strengths and weaknesses. The board should discuss specific concerns with the current manager to see if expectations can be aligned. If the manager agrees, she should be given a reasonable time period to accomplish the changes. If the manager is not interested or able to comply, beginning the search for a new manager should start with the goal of making a change within three to six months. This kind of transition is complex and the board should take its time.

Managing HOAs is a specialty. While there are many real estate management companies, there are relatively few that do this kind of work. Do not consider any that don’t specialize in it and have the clients to prove it. You will want a list of references from HOA clients comparable to yours.

Develop a scope of work. HOA managers charge according to the tasks outlined in the Management Agreement. The more you ask of them, the more they charge. Regular management tasks include:

1. Financial reporting, collections and bill payments.
2. Supervision of maintenance and contracts.
3. Rules enforcement.
4. Attending meetings to advise the board.
5. Responding to information requests (if it involves a unit sale, it usually carries additional charge).
6. Processing insurance claims (may involve additional charge).

There is a HOA Management Screening Checklist in the Manager Issues section available to Gold Subscribers. BACK

Sound Transmission
Question: My unit is on the ground floor. When I bought and moved in to my condo seven years ago, the upstairs unit was carpeted except for the bathrooms, foyer and kitchen. But recently, the upstairs owner switched to hardwood flooring. I can now hear footsteps and other noise coming from upstairs at all hours of the day and night. I notified both the upstairs owner as well as the board but nothing has been done to correct the problem. What can I do?

Answer: You have the right to peace and quiet. If the upstairs owner wants hard surface flooring, an appropriate sound barrier should have been installed under it. There are options for soundproofing your ceiling like QuietRock www.QuietSolution.com that may be cheaper than fixing the neighbor’s floor but in either case, the cost should rightly be borne by the neighbor who created the need for it. Press the issue with your neighbor, with an attorney if necessary, until appropriate measures are taken. The board should also enact a detailed policy on unit flooring to avoid a repetition of this predictable problem. BACK