Ask the Expert

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

We have an election coming up, and one of the candidates has a pending lawsuit against the very Association he is running for Director. If he gets elected, should he/she be banned from director duties until litigation is over or just recuse him/herself from board close sessions were lawsuit is being discussed?

- SL

Once elected, board members have the same rights and responsibilities as all other board members of your community, of all community associations, and of all nonprofit corporations. However, board members must also comply with conflict of interest regulations.

The issue is not what your board member should or can do once elected. Your neighbors -- all owners in your community -- should be aware that the board member candidate is suing the association, and then make an informed decision regarding whether or not they want someone in that position to serve in a leadership position.

Sincerely,

Margey

Conflict of Interest

Isn't it unorthodox for the site managers' wife (I'll call Ms. X) to be on the Board of Directors? We need to discuss some unethical (fighting with a resident) personnel issues about Site manager. If we go into executive session about the issue can we exclude Ms. X (Board of Directors)? I'm the Board of Directors President and have already been told by one member of the Board of Directors that she will feel uncomfortable in this situation if Ms. X is present.

- Jeff

The manager's wife/board member should recuse herself (not remain in the same room) from all discussions regarding her husband's behavior or actions. Such situations lend themselves to discomfort and animosity among the board members. I personally would not recommend having a manager's spouse serve in a leadership position other than on a committee that gathers information so that the board can make informed decisions.

Sincerely,

Margey

I live in a community in Nevada of about 600 homes. We have had the same president for over 10 years, and it has recently come to my attention that she was installed by or is related to our developer. Many of us have problems with our homes and may seek damages from the developer. It appears that our president is now working for the developer as a secretary in his customer service office. Is this a conflict of interest, and if so should I bring it to the attention of other home owners. I am currently running for the board with an election in a couple of days. We want her out bad. Problem is the developer wants her in. Any suggestions?

- L.

While your elections have already come and gone, I think your question is still valid and may be relevant to other readers of "Association Times". Board members of community associations have a fiduciary responsibility to serve the association to the best of their ability, absent self-interest and conflicts of interest. If members of an association are unaware of their president's dual roles, it would be appropriate to alert them to the situation, ensuring that only the facts, and not speculation, are presented.

Homeowners deserve to know the whole story about board members and potential conflicts of interest in order to make informed decisions regarding their community association's future leaders.

Sincerely,

Margey

Our board member who lives on our property moved from one building to the other without paying a move out fee that our association charges. Only the move in fee was charged and paid. Our rules state that move in fee is $50 and move out fee is $50; our board president waived the move out fee for this board member. What can we unit owners say to the board president about implementing the rules for everyone and not play favoritism to unit owners volunteering their service to the community? This has happened with many other board members and some folks are really upset about it when the word gets out. Double standards. Is this permissible for volunteers serving on the board?

This community needs some professional advice. I do not want to get anyone in trouble, but many of us feel this is not right. Thanks.

Board members should not consider themselves "above the law" with regard to association rules and regulations. I suggest that a small group of owners cordially and amicably approach the board to ask that the directors adhere to the same requirements imposed on all owners, and that they remit restitution for any previous omissions.

Sincerely,

Margey

When a special meeting is called by 5% of the memebership and quorum is not met, can ballots/votes be collected at THAT meeting and carried over to the next calling of the special meeting when quorum is reduced or must the same homeowners show up again to cast their vote? Thank you.

- Chris

Typically, ballots may not be "saved" for another meeting. If properly worded and not disallowed by governing documents or state statute, proxies may be valid for a meeting and, if a quorum is not achieved, any reconvened meeting for the same purpose. However, if a member shows up at the meeting, he or she may request that the proxy be returned in order to vote in person on whatever issues come before the group.

Margey

I am the Vice President and Treasurer. I will be holding a meeting this Saturday. However, I have #6, #3 who are renters and #4 in escrow. Do I count the vote for #6 and #3. Or something about a proxy. How do I get that? So many do not pay there fees as is. #2 and #3 put up walls in the units to rent out for extra money. What can I do? I have asked #3 not to let his kids play outside since we are a small condo of 6 and it would be a liability. Of course the units ignore me.

- Barbara

I urge you to contact a competent attorney knowledgeable in your state's condominium statutes and case law to address the legal issues you described.

Sincerely,

Margey

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I am new to my communities Board of Directors. Previous Boards always published an open directory for the neighborhood with each homeowners name, address, phone, email and what names of children resided there. It seems to me this is something that should be kept private, not distributed. I can't find anything in my state statutes regarding this. Any advice?

- Adele

Many associations offer their members the opportunity to not be included in a community-wide directory. Providing a form on the association website or by U. S. mail in which owners may check an option to have their name excluded from the directory should address fears regarding invasion of privacy.

Sincerely,

Margey

I have a issue with my condo association. We have some members that have not paid assessment dues. The condo association has not met regularly for meetings, however each member has been informed of the monies owed. The President of the association took it upon themselves to serve members of the association with legal notices for the amount of money they owe plus legal fees. Is this the proper way to handle this considering there was not a vote amongst all the members of the association and there was a enormous retainer fee for this law firm to handle this? I feel as an association member we should have tried to handle this on our own first and then if that wasn't the case vote on the steps to be taken as a association. It seems to me like the President has taken the authority to do whatever they feel like without consulting with the association members or having a quorum vote on the matter? Is this legal in the State of Illinois?

- Terrance

Through the election process, community association members delegate to the board of directors the authority to operate the association, including collecting assessments. Additionally, there probably is a provision in your association's Declaration or Bylaws that obligate the association to collect assessments through any legal means possible.

Please enter "assessment collection" in the key word search field for additional information on this topic.

Sincerely,

Margey

Thank you for being a tremendous resource for condo owners. You are appreciated so very, very, much.

Here is my question:
Under what criteria should a condominum complex go into receivership?

The homeowner's association for the condo that I purchased almost 2 years ago has less that $2,000 in reserve and the building is in severe condition. The ceiling in the recreation room and parts of the parking structure have collapsed, there is mold covering entire sections of the building, standing water covers sections of the floor of the parking structure due to clogged drains, and the the building has been consumed by termites. Assessments have been of very little use since they go unpaid, and liens have been filed for several of the 20 unit homeowner's association fees. Need Help!

- Debbie

If an association were to file for bankruptcy protection, the association-paid bankruptcy trustee would legally mandate that each delinquent owner remit all past due amounts or lose the home to foreclosure (if such action is authorized in your association's governing documents or in state statutes). The trustee may also require each owner to remit an additional amount of money to enable the association to regain firm financial footing.

I encourage your board to retain the services of competent legal counsel for guidance in determining the best course of action to pursue. It may be possible to avoid bankruptcy by implementing a stringent collection policy crafted by the attorney with input from your board of directors. Additionally, I urge the board to call a townhome meeting at which they present a candid explanation of the current financial condition of the community and what is necessary to become fiscally viable.

Sincerely,

Margey

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I live in Michigan. I have been trying to find out if there is anything outlining who can attend a condominium association board meeting. Our board meets numerous times over the course of the year, but we are rarely if ever supplied with minutes of these board meetings. Every time we ask about minutes, we are told that all we have to do is ask, but when pressed, the records are always buried somewhere. The president of our association says that they are not required to inform the co-owners who are all members of the association about the board meetings; only the board members. Can you advise?

Thank you.

- Carol

I asked Mr. Craig Koss, President of Kramer-Triad Management Group L.L.C., an Associa member company headquartered in Ann Arbor (), if he would respond to your question with Michigan-specific facts. Here's his response:

Your question is really two parts – homeowner attendance at meetings of the Board of Directors and access to the minutes of Board meeting.

In the State of Michigan, there is an Open Meetings Act, but it only applies to government bodies (school boards, township meetings, etc). For a condominium association, the governing law is the Michigan Condominium Act and the Master Deed for the Association. Neither of these documents requires the Board of Directors to have open meetings, with the exception of the annual meeting of the co-owners. Many associations have open meetings or allow co-owners to attend the beginning of the meeting for a “call to the public” session. If your association has chosen to have closed board meetings, you can put any concerns you have in writing and ask the Board to consider your points at their next meeting and advise you of any action they may have decided to take.

However, if your association's governing documents (in particular the Declaration or Bylaws), require the board to permit owners to attend meetings, then your board must comply. Remember, however, that the right to attend board meetings does not equate with the right to participate in the meeting. Homeowners delegate their vote to their elected board members on the day-to-day business decisions of the association. Only at general membership meetings, such as the annual meeting, can owners cast a ballot.

Access to the minutes of Board meetings is a different issue. Both the Michigan Condo Act and the Master Deed permit a co-owner to obtain books and records of the Association. This would certainly include copies of the Board meeting minutes. If a simple request to obtain the minutes was met with some opposition, you should put your request in writing and ask the Board to provide copies of the minutes. Perhaps including a copy of the specific state statute or governing document provision pertaining to minutes accessibility would encourage your board to promptly comply with your request.

It has always been our recommendation that the Board of Directors openly conducts their business and communicate effectively with the co-owners. Many associations have web sites to publish their minutes. Others use email to send minutes to the co-owners. Newsletters can be used to provide either actual copies of the minutes or a synopsis of the decisions reached. In all cases, communication with the community members is strongly recommended.

Cordially,

Craig Koss, AMS, PCAM
President
Kramer-Triad Management Group, L.L

Margey

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Our associations insurance is close to renewal, the board has requested the management company look for other insurance companies and compare quotes.

The issue is that our management company gets quotes via a broker company (which is one of its subsidiary companies) supposedly this brokerage company is the only one that can go out to get bids from insurance carriers and no one else.

We, the board, feel that this brokerage company is slapping a whole lot in commission or hidden service fees on us and also they are not getting us the best price.

Is it true that we, the board, cannot engage some one else or go out independently and request for quotes directly from insurance compnies?

Thanks

PS: very informative web site.

- Ravi

As a member of the board of directors, you have a fiduciary obligation to ensure that your community association receives the best representation and service available. Additionally, the board is in the driver's seat, empowered and authorized to control the actions of the management company. With specific regard to soliciting insurance proposals, the board certainly has the authority to independently collect proposals for appropriate insurance coverages for the association. However, I urge you to consult with an insurance agent who specializes in community associations to ensure that all possible policies are presented to the board for consideration. To find qualified agents in your area, contact the Community Associations Institute, then select "Directories" on the left tool bar, then "National Service Directory", and enter "insurance" in the key word search field.

Sincerely,

Margey

I am a property manager, and I manage a property where one of the unit owners sustained some leaking damage from a clogged roof gutter that is on the common area roof. Her curtains were ruined and cost $700 or so to clean. Her window frames and the wall had to be painted as well for around $1100. Normally, I would point someone in the direction of their Homeowner's Insurance. Her insurance company told her that they wouldn't cover it, even though in the condominium documents both the curtains and the interior elements are considered unit owner elements of the building. Her insurance company contacted the building insurance company, and the building has a deductible of $5000. Who pays for what? Does the Association have an obligation to help her out for the gap in insurance?

- Rebecca

The situation you described is the perfect example of the need for a comprehensive resolution detailing responsibility for insurance deductibles and administration. I urge you to enlist the expertise of an insurance agent and an attorney, both well-versed in community association insurance and law, to help the board develop the resolution that complies with your association's governing documents and state statutes The resolution should clarify financial responsibilities for losses either not covered by insurance or below the deductible.

Insurance covers unexpected, sudden and uncontrollable losses such as a hurricane blowing an object through a roof. It does not cover maintenance issues such as a deteriorated or poorly maintained roof. Depending on your association's governing documents and case law, each owner may be responsible for interior repairs caused by a common area failure such as a roof leak.

For more information on community association insurance policies and coverages, enter "insurance" in our key word search field.

Sincerely,

Margey

I would like to know if you could assist us in finding insurance underwriters specializing in HOA's. I live in CA we need earthquake insurance as well. Can you provide us with some leads?

Thank you.

- Ted

There are two non-profit community association management organizations in California that may have insurance company members that can provide you with the earthquake insurance you're seeking. Go to Community Associations Institute, click on “Find a Chapter”, then scroll down to “California”, and/or go to California Association of Community Managers, and click on “E-Marketplace”, to find insurance agents knowledgeable in the risk management needs of community associations.

Sincerely,

Margey

Our CC&R's allow for House Rules. The way the CC&R's read is: The Board or the Association membership is empowered to pass, amend and revoke detailed, reasonable administrative rules and regulations, or "House Rules" necessary or convenient from time to time to insure compliance with the general guidelines of this Section. Such House Rules shall be binding on all Unit Owners, lessees, guests, and invitees upon adoption by the Board or Association.

The rules have been approved by a majority vote of the Association but not registered as part of the CC&R's. However, it has now been identified that one of House Rules is in conflict with the CC&R's. It is claimed that the House Rules supercede the CC&R's but I don't understand how that is possible since the CC&R's is the legally registered document.

Can you tell us which rules take precedence over the other? If the CC&R's takes precedence over the House Rules, then doesn't it take a change to the CC&R's and then re-registration in order to change them (rather than being able to alter them with a House Rule)?

- Michael

The CC&Rs take precedence over board-promulgated house rules. If there is a conflict between the two documents, the provision in the CC&Rs prevails.

Sincerely,

Margey

In 1965 a Development Company was formed in FL (***** County) and in that document there were restrictions (covenants) placed upon the small subdivision. Lots were sold and houses were built but in 1964 the company filed a voluntary dissolution. There has been no HOA or governing body since that time. In the original document it states that these covenants shall be binding upon the grantees of said lots and all persons claiming under them for a period of 25 years, after which time said covenants shall be automatically extended for successive periods of 10 years unless an instrument signed by a majority of the the owners of the adjoining property so owned by the grantor its successors or assigns, has been recorded agreeing to change said covenants in whole or in part. It would seem to me that dissolution would cancel any and all covenants unless some sort of governing body was formed to carry them out but would like an opinion. Thank you.

- J.

While the development company may have dissolved, that homeowners association is a distinctly separate entity and probably was not affected by the dissolution. The association may have been dormant all these years but still a viable organization. I suggest you consult with an attorney knowledgeable in Florida community association and corporate law for a specific response to your question.

Sincerely,

Margey

We live in a new subdivision of about 52 homes, 3 of which are still for sale by builders, and 2 or 3 lots of which are not buildable, so are still owned by developer. This means developer still has control of the HOA because our by-laws state that HOA turnover happens at 100% of lots sold, OR he decides to do so (he won't) or 7 years have gone by (a few to go).

Last summer as a result of angry homeowners hounding him with calls to finish the pool and clubhouse in a "swim community" which had been pool-less for the previous 2 seasons, and to provide long-promised financial statements to account for all the monies he'd collected, the developer finally hired a CMA, who is is a CAI member and new to the business. He has several of this developer's subdivisions, and the developer is his primary (if not only) client.

The CMA is supposed to be handling maintenance for the subdivision, and winterization of the pool and pool equipment/water lines was mentioned by homeowners to him in informal meetings. Bottom line, nobody winterized the pool under the CMA's watch; pipes recently burst in a freeze, causing extensive damage to the clubhouse, pool and equipment in the thousands.

The Association's insurance won't cover unless we can show there was a reasonable effort made to prevent this; pool company says it's not in their contract. The manager intends to use HOA funds -- what little there are from dues -- to pay for the damages; there is no reserve fund provided by developer. The homeowners feel he was negligent and he or developer should pay for repairs. The clubhouse and pool and lot aren't even common property yet, they're still deeded to the developer, and the pool never was officially "open" by county regulations, though it was used for a short time, because there were safety and other violations. So 3 years without a pool, going into the 4th, in a community that continues to sell itself as a "swim community". If these expensive repairs are undertaken soon, we'll have another pool-less season and possibly be hit up for additional assessments.

The residents/homeowners can't fire the CMA because he's contracted to the HOA which "IS" the developer and just one other person. It appears that if we bring legal action against the HOA or its agent, the manager, they can use what little HOA funds are available to defend themselves. There are other problems with the developer but this is the biggest right now.

What a mess! Any suggestions? Can't the sole Director (the developer) or the CMA ask their own liability insurance to cover this screw-up on his part? Under your link "Expectations of a Management Company" is listed " Monitor performance of maintenance contracts" and he clearly didn't do this properly.

- Concerned and Frustrated Homeowner in GA

As a homeowner, you may have the right to pursue recourse against the manager and/or the developer for negligence and failure to act appropriately in their role as fiduciary agents for the association. I suggest you first try filing a claim against the association's and developer's separate liability insurance carriers as well as against the manager's errors and omissions policy. You might also check the State of Georgia's website to determine if there is an ombudsman or agency that assists owners in community association-related disputes, or an agency that regulates Georgia developers. Another alternative is your municipality which may investigate the development to ensure that the builder has complied with building codes or provide dispute resolution services at no or low cost.

Ultimately, you may need to join forces with your neighbors to pool funds to hire a competent, knowledgeable attorney to help you resolve the serious problems you described.

Sincerely,

Margey

Our building has four units, two up and two down. Last year our downstairs neighbor filed a complaint siting the sound of our dogs on the floor was disturbing to him. We had to contact the local police twice due to his aggressive behavior. During one of the police visits one officer stayed upstairs making the dogs play, while the other waited with the complainer and listened. The official police report states the noise was minimal. In the first hearing, our association more or less took a neutral ground and stated that the noise and our efforts to control it were reasonable. We never got a letter as to the findings, but after repeated calls to ***** Management, we were told "we won and that the decision of the board was final".

Low and behold, we have now been notified that we must appear for another violation hearing. The same complaint from the same neighbor. On a side note, shortly after the first hearing our down stairs neighbor began to blast his sound system very loudly. We choose not to complain, feeling this was antagonistic, and the best approach would be to let him grow tired of it. One day after receiving our notice to appear, his loud sound stopped.

My questions are -- How can I protect my sense of peace. I feel harassed by the association-- it is being used as a tool by the neighbor. How can we get this to stop?

- Denise

While I normally recommend the judicial system as the option of last resort, after all efforts at an amicable resolution are exhausted, it may be the appropriate recourse in the situation you described. Try filing a complaint in Small Claims Court (or whatever the local jurisdiction is called) and hope that the judge will have a better solution than ends the acrimony between you and your downstairs neighbor. The judge may require you and your neighbor to present your issues to an impartial mediator who will work with both of you to reach a mutually agreeable resolution.

Sincerely,

Margey

I am the VP of our HOA (135 homes) since 2005 when I was voted in. In November of 2006, I found out that the President was using the HOA dues as her own bank. The treasurer & secretary both wanted out due to busy schudules, that left us. I was going to leave next but she begged me to stay and that is when I found out about the money problems. She was the only person with the checks and debt card and she bought $6700 worth of **** shirts and odds and ends for fundraising but never made more than the 2 deposits (one for $126 and the other for $82). She wiped the HOA out of over dues $8,000 in funds and now the homeowners won't pay there dues. Any ideas? We need help and don't know where to go. We have an acting President but the pressure is getting to him already. The money that I have collected is from the money off people selling there homes who have to be current and get a resale certifcate. She still lives here and has given us a check for $50 dollars. We haven't cashed it because we sent her a letter of intent with the amount she owes. She won't get back to us and court is the only way to go, but we have no money. Did she get away with this or can the HOA put a lien on her house??? Thanks.

- Lorraine

The former president of your association may have committed a crime by misappropriating community funds. First, contact your association's insurance agent to determine if fidelity insurance was in place during the period when funds were stolen. Hopefully, your efforts stop there and the insurance company reimburses the association for the missing funds while pursuing reimbursement by the former president.

If not, next contact your municipality's general counsel to determine if the municipality will file charges and attempt to collect restitution. If not, determine the maximum dollar amount permitted to file in Small Claims Court in your state. If the statutory limit covers your entire loss, click on the link that takes you to your local justice of the peace and file either an electronic or in person claim; you do not need an attorney in Small Claims Court. If this is not an option because the amount that was stolen exceeds the statutory limit in your state, consider retaining a collections attorney on a contingency basis; your association owes nothing unless the amount owed, plus collection fees, is collected. The attorney can advise you with regard to the possibility of filing a lien against the former president's home and suing her for a personal money judgment.

Good luck to you. The quicker you can collect the stolen funds, the quicker your association can move forward with its operational and administrative needs.

Sincerely,

Margey

I live on ******, NY. I have a single family home that is 2 years old. We also have an HOA for common grounds. The
board wants to sue the builder for things he did not do for the community. I don't want to sue the builder. Can the HOA force me or other people to sue? I am moving in June and I don't think the builder should be sued. Do I still have to pay?

- Dawn

Look to your association's governing documents and state statutes to determine if you have any say in your board's decision to sue the builder. Some states and documents require an affirmative vote of a specific percentage of owners before suing the developer; other states and documents empower the board to make the decision to sue or not.

Sincerely,

Margey

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I am the president of a 65 home HOA in NYC that has a private street. NYC provides us with water that is billed to each homeowner. Each homeowner has a water meter in their garage. NYC has fire hydrants in our complex as well as their water line that each home is connected to.

There is a water leak on the private street in front of one of the homes in our complex. The water department people told us that they will check out the leak. They also said that if it is the connection from the homeowners water line to the city water line - the HOA would have to get a private plumber to repair it. We are just a HOA, not a Co-Op or Condo. There is nothing in our By-Laws or CCRs about this. Is the Homeowner where the leak is occuring responsible for repair of this water line or the HOA responsible for the repair? According to our By-Laws, the homeowner is responsible for the sidewalk and landscaping in front of their home, the HOA is responsible for snow removal and the maintenance of the street, but not the sidewalks in front of the home. Water is coming up by the edge of the curb.
Thank you for all of the information you have provided us for many years! Please help us resolve this confusion!

- Alan

If your association's governing documents are silent with regard to maintenance responsibility for a specific component, look to New York state statutes to determine if there are any provisions addressing this issue. Additionally, the recorded plats of the property and each owner's lot should delineate common areas and the perimeters of each lot for ownership and maintenance purposes. If there is no relevant state statute, if the plats are unclear and if the board is authorized to pass regulations affecting the common and limited common elements, then the board could consider approving a policy resolution detailing maintenance responsibility for the water leak.

Typically, the association would not be obligated to repair water lines that serve only one home. Unless otherwise specifically mandated in the documents, the owner should be liable for the repair.

Sincerely,

Margey

We are a small condo complex of 22 units with 1-3 bedrooms (16 of 22 homeowners live on site). We currently need to replace our current H.O.A. management company as they have "outgrown" us. What are we looking at, as far as monthly costs, to obtain a "full service" management company? Where do we begin? We are mostly first-time homeowners. Please help!

- Michelle

Your local or nearby chapter of the Community Associations Institute has a roster of management companies, most of whom would be delighted to provide their expertise to your board and association members. Go to the Community Associations Institute website and click on "Chapters" to find one near your location.

Regard,

Margey

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In a two unit condiminium where the installer resides in the lower unit, can this installer mount a multi-element antenna [Yagi] on the roof fascia [facing board]? A preferred alternative would be on his fence.

- James

Condominium owners must comply with the OTARD Rule contained in the Telecommunications Act of 1996. Go to our "Links and Resources" page for a link to the Federal Communications Commission's (FCC) FAQ sheet on satellite dishes and antennas in community associations.

Sincerely,

Margey

Can you please explain what is meant by "Reserved Common Elements"? Our Declarations state that the relocation of boundaries between Units and subdivision of Units will not be permitted. However, our management company is interpreting that "Reserved Common Elements" means that the Board has the discretion to allow certain owners to expand their patios into the Common Area. I strongly disagree with this interpretation. I've always understood that Boards do not have the right to grant this type of encroachment. Comments please!

- Jen

In most situations, an owner who expands his patio beyond the perimeters detailed in his deed is encroaching on common property. Board members usually are not empowered to authorize encroachments by owners. I suggest you contact an attorney for a legal opinion on this issue before the board becomes embroiled in litigation by owners opposed to their neighbors' use of property owned by the association, in the case of a planned community, or by the owners in common, in the case of a condominium.

Sincerely,

Margey

Thank you so much for this website. I use it often and it has been very helpful in solving many of the problems that we have experienced living in a condo association.

Background: 33 unit condo in Illinois, age 30 years old, professionally managed for the last 2 years.

The new development next to our condominium is installing a fence. Our condo president has been approached by the developer to place a 6 foot tall fence to divide the properties. The fence will be entire length of our condo property and it will be installed along the driveway in the front of our building. The developer is asking for the fence to be placed on our condo property, two feet behind the dividing property line. The developer will pay for the fence. The developer is not offering to buy the property from our condo, he wants our condo president to grant him this easement.

Question: Does the condo president have the right to give away condo property without a vote from the owners.

Thank you for your time.

- Rose

Most governing documents for community associations do not empower the board or an officer to give away common property without consent of the owners and perhaps even all mortgage companies. Check your association's Declaration and Bylaws for wording addressing this issue, or urge the board to retain the service of competent legal counsel to ensure that the president does not create a legal morass by exceeding his authority.

It seems to me that the association is in the driver's seat in this situation. Your board can deny the developer's request, require him to install the fence along the property line, demand that the adjacent development record an agreement assuming all maintenance responsibilities for the fence, and/or negotiate a settlement payment for encroaching on your association's common elements (if the attorney opines that the board is authorized to approve the fence location on the association's property).

Sincerely,

Margey

I am the president of a newly elected board of directors of a property association (TEXAS) with approx 100 homesites on 2.5 to 10 acres. The major problem is that the past board (who were in office for 4 years) did not commit to enforcing restrictions and we currently have a wide range of violations, especially architectural in nature. Are we able to "grandfather" in what is existing and then start enforcing compliance from a specific date forward? Thank you for your guidance.

- Becky

Typically, the board has not waived its right to enforce the provisions of the governing documents by failing to require compliance in the past. The reasonable approach is to grandfather violations when appropriate, but require new owners of those homes to bring the violation into compliance before closing on the home, or to require current owners to resolve the violation when the useful life of the component expires. For example, if an owner installed a 10' fence when only a 6' fence was authorized by the governing documents, the fence must be reduced to 6' either when the home is sold or the condition of the fence deteriorates to the point that it requires replacement.

Be sure that the board crafts a policy resolution detailing the terms of the grandfather consideration, then obtains approval from competent legal counsel before implementing the policy.

Sincerely,

Margey

Yesterday, my next door neighbor was hanging and hammering drywall on his wall. It got so bad that I almost thought that my wall would cave in. My rules and regulations states "Owners/Occupants shall exercise reasonable care to avoid creating excessively loud or disturbing noise. This includes the playing of musical instruments, radios, stereos, televisions, power tools, and other instruments or devises in such a manner that may distrub other unit occupants". Also "Unit renovations may be made between 9:00 AM-5:00 PM. Is this breaking the rules and regulations? When I first moved into my condo complex the residents weren't much into renovations and now it's a big thing. Help.

- Mary

I encourage you to chat with your neighbor regarding his noisy renovation work. Perhaps that's all it will take to resolve the problem, and you've made a new friend in the process. If your neighbor ignores your request to honor the hours in which work is permitted, ask your board of directors to intercede and enforce your association's rules.

Sincerely,

Margey

Your website is great.

I couldn't find an answer on your site, but I don't think that my situation is all that uncommon in California, especially in the Bay Area.

I live in California in an HOA. The only common area is our pool. Guests of owners may use the pool for a nominal fee per visit.

Children of owners in the HOA may swim on a swim team, and guests of owners may swim on the team. The swim team is operated by a separate board. The swim team uses the HOA pool at certain times during the day. In addition to the swim team registration fee, which all swim team members (owners and non-owners) pay and which fees are not allocated to the HOA, swim team guests (non-owners) pay a lump sum guest fee based upon an estimate of the number of practices and swim meets.

Our HOA board is considering a change in the rules to allow the "swim team guests" to use the pool at all times that the pool is open, not only at swim meets, and to visit the pool without their sponsor, unlike the non-swim team guests. The “swim team guest fee” will not be increased and again will be an estimate of the number of visits to the pool.

So my question is - can the HOA board implement this rule change? It is bothersome that the homeowners are paying for the pool, but non-homeowners will be able to use it anytime? The "swim team guest fee" is far less than the annual HOA assessment (and our only common area is the pool). It is also bothersome that swim team guests are being treated differently than non-swim team guests.

Thank you.

- Margaret

I would urge your board to consult with both an attorney and a CPA before changing the rules regarding use of the pool. There could be serious tax and legal implications regarding such a decision.

Your board must, at all times, consider what is best for the community and its members when making decisions that have far-reaching consequences. If both the CPA and the attorney agree that opening the pool to non-members is a valid board action, I would still urge the board to first conduct a survey to determine if the owners agree with the proposal. If there is significant dissent among the members, I recommend that the board not pursue the issue.

Sincerely,

Margey

Our HOA has a rule that units cannot be rented, and are supposed to be owner occupied. A neighbor that lived across the way from me moved from one unit that she rented, and now moved into the unit below me and again is renting. I spoke with the owner of the unit where these people used to live. She told me that they are not related to the new owners that purchased the unit below me.

I complained to the HOA about the noise, loud music and beer cans lined up outside the unit below me. The HOA Management told me that the owners below told the Management company that the tenants below are "siblings". Which I know they are NOT. They basically lied to the Management company so they don't get in trouble for renting this unit out. What can I do to stop them from renting out this unit???

- David

Your association or municipality may offer a dispute resolution process that provides for amicably resolving disagreements without the need for litigation. If no such service is available, consider filing a formal complaint in writing with your management company/board of directors, requesting that a hearing be conducted to determine the relationship of the renters. If the board is reluctant to proceed, you may need to do your own investigation to determine if, indeed, the renter is related to the owner.

Sincerely,

Margey

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