Ask the Expert

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

The homeowner association where I live in Indiana will not allow me to review the minutes of past meetings even though the by-laws say I may, are voting without a quorum at the annual meeting, are having closed board meetings when the By-Laws say they must be open, and have now added a no rent rule that conflicts with the Covenant. Short of spending thousands on taking this to court, is there anything I can do?

- Grace L.

I appreciate your concern regarding possible improprieties in the operation and management of your community. Before you spend money on a lawsuit or time in small claims court, consider sending a certified letter to your community association's insurance agent and to the underwriter of your association's Directors and Officers Liability Policy. Both representatives should be concerned about potential future litigation and may intercede directly with the board to investigation your allegations and ensure that there is no activity or behavior that will result in exposure to a claim.

Sincerely,

Margey

Thanks for the quick reply. (See above) Your answer was something my husband and I had never thought of and seemed like a very good idea until we looked in the newsletters and found the board has changed the insurance agent to a cheaper one, but didn't say which one. We don't find any mention of who holds the association's Directors and Officers Liability Policy either. The attempt today to get this info from the President hasn't worked. He will not answer the door and does not have an answering machine. A message has been left on the Treasurer's phone answering machine asking for this info, but we doubt she will return the call. Looks like we may be sending a certified letter to both of them. The whole board signed a letter saying they will not let us (they addressed it to my husband only) see the minutes unless told exactly which one wanted and why.

Really we have done nothing to them. In fact, we have not spoken ever to three of the board members, only to the president. After his rude response to a question, we wrote one letter to the secretary asking to see the minutes.

- Grace

Do you suppose one of your neighbors with a better rapport with your board would be able to obtain the information on your insurance agent? He or she could either ask one of the board members, or ask to see the records of the association which would include the current insurance policy. Or, perhaps your personal insurance agent could determine who insures your community’s common elements or give you the names of the handful of insurance companies that provide Directors and Officers Liability Insurance to homeowners associations.

Sincerely,

Margey

(See above) We aquired the name of the insurance company from the builder so we were able to inform the insurance company of the closed meeting and our not being allowed to see the minutes. In doing some more reading about Indiana law we read that our demand to inspect the records had to be made in "good faith" and for a "proper purpose". Just how or why does one have a "good faith" reason for a "proper purpose" with a board like this? Yesterday we received a letter from the board's lawyer telling us the same info as well as telling us that our dealing with the Board's insurance company proved we were not acting in good faith as well as our "incessant calling and harassment of Board members and their families is not acting in good faith." Within a 4 week time period we have called the Treasurer 2 times around noon, leaving a message on her answering machine both times. The Secretary wrote in the newsletter that we could call the board members between the hours of 10:00 AM and 8:00 PM; we twice called her around noon (one time we left a message and the other time her daughter answered and we told the daughter we left a note in the front door). We called the Vice-president once. The President does not have an answering machine so we tried calling 8 times with only one call answered (the President has caller ID) and we stopped by his house 3 times (only one of those times he answered the door.) He has dropped in us unannounced 4 times, but only once within the past 4 weeks. The President wrote in the newsletter for anyone with a problem to just drop by between the same hours as the secretary said one could call. The lawyer went on to say "if your actions continue at their current pace, the Board will have no option but to contact the police to stop such harassment." Hope the log I am keeping of every time I have contacted or tried to contact the board members will be enough evidence.

Presently we are working on getting members together, but since this is not the wealthiest of associations-- many of the members are young, starting out, busy, uninvolved familles or retirees that gave up the involvement life. Sure would like to know somewhere how to receive help since this looks like it is going to be lots of money from our small retirement income. We would be grateful for any more advice you could give us.

- Grace

If the insurance underwriters investigate your allegations and determine that there is no malfeasance or inappropriateness by the board, your only alternative is to consult with legal counsel. While litigation is absolutely the last resort, the judge may order mediation or arbitration instead of accepting your lawsuit. If he or she does, that may be your best opportunity to express your concerns, hear your board’s explanations, and, with the help of the mediator, develop a resolution to the issues, Or, if you are sent to arbitration, the arbitrator will reach a decision for you, and both parties – you and the board – must abide by that decision.

Sincerely,

Margey

Thanks for more advice with this problem of a board having closed secret meetings and passing rules that conflict with our Declaration. (See above) Please forgive another question? We asked for the list of association members and their addresses (another thing our Declaration said that has to be provided to us) since a group of us have gotten together and are going to send out a newletter with hopes of gaining strength by informing others of the problems we have encountered with this board. Yesterday I received a reply back to my request saying "Due to recently passed privacy legislation known as HIPPA, we regret we will no longer be able to furnish a list of association members and their addresses as outlined in the Declaration." My question is what is HIPPA? I have searched the Internet and only find it mentioning Health information.

- Grace

As you surmised, "HIPPA" is a health industry-related term. It stands for HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 and has absolutely nothing to do with releasing a roster of community associations' members. I don't believe one could interpret that federal law to affect community associations by any stretch of the imagination.

Sincerely,

Margey

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My question is what can a homeowner(s) do when the homeowners association which is now self regulated by the homeowners (board of directors) does not act to correct homeowner problems in accordance with the CC&R's that are established in the development. We have a homeowner who will not maintain his yard and the fine schedule that is in place will not be implemented by the board of directors to the full extent. As a result the property in question looks as though it is vacant. We live in Prescott AZ and any thought you could provide would be greatly appreciated. Best Regards.

- Bob G.

There may be extenuating circumstances about which you are not aware that are delaying your board's enforcement of the deed restrictions regarding care of a particular Lot in your community. Have you talked with board members about the home in question? Is it possible that there are elderly or ill owners who are temporarily unable to perform the necessary work on the yard? If that is indeed the situation, would it be possible for a group of volunteers to help that neighbor by having a "community service day" in which they help all their neighbors spiff up their yards to ensure that the entire community looks appealing and attractive?

On the hand, if your board is not consistently enforcing the documents, it may be time to sit in on some board meetings to understand the dynamics of the group. Perhaps they are overwhelmed with their responsibilities as board members and need help from volunteers like yourself, creating committees to support their efforts.

However, if your board is deliberately focusing on some owners for enforcement measures, is showing preferential treatment to other owners, or is not properly discharging the duties detailed in your governing documents, then it's time to talk to them about your concerns. If your communication does not result in improved responsiveness, it may be time to put together a new slate of board members for your next annual meeting elections.

Sincerely,

Margey

Our new board is having problems becoming a cohesive board. There seems to be an incredible amount of confusion regarding the duties and responsibilities of each officer.

1. Do you have typical job descriptions of each position?
   
   
2. Can you describe to the relationship between the board members, specifically the president and the treasurer.
   
   
3. Should the board be following Roberts Rules?
   
   
4. Does the President typically vote on issues? If three of the five board members vote together and the president feels totally opposite (on most issues), what is the use of having a president?
   
   
5. Where can I go to get similar information. Seems that the only way I will be able to continue is to be thoroughly informed.
   
   
6. The board feels like they have to vote on every tiny little issue and that the president, should never, under any circumstances, take any lone action on any subject.

Thank you for your input. Please hurry.

- Rebecca A.

While I can assure you that the sense of disorganization and frustration your board is experiencing is not uncommon among community association volunteers, I'm sure sharing your angst is no consolation to you. However, I can certainly point you in the direction for help.

The first resource for community association operations is the web site where you found our Ask the Expert column -- www.associationtimes.com, full of articles and information for board members as well as community association managers.

Another resource for community association boards of directors is the Community Associations Institute at www.caionline.org. CAI offers online and local educational classes, publications, and networking opportunities for everyone involved in the operations of homeowner associations.

Between the two resources I've mentioned, I'm confident you'll find the answers to your questions regarding organizing your board, conducting effective meetings, roles of the board and the officers, parliamentary procedures, and every other aspect of administering your community.

Very sincerely,

Margey

I am on the board of a 13 unit townhouse HOA. Our CC&R's require that all garbage and recycling containers remain out of sight until pick up day. One of the units is currently occupied by renters and not an owner. The renters are leaving their garbage can/recycling bins in plain sight. For the units occupied by owners we place reminders on their door when they fail to remove their garbage cans from plain sight. We have contacted the owner of the rented unit, but I am wondering if we can also place a notice on the renter's door?

- Tammy B.

You certainly may place a note on the renter's door requesting compliance with your garbage and recycling container rules. While the owner is responsible for the actions of the tenants, it's possible that the renter is unaware of the rule and will appreciate your note. A nice note or a phone call is a much friendlier way to resolve a problem than issuing a compliance demand letter for the first violation.

On the other hand, if the renter continues to place his garbage can and recycling container in plain sight after you've let him know your community's policy, a more forceful letter should be sent to both the owner and the renter detailing the consequences of disregarding your association's rules.

If you do not have an enforcement policy, I would encourage you to develop one with your Board. Previous "Ask the Expert" answers contain the steps involved in developing and implementing rules through the resolution process.

Sincerely,

Margey

If a renter is not abiding by the CC&Rs, because they allegedly never received a copy, is there a standard letter to encourage the owner to ensure their tenant is adhering to the CC&Rs? How much time should be allowed to get the tenant on track? Thanks.

- Danielle

When a tenant violates your association's governing documents, those documents usually put the onus on the owner to enforce compliance. The association has a contract with the owner through the governing documents; the owner has a contract with the tenant through the lease agreement. Many governing documents require owners who lease their units to ensure that the tenants receive copies of the community's rules and regulations. Therefore, communications regarding the tenant's actions should be addressed to the owner, and perhaps copied to the tenant.

Your governing documents or state statutes may also contain the procedure community associations must follow in order to legally enforce deed and use restrictions. If not, and if authorized in the Bylaws or Declaration to pass rules, your board could approve an "Enforcement Resolution" through the following process:

1. At a board meeting, discuss what you would like to rule to say and how it will be enforced. Create a draft of the proposed rule.
   
   
2. Announce to your members that the board will be considering a resolution detailing the deed restriction enforcement process. Be sure to include in the announcement the date, time and location of the meeting in which the board will vote on the rule, and invite owners to offer their opinion on the proposed rule. It's best that they submit their comments in writing by a certain date. It could happen that an owner with a different perspective on the issue may provide essential insight that could result in a revision to the wording or scope of the rule.
   
   
3. At the announced date and time, the board should meet for final discussions among themselves, consider the previously-submitted input from your members, and vote on the rule.
   
   
4. Some states require that rules be legally recorded before they can be enforced. Check your state statutes and governing documents to determine if such language exists. Even if it doesn't, it's not a bad idea to record the resolution to ensure that all future owners receive a copy of it when title to their home is researched for a resale.
   
   
5. Mail the recorded resolution to all owners and lessees, advising them that you will begin enforcing the rule on a certain date at least 30 days from the date of the mailing. Check your documents and state statutes again to determine if the letters must be sent by certified mail.
   
   
6. Be sure to enforce the rule fairly and consistently. What should the Enforcement Resolution contain that you vet through the above procedure? Here's a typical enforcement process:
   
   • First violation -- either a phone call or a letter that says that the owner may not be aware of the association rules, referencing the provision in the documents that is being violated;
     
     
   • Second or continued violation -- a second letter advising the owner that if the violation, again referencing the document provision being violated, is not rectified in the specified manner by a specific date, a certain penalty will be imposed (perhaps a fine that is commensurate with the seriousness of the violation, and/or legal recourse); be sure to include a provision regarding the owner's right to a hearing;
     
   • Third or continued violation -- impose the penalty stated in step #2.

Sincerely,

Margey

I recently received some good advice from Association Times (A.O.E. a Q.), and our community followed it to the letter.
(see July 2004 Ask the Expert)

We circulated a Petition asking for signatures in favor of a Forensic Audit and removal of officers if they refused to agree to the same. Not only did the directors refuse to accept our Petition and claim that the meeting place for the proposed "special meeting" was unavailable, it has come to light since July 19th that the BoD's did not have an annual audit (our Bylaws require one annually) for ALMOST 5 YEARS! To add insult to injury, it appears that the BoD's did not complete Corporate tax returns for 3 years... Our Board of Directors utilizes the association attorneys to fend off homeowners on one side, while the management company keeps homeowners at bay on the other.

This is so serious, I can't even express the level of my concern. To add further insuilt to injury, the Treasurer has moved funds from the "operating account" to the "social fund", which contains an inordinately large sum of money, revenues which this community could not have made through 3-6 club house rentals over a 2 year period at $75.00 a rental! The Board even contracted to do business with a Property Manager (only recently discovered)! Please help...... What would the experts suggest our homeowners do now?

- Linda K.

Thank you for writing back to let me know how your efforts were progressing.

It's unfortunate that your board was not responsive to your petition for a forensic audit. Your next step could be to advise the insurance agent and underwriters for your community's Directors and Officers Liability Insurance policy of your suspicions regarding possible board improprieties. The agent and underwriter should be interested in resolving the issue -- perhaps by intervening directly with the board -- to prevent potential litigation and additional wrongdoing that could occur if the current situation continues.

Please let me know the results of this next step in your efforts to ensure that your community association is operated appropriately.

Sincerely,

Margey

I have requested that our Association obtain officers liability insurance since 2000. We do not have "officers liability insurance"....so what would you recommend? (see above) I have contemplated filing a law suit in Superior Court claiming malfeasance and misfeasance by our BoD's by failing to timely file tax returns and obtain yearly audits according to our bylaws. I would ask that the court to either freeze all association accounts until a forensic accounting is performed or that all current members be removed from their positions and an interim or another board appointed to replace them. Drastic, but I feel the liability is there...if I can uncover it, others can do the same. The attorney's for the association have no interest in preserving our property values, just to "protect" our corporation.....isn't that ironic? I'm totally distraught and disgusted with our system. It violates the rights of the majority over the self-interests of a few. I'll never live in a condo again....ever....until laws are passed that have enough check and balances built in them to support and protect the majority from those with vested interests in maintaining the status quo. I look forward to you advice, as I truly need "sound advice". Thank you.

- Linda K.

You do have an option. Collect enough proxies from other owners to vote out the sitting board and elect new directors who feel as you do about operating your community and your community association. Just as in any democracy, the majority rules.

Margey

---

I am the current treasurer on our association's board of directors. We have adequate reserves, a closely monitored operating budget and have had only one additional assessment for an unexpected occurence. When an expense occurs that isn't budgeted and isn't clearly designated as a reserve item, our board has a difficult time determining how to allocate this expense (or if we should spend at this time). I proposed that we create a vision for spending and clearly define the differences between operating, reserve and special assessment expenses. That way, there will be no confusion or arguing about how to justify paying for it. Do you have any suggestions to help us appropriate these expenses?

- Karen

Congratulations on maintaining such control over your community's expenditures and on recognizing that there may some more tweaking necessary to complete your budget.

Segregating reserve and operating expenditures is an excellent first step. There are many online resources to help you identify the capital components of your community, the replacement of which would be paid from your reserve funds. Association Times is an excellent source for information, as is Community Associations Institute (CAI) where you might want to purchase some specific material from their bookstore regarding budgeting and reserves.

If you want professional help in identifying capital components and determining their remaining life and replacement cost, you could consider utilizing the services of a Reserve Specialist, an engineer who has earned a designation from the Community Associations Institute after completing a certain number of acceptable community association reserve studies that contain requisite data.

Since both your operating and reserve budgets would have to be pages long in order to have line items for every possible expenditure category, why not limit your general ledger accounts to the most common expenses, and insert a line item in both budgets and in your financial reports entitled "Operating Contingencies" and "Reserve Contingencies" respectively? While I don't recommend using those categories as the "easy out" for coding expenditures, they should resolve your quandary regarding where to allocate unbudgeted expenditures.

Sincerely,

Margey

What does pooling of reserves mean? Can it be done in condominiums?

- Gary A.

"Pooling of Reserves" may mean not allocating a certain percentage of the reserve fund for the eventual replacement of a capital component. Instead, the funds that are transferred from the operating to reserve account are shown on the financial statements as a lump sum.

The typical treatment of reserve funds is to first list all the capital components of your community which fall within the community association's realm of repair/replacement. Then, determine the replacement cost of each component, total all the replacement costs, and divide each component cost by the total to arrive at a percentage for each component. When you transfer funds to your reserve account each month, the amount should be allocated to each component according to the percentage you calculated.

How do you identify all the capital components and then determine their replacement costs? The best way is to hire a Reserve Specialist, who is an engineer who specializes in the preparation of reserve studies for community associations. He or she will not only determine the components and their cost, but their replacement life and remaining life as well, providing you with a long-range plan and cash flow requirements.

Can "pooling of reserves" be done for condominiums? It depends on state laws and your association's governing documents. One or both may address the treatment of reserve funds, and may require that the capital components be identified and reserve monies segregated according to the funding requirements of each component. The American Institute of Certified Public Accountants has promulgated recommendations regarding community association reserve funds that include allocating funds to each component, not pooling all funds.

Sincerely,

Margey

To Whom It May Concern:

My name is Anna K. and my address is **************. I just received a letter today that balconies and fences are going to need refurbishing and it is cost to the homeowners. I do understand that it is an extra cost, but $250.00 dollars is way too much!!! I am being serious, I work for a construction company and when I told them what the cost of the refurbishing was my co-workers said that I am being ripped off. We went to the store and looked at the items needed to be purchased to have the work done and it did not exceeed $70.00 per balcony.

There is also work being added to the person that will perform the work, but do they charge $150.00 per balcony! That price is ridicilous and I would like to receive a phone number to someone who I can dispute it with?

If I have to pay such an amount I would like to request the list showing the prices, labor work etc. I want to know where exactly that $250.00 will be spend and I have the right to request it. And please do not write to me that you are giving a sufficient notice to us so we have the money ready, because I can pay it today if I have to. The reason I am disputing the amount is because I am obviously being ripped off and I do not like that. I work hard for my money.

Also I do apologize I am not speaking in person, but I have called ****** Association before, for different reason, and I have never spoken to such rude people before, so I chose to write an e-mail.

- Anna K.

I understand your frustration and concern about the operations of your community, but urge you to try again to discuss these issues with either your manager or your board of directors. Perhaps sending a letter to both will prompt a response from each, providing the details that you need to feel more confident in their ability to evaluate all the circumstances and make educated decisions. After all, the board members will also have to pay the special assessment and must have performed their due diligence to ensure that they were selecting the most appropriate contractor. There may have been special circumstances that caused the price to be higher than you estimated and, as a contractor, you know that the lowest bid is not always the best one.

Your board should be happy to talk to you about their decision. If you're still not satisfied after talking with them, call the president of the management company; go to the top to express your dissatisfaction with previous service and give him or her the opportunity to correct the oversight and ensure that it does not recur. You'll probably receive personal attention, along with more discussion about that $250.00 charge.

Sincerely,

Margey

I am a reluctant new board member of my 30 unit association. I became involved because of some serious mismanagement of the association, its funds and years of neglect. I am now working on a financial plan to present to the HOA. Monthly expenses, Reserve funding, and repairs that are urgently needed, and why we need to raise dues, and by how much. I need software (mac) for HOA management. Any suggestions?

- Nick

The Community Associations Institute sells a software package called "The Treasurer" which is specifically designed for small, self-managed communities. If there still appears to be too much work to for a volunteer board, you might consider contracting with a management company that provides financial services as a stand-alone option.

Sincerely,

Margey

Hello, My name is Michelle and I maintain the accounting/bookkeeping for a HOA. Our HOA consists of 150 lots, with an annual due of $50.00 per year, per lot. We feel our HOA is a very inexpensive HOA and therefore have really not implemented any kind of internal control procedures.

Can you suggest or e-mail me an HOA's internal control procedures so I can have some kind of guideline as to how I go about implementing one for our HOA? Thank you kindly.

- Michelle, HOA Bookkeeper

Good for you for realizing the need for internal controls for your community association's accounting function. A local CPA or AICPA (American Institute for Certified Public Accountants) chapter may have information that can help you, or you might try www.aicpa.org. Another resource is the Community Associations Institute (CAI), an organization focusing on the education of community association board members and managers, at www.caionline.org.

Homeowner association board members have a fiduciary obligation to protect the assets of their community. Assuring that their community's funds are appropriately accounted for is one of their primary responsibilities, and I applaud you for exploring methods and procedures to ensure that this duty is correctly addressed.

Sincerely,

Margey

Can a board vote to waive monthly dues in return for work performed by board members and/or other condo owners? For example, could the Treasurer's maintenance fee be waived in return for services performed for the condominium association?

- Judy V.

There are two primary sources regulating the issue of payments to officers serving on community association boards of directors. The first is your association's governing documents, primarily the bylaws but there may be some provisions in the Declaration as well. The second source is your state's Condominium Act which may address paying a board member or officer for certain kinds of services performed for the association.

While most community associations' governing documents and state statutes prohibit remunerating volunteer leaders for their leadership service to the association, some may permit payment for services that are performed outside the role of board member or officer.

However, there is a difference between paying an officer for services performed other than that as an officer of the association, and waiving maintenance fees in lieu of payment. There are tax implications for both the association and the treasurer that must be addressed as well as the question of authority to waive maintenance fees, which most governing documents prohibit. If you determine through your research of the documents and the Condominium Act that board members and officers may be paid under specific circumstances, you should also investigate whether or not maintenance fees may be waived under those same circumstances.

Good for you for asking the question and for ensuring that your community's leaders are acting within the parameters of applicable law.

Sincerely,

Margey

Hello, where do I find information on starting an HOA in an established community that does not have one presently? Thank you.

- Al

I don't know in which state you reside, but the first place I would look to determine how to create a homeowners association is your state's legislative website. Many states have very detailed procedures in their property code that specify the exact steps a community or voluntary civic association must take in order to convert to a mandatory membership homeowners association with lien-based assessments and mutually binding documents.

If you don't know the URL for your state's website, try entering "(name of state) government" in the keyword search field in Google or Yahoo.

Sincerely,

Margey

Hi, I live in Texas. I bought a lot and built a house in a subdivision. The subdivision has restrictions recorded. I have lived out here for 4 years. The other day, each homeowner got an anonymous letter encouraging thoughts of starting a homeowners association. It seems to me that someone just wants to dictate how everyone else lives their lives. This is a subdivision that is not bound by city restrictions. We are in what I consider "the country". My question is, how can I find the rules for starting an association after the fact, without spending weeks online. Please help! Thanks!

- Christy

The answer to your question is found in Chapters 201 and 204 of the Texas Property Code, which you can access with the following link: www.capitol.state.tx.us/statutes/pr.toc.htm.

If you would like to learn more about the benefits of homeowners associations, there is a wealth of information right here at www.associationtimes.com, or you could go to the Community Associations Institute at www.caionline.org.

Sincerely,

Margey

What is the definition of a master community? Is a master community and a master plan community, one in the same?

- Jackie P.

While I think that in the context in which you're asking this question, "master community" and "master planned community" are synonymous, I'd better mention one more phrase just to ensure that we're talking about the same subject.

A master planned community, perhaps also called master community, refers to a land development in which the various land use options are determined (therefore "master plan") before the first shovel of dirt is turned. It's like most major cities in which certain areas are zoned commercial, others single family residential, multi-family residential, or park areas, to name a few possibilities.

On the other hand, an "umbrella association" is simply an entity which collects maintenance fees from two or more residential and/or or commercial associations in order to maintain property common to all the associations such as streets, esplanades and parking areas.

Sincerely,

Margey

I have a sole proprietor business that I created a couple years ago, and also did get a ficticious name for it. But, I rarely use this business name now. I would like to know the steps that I need to do to dissolve this business. Thank you very much for your time.

- AJ

The purpose of this forum is to answer questions regarding the operations of community associations. I recommend you contact an attorney for help in dissolving your business, or search online for assistance.

Sincerely,

Margey

Can you give us the website or email address for the Downtown Residents Association.

- Ed & Fran

I sure wish I could help you with the email or website address for the Downtown Residents Association. If you would reply with the name of your management company or the city in which the association is located, I will have a better idea how to help you.

Sincerely,

Margey

Is it illegal for the Board to use a tape recorder to assist the Secretary of the Board in her preparation of the Minutes? Do you have any statistics, ball-park or otherwise as to how many associations use tape recorders? Thank you, in advance, for your response.

- Larry L.

Expert parliamentarians say that it's acceptable to record the meeting as an aid in preparing the minutes. However, once the minutes are approved, the tape should be either destroyed or erased. The minutes are the official record of the board's decisions and actions, not the tape. No statistics for you, though, with regard to how many associations record their meetings.

Sincerely,

Margey

Our Condo Association Property (Master for outside of buildings, community areas, etc) Insurance of 20 years with the same company, is not being renewed because they have decided to no longer carry that line of coverage. By law, we received 30-days notice, and the clock is running. Any list available of insurers for condo associations? Please respond, we're getting desperate.

- Patrick K.

I can't tell from your message where you live, but I can offer a possible resource for you -- the Community Associations Institute. If there is a local chapter of CAI, contact them for a list of insurance agents who are members of the organization. If there is no chapter in your area, go to www.caionline.org to find a chapter in your state, or click on the "Product and Service Providers Directory" link to see what insurance agencies are available nationally.

If through CAI you cannot find an agent who works with community associations, try your local, state or national apartment association. Some insurance agents work with all types of multifamily communities, so you might find one who is interested in yours.

Good luck in your search -- I understand the pressures you are under.

Sincerely,

Margey

I am the president of an HOA in South Florida and on the BOD of our master association as well. Both associations are in the process of renewing insurance. How do we determine the coverage we are required to have and what amount we need? The insurance company is attempting to sell us a liability policy for 10 million... we currently have 1 million. Of course the higher coverage comes with a hefty premium... Thanks

- J. P.

If your associations (master and sub) own common elements and amenities such as a clubhouse and tennis courts, the only way to formally determine the amount of property insurance coverage you need is with a property appraisal for insurance purposes conducted by a licensed appraiser. An alternative may be to ask a respected, trusted general contractor to prepare a schedule of replacement costs for you.

With regard to liability insurance, remember that there are different kinds of coverage. Umbrella liability insurance does just what it sounds like -- it provides an additional layer of coverage over the general liability insurance. The difference is this: general liability insurance costs a lot more than umbrella liability insurance. So, the key is to have a low limit for your general liability policy, and higher limits for the cheaper umbrella liability policy. However, one caveat -- be sure to check your governing documents and state statutes to ascertain the required minimum amounts of general liability coverage.

Sincerely,

Margey

An addendum to our Condominium Association By-Laws was added and was not "voted" on by our Association. In fact, many of our co-owners did not know that this "addendum" was established. The addendum was added to the By-Laws by our developer. This addendum "waived" the association dues for our Board of Directors. Didn't this need a approval of a certain percent of the "co-owners"?

- Adele H.

There are a few scenarios I can think of in which the addendum/amendment is either legal or illegal. First, the legal: the developer amended the Bylaws when s/he still controlled the majority of the votes, before many units were sold. In addition, the developer complied with the amendment provision in the Bylaws which 1) authorizes the board of directors to amend the Bylaws without a vote of the owners, or 2) requires notice to all owners and a special meeting to be held if the vote is not conducted during an annual meeting and was properly placed on the agenda. Further, the developer complied with any state statutes requiring that any amendment to a condominium association's governing documents be recorded.

Now to the illegal possibilities: the developer did none of the above and, consequently, the addendum/amendment is not valid. How can you determine when and how the addendum/amendment was implemented? First, look at the Book of Minutes to see if there is a record of the addendum/amendment: does it tell you when and where the action occurred and who was present? Do your Bylaws authorize amendment without a vote of the owners? Are there state statutes that require community association developers and Realtors to provide all dedicatory instruments (governing documents) to prospective purchasers?

How did you and your neighbors discover that the addendum/amendment existed? If it was by researching the recorded documents for your community, then some states consider that "constructive notice", meaning that so long as the document was recorded, it is adequate notice to all involved parties. However, if your state requires that all documents regarding the contractual relationship between the association and the owner, and the activity and behavior of community association owners, be personally provided to prospective buyers prior to the sale of any unit, it's possible that there is a question regarding the validity of the addendum/amendment if your neighbors can prove they never received a copy of it.

And this is as far as I go; not being an attorney, my next comment must be to advise you to consult with legal counsel if you feel that the addendum/amendment was improperly promulgated and is therefore unenforceable.

Sincerely,

Margey

I was hoping to get information on federal laws regarding assessments. I have been told that Federal Law states homeowners dues can not be increased by more than a certain percentage per year. I have not been able to find such supporting documentation or what that percentage is. Secondly, if this law exists, should such a clause be in the governing documents of the association to protect from lawsuits?

- Timothy S.

There is no federal law regarding homeowner association maintenance fees. There IS a federal that addresses how a debt may be collected; you can find information on the Fair Debt Collections Practices Act at http://www.ftc.gov/os/statutes/fdcpajump.htm.

Your state may have statutes that address the manner in which homeowner association maintenance fees may be increased and imposed (in addition to your primary resource, your association's governing documents). If you do not know the URL for your state's website, try entering "(your state) legislation" in the keyword field of any search engine and you'll probably be directed to the site.

Sincerely,

Margey

Thanks Margey!! (see other question) I'm in California by the way. Guess I should have stated that. I'm hearing words from others such as estoppel and laches. Do those legal terms have any bearing?? Thanks.

- Ken D.

According to dictionary.com, an estoppel is a legal action "that prevents a person from adopting a new position that contradicts a previous position maintained by words, silence, or actions, when allowing the new position to be adopted would unfairly harm another person who has relied on the previous position to his or her loss."

The same site defines laches as "negligence or undue delay in asserting a legal right or privilege".

There's no predicting if a California judge will invoke one or both of those actions, but in many other states the courts often try to be more lenient when volunteer leaders in homeowner associations make the effort to correct oversights of the past. However, until and unless instructed by a judge to do otherwise, the board is obligated to enforce compliance with the governing documents, no matter the action or inaction of its predecessors.

When in doubt, the wisest decision is to consult with your association's legal counsel and make sure any opinions are in writing. Your following their advice may or may not make a California judge happy!

Sincerely,

Margey

How can I find out the legal requirements for California condominium homeowners associations. I am on the board and we need to know when it is necessary to update CCR's, what percentage must be left in the reserve fund at all time, how to determine monthly dues and what percentage from the dues should go to the reserves? How much can be draw from the reserves to cover large expenses before adding an assessment fee to the monthly dues amount?

Thank you for your assistance or for directing me to where I can seek assistance for thess kinds of homeowners association questions.

- Victoria S.

Much of the information you're seeking can be found in your community's governing documents, primarily the Condominium Declaration and the Bylaws. However, I've found three links to state laws affecting California condominiums:

• Davis-Stirling Condominium Act
  
  
• California Community Associations Institute chapter website that lists all state laws that impact the operations of California community associations.
  
  
• California law office of Epsten, Grinnell and Howell and their explanation of the Davis-Stirling Act. (pdf file)
  
  

This document is in PDF format. Viewing it requires Adobe Acrobat Reader, which is a free downloadable software available by clicking here:

Sincerely,

Margey

Three (quick) questions about our new community in NW Florida, and the provisions of 720. We're attempting to start the H/O association on "the right foot".

1. Several members of the H/O Board are reluctant to release a list of property owners and mailing address, due to Privacy Act concerns. Does not 720 require this info to be released, particularly when requested by a property owner?
   
   
2. What is considered "suitable time" for production and distribution of meeting minutes? Is 2-3 weeks considered responsive?
   
   
3. 720 says requests to the H/O association for minutes, etc, are to be in writing. Are Email requests consider to be "requests in writing"? If not, how about when the H/O Board responds to the subject Email (via reply Email, confirming receipt but yet not providing requested info)--does this confirm a "request in writing has been received"?

Thanks,

- Ken W., Colorado Springs
Land owner and future resident of "the great Northwest of Florida"

Welcome to community association living!!

The answers to each of your questions is on the tip of my tongue, but they have to stay there. Your great state of Florida strictly prohibits the illegal practice of law, meaning that no one other than Florida-licensed attorneys may interpret laws or legal documents. If you would like, I would be glad to forward to you names of some Florida attorneys who are very familiar with community association law.

On the other hand, I would be delighted to answer questions regarding the operations of your community. Try me again!

Regards,

Margey

Margey, In your comments to my questions (see above) : Would I be wrong to assume the answers are "yes", "yes", "yes"?

- Ken W.

Really, all I can advise you to do is to consult with an attorney. I sure don't want your Governor Bush coming after me!

Sincerely,

Margey

---

Michigan law requires our condominium association to fund a "Reserve for Major Repairs and Replacement". Our new attorney has advised our Board to rename this fund as "Contingency/Reserve" and make it available to pay his fee for rewriting our documents. (Our developer has completed the condo project and there are also many revisions to incorporate.) Is this legal? Does the IRS permit this?

- Robert L.

This issue is one of the "gray" areas in the Michigan Condo Act. The law requires a reserve that is at least 10% of the annual budget on a non-cumulative basis. That doesn't mean you can't spend the reserves or that you have to contribute to it as long as you have 10% of the budget in the reserves. It is also "gray" in what you can spend the reserve fund on. Legal fees are not "major repairs or replacement." The idea of combining the reserve fund with a contingency fund sounds more dubious than legal. In fund accounting, the reserve fund should be completely segregated from anything else to assure compliance with state law. I would suggest that if you choose to utilize current fund in the reserves to pay for legal costs, you have your attorney put in writing that this is permissible. Even better, you might want to obtain a second opinion from an attorney knowledgeable in community association law.

I would suggest that you speak to your accounting firm on the tax implications. There may indeed be tax issues involved with using segregated reserve funds for operating expenses.

Finally, I would consider developing a multi-year cash flow budget rather than using reserve funds for operating expenses. This kind of budget lets you determine when funds will be available for discretionary expenditures. Re-writing the documents is normally not something that is urgent and could be budgeted over the next few years. Unless there is a compelling reason to do it now, why not plan and have the project done when you can afford it?

Sincerely,

Craig Koss, AMS, PCAM - Ann Arbor, Michigan

In the Open Meetings Act Association Board Meetings must be open if the community is in a county with a population of more than approximately 2 million people and if homeowners are required to belong to the association by paying dues etc. Our association (************* in Montgomery County) meets these requirements but we are told that the meetings are not open. Please Respond. Thanks How will we ever know what is going on if members cannot attend meetings?

- Nicholas D.

Effective September 1, 1999, certain property owners associations in Montgomery County, Texas, fall under the Texas Open Meetings Act.

Here's the language of the bill that was passed by both the House and Senate of Texas:

1-1 AN ACT
1-2 relating to applying the open meetings and open records laws to
1-3 certain property owners' associations.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter A, Chapter 551, Government Code, is
1-6 amended by adding Section 551.0015 to read as follows:
1-7 Sec. 551.0015. CERTAIN PROPERTY OWNERS' ASSOCIATIONS SUBJECT
1-8 TO LAW. (a) A property owners' association is subject to this
1-9 chapter in the same manner as a governmental body if:
1-10 (1) membership in the property owners' association is
1-11 mandatory for owners or for a defined class of owners of private
1-12 real property in a defined geographic area in a county with a
1-13 population of 2.8 million or more or in a county adjacent to a
1-14 county with a population of 2.8 million or more;
1-15 (2) the property owners' association has the power to
1-16 make mandatory special assessments for capital improvements or
1-17 mandatory regular assessments; and
1-18 (3) the amount of the mandatory special or regular
1-19 assessments is or has ever been based in whole or in part on the
1-20 value at which the state or a local governmental body assesses the
1-21 property for purposes of ad valorem taxation under Section 20,
1-22 Article VIII, Texas Constitution.
1-23 (b) The governing body of the association, a committee of
1-24 the association, and members of the governing body or of a
2-1 committee of the association are subject to this chapter in the
2-2 same manner as the governing body of a governmental body, a
2-3 committee of a governmental body, and members of the governing body
2-4 or of a committee of the governmental body.
2-5 SECTION 2. Subchapter A, Chapter 552, Government Code, is
2-6 amended by adding Section 552.0035 to read as follows:
2-7 Sec. 552.0035. CERTAIN PROPERTY OWNERS' ASSOCIATIONS SUBJECT
2-8 TO LAW. A property owners' association is subject to this chapter
2-9 in the same manner as a governmental body if:
2-10 (1) membership in the property owners' association is
2-11 mandatory for owners or for a defined class of owners of private
2-12 real property in a defined geographic area in a county with a
2-13 population of 2.8 million or more or in a county adjacent to a
2-14 county with a population of 2.8 million or more;
2-15 (2) the property owners' association has the power to
2-16 make mandatory special assessments for capital improvements or
2-17 mandatory regular assessments; and
2-18 (3) the amount of the mandatory special or regular
2-19 assessments is or has ever been based in whole or in part on the
2-20 value at which the state or a local governmental body assesses the
2-21 property for purposes of ad valorem taxation under Section 20,
2-22 Article VIII, Texas Constitution.
2-23 SECTION 3. This Act takes effect September 1, 1999. Section
2-24 551.0015, Government Code, as added by this Act, applies only in
2-25 relation to a meeting of a property owners' association held on or
2-26 after that date.
2-27 SECTION 4. The importance of this legislation and the
3-1 crowded condition of the calendars in both houses create an
3-2 emergency and an imperative public necessity that the
3-3 constitutional rule requiring bills to be read on three several
3-4 days in each house be suspended, and this rule is hereby suspended.

Be sure to note the criteria for the property owners associations that are now subject to this Act -- yours may not comply.

However, the prudent and reasonable action of the board, whether or not there is a law or provision in the governing documents, is to allow the owners the right to attend all meetings. That's not to say that owners should have the right to speak up at the business meetings of the board -- through the election process, the owners delegated the responsibility to operate their community association to their board of directors. Many boards like to provide a forum for owners prior to beginning the official board meeting in which to address the board on issues of concern to them. After all, that's what the democratic process is all about.

Sincerely,

Margey

I am on the board of a 300+ condo/townhouse association. For the three years I have lived here, trash disposal has been a problem. Many people use recycled grocery bags for trash. When these bags are placed outside the racoons, birds and other animals tear into them and the garbage goes all over the place.

Since we can't tell who puts out which trash, we are limited in how and who to fine for these violations.

Do we fine all 4 or 8 unit owners in a building, if the trash outside their building is not wrapped properly? We post notices, put articles in newsletters and nothing gets better.

One solution is to buy trash cans and put the address on each one. The board can easily absorb the cost of this, homeowners don't like the idea since most of us only have 1-car garages and there is not other place to store the trash bins.

Could we require homeowners to purchase address stickers to mark their trash bags? I know some will still not comply but at least we might be able to control the situation a little better.

Thank you in advance for any help you may be able to provide.

- Dolores K.

I applaud your board's efforts to maintain the appearance of your community, and can empathize with your frustration over the trash disposal antics of some of your residents.

There are a few assumptions I've made in order to develop a possible solution to your current situation:

1. Your association has promulgated clear rules about the appropriate trash containers and times for placing them out for collection;
   
   
2. Your association has promulgated an enforcement resolution detailing the process by which the board pursues deed or use restriction violators; and,
   
   
3. Both the rules and the enforcement policy were either included in your governing documents or created in accordance with your documents and/or state statute

If my assumptions are correct, there are several options for you to consider in eliminating the unsightly trash containers:

1. As unsavory as it sounds, hire a contractor to sift through the trash bags to find mail addressed to the resident or some other form of identification for the occupant. If your state statutes, governing documents and/or legally-developed rules permit, the contractor's fee can be charged back to the offending owner. Once you've identified the violators, you can pursue enforcement;
   
   
2. Require owners to place their respective trash bags (no trash cans) in a certain location for each townhome no earlier than a certain time, perhaps 12 hours before your scheduled trash pick-up time. The association could advise the owners that they will be fined if their trash containers or placement time are not in compliance; the owners should be concerned enough to ensure that the trash bags in their assigned spot comply with the specified criteria;
   
   
3. Distribute a box of approved trash bags to each resident and announce that additional bags are available upon request; 4) Encourage residents to comply with the rules by educating them about the impact of litter and debris on property values and the attraction to varmints and pests;
   
   
4. Offer rewards to residents who can prove that a neighbor is violating the community's trash container rules. Urge unity and a sense of community and harmony in working together to resolve this serious issue.

While some alternatives may be more effective and desirable than others, at least you now have some more options to consider.

Good luck in your efforts to maintain the attractive appearance of your community.

Sincerely,

Margey

I reside in a townhome association in Minnesota. The Association Declaration section dealing with maintenance responsibility, states that the Association shall have responsibility for the maintenance and repair of common elements and the exterior of all dwellings and garages located on units, which responsibility shall include, but not be limited to, the maintenance and repair of exterior surfaces of all buildings on the property, etc. Recently an exterior wall distressed due to a suspected settling of the ground. The ground area is under a deck that is 5 feet above the surface. It is layered with rock from the foundation wall to the grass area some 14 feet distant. All homes in the Association with an above ground deck have this rock covering the surface. It is my contention that should an exterior area of a dwelling distress and become invasive of the dwellings interior due to seeping water, that it is the responsibility of the Association to accomplish maintenance and repair as per the provisions of the Declaration. This happening was not the result of a willful or negligent act or omission of the Owner. The Association Board now believes that this is the Owners responsibility per the Declarations reference to Owner's Maintenance "Each Owner will maintain the structural elements of his dwelling (beneath the exterior which the Association maintains) in good condition and repair". The Association President in office at that time, reviewed the distressed area with me and approved the necessary M&R that the contractor proposed. All the rock covering the surface had to be raked back some 10 feet, the plastic lining was replaced, soil with pee rock was put in the area near the foundation to assure proper slope, a crack in the foundation was caulked and rock was redistributed to original placement. A very labor intensive activity costing $680. The project was reviewed by myself and the Association President and he agreed that this was an Association responsibility as per the Declaration provisions that we jointly reviewed. A month later a new President and Board elected to reopen the matter without announcing intent to do so and rendered the decision that this was the Owners responsibility as referenced above. In your opinion, is the Association or the Owner responsible for this M&R.

- James B.

Typically in a townhome community, the community association is responsible for the "skin" of the building only, and the owner must maintain the structure. However, only your community's governing documents and state statutes can determine who's really responsible for what.

Unfortunately, some governing documents do not address every possible maintenance situation, which seems to be the circumstances in your community. Usually, boards of directors are authorized to approve resolutions to address omissions and unclear provisions in the documents, and that's what your board can do with regard to assigning maintenance responsibility for the erosion of your foundation.

Since the foundation erosion may recur in your community, it may be prudent of your board to obtain a written opinion from your community association's legal counsel who is familiar with both the governing documents and state statutes. With that knowledge, the attorney should be able to present a resolution for board signature that addresses maintenance responsibility for the erosion and any consequences of it.

Sincerely,

Margey

Where is the best place to find an employee evaluation form?

- Gary A.

If you want me to tell you the one place for employee evaluation forms, I've got to go with Google. I entered "employee evaluation forms" in the key word search field, and came up with more than 66,000 results. Now, we both know that most of those results won't actually link you to an evaluation form, but it looks to me that at least the first fifty or so will be good resources for you as starting points to customize your own form based on each employee's role in your company.

Sincerely,

Margey

Our condominium association is trying to establish a policy regarding the display of flags or other ornamentation on the exterior of our buildings (i.e., common area). Do you have any suggestions on setting an effective policy, particularly on how to avoid "freedom of speech" issues?

- John B.

The Community Associations Institute (www.caionline.org) prepared the following flag use resolution in response to the outpouring of patriotism following 9/11. Before your board adopts this language, please be sure to have your attorney evaluate it to ensure that it complies with your community's governing documents and state statutes.

CONDOMINIUM, HOA, AND COOPERATIVE HOUSING SAMPLE RESOLUTION

[INSERT NAME OF THE COMMUNITY ASSOCIATION]

RESOLUTION TO PROMOTE PATRIOTIC EXPRESSION

Whereas, on September 11, 2001, terrorists hijacked and destroyed four commercial aircraft, crashing two of them into the World Trade Center in New York City, and crashing another aircraft into the Pentagon outside Washington, D.C.; and

Whereas thousands of innocent people were killed and injured as a result of those attacks, including the passengers and crew of the four aircrafts, workers and visitors in the World Trade Center and the Pentagon, rescue workers, and bystanders; and

Whereas, the Congress of the United States has passed a Resolution encouraging every community in the Nation to display the flag of the United States to remember those individuals who have been lost, and to show the solidarity, resolve and strength of the Nation;

Now, therefore, be it resolved by the Board of Directors of the [Insert name of the Community Association] that:

1. For a period of 180 days from the date of this Resolution, no restriction contained in the governing documents prohibiting the display of the American flag shall be enforced against any resident of the [Insert name of the Community Association] to the extent that residents may display one or more portable, removable flags of the United States of reasonable size and shape in the windows or affixed on or near the front door of the unit or on the limited common areas or in certain areas as determined by the Board in the immediate vicinity of his or her unit;
   
   
2. Notwithstanding any provision in the governing documents to the contrary, residents may display one American flag on the following days each year:

   Independence Day
   Martin Luther King, Jr. Day
   Veterans' Day
   Presidents Day
   Memorial Day
   Labor Day
   Columbus Day
   Thanksgiving Day
   New Year's Day
   September 11
   December 7
   Flag Day

3. During said 180 day period, the Board reserves the right to impose reasonable restrictions based upon legitimate public safety and property damage concerns.
   
   
4. The Board reserves the right to extend the period of the moratorium or to propose an amendment to permanently allow the display of the American flag by a vote of the Unit Owners.
   
   
5. If said moratorium is not extended, this resolution shall expire 180 days from the date hereof and the governing documents shall thereafter control and prevail.

Dated: _______________________________

Signed: _______________________________
Secretary

Sincerely,

Margey

In our Incorporated Homeowners Association (State of Texas) we have three governing documents. Articles of Incorporation, By-laws, and Deed Restrictions. My question is:

Which is the controlling document that gives power to the Board of Directors and exclusively guides their duties and responsiblilties to the Association including conduction of Association meetings?

Also, can you guide me to case law that would support your answer?

- Jim H.

In most circumstances, not only in Texas but nationwide, the hierarchy of importance of the various documents that affect a community association is, from most important to least:

1. Plat, plan or survey of the entire community
2. Declaration/Master Deed/Deed Restrictions
3. Articles of Incorporation
4. Bylaws
5. Rules and Regulations (if not a part of the Declaration/Master Deed/Deed Restrictions)

So, if there is a conflict between two of these documents -- for example, the Declaration/Master Deed/Deed Restrictions provide for five board members while the Bylaws provide for five), then the document higher up on the hierarchy rules.

In general, the Deed Restrictions address the operations of the community, such as the behavior of the residents and the appearance of the homes and common elements. The bylaws address the administration of the corporation, such as when the board must meet, who can vote, when the annual meeting must be held, and the power and authority of the board of directors. However, I've often seen governing documents that have some voting provisions in the Declaration and some rules and regulations in the bylaws -- it really depends on the attorney who drafted the documents and how knowledgeable he was about community association law.

Where is there proof of the hierarchy? Usually within the documents themselves there is a provision that details which document rules in case of a conflict. I'm not an attorney and therefore cannot quote you case law, but I can tell you that unless specifically described differently in a set of community association governing documents, the hierarchy I described above has existed since the formation of the first community association.

Sincerely,

Margey

I am a board member of a small voluntary home owners association. My question involves the relationship between the HOA Board and the Architectural Control Committee (ACC). When the subdivision was formed, the deed restrictions created the ACC but not the HOA. The HOA and the HOA Board were formed later. Due to vagueness in the rules appointing members to the ACC, a majority of the home owners voted to amend the deed restrictions. The new deed restrictions now give the HOA board power to appoint members to the ACC. There is a difference in opinion among the HOA Board as to the oversight power the HOA Board now has over the ACC. One opinion is that the deed restrictions created the ACC and since it was first, it is an independent committee and the HOA Board has no oversight power. Another opinion is the ACC is a committee of the HOA Board and it is the responsibility of the HOA Board to oversee the ACC. Which is correct?

- Cathy H.

Usually, the answer to your question would be pretty simple -- every committee reports to the Board and serves at the direction of the board, and no committee has authority or power over the Board unless specifically detailed otherwise in the Declaration of Bylaws of the association. However, because of the convoluted manner in which your homeowners association was created, I recommend that you have an attorney study all your dedicatory instruments to chart your association's infrastructure in order to figure out the answer to your question!

Sincerely,

Margey

I'm on the Board of Directors for my community HOA and we are looking to implement parking stickers for the residents. Do you have any procedures or helpful hints that I can use to implement this process?

- Christina

Before implementing a parking sticker program it at your community, be sure there's a procedure in place to enforce it. There's no point in going to all that time and expense of distributing stickers when there's no one monitoring the vehicles in the community or following up with owners who aren't complying with the rules.

Also consider the need for the rule. Why are parking stickers necessary? Are residents parking vehicles in the street or guest parking areas instead of in their respective garages? Are there inappropriate vehicles, such as large commercial trucks, RVs or dirt bikes, parking in your community? If any of these situations is the impetus for your board's desire to require residents to attach stickers to their cars, make sure that stickers will solve those problems.

Other issues to consider are:

1. Be sure to record which parking sticker numbers are assigned to each resident. It's much friendlier to be able to call or write the owner if their vehicle is violating a community rule instead of immediately towing it away. You want compliance, but you also want to maintain the community spirit in your neighborhood.
   
   
2. Create a Parking Committee consisting of volunteers (who either spoke up or were asked) who are less "HOA Commando" and more neighbor-friendly who can explain to violators why the parking sticker program was implemented. You want your residents to buy into the program and want to comply; Parking Committee members can help the board get the message our personally to the residents.

Now to the more legal aspect of implementing a parking sticker program. The first step in determining the board's authority promulgate rules regarding parking stickers is to look at the governing documents, primarily the Declaration of Covenants, Conditions and Restrictions, or perhaps what may be called the Deed Restrictions, as well as the Rules and Regulations. Are there already limitations in those documents regarding parking within your community? If so, then your board may determine that parking stickers will help enforce those existing requirements...

On the other hand, if there is no reference in any of the above-referenced documents to common area parking, the next step is to look at the bylaws of your community association. Is the board authorized to promulgate rules and, if so, is there a required rule development process?

Finally, before beginning the process of creating a rule regarding parking stickers, check your state's statutes to determine if there is a specific procedure describing the steps the association must take in order to adopt a rule. Absent language dictating the process in either your governing documents or state statutes, consider adopting the following method:

1. At a board meeting, discuss what you would like to rule to say and how it will be enforced. Create a draft of the proposed rule.
   
   
2. Announce to your members that the board will be considering a rule to require parking stickers on all vehicles parking in your community. Be sure to include in the announcement the date, time and location of the meeting in which the board will vote on the rule, and invite owners to offer their opinion on the proposed rule. It's best that they submit their comments in writing by a certain date. It could happen that an owner with a different perspective on the issue may provide essential insight that could result in a revision to the wording or scope of the rule.
   
   
3. At the announced date and time, the board should meet for final discussions, consider the previously-submitted input from your members, and vote on the rule.
   
   
4. Some states require that rules be legally recorded before they can be enforced. Check your state statutes and governing documents to determine if such language exists. Even if it doesn't, it's not a bad idea to record the rule, in a form of a resolution, to ensure that all future owners receive a copy of it when title to their home is researched for a resale.
   
   
5. Mail the recorded resolution to all owners and lessees, advising them that you will begin enforcing the rule on a certain date at least 30 days from the date of the mailing. Check your documents and state statutes again to determine if the letters must be sent by certified mail.

While vehicle stickers can certainly control parking in your community, it's important to balance the reasonable needs and desires of the owners with the obligations and duties of the association. By considering the above suggestions, your program should be well received, with high voluntary participation among your association's members.

Sincerely,

Margey

Several articles of the CC&R's have been openly violated by a number of resident members (including board members) for a number of years. In particular is the article limiting the number of pets allowed. Since this has been an open violation does this void the article as it has never been enforced?

- Ken D.

Not knowing in which state you reside, I can't go online to research your state's statutes. But you can! -- if you don't know the URL of your state's legislative body, try using "(your state) capitol" in the key word field of any search engine. Another source for a possible answer to your question is in your community association's governing documents, particularly the one which contains the restriction that is being violated. Both sources may address the issue of the ability of the association to enforce previously unenforced provisions.

In general, a board's failure to enforce certain provisions of the governing documents does not constitute "precedence", as many homeowners fear. It may still be possible to enforce long-forgotten or ignored rules, BUT it is critical that the following issues are addressed:

1. the board obtains a written attorney opinion validating the right of the board to commence enforcement procedures -- in the situation you described, to prohibit pets;
   
2. before requiring others to comply with the pet rule, the board must ensure its own compliance;
   
3. the board compassionately addresses the issue of pets who have been in the community for years, perhaps grandfathering all existing pets but prohibiting all new ones

Sincerely,

Margey

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