Ask the Expert

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

I will be holding my first annual meeting as board president. What is the correct order of the meeting? This is what I have seen as a suggested agenda.

1. Homeowner discussion
   
2. Introduction of candidates
   
3. Call board meeting to order after meeting quroum
   
4. Call to order regular board meeting
   
5. Roll call
   
6. Approval of old minutes
   
7. Manager's report
   
8. Treasurer's report
   
9. Old business
   
10. New business
    
11. Close meeting
    
12. Call Annual meeting to order
    
13. Roll call
    
14. Accept minutes of last year meeting
    
15. Announce vote results
    
16. Introduce new board members
    
17. Motion to adjorn
    

Is this the correct order to follow? Have I left out anything?

- Dolores K.

The first place to look for the order of business for your association's annual meeting is your bylaws, many of which actually contain a mandated agenda. If there's no such provision, check your state statutes, specifically laws addressing your particular form of homeowners association (condominium, planned community or cooperative), for any language regarding the order of business. Still no success? Go to The Community Associations Institute's bookstore to take at look at "A Guide to Annual Meetings, Special Meetings and Elections" (code 5532), which is an excellent, very detailed discussion on every aspect of preparing for and conducting homeowner association membership meetings.

Back to your specific question on the order of business at an annual meeting. Absent specific requirements in your governing documents or state statutes, I would rearrange the order you listed to come up with the following:

1. Welcome
   
2. Proof of notice of meeting
   
3. Verify quorum
   
4. Call to order
   
5. Introduction of board and guests
   
6. Approval of minutes of previous annual meeting
   
7. Introduction of candidates
   
8. Election of board members (ballots are counted while the following reports are presented)
   
9. President's report
   
10. Treasurer's report Manager's report
    
11. Old business
    
12. New business
    
13. Announcement of election results
    
14. Adjournment
    

Sincerely,

Margey

I am on the Board of a Condominium Association in Illinois. Recently it was brought to our attention that another Board Member is not technically a unit owner. His name, nor his wife's name, are not on the taxpayers role, nor are their names listed on the deed for the property. Instead, his son and wife are listed as the owners. The Illinois Condo Property Act states that board members need to be members - that is owners. He is claiming that since his family owns the unit, he is entitled to remain on the Board. Can you advise if he is correct?

- J. N.

According to Ms. Christine Evans, PCAM, President/CEO of Vanguard Community Management, there are no special definitions of "owner" in Illinois that would extend ownership rights to family members. Your board member should be replaced in accordance with the provisions in your bylaws that detail the procedure for replacing a board member whose term has not expired.

Sincerely,

Margey

We are a two year old hi-rise community (199 units) with By Laws and CC&R's created by a legal firm for the developer. According to the By Laws the Board has created and ratified charters for various committees. At the last general Board meeting, the Board dissolved the Rules Committee. There was no discussion as to why, only a vague reference to the fact that the CC&R's need to be amended and they were going to deal with that task. All violations will go from the Board to the manager (who is on-site). There was no motion made and approved by the Board for this action. The dissolution of committees is not mentioned in the By Laws. Was this legal for them to do?

- Nikki A.

Typically, committees are created by the board for a specific purpose, such as a Standing Committee to provide extra sets of eyes to ensure the lawn contractor is performing well, or an Ad Hoc committee to do the legwork to investigate a single issue, such as revising the bylaws. Unless the committee is mandated in the governing documents (a Mandatory Committee), the board usually has the authority to create and disband them as they see fit. That being said, there should be a vote by the board to take such action.

Sincerely,

Margey

I am a board member of my Community Association. My wife is interested in running as well, but we have been told that is not permitted. Do you know if that is a true statement for the State of Florida or should I look to our Community Covenants?

- Randy

In the absence of language to the contrary in your association's governing documents and state statutes, Robert's Rules of Order permits spouses to serve on the same board. However, the state of Florida prohibits non-attorneys from providing legal advice or interpreting Florida law. To find 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

Our condo association has sent out notice of annual meeting along with "Notice of Intent to be a candidate for the Board of Directors". It is my understanding that any owner has the right to be a candidate and if more than one letter of intent is submitted for a building there is to be a vote. An owner sent in a letter of intent along with their information sheet and the acting President contacted this person and told him that his building had a representative. He also questioned how many meetings he would be able to attend. The only requirement to run for office is to be a owner... My question is was this unethical and/or illegal? Thank you.

L. S.

Let's give the president the benefit of the doubt and think that he was calling the owner to determine availability for board meetings, at which most decisions regarding the operations of the community are made. All homeowner association boards need the active participation of each director in order to be productive and effective. If that was indeed the intent of the president, he may only need to improve his communications skills and better explain the purpose of his inquiry.

However, if the president was attempting to "stack the deck", so to speak, and ensure that only his compatriots are elected to the board, that could be viewed as an inappropriate use of his position. Check your association's Declaration, Bylaws and rules to determine if the election process is detailed. If it is, why not ask to be on the agenda of the next board meeting to present your findings? It's possible that your directors are not as familiar with the documents as they should be, and relied on the interpretation provided by the president or another director. Demonstrate your interest in serving on the board by attending each board meeting so you can become familiar with the responsibilities of a director and the decision-making process.

Sincerely,

Margey

Elections

When voting for the Board of Managers, what is the best number of members to have? Do you suggest to vote for three and appoint two? Our prospectus says vote for 3 and appoint two so all 5 have broad privileges of voting for or against and sign checks. One of our Board Members is trying to say it is illegal for the two to be appointed but the prospectus makes it o.k. He feels the only board members are the ones voted in. What do the majority of associations do? This is causing a great rift. Thanks...

- Marian G.

Is it possible that the provision in the prospectus to which you're referring relates only to the period of time in which the Declarant (developer) controls the association? If control of the association has transferred to the owners, look at the Bylaws, not the prospectus, to determine how to run the corporate aspect of your association.

In the 25 years I've been involved in community association management, I've never seen a governing document provision requiring the appointment of directors after Declarant control. Instead, all board members are elected by the association membership. I'm hoping that you'll find that your association's bylaws require that all Managers should be elected by their peers. If not, please write back letting me know in which state you reside and I'll try to be more helpful.

Sincerely,

Margey

Thanks so much for you response. (see above) Our By Laws appear to be written that those positions of the Board that need to be elected are: President, Vice President, Secretry and Treasurer. Somehow our management company put out the ballot to elect three... which happened, and two of those three appointed two more to the board, so as to get the board to five again.

This needs to be voted on at the next resident's meeting. The majority of the Board feels the appointment is legal, one person wants to call this Board illegal. By Laws state two can be appointed by majority of Board... twas done, still we are getting difficulty from one Board member. We are in Schenectady, NY and believe we have followed the By Laws perfectly... can it be possible this one board member wants something other than a happy board?

Thanks in advance for your help.

- Marian G.

Don't confuse officer positions with board member positions. Typically, the bylaws state that the owners elect a certain number of directors, and the directors, among themselves, elect officers.

With regard to the provision authorizing the board to appoint two directors, is that to fill unexpired terms of board members who resigned, or to increase the size of the board?

It's critical that these nuances be addressed in order to resolve your issues.

Sincerely,

Margey

(See above) These two positions were filled to make the Board a five member Board. For the past 13 years we have always had five members, with full voting rights, etc. If somone resigned, a person would be invited to join the board without election, to maintain a five member board. Does this information help?

- Marian G.

There are four other board members – I suggest that at least one of them have a heart-to-heart talk with his recalcitrant colleague to explain the parameters and limitations of the board's authority and the need to behave reasonably and fairly. If the board member disregards the sage advice, I suggest that the remaining board members conduct the business of the association as best they can, controlling the fifth director through timed agendas and written procedures for approving expenditures and communicating with owners. When the director's term is up, the board could encourage the owners to assign their respective proxies to board members other than the misbehaving one, or to attend the annual meeting in person, to ensure that the board member is not re-elected.

Sincerely,

Margey

I'm President of an HOA with 13 units. We just had our annual election to fill 5 Board seats. The highest 6 votes were 13, 12, 10, 10, 7, 7. This means there needs to be a runoff election between the 2 people who received 7 votes each. However, most of our homeowners don't want to cast a vote thereby "playing sides". How do you suggest we break this tie? I can tell you that a few (maybe 3 or 4) ARE willing to vote. Can we simply go with a majority of those 3 or 4 votes? Thank you.

- Jackie S.

With only thirteen units, it's very difficult to keep elections unbiased and impersonal. It's also unusual to have almost one-third of the membership serving on the board. Here are some possible solutions to your dilemma:

1. amend your bylaws to reduce the number of directors from five to three;
2. hold another meeting at which there is a quorum; whoever attains a plurality of the votes, no mater how many or how few votes are cast, is the new board member;
3. flip a coin or draw straws for who will be the 5th member of the board.

Yes, this really can be done.

Sincerely,

Margey

I am the treasurer of a HOA in Texas. I was not able to attend the last board meeting due to my work schedule. During that meeting, which was only of the directors, those attending voted to fund a "directors dinner" the week before Christmas, to be funded by association funds. They also elected to invite committee members for appreciation of their work.

Our by-laws state that directors cannot receive compensation, except for re-imbursement of funds spent on assocaition business.

This action was apparently blessed by the management company and the association attorney with the caveat that the expense be only listed as "community activity". While I don't object to funding a dinner for committee volunteers, I do object to directors voting themselves a free meal at the homeowners expense.

Is this ethical and/or legal?

I have already told the other directors I would not attend unless I paid for my own meal.

- W. H.

For all the -- sometimes thankless -- work and the time away from their personal life that the board commits to the association, an annual dinner to thank the volunteers who helped make the year a success in not out of order. Of course, going to the most expensive restaurant in town would not be appropriate, but celebrating the board's and committee's involvement in their community certainly is. Perhaps the dinner will even entice more volunteer involvement next year -- and that's what it takes to ensure the successful operations of a community association.

Sincerely,

Margey

During a Board meeting we typically adjourn the meeting, let the Manager go and then continue talking. It's called an "Executive meeting" These meetings should be taped and definitely minuted. It's really just an extension of the Board meeting. Yes, there is a quorum still.

- gta

I'm not quite sure what your question is, but it looks like it has to do with executive sessions. Executive sessions in community associations are often regulated by either state statute or the association's governing documents. In general, there are only four reasons for conducting this secret meeting:

1. contract negotiations
2. litigation
3. personnel matters
4. matters of a sensitive nature about which both the owner and the board agree should be kept confidential.

Yes, a quorum must be present and, yes, minutes should be taken of the decisions made at the meeting. In fact, some attorneys recommend that you announce in your regular board meeting that you will be adjourning to executive session to discuss the following subjects, then reconvene after adjourning from executive session to announce the decisions made so they can be recorded in the minutes of your regular board meeting. You might consult with your association's attorney to ensure that you are properly holding and conducting executive sessions, as well as ascertain his or her preference on executive session minutes.

Sincerely,

Margey

I live in ********, Florida. Our association was started 3 years ago when the building of homes in our community was completed. For legal reference we do have a management company to help enforce our bylaws. Our problem is we have very few people willing to attend board meetings or they are just unable to attend the meetings. They only show up if there is an issue concerning them. My question is our board is a group of good ole' boys who feel they can change the bylaws to suit their needs and uphold only the rules they like or change the ones they do not like to fit their needs. For instance one of our board members has painted his house a shiny dark blue that has everyone objecting they put out a letter saying in the future if you wish to change the color of your house you must submit it in writing to the management company who will pass it on to the board. But the person who painted his house that is on the board is not being made to change the color of his house. Our original bylaws state that we can not have jet skis on this lake. When we moved in we were told this and sold our jet ski to comply with the rules. Now one of the board members wants to buy a jet ski so he wants to change the bylaws to make it o.k. They have also said we cannot plant trees in the easement by the road but those who broke the rules will be "grandfathered" in and then the rules will be enforced. Don't they have to have a certain percentage of homeowners in agreement to change the bylaws and how can we get this group of people to keep and enforce the bylaws we already have in place? Apparently our management company will do whatever they are told but legally don't they have to enforce the bylaws? We have tried to get new members on the board who will enforce the rules but they get so frustrated with the boards attitude and their desire to change things to suit themselves that they have left the board. Help!!!!

- D. C.

While Florida law strictly limits my ability to respond specifically to your question, I can tell you that most bylaws contain a provision detailing the procedure by which amendments must be approved. In general, board members may not circumvent those procedures and are obligated to ensure compliance.

Board members must also assure their membership of their personal adherence to all deed restrictions and rules. They are not "above the law" in their behavior and actions, and should be very scrupulous in their compliance with their association's governing documents.

With regard to encouraging volunteer involvement, review your association's bylaws, and perhaps the Declaration or Master Deed, to determine the procedure to remove board members. If enough of your neighbors are disillusioned with the manner in which the current board is operating your community, you should be able to garner sufficient proxies or ballots for a special meeting or the next annual meeting at which to replace the directors who you feel are not behaving or acting in the best interests of your community.

Finally, your management company is probably an agent of the board and not an independent contractor. As such, your manager may only perform the duties approved by the board, and may not contravene their instructions. If the board's behavior is too egregious, the management company's only recourse may be to terminate the contract.

Sincerely,

Margey

Problem Boards

I moved into this condo in too much of a hurry, without checking the board out and management company out. We are disappointed a great deal because of the lack of communication and no progress with improvements like we were told would happen. We have decided to move and check out before putting money down on a place. I lived in a condo for 18 yrs before moving here and sat on a board for 5 yrs. Never have I seen such poor poor administration in my life. I have ask the board to increase board directors to help or have committees, but my husband and I are ignored. We may be new here but I like to help and save money.

- Linda

Since you served on the board of directors of a community association previously, why not volunteer your services again instead of going to the expense and trauma of moving to a new condominium? As a former board member, you understand the importance of every member's contribution to the success of the association and the community; it sounds like your expertise would greatly help in your current environment.

Sincerely,

Margey

Hello, thank you for the reply. (see above)We have asked 4 times to help. As I stated before, we are ignored. Help from the residents is very important. We have three ladies that love ego... This makes us sick, especially not being here more than 8 months. I don't want to pay federal taxes but it looks like we have to. I don't want to take a terrible loss on my property, after what we put into it just a few months ago.

- Linda

Why not run for the board so you can be in a leadership position and really ensure the positive, productive direction of your community? It sounds like you know the procedure – gather enough proxies so you have the number of votes necessary to get yourself elected at the annual meeting.

Sincerely,

Margey

I was elected as the president of a board of 9 board members in a deed restricted community in the State of Florida. What powers and decisions does that give me? Do I have to consult with the board on emergencies or can I make a decision as president or override the board to ask members in the community for their opinions?

- Stephen

Congratulations on you election to the presidency of your homeowners association! While state law prohibits me from providing you with specific legal advice regarding your association's operations, I can tell you that there are free classes offered to community association leaders by your state's Division of Land Sales, Condominiums and Mobile Homes through a partnership with the Community Associations Institute. To find a list of the classes in your area, go to www.caionline.org or http://www.state.fl.us/dbpr/lsc/condominiums/index.shtml.

Sincerely,

Margey

We recently had a turn-over from the developer. After counting the votes, we were asked to see the voting certificates and the envelopes which the ballots were in. The developer refused to allow review them. He stated that he would mail them to me. It has been 8 days and I still do not have them. Also, when writing to the new directors to review records for the past three years, which we have never seen, he wrote me back and gave me one hour to copy and review them. Is this legal?

- Nancy

Without knowing in which state you reside or in which type of community you reside (condo or planned unit development), I cannot answer with specificity regarding your question. However, I can tell you that the governing documents ( usually the bylaws) for most homeowners associations contain provisions requiring the board to allow owners to review the books and records of the association at any reasonable time, with due notice and a valid reason for the request. There usually is no time limit on how much time the owner may take for the review, and minimum copying fees apply.

In addition, many states offer statutes regarding the operations of both types of community associations. Within those statutes, as well as in any nonprofit corporation act, are provisions mandating an open policy with regard to books and records of the association, including annual meeting ballots. If you are unsure how to locate your state's laws addressing community associations, enter "(your state) legislation" in the keyword field of any search engine.

With documentation in hand regarding your right to review the ballots and the books of your association, either send a certified letter to your board or ask for an appointment at which to address the directors in person, quoting the specific provisions and including copies, with the appropriate language highlighted, in your letter. I would hope that once the board receives irrefutable proof of your right to access the records, the matter will be resolved.

Sincerely,

Margey

At our November board meeting the board voted 6 to 5 in favor of an audit. Today we received our papers for the annual meeting and it states that the board votes against an audit. We have never had an audit and finally got enough to support but the officers had already prepared the mailout prior to the November meeting. Is there any recourse? Also, ballots were mailed out for those running for board of directors, but they did not enclose the information sheets that were submitted. Any recourse on this? We look forward to your reply. Thank you.

- Linda S.

Since the board voted to have an audit performed, it should send an update to the annual meeting notice announcing that an audit will indeed be conducted. The same goes for the omission of the candidates' resumes. Even though it costs more to have a second mail-out, there will be several benefits: the owners will know that an audit will be performed, the owners will have the opportunity to read up on the board candidates before having to vote at the annual meeting, and more owners may attend the meeting or return the proxy because they received a second reminder of the meeting.

Is there recourse for the oversight? Probably not, except at the ballot box. However, if your community is self-managed, have sympathy and respect for your leaders who have volunteered their time to exert their best efforts on behalf of your community.

Finally, with regard to the audit, you might want to check your state statutes to determine if an audit is required by law. Many state legislatures have passed laws mandating that community associations have annual audits or reviews.

Sincerely,

Margey

We requested a meeting to be called regarding a matter concerning a home based business that we wanted to start. We were told by the board that it would be called for in sixty days and then there would be a vote to whether or not we would be allowed to do this. The sixty days were up a month ago so we started our business. Now the board has called us on this and want to call for a meeting after the fact. We said your sixty days are up. Is this fair?

- Jessie M.

If the governing documents/restrictive covenants for your community prohibit operating a business in your home, then you may not conduct business from your home until the governing documents are amended to allow home-based businesses. While the board should have kept its promise to hold a meeting within sixty days, they alone cannot alter the governing documents unless specially authorized to do so in those documents.

It seems to me that communications need to improve between you and the board in order to resolve this issue. Why not give the directors a call, or ask to be put on the agenda for the next meeting, so you all can amicably resolve this matter?

Sincerely,

Margey

We are trying to have a five member board. We have one member who comes to meetings with rage and anger because he wants to deal only with "his" residents... We believe we must work for all 72 home owners. How can we make him understand that "his" 6 friends are not the whole condo village where we live? Thanks... We cannot put him off the Board it takes a full resident vote to do this.

- Marian G.

A disruptive board member can reduce the board's productivity and effectiveness. If the remaining four board members concur that this board member is behaving inappropriately, they must make it clear to him that they will not permit his behavior at board meetings.

How can you best control this board member's rantings and insistence on addressing only his friends' problems? Prepare a timed agenda in advance, allocating a specific period of time for each topic and agreeing to either vote or postpone further discussion at the end of the allocated time. Only agenda items approved by all board members may be discussed. The timed agenda is an excellent parliamentary procedure tool that ensures the timely disposition of issues, effective meetings, and minimal disruption.

Sincerely,

Margey

I wanted to tell you how refreshing it was to come across your web site. I was doing an internet search on HOA and dues not being paid, when I found your reply to a question by Mary in the ask the expert forum. Up until now the majority of stuff I found on the web was negative about dues. These negative sites seemed to me to be people that wanted to benefit from others paying their way.

I was just nominated and elected president at the HOA that I moved into 3 years ago. We are in West Texas and our community has a lighted runway and private roads that we upkeep ourselves. It seems like there are only a two or three of us that our paying the very small $10 per month due out of about 20 homeowners. We are going to start invoicing everyone, with the hopes that this freindly reminder will be all that we need.

I have not checked at the court house to see if the HOA covenants are on file there. I know in Oklahoma that is how it was done. Can you tell me how it would be here in W. Texas? Also, what do you suggest we do to enforce the payment of dues if our recent friendly reminder does not do the trick?

- Sincerely, Randy

I’m so glad you find our website useful! We always appreciate feedback and all suggestions on how we can improve this service.

Living in Texas myself, I can appreciate the wide-open spaces you have in your community, along with your community’s private air strip and roads. Nice! Fortunately, Texas does require that all documents, including the Declaration, Bylaws, Articles of Incorporation and Rules & Regulations, be recorded in the courthouse in the municipality in which the association is located. Assuming that your developer complied with state statute, you should have no problem finding them – and the provisions addressing the collection of delinquent assessments.

If you don’t already have a resolution approved by the board that supplements the collection process detailed in your governing documents, check out some previous answers in the “Ask the Expert” archives of this website in which the resolution creation process is detailed.

Sincerely,

Margey

We moved into our condominium 6.5 months after the other 3 unit owners. The board was developer controlled for a year (June 03-June 04) from the first occupancy and assessments were never paid. Now, there is significant costs that are accruing such as maintenance bills (ie, carpet cleaning) and the board refuses to prorate the special assessments based on the length of owner occupancy.

In IL, the Condo Act states that the developer has the same fiduciary responsibility as an owner run board and the responsibilities include collecting assessments and budgeting for reserves, maintenance, etc.., none of which was completed by the developer.

Additionally, the Act also states that "Nobody has the right to forbear assessments". Do you think the developer is liable for not collecting assessments (causing signifigant financial constraints on the building's budget and leaving us with no reserves) OR, should all unit owners and the developer be responsible for the back assessments they owe? We have offered to pay assessments from Dec. 2003 to June 2004, when the turnover took place, but the first three unit owners don't want to back pay any assessments for the entire first year of occupancy. Not collecting back assessments seems to be in the best interest of the unit owners, (because they wouldn't have to pay the money they owe), rather than the fiduciary responsibility the board has to the building to ensure a healthy financial situation. Please let me know if you think we could take legal action against the board or the developer. Thanks.

- Mary S.

The answer to your question lies in your Condominium Declaration. In it should be a specific provision detailing when the first assessment should be paid after the unit is closed. There should also be a paragraph or two describing the consequences for failing to pay assessments. I doubt there is any language permitting the board to waive assessments for any reason. There's no choice in this matter. The board, whether it's controlled by the developer or the homeowners, is obligated to enforce all the provisions of all the governing documents, whether or not the directors agree with them. If some of the owners, including some directors, do not want to pay the back assessments, their only alternative is to collect enough votes to amend the payment obligation and enforcement provisions in the Declaration through the amendment process detailed in the Declaration.

Sincerely,

Margey

I purchased a home three months ago. There is a mandatory HOA. The HOA is billing me for delinquent fees and past due HOA fees that were due BEFORE I purchased the property. As the new owner I feel they should have put a lien on the property to collect the past due amounts owed by the previous owner. (The title company paid some of the fees at closing but not all). Am I obligated to pay past due amounts owed by the previous owner? Thanks

- Nancy G.

Most governing document extinguish the lien for a prior owners' delinquency and replace it with a personal obligation of the prior owner for the debt. The current owner typically is responsible for assessments only from the date of closing forward. Check the assessment and collection provisions in your association's Declaration for specific language that may address this issue.

If the Declaration required that a lien be recorded indicating the prior owner's debt, and the association omitted doing so, you should not be responsible for that oversight. The previous owner still has a personal responsibility for the delinquency. Further, if the title company overlooked the lien or did not call the management company for the delinquency amount, the association should file against the title company's title insurance policy.

Sincerely,

Margey

We are in a new complex still under development and we are almost $26,000 in the red. I feel the developer is keeping the maintenance fee artifically low to sell the units ($125.00 monthly). What can we do so we don't get hit with a large assessment if anything.

- W. C.

It's not unusual for a developer to want to keep assessments as low as possible in order to qualify a larger number of buyers. However, most developers fund any deficit to ensure that the association transitions to the owners in good financial condition.

Check the provisions in your Declaration or Bylaws pertaining to the Declarant's (developer's) responsibility to the association. Is he required to fund any shortfalls and ensure that a reserve fund exists at transition? Must he pay a pro rata amount of assessments on every unit that has not yet been sold?

Once you've determined the developer's obligations, you'll have a better idea of how to proceed. If he's supposed to be funding shortages, you could write him a certified letter quoting the specific provisions that outline his duties. If he's supposed to be paying maintenance fees on the unsold units, you have the right as an owner to inspect the books and records of the association to ensure that the payments are being made.

If, after all your investigation, you determine that the developer is not acting according to the dictates of the association's governing documents and he will not respond to your queries, your next step could be to alert your fellow homeowners to the situation. Approaching the developer as a group should get his attention and, even better, persuade him to comply with the documents or chance losing future sales if news of his improprieties reach the media.

Sincerely,

Margey

I have a problem with open books. Washington State law and our covenants state: "Such books and records and the vouchers authorizing payments shall be available for examination by the apartment owners, their agents or attorneys, at any reasonable time or times" Our books are kept on a software program called "Quickbooks" The manager, an employee non owner, has refused to open the books to the membership implying that the program data will be compromised if non computer literate people are allowed access to the books. He states he will give us any reports we want, but we will not be allowed access to the Quickbooks program. I am saying that his policy is in direct violation of the Washington state law and our covenants. Question: Who is right? What do I have to do to gain direct access to the books?

- Don L.

It appears to me that the law you quoted addresses the information that must be made available, not how the information is created. So long as the association's employee allows you access to the printed reports that correctly reflect the financial condition and other records of the association, I believe he or she is complying with state statute.

Sincerely,

Margey

Thank for your input. (see above) However, the main problem is the law specifically states "Such books and records and the vouchers authorizing payments shall be available for examination etc" The board is responsible for what is in the books. If an IRS auditor comes in to examine our books, he/she will not ask for reports generated by the program. The auditor will demand to see data, records, and vouchers. If an auditor finds wrong doing, than he/she will more than likely assign responsibility to the board, not the manager. The Attorney General of New York State is prosecuting several major corporations over their phony bookkeeping systems. The CEO's are trying to claim innocence because they didn't know what was in the books. Federal and State agencies will not accept these types of excuses. Example: John Doe, our handyman, has the use of a credit card to buy parts for use in the units. John Doe decides to take his family out to dinner and charge it to the card. He also buys a new lawnmower and charges it to the card. He lists both items as replacement costs for the units where he works. The manager could do the same thing for himself. The financial reports issued by QuickBooks merely lists these charges as equipment purchases. A government auditor who sees this will hold the association board responsible for not knowing about the abuse. A basic rule of business where employees handle cash is "Constant audits by owner/managers is what keeps honest people honest". At present the homeowners have no way of knowing what is going on in their bookkeeping system. I am sure there are court cases by now that address this issue. Maybe you folks might know of some. Thank you for any help you can give us.

- Don L.

Auditors and attorneys would look at the original invoices, not the accounting records, to determine malfeasance or misappropriation of funds. There would be no reason to see that actual data input and software, because the auditor or attorney would actually reconstruct the accounting information from the paid bill file and from bank records.

Sincerely,

Margey

Is there any law in the State of Minnesota that requires an association to maintain a certain percentage of its budget for contingency or reserve fund. Our members refuse to up the maintenance fee and we are concerned that we will not have enough funds in the reserve fund when the time comes to replace the roof, siding, concrete, etc. As a Board do we have any other recourse? Thanks!

- Arnold B.

Through Google, I found Minnesota's legislative website. Searching the site, I located the Minnesota Common Interest Ownership Act, which is Chapter 505b of the statutes. Here's what is says about 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

Copyright 2004 by the Office of Revisor of Statutes, State of Minnesota.

So, yes, your board is required by state statute to adequately fund a replacement reserve account. But what do you do if your homeowners won't approve assessment increases to fully fund reserves in order to pay for the replacement of capital components as their useful life expires? Here are a few suggestions:

1. Hire a Reserve Specialist, a designation conferred by the Community Associations Institute to prepare a reserve study that identifies every capital component of your community, its replacement cost and replacement life, and how much should be set aside annually to ensure that funds are available for their eventual replacement. Call a special meeting of the members to present the reserve study -- perhaps by the Reserve Specialist who can answer the owners' questions. Advise the owners that if they do not approve an assessment increase adequate to provide sufficient reserve funding, they will be faced with a special assessment, the need to borrow money, or a diminution of property values as the property maintenance declines because of the lack of funds
   
2. Ask a Realtor to speak to the membership about the effect of lack of maintenance on property values. He or she could also address the increasing difficulty in obtaining loans for resales if the lender is not satisfied with the lack of reserve funds.
   
3. Document in the minutes all your efforts to persuade the membership to approve an increase in the maintenance fees.

By doing so, you cannot be considered negligent in your duties if the physical condition of the property declines.

Sincerely,

Margey

We are a 30 year old town home community in Gaithersburg, Maryland (Montgomery County). In the last several years more and more of the houses have been bought up by absentee owners. Neither the owners or their tenants take care of their properties, and to make things worse the tenants abuse the common areas, dump trash everywhere and have brought crime into the neighborhood. Most of our monthly dues are taken up in cleaning up after the mess of the rental houses. Recently one of our board members saw an article in the Washington Post regarding an HOA that actually charges landlords a higher monthly fee than live-in owners to thwart this problem. Unfortunately the article did not mention what state the association was in nor its name. Our board would like to adopt this policy and want to know if there is any City, County or State law or ruling in Maryland regarding this?

- T. D.

Robert Diamond, an attorney with Reed Smith in their Falls Church, Virginia, office who is intimately familiar with community association law, helped me with your question by providing the following response:

" You cannot charge non-owner occupied units a higher common expense assessment. However, you can assess a "special assessment" equivalent to the additional costs incurred as a result of a unit owner renting out his or her unit. Thus, if you spent $10,000 for additional cleaning in a 100-unit project, you could assess $100 against each unit rented out to others. You could also charge a processing fee for the administrative cost of keeping track of transient tenants as opposed to stable owner-occupants. You get the idea--the charge must relate to additional costs incurred by the association as a result of the rentals."

Sincerely,

Margey

Isn't it required that all homeowners have a say in the creation/adoption of an annual budget? Our Board doesn't seem to think so. We didn't get notice of the Budget Committee meeting until 3 days after it took place. No minutes were published, either. Also, the majority of the community does not like the on-site property manager. She has an attitude problem. Is there a certain way, other than a petition, to have her replaced?

- Nichole

There is no universal requirement that homeowners be involved in the discussions and passage of the annual budget for their association. Rather, the requirement would be found either in the governing documents of the association (usually the Declaration or bylaws), or state statute.

If you are unhappy with the attitude of your onsite manager, I suggest you discuss the matter with your board. It's possible that there are extenuating circumstances that impact the board's decision to retain her services. Perhaps she may not be the best "people person", but she is very adept at all other functions and job requirements. The board may believe that, balancing their performance requirements with the needs of the homeowners and the association, the manager provides more of the necessary qualities than any other candidate for the position.

Sincerely,

Margey

Our community builder is offering us a house,"historic landmark". The pipes are steel and he won't replace them because of cost of tearing down walls to get at the plumbing. We feel that rust is present because of the age of the house. Is there a way we can protect our selves from the cost of replacement if we accept his offering? Thanks for the consideration of this question!!

- Jack C.

I'm confused about the purpose of the developer's offering the historic home -- is it for inhabitation by a homeowner, or is it to be owned by the association for display? If it's for display purposes, perhaps having steel pipes may not be a problem since they will not be used very much. However, if the home is to be inhabited, you are right to be concerned about the condition of the steel pipes. What is the value of the home that the developer is offering, and what does he expect in return? Would replacing the pipes destroy its historic landmark designation? What would happen if no owner wants to live in the home, or if the association declines the developer's offer? Is there a Historical Society in your area that may be interested in moving the house to a park to which other historic homes have been relocated?

Perhaps armed with the answers to the above questions, you will have an easier time deciding what to do with the house.

Sincerely,

Margey

Do you build houses in Tucson, Arizona and could you send me pictures of your houses?

- John

We're not builders, just experts in community association management. I can refer you to an excellent management company in Tucson, and they may have some names for you of reputable builders in the area.

Sincerely,

Margey

Can a church rewrite the church bylaws one section at a time and vote on them or do they have to vote on the entire bylaws or can they only ammend them. If they rewrite the church bylaws do they have to reapply for a Incorpation form in the state of Texas.

- Richard

Unfortunately, our service only addresses issues involving community associations. However, if you were asking me about the bylaws of a homeowners association, I can tell you that, depending on the wording in the amendment provision of the bylaws, each section can be amended individually. Further, it should not be necessary to reapply for corporate status as a result of amending the bylaws.

Sincerely,

Margey

We live in ******* County, Ca. We moved into a rural development of 5 acre to 2.5 acre lots. There was never an association. We have great difficulty collecting money to repair our private road of about 1 mile. We would also like to get a privacy gate for the road. How do you suggest we convince the independent neighbors to form an association?

- Greg

It seems to me that the best way to persuade your neighbors to join a homeowners association is to present a logical, well prepared and compelling analysis of the savings each owner will appreciate when joining with other neighbors to share common expenses. You might also ask a Realtor for an opinion on the impact of property values with a homeowners association in place to ensure that the private road is maintained and an access-control gate installed.

Rather than creating a formal homeowners association, you might consider a less cumbersome legally binding partnership which requires all owners to remit their pro-rate portion, based on acreage, to maintain the street and install and maintain the gate.

Sincerely,

Margey

Can you tell me what are considered ideal temperatures in the state of Georgia for painting exterior metal doors? At what time of year is this best accomplished? What preparation is needed to paint exterior metal doors that a qualified contractor should know?

- Kathleen L.

Since conditions differ in various locations within a state, let along a nation, most paint manufacturers have written specifications for the application of their paint on different surfaces, detailing both the recommended temperatures and preparation to ensure a quality result and a warranty for the work. I recommend you go to the paint manufacturer's website, or ask your contractor to obtain and show you the data sheets.

Sincerely,

Margey

Can you list for me the roles, duties or responsibilities of Body of Governors in a business firm. Starting with General manager? Managing Director? Personnel Manager? Chief Accountant? Internal Auditor? Marketing Manager? IT Manager? Thanks for your cooperation as I hope to hear from you soon.

- Jerry B.

Books have been written on the subjects your broached, and there's certainly not enough space here to launch into a dissertation! Instead, I suggest you go to the Community Associations Institute's website to see the wealth of information that's available specifically addressing the roles and responsibilities of board members and officers of community associations. Here's the link to their publications: http://caionline.org/pubs/index.cfm.

Sincerely,

Margey

Our Board of Directors has some contentious issues before it. Without filing a lawsuit is there a way to obtain a legal and enforceable interpretation of our Declaration? Is interpretation of the Declaration subject to the whims of the Directors du jour? The Association is in Colorado. What court, if any, is legally authorized to interpret our Declaration?

- D. S.

Attorneys knowledgeable in the intricacies and nuances of community association law are capable of interpreting governing documents and issuing opinions regarding their intent. You'll probably get your answers much quicker and cheaper that petitioning the court for a ruling. If you're unsure how to contact a community association lawyer in your area, please write back and I will try to find some names for you.

Sincerely,

Margey

Where can I find an attorney who specializes in Home Owner Association bylaws that should be enforced by the board of directors and management?

The bylaws states no hardwood flooring on the 2nd floor units and that the board of directors nor the management has the power to permit this. The unit above me has hardwood flooring (laminate) and are not forced to remove it or do anything. I have found out some units have actually been approved by the board to allow them to have hardwood flooring in their 2nd floor units.

We also have another assessment of $350,000 which involves new siding, iron wrought balconies/stairways/etc, and painting. There are several units that have termites. The board has and does nothing for the units and has each owner to treat his own unit. Shouldn't the management have some responsibility if not all?

I have a neighbor who is a renter (I am an owner) that has done damages to my car (new engine, tires, wheel cap removed, scratched up paint), scratched graffiti on my door, has her dogs to "get me", etc. I had total knee replacement, still on a walker and am afraid to be hurt badly when stepping out of my unit alone, and when calling the police, they say all they can do is write a report and for me to give to the management to take care of the problem because this is private property. The management and board say they can't do anything and say its the police that needs to take care of it. The police say that an attorney needs to read over the bylaws and the rules to clarify who has the responsibility.

The rules do specify that all pets be on a leash. That is not being enforced. When calling especially because one renter has a Rottweiler out without a leash on. When calling the city animal control, they say because it is private property and they can't do anything.

Any suggestions on where I may find an attorney to help these issues?

- k.

If you will tell me the city and state in which you reside, I will try to find attorneys in your area for you who are knowledgeable in community association law.

Sincerely,

Margey

My covenants specifically provide "easements" to the board and their designated people to the property lots in my community. Does this mean the right to come into my back yard to look for violations? The Community created the easement that conveys with my property?

- C.

Typically, the easements granted to an association consist of access by utility companies to install or repair their equipment. I need the specific language in your documents to get a better idea of the intent of the easement provision.

Sincerely,

Margey

I am a homeowner in a homeowners association in the State of New York. I have been experiencing on-going problems with the board of directors for several years. My son also owns a home within this association. The By-Laws state that the association can expel a member for certain violations of the by-laws and force them to sell their house within one year. The board has voted to expel both me and my son. Is this legal? The by-laws in question have to do with "offensive behavior" and various other vague circumstances. Some people have told me that since I agreed to these rules when purchasing my home that I can be expelled, others tell me that this association can not do this. I have lived in this home for over 30 years and my problems with the board began after I objected to some of the things that this current board is doing. I have hired an attorney, but would also like your opinion. If the board and the membership vote to expel me, do I have to leave? Thank you for your help.

- T.

I'm very glad that you have retained an attorney in this matter. He or she will be knowledgeable in New York real estate law and, perhaps more importantly, community association law. I defer to the specialist, since my forte is in more general issues with regard to community associations.

Sincerely,

Margey

What rights in New York City does our Homeowners Association have to foreclose for non-payment of common charges? Our Declaration of Covenants gives our Association a right of foreclosure. Also, what is the maximum rate of interest that we can charge?

- G. S.

I tried searching New York's legislative site (http://assembly.state.ny.us) but was unsuccessful when I entered "foreclosure" for homeowner associations in the keyword search field. Typically, so long as there is a provision in the Declaration, such as yours, then the association may foreclosure, but it's important to determine if those rights extend to nonjudicial foreclosure or only judicial foreclosure, which requires a lawsuit at a significantly additional cost.

The maximum rate of interest is also determined by your Declaration as well as state statute -- and the statute will override your Declaration if there is a conflict.

For answers specific to your community association in New York, I recommend that you contact a local attorney knowledgeable in your state's laws regarding homeowner and condominium associations.

Sincerely,

Margey

Hi, I live in California and am on the HOA board at my condo complex. I have a question about dealing with an owner's issue and board intervention that I've encountered recently.

Our small complex (less than 20 units) is a self-managed complex. We do not have a building manager, and I was told by the then current board that we all rely on all owners living in the building to work with each other on resolving minor conflicts (neighborly disputes). We have a board to vote on major building concerns, unresolved conflicts, and topics that are covered in the CC&Rs.

When I moved in last year, I encountered a noise problem with the renters next door, and was told by the then current board that I should peacefully contact the owner to settle the problem. I did so, with decent results, and believed that was the proper way to handle neighborly conflicts in our complex.

Now that I am on the board this year, one owner (who has lived here for 5 years or so) has been very persistent in his belief that the board is responsible for handling an issue that only he and his immediate neighbor are dealing with (secondhand smoke & noise). I was told he has been a very difficult person to deal with, as he seems to like to complain and doesn't take action, but all these years he's lived here, he has never wanted to be on the board to make changes.

• From perusing our own CC&Rs, we do not have a clause dealing with second hand smoke, and from personal experience I relayed above, I nicely informed him to contact the owner of his neighboring unit (which I will refer to as the "offending party") to have the offending party speak with his smoking/noisy tenant. However, this owner has constantly bickered with the offending party on past issues so much that this owner refuses to even contact the offending party to find a peaceful resolution to the current problem.
  
  
• From my own experience, my understanding is that if any minor disputes occur between 2 units/owners that does not affect the rest of the complex or deals with the common area, the two owners are responsible for trying to settle the dispute amicably/peacefully to the best compromise as possible, and the "offending party " should be allowed a certain period of time (like a few weeks, for example) for a change to occur which satisfies both owners. However if no adjustments are made by the offending party to help remedy the situation during that period, then the owner who has attempted to make peace with the offending party is to bring his case to a board meeting for the board to decide whether the board should step in and send a warning/fine letter to the offending party.

In our CC&Rs, it says our board should take action if the offending action affects the common area, or is a nuisance -- which I assumed meant a nuisance to more than just one owner. But I am wondering if the board is supposed to take action prior to the involved owners attempting a peaceful resolve first between themselves... From it being a self-managed building, my initial thoughts were that we don't have a building manager to "hold our hand" in these minor disputes, and the board would only take over if an owner was causing problems without trying to work out problematic situations.

The above is my understanding of what is the proper procedure of handling a minor dispute in a slef-managed building, but am I correctly interpreting how to resolve this type of dispute issue?

I've been verbally attacked numerous times by this owner for trying to be diplomatic about how to get to a resolution prior to involving the board, and that the board will not intervene until he has attempted to work with the offending party for a few weeks towards a resolution and nothing has been done during that time. His response to my responses is that I am doing my job wrong and that I can't change things to fit my purposes (but the truth is that I don't know the exact right thing to do, and I've cc:d past board members on this problem to ask them if I am telling this owner the right/wrong thing, and no one has corrected me... hence my email to you.)

If you have any suggestions or comments about what might be the "proper" way to handle this issue, your comments are much appreciated. I just wish there were owners who didn't attack us board members as if we were the enemy... We are only trying to help.

I hope I haven't made the above too confusing... Thank you for your time & help in this matter.

- (Please do not share my name or email if you choose to post this question -- thanks)

It seems to me that we're talking about two issues, one of a procedural means of resolving disputes, and the other specifically regarding second hand smoke. Let's start with the first question -- how to let all your homeowners know about the steps to take to resolve an issue with a neighbor. I would suggest that your board approve a policy resolution detailing the process, starting with the requirement that the neighbor speak directly with the offending owner in an effort to amicably address the problem before bringing it to the board for assistance. You can find a detailed process in which to create and approve a policy resolution in October's archived Ask the Expert questions.

That was the easy question to answer. The secondhand smoke problem is more complex, because it involves both emotions and law. It's commonly accepted that secondhand smoke, known as ETS (Environmental Tobacco Smoke) affects the health and life of nonsmokers exposed to this hazard. Recent court cases involving community associations have held that associations may and, under certain circumstances, have the obligation to, prevent smoke from reaching neighbors, particularly in close quarters such as condominiums.

Because the issue of secondhand smoke can have far-reaching legal implications for your association, I suggest you consult with an attorney familiar with community association law and up to date on the issue of secondhand smoke. He should recommend some self-help efforts, such as asking the smoker to install devices that prevent the smoke from wafting outside the unit, or other methods that will reduce exposure to other residents. Only when all efforts to resolve the problem through discussion and mediation are exhausted should your board resort to litigation, if recommended by your attorney.

Sincerely,

Margey

First, allow me to thank you for the good material you are providing on your website. I am a relatively new Trustee of our HOA in Missouri. Our Indentures say nothing about selling common land, only the duties of the trustees to "acquire and hold" common land. Our Indentures require a 2/3 vote of all homeowners to amend. Our previous Board passed Bylaws authorizing themselves to sell common property but this was done in secret and never submitted to the homeowner's for approval. Then they entered into a sale agreement to sell a portion of the common land. Do you think the Bylaws are valid? If not, do you think the sale contract (which has not closed yet) is enforceable? Some members of the current Board feel we are bound to honor the actions of the previous Board, while others feel we are bound to stop the sale since the homeowner's were never notified. Any thought, one way of the other?

- Jerry M.

I'm so glad you find our site helpful.

Not being an attorney and not being familiar with Missouri, it still seems to me that your board cannot sell common property without approval of the owners. Check your Indentures for provisions that address the disposition of common area. If there is such language, it supersedes anything in the bylaws, which means that your directors cannot create bylaws with provisions that conflicts with the Indentures. As you pointed out, the Indentures require 2/3 of the owners to approve an amendment, and it would appear to me that the same 2/3 vote of approval would be necessary to sell common area.

Selling common area is a serious issue. I urge you to consult with a Missouri attorney knowledgeable not just in real estate law, but in community association legal issues. If you need the name of such an attorney, please write back and I'll be glad to provide you with one.

Sincerely,

Margey

We need a service to come into a home and clean out a closet that had a nest of rats......an exterminator came and put down bait.....it seems the cap to a sewer drain became loose.....do you know of any companies that would come out and clean up the closet and the crawl space under the house?

- Deb

Since I don't know in which city you reside, I won't be much help in recommending a specific contractor. However, if you live in a community association managed by a management company, why not give them a call? Or, you could ask your neighbors or board of directors for recommendations.

Sincerely,

Margey

I live in a condo where there are only 30 something units and only 5 garbage cans for all of us. My question is that someone that lives here has been bringing 5-6 large garbage bags from there place of employment and filling our garbage cans with their stuff so they don't have to pay to dump it themselves and there is no room for anyone else to put there garbage. Is this legal and if not is there some kind of law I can Post to show that it is not? Thank you for any help you can provide.

- M.

The garbage cans belong to your association and are not available for public use. I recommend that your board approve a resolution detailing the following process: post a notice by the cans and also send a note to all your owners indicating that residents who discard nonresidential material will be charged whatever expense the association incurs to remove all the garbage or to clean up the area when nonresidential garbage causes an overflow.

Sincerely,

Margey

I have been on the Board of Directors of a 48-unit condominium complex in Michigan for the last 4 years. A few years ago, we, the Board, voted to self-managed our site to have more control of site maintenance issues, delinquencies and the bottom line financial well being of the site. The Board obtained "David" a financial manager (on contract) and "Jim" a site maintenance contractor (time and materials), both of whom are extremely familiar with our site. We have one particular relatively new non-resident co-owner "Sally" who has been challenging every large and small maintenance project we have had Jim do. Sally has bad-mouthed Jim's workmanship to anyone who will listen within and outside of our site and is constantly challenging the amounts the Association pays for the work done by Jim, including work completed by Jim on our site years before she was even a co-owner! Jim is an independent licensed contractor whom I hold in the highest regard. His workmanship and overall attention to our site is above and beyond what you would expect to find in this day and age. Jim has stated that if the Board does not act quickly to get Sally under control, the Association will have to start looking for someone else to work on our site because his reputation is at stake. Jim has contracts with other area condominium associations and cannot afford to lose other work due to baseless accusations being spread around town by Sally. I have met with Sally and she has yet to provide any substance to her accusations. I have also met with Sally to review the finances of the Association and specific invoices billed by Jim. I thought the matter was settled but now Sally is back harassing Jim's workers on site. The Board had our attorney write Sally a strongly worded letter outlining the legal ramifications of making false statements. This apparently fell on deaf ears as well. Jim knows that he can file an action in court against Sally, but he doesn't have the time, patience and/or finances to do so. He has plenty of work at other sites. We really don't want to lose him! Any suggestions? Help!!!

- C.

Is it possible that Sally has ulterior motives for denigrating Jim's workmanship and charges? Does she recommend another contractor? If answers to both questions are "no", then your only alternative may be to ask your attorney to proceed with available legal remedies to prevent Sally from causing Jim to leave.

I respect your loyalty to Jim, but I would also recommend that you ensure there is no truth to any of Sally's allegations before pursuing legal recourse.

Sincerely,

Margey

We have a a single story unit on a slab construction. The water pipes come into our unit from under the slab. Recently we have had the pipes under the slab break and start to leak water up into the unit. We have two sets of repair bills. One for digging up the cement and repairing the leak under the slab. The second one is for repairing/replacing the flooring damaged by the water leak. Questions: Who pays for the repairs? The home owner or the association? Thanks for your help.

- Don L.

Without knowing the provisions in your association's governing documents or the type of association in which you live (condominium or PUD), I don't have a ready answer for you. Your documents -- perhaps the Master Deed/Condominium Declaration/Declaration of Covenants, Conditions and Restrictions -- should clearly delineate the association's and each homeowner's maintenance responsibilities.

For example, in a condominium, most Declarations state that the association is responsible for repairs to all structural elements as well as to equipment (other than individual A/C units) servicing the units up to the point at which the utility lines enter the unit. A townhome community's Declaration may say that since the owner owns the land beneath the building, the association is not responsible for any utilities servicing that unit, no matter the location of the problem.

If the governing documents are silent with regard to maintenance responsibility, the next place to look is your state statutes, where there may be laws addressing this issue. If neither the association's documents nor state statutes contain resolution to maintenance responsibility allocation, your board may create a resolution to clarify the association's position with regard to this matter, and then consistently enforce it every time a similar instance arises.

Sincerely,

Margey

I just discovered your website today and found the very helpful article, "Selecting a Landscaping Company". Since I am new, I wondered if you had published something similar regarding selecting a snow plowing company?

- Jill

I'm so glad you've discovered us, and thank you very much for the idea on an article on snow removal. Good timing! We'll try to include information on selecting a snow removal contractor in our next edition. Keep those suggestions coming -- this website is here for you.

Sincerely,

Margey

I am in the process of getting credentialed to start-up a small, home-based HOA Management Company. Presently, I am exploring software packages and really need some experienced user input.

Do you have recommendations regarding their overall versatility and growth potential?

I plan to top out at about 5 associations and will be using a CPA for audits and yearly financial reports. Will all of the products on your sponsors list meet the needs of neighborhood associations?

I have explored TOPS the most and am leaning toward that one. Will CPAs be able to interface with it to get the information they need?

Thank you for your help.

- MaryKathryn S.

Congratulations on entering the community association management business! To find out about software packages that most closely match your prerequisites, why not talk to local CPAs who perform annual audits of community associations who are clients of management companies in your area? Or, you could go to the Community Associations Institute website at www.caionline.org to investigate the software providers and comparison reports available through this organization.

Sincerely,

Margey

Hi, I am a member of the executive committee for a small (26 unit) condo complex. An owner wishes to install cental heating & air. No units have this (we are a block from the ocean). Can we block this as it would be creating an exclusive use area from a common area? The primary concern is the large compressor that would be mounted on the roof. Would it be better to attack this under an architectural control rule? Help.

- J.

In most condominium communities, the Condominium Declaration provides a very specific roadmap directing the permitted activities and behavior of the residents. One of the more typical provisions prohibits owners from making any alterations or modifications to the exterior and structural interior of the unit without prior written board permission.

Considering the extensive work that would be necessary to install central heating and air in a single unit and the conversion of common property to private that would result, I would say that the board has good reason to deny the owner's request. When you advise the owner in writing that he may not install the equipment, be sure to explain why it's not appropriate and to quote the relevant portion of your Condominium Declaration. Additionally, check your governing documents to determine if there are other procedures you must follow in order to consider and deny the owner's request.

Sincerely,

Margey

We live in Michigan. Our former board has taken no action to enforce our by-laws. They have allowed all types of violations to go on (a huge fountain in a front yard, a basketball court in a backyard, cars parked in streets, signs on lawns, etc). The new board does not want to "police" the neighborhood. They want the neighbors to have to complain about a violation before they take action. The only by-law they are currently enforcing is "no above-ground pools and fences". Don't they have a responsiblility to enforce all by-laws equally regarless if they feel it is a "big deal" or not? Should neighbors have to tattle on neighbors, when the board was elected to do a job? Don't they have a legal responsiblity to make sure they are understanding the by-laws correctly (they don't feel they need to consult a lawyer)? Do I have any grounds to take legal action against the board for inaction with enforcing the by-laws (I would like to put an above-ground pool in, and I feel like I am being treated unfairly)?

- Sandy

You are correct in thinking that your board has little leeway in enforcing your community association's governing documents. They are considered fiduciary agents, entrusted by the owners and obligated by law to protect property values by consistently and reasonably enforcing all the deed restrictions, not just the ones they want to.

Homeowners have an equal responsibility to comply with the governing documents and to help in the operations of their association. Even if others have violated the covenants, that's no reason for another owner to deliberately disregard a restriction. Perhaps what your volunteer, unpaid board members need is more owners to help them in their efforts to ensure that all owners comply with the governing documents -- and for more owners to understand the impact their violation might have on their neighbors and on their community's property values.

Battling the board and disobeying the rules of your community can only result in conflict and lower home values. Working cooperatively, with respect for the responsibilities of the association balanced with the rights of the owners, forges a strong community and appealing quality of life.

Sincerely,

Margey