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Ask the HOA Expert
Q&A |
| Dissolving an HOA Question: Since homeowner associations are set up to be run by a minority who like to stick their noses into everyone’s business, how do we go about dissolving ours? Answer: Homeowner associations have the same strengths and weaknesses as our federal, state and city governments. It is unlikely you could dissolve yours unless you got 100% of all owners to agree. HOAs are not designed to be intrusive. It sounds like the main issue is who is currently on the Board, not the system itself. Have you thought about serving on the Board to point it a new direction? BACK
Amending the Meeting
Minutes Answer: You can request that the minutes be amended if you believe critical information was left out or recorded improperly. If the misinformation is glaring or may have been done intentionally, it is fair to ask if there was a motive behind it. The minutes should be clear and accurate so that someone not attending the meeting would understand what was discussed and what actions were taken. While it’s common for the manager to record minutes, I don't recommend it. Managers are hired to advise the Board. If they are busy taking minutes, the consulting aspect suffers and the Board loses a great value. Recording minutes is not difficult and the elected secretary should do it. The minutes need only include agenda items of the Board Meeting. That is why Homeowner Forums are often held prior to the start of the meeting. If an owner has a concern that requires Board action, a request should be made to include the item in the meeting agenda. The agenda is assembled in advance so the request should be made early enough to be included. Many such requests require forethought for the Board to make a decision. If your request requires background information to understand, it should be included with the agenda so the directors have time to review and ponder it. BACK Confidential
Discussions Answer: It is not advisable for the board to disclose names of delinquent or rules violating owners. Naming names could lead to libel lawsuits that the association certainly doesn’t need. Discussion of amounts owed, collection and enforcement efforts, however, are certainly in order even in the presence of non board members. Owners are entitled to know if there are significant issues that impact the association. BACK Maintenance
Responsibility Answer: Typically, the owner is responsible for maintaining plumbing lines that serve only the owner's unit while the association maintains common plumbing lines (unless the governing documents read otherwise). If your problem lies in a common line (serves multiple units) the association should be repairing the damage. If the line serves only your unit, it’s your responsibility. Regardless, it sounds like the line should be cleaned out periodically as a preventive measure. It’s much cheaper than the alternative. To eliminate confusion on responsibility issues, it’s a good idea for the Board to adopt an Areas of Responsibility List. With this list, owners can properly advise their insurance agents of what things the insurance needs to cover. BACK Maintaining
Uniform Appearance Answer: The
reason for the association maintaining control over the exterior appearance is two fold: Some changes like air conditioners, whether roof mounted, on the ground or through the wall cause other problems in the common area like heat, noise, leaking in the walls, roof leaking, etc. The board should think through each new modification carefully as to both the curb appeal and maintenance issues. BACK Handymen Answer: If you are hiring someone to do work for the association, that person should be properly licensed, bonded and insured. No exceptions. Remember that the board is acting on behalf of all the members and needs to run the association in a businesslike and ethical manner. BACK Who Pays Unit Flood Damage? Answer: Depends. Some homeowner association insurance policies pay all claims. If your access to association insurance is restricted by the association then the claim would fall on you or your neighbors’ insurance. In that case, unless there was negligence on your part, your neighbor’s insurance should pay. While the neighbor may not like it, that is what insurance is for and all owners are responsible for having it for reasons just like this one. BACK Who Pays for Broken
Windows? Answer: Usually the repair and replacement of doors and windows in a homeowner association are an owner's repair and replacement responsibility regardless where the damage originated unless an association maintained component was the cause of the damage. In that case, the association should rightly do the repair. Otherwise, you pay. BACK Storage
Sheds Answer: No. The governing documents prevail. Board policies can only supplement and cannot conflict with them. The association will have to amend the governing documents to allow shed construction. After voting, approving and recording such an amendment, the Board should draft clear criteria for the size, material and location of permitted sheds. Question: Our community is comprised of townhomes with small lots. The association's governing documents allow construction of sheds on the lots. Several homeowners have obtained approval from the architectural control committee and constructed sheds in their rear yards. However, the Board now believes that the sheds are an eyesore. Can they require these homeowners to remove them? Answer: Because the declaration permits sheds and these homeowners have obtained proper approval, the Board can’t require removal. In fact, even if the association amends its documents and bans sheds, this amendment will apply only to future shed construction and cannot be retroactive. Question: The association's governing documents prohibit homeowners from constructing sheds on their lots. Despite this, several were built about 4 years ago. Unfortunately, prior Boards failed to enforce the restrictions. What action can our current Board take to require removal of these sheds? Answer: The only action that the Board can take is to send letters notifying of a violation and request removal. Because so much time has elapsed, a court would not require these homeowners to remove their sheds. The Doctrine of Laches states that the Association has in effect "sat on its rights" and will prevent the association from enforcing its covenants. Also, because these violations are over three years old, the statute of limitations has expired and any action against these homeowners would not be considered timely. While not much can be done about past mistakes, the Board may take action to enforce any violation that is less than three years old. BACK Noise
Transmission Answer: If a building is initially constructed with condo or co-op ownership in mind, soundproofing is included. Apartments converted to condos often have inadequate soundproofing in the walls and floors which inevitably trigger noise complaints. Dictating what kind of flooring an owner has will be challenged. There is also the issue that some neighbors are ultra sensitive to noise and nothing will satisfy them. However, if the noise complaints are reasonable and widespread, it may make sense for the association to foot the bill for sound proofing. It will be an expensive but permanent solution. After all, peace and quiet is a high priority and fundamental to market value. BACK Approving Management Answer: Change in property management companies should only be done with extreme care. Is the issue one of personality that can be addressed by change of manager and not company? Has the property manager been notified in writing of specific grievances or breaches of agreement and been given a reasonable chance to correct them. I say this because it is common for boards to expect a management company to handle everything for a basic management fee. This is not possible nor realistic. While most managers want to do a good job, the job is enormous to begin with. Adding more work will dilute the quality of service. So, some questions to ask yourselves: Is the board requesting service that it is not paying for? Has the manager been given a fair chance to respond to complaints? No management company is perfect. Going to a new company will mean a whole new learning curve and potentially not doing any better (maybe worse) than the first. Just make sure that if you are making a move, there is no other way. If you do, make sure to carefully check the credentials of the new company. There are few companies that specialize in this kind of management. Consider only those that do. Usually the Board has the power to hire and fire the management company. However, since it is a major thing, I recommend polling the owners before making a final decision. BACK Parking Guidelines Answer: Here are some rule making basics using parking as an example: 1. All rules should be necessary. Why have a rule if you don't have a problem? Rules need not be numerous or voluminous, just applicable. Since parking is a limited and a seemingly shrinking commodity, rules are needed. 2. Rules need to be clearly communicated. Since ownerships change and people have rule amnesia, it's necessary to periodically remind them of critical rules through newsletters, postings and the association website (hopefully there is one). 3. Since parking rules can affect guests, signage at the community entrances needs to clearly describe the Parking Policy. 4. The punishment should be consistent. "Tow Without Warning" works because it's not up to an enforcement committee to witness the infraction or make a decision about enforcement. With parking, this would be a 24/7 job. Many rules fail when subject to multiple warnings and erratic enforcement. If the policy is clearly stated by signage and reinforced by periodic communications, why is it necessary to repeatedly warn people? Most folks are smart enough to understand why parking restrictions are needed and willingly comply. For those that refuse to comply, towing works. Occasionally, the towing company will get overzealous or make a mistake. This is not a reason not to have the policy IF there is a real problem. 5. The punishment should fit the crime. While towing may be excessive for some association, it may be entirely appropriate when local business customers use association parking or multiple vehicle residents are frequently using guest parking. BACK Reserves by Percentage? Answer: Reserve funding should not be set according to a percentage of monthly assessments. The method for determining the correct level of reserve funding is called a "Reserve Study". The Reserve Study identifies repairs and replacements like painting, roofing and other components for which the association has maintenance responsibility. Performing a Reserve Study requires special knowledge and experience. Unless you have a general building contractor or equivalent experience in your association, it’s advisable to hire a company that specializes in doing Reserve Studies. For more on this, see Our Services "Reserve Planning". Brand new associations that have a good reserve funding plan in place often pay between 7-15% of their monthly assessments to reserves. For an older association that has not been reserving properly, 30-50% is common, with a high likelihood of periodic special assessments to catch up. Special assessments are the result of poor planning and unfair to those that happen to own when they come due. Performing a reserve study and putting a funding plan in place will end the need for special assessments for good. BACK Rules on the Fly Answer: The board has the authority to enact reasonable policies. Before meting out justice, however, they should adopt policies or resolutions that define the issue, the penalty for noncompliance and the appeal process. The basics are money collection, parking, pets, architectural and appearance. There is no need for a rule when there is no problem. And each new rule should be circulated to the homeowners for comment prior to adoption by the Board. This way, no homeowner can say they had no say in the matter. Once formally adopted and documented in the minutes of a board meeting, a copy of the approved policy should be sent to every owner. It is always wise to comment in newsletters or bulletins about certain critical rules as a reminder. Question: Our Board is considering installing speed bumps and I’m concerned that it might decrease the property values. Your advice? Answer: Speed bumps should be implemented only after an association wide discussion of the merits and alternatives. I would not recommend them unless all other alternatives have been exhausted (use of local law enforcement, repeated violation notices to offenders, etc.). An alternative to speed bumps is traffic circles. These circular obstructions require traffic to slow or stop and go around. Most people dislike speed bumps and believe they detract from property values much the same way that installing "security" bars in response to break-ins do. They are indicative of an out of control problem that requires drastic measures. Question: Our Board writes rules such as: "... tasteful attire must be worn in the common areas." No definition of "tasteful attire" is offered and as far as I can tell, we don’t even have a problem. Another rule: "Payment of the monthly assessment must be made by check or money order. Cash will not be accepted." Is this legal? Answer: When it comes to rules, wording is everything. What exactly is "tasteful" attire? As far as the payment rule: Cash is legal tender for all debts (says so on the currency) and the association cannot refuse it. But something like: "Please make all payments by check or money order to ensure proof of payment" explains the practicality of money security which all can appreciate. High handed rules are counter productive to building a harmonious community. I’d encourage the Board to adopt a rule making philosophy that includes: 1. Only make rules that are genuinely needed (like policing pets, no parking in the fire lanes, etc.) and don’t make them to control scofflaws who challenge all rules. You simply can’t out rule rebels 2. To respect residents’ intelligence. (The dress code example does not). We have enough unenforceable rules to deal with elsewhere. Don’t add to the list unnecessarily. Community associations are based in a principle of democracy, not autocracy. The board that heeds the difference will shine. BACK Tape Recording Meetings Answer: In general, tape recording isn’t recommended because the speakers can’t always be heard clearly or identified. Also, absent body language can totally change the context of what is being said. While many comments wouldn’t or shouldn’t find their way into written minutes, an audio recording picks up the good, the bad and the ugly and can cause unnecessary problems. Instead of taping, take accurate written minutes that reflect the business discussed and make them available to owners. All board meetings should be open to the owners that want to attend. This means holding the meetings in visitor friendly places to encourage attendance. BACK Scope of Professional
Management Duties Answer: The cost of professional management is based on the size and complexity of the property and the scope of work. For example, a 100 unit condominium association with pool and clubhouse is more labor intensive than one without pool and clubhouse. BACK Board Meeting
Quorum Answer: If the Board is gathering to discuss and make decisions on association business, it qualifies as a Board meeting and should be noticed to the homeowners. Emergency meetings sometimes need to be called but lack of planning does not qualify as an emergency. Hold meetings in a visitor friendly location to encourage participation. Open meetings and frequent communication promote trust. BACK Pool
Restrictions & Children Answer: You have the right to restrict any children that are not complying with reasonable rules including being disruptive, loud and obnoxious. You can also restrict children under a certain age who are unaccompanied by a responsible adult. Restricting children based on time of day is not reasonable and discriminatory. The fact that the your community has lots of over 55s doesn't qualify it legally. If it is, as defined by the Federal Housing Amendments Act, you can actually restrict children from residency. BACK Poor Manager
Performance Answer: While you may have better options for management, I do not recommend self management unless your association is quite small (under 20 units) and has minimal financial, administrative and maintenance responsibilities. Property managers typically are on call 24 hours a day for emergencies, something volunteer owners are rarely willing to do. Volunteers like to go on vacations and should not be subjected after hours calls from their neighbors. Self managed associations frequently have problems keeping accurate and timely books. Finances are the foundation of the association and should be treated seriously. If you decide to self manage, do yourself a favor and at least hire an independent bookkeeper to keep finances rolling smoothly. If your community is large enough, hiring a resident manager proficient in maintenance, administration and finances is an option. Community association management is highly specialized. Look for companies that make it a specialty and ask for references. BACK © Copyright by
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