Ask the Expert

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

If a member of the Board of Directors lists his/her house for sale with the intent of leaving the Community permanently, is it a conflict of interest for him/her to remain on the Board, pending a sale, making decisions of and for which they would not be a beneficary?

- Pete

As long as the board member is a bona fide member of the association, he is authorized to remain on the board unless otherwise stipulated in your association's governing documents or state statutes.

Sincerely,

Margey

Disagreement -
Homeowners

I am a member of my Board of Directors. We have undertaken the large project of redecorating our lobby and hallways, which is long overdue. We followed the proper procedure and reviewed numerous bids, and have decided to special assess the Homeowners for a portion of the cost of the project. The average special assessment is approximately $250.00 per unit. A petition is currently being circulated by a couple owners against the redecorating project, and asking the resignation of every Board Member who approves this project. Is this petition valid and if we refuse to backdown do our resignations have to be tendered?

- Elissa

Your association's governing documents should contain wording that addresses an owner's recourse if she/he disagrees with a board decision. Typically, the remedy is to remove the board members in the manner specified in the documents. Unless the dissenting homeowners are successful in persuading the necessary number or percentage of owners to call a special meeting to remove the current board, you have a mandate to continue with your plan to renovate the lobby and hallways.

Sincerely,

Margey

My husband is running for the Board. The current Board doesn't like him (he has attended more meetings than the Board members themselves and knows more about the issues than they do). Here is the deal... according to the letter mailed by the board to every homeowner the deadline for resumes to be included in the newsletter and to be on the ballot was set at July 24th 4 pm. My husband filed at 11 am on July 24th he was the first to file that day. Three others filed before the deadline and 3 others filed after 4 pm and one tried to file the next day. Two of the three that filed after 4 pm were "friends of the current board" and were submitted by the president of the board via email after 5 pm. They are being allowed on the ballot and in the newsletter according to our great President, but the other one who filed after 4 pm and the one who wanted to file the next day were not allowed. What do you suggest we do? It doesn't seem fair to those who filed on time and definitely not fair to include some but not all. Since the letter sent to homeowners had a specific time one would think it is legally binding.

- Michelle

It certainly does appear to be unfair that some homeowners' names were not added to the slate of candidates for your homeowners association although they complied with the nomination requirements. If those owners who were not nominated cannot persuade the board members to add their names to the list, I suggest they send a joint letter to every homeowner describing the chain of events that resulted in the exclusion of their names and asking for their proxies or their write-in vote at the annual meeting. Going door to door is a good way to meet their neighbors and drum up support for their election.

Sincerely,

Margey

I am on the Board of Directors for our property owner's association. I have been searching the web for any kind of statute that would relate to the conduct of the President of a homeowner's association.

We have laws for everything else it seems, but I only find a statute for Condos. Would the conduct of the President fall under any other classification like Corporate Officer, President of a Corporation or Elected Official? Is there nothing that holds a President of an association, other than a condo, accountable for their actions?

We are in a situation where the President struts around intimidating people to get his way, tells the board members to "shut-up", changes the subject or adjourn the meeting if it is something he does not want to hear, has secret meetings with directors at their homes and makes decisions on his own. He does what he wants, when he wants and does not get approval from the board for anything important, only petty things. And I, along with several other board members (but not all) are unsure how to rectify this situation. Any info you could offer would be greatly appreciated. Thank you for your time.

- Stephanie

Please use the Association Times keyword search to find articles addressing recommended responses to presidents who do not act in the best interests of the members. Remember that the president serves at the discretion of the board of directors. Consequently, if the board members are dissatisfied with the president's actions and behavior, they can simply appoint another homeowner to serve as in his place.

Sincerely,

Margey

Hello, I am an owner of a unit in a small condo association (less than 10 units) in Massachusetts. The current trustee is rude, controlling, and nullifies votes that were passed by the majority of unit owners. We are often treated like tenants instead of owners/association board members, and are told what is going to take place regarding property maintenance and/or issues affecting all unit owners. She also makes financial decisions without consulting the unit owners, and has been resistant to the requests of unit owners to provide a statement of monthly expenses and transactions, as well as, the balance on the association bank accounts. This was all brought to light because of a special assessment that we wanted justified.

This person also shows mentally unstable behavior. There have been run-ins with just about every unit owner, and a past owner even sued her for interfering with the sale of her unit. The lawsuit was settled, but her behavior has not changed. In the past few days, we have received three e-mails with her resigning from her post as Trustee, all of which had effective dates. One of these e-mails nominated me to take over the position, and I accepted. Last night, we got a letter saying that she was not resigning.

Here are my questions:

1. The trustee told a unit owner that a trustee must be voted in unanimously. Is this true?

   As of right now, half of the unit owners would like to remove this person and have an election for a new trustee.

2. Is it legal for us to ask for a monthly statement of expenses and the status of the associations' bank accounts?

   We were told that only she or her husband could deposit checks into the bank accounts, because the state was strict about who can access this information. Is this also true?

Thank you in advance for your help.

- RF

Since the trustee tendered her resignation in writing, the resignation was effective upon receipt of the letter or notice. Although she subsequently rescinded her resignation, the homeowners are not obligated to return her to the board.

If the owners want to make sure that there is no doubt as to who represents them on the board, it appears to me that this would be a good time to bring the matter to a vote of the owners at a special meeting, ensuring compliance with the notice provisions in the Bylaws or Declaration/Covenants/CC&Rs/Deed Restrictions (the name varies in different parts of the country).

With regard to your other questions:

1. Your association's Bylaws should contain specific instructions regarding the election of trustees;
   
   
2. Homeowners have the right to view the records of the association. Review your association's governing documents and state statutes for specific language addressing access to the association's books and records.
   
   
3. With regard to depositing payments into and writing checks against the association's bank account, I would again refer you to your association's governing documents and state statements for specific verbiage.

Bottom line? You and your neighbors have the right to elect whomever you want as leaders of your community, within the limitations described in your association's governing documents and state statutes. There's no reason to put up with someone who does not provide reasonable, thoughtful, informed and impartial leadership.

Sincerely,

Margey

I feel like my HOA Board doesn't listen to residents' concerns. People are afraid to attend the board meetings and voice concerns because the Board members lash out at the residents. The Board has the same members year-after year... very few people vote. We've had the same board members for nearly 8 years. When the Board confronts residents about issues they are Nazi-like in their approach. Everyone is scared. Please help.

- M.

If all your neighbors are unhappy with the manner in which your board of directors manages your community, consider joining forces and volunteer your own slate of candidates at the next annual meeting. Collect proxies from homeowners and encourage those who plan to attend the annual meeting to vote for you. With a concerted effort, you can elect neighbors who promise to fairly and reasonably administer the affairs of your association.

Sincerely,

Margey

We just had our annual HOA meeting in *****, Texas. The board appears to be negligent in complying with the covenants and by-laws. They have spent 3800 dollars repairing fences that are not located in the common area, our covenants are explicit in stating all fencing is the responsibility of the homeowner. They claimed that a vote at the annual meeting was affirmative for the expenditure even though it first required an amendment to the budget portion of the by-laws, and another amendment to the responsibilities set forth in the covenants.

The board also added new categories to the budget in total disregard to the by-laws, and covenants that state how the assessments should be spent. What can be done to have the board start abiding by the covenants and by-laws of our 3 year old association? In the state of Texas is their any legal action that can be taken when the board continues to do things their way and not by the way of our governing papers? As a general question, do other HOA budgets have a line item for social activities, and should assessed monies be kept separate from monies raised in garage sales, or should they be kept in the same account and become a part of the total budget?

- C.

If you are dissatisfied with the manner in which your board is managing your community association, you have the opportunity to volunteer your own services as a board member and persuade neighbors who agree with your position to run as board candidates as well. If your group becomes a majority on the board, you have control of the association's operations.

With specific regard to expending funds repairing or replacing assets not described in the association's governing documents as common elements, limited common elements, or otherwise the responsibility of the association, your board may have breached their fiduciary duty to the members. Consider contacting your association's Directors and Officers insurance carrier to determine if any recourse is available without incurring legal fees.

To maintain harmony in your community, however, I urge you to pursue my first suggestion -- remove the board members who do not understand their fiduciary obligations to strictly adhere to the governing documents. Then, vote in homeowners who better represent the wishes of the majority of the owners AND agree to comply with the legal duties and responsibilities of their position as a board member.

It is not unusual for community association budgets to contain a line item for social activity expenditures. To better track funds received through alternative sources of income such as garage sales, I suggest a separate line item in the budget and on the Income Statement.

Sincerely,

Margey

We are owners in a 15 Unit condo/towhouse in *****, MA. My question is regarding safety and the duties of the Trustees and Association to prevent incidents that can make us liable. Our units are two rows separated by a parking lot which does not have a fence on the side where my unit is.

The Association refused to put one up or to put signs that prevent intruders from tresspassing. The street lighting is very poor and the porch light is too slim to provide a lighted area for us or others to walk safely. Recently, 3 of our cars were broken into and property was stolen, and someone broke into one of the units and stole a purse while the owners were sleeping. I have an alarm system and I keep my porch light on the whole night. I suggested sensor lights which can provide brighter lights and more safety for us and our property. The Trustees have battled me about this issue. I suggested a vote, but one of the trustees without looking thoroughly into the cost, which the Association said is each individual owners responsibility to pay, presented a $200 for the change of a porch fixture that cost us $7. Of course, the other owners voted againt the replacement of the light. I told the trustees that this vote was unfair because it did not show the true cost and that those voting against it did it under the assumption that it will cost them that much.

I cannot afford an attorney and I am afraid that with the recent wave of robberies in the area our house is a target. I explained to the Trustees that we can be held liable, but they keep quoting portions of the bylaws. I believe that there has been a precedent where owners have been prosecuted for negligence, in this case for not providing or taking proper precautions to prevent an incident. Can you tell me what to do, I cannot reason with them because they sometimes intimidate some of the other owners with things that are not true and the majority of owners does not show up for meetings because they feel the Trustees are not going to listen, in the meantime the trustees think that we don't have a say about this. Please help.

- Wanda

If your neighbors feel as strongly as you do about the unresponsiveness and poor attitude of the board members, I suggest that you offer your name, and the name of neighbors who have agreed to serve, as candidates for the board at the next annual meeting. Community association operations are similar to a mini-democracy; if the constituents are dissatisfied with the actions of their leaders they have recourse at the ballot box.

Sincerely,

Margey

I wrote to you in March about my parking problem. I had a flood in my garage caused by my neighbor's washing machine and our HOA president actually fined me $140 when I parked in front of the condo to load up our wet, damaged belongings! Secondly, that same neighbor consistently parked his vehicle in the same place. Your reply was that this was unreasonable and would not hold up in court.

They were adding a $40 late fee each month so I paid it. Due to this rude and callous act (IMO), we are trying our best to get out of there.

Now I'm sorry we paid it. The neighbor that caused the flood has had his disabled vehicle with a flat tire parked in his driveway for 10 days and the HOA has not fined him for it. He is not parked illegally but bylaws prohibit disabled vehicles. I also verified that he was never fined for the previous infraction and continues to park there. I went through appeals with them and they declined it.

How can I get my money back? Is there a mediation process that I can go through in Texas or does that have to be in the bylaws? Is it possible to use a lien to get it back? If none of these, is there any other recourse?

- M.

It seems to me that your best recourse to your board's arbitrary actions and decisions is to run for the board yourself and ask responsible, reasonable neighbors to join you as candidates. If you can overthrow the existing board members, you and your colleagues will have the opportunity to reverse previous regimes' policies and implement ones more practical and equitable for the members of your association.

Sincerely,

Margey

Our HOA board (in 1991) voted to accept responsibility for repair/replacement of structural supports for balconies that were part of the original construction. They held that the homeowners should be responsible only for the decking (since the HOA couldn't easily control usage of the surface area). This decision was based on legal counsel resulting from construction defect litigation, which specifically addressed liability concerns if a homeowner makes repairs, and the balcony subsequently collapses.

Our current board does not recognize the previous board's decision (yet has never voted to rescind it); and has been requiring homeowners to make repairs at their own expense, and levying fines for noncompliance. Since the former board's decision is still on the books, isn't the HOA responsible for these repairs? What recourse does the homeowner have other than a lawsuit?

- Rosa

The current board should continue the written policy of the previous board with regard to repairing or replacing the structural components of the balconies, particularly because the decision was based on legal counsel's recommendation. I suggest you ask your neighbors to join you in asking the current board to comply with the decision. If the board refuses, consider electing new board members at your next annual meeting who agree with your position regarding the balconies.

Sincerely,

Margey

We live in an 800 unit condo development (single family & duplex). Our management "team" is paid over $125,000 per year (for 1 person) and our dues are in excess of 1.8 million $ per year. We have no pool, no tennis courts, no club house - virtually no amenities. We feel our HOA dues are not being utilized properly. The Board & management are very close and are "untouchable". They cannot/will not account for the expenses and cannot/will not show us where our HOA dues are going. We feel there is a conflict of interest since "management" owns 6 homes - including the one used as as "on site management" office for managing our HOA and her other businesses. We feel we are being hoodwinked and want to know what we as a group of concerned homeowners can do. PLEASE help us - we are mostly retired, on fixed incomes and are desperate. Many are having to sell their condos because they can no longer afford the rising HOA dues. We live in South Carolina. Thank you for any help you can offer and God bless.

- Beverly

Please click on "Search" and enter "remove board" in the key word field for suggestions on removing the current board and installing new homeowner leaders who are more responsive to the membership of your association.

Sincerely,

Margey

Are there any articles written on the problems of the developer setting the monthly payments/reserves too low, whereby the new association has to raise the fees to meet the reserves. And, the problems the new Board of Directors have when the members don't want the fees raised. We are having a major problem with the members wanting to get us out of office because they want the fees to stay low around $124. We had a reserve study done which shows it should be $152 now and $178 by 1-1-08. Need help!! Guidance!!

- Doug

The websites of both Association Times (see "Search" at top on the left) and the Community Associations Institute contain numerous helpful articles regarding the developer's obligation to the members of a homeowners association.

Sincerely,

Margey

I am President of small (43 lots) homeowner's association in Washington. A lot owner has presented an indictment of any number of actions taken by previous Boards in 1999 and 2000. To what extent is the current Board required to answer all manner of questions about past Board's actions including errors that might have been made by those Boards? Thanks for your help.

- Leonard

The books and records of your association, excluding certain documents that may be protected by attorney privilege or state statute, should be open for review by all owners. However, that does not mean that the board of directors is obligated to explain events and decisions that were previously made. I suggest your encourage the homeowner in question to attend board meetings in order to understand the circumstances surrounding the decisions. It is counterproductive for the volunteer board members to spend time explaining and defending their actions when they should be more focused on making informed decisions impacting the future of their community.

Sincerely,

Margey

What is the best way for a Florida condo board to handle a condo owner that demands hours of individual attention from board members and the condo manager? Other owners are complaining about the way he monopolizes condo meetings and demands that things be done his way, without regard to majority opinion or board opinion. If his way is voted down, he goes to the condo manager and takes up hours of the manager's time. If still not satisfied, this individual writes letters to Tallahassee with his many complaints. The individual is an intelligent retired attorney, but his behavior is not reasonable. He is always given the time he requests, but never seems satisfied. Please help.

- Marie

Since the gentlemen you described is a retired attorney, consider asking your association's legal counsel to have a chat with him. Perhaps talking with a peer will enlighten the homeowner as to the disruptive nature of his behavior as well as encourage him to become involved in his association's operations in a more supportive, positive manner.

Sincerely,

Margey

If the president of our Board was elected to the Board based on the premise that she was a homeowner at the time of our annual Board elections, and it turns out that she was not, (All she had was a Power of Attorney from the owner and this is not stated in our bylaws as meeting the requirement to run as a candidate) how can she be legally removed from the Board? What if she has her name placed on the deed after having been elected under false premises? We understand that such an "election" would still be null and void since she did not fulfill the necessary requirements at time of the election and that we (the HOA and Board) could be subject to lawsuits from those who claim that all checks and contracts etc. she is signing are fraudulent.

- S.

If your community association's Bylaws require board members to be homeowners, then the election of the board member who was subsequently appointed president was invalid and new elections could be held. However, in the spirit of harmony and unity, if the board member's name was subsequently added to the deed, the homeowners may decide to overlook the election irregularity and accept their neighbor as one of their community's leaders since she now fulfills the criteria for serving on the board.

More to the point, if the president is now a bona fide owner and doing a good job leading the board, encouraging reasonableness in actions and decisions while complying with the mandates of the governing documents, I think the members of your association should appreciate and support her efforts.

Sincerely,

Margey

I am on the board of directors of a condo complex in San Diego, CA. On a walk through is it appropriate for a board member to look over the six foot patio fences of the downstairs units looking for violations such as torn window screens, etc? Is it appropriate for a board member to identify which board member was present on the walk through to the membership during the open forum at the monthly meeting? We now have a board member being referred to as a "peeping Tom" by a homeowner who received a courtesy notice to replace a torn screen. I thank you in advance for your reply.

- John

Board members should not act as "condo commandos" looking for every possible deed restriction violation. The operative word is "reasonable". If a violation is not obvious to the general public, if a board member has to look over or through fences to find one, he's stretching the limits of his power and authority.

That said, board members certainly have an obligation to ensure that nothing is being conducted or allowed to exist in a lot that may detrimentally impact property values or the privacy and right to peaceful enjoyment of the neighbors. Examples would be a yard full of dog feces, or standing water that breeds mosquitoes.

As to identifying who made the observation or filed the complaint, it is appropriate to identify the person unless the violation is obvious to anyone walking in common area by the lot.

Sincerely,

Margey

Your response has left me more confused. If a board member looks over a fence you say he is streching the limits of his power and authority. (At ***** some units have balconies that overlook patios.) However, the board has an obligation to ensure that nothing is being conducted or allowed to exist in a lot that may be detrimental to property values, enjoyment safety, etc. (that the board may not be able to see unless the fence is looked over). A board member cannot see dog feces on a patio that has a 6 foot high fence.

Say for example a homeowner is storing hazardous waste, containers full of gasoline, or has a meth lab on his patio that is not visible to the general public (someone under 6 foot tall your definition?).

There is an explosion on the patio and there is loss of life and property. As a result there is legal action against the board and HOA for damages. In this example should the board have looked over the fence? Yes or no?

- John

If a board member suspects a violation exists on a lot, then he has an obligation to investigate. If the board member is simply nosey and wants to know what's going on in his neighbors' homes, he is acting inappropriately and beyond his power and authority.

Sincerely,

Margey

My HOA is having its first election for trustees. The bylaws state that we must have 3. There are only 3 people running for this position, including me. The person witht the most votes was to have the 3 year term, 2nd in place has the 2 year term, and 3rd was to do the 1 year term. Now that there is only 3 people to choose they will all receive the votes. I just wanted to know how do you determine the out come of a tie. I have not been able to locate this in our bylaws. Should it be fair and possible for each person voting be allowed to select a 1st, 2nd, and 3rd as their vote? or is there a better way of handling it to be fair of who serve which yearly term? Thank you.

- Melody

As a general rule, unless the method of resolving a tie in voting results is addressed in your association's Bylaws, the board may adopt an administrative resolution describing the process. Your directors may want to review Robert's Rules of Order to learn the recommended manner to resolve a tie vote.

Sincerely,

Margey

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

I just found out that my neighbor is proposing to add a large 14x14 foot balcony off their second floor master suite which would be adjacent to the north side of my backyard. Obviously, I do not want them to install the balcony as it would decrease the property value of my home by decreasing the privacy. Are there any hard numbers (or percentages) to represent the cost to a neighbor's property value when a homeowner requests such an addition.

- Jason

A Realtor knowledgeable about your community or a property appraiser would be the best source of information for you regarding the impact of the proposed balcony on your property value.

Sincerely,

Margey

Assessments/Fees
-
Dogs

I have recently purchased a condo in ********, IL. The board of directors has invoked a $100.00 a year assessment for DOGS only. This was done after we moved in. We have one dog at 35 lbs and afraid of her own shadow. The dog was spayed shortly after she was born and we keep her on a leash. Everyone at the complex that has a dog has received the same assessment. This only pertains to dogs not cats or any other animal. Is this a legal act ?

- Richard

According to Ms. Christine Evans, President of Vanguard Community Management, an Associa member company based in Schaumburg, Illinois, pet fees are not uncommon in community associations. However, if the board labeled the fee an "assessment", there may be grounds for dispute since many community association governing documents contain wording limiting the board's authority to assess owners without their involvement and/or approval.

In reality, dogs can increase an association's maintenance responsibilities, and therefore cost to each homeowner, if the dog owner does not clean up pet waste from the common elements and if dog urine damages common are landscaping and fencing.

Sincerely,

Margey

The one thing they seemed to have overlooked is the fact that I'm handicapped and the dog in my possesion is not just a pet but a working animal. She is used to assist me.

- Richard

If you are legally disabled, the Fair Housing Act requires your homeowners association to make accommodation for your dog. Please click on the link to the Fair Housing Act on our “Links and Resources” page.

Sincerely,

Margey

My homeowner's association recently fired the management company and established its own management company. First I paid my dues to the original management company and my check was never cashed. I finally contacted the treasurer of the new board and he informed me to just send yearly fees. After my check was not cashed within one month I contacted the new board numerous times until the matter was resolved.

Now months later I am trying to refinance my house, the first issue is the new board said I still owed for 2006 fees. I proved I didn't. Then the president said I owed for 2005 I retrieved a copy of my check from 2005 showing 2005 fees were paid. I forwarded all this information as directed to the president. Now the title company is saying that the president informed them that I still owe them $300.00. The new company will not return any of my phone calls. What can I do? Thank you.

- Cheryl

Consider sending a letter by certified mail, return receipt requested, to the current board of directors detailing your efforts to pay your maintenance fees on time and including copies of the front and back of your canceled checks. In your letter, ask for an explanation of the $300 charge; if it is composed of late charges and/or attorney fees, ask that the charge be waived because you made good faith efforts to pay on time.

Sincerely,

Margey

I purchased a town home almost 3 years ago in *****, CA, however due to financial difficulties in November 2005 my husband and I decided to sell the town home to my father in-law. All legal documents now read effective December 2005 my father-in law owns the property even though my husband and I live in the property and pay both mortgage and association fees.

Before selling and/or transferring property our fees where not paid for October, November, and December 2005. During this time frame HOA Company changed to a different company.

In January, my husband and I received a bill from new HOA with our name, fees only listed for the month of January. Then in February we received a statement with only our last name (same last name as father-in-law), fees listed were January and February. I then called the HOA and advised them that I was mailing a check to cover January, February and the rest of the year and also requested a statement that will list how my check was applied. Come March no break down was submitted. In April we had our pool tag exchange and I told the HOA manager that the breakdown had not been sent; she told me she would submit them. Nothing came to me thus I called in July and asked her to either fax or email; upon receipt I noticed $500+ was applied to other fees owed which listed the October and November fee plus other preparation fees. I called the manager and asked why 500+ were applied and she could not explain and asked that I spoke to Accounts Receivable. I then wrote a letter stating that my check monies was misapplied, the check was to cover January - November 2006 and because of the misapplication my HOA fees looked as if they were past due. The manager then wrote back and stated that in reality $612 were due and that they would only refund if a check of $612 was submitted.

My question is:

1. Should I be liable for lien preparation between the month of October-December 2005 because of their miscommunication? Remember effective December 2005 the property belonged to my father. I understand late fee might apply.
   
   
2. Is the HOA doing the right thing by applying late fees during this time period to my account because of there misfile/miscalculations?
   
   
3. Can the HOA apply my check to both accounts my old account and my fathers account?
   
   
4. Shouldn't the HOA reported past due to the escrow company?

- Nina

Your association's governing documents probably contain a provision stating that every owner is responsible for payment of the monthly assessment, and that there is a continuing lien on the property for delinquent assessments. So, when the management company received a maintenance fee payment, it was probably authorized to apply the funds to the oldest balance unless you specified that it was for a current month. However, you still owed the delinquent balance and late fees were applicable as long as they are authorized in your association's governing documents.

If you used an escrow company to transfer the deed to your father and received title insurance on the sale, and the escrow company neglected to contact the management company to inquire about past due amounts, then you may have recourse against the title insurance policy for any amounts due the association prior to the date you closed escrow. If your management company did not disclose the delinquency when (and if) the escrow company inquired, then the management company may have some liability for the balance due.

In reality, however, it appears that you were aware that you owed the association maintenance fees for October through December. The right thing to do is pay your association all delinquent amounts.

Sincerely,

Margey

As a board member I would like to get information regarding the Hawaii's legal amount or percentage of dues for late fees to charge if condo owner does not pay their association dues within the grace period set by the Board of Directors. I understand your reply is a professional opinion and not considered legal advice. Thank you.

- Linda

For information regarding Hawaii state statutes that address community associations, go to our State Resources page.

If you would like to discuss this issue with someone knowledgeable in Hawaii community association law and operations, consider contacting Jim McKellar, President of Certified Management, Inc., an Associa member company, at 3179 Koapaka Street, Honolulu 96819, telephone 808/837-5281.

Sincerely,

Margey

I am the Treasurer of a large condominium community and the Board is interested in researching what the growing trend in our area is for adopting "a Renter's Fee" to the owner. Is there a site or any article that would track the growing trend in associations charging this type of fee nationally or by state in Montgomery County, Maryland or generally? Any help would be appreciated. Thank you!

- Ondine

I suggest that your board consult with a competent attorney knowledgeable in Maryland community association law and case law before making any decisions regarding the imposition of a renters fee.

Sincerely,

Margey

My question centers around unoccupied lots and if dues can be collected from the builder for those lots.

In our bylaws deed restriction it states that the "Developer" is not responsible for association dues on undeveloped lots.

The subdivision is over 85% occupancy and as a result the homeowners have taken over the association. The builder claims that there is no longer a "developer" and that they own the remaining lots.

We are uncertain if this fact allows us to collect dues on the undeveloped lots. Our belief is that since there is no provision for the BUILDER to be exempt from dues we can, in fact, collect current as well as previous years dues for the builders lots.

Can you provide any insight? This is a fairly heated topic and any advice would be most appreciated. Thank you in advance.

- Dave

If there is no provision in your association's governing documents specifying when the developer/builder must begin paying assessments to the homeowners association, check state statutes for guidance. Typically, once control of the association is transitioned to the homeowners, the developer is obligated to pay assessments on every unsold lot. However, there must be verbiage in your association's governing documents or state statutes to authorize the association to impose the assessments and collect delinquencies from the developer/builder.

On the other hand, if your governing documents specify that the developer is not liable for assessments prior to the owners assuming control of the association, then one may interpret that provision to mean that the developer does owe fees after transition of control. If the documents are unclear, however, it's always best to consult with an attorney knowledgeable in your state's community association law.

Sincerely,

Margey

We have 32 units in our townhouse community. We have $7,000 too much money in the bank, it is not designated for anything. It was acquired from the dues being too high the last 3/4 of the year. How do we spend this, and is it necessary to spend it? We have since adopted a new budget so that this amount will not accumulate again. Thank you.

- Cindy

Unless your board has commissioned a Reserve Study to determine the replacement cost and remaining life of every common area component in your community, it is impossible to determine how much money an association should set aside for the eventual replacement of its physical assets. If your association's reserve study results indicate that the association has set aside too much money, then upcoming budgets should be developed to include a reduced allocation to reserves. Alternatively, the overage can be applied to future budgets, resulting in reduced maintenance fees.

Sincerely,

Margey

Are Sarbanes-Oxley regulations on internal controls mandatory for homeowner associations? Could you suggest an article that may discuss this topic.

- Jo Ann

Sarbanes-Oxley pertains only to public corporations, not to private corporations such as community associations. For more information on this law, enter "Sarbanes-Oxley" in the keyword field of any Internet search engine.

Sincerely,

Margey

I live in an Association of 176 homes. My lot and about 8 other homes abut a small pond (located in common area). Our Covenants say everyone pays an equal share of dues assessment for maintenance of the common area. It also says that any Special Assessment must be voted on by the membership. The HOA has recently taken to requiring the pond owners to pay extra for any small approved pier or paddleboat because they say it causes an extra insurance liability. This is not outlined in the budget or even brought up at our one meeting per year. I have asked my insurance carrier and he tells me that I am personally covered under my own policy. They keep citing the clause to me that an owner can purchase extra insurance at his own expense. Isn't that what I did by having my home, contents and outdoor amenities covered? They say "pay up" and "shut up".

- Carole

The governing documents for many community associations empower the board to establish fees for certain unique situations that impact fewer than all homeowners in the community. If such verbiage exists in your association's documents, then the board may indeed be authorized to assess the additional amount. However, if neither the governing documents nor state statutes contain a provision containing such wording, then it is possible that your board members have overstepped their authority.

With regard to the additional insurance premium the board referenced, why not ask to speak directly with the association's insurance agent for confirmation of that statement?

Sincerely,

Margey

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

I am a member of the HOA of small condo complex in California. Recently, one of the units went through some sort of non-judicial foreclosure process.

Last weekend, a man rang my intercom button asking to be let in because he was the owner of the unit. Upon meeting him downstairs, he explained that he had obtained ownership of the property through a foreclosure sale and demanded access to the building. As I had no knowledge of the unit changing hands and he did not have a key, I refused his request for entry but said I would pass on his information to association officers.

He noted that if he didn't hear back from the association, that he would have a locksmith change our front door lock (it is a common entry) and charge the bill to the Association. (He followed up this threat with a letter to all homeowners - noting that the rest of the homeowners would have to contact him if we wanted access after that point.)

So my question is twofold:

1. What is the Association’s obligation for giving this guy access to the building? If he doesn’t have a key, it seems that the association has no interest in being a part of a private transaction with one of the homeowners.
   
   
2. For what reason (if any) would the (proclaimed) new homeowner have the right to change the front door so that he could gain access to the building? Again, this seems like something that could only be enforced by an officer of the law or by the Association itself. Your advice is greatly appreciated.

- Matt

While California may have different laws than most states, new owners have the right to access their unit. In the circumstances you described, that would mean that the association would have to provide the new owner with the key to the common entry door, and the previous owner would have to provide the new owner with the key to the unit. Or, if the previous owner fails to provide the key to the unit, the new owner may change the lock. However, no homeowner has the authority to change a common element, including a lock.

If the person you described has documentation, such as a deed, proving that he is the new owner, then the board or manager should provide the access key immediately to eliminate a protracted legal battle.

Sincerely,

Margey

In Connecticut, our association bylaws state that "Nothing may be hung on the outer walls of a building". I read somewhere, recently, that the U.S. Congress struck down such restrictions to allow the display of the American Flag by a unit owner. Can you provide the source and/or the applicable rule?

- Tom

Please see the Q&A directly below. Also, please use our search function, keyword "flag", for more information regarding the federal flag law and how it impacts community associations.

Margey

Several weeks ago the President Bush signed the "Freedom to Display the American Flag Act of 2005." Our management group speaking for our condominium association has stated that this act does not prohibit the association from enforcing its rule that nothing other than white curtains or blinds be placed in any window. Can they now restrict residents from publically displaying the flag from within the unit if it is visible to the outside?

- Maurice

The "Freedom to Display the American Flag Act of 2005" does not completely prohibit community associations from barring the display of the American flag in a residence. There are two caveats, described by the Community Associations Institute as follows:

1. Flags must be displayed consistent with the provisions of the Federal Flag Code, or any rule or custom pertaining to the proper display or use of the American flag; and
   
   
2. Community associations may place reasonable restrictions pertaining to the time, place, or manner of displaying the American flag necessary to “protect a substantial interest” of the community association.

Sincerely,

Margey

Our By-Laws prohibit cumulative voting with regard to the election of the Directors. What is the meaning of this term and why would it be placed in the By-Laws?

- Don

In the context of voting in a homeowners association, cumulative voting means the ability of a homeowner to vote for the same candidate for as many board positions as there are available. For example, there are three board position terms that have expired and the owners are voting for their new board members. In the cumulative voting scenario, an owner may vote for the same candidate three times. When cumulative voting is prohibited, the owner may vote for a candidate only one time, no matter the number of positions available.

Community association Bylaws typically prohibit cumulative voting to avoid the potential of a few homeowners controlling the outcome of the elections.

Sincerely,

Margey

My husband and I live in a Community Interest Development in California where we own both our home and our land. A year ago a woman moved in next door who is delusional and very soon came to believe we were trying to destroy her home. She harasses us regularly by screaming obscenities at us from her porch. We do nothing in response. Our Board investigated and agreed that what we told them was true. They asked her son to help resolve the problem and he said he couldn't. Then the Board said they considered it a neighbor dispute and not their responsibility to intervene. We consulted a lawyer who wrote a letter indicating that they had a fiduciary responsibility to protect our private enjoyment of our home. They have ignored this. We have called the police 4 times and now there is even a criminal case against her for disturbing the peace set for trial. However, the D.A. has told us this will not likely solve our problem. Nobody seems able to help us including the social services agencies. We can't enter mediation with her because she is delusional. Any advice?

- Sylvia

You've addressed the issue properly by retaining an attorney to argue your case with the board after unsuccessfully attempting other avenues of potential resolution. Hopefully, a sympathetic judge will rule in your favor and either direct the owner to cease all harassment or the board to pursue satisfactory resolution.

Sincerely,

Margey

I live in a small condo association in Wisconsin (4 buildings of 4 units each). About a year and a half ago, a vote was passed to make each building responsible for their own water bill (we do not have separate meters; there is one meter per building). Previously, the water bill was paid by the association. Our fees were $165 per month at the time. Since the vote, our fees have been reduced to $130 per month. However, each unit is responsible for paying one fourth of the water bill for that building. I do not see how this can be legal. Our building has, for example, two families of five people each, one family of four (mine) and one unit has only one occupant. How can this be fair to the one person, especially? He now has to pay one fourth of the water bill when he is only one of fifteen occupants of the building.

The association states that they had to do it this way versus splitting it by people (for example this single occupant would pay one fifteenth the bill) due to HUD rules. They are fearful that they would be discriminating against families somehow if they did it any other way. I feel that if we do not have separate meters the only fair way is to split the entire water bill into sixteen equal payments (16 condos in all in the association) or have it paid out of the association funds. I cannot find any laws on this. Our town did adopt an ordinance which states that the association must pay the bill but our association attorney interprets it to mean that they can collect it from us and they then send it in to the water company. Please help us as this has been going on for over a year and it is a strong dividing point in our association. Thank you.

- Kay

Most states have adopted some form of submetering legislation that may apply not only to rental units but to other forms of multifamily residential living as well. Such legislation, if it exists in Wisconsin (see State Resources page) provides strict regulations regarding how utilities may be billed to individual units or individuals.

The Wisconsin Condominium Act may also contain provisions regarding billing unit owners individually or collectively. Look for verbiage that addresses an association's authority to charge individual owners for common area expenses.

If state statutes prohibit condominiums from assessing individual unit owners for common expenses, then the amendment your association approved is invalid. State law supersedes the governing documents, so if there is a conflict between the two, state law would prevail.

Absent such legislation, your association's governing documents should provide direction on matters of billing. Many condominium documents require that all common expenses be paid equally by the unit owners, typically calculated by using the percentage ownership of each unit. Unless the homeowners in your association legally amended the Declaration by following the amendment process detailed in the Declaration, the board is not authorized to change the manner in which assessments are calculated.

On the other hand, it certainly makes economic and environmental sense to conserve water, and submetering has been proven to do just that. However, the recommended method of submetering is to install a meter at each unit to determine exact consumption for which the unit owner should be billed.

Sincerely,

Margey

Our Homeowners Association requires all reports of violations of the rules and regulations to be signed. Their logic is that if the individual appeals the violation, they need to be able to face their accuser. This is valid argument if the type of violation requires a witness, e.g. running a stop sign on the golf course. However, if an individual installs a muti-colored door, a violation that can be confirmed by the community manager, why should it be necessary for the homeowner to identfy themselves. It would seem that the Community manager/Board wants to put the onus of identification and enforcement on the residents rather than assuming this responsibility themselves. Is there an established best practice for this?

- Paul

Typically, the manager, board and/or a maintenance committee conduct regular inspections of the community to note maintenance needs and deed restriction violations. I agree with you that issues such as a door that does not comply with architectural guidelines should not usually require a homeowner's written complaint before the board takes action.

On the other hand, the board may have a written policy of not proactively inspecting the property for violations. Rather, the policy states that the board will act on violations only when they are reported in writing by a neighbor. While I do not agree with that philosophy, in certain circumstances in may be necessary because the community is self-managed by volunteers who have little personal time to frequently walk the property.

Sincerely,

Margey

We have a neighborhood HOA in ****, WA. Problem is we can not get ANYONE from the neighborhood to join the board. My husband is stuck with being the President, Vice President, Treasurer, and Secretary (actually I am the one who does all!) We made the mistake of asking how to get our street lights working when our new development was built so we contacted the builder and lo and behold he said you had to have a HOA and you are now IT! We have tried for over 3 years to get anyone else involved. A couple people said they would but never contacted us to do anything. We've been collecting dues and paying the landscaper and insurance, etc. but we'd really like someone else to take over now. Can you suggest a management company?

- K.

When their community association is running smoothly and not interfering with their personal lives, many homeowners become apathetic with regard to helping the volunteers who serve on the board. Please use our "Search" form on the left menu, and enter "solicit volunteers" in the keyword field for archived articles and Ask the Expert responses that address this issue.

With regard to your specific situation, I would encourage you and your husband to invite all owners and renters to a "get acquainted" party, the food and beverages for which could be provided by the association or, even better, brought by each owner. At the get-together, you and your husband can explain the difficulties you are experiencing trying to administer the affairs of your association by yourselves, and that you do not want either the total responsibility or the time commitment necessary to continue to do the job well. Explain what duties need to be performed to ensure continued harmonious living in your community. Make a general plea for participation, then visit with individuals for a one-on-one entreaty for assistance. Alert the owners to a potential maintenance fee increase or special assessment if it becomes necessary to hire a management company.

If your appeal falls on deaf ears, then it probably is time to hire a management company. How do you find a qualified one? Go to the Community Associations Institute and click on "Chapters" to find a local organization close to you. Ask the Chapter Executive Director to send you a list of management companies in your area or, if you want only the best ones, request the list of companies with the AAMC (Accredited Association Management Company) designation.

Sincerely,

Margey

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

I own and live on the first floor of a condo in *****, Colorado. The owner of the condo above me rents out his unit. It was empty and someone broke in and turned on the water full blast. I notice the leaking and called my HOA, they arrived over 3 hours later and there was extensive damage to my ceiling, carpet, and tile. My HOA called in a construction company to begin the work, but then had them stop drying out everything 5 days later and stop work. I am left with large holes in my drywall and other damamges. Is the owner responsible and what to I do now if he claims to not have insurance and promises to have someone he knows get in touch with with to start repairs?

- Kristine

In a condominium, the condominium association's master insurance policy usually provides primary coverage. That means that even though an owner may have an HO6 policy, the association's policy would adjust the claim and pay for the loss. Unless there are extenuating circumstances that provide otherwise, the association's insurance company should adjust your loss and, if authorized in state statutes or the association's governing documents, subrogate against your upstairs neighbor to collect reimbursement for the amount paid to restore your unit.

In the event your association's governing documents mandate the each owner is responsible for interior damages inflicted on another unit, you may need to consult with a attorney to determine what judicial recourses may be available to you.

Sincerely,

Margey

Our association board is finding it difficult to find providers of "exterior condo insurance". Do you have a master list of insurance companies who provide such coverage?

- Wallace

Insurance for community associations is becoming more difficult to obtain and at higher rates once an underwriter is found. For a list of insurance agents in your area, contact the closest chapter of Community Associations Institute. Go to their website and then click on "Chapters".

Sincerely,

Margey

Need to know what if any legal difference between addendum and amendment, in regards to CC&R.

I am in Oregon, the statutes clearly say a amendment must be recorded with the county, but no mention of a addendum. thanks.

- Joe

No matter what you call it, any change to the governing documents must be recorded.

Sincerely,

Margey

My husband and I belong to a property owners association in California that was suspended back in 1991 for failure to pay taxes. The original developer had gone bankrupt for failure to pay taxes in 1990. The majority of the lots were subsequently sold at IRS auction in and around 1993. After that period they were sold off to various owners and have changed hands since then. We purchased the property two years ago without any disclosure of this issue from the seller. It was brought to my knowledge when I volunteered to take on a role of treasurer.

We now have one property owner that has acted on their own accord to use the suspension and the failure of the Association or declarant to pay taxes, to file for an involuntary dissolution with the Attorney General. I understand from our documents that we are required to vote for dissolution and think it could require 100% of the lot owners. What I need to know is can an individual dissolve it without the other lot owners approval? If they seek approval, how many need to agree. There are 21 total. Thanks!

- Anonymous

While the association's corporation status may be revoked as a result of failing to pay state taxes, the association as an entity continues to exist as established in the governing documents. You are correct in assuming that the owners must comply with the process detailed in the governing documents regarding dissolution of the homeowners association.

Sincerely,

Margey

We have had a custom van for the last 10 years at our condo. We are now getting a letter stating we have to remove off the premises because vans are only for loading and unloading. This is not a commercial van, nor does it have commercial plates. It usually gets used on weekends.

Regarding bylaws we understand that any bylaws not enforced within a 36 month period become unenforceable. Is this true? Please advise any furthur information. Thank you! Appreciate any of your input. Regards.

- Eugene

While I'm unaware of any statute that declares a provision in a community association's governing documents invalid after a certain period of time, you could check for yourself by going to our State Resources page and researching your state's statute of limitation laws.

It sounds like your board of directors should consider developing a policy resolution defining "commercial vehicle" that eliminates any reference to vans used for purposes not related to conducting a business.

Sincerely,

Margey

May 2005, we purchased the last un-developed parcel in the 1st phase of a single family housing development. The covenants were given to us by the seller. At the time of closing, no new covenants were given to us.

When we decided to build, we hired someone who had done blueprints for several other homes in the development. She was highly recommended by those other members, homeowners in the association.

After the plans were drawn,we called the current president of the HOA and asked if we should take him our plans for approval.He said he didn't want to be president anymore so handed the job to the man who was vice-president. We called the "new" president, took the plans to him and were told he would get back to us soon.After several weeks, i called the "presidents" wife and was told that the plans had to go to another person another person for approval. The "president" called my husband and said the plans were approved except that we had to have brick on 25% of the front, as stated in the covenants. The covenants we had did not say that. We were told there were new covenants as of 2002. We called the title company and got a copy and yes it did say that. However, only 1/2 of the homes in this phase have any brick or stone and then, only minimal. We asked that this be waived as it does not fit our home style and the answer was that "it is in writing so it cannot be waived". Two houses built in 2003 do not have the required facing. We were told they had a verbal agreement and did not have to abide by the covenants.

To shorten this long story, there has not been an association meeting in over 2 years. The member of the association we purchased the land from was not even aware of the new covenants. The man who is now "president" is also the "vice president" and his wife is the secretary. The lady who is treasurer has not collected dues in about 3 years and is moving out of the area as soon as she sells her home. She says the association has not been active and does not know who to hand the finaces over to. She does not want to give the books to the "president" since he already has too much power. The other person who got involved is the man who originally developed the parcels. The first time my husband talked to him he said the covenants were not meant for our phase and to go ahead and build our home. He called last week and said we had not had our home approved and must abide by the covenants. A complete turn-about on his part. (The new "president" and the developer were close friends at one time.)

Now, the question is---is this a legal association? It seems to us that we have a few people that are wanting to wield power they don't have. Our new neighbors say they don't think we have an association based on all the facts stated above. We are being threatened with a lien on our property. If the association does not really exist, who would hold the lien? The covenants read that by 66% of the vote, the requirement can be waived. These two men say we don't have that option.

P.S. Our home is in the process and will be very lovely, an enhancement to the already lovely area. We are in the State of Washington. HELP PLEASE!!

- Florence

The ultimate determination in whether or not an association exists is if the Declaration/Covenants/Deed Restrictions/CC&Rs was filed of record before your home was purchased. If those documents exist, you are obligated to comply with them. If you did not receive a copy of them prior to closing, then you may have legal recourse against your Realtor and/or title/escrow company, depending on Washington state statutes regarding disclosure of homeowner association information.

If the association is indeed a legal entity, it would appear that you and your neighbors need to get involved in its operations. Successful community associations are the result of reasonable, dedicated volunteers devoting their time to protect their community's property values and the association members' quality of life. If you are dissatisfied with the apparent selective enforcement policies and disinterest of the current community leaders, you can effect a change by volunteering your own services as a board member.

Sincerely,

Margey

We live in Michigan and moved to this ne w subdivision about 2 1/2 yrs ago. We asked our realtor who happens to live and work in our sub if there was an association he said that there were rules but no fees and nothing had ever been enforced. We have two entrances to our subdivision and not one sign. We don't have a park or any other recreational area. We didn't sign anything at closing so I am wondering can this association be enforced. We just received a letter from a lawyers office scheduling a first meeting.

- Lisa

Typically, the governing documents creating a homeowners association are recorded before the first home is sold. If the documents existed when you closed on your home, you are obligated to comply with the provisions of those documents.

Sincerely,

Margey

Can you have an Georgia HOA without CCR's?

- Frances

Georgia community associations must have mutually binding documents, in particular a Declaration/CC&Rs/Covenants/Deed Restrictions (the name varies in different parts of the country) in order to exist as a mandatory membership homeowners association.

Sincerely,

Margey

I have 3 questions for now.

1. Our Homeowner Association Presidents Husband is in charge of one committee, (the Neighborhood Watch Program) He is also on the architectural committee. He actually does more enforcing than his wife the Association President. He actually goes to homes enfoces ordinances set in the by-Laws. To me this is a conflict of interest. What do you feel about this situation?
   
   
2. The same individual I spoke of in the last question called me to help unload a Kawasaki Mule $6,000 one for use with the neighborhood Patrol program, he also stated that he had 2-3 individuals that said they would volunteer to pick-up trash around the subdivision. For one thing we have now found out more money needs to be spent on it because it is not street legal. Also, he never brought this to the attention of the homeowners. (We live in a mandatory $330.00 a year dues community). They also are putting a multi thousand dollar addition onto the community clubhouse that to my knowledge was never voted on except at an association meeting consisting of at the most 100 people. We have over 1,100 homes here.
   
   
3. Sorry, one final question... Our Bylaws have not been revised since 1987, with the exception of one or two laws in 1992 when we were Incorperated. How often should By-laws be updated. I live in *******, Texas can you give me a reference# to state Bylaws. Thanks for a great website very informative. Keep up the superb work you're doing.

- Steve

I'll answer your questions in the same order they were presented:

1. Unless your association's governing documents specifically prohibit co-owners from both serving in some leadership capacity, it probably is not inappropriate for both wife and husband to serve as president and Architectural Control Committee chair respectively. However, if there are other homeowners willing to serve in either capacity, the wise action would be to involve as many members as possible in the operations of their community.
   
   
2. Your association's Declaration/Covenants/CC&Rs/Deed Restrictions (the name varies in different parts of the country) should contain very specific wording with regard to the president's authority to expend funds. What about the other members of the board -- do they have a say in how the president is administering the association's funds? If there is a board of directors, they must ensure that every decision and action of the president complies with your association's governing documents and state statutes. Otherwise, both they and the president may be held personally liable for failing to act in the best interests of the association as mandated in both the documents and state statutes.
   
   
3. Typically, Bylaws are not frequently amended. If new conditions arise, such as changes in demographics or desires of the members, then it may be appropriate to modify the Bylaws. However, no changes to any community association governing document should be made without prior review by a competent attorney knowledgeable in community association law.

Sincerely,

Margey

I'm VP of a Michigan HOA. The developer is about out of the picture. We would like to change our documents to eliminate renting. Are there any laws stopping us from doing this? If not, what is the best way to accomplish this? Thank you for your help.

- Chuck

Please use our search function with keywords "renters" and "amend documents" to find answers to your questions.

Sincerely,

Margey

I live in a small community in Ohio. We have just taken over the management of the HOA from the builder and property management company. There are a few rules that the board and a few members of the community want to change. In our by-laws it does state that we need 2/3rds vote to change anything.

My questions is whether we need to involve an attorney. The other board members do not feel that we need to have an attorney involved to simply 'change a little rule'. They strongly believe that they should be able to write up the rule they want to add/change and have the homeowners vote on it. I have yet been able to convince them that this is a corporation and it would be in our best interest to consult an attorney. Because of the added cost, they would like to skip this.

So I guess I have two questions:

1. Should we be consulting an attorney to have any rules changed?
   
   
2. If we do not consult an attorney, would these rule changes be legally binding?

Thank you!

- Beth

Amending the governing documents of a community association can have far-reaching unintended consequences. I urge your board to consult with an attorney to ensure that whatever changes are planned do not conflict with other provisions of the document or of other recorded documents, with state or federal statute, or with case law. There is one other consideration that an attorney will evaluate in preparing his recommendation for you -- the law of reasonableness. If whatever rule the board wishes to change is unreasonable, no court will allow the board to enforce it.

Spend the money now on a competent attorney knowledgeable in Ohio community association law and case law to prevent expending significantly more funds later defending the new rule.

Sincerely,

Margey

Our home is in a large Texas subdivision, 2400 plus homes. Hurricanes and flooding have been an issue in the past. Our HOA standards clearly state that a fence cannot be changed without permission from the Architectural Board. My rear neighbor, after his home has flooded 2 times has built a fence that was not approved, nor meets the standards that are clearly stated in our HOA guidelines. The purpose of the fence was to divert water to the neighoring properties.

We have requested, thru the management company to have the Architectural Standards person review the fence. The management company says they see no reason to review this fence. They have confirmed that prior or post approval was not applied for, nor granted by the HOA Architectural Standards Committee. We requested to attend a board meeting to speak on the issue and the management company denied our request. Our rules clearly state the procedure for obtaining permission for a fence to be replaced. We see no reason to pay our HOA dues since they have chosen to breach the contract they have with us as residents. We have contacted the county and they have made us aware of three civil laws that have been broken. They believe that the HOA is a aiding the person with the improper fence and we must sue them (our HOA and our neighbor).

What would be your next step? Should we have a hurricane, this would greatly impact five or more neighbors and we would most likely have considerable water damage.

- Tanya

In Texas, homeowners have recourse in Small Claims Court to challenge perceived injustices and actions without incurring the expense of an attorney. Consider filing a claim, asking the judge to enforce your community association's governing documents.

Sincerely,

Margey

I bought a townhome in PA. The previous owner (I bought the house a year ago) had a backyard patio built apparently right before the sale. The patio sits right against the walkout basement's wall of the next townhouse. My next door neighbor approached me the other day and told me that his basement has started to leak (or may have been leaking for a while but they just noticed it) from the wall against which my patio is located. He also said that the builder, having looked at my patio, mentioned that it was built too high, and that causes the leak. My neighbor wants me to take care of this issue somehow, and even demolish the patio if needed. I totally understand his problem, however not only the patio is a valuable asset that affected the price I paid for the house, but it will now cost me fix or demolish it... What do you think I should do? Do I have a case against the previous owner who didn't build the patio properly? Thanks for your advice.

- Ken

You may have recourse against the seller of your home and perhaps your Realtor and person who conducted your home inspection. I encourage you to consult with a competent, reputable attorney for legal advice.

Sincerely,

Margey

I'm a Board member of an HOA. At at recent board meeting, myself and the property manager had words and he ended up filing assault and trespass charges against me. Subseqently, these charges were not prosecuted by the local DA. Now that the whole matter is over, I am still left with several thousand dollars in attorney fees from representation on these trumped-up charges. Is there anyway for me to recoup these legal fees through the HOA insurance policy since I was at a Board meeting and the authorized location for our community meeting. This seems like a huge penalty for me to pay while the bullying property manager walks away without spending a penny. The other board members are in the property managers corner, so I expect no help from the Board. Thanks for your comments.

- John

There is never an excuse for physical altercations or verbal abuse at a homeowners association. I urge you to worry more about behavioral issues than the legal fees you incurred.

Sincerely,

Margey

Prior to purchasing a home in Georgia, my real estate agent informed me that there weren't any associations or restrictive covenants in the subdivision.  The selling agent, according to him, never mentioned that any existed. However, after two months, I received a letter informing me that I was violating the covenant by placing a doghouse in my backyard..  My question is, if I were not informed of a covenant, never received one at closing, didn't sign any such covenant, am I still bound???? It just doesn't seem sound in any fashion. 

- Pete S.

While you are automatically obligated to comply with the governing documents of your community association as long as it is a mandatory membership association, you may have recourse against your Realtor and title/escrow company for not providing you with the association's governing documents or advising you of the existence of the association. I recommend your consult with a competent attorney to learn about any legal options available to you.

Sincerely,

Margey

In New Jersey under the NJ Condo Act can a member of the association/owner make an audio recording of an association meeting for their personal use?

- Michele

Please go to our State Resources page and scroll down to find New Jersey statutes addressing authorization to audio record board meetings.

Sincerely,

Margey

My name is Autumn and I am writing to you from Texas. I live in a downstairs condo. I bought it 2 years ago. I have an upstairs neighbor that is a tenant, not an owner. Over the last 17 months there has been 7 floods from above. 3 overflowed toilets, 1 wrong detergent in dishwasher, 2 broken toilet flanges, 1 broken clean out pipe. The association paid for the first flood (even though it was the owners responsibility according to the bylaws), and the rest of the floods the owner/landlord of the upstairs unit paid cash for all the repairs to her unit as well as mine. She has no insurance, only a home warranty.

Here's the deal... after the 3rd flood, I lost my patience big time and began questioning the HOA management company about what my protections are with the bylaws, and what can they do to help me. The owner of the unit will not get rid of the tenant that keeps causing floods in her home as well as mine. I am constantly spending my time coordinating construction workers in my home, CLEARLY unable to enjoy my home. The management company will not help me. I ask for help with the bylaws, and all they say is "Autumn, why don't YOU tell us which bylaws are being broken." Wait a minute! I pay $170 a month for management of my property! Not the other way around. I went in person to the management company and had a meeting, called countless times and had conversations, wrote letters, had an attorney write letters, and went to board meetings to complain and ask for help. NOTHING! Nobody would do anything to protect me and my home from constant intrusions with sewage! Then I switched attorneys, and the management company finally responded in writing and said, "we are sorry that Autumn has had such unfortunate events with the plumbing and her upstairs neighbor, but the plumbing issues are very common in a condo that is 23 years old. This is a matter between Autumn and the Landlord of the upstairs unit."

So, please give me your professional perspective on this issue. I would truly appreciate it!

- Autumn

It would appear that your condominium association and its manager are hamstrung in their ability to assist you because your association's governing documents prohibit the expenditure of common funds on issues clearly defined as an owner's responsibility. I suggest your file a complaint in Small Claims court against the upstairs unit owner and appeal to the judge to order the owner to evict the tenant or ensure that no further failures occur.

Sincerely,

Margey

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

A developer recently made several cuts in our parking area asphalt and replaced the excavations with a patch in each of the trenches. His obligation was to return the area to its previous condition. We are concerned that a patch will allow water to seep in at the seams and weaken the asphalt. Is there any reason to be concerned?

- Richard

If done correctly, asphalt patches can last as long as the original pavement. If you are concerned with the consequences of the repair work the developer performed, consider hiring a professional engineer or asphalt authority for an expert opinion.

Sincerely,

Margey

I live in a condo association which is composed of 12 unit and 8 unit buildings. The 12 unit buildings have a fire system which is only composed of pull stations. We were told by the fire marshall they need to be monitored, this involves replacing all the ones we have since those ones can't be monitored. Only the 12 unit buildings are required since "more people can die", under 11 units its voluntary.

This assessment is going to be around 6 figures. With assessments, those in the larger units, buildings with only 8, always pay a higher percentage. Here's the question, generally common areas are things that are shared by all members. And if one building has a roof repair or replacement, we pay because if ours needs it it'll be payed for as well so its fair.

This particular assessment, those of us in the 8 unit buildings will be paying a higher percentage of the cost for something we will never have. If there is a fire in my building, I have no fire protection. Can this assessment not be considered a common area and only put on those in the 12 unit buildings?

Its seems the only fair way is for doing ALL buildings, and if members don't agree to that (which would be those in the 12 unit buildings), then only they pay for the fire since we won't be getting any at all.

- Jason

Remember that in a condominium, every owner owns an undivided interest in the common elements, which means that you own a percentage of all the buildings, not just the one in which you reside. If your condominium association's Declaration mandates that all owners must share in common expenses, then you are just as liable as your neighbors in the 12-unit buildings for the cost to retrofit those buildings.

With regard to the larger issue of which buildings should be retrofitted and which should not, it would appear to me that all owners are exposed to the same potential loss of life and property. Whether or not the fire code requires only buildings with twelve or more units to install monitored fire alarm systems, it would make sense to install the new system in every one of your condominium community's buildings.

Sincerely,

Margey

Thank you very much for your response. In regards to putting the fire system in ALL buildings if not required by fire code, can that be done without a full member vote?

- Jason

Your association's governing documents should contain provisions specifically addressing when the owners must vote on special assessments, increased assessments, or capital expenditures.

Sincerely,

Margey

Are there any legal ramifications that I need to be aware of if I want to first perform an independent survey of damages and concerns to my neighborhood and then petition for repairs and/or changes to be made to the HOA that I live in? Is there such a thing as asking the wrong questions? I am just frustrated with the way our community has been falling appart and no repairs are being made. Most people are too busy and too tired to take any action against the HOA. I am not. What should I start?

- JJ

There certainly is nothing wrong with asking questions about the operations of your community. If you want to pay for an investigation into the maintenance program and physical condition of the property, the board may not interfere. However, you may have a difficult time if you want the board to reimburse you for your expenses since they did not sanction the work.

I suggest you use our search function (just below the the top left corner) to learn more about the proper operations of community associations, keywords "operations" and "maintenance". You might also be interested in the educational material available at the Community Associations Institute's website.

I congratulate you on your commitment to your association, and encourage you to attend board members and a homeowner observer to learn more about the issues your board is addressing. Even better, consider volunteering to serve on the board to ensure that the board is fulfilling its duties and obligations to the membership.

Sincerely,

Margey

Can you tell me what is the most common maintenance person or persons utilized by other communities when it comes to daily maintenance landscaping? Do communities hire a daily caretaker/handy person to go through the community and note what needs to be paid attention too?

- Karen

Most associations contract with a lawn maintenance/landscape company to manicure the grounds on a regular basis. Using a contractor instead of an inhouse staff to maintain the grounds reduces liability insurance premiums and usually provides better oversight and supervision than a volunteer could offer. For more information regarding criteria for yard maintenance, please go to CAI Online and click on the Bookstore

Sincerely,

Margey

Ever since we purchased our 600 sq. ft. condo unit, our HOA Board has insisted that a huge oak tree within the parameters of our backyard is their responsibility to maintain. This tree (a national monument) is approx 130 years old. Our condo complex is 50 years old. For 50 years our HOA has forbidden previous owners to care for tree as they claim it is HOA's responsibilty. Then a storm knocked over a fellow homeowner's oak tree causing damage. Suddenly the Board says they made a mistake and that the tree in our yard (with branches and roots that extend beyond several properties and top that towers way above condo unit above us) is our responsibility to trim and maintain. They intimidated the other owner into paying for all damages caused by the tree falling due to the storm.

Now to us they cite bylaws that merely refer to the boundaries of our patio which includes "interior, finished surfaces of the wall, fences, or railing encompassing the same, to the approximate dimensions shown hereon, the interior finished surfaces of the floor thereof & the interior finished surfaces extended of the ceiling of the adjoining living space as shown hereon." That's it. Then they state that this is proof that tree is our responsibility and not theirs and that in the past they made a mistake. In the bylaws it is stated that the Board can enter our property as easement to needed landscaping anytime, but the tree is the only landscape there is and that they used this rule in the past. Most homeowners are upset and want the Board to continue to care for such trees.

1. Are we legally responsible for gigantic oak tree from what you can see?
   
   
2. If newly elected Board wants to take responsibility for trees, are they legally forbidden to do so?

- Sue

If your condominium association's governing documents are silent with specific regard to maintenance responsibility for patio landscaping, and if the Bylaws of your community authorize the board to make rules regarding the use of the common and limited common elements, then it is possible that the board is authorized to adopt a policy resolution assigning to each owner the responsibility for maintaining the tree. Many condominium declarations do require owners to maintain all landscaping within the confines of enclosed patios. Further, since owners are typically responsible for maintaining the landscaping in their patios, they are also liable for damage that landscaping may do to the common elements such as foundations, siding, gutters and roofs.

Sincerely,

Margey

Responsibilty - Interiors

I live in Southern California and last year the roof leaked on to my ceiling after a rain storm and the association fixed the roof and painted over the leak stain on my living room ceiling. However, the paint did not match the color of my ceiling and now the association claims that their job was done and because my ceiling is an "exclusive use" area - an interior area, then it is my responsibility to pay for the painting of the ceiling or I