HOAleader.com - Tip of the Week - July 26, 2019
Published: Fri, 07/26/19
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This HOA Board May Be Damned If It Does and Damned If It Doesn't
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In this week's tip, we answer an HOAleader.com reader's question over a true conundrum.
The simple explanation is that there's speeding, and some owners want to install speed humps — at their own cost — to protect kids. However, other residents really don't want the humps.
Is this a no-win for the board?
Just to be clear, our experts need one important fact before they can say definitively what they advise.
"The first thing that came to mind was — unless I missed it — the question of whether the road is private or public," asks Zuly Maribona, LCAM, a vice president at KW Property Management who leads the company's Region 2 office headquartered in Bonita Springs, Fla. "Just because they're small doesn't necessarily mean they're responsible for the roads. In small communities, it would be unaffordable for the community to handle road maintenance. So these might be public roads, and they'd have to seek permission from the agency that governs them to make any changes."
If the roads are private, our legal experts don't necessarily think this board is bound to add speed humps. "I don't know if they have to allow this," asserts Elina Gilbert, a shareholder at Altitude Community Law in Lakewood, Colo., who's specialized in community association law for 19 years. "Though it's not stated, it sounds like the roads are common elements — that the association owns the roads. If they're public, the association can't do this because it's not the association's road.
"In Colorado, the board has the sole discretion as to how common elements are going to be maintained," adds Gilbert. "If the board says, 'Yes, you're offering to pay; however we don't think they're in the best interest of the community because studies show they can cause damage to cars,' I think they have the discretion to make that decision.
"I've seen other, similar situations in which owners say, 'We really want this improvement, and we'll pay for it,' and the board says no," recalls Gilbert. "That usually gets upheld in court based on the business judgment rule. Unless there's no reasonable explanation for the board's decision, courts defer to the board."
It also may be detrimental to add speed humps for another reason. "I'd also think about emergency vehicles and how this move would affect life safety of all the residents there," says Maribona. "Would we be impeding emergency vehicles getting in and out of the property? What's their opinion on the matter? I've seen emergency responders be against the installation of speed humps at other communities, or at least they didn't like it."
But isn't the board now on notice that there's a risk to children? Then, if a child is harmed by a speeder, could the board be held liable for not having done enough to prevent that?
Find out what our experts say on that front, and hear about alternatives to speed humps, in our new article: https://www.hoaleader.com/members/3958.cfm
Best regards,
Matt Humphrey
President
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