Ask the HOA Expert

Meeting Choreography
Question: How does the Board choreograph a meeting if not allowed to meet privately in advance? We have always scheduled work sessions every other month prior to the open board meetings. Some members are calling us on it. Some board members have said they will resign if they have to face a room full of homeowners every month especially if we have to allow them to talk as the law requires.

Answer: The choreography of a meeting is called a "Meeting Agenda". The board is always allowed to formulated an agenda ahead of the meeting. The board is not permitted to discuss or make decisions concerning the agenda item content outside the meeting venue. An agenda can be discussed and approved by email, phone, face to face or any other means. BACK

Handling Verbal Complaints
Question: What’s the best procedure for filing a rule violation complaint with the HOA? We are getting bombarded with verbal complaints.

Answer: It depends on what the nature of the complaint is. If it is a noise issue, the affected resident should first be required to address the issue in person with the offender (unless there is a threat of violence) keeping a record of the issue, date, time and what the response was. If it happens again within a short period of time, say, one week, an email or letter should be directed to the board/manager with the details for further action.

If the issue involves something like parking, roaming pets, an email or letter should be directed to the board/manager with the specific details.

Do not take complaints verbally either in person or over the phone. They’re too easy to pull off. Require it be put in writing that includes all the details. It will generally reduce the number of complaints and put the issue in the complainer’s own words to eliminate misunderstanding or misinterpretation. BACK

Proxy Protocol
Question: Our HOA sent out notices for our Annual Meeting by both regular mail and email. Our president prepared and sent the email notice and proxy without approval from the board. In the email notice, the president wrote that responding "Yes, a board member" was enough to assign their proxy to a board member. Is that allowed?

Answer: Transacting HOA meeting business by email may or may not be allowed by your governing documents or state statutes. Even if it is, a proxy needs to be in writing and carry the member’s signature to avoid fraud unless your HOA members have approved the kind of email proxy you describe. The board (or president) has no authority to make up new standards for how proxies are handled. BACK

Changing Fee Allocation
Question: We divide our expenses equally however, the master insurance policy premium is being allocated according to unit square footage which varies. Is that okay?

Answer: Unless the governing documents specifically permit a special allocation of insurance premiums, they should be allocated the same way as other expenses. Another common allocation error occurs where expenses are allocated according to a square footage formula and a special assessment is assessed equally. Regardless of the type of assessment, the same allocation formula should be used. The board has no authority to change how expenses are allocated and changing this usually takes 100% vote of all members. BACK

Individual Unit Roof Repair
Question: Can individual unit owners prepay their fees in order to fix just their unit’s roof or deck?

Answer: Condo owners typically don’t own roofs unless they are detached units like houses. In attached condominiums, the roofs belong to the HOA. As such, roof repairs and replacements should only be paid for by the HOA according to a prescribed schedule. While lack of funds may force doing only a portion of the roofs, like two of five buildings, replacing the roof over one condo makes little sense since the same unit owner is responsible for a share of the repairs of all unit roofs. So, no, the board should not cooperate or agree to such an arrangement. BACK

Pool Policy: No Alcohol
Question: Recently, the board enacted "no alcohol in the pool area" rule. This elated some and offended others. The issue soon became hotly contested. Eventually the board agreed to rescind, but did so by stating that it would continuing to research the issue. What do you recommend?

Answer: Common areas belong to all owners and the HOA has every right to control certain kinds of behavior, especially where there is risk involved. Allowing alcohol around a pool is asking for trouble. Who is going to monitor those that abuse it? Drunks are often loud, abusive and may decide to swim while inebriated. There is also the issue of broken glass which is a safety issue to one and all. The glass issue, of course, extend to other types of containers.

This is a good topic for discussion at a special or annual meeting. The board should get a good read on what the majority think. If there is no clear consensus, the board should monitor the alcohol use and, if abuse is frequent, revisit the ban based on historical evidence. There is no Constitutional Right to drink in the common area. BACK

Board Recommending Candidates
Question: Several Board members have asked if it is proper for the board to officially recommend a slate of candidates for the upcoming election. I have read the bylaws and I don't see anything that addresses this issue.

Answer: It is perfectly acceptable for the board to appoint a Nominating Committee to solicit candidates that are in good standing. (Good Standing: There may be a bylaw restricting members that are delinquent or that have unresolved rule violations.) But otherwise, since every member in good standing has the right to run for the board, the board should generally avoid steering the election.

Providing candidate bios and their statements usually provides the voters the information they need to make an informed decision. On the other hand, if your HOA has a large number of owners that don’t participate in the annual meetings and elections, board members could solicit their proxies to obtain a legal voting block large enough to swing the vote. The board needs to be careful how it handles such things so it’s not accused of using undue influence or rigging the election. BACK

Charging a Committee
Question: We have just formed a number of committees, some ad hoc and some standing. One of the standing committees we have not yet activated is called "Governing Documents Committee". We are rethinking the wisdom of this committee as some members have "agendas" that they will likely try to impose to change the declaration, bylaws and rules.

Answer: All committees should have specific direction (marching orders) from the board. Otherwise, you’ll probably get something you didn’t want. Governing documents are complex and must adhere to state statutes. While it’s fine to make recommendations, it’s up to the board to decide if they are worthy and, if so, it’s up the HOA’s attorney to determine if they’re legal. BACK

Common Area Standards
Question: Are the common areas of our HOA governed by the same rules and regulations that the members are governed by? Example: If the rules state that a homeowner cannot install a fence on their property higher than four feet and that fence can only be constructed of wood, do the fences around common areas have to comply with these same guidelines?

Answer: No, common area fence standards can and should be different since there are different considerations than neighbor fences. For example, common area boundary fences are often taller and more durable (like chainlink) which would not pass the curb appeal test. BACK

Enacting Rules
Question: Can our Board of Directors enact rules or can it only enforce rules that are outlined in the governing documents?

Answer: The board can enact a rule by virtue of its authority as long as it does not contradict specific language in the governing documents. BACK

Unrecorded Bylaws
Question: Our bylaws were updated several years ago but were never recorded. Are those updated but not recorded bylaws enforceable?

Answer: Generally, only recorded bylaws are enforceable but you should get an opinion from a qualified attorney in your state. BACK

Neighbor Rule Violations
Question: I rent out a house in an HOA. My renter has sent me numerous emails about the neighbors letting their dogs run through his yard. I have spoken with these residents yet the complaints continue. How would you handle this issue going forward if you were the manager?

Answer: You have done the right thing by communicating with the neighbors first. However, since they did not respond appropriately, you should turn the matter over to the board for further action. Provide the board with the written evidence, dates, etc. BACK

Wind Damage Insurance
Question: Our current policy excludes wind damage and a recent tornado took out many of our large trees. Our board is considering purchasing wind damage insurance for our trees and shrubs.

Answer: Whether you buy wind damage insurance or not is a matter of cost. If it’s cheap, buy it. But if the need for it is infrequent, consider establishing a five year reserve fund for Tree Replacement based on the last five years’ expense. If you don’t spend it, it’s money in the bank. BACK

Determining Management Fees
Question: We are considering hiring a professional HOA management company. How are management fees determined? Is it similar to rental management?

Answer: HOA management fees are generally expressed as a flat monthly fee based on a charge "per door". The per door fee cost varies a lot based on the kind of services the management company is providing and which company employee is needed to execute a particular service (manager, bookkeeper, maintenance, office staff, etc.)

The management company generally estimates the average time per month it will take to attend meetings, generate financial statements, respond to calls and correspondence, enforce rules, inspect the property and other routine services the board contracts for. There is usually additional charges for special tasks like providing information to lenders, overseeing insurance claims, preparing for litigation, etc.

Since identifying what is and what is not included in a Management Agreement is critical to avoid misunderstandings, overcharges by the management company and unrealistic expectations from the board, having a well written and comprehensive Management Agreement is essential. Such is available in a customizable form at www.Regenesis.net in the Manager Issues section. BACK