HOAleader.com - Tip of the Week - March 6, 2015
Published: Fri, 03/06/15
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This HOA Board May Not Be Asking the Right Questions About a Rule Change
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In this week's tip, we offer an HOAleader.com reader guidance on whether
changing governing documents and grandfathering some owners' situations
creates different "classes" of owners. Our experts say that may not be the
most pressing question for our reader.
Our reader notes that his governing documents have for more than a decade
permitted owners to park RVs in their driveway or side yard. The reader wants
to know if the board can allow existing owners to keep their current RV parked
on the driveway but require any new owners' RVs to be parked on the side yard or
off site.
In this case, the owners may have a right to park RVs that the reader's
association can't interfere with.
"When I read the reader's question, my thought was that this board is taking a
lot of liberties I don't think they have," says Corbin Seti, senior vice
president of community and lifestyle services at FirstService
Residential in Las Vegas. "The reader's CC&Rs state RVs can be parked in
driveways and in side yards. So I don't know that the board has the right make
these changes without a vote of the owners. In different states, there will
be different laws. But it doesn't seem to me that this board has the right to do
that with just a board vote."
Elizabeth White, a shareholder and head of the community associations
practice at the law firm of LeClairRyan in Williamsburg, Va., agrees and
explains the legal issue at stake for these owners. "There are legal
questions that are going to be state driven, and that's whether there's any
vested property right in a covenant," she explains. "Most states allow you
to amend covenants in accordance with your documents' amendment
provisions."
However, notes White, an RV is movable, which makes the issue more
complicated. "If something is a fixture, like a house, you'll have a real
estate right in that," she says. "But an RV is movable, so it wouldn't meet the
legal definition of an improvement of something attached to the real
estate. So it would be one thing to say, 'We're changing the covenants for
house size.' Owners would have a vested property right in their house size.
But an RV typically wouldn't be considered a covenant property right. So the
issue is whether the courts in that particular state would see an economic
interest in an RV to be a real estate property right."
That's not the only issue to consider. Find out the ultimate question to ask
in our new article:
http://www.hoaleader.com/members/1144.cfm
Best regards,
Matt Humphrey
President
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Recent articles posted at HOAleader.com:
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Potential HOA Rule Change on RVs May be Harder Than Reader Realizes
An HOAleader.com reader asks, "Our CCRs have allowed RVs to be parked in
driveways or side yards since 2002. Prior to that, they were silent on the
issue. We're seeing more and larger RVs as well as boats, jet skis, etc., and
the woodsy, natural look of the neighborhood is being compromised.
"We'd like to ban all new RVs in the neighborhood or allow parking only on side
yards. It's our understanding we can grandfather the existing vehicles,
but not the existing owners. That is, an existing owner could keep their
current RV parked on the driveway, but if they wanted to buy a new RV, they
would have to park it on the side yard or off site.
"The problem is many lots don't have adequate side yards, so they would have
to park their replacement RV offsite. Can we grandfather an owner's right to
park any RV until they move or would that introduce a separate class of
members? Can someone please explain member classes?"
Here we address the challenges raised by the reader's potential changes.
Click here to read full article:
http://www.hoaleader.com/members/Potential-HOA-Rule-Change-on-RVs-May-be-Harder-Than-Reader-Realizes.cfm
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Our HOA Board Appointed the Wrong Person. Can We Start Again?
In this week's tip, we answer a reader's question about whether a board that
appointed a new member--and sorely regrets it--can dis-appoint that
member.
"The simple answer is no," says Bob Kmiecik, a partner at Kaman & Cusimano
LLC, which represents associations throughout Ohio.
Click here to read full article:
http://www.hoaleader.com/members/Our-HOA-Board-Appointed-Wrong-Person-Can-We-Start-Again.cfm
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HOA Board Wants a Do-Over: Can It Rescind a Board Appointment?
An HOAleader.com reader asks, "Our five-person HOA board comprises four
cooperative members and one individual who thrives on conflict and
aggressive one-on-one sessions of argumentative, vicious
confrontation. She is a past president who has been responsible for driving
other officers into vacating their positions in retreat, including one
past president, our secretary, and others in her wake. How can she be removed
from her position on the board so we can enjoy functioning as a cooperative
unit? I should add that she is an appointed member of the board who was brought
back after she quit her presidency in a fit of rage during one of her
'discussions.'"
Click here to read full article:
http://www.hoaleader.com/members/HOA-Board-Wants-DoOver-Can-It-Rescind-Board-Appointment.cfm
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Are HOAs Private Clubs under the ADA?
A reader has asked if HOAs qualify as private clubs under the Americans with
Disabilities Act. That would mean they're subject to the act's provisions,
among them, things like adding features to facilities to ensure they're
accessible to disabled.
Our reader says he's seen reports suggesting that only 501(c)(7)
organizations (social and recreational clubs) are exempt from the ADA, but
also reports that courts judge private-club status on the basis of members'
control of an organization, membership requirements, and "substantial"
funding from members. "That sounds like an HOA to me," says our reader, who
admits he's not a lawyer.
Click here to read full article:
http://www.hoaleader.com/members/Are-HOAs-Private-Clubs-under-ADA.cfm
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