Ask the Expert

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

Is the Board of Directors allowed to vote on important decisions concerning Board member discipline in Executive sessions. The Board of our HOA removed a Board member for missing three meetings in one year per our Bylaws with a vote of 5 for 3 against with one member absent. One of the three meetings missed was declared an Executive session away from the community as a training session with the legal council and auditor. Is it true that Executive sessions are not technically a meeting? Is it true that Open Meeting Act Executive sessions are for discussion only on legal matters and others and the final voting must be brought forward to a regular Board of Directors meeting?

- Jack T.

I wish I could give you a definitive answer to your questions regarding executive sessions, but I can't -- too much depends on the language in the governing documents for your association as well as on applicable state law.

I can tell you that, in general, the following are valid reasons for holding an executive session (which can be considered a legal meeting of the board):

1. discussion of personnel matters;
   
2. discussion of litigation matters;
   
3. contract negotiations;
   
4. matters that both parties agree are of a sensitive nature and should be kept private.
   

Finally, depending on your documents, state statutes and your association's legal counsel, the purpose of executive sessions may be simply to discuss issues which then must be voted on during a regular board meeting. In other words, board members may adjourn to an executive session after announcing the issues to be discussed during the session, then meet in executive ession to discuss the announced issues, and then reconvene in regular session to vote on the issues.

Parliamentary procedure can be confusing and may vary by association because of provisions in the governing documents. When in doubt and to ensure that the meeting and the decisions reached at the meeting are valid, it's a good idea to consult with an attorney knowledgeable in community association law and parliamentary procedure.

Sincerely,

Margey

I am interested in obtaining information on the use of mail (absentee) ballots for condominium association elections. The data that interests me is as follows:

• Percentage of associations that use mail balloting in some manner
• Article(s) available on this subject
• Guidelines on implementing this type of ballot
• Proxy voting and recommended formats for proxy forms
• Guidelines on avoiding abuse of proxy voting
• Recommendations that you advise be considered

Thank you for your assistance.

- Phillip S.

I'm not aware of any statistics that detail the percentage of associations that use mail balloting, but I sure can point you in the direction of a source for a multitude of information on the subject. The Community Associations Institute's bookstore contains nuts-and-bolts books and reference material addressing all aspects of association operations. Enter “ballot” in the keyword search field and you'll come up with three results, each of which will answer your questions.

Sincerely,

Margey

Problem Boards

What if any action would you suggest is justified when one or more Directors, on the board of directors of my association, solicits multiple proxies for the purpose of aquiring multiple ballots to be cast in an annual meeting to elect board directors? Solicitations were by mail (to nearly 70% of all co-owners) offering stamped and pre-addressed envelopes plus proxy forms already containing the name of the soliciting director as designated proxy. In one case the Director was able to cast 16 votes plus their own. Thank you.

- Philip S.

Depending on the state in which you reside, the use of proxies during the election process may or not be appropriate. There are several sources that determine the legality of your board members' actions -- your state's statutes on community associations, your state's statutes on not-for-profit, or nonprofit corporations, and your homeowner associations' bylaws which usually dictate the annual meeting process, whether proxies are permitted and, if so, if there is a limit on the number of proxies each member may present. If you are unsure how to access your state's website, try entering "(your state) legislature" in the keyword field of any search engine.

There's more than just legal concerns that is involved in this issue, however. Are the directors intimidating homeowners to sign away their vote so that the board members can control who serves on the board? Or, are they simply intent on ensuring that a quorum is available in order to legally conduct the meeting? If the answer is the former, then homeowners should be aware of the directors' real intentions and refuse to sign a proxy, opting instead to attend the meeting, listen to the issues and decide him- or herself how the operations of the association should be administered.

It is not untypical for proxies to contain pre-assigned recipients because it's important that each form is properly executed in order to be valid. However, it's equally important that there be a blank line so that the owner may designate someone else to vote on his or her behalf in the event the owner is unable to attend the meeting in person.

Sincerely,

Margey

Problem Boards - Removal

I live in a neighborhood of 524 single family homes in Northern Virginia. We have over 51% of the residents willing to sign a petition to remove two "deadwood" members of the BOD. The straw that broke the camel's back in our community involves the "firing" of one of the neighborhood's most beloved and dedicated social committee volunteers due to personal reasons concerning these two "deadwood" directors ~ mainly petty jealousy. This neighborhood is ready to explode over this injust "firing" of a VOLUNTEER.

We just need guidance on how to proceed with the recall process in Virginia. There is an attorney who lives in the neighborhood that has offered to oversee the petition/voting process but we are wondering who to give the completed petitions to.

We have a professional management company but sadly, the property manager is "dug in" with the board. The homeowners do not trust the property manager and quite frankly, she seems to be a large part of the problem. The consensus among the majority of the homeowners is that the property manager has got to go as well and maybe even the management company.

Also, is there a commission or oversight body in Virginia that addresses extreme misconduct with HOA BOD's?

- Stan

I asked Ms. Sandra R. Mango, PCAM®, Vice President and Division Director of Community Management Corporation headquartered in Fairfax, Virginia, to answer your state-specific question. Here's what she says:

"There are no provisions in the Virginia Property Owners Association Act that cover removal of members of the Board of Directors. There is probably language in the individual Association's documents that outlines the process. If the language is not clear, or not there, there is language in the Virginia Nonstock Corporation Act, Section 13.1-860 that speaks to the process.

Briefly, the process is as follows:

Members may remove one or more directors with or without cause, unless the articles of incorporation or bylaws provide that directors may be removed only with cause.

Assuming that cumulative voting is not authorized, a director may be removed only if the number of votes cast to remove him constitutes a majority of the votes entitled to be cast at an election of directors. A director may be removed only at a meeting called for the purpose of removing him. The meeting notice shall state that the purpose, or one of the purposes of the meeting, is the removal of the director.

In Virginia, there is an "ombudsman" who can be contacted for information. The website address is Cynthia.schrier@dpor.virginia.gov. Information about this office can be obtained by going to the Virginia DPOR website, and clicking on the bullet that relates to common interest communities. Ms. Schrier is the community association liaison for the Virginia Board of Realtors."

Sincerely,

Margey

The article Ask Before You Alter in the September issue suggested that there were some forms (application and Revocable License). Can I get a copy of both?

- John K.

I'm delighted that you are interested in our Revocable License concept. I'm attaching the documents, with two caveats. First, it should be reviewed by your association's attorney prior to implementation. Second, the names should be changed to your association's or management company's.

Sincerely,

Margey

• Application
• Revocable License

*These documents are in PDF format. Viewing them requires Adobe Acrobat Reader, which is a free downloadable software available by clicking here:

Hi, first let me thank you for offering this helpful service! I am a new owner in an old condominium and found that our HOA dues have not been raised in over 25 years! Further each unit pays almost the same rate. We are raising our dues and I want to know how best to adjust the dues for each unit-- we have 7 units in the building -- 1BRs, 2BRs, and a Penthouse. I am assuming the larger units will pay more... how do I calcluate the rate? Thanks... look forward to hearing back from you.

- Jennifer

I'm delighted that you find our website helpful, and I hope my response maintains that record of usefulness!

It's hard for me to imagine not raising maintenance fees for more than 25 years. It's a real credit to your board of directors that they have been able to maintain the common elements while the relative value of the assessments diminished yearly.

With regard to the manner in which each unit is assessed, there is usually a schedule in the Condominium Declaration listing each unit or model and its percentage ownership or calculation method for determining assessments. If indeed that information is detailed in the Declaration, the only way to change the method of calculating assessments is by amending the Declaration. If your copy of the Declaration does not contain that information, be sure that it is a full and complete set before going to my next suggestion. It's not unusual for pages to be lost in the transfer from one owner to another; to be sure you have everything, you might need to acquire a certified copy from the local or state department that records condominium documents.

If your Declaration does not contain the assessment calculation method, or if you decide that you must amend your Declaration to reflect a new calculation method, the following is the typical formula for determining condominium assessments:

1. determine the square footage of each unit;
2. total the square footage of all units;
3. divide the square footage of each unit by the total square footage to determine the percentage ownership;
4. multiply the percentage ownership of each unit by the total monthly budget to determine the monthly assessment for each unit.

Sincerely,

Margey

Can a Board of Managers elect to pay out of associations funds to cover attorney fees for a private matter of a unit owner on a non association related matter? I have a unit owner that want the board to pay his legal fees because he has a temper and has problems with other owners from time to time and now another owner is going to sue him for harrassment. Thank you in advance.

- Rhonda

To answer your question in a nutshell, no, your association cannot expend maintenance funds on matters that are not identified as common expenses of the association. It sounds like the owner with a temper needs to make sure he has his own liability insurance.

Sincerely,

Margey

Last month the owner of the building (who still owns 5 units out of 16) turned over the control to an association. Most of the owners who do not live in the building and some who live there as well for several reasons are way behind in their payments and did not vote for the Board. As a consequence the builder and his son voted for each other and still are in control. To make things worse the Management Company that they hired seems to be on their side and continuously lie and do not pay bills. (We did not have our trash picked up in 3 weeks!) At the first association meeting we were told that there is an outstanding water bill in the amount of $13,000 (the developer did not pay water for a long time). My 2 questions are: is the developer responsible for the water bill?? and also, how do we get out of this mess? I am one of 6 owners who live in the building and pay our dues on time. Any idea will help. Thanks.

- Silvia T.

With regard to who's responsible for the $13,000 water bill, investigation needs to be performed to determine 1) when the charges were incurred, and 2) what your governing documents -- probably the Declaration -- say about the developer responsibility to pay for expenses that exceed the association's income.

With respect to the first point, your developer should be responsible for all water bills prior to the date the first person moved into your community. Second, after the first move-in and depending on the relevant provisions in your governing documents, the developer may have been responsible for paying a pro rata amount of the monthly assessment for all unsold units. In the alternative, he may have been responsible for covering all the association's funding shortfalls when there was an inadequate number of sales to support the monthly expenses such as landscape maintenance, common area insurance and maintenance, utilities, and management fee. The developer's responsibilities to the association should be clearly delineated in your Declaration.

If your management company has not been paying your bills, perhaps that's a result of not having adequate funds in the association's account. That could be the result of both the developer not funding shortages/paying his pro rata amount, and the homeowners you mentioned who are delinquent in remitting the amounts due their association. That combination can only result in vendors and suppliers clamoring for payment and threatening to terminate services.

How can you resolve this issue? Your association's bylaws should contain a provision detailing how to remove board members. I feel confident in saying that one of the requirements will be to persuade your delinquent neighbors to catch up on all payments so they are eligible to vote at the special meeting your bylaws probably require to unseat the board. Also, if your state has an HOA Ombudsman, or if your local television stations offer consumer advocates, those may be other avenues for you to pursue.

Sincerely,

Margey

A member of our association has placed assessments for boat docking in an escrow fund due to a legal dispute among three co-owners having nothing to do with association funds. Is this appropriate or legal that the association accept this escrow fund in lieu of assessments? Our governing documents are silent in this regard.

- E. K.

Most homeowner associations' governing documents contain a provision that says that an owner may not waive his or her obligation to pay the assessments under and circumstances. Some documents go as far as to mention that escrowing assessments are not authorized. If your Declaration does not contain this language, the next step would be to look to your state statutes to see if there is an applicable provision in any laws affecting homeowner associations. If you're unsure how to access your state's website, enter "(your state) legislature" in any Internet search engine.

If your documents do contain language prohibiting owners from failing to pay their assessments or waiving their assessment obligations, then your association should be able to pursue collection of the boat dock owner's assessment. However, be sure to consult with your legal counsel before beginning any collection efforts.

Sincerely,

Margey

We are currently living in a community that is only 25% completed; unfortunately, we cannot assume control of our homeowners association until it is 85% complete. The problem is that our community has been at 25% for the last two years. It is rumored that the builder is struggling financially, and on the verge of filling bankruptcy. I've been told by the builder's representative that this matter should not concern me since I have closed on my home. My community is short of looking like a ghetto, vandalism occurs in our community frequently, surrounding neighborhoods drop off their garbage, our entrance signage is partially destroyed, and we have light post out in our neighborhood.

The builder's response, "it will eventually get done".

In the meantime, we have no mailboxes and the nearest post office is 12 miles away. I complained to the post office. The post office official told me they were ready to deliver mail in my neighborhood, but the builder needed to pay $2,000 to get the boxes installed.

Today I got my financial statement that I've been nagging them for the last year and the numbers do not make sense. There are 69 units and each unit pays $265 quarterly for a grand total of $73,140.00. The association claims it only made $43,844.00 and the statements claims that the association only collects $159.00 per unit. When I looked at the expenses the association show exactly $43,844.00; in other words they breakeven every year.

My question is: Can we pay our association dues to a court, keep the money in an escrow account, and have the court pay the bills? This will allow us to use the money to get the things we need fixed in our community and cleaned up. Thanks.

- R. V.

Before escrowing your maintenance fees, I urge you to consult with legal counsel. If your association's governing documents do not contain a provision allowing for escrowing fees, and your state statutes applicable to homeowners associations do not contain authorizing verbiage, your association, through the developer board, may be able to sue you personally and/or foreclose on your home for nonpayment of legally assessed dues.

As a member of the association, you have a right to inspect its books and records at any reasonable time. Why not review the material to determine if there are any improprieties before instigating any other action? If you do find irregularities, bring them to the developer and ask for an explanation. If you're not satisfied with the response, you have a much better argument for an immediate transition of control of the association from the developer to the owners.

Sincerely,

Margey

I live in a townhome association in Minnesota and was wondering if there are any guidelines/laws as to how much - what percentage of income - must go into reserves. If not, is there a "rule of thumb" - a recommended percentage? Thank you.

- J.

http://www.revisor.leg.state.mn.us/stats/515B/ is the link to Minnesota's Common Interest Ownership Act. Here's what is says with regard to reserves:

"515B.3-114 Reserves; surplus funds.

The annual budgets of the association shall provide from year to year, on a cumulative basis, for adequate reserve funds to cover the replacement of those parts of the common elements and limited common elements which the association is obligated to maintain, repair, or replace. Unless the declaration provides otherwise, any surplus funds that the association has remaining after payment of or provision for common expenses and reserves shall be (i) credited to the unit owners to reduce their future common expense assessments or (ii) credited to reserves, or any combination thereof, as determined by the board of directors.

HIST: 1993 c 222 art 3 s 14"

Since there does not appear to be any state requirement for community association reserves, the next place to look is your governing documents -- probably the Declaration. Still no detailed mandate? Rather than guessing at an appropriate amount to keep in reserves, I suggest you contract with a Reserve Specialist, an engineer who received the RS designation from the Community Associations Institute (www.caionline.org) and who specializes in preparing reserve studies for homeowners associations.

Sincerely,

Margey

I live in a subdivision built in 1976. There was a homeowners association in effect back then. We do have CC&R's. But it has been since the late 70's since a homeowner's association met.

I along with some of my neighbors have been thinking of activating our HOA. We are interested in stopping the drug dealing and other problems in our subdivision. Our CC&R's do not deal with those particular issues, but they do deal with trash and other debris in yards. The houses with drug dealers are the houses with major amounts of trash. Is a HOA a good way to deal with these issues?

How do we re-activate our HOA? Can we add to our CC&R's to shut down the drug dealers?

- Stacey D.

If your only concern is ridding your community of the drug dealers, you will have more success by working with your local law enforcement officials or, depending on the extent of the drug activity, with the federal Drug Enforcement Agency. Start with the local police department and be persistent in your request for intervention. Offer to help them in whatever manner they dictate, from recording license plates to allowing officers to watch the drug traffic from your window. Do NOT try any vigilante actions on your own or with a group of neighbors!

If you want to revive your homeowners association for other reasons such as deed restriction enforcement and/or maintenance of common areas, both of which may require assessments fro each owner, you will probably need the services of an accountant and an attorney. They can complete whatever paperwork is necessary by your state and the IRS in order to ensure that the association is a corporation in good standing and authorized to do business. The attorney, if he or she practices community association law, should be able to guide you through the amendment process as well.

Sincerely,

Margey

I am the president of a small condo in Florida. I have been told that the state recently passed a law/statute/something regarding what is covered under the master condo policy and what the individual unit owner is responsible for regarding insurance claims. Does this exist and where would I find it. I have been looking all through the State of Florida websites. Thanks for your help!

- Debbie F.

The State of Florida does not allow anyone other than attorneys to interpret legal issues. Rather than chance censorship, I'm sending you this link, http://www.state.fl.us/dbpr/lsc/condominiums/laws.shtml, which is a Florida legislature site that will point you in the right direction to answer your question.

Sincerely,

Margey

What is the maximum amount that the law states that an association can increase the maintenance fee per year?

- Tom

Since I don't know in which state you reside, I can't provide information on the maximum increase authorized by state law. However, I can offer you direction to find the answer yourself: your governing documents and your state's legislative website. Your governing documents, in particular the Declaration, may contain a provision specifying the maximum assessment increase your board of directors can approve without a homeowner vote. State statutes relevant to your specific type of home ownership (condominium, planned community or cooperative) may also contain a provision limiting the annual percentage increase. If you are uncertain how to access your state's legislature and laws, enter "(your state) legislature" in the keyword field of any search engine.

Sincerely,

Margey

(Also, see our State Information page.)

Is a city permit necessary to repair a portion of my elderly mothers driveway in Houston, Texas?

- Ron G.

For the correct answer to your question, I went to an expert -- Mr. Mark Kassouf, President of Guaranteed Builders, Inc. in Houston. According to Mr. Kassouf, you do not need a permit unless the repair is located on the first four feet of driveway from the street.

Sincerely,

Margey

Hello, your website is a great source of info. I am a new homeowner and currently Board Member elect of our HOA. Everything will turn over completely to the homeowners from the the developers in a few months. How do we go about finding an attorney to make sure that all is in order? I am located in Houston,TX. Thanks much.

- T. M.

I'm delighted that you find our website useful! I'm even more pleased that you realize your responsibilities as a director of a transitioning board and are seeking competent legal counsel to ensure a smooth and orderly transition. To find an attorney knowledgeable in community association law and, more particularly, community associations transitioning from developer control, I recommend you visit the website of the Greater Houston Chapter of the Community Associations Institute (www.caihouston.org) or call the office at 713/784-5462 to ask for a list of lawyer members of the chapter. If you're overwhelmed by the number of attorneys who have joined CAI, please write back and I will be glad to discuss your options in more detail.

Sincerely,

Margey

Hello, I am actually asking this question for my sister and her husband. They recently moved out of a rental apartment complex after living there for approximately 2 years, due to the fact that they purchased/closed on a new home. They gave the lessor 60 days notice, meticulously cleaned before terminating the lease (after meticulously maintaining their apartment for the duration of their rental), etc., etc. The lessors have now sent them a letter demanding $1400 from them, stating that the carpet had stains and one of the shades in the guest bedroom was broken (this was broken when they moved in, I am witness to them). They are demanding another months rent, as well as security deposit and other miscellaneous 'unlawful' and'unfair' charges. I am trying to help them find out what help they can get, or do they have a case to "NOT HAVE TO PAY" these unfair and outrageous charges. Can you help?

- Carole

While our service focuses only on homeowner association issues, I can refer you to a potential resource for your sister. Many cities have a chapter of the National Apartment Association, which has a service that can mediate or otherwise help resolve deposit questions. You can access their website at www.naahq.org.

Another possible recourse is your local court system, sometimes called Small Claims Court. Your sister can represent herself in this court, and explain to the judge in her own words why she thinks she should receive her deposit and not be responsible for the charges claimed by the apartment complex.

Sincerely,

Margey

I recently bought a townhome whose "homeowners association" is a not for profit corporation. Which laws govern this....718 condominums or 720 homeowners of 617 nor for profit?

- Diane G.

I'm not familiar with the state law you are referencing, but I can help guide you to the right answer. A townhome association can be one of three types of home ownership -- a planned unit development, a condominium, or a cooperative. One usually cannot tell by looking at a townhome community which type of ownership it is; the answer is founding the governing documents, specifically the Declaration. The title of the Declaration usually reveals the type of ownership -- "Condominium Declaration' indicates that your townhome community is a condominium, "Declaration of Covenants, Conditions and Restrictions" usually indicates a planned unit development/homeowners association, and "Master Deed" may indicate a cooperative. To confirm the type of ownership, look at the first page of the Declaration in which is usually stated the type of association that is being created by the document.

I've addressed the first part of your question, so let's look at the second. Your community association is governed by more than one statute -- the specific state statute that addresses the operations and authority of your specific type of association (such as one of the two you mentioned), the nonprofit or not-for-profit corporation act, any state debt collection acts, any Good Samaritan Act that your state legislature may have passed, along with several federal laws such as the Fair Debt Collections Practices Act, the Telecommunications Act of 1996, and the Fair Housing Act.

Sincerely,

Margey

(Also, see our State Information page.)

I am the president of a small condo association in Florida. Is the Association responsible for maintenance and replacement of sliding glass doors and windows? This might include caulking around said items. If we are responsible can we make someone install hurricaine shutters and would we then be responsible for the maintenance of them? Would we then become responsible for the maintenance of other hurricane shutters on units that already had hurricane shutters installed? Thanks in advance for your help!

- Debbie F.

Unfortunately, I'm still restrained by the State of Florida from responding to your legal questions. If your documents are not clear on maintenance responsibility, and if your Florida Condominium Act does not address those matters either, I urge you to contact an attorney experienced in Florida community association law. To find such an attorney, you could go to the Community Associations Institute at www.caionline.org, click on the link to the national chapters, and find one closest to your community. The chapter executive director may send you a list of all attorney members of the chapter.

Sincerely,

Margey

Recently, after we changed management companies, we found out through our lawn and snow removal service companies, that our old management company was charging them an, 'administrative fee' for handling the contract. Of course their bids were inflated to cover this cost to them. Is this legal or ethical without telling the co-owners association that this is being done? Please, do not use my name as I wish to remain anonymous. Thank You.

Management companies should avoid all real or perceived conflicts of interests. Charging contractors fees in order to win or continue contracts with the management company's clients is inappropriate if the fees were not disclosed to the board and approval of the fees acknowledged in writing by the board. Even worse is the possibility that the association may have paid more than it should have for contract services.

Good for you for recognizing the need to change management companies even before this unethical behavior was uncovered. While most community association management companies are principled and honorable, board members are still ultimately responsible for everything that occurs in and happens to their community. Don't second-guess everything your new company does, but work together as a team to ensure that the best interests of the community are considered. Be sure to read and understand your financial statements and monthly management report, and ask questions whenever you don't understand something.

Sincerely,

Margey

In a townhome association in Florida can by-laws be amended retroactively?

- Judy T.

According to Bernie Meyer, Chairman of DCI Association Services in Hollywood, Florida, Florida community associations may not amend their bylaws retroactively.

Sincerely,

Margey

Do we have a right to post political election signs on our lot even though they are prohibited by the covenants and restrictions in our home owners' association. This seems to be a free speech issue. I saw on the web where in Ohio several municipalities zoning laws were deemed unconstitutional under state and federal statues for restricting political signs. Would the same apply to our homeowners regulations? Specifically the language states. "No signs of any character shall be erected, posted or displayed upon an Lot, except street and identification signs installed by the association or the developer and excepting one temporary real estate sign not to exceed six square feet in area erected upon the lot advertising same upon the market for sale or rent."

- Dave N.

The reasonable side of me wants to tell you yes! yes! yes! -- your board should approve a resolution allowing residents to exhibit political signs within a certain period of time of an election. However, the restrained side reminds me that your Declaration is very specific in permitting signs only for real estate sales or leases.

How do we resolve the conundrum? There are three possible solutions. First, check with an attorney to determine if there is any case law in your state in which the court decided to override homeowner associations' deed restrictions and allow political signs during election campaigns. Next, check for state laws that require homeowner associations to permit political signs. Finally, if the first two queries are unsuccessful, consider amending your Declaration to revise the language you referenced to be more reflective of the wishes of you and your neighbors.

Sincerely,

Margey

I am a Board member of a residential Homeowners Association. A homeowner built a 7' x 12' children's playhouse in their backyard, brought to the Board's attention by a neighbor concerned about the 'structure' violating Restrictions against either temporary or permanent buildings of any type. There are specific restrictions against sheds or storage facilities. The homeowner contends that their playhouse, while loosely may fit the definition of a building (i.e. 4 walls, roof, door, windows, floors etc), does not explicitly violate any rules (and of course, points their fingers towards other people's less tasteful landscaping, etc). The Board reviewed the 'structure' and deemed it was a violation, met with the homeowner, who vehemently opposed. The Board called a special meeting to have an open debate/discussion with residents. Pros/Cons were put forth by both violators and other concerned residents. We are at an impasse: without incurring significant legal expenses, what are the next steps the Board can do? The City has told us this is a private Association matter. Doing nothing sets an irresponsible precedence for others to exploit the current events. Thanks.

- Tom B.

I concur that not taking action against the owner who has construed a structure in his back yard sets a very bad precedent. Unfortunately, there is limited self-help available in this situation. If the city does not require a permit for such construction, there's no free assistance there. Your documents may contain a provision authorizing the association to remove unapproved construction, but you may be hesitant about trespassing onto someone's private property.

Is it possible to find an attorney in your area who would agree to pursue this violation on a contingency basis? If it is as clear-cut as it sounds, you may be able to find a lawyer who will agree to add his fees to the summary judgment he'll file.

Sincerely,

Margey

I live in a co-op on Fort Lauderdale Beach, Florida. I am on the Board of directors. Three members have placed private cabanas on the beach area. We do not have any cabanas on our beach. Our proprietary lease states that common area is to our tide line. Many of us believe that since the beach is common area a membership vote is necessary to place cabanas on the beach. The three members who placed the privately owned cabanas on the beach claim that the beach is not a common area like a patio. We want to resolve this issue very soon. I feel a membership vote is the correct way of handling this situation as our recorded rules state that a membership vote is required to change a common area this includes placing or removing items. We hope it does not require a 100% vote. Thank You.

- Steven L.

Unfortunately, the state of Florida has very strict laws against nonattorneys offering legal advice. So, while I wish I could help you resolve the issue of members placing private cabanas on common areas, I can only refer you to an attorney experienced in Florida community association law. To find such an attorney, you could go to the Community Associations Institute at www.caionline.org, click on the link to the national chapters, and find one closest to your community. The chapter executive director may send you a list of all attorney members of the chapter.

Sincerely,

Margey

We have a neighbor in our small gated subdivision of 10 homes that has erected a RV shed that is 20' tall by 30' wide. This was not approved by the Archeictural Review Committee, they told her that they needed to see the elevations before she could build it. She went ahead and submitted her plans to the city, got approved and built it anyway. The city says since she was approved by them, they can do nothing to help us because we are an association. In our CC&R's it states that any building must be 15' from the side fence and 30' from the back fence. She is 12 and 20, city requirements. What recourse do we have and how do we enforce the outcome if it is in our favor?

- L.

You have quite a dilemma because the city approved your owner's plans although they violated your community's deed restrictions. Most municipalities require the owner to provide proof that there are no deed restriction violations resulting from a requested building permit before approving the application. You might check with the permitting department to determine if there was any fraud involved in the application process -- is it possible that the owner declared that the shed complied with the association's governing documents? If so, the city should void the approval and require the owner to remove the shed.

If you efforts with the city prove futile, consulting with your association's legal counsel may be your only other alternative. It may be necessary to sue the owner in order to have the shed removed. Before that becomes necessary, however, I urge you to try alternative dispute resolution, including mediation and arbitration, to attempt to resolve this issue outside the courtroom.

Sincerely,

Margey

In the event of a violation of the posted rules and regulations in a common area by the tenant of a homeowner, what are the proper procedures?

- M. K.

If a tenant violates a community association's rules and regulations, the notification of violation and any additional legal recourse should go to the owner, with a copy to the tenant. However, I urge board members and management companies to take the kinder, gentler approach by first making a courtesy phone call to the tenant, who may not be aware of the rule.

Sincerely,

Margey

Subject: Exterior Appearance / Window Coverings.

At our next board meeting we will be voting on having it be a requirement to have white linings facing the exterior of the windows as to make an appearance of uniformity to the building and to protect the value of our new condo. We currently our at 70% occupancy and already have people hanging orange, black and all colors of the rainbox in the windows. I know that we will have much protest at the next meeting. People give me some useful reading or backup articles / input that you might have on this issue. Is it a big deal? Is it an infringement on rights of homeowners? Does the multi-un ununiform coloring from the exterior affect the value or just the general appearance? Is it common for a condominium to require this in a 48 unit condo building? Why? Please help as I really want to help make a educated decision at our October 26th meeting.

- Best Regards, Mike

Before the board approves a rule requiring all window coverings to have white linings, I urge you to consult with your association's legal counsel. It sounds like you already know that the owners will not be happy with the rule, immediately creating a very hostile environment for enforcement.

Additionally, consider what kind of fines or other enforcement mechanisms you intend to utilize to ensure compliance. If you have to go to court, it's unlikely that any judge will agree to enforce such a strict rule because it was not agreed upon by the owners. The judge may be more inclined to side with the association if the window covering restriction was approved by the requisite number of owners through an amendment to the Declaration, rather than just a rule that was approved only by the board.

Unattractive, multi-colored and poorly-maintained window coverings can indeed affect property values. Why not ask an appraiser or Realtor to speak at a townhall meeting about the benefits of a consistent exterior appearance of windows?

Sincerely,

Margey

Thanks for your help. (see above) Although please be aware that we are inviting the homeowners to the meeting on the 26th for additional input. They did elect the board and we will follow there recommendations. I just want to have good backup to present. Since the meeting is on the 26th (Tuesday) any additional sources of information that I can gather that would say specifically that "uniform" window covering will help with keeping and increasing the value of the condo complex? Any additional help would be appreciated.

- Thanks, Mike

A local Realtor familiar with community associations is your best bet as an expert who will state the value of uniform window coverings.

Sincerely,

Margey

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