Ask the Expert

Marjorie Jean Meyer, CMCA®, PCAM®
Vice President and National Director of Education and Certification
ASSOCIA

Recently a BOD member resigned and now we have 4. All documents state that we can appoint a person to the vacant position, as does AZ state law. WE have a homeowner who volunteered his time, but the remaining 4 BOD members are split in the their decision. The Vice President and Secretary say YES and the President and Treasurer are not making a timely decision. The BOD has known about this vacancy since January but has done nothing to find a replacement. The volunteer is a member in good standing who has chaired a subcommittee of the BOD and is willing to work. The President and Treasurer say no need to backfill but decisions on issues are stalled on things because of the split in the vote.

What do we do? This is adversely affecting the duties the BOD has to the HOA and we need work to get done. Thank You.

- Deb

Have your president and treasurer expressed misgivings about appointing the volunteer to fill the board vacancy? If they have, the four of your should discuss the potential benefits and disadvantages of this volunteer, and decide whether to invite him or someone else. If you cannot reach agreement on this volunteer, suggest another homeowner with less controversy but similar interests in serving in the best interests of the association.

If the president and treasurer haven't verbalized objections to the volunteer, explain to them that decisions could reach a stalemate with an even number of board members, possibly delaying actions needed to continue the successful operations of your community. If it's just a matter of getting around to it, place this topic on your next meeting agenda to make sure you address and vote on the issue.

Sincerely,

Margey

On reserve accounts, should a California condominium association maintain separate income and expense accounts for each reserve compontent (e.g., roofing, exterior painting, road repair, etc.) so that the money is there for that component when needed?

- Shelley S.

The three resources I mentioned in my previous response are also applicable to determining the appropriate accounting method for reserve funds. (See above response)

Sincerely,

Margey

If a condominium Association in California imposes a special assessment on the membership, should these monies be accounted for in income and expense accounts that are separate from the normal operation and maintenance and reserve accounts?

- Shelley S.

In California, there are three resources that determine how to account for special assessments. The first is your state statute governing condominiums entitled the Davis-Stirling Act, consisting of chapters 1350 - 1376 of your California Civil Codes.

The second source is your association's Condominium Declaration and Bylaws, either or both of which may address this issue.

The third resource is the Internal Revenue Service, which has issued several "CIRAs (Common Interest Real-estate Association) rules addressing various accounting issues in community associations.

Absent language in any of these resources regarding the accounting of special assessment funds, it would appear that your association can report the funds in any prudent and appropriate manner available.

Sincerely,

Margey

How do you get a copy of your condominium's by laws?

- Catherine L.

There are several resources I can suggest which may be able to provide you with your condominium association's bylaws:

1. the Realtor who sold you your unit;
2. the title company or escrow company where you closed on your unit;
3. your management company, if there is one;
4. your board of directors;
5. depending on which state you live in, the courthouse representing the jurisdiction in which your community is located and at which all legal documents pertaining to your association must be recorded;
6. the attorney who created your community's Condominium Declaration (his or her name can usually be found listed as one of the incorporators or original board members in the Articles of Incorporation);
7. the association's current legal counsel;
8. if he or she is still around, the developer;
9. a neighbor who may have kept the set of governing documents in a file at home.

If none of the above proves successful, it's possible that the bylaws don't exist. Occasionally, developers'attorneys overlook drafting a set of bylaws because they focus on the state-required and much more detailed Condominium Declaration. If that occurred for your community, don't despair. Depending on requirements of your state and your Declaration, it's possible that your board of directors is authorized to approve new bylaws, which an attorney familiar with community association law can easily draft. If not the board, then certainly a vote by the owners should be appropriate to approve the new bylaws, which every condominium community needs in order to successfully administer its operations.

Regards,

Margey

Our homeowners association refiled deed restrictions in the courthouse in Pinellas County, Florida in 1998 as the deed was for a 25 year time period. The quorum vote was only 19 at the homeowners meeting. A notary who is a homeowner, collected an additonal 65 signatures by proxy, however, the document was purged from the files. The notary, the notary's husband, the secretary and a few other affidavits are available from other homeowners who remembered giving their proxy signature. Since 6 years have lapsed many, many homes have been sold, therefore it is impossible to collect close to 65 signatures again. We have 75% of the complex sign new deed restrictions joinders, however, 25% have refused as they are trying to get out through a loop hole. These homeowners knowingly moved into a mandatory deed restricted community of which the signage at the front entrance states "Deed Restricted Community", they are the previous owners of their homes have paid their dues!

Since the 1998 filing, the realtor supplied the homeowner a copy of the deed restrictions as well as the board. Many of these homeowners have attended homeowners meetings as well. We do not want to fall prey to multi-family mandated homes of which one has already moved into a near complex. How do we get a ruling from a judge to declare a mandatory 100% deed restricted community? Help? Do we need a case number or can you suggest an expert or some verbage to help this sticky situation as many of us have second mortgages for home improvements and we would like to protect our property values. Thank you.

- Jennifer

You do need an attorney to sort through all the issues you mentioned. A homeowners association management company in Clearwater, Community Management Concept, may be able to help you or direct you to a qualified lawyer. You can reach CMC's CEO, Hal Hildebrandt, at 727/535-2424, or email him at hhildebrandt@cmcfla.com.

Regards,

Margey

I live in a condominium complex with a non-profit Association of Co-owners... There are 11 buildings, a total of 44 units, pretty small. The Complex was just over a year old when I moved here. It is nearly five years old now and the Developer still has not finished construction on 2 buildings, nor has he turned over the Association to the Co-owners. He maintains strict control of our dues and does not respond to co-owners concerns or complaints. At first, I thought they were exaggerating, because I had a pretty good experience dealing with him. But you would not believe what is happening. It started small, snow removal occurred every other snowfall, repairs or building activities would start, but then not be finished for a while...then not at all. Now, all landscaping service has stopped (no mowing, spraying, weeding, flowers, Spring clean-up); there was vandalism to one unoccupied building (every window/door broken over a month ago) he has not repaired the damage and it looks like an abandoned building, not something a prospective buyer would even consider. I could go on, but you get the idea. It is clear in the bylaws what he can do to the Co-owners who don't pay their dues, don't abide by the by-laws, etc... What can the Co-owners do when the Developer doesn't hold up his end of the bargain? Is there a way for us to take back control of our dues? His latest budget shows plenty of money, but there are rumors that the money is gone...Help!

- Sally

I understand your frustration and anger about the condition of your community, and urge you to contact an attorney to intercede on behalf of the co-owners. There may be legal remedies for you and the other homeowners in your community against the builder for what may be breach of his fiduciary duty as well as other potential violations. If all personal efforts at resolving these issues with your developer have failed, and if your developer will not agree to mediation by an impartial third party, an attorney may be able to "give you back" your community through the judiciary process.

Sincerely,

Margey

We were sent a letter from our HOA, ******* Community, stating to pay our past due HOA dues (under $200) within 30 days. We attempted to do that with an immediate payment of $100 and the balance to be paid the following week, but the check was not cashed and sent to a Law firm for collection in under 2 weeks from the date of the letter sent to us. Now the Law firm is saying we owe them $949 +++, when we were not even given the full 30 days to pay our balance. Can you help us by stopping this action against us before more fees are added on, and investigate this problem??? Your help would be greatly appreciated!!!! We want to resolve this issue as soon as possible.

- B.

It appears that there may be a significant lack of communication, or perhaps miscommunication, among everyone involved in your current assessment situation. I recommend that you get everyone in the same room -- management company agent, attorney and you -- to ensure that each of you completely understands the circumstances and to figure out how to solve the current problem and prevent a recurrence.

Homeowner association living can be confusing when it comes to understanding all the legal documents that govern actions and behaviors within the community. The best way to resolve issues is by talking it through, person to person, not by overlooking communications and, sometimes, not even by responding in writing. Let me know how your assessment issue works out.

Sincerely,

Margey

Our parking was revoked over disputed dues. Most homes (65%+) here have garages except this area with common parking. Our spaces are reserved use plus some open or visitor parking. According to our deeds this parking is ours to use in accordance with county and state laws.

Yet they have removed our right to parking and all common area usage. We are not suppose to even have limited use access to our own home.

We paid the dues and told the Association lawyer we wished to dispute these fees and he dropped the case thus we could not dispute it. Now we again are going to court. I was told by a board member this would be rescheduled and the next week again lost the parking and common area usage.

The warrant in depth again have the disputed dues and accelerated dues to the end of the year. Yet once we paid the amount each time they begin to charge us immediately even though we paid for the entire year? This we have tried to dispute and in turn lose our parking.

Initially the disputed dues were just. My wife during her divorce believed her ex was paying the bills as ordered and he did not. A warrant in depth was issued and an agreement made with the attorney. 6 months of the dues were accelerated. They immediately began to charge monthly dues as well as late payment fees and thus our dispute began. I enter the picture here and again we were given a warrant in depth and paid it telling their lawyer we wished to dispute this in court. He dropped the case and refused to reopen it when we requested him to as told to do by the clerk. Again we paid accelerated fees until the end of the year (additional 6 months fees.) Yet the very next month they charged us dues. We have been towed three times, insulted and refused to be given accounts showing how we owed so much money. What may we do? Loundoun County, Virginia.

- T.

It appears that your parking and assessment issues have escalated without either the association or you having the opportunity to discuss the relevant facts in a calm, non-threatening environment. I recommend you consider using an impartial, third-party mediator to help both sides understand the issues and reach a mutually satisfactory conclusion.

According to Virginia attorney Robert M. Diamond, there are several mediation services available in your area: JAMS/Endispute, the Bar Association of the District of Columbia or the Virginia Bar Association. You could also contact the Washington Metro chapter of the Community Associations Institute, telephone (703) 750-3644, for additional referrals.

Sincerely,

Margey

How have satellite dish installations tended to be been regulated by condo associations in Ann Arbor and Michigan? Do they always involve restrictions to so-called limited common elements or are special but consistent options made available? Alternatively, do some condos end up restricting many co-owners from ever having a satellite dish because they have no areas but common areas to get acceptable quality signals?

- Nabiha M.

With regard to satellite dishes, most condo associations nationwide are following the mandates established by the Federal Communications Act of 1996 by prohibiting the placement of satellite dishes and antennae whenever possible. However, some condo boards have developed a more owner-friendly policy of allowing the placement of satellite dishes in certain areas or with specific installation requirements, or by providing roof pads on which dishes may be placed.

Sincerely,

Margey

In a condo, if the sewer lines is stopped up by another owner putting tampons down the toilet and causing your unit to flood, are you responsible for the plumbing bill to unstop the sewer in the middle of the night; or is the condo association responsible; or is the owner of the other unit responsible?

- B. A.

I wish I could give you a specific answer to your question, but direction should be found in your Declaration of Condominium. Many declarations contain provisions holding the owner of the unit which is the source of the damage liable for repair costs to his and other affected units. Other declarations hold the unit owner responsible only if he was negligent in maintaining or improperly using his equipment, such as putting tampons down the toilet. Still other declarations state that the association is responsible for all repairs no matter the origin.

In condominium communities, the master insurance policy usually pays to repair any damage to the common elements. It's typically only the deductible that's in question in situations in which the owner's negligence or oversight caused the claim. In those circumstances, the negligent owner is often responsible to pay the deductible and any other expenses incurred by owners of the damaged units that were not covered by either the association's or each individual's insurance.

If your Declaration of Condominium does not specifically address the issue of liability for owner-caused damage, I suggest your board adopt an administration resolution that specifies under what conditions the owner and the association are responsible for the deductible and damage not covered by insurance.

Sincerely,

Margey

We have a 332 detached condo community. I am a board member, one of 5. We recently lost our management company. One of the board members (president) decided she would like to quote to do the managing services, I find this totally unacceptable and a conflict of interest, 2 board members don't care and 2 do, how can I save this community from a disaster. This person has privileged information already being on the board, is a resident and has another full time job, it's all about money I think. Help me please!!!!

- Kathy S.

Good for you for realizing that self-managing a 332-unit condominium project is not in the best interests of your owners!

Take a look at your condominium declaration to see if there's a provision requiring "professional management". Most condominium documents contain that provision specifically to protect the mortgage holders' interests by prohibiting unqualified persons from assuming the management of the community. Your Declaration and Bylaws may also contain provisions prohibiting board members and other homeowners from being paid for services they perform except for direct reimbursement of out-of-pocket expenses.

You could also contact your insurance agent to determine the requirements of the underwriters of your insurance policy. Most would not be pleased with an untrained person managing their multi-million dollar client.

You mentioned that two board members don't care about this new arrangement, while two others oppose it. It seems to me that your president must resign her office and her board position, since she is now, in effect, an association employee and, as you mentioned, creating a conflict by serving in two roles. Is it possible to appoint a fifth board member who can break the tie and, hopefully, put an end to your president's dual sources of income?

I hope that at least one of the above suggestions works for you. Good luck with your efforts to ensure appropriate management of your community.

Sincerely,

Margey

Would the attic areas be a part of the interior area of a condo unit?

- Irene

In a condominium community, the attic area is usually designated limited common, which means that the owner of the unit does not own the space and cannot convert it to his or her personal use. However, your Condominium Declaration is the place to go to determine how your association defines attic space; there are several variations on air space ownership, and your documents are the ultimate authority. If your documents do not address the issue of attic areas, refer to your state's Condominium Act.

Sincerely,

Margey

Thank you very much for your answer. (see above letter)

Our declaration is not the easiest thing to read and the new Board of our Association is having such a hard time determining what a common area is as to unit owned--this is in regards to an on going termite issue. We know for the most part what a general common area is, but when it gets down to the attic...we are not so sure. When it gets down to exterior perimeter wall; is that where owner responsibility starts or ???? We have asked our Association attorney about this, but it is still unclear. If you could clear this up I would appreciate it very much!

- Irene

Irene, I'm not an attorney and you really do need legal assistance on this issue. If your current counsel is not familiar with condominium law, please tell me your location and I'll try to refer you an attorney who may be more knowledgeable in this area.

 

Sincerely,

Margey

Thank you Margey so much for your time in answering my questions. (see above) Yes, we do have an Association Attorney so between his advise and your information, I have a better understanding of Condo rules, etc.

By the way, is this site just a online help forum, or is there an Association Times magazine we can subscribe to? Thank you so much once again!

- Irene

 

I'm glad you asked about Association Times! For the time being, we are an online resource only. However, a hard copy magazine is in the works right now, and we hope to launch it within the next few months. I'll let you know when it's available by subscription.

Regards,

Margey

I'm on the board for our homeowners association and we have a problem that no one seems to have the answer. Upon purchasing a home in our subdivision, the purchaser signs that they will abide by the covenants and are provided a copy.

Lately owners have been renting their residence and the individuals renting these residences do not maintain the property in accord with the covenants. My question is how does our association enforce the covenants as they pertain to the rental property and is there a way to require the individuals renting the residence to sign off on the covenants?

- Frank R.

In most situations regarding covenant enforcement procedures, the homeowner is ultimately responsible for the behavior of guests, family members, renters, and everyone else who visits or lives in the home. Many governing documents for homeowner associations specifically require that owners provide tenants with copies of all association-related documents that affect the behavior and actions of people who live in or visit the community. If you do not find such language in your Covenants, perhaps your board could consider asking the membership to approve an amendment which would insert a provision holding the owners responsible for their renters, and requiring them to ensure that their renters receive the pertinent rules, regulations and restrictions.

If your documents already contain language covering renter behavior, or if your association follows the mandated procedure described in your Covenants to approve an amendment addressing this issue, then all communications regarding renter infractions should be sent to the owner, with a copy to the tenant. Why? Because the owner signed a "contract" with your association either during the sales process or when he closed on his home, acknowledging that he lives in a mandatory, deed-restricted community association. The renter has a contract only with the owner, not the association. So, if the tenant misbehaves or breaks the rules or restrictions of your association, the owner is responsible for resolving the issue either by evicting the tenant, resolving the violation, and/or paying fines if authorized in your Covenants.

If all your enforcement efforts are in vain, and the tenant continues to violate your Covenants, your only alternative may be to ask your association's legal counsel to intercede on your behalf and pursue all legal recourses authorized in your documents and your state's relevant statutes.

The Community Associations Institute (www.caionline.org) offers several books and treatises on effective rules enforcement procedures as well as on encouraging renters to be responsible, supportive residents in their community. At this web site, you will find more recommendations on using the carrot, not the stick, to persuade renters to comply with your governing documents.

Sincerely,

Margey

I am a home owner in ******** ******** Community Master Association, I would like to know if I can have a Hair Salon in my home. I would be the only person working. I would not have employees. I will be working with a current AZ cosmetology license. Thank You.

- Vicki J.

Thank you for asking whether or not it's permissible to run a hair styling salon from your home before you invest in such an enterprise.

The governing documents for most homeowner associations do not allow residents to operate a business that brings additional vehicular or pedestrian traffic to the community. Why not call your management company or board of directors to find out what your community's Declaration of Covenants, Conditions and Restrictions says about home-based businesses?

Regards,

Margey

How bad does a dent in the garage door have to be in order to be in violation of the Deed of Restrictions?

- Zosimo B.

It's difficult for me to tell you what degree of damage your garage door must exhibit before your board of directors determines that it has to be repaired. It's a very subjective issue, and your directors are probably authorized by the governing documents for your community to determine, in their sole opinion, if your door is dented to the extent that its unsightliness may affect neighboring property values.

If you believe your garage door is not dented enough to warrant a letter from your board or management company, why not talk to your board to determine what it will take to bring the door into compliance? Don't let this issue escalate to a big legal problem that may cost you a lot of money and time; discuss the problem with your board and reach a mutually acceptable solution.

Regards,

Margey

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