Ask the Expert

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

Our Board has informed us that if any Committee or committee member implies that an expensive project we are doing in our 1600 apt condo might be unnecessary or possibly in the interests of our hired Management Company that we are all liable to expensive law suits.  Then they said every INDIVIDUAL owner (not on a commitee) is also possibly liable.

The issue is that a group of retired engineers here have indicated that they think the $1.5 Million replacement of bricks and facade may be unnecessary. We are all asking for an outside, non-biased engineering advisor, and the Board says that will imply that the company who is doing the work is being accused of some kind of fraud. WHAT ARE THE RIGHTS OF INDIVIDUAL UNIT OWNERS in respect to decision making and criticism of Board actions? Thank you. If this has already been answered, please just indicate.

- G.

Homeowner associations cannot supersede a citizen's constitutional right to free speech. In fact, I encourage homeowners to be involved in the operations of their community association, starting with service on committees that support the board by providing a broader base of homeowner input and insight. Board members should welcome comments from their "constituents" who elected them and who can remove them if the owners feel that the board does not represent their views and preferences. Additionally, deferring to the expertise of outside consultants is certainly recommended when an issue is beyond the technical knowledge of board and committee members.

Sincerely,

Margey

I am a member of a small home owner's association (around 25 lot owners - mostly vacation places on the river). I am not on the board, thank goodness.  We have one member (he calls himself the renegade) who has a vendetta so when he goes to association meetings, he tries to monopolize the floor, tells the facilitator and secretary constantly that they are not following Robert's Rules of Order and therefore are doing illegal acts and may just wind up in court and be personally liable. 

These board members are dedicating their time and are civic minded individuals who are just trying to keep the road maintained, the beach area nice, etc. The majority of association members are sick to death of this man's monopoly on the meetings. The last meeting was obviously going to be a long one because it involved going over all the new covenants, comparing them to the old ones, and everyone wanted to get the job done within the least amount of time to effectively do it.  The facilitator started the meeting by stating that each covenant would be read and the floor would then be open for limited discussion.  Next, he said there would be no voting or motions at this meeting, the voting for the covenants would be in a later meeting, but that this meeting and probably the next meeting would be for reading and discussing only.

Sometime during the meeting (which up until then was going smoothly and moving right along) the "renegade" made a motion and was ruled out of order since the meeting was supposed to be for discussion only. After this meeting, the renegade said he would add this illegal action to his list of items that would be covered in court. Was the facillitator in fact doing an illegal act and not properly conducting this meeting?  Can a facilitator establish ground rules at the beginning of a meeting like he did?  If the present covenants do not expressly state that all meetings are to be governed by Robert's Rules of Order, does the "renegade" have any legal stand in nitpicking every little action done that most lay people don't even know about as long as the majority of the members are not having a problem with the way the meetings are conducted.  (The meetings are conducted to the best of the board's knowledge by the rules, but none of the members except renegade is an expert at them.) 

If you are in good faith doing the best you can inside the law - is a judge going to judge for the renegade if someone does not literally call for the question or whatever?  I am not putting down Robert's Rules of Order - you have to have a process for meetings, but if you can't even get through a meeting without someone jumping up every 5 minutes to let you know you have not done it the exact way, it can be a burden.

- Marsha

So long as the process complies with your association's governing documents and state statutes and has the approval of the board of directors, the facilitator certainly can establish the ground rules for the meeting. Your board might find it helpful to have a professional parliamentarian or attorney help create written rules of meeting conduct to distribute to all attendees and attend one or two upcoming meetings to explain the rules to the membership and assist in any compliance issues.

For more information on conducting meetings and other community association operational issues, go to our “Search” on the left column” and enter “meetings” (or other relevant words) in the keyword field.

Sincerely,

Margey

Do homeowners have the right to know about disciplinarian issues with HOA employees? Would a board member or Board of Directors be liable for discussing personnel issues with homeowners? We had a meeting where a Board member fed information to a homeowner to cause problems at our last meeting. I am concerned that the employee may have a case against the Board for violating the employees right to privacy. Should we take any action against this homeowner and board member to keep the HOA from being sued by this employee?

Or do homeowners have the right to know and discuss disciplinarian issues of HOA employees?

- Cameron

Personnel issues should remain confidential to the board. I urge you to contact a labor attorney for advice regarding your board member's indiscretion.

Sincerely,

Margey

I live in Washington state and we recently had an annual meeting. The meeting was brought to order by the President, previous minutes were approved and business was discussed. I might mention there is much acrimony in this HOA. We have a President who holds the office of President/Treasurer and Secretary.

Question 1: My question is regarding a vote that was taken at that meeting. We currently have a litigation in our HOA, against one of our homeowners regarding fence posts/aesthetics.  The homeowners were not included in the decision to go forward with this lawsuit.  The homeowner won a judgement against this HOA and the board decided to appeal this judgement again without the homeowner's knowledge or permission.  We at this HOA meeting made a motion to stop the lawsuit/litigation it was seconded a discussion was held and question was called.  Homeowners then voted.  Of the 26 homeowners present, only 4 voted to continue the lawsuit.  The president quickly got up refused to accept the count, one of his board members left the building and others left their positions.  We contend it was still a legal vote and the lawsuit should end now, what is your legal take on that?  Is it a legal meeting? The president now wants us to believe it is not a legal meeting.

Question 2: We live in Washington state, the President of our HOA is also the Treasurer.  At an annual meeting HOA asked him to see the financial records of the HOA and he did not make them available.  Many homeowners have asked to see the records and he contends they are available to anyone anytime yet he only brings some of them sometime and then none of them at other times. This president wanted us to approve a new budget without ever seeing the financial records.  Even if the president is not doing something wrong, we feel he is leaving that impression and we want to know what our options are. Can we ask someone for assistance and who?

- Rhonda

I asked Ms. Ellen Fix, CMCA, AMS, President of EMB Management, Inc., an Associa member company headquartered in Bellevue, Washington, for help in providing a state-specific response to your question. Here's her answer:

"In my nearly 30 years of experience in managing associations in Washington State , I have very rarely seen this type of leadership. Most boards are very aware of their fiduciary responsibilities to the owners they represent and act accordingly. In Rhonda's situation, I have the following concerns, comments and recommendations for her association members:

All associations are or should be incorporated entities for many reasons (see the Ask the Expert archives or enter keywords "benefits of incorporation" in our website Search). If your association is an incorporated organization in Washington, one person cannot serve as President and Secretary; they must be different people.

If your association is not incorporated, a local attorney can draft the Articles of Incorporation and explain in more detail how incorporating the association will protect the board and owners against personal liability.

One source for answers to your questions should be contained in your association's Declaration (which also may be called the "CC&Rs" or "Covenants"), Bylaws or Articles of Incorporation, if applicable. The responsibilities of the Board should be listed in one or more of those documents, which may also authorize the board to decide whether to pursue litigation and if it is in the best interest of the association, with or without a vote of the membership. 

Washington State's official website will provide you with more information about state laws regarding Board authority and owners rights.

Withholding information from owners is contrary to both state statutes and community association governing documents. Owners have a right to attend and hear business at all board meetings, to elect the board in accordance with the Bylaws, and to see all financial and other documents pertaining to the community association (except in certain instances such as litigation, personnel matters, contract negotiation and other circumstances which are clearly stated in state statute and/or governing documents).

Rhonda did not mention how the board is financing this lawsuit; the governing documents may address budget issues, special assessments and extra expenditures. Owner approval may be required in some situations.

My best advice to Rhonda is to get copies of applicable state statutes, read the documents for her association, and consult an attorney who specializes in community association law. The Washington State chapter of the Community Associations Institute can provide referrals for attorneys in Rhonda's area. The attorney will need copies of her association's governing documents for review.

With the help of legal counsel, Rhonda and her follow homeowners may be able to replace the current board or get an injunction against any further inappropriate board action or expenditures, and gain access to all association records and documents.  Often, one letter from an attorney is all it takes to persuade a misguided board to correct its errant ways."

Sincerely,

Margey

We have recently moved to Condo in NH. Our association is very small with only 3 Board of Directors. We have had a problem with one of the Board of Directors. He threatend my husband "to make our lives miserable". As well as other issues. The question I have is who do you go to for help when every member of the board are great friends and have lived here for years already? Hope you can offer some help!

- G.

Even though there may be a friendly relationship among the board members as well as between the board members and your neighbors, each board member still has a fiduciary obligation to always act in the best interests of the association and to uniformly and fairly govern the members. Breaching the fiduciary obligation can result in personal liability.

It sounds like you may have started off on the wrong foot with your board members. Consider meeting with them to assure them of your commitment to complying with the association's governing documents, and requesting that your relationship remain at least professional and cordial if a friendship is not possible. It takes a while to develop new friends and fit in to a new community; give it time.

For more information on the fiduciary duty of community association board members, go to our "Search" on the left column, and enter "fiduciary" in the keyword field.

Sincerely,

Margey

My subdivision here in Texas is at about 50% owned, and will remain under developer control until we hit 80% owned.  Our problem is that the developer is not being responsive to the needs of the homeowners.  He has not called a homeowners meeting for over two years although we have requested one numerous times, he refuses to provide financial documents to show how our dues are being spent, and he refuses to make needed repairs to common areas (e.g., community pool).  Since he has total control, what recourse do we have until we reach 80% and take control?  The State Attorney General's office?

- Mark

While there is no Texas ombudsman or agency that mediates or resolves homeowner association issues, there is a possible source that may be able to help. If the developer is violating the association's governing documents or state statutes, his error and omissions insurance carrier should be very concerned.

I suggest that you send a final notice to the developer requesting that he comply with the governing documents with regard to the issues you mentioned. If he refuses or fails to respond within a reasonable specified period of time, consider notifying the association's insurance agent of the issues you described and advise him or her that you will file a claim against the developer's errors and omissions insurance carrier or directors and officers liability insurance carrier, whichever is in effect, if the developer does not comply with the governing documents and act in the best interest of the association in his role as board member.

Sincerely,

Margey

I manage a master association with 9 sub- associations (HOA) that each hold their own elections for their "pod" president. This president then automatically becomes a director on the Master Board. Our docs address how an officer can be removed from office, but not from the board.

If there is a director that is very counter productive and constantly arugmentive how can this director be removed from the board? Can the board relieve him or does his "pod" have to remove him as they elected him?

- Meredith

Typically in a corporation, only the group that elected a person can remove him. Thus, since the owners elected the board member, only those same owners can remove him. If neither the Bylaws nor the Declaration/Covenants/CC&Rs (the name varies in different parts of the country) of your community association contain a provision addressing the removal of directors, review your state's nonprofit corporation act.

Sincerely,

Margey

I am treasurer of a homeowners association in ****, Missouri. At our annual meeting, one member objected to the format of the ballot which required the members to sign the ballot and indicate their address.  The member complained that his vote was not 'secret'. 

Our bylaws are silent on the format of the ballot but they do specify that there be only one vote per unit.  What is the standard practice in the industry as to whether ballots are signed.  How else can the vote counters determine whether there was only one vote per unit? Thanks for your help.

- Richard

Not all Bylaws for community associations require secret ballots. If your association's Bylaws do not address the manner and method in which to cast ballots, the board can craft an administrative resolution detailing the voting process (see previous Ask the Expert responses and archived Association Times articles for more information on creating a resolution).

To protect the sanctity of the voting process, most board members and managers prepare ballots before the meeting. The address, account number or unit number is written on the bottom of each ballot to ensure that no owner receives more than one. If the voting procedures dictate that each owner votes in accordance with his or her percentage ownership, then prior to the meeting the ownership percentage is written on each ballot as the unit number is recorded. If the Bylaws require the owner's signature on the ballot, a line for the signature would be located above the unit number/account number/home address and percentage ownership. To ensure a secret ballot, however, the person signing in each homeowner to determine if a quorum is present and to distribute the ballots and meeting material would tear off (or have the printing company insert perforations) the lower part of the ballot which identified the unit/account number/address, leaving the percentage ownership and signature line, if applicable, on the actual ballot that the homeowner submits.

Sincerely,

Margey

There will be a special meeting on ****** in which members in our HOA in San Diego will vote to remove or retain the board and to elect successor directors (if the board is voted out).  Can proxy holders wait to deliver the proxies to management until the day of the meeting rather than return them by the date specified by management which is the day before the meeting. Management so far is refusing to give proxy holders a signed receipt for the proxy count upon delivery of the proxies, therefore, proxy holders (5 candidates) prefer to protect and safe guard the proxies until the day of the meeting. Is that legal and acceptable?

- Irene

According to Mr. Michael Packard, PCAM, CCAM, CPM, President of N.N. Jaeschke, an Associa member community association management company headquartered in San Diego, the proxy holders must comply with the conditions established by the board, so long as they are reasonable and not in contradiction to your association's Bylaws. To ensure that all proxies are counted and the ballots issued to the proxy holders, I recommend that you make a copy of each proxy before submitting it to the board. You might also consider taking a photograph of the proxy holder submitting the proxies to the management company, stamped with time and date.

Sincerely,

Margey

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I am the president of a relatively new (2001 established) association of 95 townhomes in the Chicago area.

Since I have been on this board (2 years) we have started the practice of welcoming new homeowners with a small gift (a fire extinguisher - cost $10 or about 10 cents per home). We also have sent flowers to homeowners injured or suffering problems - heart attacks, etc.

Some of our homeowners have objected to these practices. I intend to continue with these practices in spite of the objections, and the board agrees with me.

My question is, do you have any idea how many associations do welcome newcomers with a small gift, and how many practice a small form of commiseration with homeowners who are suffering?

I think it is important to try and form a small "community bond" when people first join our association - I want newcomers to form a good "first impression" of our association. (You never get a second chance to form a first impression...)

I also think it is important for the community to commiserate with those suffering - to let them know that others care about them.

The cost of these issues is minuscule - not more than $10-$15 per YEAR per Home.

I would appreciate any support you could offer me with this situation. Our last board meeting was noisy, because, of course, the complainers were there and were loud. Thanks for any help .

- Ken

I cannot applaud more enthusiastically your efforts to bring a sense and spirit of community to your homeowners association! Not only is your welcoming visit a great way to introduce yourself to your new neighbors and chat about the benefits of living in a community association, but the fire extinguisher is a practical gift, albeit hopefully never needed. Sending expressions of caring is yet another way to encourage residents in your community to cultivate friendships among their neighbors.

If a significant number of owners object to the expense involved in the fire extinguishers and flowers, and if your association's financial condition is less than ideal, remember it's the thought that counts. Consider the Old West tradition of welcoming new pioneers with bread and salt, representing the hospitality of folks isolated far from one another in a large country and indicating that they will never go without the necessities of life. Instead of flowers, a nice card or basket of candy conveys the same expression at less cost.

If more boards of directors personally greeted new neighbors in such a warm and friendly manner, I would venture to say that there would be far fewer community associations in which conflict, antagonism or apathy prevail.

Keep up the good work!

Sincerely,

Margey

First of all, I'd like to say thank you for giving me the opportunity to ask my question.

I'm a Southern California homeowner in a newly developed private community. Our house is 1 of 67 homes in the community and 1 of 2 homes with a private pool.  Can an Association assess us to build a community pool in an area that's currently a Tot Lot?  I'm horrified with the fact that I paid an enormous amount on our backyard and now I may have to pay for a second pool simultaniously.  If I would've known that this would be an option, I wouldn't have had our pool built. Thank you again!

- Michele

Your association's governing documents should contain provisions detailing the authority of the board and membership, as well as the procedure, to add capital improvements to the community. Typically, if an association is authorized to expend regular, reserve, capital improvement or special assessment funds to improve the property, a certain number or percentage of owners must approve the improvement and related costs.

Sincerely,

Margey

I'll try and be brief. Our complex was built in Dayton, Ohio in 1973.  Our declarations and by-laws have not been updated. Our complex of only 52 units has been managed somewhat poorly over the years and they have never been able to maintain a reserve.  Due to resignations of Board members we are way behind in completing the budget. 

We have 6 or 7 owners who have been extremely disruptive to the board and a few, but certainly not all, of their complaints are somewhat justified.  As a newly appointed board member, named treasurer, I have been trying to listen to their complaints and address them but I am only one, on a board of five and the fifth member who was appointed only a month before me has resigned because she must move due to a family obligation. She and I were the only members willing to take under advisement some of the serious objections of the disgruntled owners. 

Now we must appoint someone to fill the vacancy and we have no one that is good, that will be level-headed and open minded so the other three want to bring back a man that these disgruntled owners and others voted not to re-elect although by votes he would have been next in line. They will be extremely upset by that appointment. These disgruntled owners have been driving everyone crazy and many have resigned because of them and let me say, two of the most vocal have  ownership discrepancies.  An older couple where their children are actually on the deed and the other is living with an owner but not married and not on the deed.  The previous board hired an attorney to dispute their ability to vocalize at meetings and disrupt.  It has been a mess.  There is much more which I won't bore you with. Now we have legal fees, which they are complaining about and we can ill afford. And it will get worse, I am afraid. 

Our board discussed at the last two meetings their wish to replace all the gutters and downspouts which are original, except for a few replacements, this will require an added amount to the assessment needed to just balance the budget. In order to have an unbiased opinion as to the need, I suggested we pay a competent consultant for his opinion: his opinion was that if you have the money that would be the most prudent way to go, BUT one could rehang many, repair fascia boards BUT two buildings of 7 should be replaced ASAP. And then others, after repair, could be done two at a time over the next years. The board believes the cost to repair, rehang and replace two buildings would be a waste of good money, not cost effective, lets get it done and go on to all the other rather costly repairs that are seriously needed. I went into the discussion with repair as my decision and the other three board members listened to my thoughts but politely did not agree and will vote for new gutters.  After listening to the property manager and all of them, I felt they were possibly right.  But having listened to the disgruntled owners telling me they will hire an attorney to fight it, I was torn in my decision. They (disgruntled owners) are depending on me to try and make things right with this board and of course, I could vote no and retain credibility. These three other board members are fed up with these people and could care less what they think. The board thinks I am just giving in to them and since I now believe their arguments in favor of gutters might be the way to go, I feel like I must stand up for that and not chicken out to people who I am told will never be satisfied.  Help! 

Now for the real question: The disgruntled owners say this will be a Capital Improvement.  Our bylaws say "We shall have no authority to acquire and pay for out of the maintenance fund (and in this case with assessment which is not mentioned here) any capital additions and improvements (other than for purposes of replacing or restoring portions of the common areas and facilitys) having a total cost in excess of Five Hundred Dollars without in each case the prior approval of the members of the association entitled to exercise a majority of the voting power of the association."

The board asked for an opinion of the attorney they use:  He believes replacement of gutters is not considered a Capital Improvement and therefore a vote is not required.  I would like your opinion, please. These disgruntled voters would be satisfied with a vote but the other board menbers will not give in to their wish (possibly, because they believe it would not be in the affirmative) as in all complexes we have a silent majority that could be persuaded to vote no if $ are involved.  Our meeting is on March 29th.  If your response is in agreement with our attorney it would be most helpful, if not, we will have to deal with that. Also their argument is that the IRS would call this a Capitol Improvement (since their application is not for condos, I'm not certain you can apply that reasoning). With all the overdue maintenance we will have assessments every year. I don't think there is any other solution.  Many unwise decisions have been made in the past. Thank you for taking my question.  I hope to hear from you in time for our meeting.

- Ann

A capital improvement denotes adding a new component to the community such as additional lighting, a new gazebo or new tennis courts. A gutter replacement program should be paid for with reserve funds which are allocated from the maintenance fees to pay for the eventual replacement of the major common area physical components within the community.

Sincerely,

Margey

My last question, a few days ago, referred to my need for a definition of Capital Improvement.  The board wanted to replace original gutters (age 33 years) without a vote due to a group of people who fight everything.  We have an attorney opinion that says he believes it would fall into repair/replacement. They are using the IRS definition and say we must have a vote. I wrote my question too late so still have no answer.  Now it may be moot considering what happened at board meeting. 

I am a new Treasurer, at a meeting a couple months ago before I was appointed, reserve funds were discussed (Ohio state law mandates - our bylaws are original and don't speak to the issue) and the majority seemed to approve. The board went forward assuming (we know what that does) we were on track but no official quorum. Last night the dissidents fouled up the entire meeting with their questions about the reserve fund (we are 52 owners and we have an $6,000 in what we have been calling a reserve fund.  New management was handed that from the old Manager.) Last night we had to shut down.  Must we have a quorum to fund a reserve?  Dissidents will campaign against. Not sure we won't be 1 or 2 votes off.  Help? Thank you in advance.

- Ann

Your association's governing documents and Ohio state statutes will contain provisions specifically addressing the administrative management of your association. Typically, a vote of the membership is not required to fund reserves; the board is usually charged with the obligation to ensure that there are adequate funds to replace the major common area physical components as the need arises. A Reserve Specialist (a designation conferred by the Community Associations Institute) can determine the amount of funds that should be budgeted to be set aside monthly to fund the reserve account.

For more information on reserve funds enter the word "reserve" in the keyword search field.

Sincerely,

Margey

For the past 15 months, our management company has been charging delinquent homeowners the incorrect late fee.  I realize that the Board should have caught this error, but we also feel that we are paying management to advise us.  Isn't that one of the purposes of having professional management?  Now that I've pointed this error out to them, they seem very unresponsive in correcting the delinquent account balances. Comments please!

- Jen

The board of directors is ultimately legally responsible for the management of the community association. Once the late charge error was discovered, the board and manager should have immediately taken steps to correct the oversight and ensure that the late fee amount was correct. I suggest that the board consult with an attorney knowledgeable in community association law regarding the feasibility of adjusting the homeowner accounts that were billed the incorrect amount over the past fifteen months.

Sincerely,

Margey

Upon request, management has started providing the Board with a monthly CC&R violation report.  However, the accrued fines are no where to be found in the bookkeeping.  They have not been added to the delinquent accounts, nor are they listed on the owner detail report.  Where should these unpaid fines be reported?  I'm starting to wonder whether the fine letters were ever actually sent.

- Jen

Fines should be charged to the owner's assessment account and appear on the delinquency report. If the financial reports are prepared on the accrual basis, the fines will be included in the "Accounts Receivable" line item on the balance sheet. If the financial reports are prepared on the cash basis, there is no "Accounts Receivable" line item on the balance sheet but the fines will appear on the delinquency report and in each homeowner's account record.

I concur with your plan to check to see if the violation letters were sent. I would also suggest that you ensure that the fines are imposed in compliance with your association's governing documents and state statutes.

Sincerely,

Margey

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What's the difference between By-Laws and a Declaration of Trust?

Our Massachusetts condo Association has By-Laws, but no Trust declaration. The bank is requiring a Declaration of Trust and notarized documents indicating who the trustees are.  The By-Laws have no amendments or addendums, just has the original owner from 19 years ago. 

We're having a very hard time getting real estate attorneys to call us back. Any suggestions would be most appreciated. Thanks!

- Kristy

Bylaws typically address the administration of the corporation, such as determining when the annual meeting will be held, how frequently board members must meet, and how owners will vote for board members. The Declaration of Trust (also known as "Declaration of CC&Rs") is a required document for all condominium associations because it details critical information regarding the obligations and responsibilities of the association and the owners to each other. It should have been recorded before the first unit in your condominium community was sold, and conveyed to every owner at closing on their unit.

If none of your neighbors has a copy of the Declaration, it's possible that you can retrieve a copy of it by contacting your local deed records department. If you are unsuccessful in your efforts to track down the originally recorded document, ask a competent real estate lawyer for assistance. To find one who will respond to your call, contact the local chapter of the Community Associations Institute by going to www.caionline.org and clicking on "Find a Chapter".

Sincerely,

Margey

Hello, I have a question regarding the definition of a member in good standing.  Our covenants require that only "members in good standing" can vote in elections and proxies.  However the documentation fails to define what a member in good standing is.  Many feel that this determination is tied to the fullfillment of due and assessment payments to the assoc. However some members feel that simply owning property in the neighborhood qualifies you as a member in good standing.  Can you tell us what the commonly accepted definition of this term is? Thank you.

- Les

The definition of "member in good standing" could be found in another of the association's governing documents such as the Bylaws or Articles of Incorporation. Absent verbiage in any of the documents, look to state statutes for clarification. If there is no definition either in laws relating specifically to community associations or more generally to nonprofit corporations, it's possible that the board of directors has the authority to craft an administrative resolution providing a reasonable definition of a "member in good standing". In many association Bylaws, the term is defined as an owner who is current in his or her assessments and not in violation of any provisions of the governing documents.

Before revoking a homeowner's voting rights, I urge you to consult with a competent attorney knowledgeable in community association law to ensure that the new resolution is valid and enforceable.

Sincerely,

Margey

I have submitted several complaints regarding my neighbor disturbing the peace. My neighbor is also the Secretary of the Homeowners Association. The Management company mailed a warning letter to my neighbor and also related this informatiion to the President of the HOA.  My neighbor is denying the allegations and claims she is not disturbing the peace. 

I made an additional complaint as well as another homeowner regarding the disturbance and also involved the police for relief resulting in seven activity reports. 

Today, called the Management company to see what is the next step and the representative stated she passed on the information to President and it is up to her to make a decision on what is going to happen next.

The President, on the otherhand, is very content with her Secretary's performance as she has taking a big load off her duties. 

I need help with this matter.  

- J.

Perhaps you and the other complainant would consider asking your neighbor to agree to mediation at which an impartial mediator listens to both sides of the issue and helps the involved parties reach a mutually agreeable solution.

It is usually unproductive for homeowners association boards of directors to get involved in disputes between neighbors, whether or not one of them serves on the board. I urge you to try to resolve the situation with your neighbor amicably so that you both can enjoy your respective homes and the benefits of your community association.

Sincerely,

Margey

My CC&R's does not mention what my rights are regarding our HOA. Where do I go to find out my rights as a homeowner?  The management company & HOA are "neglecting" to divulge such info.

- Shawn

Almost every community association has a set of governing documents (Covenants/Declaration/CC&Rs, Bylaws, Articles of Incorporation) that contain provisions addressing the contractual nature of the relationship between the owners and the association, and the obligations and rights of each party. If such verbiage was not included in your association's governing documents, review relevant state statutes.

Sincerely,

Margey

Thanks for the info.  I've found several legal opinions that disagree.  They say the minutes should also reflect the attitude of those present as well as the procedure utilized to achieve a decision.  Since the association members are entitled to see all the records, it is my belief that attitude is very important particularly when it's time to vote again.  In my condo I have seen that motions are rarely made and that several meetings are required to discuss an issue before they come to a decision.  Therefore, describing the pros and cons put forth and by whom are important.  I've also pulled the minutes of several other condo associations and they reflect the attitude of the directors and their position on the issues (which can also be reflected by their vote).  My by-laws state that the secretary has a duty to accurately portray the evidenchary (can't spell it) proceedings.  Thanks again for your response but I don't believe it's very helpful.

- Lilli

Please reread my response, in particular the sentence urging you to review more information regarding Minute-taking. Additionally, by clicking on "Links and Resources" on that site you will see several links to parliamentary procedure resources that will further address the recommended content of Minutes.

Sincerely,

Margey

This is a question concerning our Property Owners Association here in Arizona.  Around 10% of the owners live on their properties presently, therefore any association voting is done by proxy, via US Mail.  My question to you, if one "abstains" to vote, either yes or no or elects not to turn in any vote, how should that "abstention" be counted.  This is very important to us since some changes have to be approved by a 66.67% vote:

CC&R portion is here:

"H. In addition to the regular assessment as set forth above, the Association may set special assessments if the Association determines by two-third's ownership vote that such is necessary to meet the primary purposes of the Association. Any special assessments shall be charged on the same basis per Parcel as regular assessments. "

Thank you in advance for any help you can lend.

- Dave

In parliamentary procedure terms, "abstention" means not casting a ballot either yes or no. In your specific circumstances, it would appear that your association's CC&Rs require that at least two-thirds of the owners in your community must affirmatively vote to approve a special assessment.

For more information on parliamentary procedure, go to our Links and Resources page and scroll down to "Parliamentary Procedure". Additionally, entering "achieve quorum" in the keyword search field will result in several articles and Ask the Expert archived responses discussing methods to persuade apathetic and/or absentee owners to participate in the governmental aspect of their community association's operations.

Sincerely,

Margey

I live in Michigan.  At the time that I purchased my condo I was told that a deck would come with the purchase of my condo or I could take the $2100 for the deck and use it for a patio.  I decided on a patio. I received a few quotes then was told that I would have to use the "builders" patio contractor.  I asked the sales person in the models (this is a new complex) if I could contact the association about this and was told that I could but it would do me no good because they would only tell me that it was up to her and the builder and that she already picked the contractor and that is who I would have to go with. 

She explained to me that all the patios would have to look similar and certain things would have to be done such as drains but the quote we received from "her" contractor was outrageous... more that twice the price from others!  I'm assuming, and maybe I shouldn't, that the $2100 that is given towards the patio is somehow split between the contractor and the builder.  I even offered to do some research or get other estimates from other contractors that the builder has used but the answer was still no! I'm not wanting to have a nicer or different looking patio, I just want to pay a fair price. UGH!!! Is there anything I can do??

- J.

I agree that the requirement to use only the developer's contractor doesn't pass the smell test. It sounds like you've only received verbal instructions to that effect; I suggest you ask the sales person to put in writing that you may only use the one contractor. The sales agent may hesitate putting that requirement on paper, knowing the potential liability it may cause.

You might also consider submitting a formal written request for approval to install the patio, attaching the specifications that exactly comply with the sales agent's requirements or agreeing to construct it so it is identical to one that has already been approved and installed. Your association's governing documents probably contain a provision requiring the board to respond in writing to variance requests within a certain period of time; thirty days is not uncommon.

A final suggestion would be to chat with your neighbors or any Advisory Board of homeowners that may exist prior to transitioning control from the developer to the owners. You may gain insight as to the reasoning behind the sales person's demands. If transition to homeowner control is anticipated in the near future, it may make more sense to wait until the homeowner board is installed to pursue permission for your patio construction.

Sincerely,

Margey

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Foreclosure seems to be the only real leverage that Associations have when it comes to delinquent homeowners.  What is your opinion regarding foreclosure?  Our Management company completely refuses to recognize that it should ever be an option.  If a judgment is obtained, and the homeowner still refuses to comply, they insist on getting a writ of execution to seize personal property. If there's enough equity, our Board would rather foreclose.  Help!!

- Jen

Foreclosure should be the collection effort of last resort. However, when all other efforts at resolving delinquencies have failed and the board feels certain that the owner is aware of the potential of losing his or her home as a result of not paying assessments, then foreclosure may be the only remaining recourse. If foreclosure is a legal option as described in the governing documents and/or state statutes, then the association may need to pursue it. After all, if each person doesn't pay his or her fair share, then the other owners must pay more to offset the delinquency in order to ensure the financial stability of the community. Too many delinquencies can result in a poorly maintained community and lower property values, so the board has a fiduciary obligation to make every effort to collect all charges and assessments.

Judicial foreclosure involves suing the homeowner for the delinquent amount, appearing before a judge for approval of the association taking ownership of the home and, finally, an officer of the court removing to storage all personal belongings in the home if the foreclosed owner refuses to move. If the association prefers obtaining a personal money judgment instead of or in addition to foreclosure, the court typically allows the association to sell certain assets of the owner in order to satisfy the debt and/or collect rent from the tenant if the owner is a landlord. 

Foreclosure is a very drastic, emotional and often media-charged event. I urge every board of directors to compassionately consider all other possible collection methods, including payment plans and delaying collection efforts for a specified period of time until the owner is on better financial footing, before seizing anyone's home for payment of a relatively small debt.

Sincerely,

Margey

I totally enjoy your site and your FAQ's. THANK YOU! We are a homeowner's association of 14 homes with a private road and common areas we landscape. We file form 1120H. We have a new president that insists that we need to incorporate for $35.00 online and pay $10.00 a year. He said we would file 990T and relieve our homeowners of all potential lawsuits. I don't know where to go for pros and cons. Can you help?

- Judy

There are two good sources for answers to your question -- Association Times and the Internet. Using our search feature with the keywords "incorporation benefits" will result in several Ask the Expert archived responses on the subject. Going to your favorite Internet search engine and entering the same two words will result in thousands of links.

Sincerely,

Margey

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I reside in a townhome in Colorado that has 244 units. 3-weeks ago I remodeled my basement with new drywall, carpet, cabinets, paint, the works! When I came home the other day, I discovered that my basement had flooded. That evening I called my property manager and the city. The city was able to determine that the water had come from an outside source (most likely a sprinkler or a French drain) and leaked through the top of the foundation. This is the 3rd time this has occurred (the first incident happened in 2000 and the second occurred in 2003 due to over watering). I had to remove my new carpet and toss the padding. Water had wicked 6" up the drywall, and one of my cabinets were also damaged. My property manager sent someone out with fans and a dehumidifier; however, they are still "investigating" the problem.

My insurance will not cover the damage because the water came from below the ground, and the master policy through the association will not cover this either. What are my rights as a homeowner since I have no control over how drainage or lines are maintained? Should I consider small clams since my association has negated my past pleas?

- Ryan

If your association's governing documents contain a provision imposing maintenance responsibility on the association for damages to the interior of units caused by the failure of a common element, then the association may be responsible for the damage to your basement. However, because there are too many variables in your documents and the circumstances surrounding the flooding about which I am not aware, I encourage you to consult with a competent attorney knowledgeable in Arizona community association law who can advise you regarding any potential legal recourse you may have.

Sincerely,

Margey

Hello, I'm owner of the condo in one California HOA. Last summer our condos were inspected by a fire inspection company on the status of fire sprinklers, that was arranged by association management company. In some units, fire sprinklers were found painted that was considered to be damage and replaced with new fire sprinklers.

All owners were charged to pay this fee for each fire sprinkler head $75.

My question, who should be responsible for replacing those sprinklers headers if the owner didn't paint them and since inspection happens only every 5 years, probably this was inherited from the previous owner.

Home inspection report, CC&R and HOA newsletter had no any words about rules on how to manage, take care of fire sprinklers header and their conditions. Thanks.

- Lyubov

Current unit owners are responsible for ensuring that the unit components for which the condominium declaration determines are the owner's responsibility comply with local building codes. The condominium association would not be authorized to expend common funds to repair or replace fire sprinkler heads within the units unless specifically mandated to do so in the governing documents.

I suggest that the board provide a Fact Sheet in each new homeowner's packet, and distribute it to existing owners, describing the appropriate maintenance of the sprinkler heads and reconfirming that the Condominium Declaration stipulates that the association is not responsible to maintain or replace the heads.

Sincerely,

Margey

I am hoping you can help me with an ongoing problem affecting my Massachusetts condo.  In 2002, my unit received some minor damage from a sewer back-up that originated in the sewer line between the (condo owned) street and my building.  The condo management.office had the line snaked and cleared when it was discovered that tree roots had grown into the line. No other repairs were made. I later discovered that the line had been replaced in 2001, prior to my purchasing the condo, and, evidently, the line was breached a year later.  (There is nothing to indicate that the breach was patched.) 

In 2003, the sewer line backed up again.  This time, I was not home when the back-up started but it was reported independently by two of my neighbors who informed management that I should be notified because my unit had been damaged in the prior flood.  They did not notify me nor did they tell me of any problem when I called the office later that day due to an unrelated matter.  They did not respond when I discovered the problem when I arrived home, some 13 hours after it was originally reported.  The maintenance office didn't have anyone come out to start clean-up until some 27 hours later. 

As a result, my unit received significant damage to the walls, vanity, flooring (carpet and linoleum) as well as personal property due to extensive seepage of the sewerage.  I had to move out for several days and had to board my cat.  The condo association had maintenance rip out and replace a portion of walls, and rip out the carpet and linoleum.  The made a very low monetary offer to replace the carpet and linoleum (with subgrade materials that were not equivalant to what was there previously).  The offer did not include compensation for any other damages, including damages that were caused by the maintenance crew during clean-up.

The condo association, their insurance agent, and the master insurance carrier are telling me that I had inadequate insurance coverage, despite the fact that I have an HO6 policy - what their management office advised me to purchase.  My insurance agent provided documentation stating that a sewer backup was not a covered loss.

It is my contention that the damages could have been significantly minimized had maintenance made me aware of the problem when it was first reported and clean-up was started earlier.  (In fact, it could have been avoided altogether had they repaired and maintained the sewer line properly, particularly since it was in a common area and there is a history of problems with this line.)

I asked the insurance carrier about liability coverage and I cannot get a straight answer.  I asked for a copy of the master insurance policy and I was refused, despite the fact that my condo fees go toward paying for this policy.  Therefore, I consider myself a policy-holder along with other unit owners.

Question:  To what extent is a condo association responsible for ongoing, common area maintenance problems that cause damage to a unit owner's property?  If the condo association is negligent, would a typical master insurance policy provide compensation for damages not usually covered (i.e., personal property)?  Are unit owners entitled to receive a copy of the master insurance policy upon request?

I'd appreciate any suggestions you can provide.  I have been trying to resolve this problem and obtain fair compensation (unsuccessfully) for three years now and I cannot afford to hire an attorney.  Damages are much higher than the maximum allowed for a claim in small claims court.  While it seems the insurance carrier MAY settle for the cost of the flooring, they would take a 30% depreciated cost and refuse to cover other damages.  Further, I cannot establish what measures are being taken to prevent the problem from happening again.  Is it unreasonable to expect that they install a check-valve in the line?  They said they will check and snake the line every 12 months but I don't think this is frequent enough given that the time period between the 2002 and 2003 floods was only 13 months. Many thanks.

- OL

If you had provided daytime contact information to your management company, it would have been appropriate, but not mandatory, for the manager to contact you regarding the sewer damage to your unit, suggesting that you return home to mitigate the damage. In order for the management company to enter your unit without your permission, it must have approval from the board and the board must have authorization in the governing documents to enter units in an emergency.

Most insurance policies require the association to timely minimize the damage in an insurable loss to avoid additional costly repairs and replacement of covered components. However, it's impossible for me to assess your situation without reading your association's governing documents, management contract and insurance policy. You may need the assistance of a qualified attorney knowledgeable in community associations and insurance issues, or an insurance consultant, to determine your rights in the situation you described. These professionals would also be able to advise you if the policy was written based on "actual cash value" or "replacement cost", which would determine the value of the loss. I suggest you request a meeting to include the association's insurance agent and claims adjuster, your insurance agent, your attorney or insurance consultant and yourself (and perhaps a representative of the board and/or management company) to work through these issues and reach consensus.

With regard to the insurance policy, while the manager and board may be hesitant to copy the entire contract for you, I would imagine that either your association's governing documents or state statutes, or both, contain provisions mandating that the association's books and records be made available to the owners upon written request and for a reasonable cause. You should be allowed to view the insurance policy.

Sincerely,

Margey

You said that updating a subdivision entrance can enhance property values. We have some skeptical homeowners, can you say anymore? Our sub is over 25 years old and pretty dated looking.

- Michelle

For specific information on how homeowners associations can affect the value of homes within a community, ask a local Realtor or real estate appraiser. You could also enter "resale value of community associations" in any Internet search engine to see several applicable articles.

Sincerely,

Margey

Our PUD Association makes assessments for and performs specific maintenance and repair on the roofs, balconies and performs termite control. My unit has considerable damage as a result of roof leakage, water damage through the balcony and termite damage.  The Board asserts they are only responsible for the maintenance and not the repair when the maintenance fails, so they refuse to repair or reimburse for mold remediation, drywall repair and termite damage, although they have agreed to repair the roof, spray for termites and seal the deck. 

The CC&R's define the common area as the "paved and landscaped common area lot for ingress and egress to the residential and parking facilities."

Additionally, the CC&R's limit the purpose of assessments to: "...the improvement and maintenance of the Common Area and of the homes situated upon the properties."  Other than these two statements the CC&R's do not mention the common area.  Are they liable for the damage?

- Cynthia

Typically, PUD associations are not responsible for subsequent damage to unit interiors caused by the failure of a common area component unless the association is negligent in its efforts to rectify the common area problem after receiving a request for maintenance or observing a repair necessity.

If the governing documents do not impose specific maintenance obligations on the association, it is likely that the association cannot be held responsible for repairs to the unspecified components.

Sincerely,

Margey

I live in a condo complex in San Diego Calif.I am on the Board of Directors. Recently the Board accepted a proposal from a vendor to service some of the trees in the common area. The vendor erronously cut down a melaleuca quinquenervia tree that was only scheduled to be trimmed. The common area has been damaged. The tree was over 30 years old and over 30 feet tall. The Board did approve removing two melaleuca trees that were too close to buildings and dropping debris on the roofs but this tree was not on the list to be removed as it is further away from buildings. I have located a tree nursery that has a melaleuca tree to replace the cut down one (similar variety, height and age). The cost of the tree is $24,000 (twenty four thousand dollars) and comes in a 120 inch box (root ball size). Labor and equipment to install the tree would cost approximately $3,000 (three thousand dollars). Total cost to replace the tree would be approximately $27,000.

I feel the vendor is obligated to compensate the HOA the  $27,000. Another Board member feels that since a future Board (who knows when -10, 20, or 30 years from now may someday decide to have the tree removed the HOA is entitled to no compensation for the erronously removed tree. The Board has a fiduciary responsibility to the homeowners. What should the Board do?

- John

If there was a written contract between the association and the tree vendor, if that contract contained very specific details regarding which tree would receive what treatment, and if those specifications mandated pruning, not removing, the melaleuca quinquenervia tree, then the vendor should file a claim with his liability insurance carrier. If the vendor was uninsured (you should never allow association-hired vendors/contractors on the premises without having in hand an original certificate of insurance for liability and workers compensation insurance coverage!), he or she may not have sufficient assets to pay to replace such a valuable tree.

Sincerely,

Margey

I am on the BOD of a mixed homeowners association (417 units consisting of condos, townhouses, and single family homes) in NH.  We have an annual association fee, and we are managed by a management company, who charges us a monthly management fee for accounting and administration, with other services (postage, copying, repairs and maintenance) charged on a time-and-materials basis.  We pay outside contractors separately.

We are currently renegotiating our contract with the management company and noted a new clause they inserted that does not seem right to us.  It states that for "administration of insurance claims", the management company will exact a fee (over and above their monthly management fee) equal to 10% of the settlement amount of any claim up to $9,999 and 5% on any claim of $10,000 or greater.  Their explanation to us was that it takes a lot of extra time and effort to follow up on an insurance claim, thus the need to charge us extra, and that it's an "offset to keep their monthly management fee low".  I am wondering if this is standard practice?  It doesn't seem to make a lot of sense to us, as  (1) this seems tantamount to taking a piece of the settlement that paid for our damaged property... insurance exists to make the association whole in the event of a loss... how would we explain the shortfall to residents? (2) Following up on an insurance claim does not take any more time than, say, chasing after a contractor who has done shoddy work for the association, yet there is no additional fee for that service; it's considered part of their expected duties for which we pay the monthly management fee; (3) the amount of a claim does not necessarily bear any relationship to the amount of time it takes to follow up on a claim; (4) under this scenario, what would stop a management company (aside from the ethical considerations, of course) from intentionally causing property damage so claims would have to be made, hence generating more revenue for their company?

There are many more reasons this does not seem an acceptable practice. Wondering if you have any thoughts on this, or should I contact the insurance regulatory board in my state?  Is there a governing body in the state of NH that oversees management companies and how they can structure their fees?

Thanks in advance for any advice you can provide in this area.

- Deborah

It is standard practice for community association management companies to include a provision in the management contract requiring the association to pay an insurance administrative fee if the manager is expected to oversee the claims process and restoration of common elements or units. The monthly management fee covers anticipated and scheduled administration of the association's operations. Since insurance losses cannot be predicted, the management company CEO cannot calculate an amount to include in the management fee for the time and resources that will be required to administer the claim which, depending on the extent of the loss, can result in hundreds of hours of additional work by not only the manager but his or her support staff as well. In fact, the association benefits from this billing custom since it will pay only for management services provided, not a higher monthly management fee for insurance claim administration that may never be needed.  By excluding the additional time and fees for supervision of insurance claims from the routine contracted management services, many insurance companies will include the additional costs as part of the insurance claim.

As to thinking that the manager could cause an insurance loss just to collect additional funds, I suggest you respect the professionalism and credibility of the manager and the management company.

To find out if New Hampshire has an oversight agency for community associations, go to our State Resources page.

Sincerely,

Margey

Hello, and thank you for your time. I had a quick question, do most management companies send monthly invoices before the 1st of the month to collect the monthly condo fees, or is it just assumed that they should be mailed for the first of the month? Thanks.

- James

Most management companies either send a periodic (monthly, quarterly or annual) invoice for maintenance fees, provide a periodic supply of payment coupons for direct remittance to the association's bank, offer automatic debit services, or provide credit card charge availability.

Sincerely,

Margey

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My husband is a contractor in East Texas .  We live and build in the same community.  There are only a few lots left in our subdivision.  We bought several lots, obtained construction loans based on the CCR requirements and a recorded set of ACC construction guidelines.  We started the homes.  Now the new ACC has come out with extensive requirements which would probably increase the community's property values, yet at the expense of the remaining lot owners.  Again, our construction loan does not support the new requirements.  What on earth do we do?  We are not convinced the property would appraise for resale to get our money out of the new requirements, either.  Not fair... what on earth can we do?

- K.

If you obtained the permits and started construction on the homes under the original architectural guidelines, it is unlikely that newly established architectural guidelines can be imposed retroactively. To ensure that you are proceeding on sure legal footing, however, I urge you to consult with a competent attorney knowledgeable in Texas community association law.

Sincerely,

Margey

I live in California, our development has CC&Rs however we do not have a Homeowners Association. That is, property owners do not pay monthly fees to any HOA. In the CCR&Rs there is a provision for a community service advisory board. It is described that this board interfaces with local county services departments that are responsible for maintaining the "Common Services Area" (county roads,  wetlands area, etc.). Our properties are assessed a special local tax fee annually to pay for the county services.

The development is twenty years old and we have had no "enforcement" of CC&R's since we have lived in the development for the past twelve years. In talking to neighbors who were property owners there has been no activity since the developers completed the build-out of the development.

My question for you is: How are CCR'S enforced in a development without an HOA? I was told the only way to enforce CCR'S in this situation is for one property owner to sue another property owner for infringements. Is this correct?

- Ray

According to Mr. Michael Packard, PCAM, CPM, CCAM, President of N.N. Jaeschke, an Associa member company based in San Diego, there are three deed restriction enforcement options available to California homeowners who live in a community without a homeowners association:

1. An owner sues the offending owner;
   
   
2. A group of owners file a "class action" lawsuit against the offending owner,
   

Or, in a more personal, reasonable, preferred approach,

1. an owner discusses the violation with the violator. The offending homeowner may have not read the CC&Rs when he purchased his home; once he understands that he is in violation of a provision of the CC&Rs, he may correct the problem voluntarily.

Sincerely,

Margey

Hello,

My mom owns a home in ******, California and is part of a homeowners associations in a senior community. She just moved in 3 weeks ago has been doing some home improvements. One of her improvements included a fence.

I should mention that she lives on a golf course. Yesterday, she received a violation notice saying that her fence is too high. The rules say 3 ft. and hers is 4 ft.

She'd like to keep the fence at that height for her dog. Do you have any advice for language she can use in her letter to the association board of directors that would make them more likely to allow her to keep her fence at the height that it is? It could also be costly to redo a fence she just had installed.

Or is there a Web site I can look to that would be helpful in drafting a letter to an association about this? Mom and I want to make sure we approach them in the right manner. Thank you.

- Christine

Most community associations with homes situated along a golf course have strict rules regarding the type, height and color of fences that homeowners may install along the course. In fact, many associations prohibit any type of fencing along the fairway. These rules are usually clearly defined in the association's governing documents.

To request a variance to the rule, I suggest that you write a cordial letter to the board explaining the reason for the additional height. You might invite them to your home so they can meet your mother and her dog to better understand the situation.

You and your mother should be prepared to lower the fence height and consider alternative means to restrain her dog in the event the board cannot or will not agree to your variance request.

Sincerely,

Margey

I am on the board of directors for our HOA.  We have restrictions stated in our covenants about the display of flags on our property.  They are not allowed. We are in the state of Tennessee. We want to allow people to display the US flag if it is attached on a small flag pole on their home. Is there a law that restricts an HOA from keeping a homeowner from displaying the US flag? If not, do we have the get 75% of the people to change the covenant?  That is what our bylaws require for a covenant change. Or can the Board or the ACC issue a variance to allow the US flag to be displayed? Thanks.

- James

If your covenants specifically prohibit displaying flags on the lots, there are several options:

1. The board cannot override a restriction by passing a rule; the owners must vote on the issue in accordance with the amendment process detailed in the document.
   
   
2. The board could consider approving individual homeowners requests for a variance to the covenant excluding flags.
   
   
3. Review state statutes. Several states have passed legislation overruling community association governing documents with regard to flag provisions, mandating that flags be permitted under certain circumstances and for specific periods of time.

Sincerely,

Margey

Our CC&R's state no rental of units unless the board determines it to be a hardship, however the new trend in our community is the homeowner claiming it is not a renter but a CARETAKER, we do not live in large ranches but rather small condo's approximately 1300 sq ft, the board seems to do nothing about this, I feel if the homeowner is going to claim as a caretaker they should have to submit proof to the board that the tenant is such, (W-2 issued or tax return showing no rental income) is there a way to enforce this? Thank you.

- Cheryl

Since there appears to be confusion among your neighbors regarding the definition of a "renter", your board should consider crafting a policy resolution which provides an unambiguous meaning and description of the word as it relates to the homeowners association. Please go to our "Search", and enter "resolution" in the keyword field for a detailed procedure for creating and implementing resolutions.

Sincerely,

Margey

I live in a subdivision with a homeowners association located in central Virginia. The subdivision was started approximately 17 years ago and the developers ended up in RTC.  The new developer who purchased the remaining lots (approximately 1991) from the RTC presently holds 30 unimproved lots and is building at the rate of 5-7 homes ($800,000-1M range) annually.

Here's the issue.  Many homeowners purchased homes 15-17 years ago.  All the homes in this subdivision have cedar shake roofs. Cedar shake roofs have many issues, some being 15-18 useful life, the fire issue, high maintenance, etc.  The roofs presently in the 13-17 year old range have now degraded to the stage that they must be replaced.  The Declarant (the Developer) appoints the Homeowners Architectural Review Board. 

The subdivision's Declaration has in it the statement: "Until one hundred percent (100%) of all property within XXXXXXXXX has been developed as Improved Lots, and conveyed to purchasers in the normal course of development and sale, the Declarant retains the right to appoint all members of the Architectural Review Board".

The Declaration also provides that the Architectural Review Board "shall have exclusive jurisdiction over all original construction and modifications" and has the sole authority to adopt and promulgate the Standards. 

The Developer's Standards state that "All exterior portions of residence roofs shall be cedar shake, cedar shingle, slate, or approved initation slate". 

Many of the homeowners wish to install Grand Manor, a premium quality heavyweight dimensional architectural shingle (fiberglass-asphalt) with a 50-year warranty.  The Developer will not change the Standards to allow what the homeowners want. Our homeowners association Board of Directors state their hands are tied, the association's lawyer states th at "in his opinion, the homeowners lack any legitimate challenge". Our Board states we must wait the Developer out until all of his lots are developed, which will be another 4-5 years.  What is your recommendation that you feel is a valid approach for the 20-30 homeowners who need to re-roof now and wish to use a superior product to cedar shakes? Thanks.

- Bob

If your association's governing documents provide that the Declarant has control of the Architectural Review Committee until 100% of the homes have been sold and he has already determined that he will not allow any exceptions to the types of roofing materials, then your Board and attorney are correct that the standards will not be able to be changed without the Declarant's consent.  Although you could try to challenge the reasonableness of the standard in court, the cedar shake material is a matter of preference (perhaps not as economical) and it is not likely that the courts would intervene and overrule the Declarant's choice.

During the initial conception and subsequent development of your community, the Declarant had an idea of the look he wanted for your community.  As long as the Declarant still has a significant investment in the community's development, he must not want to risk any change in the community's appearance that he believes may negatively impact on his sales.

The association's governing documents are public records and should have been provided to you for review under Virginia statutes prior to the purchase of your home.  The review period allows you the opportunity to note that the Declarant maintains architectural controls of the community, along with other restrictions.  If such restrictions are unacceptable, you can either negotiate a variance prior to the purchase or choose not to purchase a home in that community.  Your situation underscores the importance of reading the Association's governing documents prior to the purchase of your property.

Sincerely,

Margey

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