Ask the Expert

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

Recently a public site maintained by the city has been cited for health code violations.  A Board Member's wife has been sharing information about developments on this issue with homeowner friends who use their home as a vacation home and are thus frequently out of town.  She has provided information to her friends and encouraged them to write to City Council members on this issue.  She has contacted only those who are in her personal email address book (she regularly engages in social correspondence with these individuals).  She has not attempted to do any type of Association wide correspondence. 

The Board President feels that this woman's personal activities as an individual interfere with Board business and has warned the Board member to give his wife a "cease & desist order".  Can a Board President prohibit an individual from exercising her rights as an individual?

- S.

A community association board president has no authority over the actions of another board member's spouse unless it relates to the operations of the association and is regulated by the governing documents.

Sincerely,

Margey

Our association meeting meets at 1:30pm on the 3rd Thursday of each month.  At a meeting a few months ago.  The meeting was held with only 3 members.  We are an association with over 1000 homes, my subdivision has no representative, most people work during the day and are not able to attend meetings in the middle of the afternoon.   My question is:  Shouldn't boards meet at times when residents are able to attend and participate.   It appears they are trying to keep it "closed" so only a "select few" can participate. Thank you.

- Becky

There's a difference in intended participants between board meetings and membership meetings. The purpose of board meetings is to conduct the business affairs of the association -- the board members must make decisions regarding governance and management of the community. Owners delegated the responsibility to maintain and preserve the common elements to the board when they elected the directors, so owners typically do not have the right to participate in discussions and decisions at board meetings (although there are one or two states that mandate boards to permit owners to participate). To encourage homeowner involvement and support, many boards conduct an open forum prior to each meeting at which owners may present issues and comments to their elected representatives.

On the other hand, membership meetings provide a formal opportunity for homeowners to participate in the democratic process, bringing issues to the floor and electing board members who most closely reflect their philosophy and opinions regarding the operations of the association. However, there's no need to wait for the annual meeting to express concerns; for more timely response and action, contact the board or manager as soon as the issue arises.

Unless your association's governing documents specifically require your board to meet at night, I support the directors' decision to meet in the daytime. Most board members also have full-time jobs and prefer to devote their personal time to their families and other interests. Consequently, they schedule their board meetings during the day so that they can be conducted in a business-like setting during normal business hours. As with membership meetings, if an owner has an issue to bring before the board, he or she does not have to wait to make a personal presentation at a meeting; it's more efficient and productive to pick up the phone and call a board member or manager or send an email when the issue arises so it can be resolved promptly. And, since the regularly scheduled date and time is known by all members, they could take off a few hours of work if they must make a personal appearance at the meeting, just as they would need to leave work to meet a plumber or other contractor who only works during regular business hours without imposing a hefty overtime penalty.

Sincerely,

Margey

I am the president of our Homeowner's association. We have a problem with a member who does not follow the covenants. This member's neighbor is also a board member. The claim is that the member's failure to follow the covenants affects the value of everyone's property. It does affect the Board member's property more than any other member of the association. Is it a conflict of interest for the Board member to be involved in decisions relating to the neighbor's case.

- K.

Please click on "Search" on the left column, and enter "conflict" in the keyword field for previous responses addressing board conflicts of interest.

Sincerely,

Margey

I am on the board of a HOA.  We won money in a lawsuit against the developer.  Some of the settlement proceeds needed to be invested for a long term repair project to fix something alleged in the lawsuit.  The treasurer suggested an annuity with a substantial return on investment.  He presented us with a projected growth chart for the proceeds should we choose to make the investment and how much money we would have towards this long term project in the future when we decided to commence repairs.  He is also a licensed insurance agent and received a commission on the annuity when the association made the investment.  Some residents have claimed this was self dealing and presents a conflict of interest.  Our governing documents provide for compensation to a director "acting in a capacity other than as a director" - we understood at the time of choosing to make the investment into the annuity that he was acting as an insurance agent and not as a treasurer.  He had previously presented to us many different types of investments and this particular one gave us the greatest return.  Is this in fact self dealing and a conflict? 

- Steve

Please click on "Search" on the left column, and enter "conflict of interest" in the keyword field to find several articles and Ask the Expert responses that address this issue.

Sincerely,

Margey

We would like to dissolve our HOA.  We have no common area.  We are incorporated.  The California corporate code states we can dissolve with a majority vote ...51%.  Our CC&R's state to change the CC&R's we need 80%. Since we are a corporation, does the California Corporate Code govern us, or the CC&R's? Would we need a majority 51% vote to dissolve, or 80%??

- Kathy

Your association's governing documents prevail, so 80% is the required percentage vote necessary to dissolve your association. I urge you to consult with a competent attorney knowledgeable in community association law regarding your desire to dissolve the association and eliminate your homeowners association, since such a drastic action can result in unintended consequences that may detrimentally affect each owner.

Sincerely,

Margey

I live in a newer community where the developer is also the current property management company for the HOA,  of which they currently hold all the seats on the board. 

We have a long list of past issues with this management company which has undermined our trust.  We are now nearing completion of construction in the neighborhood, and the management company wants to give up their seats on the board and elect residents to take their place.

Once the residents are on the board we are all considering voting to drop the HOA altogether, or at a minimum hire a new company to manage the HOA.

What are the proper steps to go about doing this?  Our concern is that once we are on the board and review past documents/budget, we will find a long list of outstanding debt that we would inherit from the current managment company if we drop the HOA altogether, or hire a new company. Ultimately, who is responsible for the debt?  The homeowners, or the company that manages the association?

- Amy

Dissolving the association is probably not a reasonable or legal alternative -- the municipality in which the association was established probably required the developer to create the association to perform certain services that would otherwise be required by the municipality. However, hiring a new professional management company is a sensible, logical action.

The Community Associations Institute ("CAI") offers a guide on hiring a management company which you can purchase at www.caionline.org then click on"bookstore". Additionally, the Foundation for Community Association Research offers a free report entitled "Best Practices" Transition" which you can download at www.cairf.org.

Sincerely,

Margey

The CC&R's and by-laws of our HOA state that the association shall appoint an ACC and we must elect 3 directors at the annual meeting.  At the annual meeting we elect three people and list them as officers even though our governing documents state members may elect directors only and the directors are to elect the officers. Are the three people we elect really directors and not officers?

We also have never appointed an ACC. Due to hurricane destruction one of the buildings/four units was demolished and they are beginning to rebuild.  Since we never appointed an ACC and still have not, are the owners of the units rebuilding required to submit their plans for approval.  Who would they submit plans to since there are no committee members?  They did submit plans to the 3 directors/officers(?) and 50 days later there still has been no action to appoint an ACC.  CC&R's states that the ACC only has 30 days to approve or disapprove even if there were an ACC. Some members have sent letters stating that if construction begins that they will sue since no approval for the plans was given.

- R.

Typically, the Bylaws for a community association detail the specific election process for community leaders. Most Bylaws specify that the membership elects the board members, who then elect or appoint officers from amongst themselves. Check your association's Bylaws to determine the relevant election process for your community. If the elections were improperly conducted, the results may be invalid; a new, properly-held election may be recommended to ensure that the board members have the authority to act on behalf of the owners. Check with a competent attorney knowledgeable in community association law to determine the appropriate course of action.

If your documents require the existence of an Architectural Control Committee ("ACC") by stating that the board "shall" or "must" appoint members to the committee, then the board must ensure the continuing existence of such a committee. Unless otherwise stated in the documents, it is possible that the board members can appoint themselves as the ACC. However, whether the directors act as board members or as ACC members, they must comply with the limitations detailed in your association's governing documents. So, if the documents specify that the ACC must respond within thirty days of a properly submitted request for approval, then it must issue a formal response or request for additional material within that thirty-day time frame. Failure to timely respond may result in automatic permission of the request, depending on the verbiage in the documents.

If your board/ACC failed to approve or deny the request within the mandated time period, it still may have authority to respond if the requested variance is unreasonable or inconsistent with the general appearance of other homes in the community. However, the board must act quickly, before the owner commences construction.

For more information on the role of the board and the Architectural Control Committee, click on "Search" on the left column, then enter "architectural control" in the keyword field.

Sincerely,

Margey

I am the VP of the association of 57 units.  One homeowner has not paid their share in over six months. We do have a lawyer who is taking care of this matter. They just bought a new car and the daughter who was there I believe she gave us the impression when they sell that they will settle up. My question is: If another homeowner asks me what unit is not paying am I allowed to tell?  Thank you. 

- Alex

Since you have retained legal counsel to pursue collection of the delinquent assessments, I recommend that you ask him or her for an opinion regarding disclosure of information regarding the homeowner.

Sincerely,

Margey

What is the rule on confidentiality in correspondence between an owner and the association?  For example, if one owner sends an email to the association with a complaint about his neighbor, or even just a comment or inquiry as to whether their neighbor is violating a by-law, should they be able to send that neighbor quotes taken from that email?  Is there a rule on this or is it just ethics?  I am being told that the owner would have to state at the bottom of the letter that it is confidential, otherwise they can do this.  It seems like this could cause problems between neighbors.

- M.

There's a difference between obeying the law and being considerate and tactful with regard to disclosing information detrimental to the sense of neighborliness in a community. Most homeowner association governing documents and state laws mandate that the books and records be available for review to the members of the association. Consequently, if a neighbor really wants to learn who complained about him, he can check the association's records for any phone logs or written communications regarding the matter.

However, when issuing a first notice of violation, I recommend keeping the tone cordial and conciliatory; perhaps the violator was unaware of the deed restriction and will willingly rectify the problem when made aware of it. Instead of sending the notice with reference to the person who complained, soften it with verbiage like, "It has come to my attention that a deed restriction violation may exist on your Lot about which you may not be aware". Or, to make sure the complaint wasn't frivolous, a board member or manager, if applicable, could personally view the violation.

There are other alternatives to sending a letter for a first violation. No matter how nicely worded it is, homeowners are often offended by any written communication telling them they've done something wrong. To foster a sense of community and concern for one's neighbors, consider calling the violator to cordially chat about the possible violation and suggest solutions to remedy it, or leave a friendly, polite voice mail message. Or, craft a policy resolution that states if a resident is bothered by his neighbor' activities or behavior, he must first try to resolve it amicably between themselves rather than immediately asking the association to intervene.

For much more information regarding a "kinder, gentler" way to encourage compliance with a homeowner association's governing documents, click on "Search", and enter "enforce" in the keyword field.

Sincerely,

Margey

We live in a 55 and older park governed by a not for profit HOA. There is a 5 person board.  There is one board member that when she wants to do anything like planting trees, putting in pool heater, or anything else will go around and talk to other board members until she gets 2 others to agree with her and then does what she wants. She only needs 3 votes on the board she says.  Sometimes other board members don't know what has been done until it is finished. She calls it often an executive committee meeting.  Do these types of meetings need to be announced and minutes taken.  She is using funds that have not been budgeted. 

- Julia

Board members may be exposing themselves to personal liability if they act outside the parameters of their authority detailed in the community association's governing documents and state statutes. If board members are aware of inappropriate actions of other board members but do nothing to rectify that behavior, they can also be held personally liable for their colleagues' actions.

Your state's statutes or your association's governing documents may contain provisions requiring all meetings to be open to the owners and limiting executive sessions to a few, very specific issues. Those same documents and statutes may also contain verbiage requiring that all board members be included in discussions which may result in decisions affecting the association's operations, including the disbursement of funds. Minutes must be taken of all meetings.

Sincerely,

Margey

We allowed a person to be voted onto our board who cannot attend meetings on any kind of regular basis. May we "drop" him, ask him to resign? Does the board vote to release him? Then, do we put the next person who was on the ballots when the members voted for board members?

- Harriet

Your association's Bylaws should contain specific procedures for replacing board members. Ideally, if a director discovers that he cannot fulfill the obligations of the position to which he was elected, he would resign from the board, enabling the remaining directors to better function with a full complement of volunteers, including his replacement. It is appropriate for the president of the board to suggest that the director consider resigning if the director cannot fulfill his obligations but gives no indication of interest in relinquishing his position.

Most community association Bylaws require a board member to resign his or her position or be removed by a specific percentage of the membership; the other board members usually are not empowered to remove a fellow director. If the board member resigns, the Bylaws should contain a provision detailing the manner in which he should be replaced. Typically, the remaining board members appoint a willing volunteer to serve either until the next annual meeting at which the owners vote for a replacement or through the end of the resigned board member's term of service. If the members vote to remove the director, they should also, at the same meeting, vote to elect a new board member.

Sincerely,

Margey

I was elected to serve on the resort owners association board as the Secretary and have been in office for 3 years with another year to go. The Board was brand new and since the inception two of the original members resigned and a new President and Treasurer were voted in last year. 

The President is impossible to deal with.  He has overriden decisions of our management company which have cost the association thousands of dollars.  He has done this without the consent of the other two board members.  When I asked the management company why they permitted this to happen I was told then they have to listen to the president. (They have all the contact info for the other two members.)  Since his election he has looked for a lawyer who would interpret the documents to his advantage.  We have 3 tiers to our docs, a resort association, a commercial unit association, and a master association. So our fees as interpreted by our original attorney state the maintenance fee for the resort association is a flat fee which each owner pays the same amount but the fees associated with the common areas are to assessed by square footage. The president owns several studios so he has disagreed with that interpretation and supposedly wants to hire an attorney that agrees with him.  How do we deal with our president.  We have voted him down a few times but he actually gives orders to our building manager without the rest of the boards' knowledge and in direct opposition to the management companies directives to our building manager.  It has gotten so bad that the management company wants to bail out on us because they can't manage.  No matter what is voted on at a meeting, the President sees it differently. 

- Patricia

Most community association Bylaws provide for the president to serve at the discretion of the board. I suggest that the board formally remove the president in his officer capacity (board members usually cannot remove other board members -- only the owners typically can remove board members) and elect a new president who understands his or her limitations and authority as detailed in the governing documents.  Be sure to conduct this action at a formal board meeting and in compliance with any notice requirements, and include the vote results in your minutes. Then, the manager has to comply with the instructions of the new president and the majority of the board.

However, do not put the manager in a position in which he or she must continually confront the demoted president and deny his requests and instructions. Let the former president clearly understand that the entire board, in which the majority rules, has instructed the manager to implement their decisions and act on the instructions only of the new president. Additionally, make it clear to the onsite staff and contractors that must comply only with the manager's instructions.

Sincerely,

Margey

Recently a small group of homeowners (17 out of 153) in my townhome community put a petition together to recall two board members. These 17 people are regulars at our board meetings and are usually the only ones that always show up.  They are the "gadflies" of our community.  The rest of the community didn't even know what was going on.  Most people just pay their maintenance fees and don't care what is going on.  These two board members that were recalled didn't want to go thru a "kangaroo court" so they resigned as well as two of the remaining board members who supported them. Now we have one remaining board member and he was the one who prompted these 17 people to recall the board members. 

Our last board meeting was January 10.  We have not had an open board meeting since all this happened. He has named himself president and named two other people as secretary and treasurer without approving this at an open board meeting.  He has also shut out our management company from all board business and he is sharing private board business with his recall colleagues. 

Is there someone or somewhere I can report him to?  These people have taken over the community and many of my fellow homeowners are very concerned over this turn of events.  This remaining board member was president and the rest of the board asked him to step down because he was doing everything behind the board's back and telling vendors and the board's attorney to deal only with him.  He did step down as president but remained as trustee and got this group together to take over the board and become president again.  What can we do?  He is not following our governing documents.   

- Emily

Members in a community association have an obligation to participate in the administration of their community and delegate authority to their elected board members. As in all democracies, those who cast their ballots control the operations, electing like-minded candidates who are responsive to their demands.

In the situation you describe, the vocal minority in your community successfully replaced existing board members with candidates who shared their agenda. There's no reason why the silent majority cannot do the same. Now that you see what can happen when most homeowners are apathetic and assume that "someone else" will act in their best interests, it may be time to galvanize your neighbors to campaign for another board coup.

Sincerely,

Margey

I would like to know what steps can I take to have the treasurer removed from the board of directors?  I've been speaking with other homeowners and many of us feel that the treasurer has hidden agenda's and is not looking out for the best interest of our community as a whole.  What steps can I take in having him removed from the board?

- Cory

Since board members typically appoint officers to serve at the discretion of the board, why not talk with the directors about your concerns and encourage them to appoint a new treasurer?

Sincerely,

Margey

I have several questions concerning a very unethical board that is abusing it's power in our Deed Restricted community.  The first issue is that a member of the board for the past several years has, in direct violation of the CC&R's, run a business out of his residence.  This business has an occupational license, web site, chamber member & BBB all listing this home address since 2004.  Almost 1 year prior the management company, in a return receipt requested letter, was notified of this issue and NO action has been taken.  To make matters worse this individual is ex-law enforcement and has abused his position in more ways than this.  To your knowledge has a class action lawsuit ever been brought against a board member and the board because each homeowner has not been given the opportunity to earn an income from their residence while this board member has blatantly disregarded the law and profited from it?

My second issue deals with a past Board member President who similarly for their own benefit approved extensive landscaping to their individual residence that was in direct violation of CC&R's and no approval by the board was sought for the improvements.  When officially asked, the management company was lied to by the past president, and told the improvements were original to the home.  The developer provided detailed model home pictures that clearly show these improvements were not made by them.  As a result of this and for fear of liability the management company resigned and a new one is in place. Can the current board and the past president be held liable for these infractions? 

- TD

Please click on "Search" on the left column, and enter "inappropriate" or "fiduciary" in the keyword field. You can also go to our Articles By Subject page to review the articles that address the fiduciary obligations of the board.

Sincerely,

Margey

I am in Texas in a 38 unit condo property, built in 1978.  Is it legal for a husband to serve on the Board of an Association if the condominium unit is separate property of the wife?  She owned the unit prior to their marriage in 1997 and kept the condo as separate property and never changed the deed to reflect ownership by both after their marriage.  They also have another home which is homesteaded in both of their names, but not the condo (which was rented).  No one volunteered for the position when a vote was taken at the annual homeowners' meeting and no one seems bothered by the fact that the husband is not on the deed of record.  Does that exclude him from being allowed to serve on the Board?  Our documents are specific in that the managing agent must have proof of ownership prior to allowing homeowners to vote at any homeowner meeting.  His name is not on the property record.

- L.

If your association's Bylaws require board members to be record owners in the community, then the husband of an owner in a Texas community association can serve on the board of directors only if his name is included on the deed to that unit. Even though Texas is a community property state, for the purpose of board eligibility a candidate must have his or her name on the deed to qualify as a board member.

Before denying the husband's offer to serve, however, you might consider checking the title to the property to ensure that his name has not been added to the deed. In fact, it's not a bad idea to check every candidate's eligibility by perfoming a title search upon receipt of the application. If the assocation's Bylaws authorize nominations from the floor, perhaps the board can craft resolution requiring candidates to present a certified copy of their deed as a prerequisit for being included on the ballot.

If your association's Bylaws do not require board members to be owners, then the husband of an owner may certainly serve and should be appreciated for his willingness to dedicate time to his community.

Sincerely,

Margey

Our By-laws state that you have to be in good standing: Trustees shall be elected to serve for two (2) years, or until their successors are elected and duly qualified.  At the first election, three (3) members shall be elected for a two (2) year term and two (2) members elected for a one (1) year term.  Any member who wishes to run as a candidate for a board position must officially submit their name to the board no later than 3 weeks prior to the annual meeting.  Any member that wishes to run as a candidate for the Board or to fill an appointed position on the Board must be a member of the HOA in good standing.  This includes having no outstanding assessments (to include interest), fines, liens, foreclosure proceedings, no current & or ongoing CC&R violations, and no pending litigation against the HOA or its Board members.

If the Judgment went in favor of the homeowner and if the board files an appeal, should the homeowner still be allowed to run for candidacy?

- Wardell

Not being an attorney, I cannot offer you legal advice. Please consult with a competent attorney knowledgeable in your state's corporate and community association law to determine the eligibility of the homeowner to run for the board.

Sincerely,

Margey

I have a question concerning the term of the HOA. Our HOA was suppose to be a 1 year term, in January when we were supposed to vote for the  new board, the current board said they had decided their term had been extended to a 2 year term. There was never a vote from the community on this. My question is can this be done legally with a 2/3 vote from the community to extend the HOA term from a 1 year to 2 year without a vote from the community? We live in Florida.

- Daryl

Board members must strictly comply with all provisions of your association's governing documents, including the Declaration and Bylaws. Unless Florida law allows board members to amend the Bylaws without homeowner approval, your board may be acting outside their authority and personally liable for any improper actions or decisions. I recommend that you contact the Florida State Ombudsman to determine if the directors acted within their authority to extend the terms of the board positions.

Sincerely,

Margey

I have lived in my condo for two years and since then we have had the most horrible President of the HOA. Back then they said she had one more term which she has now fulfilled. We have a meeting coming up next week and the new HOA manager says she (the bad president) is up again for role of president. I told her I thought her term was up now (it will be going on her third year or more) and the manager says there are no specific terms and that the horrible woman can run as many times as she wants. Is this correct? I sure hope not! Thank you.

- Tina

Most community association Bylaws do not contain term limits for board members or officers. However, since you seem adamant about electing another president, consider campaigning for new board members for the upcoming annual meeting, and ensuring that those board members concur with your assessment so that they appoint someone other than the current president to serve in that position. Unless your Bylaws provide differently, homeowners elect board members and board members appoint officers to serve at their discretion.

Sincerely,

Margey

I have a question concerning the term of the HOA. Our HOA was suppose to be a 1 yr term, in January when we were supposed to vote for the new board, the current board said they had decided their term had been extended to a 2 year term, there was never a vote from the community on this. My question is can this be done legally with a 2/3 vote from the community to extend the HOA term from a 1 year to 2 year without a vote from the community? We live in a Ft. Lauderdale, FL.

- Daryl

According to both Mr. Hal Hildebrandt, President and CEO of Community Management Concepts in Clearwater and Mr. Kirk Bliss, President of Kramer Triad Management Group - Naples in Naples, both Associa member companies, your association's governing documents, not your board, determine the terms of service for board positions and the manner in which the documents can be amended to change those terms.

Sincerely,

Margey

I live in South Carolina in a Condo/Complex/Non-Profit Corporation with a BOD and Homeowner's Association. I am concerned about Proxy Voting and the guidelines. I looked up Roberts Rules of Order and they don't advise on Proxy Voting. Question? What are the guidelines for Proxy Voting by a HOA? We have a major vote facing us. The management company and the BOD have sent out letters with proxies after the 10 day guideline as stated in our Association Bylaws. Many Condo Owners have not received the letters. This was determined by telephone calls to owners. The Board has also given Condo Owners 5 days after the voting meeting to have proxies in to be counted.

I contend that letters should have been sent out sooner and that the Proxies to be voted should be sent in before or presented the day of Voting/Meeting and that proxies received after the date of the voting/meeting are not legal and should not be counted.

Our Bylaws do contain information about Proxy Voting but it is fuzzy. The BOD interprets and makes up the rules to suit them which is usually against the  Condo Owners. We have a dysfunctional BOD. Please advise on this matter. Thanks.

- Steve

Your board of directors must comply with the proxy requirements mandated in your association's Bylaws, specific state statutes such as the Condominium Act, and general state statutes such as the Nonprofit Corporation Act . There are several references on the "Links and Resources" page to parliamentary procedure as well, where you will find specific discussions regarding proxy voting.

If your board or management company did not send the annual meeting notice within the window of time described in your association's Bylaws or the documents referenced above, the meeting may be invalid and any decisions made at the meeting may be null and void.

With regard to receipt of notices, it is each owner's obligation to advise the board of any changes in their mailing address to ensure that the notices are mailed to the appropriate location. Is it possible that the board did indeed mail the notices within the appropriate window of time, but some residents did not receive the notice because their mailing address had changed and they had not updated their records with the management company?

If your association's Bylaws do not specify the manner and time period in which proxies should be prepared and counted, check the other documents referenced above. Still no guidelines? Then the board may have the authority to craft an administrative resolution detailing the election process, including the use of proxies. However, I urge your board to utilize the services of a competent attorney knowledgeable in community association and corporate law to ensure that the resolution is valid and enforceable.

Sincerely,

Margey

At a recent townhouse association meeting, the board was proposing to raise annual assessment from $139 per quarter to $198 per quarter, after a vote to raise to $250 was defeated.  The issue was raised in response to a reserve study, and the need is great.  A member of the board of directors soliciting proxy votes from association members, and brought 132 NO votes to the meeting.  The meeting results excluding proxies was 92 Yes 17 No, but becuase of the proxies brought in, the measure was defeated.  Is this within rights, legal?--can't find any information in community documents.  I live in the state of Virginia.  What recourse can you suggest, if any. Thank you!

- Diane

According to Mr. Bruce Steele, Senior Vice President of Community Management Corp., an Associa member company based in Fairfax, Virginia, neither the Virginia Property Owners Act nor the Virginia Nonstock Corporation Act restricts the number of proxies an individual may bring to a membership meeting. If you believe you can persuade the requisite number of your neighbors to approve a special assessment or increase in maintenance fees, I recommend that you read your Bylaws to determine the process involved in petitioning the board for a special meeting at which the owners may again vote on the issue. Homeowners have the same right as board members to solicit proxies, and it sounds like you and your like-minded neighbors may need to personally visit with the owners in your community to ensure that you bring to the meeting more votes entrusted to you than your board members can produce for themselves.

I applaud your understanding of the need to adequately fund reserves for the future replacement of your community's common element capital components.

Sincerely,

Margey

A homeowner gave a person his proxy. This homeowner changed his mind,could not attend the annual meeting and sent in another proxy with another person. Does the second proxy revoke the first proxy if it has a more recent date? Thank you.

- Morris

If an owner assigns his proxy more than once, the proxy form with the more recent date is the valid one.

Sincerely,

Margey

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Insurance | Legal | Maintenance | Management | Rules

I am the President of a 285 member HOA and we have an excellent management company.  Many homeowners contact me directly at home and my place of business to discuss HOA matters.  I would prefer to have most contact from the homeowners be directed to the management company rather than me.  What is the best way to handle this?

- D.

I applaud you for your commitment as a volunteer leader of your community, and empathize with your diminishing privacy. Here are some suggestions on taking back control of your personal time:

1. When owners call you, gently tell them that in order to see quick action on their issue, they need to contact the management company. Insist that you cannot take service requests or complaints.
   
   
2. Install an answering machine or service on your home phone, with a message asking homeowners to call the management company for association-related concerns. While it may be an inconvenience to your friends, you can certainly pick up the phone as soon as you hear their voice.
   
   
3. At every membership and board meeting, assure your owners that you want to keep the lines of communication open, but the appropriate procedure is to first contact the management community association manager who has authority to immediately act on issues within his or her parameters of responsibility. If owners disagree with the decisions, actions or inactions of the manager, they should submit a letter to the board in care of the management company, and the manager will forward the letter to the board for a response and follow-up. Also reassure the owners that the manager submits timely, comprehensive reports to the board detailing his or her activities and relevant communications.

Homeowners sometimes forget that their board members are their neighbors who are not being paid for their volunteer service and who often have their own full-time professions. It's okay to put reasonable limits on access to you as long as you have full confidence in your management company and fulfill your fiduciary obligations as board president.

Sincerely,

Margey

I recently resigned from a condo board in Connecticut. As a member of the board I received monthly financial statements via email.  Since resigning I have requested the financials via email.  The treasurer of the board is asking me to send a written request to the board.  I know that in accordance with Connecticut Common Interest Act that this is not so.  What recourse do I have the treasurer continues to refuse to give me these records.

- Pat

Sec. 47-81(b) of Connecticut's Condominium Act, "Accounting records", states that records of the association "shall be available for examination and copying by any unit owner, his duly authorized agents or attorneys, at the expense of the unit owner, during normal business hours and after reasonable notice."

While you are no longer a board member, you still have the right to access your records, albeit not as readily as you did when you served on the board and need timely reports in order to make informed decisions regarding the operations of your community. I would hope that your board or management company would provide you with the financial reports as long as you submit a request every month.

Sincerely,

Margey

I am Vice President of our HOA and we need some type of form letters that we can keep on hand to send to residents that do not abide by the by-laws (ex: removing of tree stumps, removing of storage pods that has been in front yard for 6 months. )

- Tina

The Community Associations Institute ("CAI") offers to its members a plenitude of samples and examples of forms and letters.

Sincerely,

Margey

I live in a condo HOA in San Diego, California. The Board of Directors post the monthly meeting minutes on the HOA website. The minutes are not mailed to the homeowners. For the year 2005 the January thru May approved minutes are posted on the community website. For June thru November only a draft of the minutes are posted as of Feb 21, 2006. As of Feb 21, 2006 the Dec 2005 minutes are not posted in any form. The Jan 2006 minutes are also not posted in any form. Is the Board of Directors meeting their responsibility to the homeowners?

- John

According to Mr. Mike Packard, PCAM, CPM, CCAM, President of N. N. Jaeschke, an Associa member company based in San Diego, the approved minutes of community association board meetings must be made available to the members thirty days following the meeting. There's no requirement that the minutes be mailed or posted, just that they are available. So, if you're interested in viewing them, contact your board or manager, if applicable.

Sincerely,

Margey

I am the new secretary of our condo association. I had 10 years experience in Engineering in taking meeting minutes.  I am curious as to how detailed my minutes should be at the condo association meetings.  Some members of the board think they should be very general and not quote any names of who says what, but I have read elsewhere that the minutes should reflect the attitude of and procedures utilized by the board members in reaching their conclusions.  I would agree with this, but some don't want to be quoted because they know the co-owners object to what they want to do.  My position is that anything I say at a meeting could be know by all the co-owners.  Any advice that you can give me? 

- Lilli

Minutes are the official record of the board's actions and should reflect only motions that are seconded and the decisions the board makes with regard to those motions. Please go to our "Search" on the left column, and enter "Minutes" in the keyword field for additional information.

Sincerely,

Margey

For the sample format for Minutes in a meeting. What does the Treasurer's Report consist of? Thank you.

- Shannon

The Treasurer's Report could consist of:

1. Cash balance
   
   
2. Notable variances in the Statement of Revenue and Expense
   
   
3. Issues of current or pending concern regarding the financial condition of the association
   
   
4. Status of investments
   
   
5. Audit report

Sincerely,

Margey

Illinois Condominium - 33 units - new property manager as of 10/01/2005.  I have two questions that I hope you wil be able to answer.

Illinois Condominium Act Sec. 18 (b) (6) states that written notice of any membership meeting shall be mailed or delivered giving members no less than 10 and no more than 30 days notice of the time, place and purpose of such meeting.  Owners were notified by mail, postmark on envelope dated 02/10/06, for  condo board of managers  open meeting held at management company office on 02/15/06. Based upon the Illinois Condo Act were owners given adequate notice of meeting, if not was the meeting legal?

Illinois Condominium Act 18(a) (7) that the board of managers shall annually supply to all unit owners an itemized accounting of the common expenses for the preceding year actually incurred or paid, together with an indication of which portions were for reserves, capital expenditures or repairs or payment of real estate taxes and with a tabulation of the amounts collected pursuant to the budet or assessment, and showing the net excess or dificit of income over expenditures plus reserves.  Old management company sent report to owners within 1 month after yearend.  New management states that the law gives them 6 months after yearend to send report to owners.  Is there a law and/or who is correct? Thanks for your time. 

- Rose

According to Ms. Christine Evans, CMCA, PCAM, President of Vanguard Community Management, an Associa member company based in Schaumburg, Illinois, you may be confusing "Membership Meetings" which are normally held once a year at which owners elect board members, with "Board Meeting" which are typically held at regularly scheduled intervals at which the board members address the business issues of association operations. Both types of meetings are open to the members, but only board members participate at board meetings.

According to Illinois law, notice of a board meeting must be mailed to the owners or posted at the property 48 hours prior to the meeting. The Annual Membership Meeting requires formal written notice be sent to all members 10 - 30 days before the meeting, the specific period of time depending on the notice requirement provision in the Bylaws or CC&Rs.

The Illinois Condominium Act does not contain a specific time frame in which to distribute year-end financial reports. While the board could distribute the management company's unaudited report within a month following the year end, it is preferable to send the CPA-prepared year-end audited report, which may take several months to complete following the end of the fiscal year.

Sincerely,

Margey

I live in 78 unit high-rise condomium in Florida. After hurricane Wilma there was much damage to our building so my husband started a website to keep owners informed. We attended meetings and took notes. We were also given the previous months board meetings and he posted them. We posted other things such as all the units that are for sale and their asking prices as this is public record.

There is also some fluff on the site. Birthdays, anniversaries, etc. If anyone was especially happy with work that was being done for them they could recommend the individual. "No" advertisements for anyone we soon were told.

The president insists all information put on this website must pass through him first. Of course my husband will not relinquish this control. He alone administers and funds the site.

The president does not want the minutes printed or any condominiums up for sale posted with their asking price. He gives no reason. Can he do this?

We also have a Letter to the Editor section which my husband and I wrote a lengthy argument in defense of concrete restoration and the initiation of a reserve fund which he commented was political and shouldn't be posted. Anyone can send or email us a letter (signed) and we will post it. What are the board members rights here? And what are ours? Thank you.

- Ruth Ann

I'm not familiar with Florida law and cannot advise you about the legality of your website. However, while I believe that you have a right to post whatever kind of information you want so long as it complies with all applicable law, only your board can officially speak on behalf of your association. If you want to continue to publish your web site, it should contain a disclaimer that it does not purport to represent the formal positions of your association's elected leaders. (For more information on newsletters, go to our "Search" on the left column, and enter keyword "newsletter".)

That said, I think that community association websites can be a very useful tool for the residents, keeping them updated on decisions and actions of the board, informing them about the financial condition of the community, alerting them to new local, state and federal laws that may affect them, offering home improvement advice, and advising about community events -- in sum, keeping the sense and spirit of "community" in the community. Perhaps your president would consider a bifurcated website in which the board controls the information flow with regard to the business and governance aspects of your association (including letters to the editor), and you offer information relating to the community aspect (social events, birthdays and anniversaries, homes for sale and for lease, etc.).

Everybody benefits from good communications, so I hope you'll be able to work out a satisfactory compromise with your president.

Sincerely,

Margey

I have spent many hours researching Nevada state laws and looked through your archives.  I cannot find any answers, so it is time to ask the questions.....

Does a Board have the right to work from a rejected budget? Can they spend money on capital assessments and hire landscapers without homeowner approval? Our CC&R's and By-laws do not specify..... Thanks for any help you can provide....

Great site!

- Jennie

According to Ms. Patricia Rosia, President of Benchmark Association Services, an Associa member company with offices in Las Vegas and Reno, the budget must be presented to the membership every year and is considered approved unless no less than 51% of the homeowners present at a legally-established meeting "refute" (vote to disapprove) the budget. If the owners refute the budget, the board must continue to use the previous year's budget until the requisite percentage of the membership "ratifies" (approves) a new budget.

With regard to expending funds on capital improvements or approving a landscape contract, Ms. Rosia states that the board is authorized to do both as long as the anticipated projects are placed on the meeting agenda and discussed at an open meeting of the board.

Sincerely,

Margey

One of our Board members  insists on hiring a landscape contractor who public records disclose numerous tax liens against this contractor for failure to pay unemployment tax. What is you advice? Thank you.

- Morris

I recommend using only contractors who do not expose the association to additional tax liabilities and who comply with all local, state and federal laws.

Sincerely,

Margey

I purchased a home here in California 1 1/2 years ago and just in the past month received a bill from a group indicating that they are the homeowners association and that I owe $780.00 for the previous years association dues.  I never received in all that time a bill or invitation to monthly or quarterly association meetings.  I am one of 2 actual homeowners in a 6 unit complex -- the other 4 units are rentals owned by the individuals who created this so called homeowners association.  The fees they claim I owe money for is for common property maintenance. What might be my legal rights regarding this matter, they are threatening a lien against my home.

- Al

Check the packet of paperwork you received when you purchased your home. In it you should find the governing documents for your homeowners association as well as a disclosure document that addresses certain financial and legal obligations of the association to the owners. If you did not receive those documents, contact the real estate agent who assisted you with the sale. If you purchased the home without the services of a real estate agent, review California 's Davis-Stirling Act on our State Resources page for provisions addressing disclosure to potential buyers.

Homeowners associations typically are created prior to the sale of the first home, and ever owner is legally bound to comply with the association's governing documents, including payment of maintenance fees. If a group of owners in a community without a homeowners association desires to form a homeowners association, they must strictly comply with the provisions of the Davis -Stirling Act that details the creation process. It sounds like you need to do some more investigating to determine when your association was created and your legal obligations with regard to it. You might consider retaining the services of a qualified attorney knowledgeable in California law to assist you in the learning process.

Sincerely,

Margey

I need to know what the maximum rate increase by a condo association in the state of Florida is without a member vote.  I've searched the site's QA's and found references to the FLORIDA STATUTES CHAPTER 720, however, I could not find the exact percentage. Thanks in advance.

- Nathan

To find information relating to assessment rate increases, review your community association's governing document, in particular the Condominium Declaration.

Sincerely,

Margey

We have a group of residents that are purposely withholding their annual dues in the hopes of dissolving the association by restricting our finances. Other than placing liens on their properties, is there any other measures that we can take?

- David

Depending on the content of your association's governing documents (in particular the Declaration/Covenants/CC&Rs -- the name varies in different regions of the country), the board may have the authority to impose the following actions on a delinquent owner:

1. foreclose the lien
2. sue for a money judgment
3. evict the owner and rent the home
4. prohibit the delinquent owner from using the amenities or voting

I recommend you consult with a competent attorney knowledgeable in community association law to determine what collection efforts are appropriate in your situation. Debt collection is governed by the federal government and must be pursued in strict compliance with all laws.

Sincerely,

Margey

I own a condo in Illinois. Our board has a reserve of $17,000.00. For the past 2 months they have assessed a double maintenance due to gas bills. Shouldn't that have been taken out of reserves first? They collected $4,800.00 per month and the gas bill was $3,300.00. Are we entitled to a refund of the difference?  Thanks.

- Anna

Reserve funds are intended to replace the major common elements in your community such as private street lights, pool replastering, and the clubhouse roof and its equipment  --  not to pay for operating expenses, which includes gas bills.

While it is possible that your board is allocating any excess maintenance fees to other operating expenses that may have exceeded budget expectations, there is no  point in speculating. Why not just ask them where the additional funds are being used?

Sincerely,

Margey

I recently converted a small apartment building (six units) to condo ownership.  The process was very time consuming, detailed and costly.  We had to hire an attorney to prepare the declaration, bylaws, incorporation, disclosure and sale document.  We had to hire an engineer/surveyer to prepare related drawings.  Further, the cost of recording all these documents with the county was very expensive.

We got through it and now are preparing to offer the suites for sale.

Question, what is the proper tax treatment of the condo conversion costs. Can I expense the condo conversion costs or should such costs be a basis adjustment used to compute gain on sale?

- Dave

Since each corporation's and individual's tax situation is unique, I urge you to consult with a competent CPA expert in the field of real estate taxation.

Sincerely,

Margey

My recently formed HOA is an Idaho non-profit organization filed under IRS 501(c)(3); what tax forms must we file at the Federal level.  One source told me From 990 0r 990EZ.  I just now discovered a Form 1120-H?? Should I file both forms?

- Robert

Please consult with a tax expert to determine if filing the 1120 or 1120H tax form in appropriate.

Sincerely,

Margey

This has to do with Form 1120-H. I am president of a small condo association.  We are filing Form 1120 H.

Using example numbers:

We collected $30,000 in assessments and $200 in bank interest on our Reserve fund. On line A of 1120-H should we fill in $30,000 or $30,200? I have looked all over the "see instructions booklet" and can not find anything pertinent about lines B and C. I am reading the instructions for 1120H. Is there another publication or booklet explaining B and C? I already know that the $200 interest will have to be entered on line 13.

If we hire an accountant to prepare the taxes, can his charge be used on line 15 (other deductions).  If yes, then is his charge subtracted from line C and line D or from just line C?

- Carol

Form 1120H generally taxes income other than maintenance fees for homeowner associations. For more guidance on tax issues, I encourage you to consult with a tax expert.

Sincerely,

Margey

Top | Board of Directors | Communications | Finances | General
Insurance | Legal | Maintenance | Management | Rules

What is the difference between an Amendment  where the entire community must vote and a Resolution where the board is making changes to or adding on to existing rules. Can Board of Director make changes through Resolutions without getting a community vote?

- Marci

An amendment is a procedure in which the owners change, delete or add a provision in the community association's governing documents. A resolution is a formal means by which the board clarifies ambiguities, corrects omissions or otherwise elaborates on provisions in the documents. A resolution cannot override or conflict with existing verbiage in the governing documents; only the owners are empowered to effect changes to those documents.

The only way to amend the association's governing documents is through the process detailed in each document.

Sincerely,

Margey

Many of our owners believe they still live in an apartment... pick up the phone and a board member will get their toilet fixed. Last October, one owner spent several thousand dollars fixing his plumbing and presented us with a bill. We published Rules & Regs this past January, but many owners think we made them up rather than copying them directly from our Declarations.  The owners feel the board is acting dictatorially rather than in the interests of the entire community.  How can we make them understand their own responsibilities?  Is it a hopeless cause?  Thanks!!

- Terri

It sounds like your owners could use some insight on what it means to live in a community association. There are several ways to convey information regarding reasonable expectations and responsibilities of both the owners and the board:

1. Conduct monthly, bi-monthly or quarterly town hall meetings to discuss different aspects of community association living;
   
   
2. Insert a paragraph or two in each newsletter about a topical provision in the governing documents or state statutes;
   
   
3. Develop a section on your association's website regarding the responsibilities of both owners and the board of directors;
   
   
4. Conduct one-on-one chats between board members and the homeowners who seem to most misunderstand the obligations of the association to its members and the owners to the association;
   
   
5. Ask a qualified community association expert such as an attorney or manager to address the owners at a townhall, annual or special meeting regarding community association living;
   
   
6. Distribute by mail or email material from the Community Associations Institute (CAI).

Your board of directors may also need training on how to appropriately fulfill their legal and fiduciary obligations. The three best resources for insight and guidance for board members is a professional community association management company such as those who are Associa member companies, Association Times and CAI.

Sincerely,

Margey

Kentucky:  A small 38-unit patio home association built within a larger single home subdivision of several hundred homes.  The 12.9 acres where the patio homes were built was purchased and developed by a separate company from the single-dwelling homes.  We are a separately incorporated entity with a 5-member governing board.  The larger association of single homeowners is attempting to assess each of our 38 patio home owners the same annual amount as its owners pay.  We contend that we are not subject to or governed by their Declaration of Master Deed with Restrictions since we have our own.  Any opinions?  Please help! 

- President of Board

If your patio home association's Declaration indicates that your association is a part of or governed by the larger single family association, or if the single family association's Declaration references your patio home association as an entity that falls within its purview, then it's possible that the owners in your patio home association are obligated to pay assessments to the single family association. Review both Declarations for verbiage that may encumber your patio home association and, if so, how assessments may be calculated, or consult with a competent attorney knowledgeable in community association law.

Sincerely,

Margey

Top | Board of Directors | Communications | Finances | General
Insurance | Legal | Maintenance | Management | Rules

A past Board filed a foreclosure against a homeowner for non-payment of dues.  She counter sued, so the Board filed a claim against our D/O liability insurance to cover attorney's fees/any loss we may face if the case goes to court.  I just learned today that the insurance company denied our claim.  I am flabbergasted!  We've been paying for D/O insurance for over 19 years and we've never filed a claim!  What possible reason could the insurance company have to deny our claim?  What have we been paying for all of these years? Our policy claims to pay for the defense of the Board in cases such as these.

- Jen

Check the exclusion clause in your association's Directors and Officers Liability Policy to determine situations and actions that are not included in coverage. If foreclosure is not specified, you could challenge the claims adjuster's decision and appeal to his or her supervisor, or pursue whatever appeals procedure is detailed in the policy.

Sincerely,

Margey

Last December we had an Ice Storm. Water poured into a rear window causing severe damage, and severe leakage from roof causing ceiling water damage.  My insurance company wrote a letter stating that the damage was caused from negligence and maintenance failure from the Association Board not doing minor maintenance issues, cleaning gutters, restraining fascia board, etc. Than when the Board sent the claim to the Associations Insurance Company, they declined to pay because they said The Board had failed to maintain the commons area (roof/gutters/grading) and stated that it was Negligence and Maintenance Failure.  I tried to have the Association pay me for my expenses but they said the matter was now closed and are unwilling to repair and or reimburse me for damages.  I do not have major money to hire an attorney. What can I do?

- Rosalee

Insurance claims typically only cover losses that were accidental, sudden and unexpected. If a community association does not properly maintain the common elements such as a roof and that common element fails, damaging the interior of a unit, then the association may be responsible for restoring the unit to its original, pre-failure condition.

Most governing documents, typically the Declaration/Master Deed, contain provisions specifically detailing maintenance responsibilities under various circumstances. If your governing documents do not describe your situation, and your state's statutes do not address this issue, then your insurance policy and the association's policies would prevail. It appears from your question that both insurance carriers have denied the claim because the roof's failure was a result of poor maintenance. Since your board of directors does not seem amenable to effecting the repairs to your unit, you may need to file suit against them in Small Claims Court, or whatever the "citizen court" is called in your area in which you would explain to the judge why you believe the association should repair the damage in your unit. No attorney is necessary in this legal venue. You might also investigate to determine if there is a free mediation service in your area that could bring you and your board together to discuss the issues and help craft a solution.

Sincerely,

Margey

Is it California law that an HOA MUST have Errors and Omissions insurance within their policy, and if so where does it state that it should or does not have to?  Thank you very much.

- Flo

According to Mr. Mike Packard, PCAM, CPM, CCAM, President of N.N. Jaeschke, an Associa member community association management company based in San Diego, while the Business and Professions Civil Code Section 1365 (Davis-Sterling Act) "Limitation of Liability Against Officers and Directors" does not specifically require Errors and Omissions ("E & O") insurance,  your association's CC&Rs may. Even without a mandated obligationto obtain E & O insurance, no volunteer should serve on a community association board without it. With it, board members are covered for defense and judgments unless they committed an act of gross negligence or intentional wrongdoing. Without it, they may be personally liable for a mistake or oversight by the board.

You can access the entire Davis-Stirling Act by going to our State Resources page.

Sincerely,

Margey

Following Hurricane Katrina, our Association policy provided coverage, less a 2% of insured property deductible, and a depreciation allowance.  We have a small Association of 6 owners, so I have almost 15% of the $32,000 shortfall.  For a few dollars of additional premium, I also have a personal condominium policy, where I kicked my Loss Assessment coverage from the $1,000 standard to $15,000.

What can be put on this Special Assessment, other than the deductible and depreciation from the Association policy?  How about the cost of debris removal and tree triming in excess of the $500 allowed under the Association coverage?  How about landscaping, to replant and replace plants destroyed by the storm (there is no coverage for this expense under the Association policy)?

- Jim

While I sincerely empathize with the extraordinary hardship last year's hurricanes imposed on Florida residents, I don't have the necessary information to answer your insurance questions. Please contact your personal insurance agent to determine what expenses can be included in your Loss Assessment policy.

Sincerely,

Margey

I am doing a re-fi and need copy of homeowners association insurance.

- Laura

Ask the Expert is a national forum that answers questions regarding the operations of community associations. Please contact your board of directors or managing agent for an insurance certificate.

Sincerely,

Margey

I'm sorry for any confusion when I stated A.R.S. and did not clarify what I meant. (See question from last month.) I meant the Arizona Revised Statutes.  I was told that they prevailed over the CC&R's????  I'm not sure if the two A.R.S.'s have the same meaning or not???? 

Thank you for any help you can give me on this subject. Thank you.

- Glenda

I apologize for the miscommunication! Yes, Arizona Revised Statutes prevail over a community association's governing documents unless the statute states in some form or fashion, "unless otherwise provided in the governing documents". There may also be provisions that are specifically applicable to all community associations, while others may be valid only to community association created after a certain date.

Sincerely,

Margey

Hello, I am President of our residents' association and at our last meeting, on community grounds, another resident assaulted me. No damage was done but I was struck several times in front of witnesses. This information was given to management the next day and the attorney refuses to do anything. The ***** Rules & Regulations, New Mobile Home Buyers Guide, & Michigan Mobile Home Commission Act, all state this is just cause for eviction. The person who assaulted me has created quite a reputation for himself as a trouble maker in our community. He makes direct threats towards management, threatens management and residents with silly lawsuits on a regular basis. Still management refuses to take appropriate action against this individual. The only way we can have a safe orderly community is if management enforces the rules and regulations. Please help!!! Thank you.

- J.

Verbal and physical abuse should not be tolerated in any community association venue. I suggest you file a police report.

Sincerely,

Margey

Our association's proposed new bylaws state that future bylaw changes only require a simple majority for approval. Is this a good idea? Would it be better to suggest some higher approval rate for bylaw revisions?

- Bill

If your association is large or suffers from owner apathy, lowering the quorum requirement to a simple majority is a good way to ensure that the business of the association can be conducted. Since corporations must have a quorum of members in order to legally convene the annual meeting, I encourage board members to lower the requirement to a reasonable percentage or state-authorized minimum if there is a history of inability to gather together the necessary number of members. On the other hand, I believe that the board must make every effort to involve the owners and encourage them to participate in the administration of their community. Please review the article entitled "Achieving Quorum."

Without a quorum, there can be no election of directors, no votes on special assessments or assessment increases, no actions or decisions that may be essential for the continued viability of the association. However, a lowered quorum requirement mandates more vigilance by the homeowners to ensure that a small group of dissidents does not wrest control of the association away from the often-silent majority.

Sincerely,

Margey

How do you go about changing the CCRs when your HOA has been inactive for 4-5 years?  I live in Washington state, in an eighty unit, single-family development.  The development is around 15 years old, but the last two lots were not built out until about 4 years ago.  The HOA was never very active and once the last houses were built, it basically dissolved, though not formally.  As was fairly standard in this area, our CCRs permit only cedar shake (and for some reason tile roofs, which no one has) roofs, while composition roofs were specifically disallowed.  Now I would like to put on a composition roof.  One owner has done so already, but before they did, they circulated a petition that asked whether or not people would object to compostion roofs and if a vote were held, whether or not they would vote to amend the CCRs to allow composition roofs. They went around and collected signatures from over 75% of the owners stating they would allow composition roofs.  Although they also specifically mentioned their address, since it addressed it as a whole, I'm wondering if their petition would be enough to legally change our CCRs and therefore allow me to put on a compostion roof.  Our CCRs say at least 75% of the owners must approve a change. Thanks for your help.

- Craig

Only by amendment to your CC&Rs can you legally install a composition roof. While it may be difficult to obtain the approval of 75% of your neighbors, it can be done, as demonstrated by the other owner who wanted to install a similar roof. This time, however, be sure to strictly comply with the amendment requirements detailed in the CC&Rs so that composition shingles will be a viable option for all owners. 

Sincerely,

Margey

Currently our HOA is not mandatory. What can we do to change the covenants? How do we change to a mandatory membership? Thanks.

- Kevin

To modify or add provisions to your association's covenants, you must amend them in compliance with the procedure detailed in the covenants or in your state's statutes. To determine if your state's laws address this issue, go to our State Resources page.

Sincerely,

Margey

If both the condo documents and state statutes remain silent on the issue may limited common elements (garage stalls) be sold:

1. to another unit owner for cash?
2. to the condo ass'n for cash?
3. to an outside investor for cash?

Are there any good books on this issue?

- David

Typically, limited common elements are still owned in common by all the condominium owners and cannot be sold or leased without approval of a percentage of owners and perhaps first lien holders as specified in the Declaration/Master Deed. For a precise response to your question, however, you'll need the advice of a competent attorney knowledgeable in community association law and your association's governing documents.

Sincerely,

Margey

I feel I need to give a little history in order for you to fully understand what is going on so hopefully you can give me some advice.  I live in a small town in the state of Texas where our HOA has always done as they pleased making up the rules as they go.  Unless you have the money to fight them you are screwed. 

My family has owned property in an HOA for 35+ years and worked with the original developer. The first battle started when the developer assigned the Annual Maintenance Assessment (AMA) rights to the HOA and the HOA would not honor the agreement we had with the developer.  Over the years growing up in this HOA I had to listen to the HOA continually resent, harrass and bad mouth our family and various businesses, telling people we are crooks, not to trade with us, printing & mailing newsletters about us, etc.  This was all taken in stride until recently. 

My family was involved in a lawsuit with the HOA in 1995 to which a settlement was reached and the HOA had to move out of the building they officed in because of a "residential use" restriction and "unclean hands".  The HOA moved back into the building in late 2001 and began trying to illegally change the deed restrictions in addition to many other illegal actions of the board and violations of Texas law.

This is where I got involved telling the association they needed to run the association correctly and according to the law and that I would sue if they tried to circumvent the laws to change the restrictions or violated my property rights and if I had to sue I would tear them apart one piece at a time until there was nothing left.  Objections and discussions continued over the next couple of years with the HOA sending out newsletter after newsletter about me and my family, making sure to point out who I was related to. 

In 2004 things culminated when my brother was being sued by the tax office and the HOA demanded of the tax office to be named as a defendant in the suit and 5 other suits.  My brother paid his taxes and the tax portion was dropped but the HOA filed a crossclaim for past due AMA's and foreclosure of his property for $375 (he was the only one) so he had no choice but to file a countersuit for many of the things I had been telling them would come back to haunt them including Fair Debt Collection & Deceptive Trade Practices. Since then the HOA has sent several newsletters to members specifically about me and my family.  My husband & I are very upstanding members of our town and participate in many volunteer, youth sports & non-profit organizations and have standing within our community.  While the statements are not necessarily untrue, they are in my opinion inflammatory and designed to incite the community against us. 

I did threaten to sue them and now my brother is suing them for everything I alleged, I have continually been harrassed because I request to see records, minutes, etc., to which they force me to have my attorney request, they  wouldn't give my father his property cards even though all of his accounts were paid, etc. (I am not a party to the suit only helping).  The HOA will not allow anyone to review their records.  The HOA involuntarily terminated my membership in Jan 2005 and never notified me (I saw it on the internet in the minutes which were posted a year later) because I disrupted their meeting because the now board President called me a ***** and the Deputy the HOA hired was witness to it. 

As an example, I attended last nights meeting and the first thing I was asked by the President was "should you be here because of the lawsuit" my response was "why can't I, I'm a property owner". I placed a tape recorder on the table (I tape & put in writing everything that has to do with them).  During the meeting the President realized he was being taped and made a big deal about it in the meeting and pulled out a 1995 newsletter about the 1995 lawsuit and began making statements about my family (all on tape) he then got up and handed me my recorder.  My only comments in response to his outburst about being taped was "if you are doing nothing wrong and have nothing to hide what is the big deal" and after the comments about my family "this is why you are taped".

My question:  Do I and/or my family have grounds for a defamation or harrassment  case based on the fact that the HOA continually does/says things to make sure any new board members and the community will immediately hate or fear my family and think we are evil.  This same board President came up to me in the 2004 Annual Meeting and shook my hand and said he wanted to get me on the HOA Board UNTIL he found out who I was related to. I have had enough of this and feel that the only way to stop all this is to find a way to hold the Board personally responsible for the atmosphere they have created within the community.  Please help!  Attorneys are expensive and I would really appreciate some advise.  Thank you in advance for anything you can do! 

- S.

I recommend that you consult with a qualified attorney regarding the problems you have been experiencing with your board of directors. Our service is intended to help board members, homeowners and managers better address typical operational issues that impact their community.

Sincerely,

Margey

Is there an agency we can contact to make the Developer of our subdivision follow the Covenants we were told would be enforced when we purchased our home/property in a new subdivision.  He holds the Association because the subdivision does not have enough Homeowners to take control at this time and is violating our Covenants.  He is allowing vinyl siding, detached garages, etc., to be used/erected and it is strictly stated in our Covenants they are not permitted.  Is there any place we can turn to other than legal channels to have him follow our Covenants? Thank you.

- Dorothy

Please peruse your state's website to determine if there is an ombudsman or some other entity that can intervene in the operations of community associations. Otherwise, you would need qualified legal counsel knowledgeable in community association law to assist you, as there is no national forum to which to file a complaint.

Sincerely,

Margey

I currently live in a community of 11 single family homes in Virginia. The only documentation I can find filed at the courthouse is the initial declaration outlining the basic rules of the community (no junk cars, square footage of proposed new homes, etc). Nowhere can I find any recorded bylaws or documents giving the "association" governing authority. Can you tell me what papers I should be looking for, or do we have a valid homeowners association? Thank You.

- James

According to Mr. Bruce Steele, Executive Vice President of Community Management Corporation, an Associa member company based in Fairfax, Virginia, it is possible that the document you found is more limited than a full Declaration and may be simply the recorded covenants or deed restrictions, without the provisions regarding governance and operations of the community. If your association is incorporated, however, it should have Articles of Incorporation and Bylaws. Check with the State Corporation Commission to determine if your homeowners association was incorporated and what, if any, documents were recorded for the association. You will need to provide the Commission representative with the exact, legal name of your association to enable him or her to locate the information.

Sincerely,

Margey

Leave the HOA

I live in a townhome community in Texas. The grass is never cut, the pool is always dirty, the common area is not well lit, and repairs are seldom made, yet I am expected to pay around $300 a month for water and cable (that is all that works).  I want to know if I could legally leave the HOA and pay for my own water and cable, and continue paying for my own household repairs.

- Crystal

While your association's governing documents probably prohibit your seceding from the association, why not volunteer to serve on the board? It sounds like your directors may be overwhelmed with the responsibilities and obligations of their positions and could use your help.

Sincerely,

Margey

Our condominum association consists of 14 units in Pennsylvania. One owner (I'll call them owner "A") currently owns two units; they live in one and rent the other. A unit has recently been sold (settlement has not yet taken place)and it was purchased by owner "A" and a second owner "B". I believe they plan to rent out the newly purchased unit.

Now owners "A" and "B" own a total of 4 units between them giving them 30% of the votes. If three other owners with larger units side with them, 5 owners will have over 50% of the vote. Since we are such a small association and it wouldn't take much for them to find 3 other owners to agree with them, they will have the power to vote in what they want even though the majority of owners may not want it -- e.g., choices of paint colors, carpeting, increasing monthly dues, etc. Owners "A" and "B" are Treasurer and President of our Executive Board. Is there any thing we can do to stop the sale of the unit to them or minimize the power that they will have? I will also mention that these owners are not well liked by the majority of the other owners: they are manipulative and arrogant. Your response would be greatly appreciated as I don't know where else to turn at this point. Thank you!

- Fran

Community associations operate like governments to the extent that they both have governing documents that regulate the behavior and actions of individuals and membership is mandatory. If your Condominium Association's governing documents state that a majority of owners may make decisions for the entire group, then you must comply with the decision of the majority.

Just like a government, you have the right to challenge decisions and attempt to sway your neighbors to your position. However, you do not have the option not to comply with the valid decisions of the majority; if you strongly disagree, you may need to find another homeowners association in which the governing documents are more compatible with your philosophy.

Sincerely,

Margey

I live in a Condo in South Carolina controlled by a dysfunctional BOD and a Management Company that needs to go.

Does the state of SC have an Ombudsman that could help in matters like this? Thanks.

- Steve

Our website has several resources to answer your question. Please go to our State Resources page to find out what services the State of South Carolina may offer to members of homeowners associations. Additionally, click on "Search" on the left column of the any page for information regarding dysfunctional boards and how to improve the working relationship among board members.

Sincerely,

Margey

Is there a problem with taking just the president and vice-president to small claims court to recover an illegal vehicle towing charge or does the paperwork have to name the entire HOA? I prefer to just take president and vice, since they are the ones harassing me, not the rest of the board. Or does it make a difference? Thanks.

- George

Most community association governing documents indemnify the board members and officers from liability so long as they are acting in the best interests of the association as a whole, without conflicting interests. So, while you may want to file only against the president and vice president, the association's Directors and Officers Insurance policy will probably provide for their defense as if it were a claim against the entire board.

Sincerely,

Margey

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