HOAleader.com - Tip of the Week - June 8, 2013
Published: Sat, 06/08/13
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The Possibility of the Lawless HOA
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In this week's tip, we discuss an Alaska reader's question about
whether it's necessary for her HOA to own common property for it
to fall within her state's HOA statute.
The short answer? It's possible the lack of common areas takes
this HOA outside of the Alaska statute. But that may not be the
right issue to focus on.
"In California, the definitions for common interest developments
are in Section 1351 of the civil code. CIDs can be an apartment
project, a condo project, a planned development, or a stock
cooperative," says James R. McCormick Jr., a partner at Peters &
Freedman LLP in Encinitas, Calif., who represents associations.
"CIDs must have some component in common, like property owned in
common or property owned by the association. For planned
developments, if the association has the ability to lien to
collect assessments, the common ownership can be an easement
also."
However, the owner who contends the HOA doesn't fall within
Alaska's HOA statute is making a general argument that doesn't
jibe with general condo law. "My first thought is that from a
common property ownership standpoint, like a condo, the condo
association would never own any property," explains Dennis J.
Eisinger, a partner at Eisinger, Brown, Lewis & Frankel PA in
Hollywood, Fla., who represents more than 500 condo and HOA
associations. "Common areas are owned by owners in undivided shares.
"Also, under our HOA statute in Florida, the owner's argument
that the statute doesn't apply would be completely untrue," adds
Eisinger. "Our HOA statute doesn't say anything about there having
to be a common area. If this situation were in Florida, the HOA
statute certainly would apply to that association. I have no idea
what the Alaska common interest ownership statute says, so this
is just my speculation. But my guess is the statute applies to
communities even if you have no common property. You could still
have set up the association for aesthetic issues. I don't see
how that issue could be relevant."
Even if this HOA doesn't fall within the state's HOA statute,
it's subject to other rules and laws. To find out more, check out
our new article: http://www.hoaleader.com/members/858.cfm
Best regards,
Matt Humphrey
President
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Recent articles posted at HOAleader.com:
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What Law Governs This HOA? Discussion Forum Follow-up
Here our experts answer several general questions that may help readers
nationwide: Does the presence or lack of common areas affect whether your
state's statute governs your HOA? Is it possible there's no statute that
governs your HOA?
Click here to read full article:
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Are You Stunting Energy Efficiency at Your HOA?
In this week's tip, we discuss whether HOAs should be more receptive to
owners' plans to boost energy efficiency in their homes.
Click here to read full article:
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What Should Be Your HOA's Role in Owners' Energy Conservation?
An HOAleader.com reader, Geoff Steele, says home owners can improve their
energy conservation. Why is that an HOA issue? Governing documents may
restrict or prohibit the installation of energy efficient systems for
aesthetic reasons. Here we discuss trends in how HOAs are dealing with these
issues.
Click here to read full article:
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HOA Elections: What To Do in a Tie Vote
In this week's tip, we untangle how to proceed when an election ends up in a
tie."We have a very specific election process for condominium and
cooperative associations in Florida," says Lisa A. Magill, a shareholder
and association attorney at Becker & Poliakoff PA in Fort Lauderdale, Fla.
"We also have a governmental agency (the Division of Florida Condominiums,
Timeshares and Mobile Homes) that has the authority to govern over election
disputes for condos, co-ops, and HOAs."
Click here to read full article:
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What Happens If Your HOA Election Ends In a Tie?
An HOAleader.com reader asks, "At our annual meeting we had a tie. We were
voting for three directors to fill the board vacancies, and two candidates
received the most votes, but there was a tie between two candidates for the
third seat. How is that settled?" Here we discuss the general issue of how to
handle a tie vote. We also address who has the authority to invalidate a
ballot.
Click here to read full article:
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