HOAleader.com - Tip of the Week - October 16, 2020
Published: Fri, 10/16/20
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How a Temporary Waiver Here and There May Undo Your Condo/HOA Governing Docs
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In this week's tip, we address a Wall Street Journal report that some HOAs are waiving restrictions—but only temporarily—against above-ground pools due to COVID-19.
Sounds accommodating, with some community pools closed. But this also seems like a hard genie to put back in the bottle. So are temporary waivers wise?
Before we talk about pools specifically, let's back up. When should you consider waivers? One of our experts has the following advice, though other experts might be less restrictive. The key is to ask your own legal advisors.
"When COVID hit, we got a plethora of questions from existing association clients," recalls Joe Wloszek, a member at Hirzel Law in Farmington, Mich., which represents more than 100 community associations; he lived in a condo for seven years and now lives in an HOA. "Can we waive restrictions? For instance, if someone is a medical professional, can we waive restrictions on campers or RVs?
"The analysis we did is this," he explains. "If there's a prohibition in the governing documents against above-ground pools, for example, we wouldn't recommend the board knowingly violate the governing documents. That opens the board to breach of fiduciary duty claims. If there's nothing else in the documents that allows flexibility in that regard, our advice is that it's not a prudent thing to do.
"I recognize that approach might be harsh," says Wloszek. "But if you want flexibility, the method to achieve that is to amend to give the board the flexibility. It's not easy to amend documents, but this is a great time for boards to look at their documents and ask: Do our restrictions actually help or hurt?"
That's also the recommendation of Bruce Masia, LCAM, the Broward/Palm Beach County, Fla.-based vice president of the southeast region for KW Property Management. "I haven't seen this exception be granted, but my recommendation is to not make exceptions to your rules," he states. "Making exceptions to your rules and regulations and declaration is only going to get you in trouble down the road.
"After you do it, homeowners will say, 'You did it that time, why not this time?'" he predicts. "I'd stick to your rules and regulations. Yes, we're in unprecedented times, but advise your homeowners to get a blowup pool instead of an above-ground one."
Double check all the provisions in your documents. Other provisions you're not thinking of may give you authority to act on these requests. Read more about those, and get tips on how to do a waiver properly if you're going to do it, in our new article: https://www.hoaleader.com/members/4207.cfm
Best regards,
Matt Humphrey
President
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Recent articles posted at HOAleader.com:
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HOAs Waive Restrictions on Above-Ground Pools--Temporarily
The Wall Street Journal is reporting that some HOAs are waiving restrictions--but only temporarily--against above-ground pools due to COVID-19. Sounds accommodating, with some community pools closed. But this also seems like a hard genie to put back in the bottle. Are temporary waivers wise? Here, we ask our experts.
Click here to read full article:
https://www.hoaleader.com/members/HOAs-Waive-Restrictions-on-AboveGround-PoolsTemporarily.cfm
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Geico's HOA Cynthia Ad: What Your Board Can Learn from It
Have you seen it? Geico is ribbing you and your colleagues in a new ad it calls HOA Cynthia. It's funny, in part because there's some truth to it. Some board members take their jobs too seriously. But while we chuckle, let's also ask a serious question: What can we learn from a national ad that pokes fun at association board members?
Click here to read full article:
https://www.hoaleader.com/members/Geicos-HOA-Cynthia-Ad-What-Your-Board-Can-Learn-from-It.cfm
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Why Your Condo/HOA Should Be Ready for Key People to Disappear (Plus, We Have a 5-Step Plan)
In this week's tip, we begin making the case that, if you don't already have one, your community needs a continuity plan. What do we mean by that? One of our experts recently suffered the loss of a community's president to COVID-19. It was a sad loss and one made more difficult because the community had done no planning for the what-ifs. What if a leader suddenly becomes unavailable to serve? Are there documents and information in that leader's possession others will need? If so, how will you gain access to them?
Click here to read full article:
https://www.hoaleader.com/public/Why-Your-Condo-HOA-Should-Be-Ready-for-Key-People-Disappear-Plus-We-Have-5-Step-Plan.cfm
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Group Home Must Be Accommodated By HOA, Federal Court Rules
A federal court has held that an HOA can't penalize a group home for sober living for violating its use restrictions regarding residential use, noise, and parking. Instead, the HOA must provide reasonable accommodations. Here, we explain the case and ask our experts to sort out the ramifications for HOAs.
Click here to read full article:
https://www.hoaleader.com/members/Group-Home-Must-Be-Accommodated-By-HOA-Federal-Court-Rules.cfm
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What to Have in a Your Condo/HOA Communications Policy
In HOAleader.com's July webinar, "How to Prevent Today's Climate of Tension and Anger from Taking Hold at Your Condo or HOA," expert panelist James McCormick recommended that condo and HOA boards create a communications policy. We followed up with him for more information, and we checked in with other experts to find out whether they also recommend their clients create such a policy. Here's what we learned.
Click here to read full article:
https://www.hoaleader.com/members/What-Have-in-Your-Condo-HOA-Communications-Policy.cfm
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