Ask the Expert

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

Problem Board Members

I live in a condo in Connecticut. The condos were built in 1973 and fall under some act of the 1950's or 1960's.

Our By-laws SPECIFICALLY state that the annual meeting and voting of new board members is to be held on an exact date in March. About 8% of our residents go to Florida for the winter and return early May. There have been times when the Annual meeting is held in May, however, we do have proxies for the snowbirds. 3 of 5 members on our board are incompetent. Their term expires in March 2008. 99% of the association wants them OUT ASAP. However, the 3 members are refusing to hold the annual meeting in March, and are ignoring our By-laws. Instead, they want it held in July/August. They have said they don't want to be voted out in March, they want to stay on as long as possible. How can we force the meeting to be held in March if that is what our by-laws specify? We have an open meeting coming-up in a few weeks about insurance, landscaping etc.

- John

Not holding the annual meeting when mandated by your association's governing documents results in an invalid meeting at which any decision is unenforceable. It sounds like your board members could use an opinion letter from a competent attorney knowledgeable in Connecticut community association law that advises them in no uncertain terms to comply with the terms of your association's bylaws. Failure to do so could result in their personal liability in the event an owner sues the board for refusing to obey the unambiguous provisions in the governing documents.

Sincerely,

Margey

We have a board member who tendered her resignation via email, stating that her formal letter of resignation would follow as soon as possible. Five days later, armed with the information that 2 of the 4 remaining board members wished to have her remain on the board, she sent another email saying that unless the majority of the Board voted to accept her resignation, she would like to rescind her resignation. The remaining board is tied 2-2 on the issue. Our bylaws do not address this issue. So, is she allowed to be the deciding vote? Thank you for your help.

- Brandi

Since the board member rescinded her resignation before it was accepted, she is still a member of the board.

Sincerely,

Margey

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How many condo associations would you estimate there are in the United States?

- Shaun

The Community Associations Institute estimates that there are approximately 300,000 community associations in the United States. I don't have a breakdown just for condominiums.

Sincerely,

Margey

Our association is all owner-board rep. with only a couple of units the builder needs to sell. We haven't legally transitioned yet and it may take awhile. The association is 5 years old and we haven't had an in depth audit yet. The Management company says it should be done after the transition. CAI recommends annually or every other year. Thoughts?

- Tina

There's a difference between a financial audit and a transition audit. If your association's governing or state statutes require an annual audit of the books and records, then an audit must be conducted every year. Typically, audits are performed in conjunction with preparation of the annual income tax return.

The transition audit, which includes an analysis of the physical condition of the common elements as well as the financial status of the association, should be conducted soon after control of the association is transferred from the developer too the owners.

Sincerely,

Margey

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We recently held our annual meeting for election of board of directors. Every homeowner had ample time to submit there name with a self-addressed envelope (along with their qualifications) to our management company. The day of the meeting our property manager was called away and we had a substitute fill in. Before the meeting a homeowner asked if he could write in a name not on the ballot. The substitute property manager told this homeowner to bring the name up for nomination on the floor during the meeting. This did not happen. After the votes were cast and the meeting adjourned a homeowner who was upset asked for the vote total. Then the 3 write in votes were considered illegal according to this substitute. Then the homeowner who was nominated said that they did try to e-mail their request to be on the ballot but they had trouble with there server that day. This homeowner did nothing after that and then stated that they did not want to be on the board anyway. However, a homeowner who did not get enough votes said the election was illegal and was backed by this substitute. They made a motion to recall the votes. They got a second and passed it. All of this took place after the meeting was adjourned and the meeting was never re-opened. Does our first vote count? The board of directors wants me to seek legal counsel on this.

- Jim

Based on the information you provided, it would appear that the election was valid. Once the meeting was adjourned, no formal business could be conducted. However, since this issue may become a contentious, divisive topic among the homeowners, I urge you to follow through on your thought to obtain legal counsel.

Sincerely,

Margey

We have a member that is consistently behind in their association dues. They have a balance due. How do we file a lien? The property is currently up for sale so time is of the essence. We would prefer to not have to hire an attorney. We are in Washington state.

- Theresa

Many states require that any action affecting property ownership be executed only by attorneys or title companies. Additionally, filing a lien creates significant potential liability for the association. It's best to retain the services of a good attorney knowledgeable about community association law, and not expose the association -- and the board of directors -- to expensive and time-consuming litigation.

Sincerely,

Margey

I am a member of the Board of Directors that was recently voted on by the homeowners. Since then, many homeowners have been complaining that the Association should have never been passed over to the homeowners since the development hasn't reached 75% build out. We are located in Pennsylvania and many homeowners are concerned that we violated the state law, the Pennsylvania Planned Community Act. Can the developer turn over the Association to us legally in Pennsylvania without meeting the 75% buildout requirements as mentioned in the Planned Community Act?

- Robert

Here's a response to your question by Ms. Gail Van Dyke, AMS, PCAM, of Mid-Atlantic Management Company headquartered in Plymouth Meeting, Pennsylvania:

"It is not common practice for a Developer to turn over control of the association to the owners before 75%; however, it does happen. The Pennsylvania Uniform Planned Community Act (UPCA) sets the time when the developer MUST transition the association to homeowner control. Nothing prevents them from taking this action before the required 75%. While some Owners may be concerned because the community is not completed, it is really a benefit to the Association, as you are now in control of the board's actions and your association's funds.

Transition is a process that begins with the first settlement and ends when an agreement is reached between the community and the builder that the community is substantially completed in accordance with the approved plans. Now that you are in control, you should seek the assistance of professionals such as a management company, attorney, Township officials and an engineering firm to assist you in the final punch list and negotiations with your Developer. Additionally, your new board should seek training and education to ensure understanding of their role and fiduciary responsibility to the association and its members."

Sincerely,

Margey

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Hello again! I am in California. Do you have a representative in the state of California or Riverside County? I have not been successful in finding help. Saw your website and perhaps you can assist me. I already sent an E-mail few minutes ago. Thanks.

- Leyra

Yes, indeed, there is an Associa member company located in Riverside County:

Ms. Lisa Locke, CEO
Equity Management
42430 Winchester Road
Temecula, CA 92590
Tel: 951-296-5640
Fax: 951-296-5524
www.equitymgt.com

Sincerely,

Margey

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Hello! My association is in California, gated community with four gates access. I, and three other families live just in front of an inbound/outbound gate. Unfortunately, the entrance front slope of my house has been for over three years the spot to place without my consent, all the signs the association board or realtors feel is convenient to them. I have raised all possible complaints to the association and property management company but the only thing they did was to stack one sign on top of the other one taking away the view of my house which greatly affected my intention of selling my house few months ago. On the other hand, the other three families also living in front of the gates, signs were posted outside of the gate boundaries. These families' homes do not have the inconvenience of signs on their front yard.

Please advice me what could possible I can do to have the same rights and privileges the other families have? Thank you.

- Leyra

If the deed to your home shows 1) that you own the property on which Realtors and the association place signs, 2) that the land in question is not an easement maintained by the association, and 3) that the governing documents for your association do not indicate that the association has the authority to place signs on the property in question, then you should send a certified letter to the board and to your local Board of Realtors demanding immediate removal of all signs and refraining from placing new ones on your lot. If the sign placement continues, you could file a claim with your local jurisdiction's Small Claims Court and ask the judge to enforce your right to your property.

Sincerely,

Margey

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