Ask the Expert

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

In conducting a community-wide election for a Board member, may a candidate advertise an endorsement by the current Board chairperson, as long as there is no implication that the entire Board supports that candidate?

For example, may the candidate's campaign literature read: Endorsed by John Doe, Chair, ****** Community Association.

Thanks!

- RJ

Unless your association's governing documents or state statutes prevent campaigning for positions on the board of directors of a homeowners association, the endorsement is probably acceptable. Personally, I think it's wonderful that there are so many volunteers eager to serve in a leadership capacity in their community!

Sincerely,

Margey

We are a fairly new community. Our  meeting to elect the BOD is at the end of this month. Up to now, the property has been managed by myself in the name of the builder. I have been working diligently to have all assessments in arrears paid up to date before the transfer of ownership and have succeeded... except for one. Because of other circumstances associated with this particular unit, I would like to avoid the lien/foreclosure process but, the assessments go back to December '05 and need to be paid. Now for the question... Should this type of information be made public knowledge? Not so much the persons' name, just the situation and how it currently is and will continue to effect the community.

I have several residents who are running for office, as well as voters who are asking for this type of information and I'm not sure what should be given or told to them. Thank you.

- DDY

Sensitive information regarding a homeowner's health or financial status should be discussed only with incumbent board members in executive session if authorized in your association's governing documents or state statutes. If an executive session is not allowed in these circumstances, then it would be preferable to mention only the person's account number in discussion with the board, limiting reference to the personal, background information as much as possible.

Sincerely,

Margey

Our HOA has a five-member BOD.  Unfortunately, the president disagrees openly with the other four board members.  The votes are usually four for or against a proposal with one abstention - the president.

Our annual meeting is on May 27.  In addition to the normal agenda items, there is a proposal to amend the by-laws to provide for term limits of directors.  Again, the board voted four in favor of term limits and the president abstained.  He has served on the BOD nine years and president for four or more years.

Recently, the president sent all eighty-seven condo owners a letter at his expense, and on his personal stationery.  He described himself as an owner, not the president, while expressing his views on term limits and other agenda items, all contrary to the majority vote of the BOD.

Is this proper?  If not, what should the other directors do since the egg is scrambled.

- Dave

As you so well stated, "the egg is already scrambled". I'm interested in what happened at your annual meeting. If you would write back with an update, I'll try to address the current situation.

Sincerely,

Margey

Can you tell me if a board is communicating via e-mail on a regular basis does this need to be disclosed to all members? Our board seems to be e-mailing each other continously but we have no way of observing the content of the e-mails, I am thinking this actually is a violation of the open meeting act. We are a non-profit California corporation. Thanks so much for your time!

- Cheryl

According to the President of NN Jaeschke, an Associa member company based in San Diego,  board members may converse in person or by email during the month so long as they all execute an "Action Without Meeting" resolution ratifying any decisions they made outside the actual board meeting.

Sincerely,

Margey

I am a member of an condo association in Southern California that has created a website that is accessible to anyone.  Under the section Members which is available without a password and open to all to see, lists a roster by unit #, name and phone number.  In addition, the Board minutes, committees with members names and phone #s, reserve study are also listed. Is this a violation of the privacy act?  Is it normal for an association to release their minutes, agendas, reserve study for public global viewing?

- Beth

Access to member information, minutes and other association information should not be posted on a public website. Many associations provide a public site for marketing purposes, then password protect the private pages that address internal association issues.

Sincerely,

Margey

I am a current member of a newly formed finance committee.  Our task is to research and recommend to the board an investment approach for our reserve funds.  We have approximately $900,000 spread accross 9 or 10 accounts earning less than 1% interest.  Other than CDs are there other financial products that other condominium assocations in our situation are taking advantage of?  Our accountant has advised us that the investments must be FDIC insured or government backed.

- Charles

Most community association governing documents as well as state statutes contain provisions limiting the investment possibilities for operating, saving and reserve funds. Board members have a fiduciary obligation to ensure that the principal is protected, which limits investment opportunities. However, it is possible to negotiate better interest rates with banks and other financial institutions by exceeding the $100,000 standard FDIC-insured limit and buying additional FDIC insurance to cover the excess.

Consider hiring an investment consultant to help your board craft an investment policy that reflects the mandates of your association's governing documents and state statutes while maximizing the possible return on your funds.

Sincerely,

Margey

I've recently purchased a condo in *****, Illinois.  When I closed, I was aware of a special assesment that was charged to the seller, in which the seller had to pay at close.  The total amount paid was about $6,900.00 for repairs to the garage.  I found that this was rather exhorbitant, considering that the association fee is $288.00 and there was nothing in reserves.  They've recently sent me a letter saying that the cost of the repair has increased and I am responsible for an additonal $700.00.  I work for a lender, and I am familiar with state laws that prohibit lenders for overcharging borrower beyond their income limits.  Because I am a first time home buyer, I am not familiar with Associations.  Is there normally a cap for special assessments?  It almost seems that this particular association is requesting from it's residents, a rather high amount to pay in a short amount of time.  Also, is the association required to give the resident and ample amount of time to pay   such a cost.  Please respond.  Thanks.

- Joel

According to Ms. Christine Evans, CMCA, PCAM, President of Vanguard Community Management based in Schaumburg, Illinois, there is no Illinois law imposing a maximum amount that can be charged for a special assessment, nor is there a requirement that the association extend payment terms to the owners. That said, your association's governing documents may contain verbiage addressing both issues.

Even though the board may not be required to offer payment plans, the reasonable and compassionate course of action would be to consider an owner's request for consideration of a financial hardship. Crafting pay-out terms for the special assessment allows financially-stretched owners to honor their legal obligations to their community association while retaining their self-respect, and ensures that the association will eventually collect the funds necessary to properly maintain the community. However, the owner must take the first step by approaching the board with a request for a payment plan, and not ignore invoices and demands for payment.

Don't incur late penalties and attorney fees by refusing to respond to association communications regarding payment of the special assessment. By immediately contacting the board to request a payment plan, you'll be forestalling possible legal action and eliminating additional collection-related charges.

Sincerely,

Margey

Are condo boards in Illinois required to provide financial statements to individual unit owners? I have been asking for months but keep getting the "I'll get back to you on that" answer, but never see a financial statement? What can I do?

- Bill

According to Ms. Christine E. Evans, CMCA, PCAM, President of Vanguard Community Management, an Associa member company based in Schaumburg, Illinois, Section 605.19 (b) of the Illinois Condominium Property Act (found on our "Links and Resources" page and scroll down to "State websites"), states that,

"Any member of an association shall have the right to inspect, examine and make copies of the records described in subdivisions (1), (2), (3), (4), and

(5) of subsection (a) of this Section (Ask the Expert note: these "subdivisions" reference the Declaration, Bylaws, rules, articles of incorporation, Minutes and insurance policies), in person or by agent, at any reasonable time or time frames, at the association's principle office. In order to exercise this right, a member must submit a written request to the association's board of managers or its authorized agent, stating with particularity the records sought to be examined. Failure of an association's board of managers to make available all records so requested within 30 days of receipt of the member's written request shall be deemed a denial." If you file suit against The board because the directors denied your request, the Act may require the association to pay your attorney fees.

Paragraph 605.19(e) of the Act specifically refers to the financial records of the association, repeating the same process described in 605.19 (b) and adding the requirement that an owner must state "a proper purpose for the request".

Ms. Evans reports that Vanguard Community Management always encourages association boards to provide the basic financial information (balance sheet and statement of income and expense) to any owner who is interested. To withhold the records or require a time-consuming procedure for an owner to access the books gives the perception of impropriety, that there may be an action or decision the board wants to hide from the owners.

Ms. Evans suggests that if you are interested in viewing the association's balance sheet and statement of income and expense, consider submitting a written request referencing the purpose as "In accordance with the provisions of Section 19 (a)-(h) of the Illinois Condominium Property Act, I have a general interest in the financial health of the association and would like to verify that the elected officials are demonstrating fiscal responsibility, since I have invested a large amount of money on a home within the association and am impacted by the financial decisions being made".

If the board still refuses to provide you reasonable access to your association's records, you may need to consult with an attorney to determine the legal recourses available to you.

Sincerely,

Margey

I am a member of a very small HOA in Georgia (<20 total members). We recently transitioned from the developer (a real treat of a guy... but that's another story) and no one really knows what to do now.  I think its unlikely that the Board has filed taxes, but I'm wondering whether we actually need to because of our size.  Total dues is less than $4,000 a year (its so high because of some past problems the developer saddled us, the HOA I mean, with... like lawyer bills and the like. Dues will likely drop by half or more next year), there are no facilities and the only common area is the sign at the front of the neighborhood.

So, the question is, does my HOA need to file a tax return (1120-H) at all? If so, what are the penalties if it doesn't?  I've asked the board about this, and got a resounding *silence* rather than an answer. Thanks in advance!

- Mike

Yes, indeed, community associations must file tax returns, either through the 1120 form for corporations or the 1120-H form specifically for homeowner associations. Check the IRS web site for specific fines and penalties relating to failure to file a tax return or pay taxes due. You may also want to chat with a CPA specifically knowledgeable in homeowner association tax matters.

If the board of a community association is aware that tax returns have not been filed or, worse, decides not to file annual returns, each board member may be personally liable for any penalties imposed against the association.

Sincerely,

Margey

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This may or may not be a question with a simple answer, but here goes.

Our development consists of five separate "sections". Each "section" has it's own CC&Rs. While most of these documents contain very similar wording, there is some variance among them. One "section", in particular, is quite different and permits some actions that others do not.

We do have a set of Bylaws and Restrictions that does encompass the entire development. The question being, which document takes precedent? If the CC&Rs permit an action, and the Bylaws disallow the action, can the board of directors enforce the Bylaws or must we allow the action, based on the wording in that sections CC&Rs?

Thanks for your insight, based on your experience, into this.

- Dean

Unless otherwise specified in the documents, the CC&Rs have priority over the Bylaws. If there is a conflict between the two documents, the provisions of the CC&Rs will prevail.

Sincerely,

Margey

In preparation of an overall safety and security plan for a major highrise with emphasis on emergency prepareness both personal and for the property, I would appreciate any references to sources for information and any articles or even samples of such plans. Thanks.

- David

The Community Associations Institute contains several publications regarding emergency preparedness and disaster management for community associations. Additionally, the Red Cross, FEMA and other emergency response organizations offer free guidelines on their websites. Also, try entering "condominium emergency preparedness" or "condominium emergency management" in your favorite search engine's keyword field and you'll see hundreds of resources that will provide you with the specific information you're looking for.

Sincerely,

Margey

Should the Secretary of the Homeowners Association keep all records including violation letters sent to homeowners if yes or no... why? Thanks.

- Sandra

The secretary of a homeowners association is typically charged with maintaining the association's books and records. If the association is incorporated, it must comply with state and federal regulations regarding record retention.

If the association sent a letter to an owner requesting compliance with the governing documents and the owner rectified the violation, the association would need to retain the letter in the unit files in the event the violation recurs. Many state statutes and association governing documents provide for expedited enforcement measures if a violation recurs within a certain period of time.

Consider consulting with an attorney regarding a record retention policy that addresses when written communications may be discarded.

Sincerely,

Margey

I have lived in a 14 story Condominium Building for over a year. The new board has set the common area thermostat to a new setting which is making the temperature very hot. It was never a problem before. The hallways have very little ventilation. The hot air is now coming into my apartment and is causing my a/c system to run more often in order to keep the temperature inside my apartment comfortable. In addition, the hallways and elevators smell and I believe mold will begin to grow soon. I have requested several times from them to adjust the common area system but they refuse, stating they are trying to save money, meanwhile the monthly maintenance fee has gone up. What can I do?

- Kevin

Utility costs have risen exponentially because of the rise in oil prices. However, that's no reason for residents to be unreasonably uncomfortable in their units. It sounds like your board is trying very diligently to keep maintenance fees as low as possible while still complying with the maintenance mandates in your association's governing documents. Why not ask your neighbors if they, too, are unhappy with the new air conditioning settings? If they are, perhaps a few of you could chat with the board members, expressing your appreciation for their efforts to control electricity costs but advising of your willingness to expend additional funds for a cooler, more comfortable environment.

Sincerely,

Margey

We had a member referenda vote and the election results are in, in our favor. If the other side wanted to challenge the vote count or whatever, how long do they have after the verification of the count??? We are a Michigan Non Profit Corporation.

- Michael

According to the President of Kramer-Triad Management Group LLC, an Associa member company with offices in Ann Arbor, Troy and Farmington, there is no Michigan state statute that limits the period of time in which an owner can challenge election results in a community association. However, some community association governing documents contain verbiage to the effect that if the vote is not challenged within a specified period of time, typically one year, then the results are final and can no longer be revisited.

Sincerely,

Margey

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Our subdivision was started in the 1970's; the Declaration of Restrictions has no provision for the development of a homeowner's association.  In 1986, a voluntary homeowners association was formed.  Now, a group of "Board" members have twice reworded the Bylaws, first to make membership mandatory, and second to give the Association the right to file liens for unpaid annual dues.  The first vote was 18-1; the second 11-6; we have over 200 homes in our subdivision.  I've looked at your site and have been unable to find a previous question similar to this.  Sorry if I've overlooked something.  Would greatly appreciate your comments as to whether this sounds "legal" to you.  We are in the state of Illinois.  Thank you.

- Sandy

Your subdivision volunteer leadership may be relying on provisions in Illinois state statutes relating to the formation of homeowner associations. You can access those statutes by going to our "Links and Resources" page, and then scrolling down to "Illinois".

Sincerely,

Margey

What is the legal policy on good neighbor fences? One of my associations has a falling fence, the neighbors don't want to contribute half to repair. Legally are they required to? My Board wants to replace the section assuming they will be reimbursed. I tell them there are no guarantees.

- Larry

Your association's governing documents should contain specific provisions addressing party fence maintenance responsibility. If the association effects repairs outside its parameters of responsibility, it may not have legal standing to demand reimbursement. If the homeowners who share the fence are required to share in its maintenance, then the association's responsibility may be limited to cajoling each owner or pursuing legal recourse to require the neighbors to replace the fence.

Sincerely,

Margey

Explain "Right of First Refusal" to me.  My condo association has this in it's docs.  I know it means that current owners have the first opportunity to purchase a condo here before it is put on the market.  Our lawyer told us it is good that we have this in our docs.  Why is that?    

- Donna

Typically, the "right of first refusal" pertains to the association's right to buy or lease a unit after the unit owner has received a bona fide offer from a third party. Occasionally, the association's governing documents extend that right to all owners.

The right of first refusal may be viewed as a benefit to the association and the owners because they may have the opportunity to acquire or lease a unit at a below-market price.

Sincerely,

Margey

A property within our small Homeowners Association was recently recorded as having changed hands at $385K but we know the seller did the deal at $600K. Contacting the County Appraiser we were told the buyer had submitted legal documentation saying the purchase price was $385K and that $2965.00 had been paid in Stamp Duty.  The buyer had recently approached one of our homeowners whose house was up for sale at $650K hoping to buy his property but wanted to pay half in cash and the other half with a Promissory Note.

Needless to say he declined this generous offer!

We're concerned that the recorded price does not reflect the true value of our properties and that a false statement may have been made to avoid certain local taxes and Capital Gains Taxes for the seller.

As the County Appraiser seems to accept this situation, what alternative action is open to us to have the correct sale price entered into the Records?

- John

It would seem that the only way to rectify the discrepancy in the County Appraiser 's office is to persuade the seller, the only one other than the buyer with documentation proving the actual sales price, to challenge the appraised value. Of course, that could mean almost doubling the new owner's property taxes, increasing his own tax liability and possibly violating the terms of the sales contract, so there is not much incentive for him to acquiesce other than to mollify his former neighbors. However, your carrot may be to promise not to report the seller to the Internal Revenue Service, if indeed he intended to conceal the actual sales price, if he would correct the Appraisal District data.

I would like to think that whether or not you are successful in immediately correcting the valuation, the County Appraisal District and IRS will eventually discover the subterfuge and both the seller and the buyer will be forced to face the consequences.

Sincerely,

Margey

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We are an association of townhouse style condomiums with basements build around 1970 and past Boards have always maintained that problems with water in the basement was the responsibility of the individual unit owner. However, I have just joined the board and in reviewing the declaration and by-laws it appears that the basements are considered limited use common areas that should be the responsibility to the association. The current board also agrees with this interpretation.  

How do we handle this going forward?  We are thinking of issuing a survey to address the units with current outstanding issues create a plan to fix however, how do we handle those folks that have paid for these non approved maintenance in the past at the direction of the prior board?

- Michelle

Many governing documents bifurcate with regard to limited common elements, sometimes calling for the association to maintain all limited common elements and sometimes describing which of the limited common elements are the association's responsibility to maintain. Read your documents to be sure that your assumption regarding maintenance obligations for basements is correct.

If your documents clearly define who must maintain the basement, then no further clarification is needed. If the documents are unclear, you may need the assistance of a competent attorney knowledgeable in your state's community association law to help your board craft a policy resolution detailing the association's position with regard to maintaining basements.

With regard to previous association repairs to the basements, ask your attorney for guidance. He or she may say that the board acted in good faith and the owners relied on the board to expend association funds as prudently as possible, so there's no reason to ask those owners to reimburse the association.

Sincerely,

Margey

We are now a 3 year old community, and last year some residents chose not to water, so we decided that we would charge those residents for any replacements needed in their common area. Why punish those residents who did water with taking the money out of the association, or impose a special assessment? Our property manager felt that this was not the best idea, however we are planning on moving forward. Your comments please, thank you.

- Kathy

Your association's governing documents should contain the answer to your question. Typically, the Declaration/Covenants/CC&Rs (the name varies in different parts of the country) specify whether the association must assess each owner equally or may impose charges only on specific homeowners under certain circumstances. While it may make sense to penalize those owners who didn't water, your documents will or will not contain the authority to do so.

Sincerely,

Margey

A unit owner is asking the Board for permission to dig up a shrub in the common area.  She wants to plant a tree so her unit will have more shade.  I feel that the Board does not have the authority to grant permission because the common area belongs to the entire Association. Wouldn't that be setting a dangerous precedence?  Comments please!

- Jen

While the shrub may be located in the common area, the board should be reasonable in considering the owner's request. Will the tree conform to the association's general landscape design? Will the owner pay for it and its installation, and water it as necessary, understanding that it belongs to the association because it's on common property? Will the tree be situated far enough away from the building so that, at its mature height, neither the crown nor the roots will damage foundations, siding or roofs? Will the tree increase the association's maintenance responsibilities and therefore impact maintenance fees?

If after considering the above questions it makes sense to let the owner install the tree, the board is not creating a precedent that allows all other others to remove shrubs in order to install a tree. Instead, by using the resolution process to approve the one owner's request, the board is offering the same opportunity to other owners who follow the same request approval process and whose situations are identical to that of the initial owner.

Sincerely,

Margey

I live in Georgia, myself and several of my neighbors have complained that one of the  HOA Board members is constantly walking in the back of our properties, sometimes he is taking notes but most of the time just looking.  My wife was in our basement in her night clothes and saw him looking in the window as he passed by.  I then requested in writing and verbally to the property management company that we be given reasonable notice as to any and all things that would require service personnel, or inspections, except for lawn service.  I suggested that a reasonable amount of time might be 24 to 48 hour notice.  I was told that they did not have to give me any notice.  Well, again just this week, one of the female neighbors was home from work, had taken a shower came to the main level of her house to go into the kitchen in her undergarments when she saw a man climbing her deck with a ladder he was sent there to work on all of the gutters, it really scared her.  Is there a law that governs trespassing and also if asked in writing to provide written notification before coming onto property.

- S.

While your association's governing documents probably authorize the manager, board members and contractors to access lots when necessary to perform mandated services, the board and service providers should be sensitive to homeowner concerns regarding privacy issues. The board could adopt a resolution clarifying the communication process involved in common area repairs, requiring either or both of the following actions:

1. The manager copies the homeowner on work orders relating to the exterior of the home, providing the name and phone number of the assigned contractor so the homeowner can contact him or her regarding preferred appointment times;
   
   
2. The contractor is required to contact the owner prior to performing the requested work in order to establish a mutually convenient time.

Understand that each of the above possible solutions may result in additional cost to the association, since most contractors try to complete work orders as quickly as possible, with minimal time for coordination, in order to be paid quickly at the lowest, most competitive cost.

With regard to the board member peering in windows, there is no reason for such action. The association may be responsible for maintaining the exterior surfaces of the buildings, but would be concerned with the interior only if there is suspicious behavior or actions that may detrimentally impact neighbors or common elements. The board member you mention may be diligently carrying out his fiduciary duty to the association by frequently inspecting the premises to note maintenance needs, but his obligations do not include looking through windows. Realistically, however, it may be difficult to look at a wall without noticing activity through a window.

On the other hand, if one is walking through a home partially dressed, it makes sense to ensure that the blinds or drapes are closed.

Sincerely,

Margey

Have been told a dying tree could be the affect of lacking moisture from 2 to 3 years previous drought and not realize it. Is this true?

- Patricia

Yes, indeed, it may take several years for a tree to exhibit the effect of a drought or other detrimental weather condition.

Sincerely,

Margey

I was recently elected president my HOA here in Illinois. There are couple of issues that I wanted to know what would be the best legal thing to do. I would like to utlize community volunteers via committees to clean, make repairs (minor things such as re-doing mulch) to cut cost of hiring professional services. Is there anything that would open any liability issues? and what is the best way for this to work? Similarly, we would like to utilize handy/contractors to perform various work as well, (i.e. cutting the grass) what type of contract would remove our liability in the event the contractor should get hurt?

- A

While it's nice to use volunteers to beautify your community and reduce expenses, there are some liability issues that should be considered. What happens if the volunteer is injured while installing the mulch or performing other services for the association? Typically, workers compensation only covers injuries to an employee, not to a volunteer, so the homeowner may decide to file a claim against association's liability policy. To prevent such litigation, consider hiring an attorney to draft a waiver that each volunteer must sign, agreeing not to pursue the association in the event of injury.

Hiring an uninsured handyman poses similar risks to the association. Without workers compensation insurance coverage, an injured handyman could sue the association. An attorney should be able to craft a contract between the association and a handyman in which the handyman waives all rights and rights of his family to file a claim against the association in the event of injury or death.

Sincerely,

Margey

As new board member of 3-person BOD, I want to know if it ok to accept proposals and schedule work for repairs in our community. Typically, the management company solicits proposals, we review independently and give our independent input to the management company or call each other on the phone or by email to discuss our opinion on said proposal. If two of us agree, the management can proceed to accept a proposal and schedule the repairs. Holding formal open board members for every little repair is a major burden and the management company has advised us that it is not necessary. Can you provide some opinions?

- DU

Your manager should be able to approve work that is within budgetary guidelines and complies with the provisions of your management contract (which should not be so restrictive that the board must approve every expenditure). With regard to major contracts involving a significant amount of money that entails using reserve funds, the manager should solicit bids and present to the board for approval her proposal evaluation and recommendation. If the board prefers that the manager request a proposal from a particular contractor, the manager should ascertain that the contractor is qualified to perform the service and report back to you if, in her judgment, the contractor does not have the expertise, manpower, financial depth, licenses, insurance or other necessary attributes to satisfactorily do the work.

You've selected your management company because of their staff's knowledge and expertise. Hold them accountable for their actions by not micromanaging their every step but rather requiring frequent and comprehensive communications to the board summarizing actions and issues, asking for input or approval when appropriate. By letting go of the day-to-day operational issues, the board can focus on policy and strategic planning -- and keep your meetings less that an hour in length so you an each enjoy some personal time at home.

Sincerely,

Margey

I am on the Board Of Directors of a Homeowners Association in Florida. Our Manager wants to establish a "Rental Management Company" under our HOA. Our By-laws are not clear but this is a Deed Restricted HOA with 280 Units and 100 rentals.

She would like to form this rental company to contribute to our HOA fee's to help keep the cost down. The clients are the rental units within our HOA.

Have you ever heard of anything like this. If yes, where and who , if you know. Thanking you in advance. Cheers.

- Jim

Many associations, especially those in resort areas, offer rental and management services to the individual owners. However, to ensure that all owners are treated equitably and to prevent any perception of conflict of interest, the association typically engages two managers or management companies, one to address condominium association issues and the other to represent the individual owners.

Sincerely,

Margey

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I live in a home on a corner lot that only has 5' 6" of clearance on either side, with A/C and water treatment equipment on either side. My association has refused to permit access from the street. However, several other members in the community has accessed their backyard from the street. Apparently, denying access from any common area is a relatively new phenomenom due to several problems the HOA has experienced recently. Do I have any recourse to gain permission from the common area?

- Pete

Most community association governing documents contain provisions addressing easement rights and rights of access. Carefully read your association's documents, in particular the Declaration/Deed Restrictions/CCRs (the name varies in different parts of the country) to determine if there is a provision addressing this issue. If not, look at your state statutes for easement verbiage.

Sincerely,

Margey

When our neighborhood was developed, a large number of the homes were built with garages facing the street. Unfortunately, the quality and aesthetics of the garage doors used by the builders were compromised for cost. The doors are only functional and are cheaply constructed. Because of our HOA covenants and restrictions our Architectural Committee has been reluctant to allow homeowners to upgrade the quality of the doors for fear of compromising the conformity of the neighborhood. However, a number of nonconforming doors have snuck in over the years. It has been recommended by realtors and housing experts that we could significantly enhance our homes' values and aesthetics by allowing, within parameters, garage door upgrades to the more custom-styled doors which are now available. Since our covenants and restrictions address conformity, how can the architectural committee embrace this opportunity?

- C.

Boards of directors of community associations are charged with the responsibility of protecting, maintaining, preserving and enhancing the common elements in their community. It is certainly within the parameters of board responsibility to authorize the ARC to develop guidelines for upgraded garage doors that are expected to improve each home's property values. Offering a range of acceptable door types enables each owner to find one that fits his or her budget and aesthetic considerations while still maintaining a degree of uniformity within the neighborhood. Conformity doesn't mean each door has to be identical. Rather, it can mean that the door complies with guidelines that, within reason, embrace individuality.

Sincerely,

Margey

We live in a 55+ HOA Community of 250 homes. Our CC&Rs state a pet weight restriction of 2 pets per household with a 25 pound limit per pet. There are homeowners that want to raise the weight restriction and number of pets allowed so others can purchase a home here with their larger breeds, and current owners who would like to adopt larger breeds.  There is very little space surrounding each home.  Also, the common areas (streets) are owned by the HOA.  Is there a legal or reasonable explanation/ for having such a pet restriction?  There is going to be a discussion at the next HOA Board meeting where members are welcome.

- Christine

There are several reasons to limit the number or type of dogs in a community
association:

1. Certain breeds may be dangerous to other dogs or residents;
   
   
2. Large dogs leave large deposits of excrement, increasing maintenance and maintenance fees if the pet owners do not clean up after the pets;
   
   
3. The more dogs each resident may keep, the more clean-up the association may be forced to do, increasing maintenance fees;
   
   
4. Dog urine may kill common area landscaping, increasing maintenance and maintenance fees;
   
   
5. Dogs may bring flea and other insect infestation to the property, again increasing maintenance and maintenance fees;
   
   
6. The more dogs in the community, the more there may be problems with barking disturbances.

If the overwhelming majority of homeowners want to change the pet restrictions, the board should consider the potential consequences and present a factual list of benefits and consequences to the owners. If the pet restriction was a rule established by the Board, then the rule would only be applicable for pets when they were on the common areas (and not applicable if they were kept within your property) and the board would be able to change it following state statute or governing document provisions regarding revising rules. If the pet restriction is mandated in the association's governing documents (as in your situation), a vote of the membership may be required to amend it, following the amendment process detailed in the governing document containing the provision.

Sincerely, 

Margey

My HOA covenants states "no above ground pools". A neighbor went ahead and built one, and put in an ARC form.  The HOA covenants also states that "the HOA or ARC can approve architechtural plans,.. or of any building, structure..."

Does this statement only apply to those items allowed in the covenants? Or does this mean that the ARC can approve items outside of the scope or in conflict with the covenants (ie, above ground pools)?

- Anita

Depending on the language in your association's governing documents, your board or ARC may be empowered to grant variances to the deed restrictions under certain circumstances. Please click on "Search" on the left column, and enter "variance" in the keyword field for additional information regarding this subject.

Sincerely,

Margey

A satellite dish was installed without board approval three years ago on common property of an condo association. Upon a recent property walk thru inspection,the board wants it removed. A letter to remove was written three years ago. (I have read the OTARD rules). Does the three years of the boards inaction, prevent the removal of the satellite dish. Please comment - Thank You.

- Andre

Ask the Expert does not provide legal opinions, and we instead encourage you to consult with a knowledgeable attorney about your specific question. In general, however, since the statute of limitations on breach of restrictive covenant claims is four years, the association still has authority to enforce the governing documents with regard to the satellite dish. Some might argue that the defense of laches could bar the association's right to enforce. Laches occurs when a plaintiff unreasonably delays in asserting his rights and the defendant has made in good faith a change of position to his detriment because of the delay. It's doubtful that the defense of laches will apply because there is no evidence the owner took any action or relied to his detriment on the association's inaction. The point is, the dish was already installed. Moreover, laches usually does not apply to bar a claim before the period set forth in an applicable statute of limitation has expired.

Also of significance is the fact that the dish is located on common elements. The Telecommunications Act of 1996 states very clearly that condominium owners may not place a satellite dish on common property or in areas that are not exclusively used or owned by the owner. The association has the right and obligation to require the unit owner to remove the dish and perhaps relocate it in compliance with the Act, which means not attached to limited common or common walls or fences, or protruding through or above fence pickets unless approved in writing by the board prior to installation. The association also has the obligation to maintain the limited common and common elements as mandated in the governing documents, which includes the right to remove items which were attached to limited common or common elements without prior approval.

Sincerely,

Margey

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