Ask the HOA Expert

Quorum Question
Question: Our bylaws state that "a quorum is required to adopt decisions at any meeting of the association". However, our state’s Condominium Act states, "Unless at that meeting a majority of all the unit owners or any larger vote specified in the declaration reject the budget, the budget is ratified, whether or not a quorum is present." Isn't this a contradiction?

Answer: The governing documents usually trump state law but you should check with an attorney that specializes in HOA law in your state. BACK

Special Assessment Authority
Question: Our manager stated that a special assessment would require a majority approval vote by the members. Our bylaws state that if the reserves are inadequate for any reason, the Board of Directors may levy a special assessment.

Answer: Based on your statements, the board has the authority to levy a special assessment without a member vote. However, it’s always wise to hold an informational meeting for the members before doing so to achieve "buy in". BACK

Resident Intimidation
Question: We have a resident who feuds with and intimidates other residents by aiming a video camera at their units and other private spaces. Suggestions?

Answer: This situation falls under the "nuisance" area of rules enforcement. If one neighbor engages in intimidating or illegal behavior toward others, it violates the basic rule of privacy and quiet enjoyment which all residents are entitled to. This owner should be sent a demand letter to cease and desist or risk legal action from the HOA. Also, I believe that this type of private surveillance activity is against most local ordinances so the police might also be brought into bear by residents who are being spied on. BACK

Sewer Backups
Question: We have buildings which occasionally have sewage backups. Should the HOA pay for repairs and cleanup?

Answer: The HOA should maintain common water supply and drain lines and individual unit owners should maintain the plumbing that only serves their unit. You might consider preventive cleaning on all main lines every year to avoid backups. BACK

Collection Alternatives
Question: A number of our unit owners have consistently refused to pay HOA fees. Are there any alternatives you can think of to assist with collections?

Answer: Money is the life blood of every HOA. Getting all of it when it’s due is the board’s highest priority. Fortunately, HOAs are granted substantial collection powers. Your board should adopt an aggressive Collection Policy as soon as possible to get the delinquencies under control. That policy should include late fees, interest on past due balances and legal action for failure to pay. There is a sample policy available to Gold Subscribers of which can be adapted to conform to your governing documents. BACK

Flagpole Regulations
Question: We have a resident that wants to install a 30 foot flagpole. We allow flagpoles, but can we regulate the size?

Answer: An HOA with proper architectural and design authority can regulate the size and location of flagpoles on member property although not ban them. They can be prohibited entirely from the common area. But the board might consider installing a community flagpole in the common area and appoint a Flag Committee to manage and maintain it. This will give those that have strong feelings about it a way to express themselves and may dissuade individual owners from erecting their own. BACK

Diapers in Pool
Question: What actions can be taken to prevent a tenant from circulating a petition against a Board decision to prohibit diapered persons from swimming in the HOA’s pool and spa?

Answer: American citizens have the right to circulate petitions for any legal reason. Tenants, however, have no legal standing with a homeowner association so the board is not obligated to respond. But that aside, the board policy is valid since it addresses a health risk to residents. See www.cdc.gov/healthyswimming BACK

Rental Restrictions
Question: Our area zoning is restricted to single family dwellings. With that in mind, the board would like to prohibit HOA rentals to unrelated parties. Is that allowable?

Answer: Applying zoning regulations to an occupancy rule is not appropriate and violates federal Fair Housing Act regarding "familial" status. However, restricting the total number of occupants is allowable. For example, having twelve people in a two bedroom condo is not practical for many reasons including noise level, parking overload and common utility usage.

The most important issue for the board should be if a resident, whether owner or renter, is disturbing the neighbors, not maintaining the property or damaging the common elements. If HOA rules are being violated, the board has the right and duty to enforce them.

In the case of rentals, the HOA only has legal authority over owners. If there is a renter violation, the landlord should be informed of the violations and penalties which apply. If the renters continue in violation, the landlord should suffer the consequences personally. And ultimately, the board can pressure the landlord to evict a problem tenant because rental agreements allow it. That process is much more difficult with an owner. BACK

Board Member Shuffling
Question: We are holding an election for two board positions and have another director who plans to resign her position at the Annual Meeting. What should we do?

Answer: If this director resigned before the meeting, the board would appoint a replacement for the remaining term or the next election depending on what the governing documents say about it. But under these circumstances, the board should seek a candidate for election to the resigning director’s position to fill the remainder of that director’s term. BACK

Board Correspondence
Question: Should correspondence between board members be confidential? We have a board member whose spouse reads internal board discussions and shares them with other residents.

Answer: The answer you were looking for was probably "No" but there is a bigger issue here. Unless your governing documents allow such "internal" correspondence, board business needs to be transacted in a meeting forum that is open to the members. This means using email and phone to transact business is usually not allowed, (although some states like Oregon have recently made email and phone meetings allowable). So, yes, this spouse and all other HOA members are probably entitled to read the board’s internal communications because they involve HOA business. And these communications should be handled in an open meeting. BACK

Rule Violation Appeals
Question: Our rules enforcement resolution provides for a hearing before the board if the alleged violator contests the Violation Notice. We are currently facing the prospect of our first such appeal hearing. Is there a correct format or procedures for this type of hearing?

Answer: The appeal hearing needn’t be overly elaborate. The accused should be granted a meeting with the board to appeal the ruling. If convincing evidence is provided, the board can and should rescind the violation. If not, the board should deny the appeal in writing. BACK

Board Collection Discretion
Question: Is it okay for a board of directors to determine who to exempt from monthly assessments and or late fees based on claims of financial hardship? Should the other members be made aware of this policy?

Answer: The board does not have the authority to exempt anyone from the collection policy. As a matter of fact, the board has the duty to enforce the collection policy on all members regardless of hardship. This may seem harsh but there is no free lunch and if all don’t pay, it puts the shortfall on the rest. If the board gets a member vote to waive the collection policy, that is permissible. HOA members can do anything they are willing to pay for. BACK

Enacting Standards
Question: Our board recently appointed an Architectural Review Committee (ARC). The subject of retractable awnings has come up and the board is currently approving guidelines. However, one has already been installed illegally and does not conform in color and style to the standard. What should we do?

Answer: Since no other awnings have been installed, the board could simply make this violation the standard style and color and kill two birds with one stone. If it is substantially different than the desired standard, then requiring removal and replacement with the standard is the indicated course of action. This is also a great time to communicate to all residents the purpose and authority of the ARC and that approvals involving new standards can’t happen over night. Any architectural approval request that involves establishing a new standard should require at least a 30 day review so that adequate thought and consideration can go into the decision. BACK

Board Appointment Timing
Question: The old board resigned and appointed a new board to replace it without a vote of the members. Can it do that?

Answer: No. A current board can appoint someone to a board vacancy but it cannot appoint someone to a future vacancy, especially to replace an entire board. Or said another way, once the board has resigned, it has no authority to appoint anyone to anything. A new board needs to be elected by the members at a meeting called for that purpose. BACK

Expanding Common Elements
Question: The board bought one of our units with HOA funds without putting it to a member vote. Is that allowable?

Answer: Unless the governing document specifically grant that authority to the board (extremely rare), the answer is "No". Any time common elements are expanded, it takes a vote of the members and possibly the member’s mortgagees and that vote may require a super majority (like 2/3, 3/4 or even 100%). BACK