Homeowner's Rights
And Duties
|
|
A common challenge for community associations is determining how to create
and maintain a home environment that ensures all owners' needs are met and
enhanced by living in a community association. Good management of a small
corporation is relatively simple if proper care and thought have been given
when creating the community of homeowners. Balancing individual and collective
rights and duties is a major component in creating the ideal lifestyle sought
by community associations. Individual rights and duties arise from homeowners'
expectations of privacy and control over their homes. Collective rights and
duties not only apply to a homeowner's individual needs, but also address
the process for initial as well as future growth of the association at large.
Homeowners derive rights from five principal sources. First, the
most fundamental rights are derived from the Constitution. The
Bill of Rights (the first ten amendments to the United States Constitution)
guarantee rights such as freedom of speech, freedom of religion,
due process of law, and freedom from governmental search and seizure.
Rights are also provided from federal and state laws, local ordinances,
and also defined by court decisions. More specific to community
associations are the various residential community association
statutes (provided in state law), which regulate the creation and
operation of the association itself - - commonly reflected through
what are known as the community's governing documents. Governing
documents consist of – Master Deed, Bylaws, and Covenants – and
they enunciate rights and responsibilities for that particular
association. In addition, associations usually develop practical
rules and regulations governing use of the property itself.
Other sources to assist in educating homeowners about their rights
and duties are professional trade and business associations, such
as the Community Associations Institute and the American Institute
of Certified Public Accountants, both of which have developed recommended
principles and procedures by which community associations should
operate. Social codes have also evolved to protect people from
abusive and unfair treatment and to guide how they should relate
to others.
Sometimes, however, members of community associations become
dissatisfied with how their association is operating and may not
know where to turn for assistance. In most cases, there are no
government agencies that can assist a disgruntled owner who may
have concerns with their homeowners association. Typically, the
Attorney General's office in most states does not become involved
in an owner's issues with its community board of directors. These
disputes instead must often be resolved by arbitration or through
the court system.
A community association is an organization established to govern
a private community. Typically it owns and manages common property
for the owners of private homes, town homes and or condominium
units. By purchasing a lot and/or home, an owner automatically
becomes a member of the association and remains as such until his/her
property is eventually sold to another party.
The primary purpose of the association is to protect and preserve
the value of the privately and commonly used property. In furtherance
of that goal, there are various restrictions such as fence requirements
and guidelines; or limitations on the number of cars allowed in
the driveway; or how many and what type of pets are allowed, to
name but a few. These rules may conflict with the desires of an
individual owner but exist for the general good of the entire community.
In addition, the association may have the responsibility to repair
and maintain portions of the community, such as roads, roofs, and
recreation facilities.
The individual owner in a community association has the opportunity to become
involved and participate in the on-going affairs of the community, as well
as the responsibility to assure the homeowners association operations conform
to its by-laws and declaration.
Typical problems
Do you ever question whether your association is indeed active
and at work protecting your interests? Perhaps you never receive
notices of meetings, nor are you given a financial statement which
explains how the assessment you pay is being spent. Perhaps repairs
are neglected or a nuisance created by your neighbor is allowed
to continue. Perhaps one owner has been allowed to build a deck
and another owner refused permission to do the same. Does any of
this sound familiar?
Get the facts
The best and most efficient way to begin dealing with your association
concerns is to understand what your rights are. There are two areas
of research you should complete.
- Check your association's governing documents. Copies of these
documents should be available from the board of directors,
your management company, or filed with the County Clerk's Office.
These documents will contain the following information:
What the association is responsible for, how the
declaration can be amended, how members of the board
of directors are elected, how members of the board
of directors can be removed, the powers and duties
of the board of directors, how annual membership meetings
are called, how special meetings are called and what
remedies exist when a homeowner defaults on his or
her obligations including maintenance charges as well
as your obligation as an owner and more.
- Review the Not-For-Profit Corporation Law as well as the
Property Code for your particular state. Both contain such
information as:
How the by-laws can be amended, a meeting of the
members is to be held annually, members may call special
meetings, members may demand to see the corporate books
and records of accounts, directors may be removed with
or without cause and many other important provisions.
Resolving the problem: first approach
If the board of directors is not complying with the association's
documents, you should point this out (in a board or general meeting
and/or in writing) in a tactful and courteous way, expressing the
expectation for the matter to be corrected. Sometimes this simple
method is all that is needed to solve the issue. The letter should
be factual, brief, and never hostile. Retain copies of any letters
you send and notes of telephone conversations (date, time, who
called whom and a synopsis of the discussion) in case the matter
is not quickly resolved.
An attempt to influence the board is always more persuasive if
it is presented by a significant number of members. If your problem
is one that others are affected by, it may be worth organizing
the other members to work together on the issue. If you do, and
the attempt to change the situation is not successful, the organized
group can always seek to elect new directors at the next annual
meeting.
Retaining a lawyer
If your efforts to resolve your problems with the board fail,
you may individually want to retain a lawyer. It is a good idea
to select someone with experience in handling association problems
as such a professional may offer further insight that you have
overlooked. Most lawyers will attempt to resolve any matter through
negotiation before considering litigation, as litigation is costly
and usually lengthy. Litigating against the board of an association,
people with whom one shares a neighborhood, can be very unpleasant
and should be your last resort.
In Conclusion
Remember, members of an association board are usually your neighbors
and/or fellow property owners who are serving without compensation.
They generally want to resolve problems and keep peace in the community
and simply need your understanding and patience as they try and
work for the good of the community.
If serious problems arise which the board is not addressing,
it is your obligation to attend meetings, review the rights and
duties of your association membership, and seek resolution from
the board of directors. Most often such problems can be resolved
relatively simply if members educate themselves of their rights
and duties first, justify their needs to the board, and then seek
resolution in a reasonable and organized manner.
Vicki Ward
PCAM®, CMCA®, AMS®
President
Principal Management Group of Houston
Houston, TX
|
