Excluding Votes
Question: Our homeowner association recently adopted an amendment to the governing documents limiting the number of rental properties. The board prohibited voting by members who were in arrears. Does the board have this authority? And, if so, can the board discount those votes when calculating the votes required (75% in our case) to amend the governing documents? Our board has been very aggressive in issuing fines and penalties and declared 50% of the members ineligible to vote. So, the votes that were allowed constituted only 50% of total votes. Of those, 40 (90%) voted in favor of the amendment so the board declared the amendment passed. Is that legal?

Answer: Taking away an HOA member’s right to vote can only be done if the governing documents allow it. Since a member’s right to vote is a fundamental owner right, this kind of restriction is rare. And the board never has authority to invoke voting restrictions on its own. From what you describe, this board acted improperly and should be called on it as soon as possible. If it is not held accountable for this kind of chicanery, who knows what kind of dictatorial behavior may follow? BACK

Badgering the President
Question: We regularly publish in our newsletter to contact the property manager with questions or concerns, yet the president continues to get calls. What can we do?

1. The president should not take or respond to calls or agree to pass them on to the manager. A simple, "Thanks for your call but please contact our manager directly with your request at xxx-xxxx or manager@email.com" works well.
2. The president should get a caller ID device and not pick up calls from repeat offenders.
3. The president should have a voice mail message that includes "if this call concerns HOA business, please contact our manager at xxx-xxxx or manager@email.com".
4. Remove board member phone numbers and email addresses from newsletters, notice boards, etc.
5. Get a free HOA email address like hoaboard@gmail.com to route inquiries to the manager.  BACK

Committees Covered by D&O?
Question: We have a grounds committee that has broad decision making authority and management tasks regarding the landscape contractors. Are committee members covered under an HOA's director and officers insurance policy?

Answer: All HOA volunteers are covered under D&O insurance unless specifically excluded. BACK

Parking in Fire Lanes
Question: We have a big problem with residents illegally parking in our designated fire lane. Many do this because they are using their garage for storage and are too lazy to walk to a designated parking area. A local towing company has offered to paint the curbs red and stencil FIRE LANE on them for free if the HOA buys the paint. They will also monitor the area at no cost and automatically tow vehicles parked in the fire lane.

Answer: The board should accept the towing company’s offer and have them schedule the painting several weeks away. In the meantime, notify all residents and owners in writing (email, mail, flyer, etc.) that for life/safety reasons, on such and such a date, the curbs will be painted red with FIRE LANE and towing signs posted. After that date, all cars parked there will be towed without warning and offenders will have to all pay towing charges. Advise also that the same policy applies to guests, contractors and other non-residents, and that the board will make no exceptions.

To make the policy effective, the board should, at least initially, advise the towing company when there is a violator since the towing company can’t provide a 24/7 presence. The faster a car gets towed, the faster violators will "get it". Once a few cars get towed, the word will get around and put a stop to most future violations.

Also, the board should adopt a Parking Policy that restricts using the garage for storage when that storage displaces vehicles to the street. Each resident should be strictly limited to the number of cars that will fit in the garage and driveway. Also, no residents should be allowed to use designated parking areas which is typically reserved for visitors. Since HOA parking is usually sparse, it is very important not to allow residents to commandeer the spaces. BACK

Including Petitions in Minutes
Question: Since our HOA has no reserves, the board asked the members to approve a sizeable loan for new roofs and painting. The required majority of 75% voted in favor. To repay the loan required an increase in monthly fees of 25%. Those that voted against the loan were livid about the fee increase and presented a letter to the board which they wanted included with the board meeting minutes and distributed to all the members. Are we required to do this?

Answer: No, the letter should not be made part of board minutes. Board minutes should only reflect business decisions made by the board. The record about the loan speaks for itself; 75% voted for it and 25% either voted against it or failed to vote. The fact that the minority wants its opinions memorialized in the minutes is immaterial. Board minutes are the record of board actions, not discussions or opinions.

That said, it is usually a very bad idea for an HOA to borrow money since the loans are difficult to get and very expensive. Most owners have the option of paying their share in cash from savings or a home equity loan which usually offers the best rates and terms available. The HOA should stay out of the finance business whenever possible.

Also, your board should take immediate action about the lack of reserves so this situation does not have to be repeated. Having a long range repair and replacement plan called a reserve study is essential for the board to do proper planning and budgeting. The reserve study typically has a Funding Plan which instructs the board how much money should be set aside each year so money will be available for expensive repairs like roofing and painting. The best funding plan collects a fair share from each member along a (typically) 30 year time line so that no one has to pay more than they should. For a list of credentialed reserve study providers, see the Association of Professional Reserve Analysts website at www.apra-usa.com BACK

Pet Weight Limit
Question: I have often wondered where the pound limitation came from in HOA pet policies. I have always considered small, yappy dogs to be more of a nuisance than larger dogs that don't have the usual frenetic personality of smaller dogs. The only vicious dog I have ever owned was a miniature dachshund. Wouldn’t it make more sense to control the behavior and not size of the dog?

Answer: Most pet restrictions have more to do with noise and wear and tear of the common area and less about aggression. But when it comes to aggression, dachshunds may bite but pit bulls can kill. So there is a deadly difference when it comes to size. Certain breeds have a reputation for aggression. While it’s not true in the case of every dog within a breed, pet policies often err on the side of caution. In any case, pets are a politically charged issue so the board should consider opposing views before enacting any new policy.  BACK

Answer: The board should compose and adopt a Maintenance & Insurance Areas of Responsibility Policy which defines responsibilities HOA vs Owner. The idea is to break down the buildings and grounds into component parts and then describe who is responsible. Always review and use the governing documents as a guideline if direction is provided. While the Areas of Responsibility Policy can be subject to interpretation under certain circumstances, it usually provides clear guidance to both the board and unit owners. Moreover, it provides the board with the basis for consistent handling of maintenance issues. Another benefit is it clarifies for the HOA’s and unit owners’ insurance carriers what things the HOA is responsible for and eliminates claim disputes. This is a "must have" policy in any common wall community. There is a sample of this policy in the Policy Samples section.   BACK

Answer: Have you been in contact with this person’s relatives to ask for their help? If there are no relatives or they refuse to help, your attorney needs to file a civil lawsuit and ask the judge to mandate remedies like mental health treatment, a restraining order, etc. The fact that this person has violent tendencies cannot be ignored. Unfortunately, the court route may take longer than you would like but you simply have to stay the course and assume the court will provide a permanent answer to this. In the meantime, continue to have him arrested if necessary. It will only strengthen your case once the matter makes it to trial. BACK

Answer: Since daylight hours change daily, either longer or shorter, it makes sense to tie pool hour closing to dusk or 10 pm whichever comes first. (Due to noise concerns, the pool needs to close at a reasonable hour unless the location of the pool doesn’t create a noise issue. ) For the same reason, establish a pool opening schedule to avoid disturbing people who may still be sleeping. Of course in Alaska, the Land of the Midnight Sun, all bets are off. The pool is probably frozen anyway.  BACK

Answer: Yes, prior to turnover, the developer controls the board and can grant himself an "extenuating circumstance" although this would be a clear conflict of interest. Since the developer controls the board, it puts a lot of responsibility on the developer to govern equitably meaning he should not grant himself special favors. But developers want and need to sell units and sometimes bend the rules when necessary to make a sale. It often comes in the form of granting a buyer some special right (for example, like installing a fence) that is prohibited in the governing documents. In most cases, these are verbal agreements since the developers know it will come back to haunt them if they put it in writing.

Usually, the rules developers bend are minor since major ones could have some nasty consequences when the turnover board takes over. If a developer is grossly out of line during his control period, the new board can hold him legally and financially accountable (read "sue him").

That said, during down real estate markets, developers are forced to do things they did not plan to do, like rent units, until the market recovers. Failing to take measures like these would likely force the developer into bankruptcy or foreclosure by the bank. Banks are generally not good substitutes for the developer so it may behoove the current owners to be somewhat flexible with the developer if he is struggling but doing his best to fulfill his developer obligations. BACK

Answer: The board should deal with most HOA business (except legal matters, contract negotiations, private collection matters and a few other topics) at open board meetings. Part of the disruption issue may be related to how the board seats itself at board meetings. If the board is sitting firing line style facing the audience, it encourages the audience to engage and interrupt since board comments are aimed at the audience. If this is the case at your meetings, the board should reorient itself around a conference table large enough for that purpose and seat the audience elsewhere but not at the conference table.

Regardless of the seating arrangement, if the board president is not effective in restraining members of the audience that interrupt, the problem will persist. The issue can be handled tactfully in a short statement preceding the opening of every board meeting where there is an audience by simply stating "Please remember that this is a board meeting, and that the audience is not to interrupt unless asked to speak by the Chair." The Chair, of course, must quickly seize control if an interruption happens and ask the person to leave if they do not cease and desist. If your Chair is not up to this task, someone that is should run the meeting. BACK

Answer: Dealing reasonably with confrontation at board meetings is a basic duty of the president. A vice president should only assume this duty if the president is absent. The president cannot transfer his authority to someone else. It has nothing to do with parliamentary procedure. The president needs to maintain control over the civility and tone of the discussion. If he is not up to the job, he should step down and the board should appoint someone else, like the VP, who is.  BACK