HOAleader.com - Tip of the Week - September 13, 2019
Published: Fri, 09/13/19
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When a Condo/HOA Owner Essentially Says: You’re Not the Boss of Me!
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In response to an HOAleader.com reader’s seemingly simple question on Florida’s HOA statute governing architectural improvements, we address a common claim from homeowners in this week’s tip: If our governing documents don’t specifically say I can’t do something, how can the architectural review committee or board prevent me from doing it?
In California, this isn’t really an argument on which owners can hang their hat. “I’ve had people say this,” notes Susan Hawks McClintic, co-managing shareholder and the chair of the community association transactional practice group at the law firm of Epsten Grinnell & Howell in San Diego. “We don’t have much of an issue with it because generally our CC&Rs pretty much all say that you can’t do something architecturally unless you get prior approval.
“Usually, there’s general language that says the board or ARC will look at the request for certain criteria — things like the requested modification must fit with the community — and that gives them so much latitude,” says McClintic. “It’s going to be a rare situation where, even if something isn’t prohibited, that someone could do something that’s outrageously inconsistent with everything else. For 99 percent of our clients, owners have to go through the approval process.”
In New Hampshire, the answer truly does depend on the precise language of the governing documents. “Here, if the documents say that nothing can be done with regard to architectural modifications, usually meaning the exterior of the building, without the approval of the architectural committee, then it can’t be done — period,” explains Robert E. Ducharme, founder of Ducharme Law in Stratham, N.H., who specializes in representing community associations.
“However, if the documents list the things that can’t or can be done, then it’s an open question as to what’s not mentioned,” he adds. “Owners can do whatever they want if it’s not in direct violation of the documents, and the idea is that they should act like the adults they are. At the same time, if something isn’t directly addressed, the board can make rules that address those gaps. The common example is drones. More boards today are coming up with rules on how high drones can go up, the times they can be flown, and so on.”
But our reader’s question raises broader issues, particularly how governing documents fit in with various laws. Find out more in our new article: https://www.hoaleader.com/members/3978.cfm
Best regards,
Matt Humphrey
President
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HOA Checklists: Your Road Map for an Entire Year of Homeowner Association Operations
This report is intended to be your road map for an entire year of operations that you begin using today and turn to for years to come. It provides you with checklists compiled by our editorial team with substantial input from experts on HOA operations and management from across the country to ensure you're steering your association in the right direction and not letting crucial issues slip through the cracks.
Click here for the special report:
https://www.hoaleader.com/public/Checklist-Special-Report.cfm
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Recent articles posted at HOAleader.com:
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HOA Reserves and Other Funding Options: Tips to Be a Smart HOA Money Manager
Watch this information-filled webinar led by three community association experts - one a manager, one a lawyer, and one a reserves analyst. After just one hour, you'll know the HOA industry's best practices when it comes to money matters at your HOA.
Click here for the webinar:
https://www.hoaleader.com/products/smart-hoa-money-manager-hoa-reserves-b.cfm
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What to Do When a Condo/HOA Board Member Breaches the Duty of Confidentiality
Our experts talk a lot about board members' duty of confidentiality, but what should a board's process be for handling a board member who actually breaches that duty? A real-life example isn't from an HOA but another nonprofit, though a similar situation could easily arise at a condo or HOA. The board is considering a gift of property from a member who is terminally ill. The board has just begun its due diligence to figure out the legal and financial issues accepting the gift would raise. It hasn't mentioned the gift to its members yet because it has little concrete information to share, and disclosure might reveal a member's health condition.
Click here to read full article:
https://www.hoaleader.com/members/What-Do-When-CondoHOA-Board-Member-Breaches-Duty-Confidentiality.cfm
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Condo/HOA Governing Documents That Go Too Far to Protect Board Members May Do the Opposite
An HOAleader.com reader writes, I live in a small, 28-home HOA, most of which are second homes, and the HOA just passed new bylaws (which I voted against). In the bylaws, it's written that the officers can't be held legally responsible for anything they do as an officer of the HOA and if there were a lawsuit filed against them, the association members would be responsible for their legal defense.
Click here to read full article:
https://www.hoaleader.com/members/CondoHOA-Governing-Documents-That-Go-Too-Far-Protect-Board-Members-May-Do-Opposite.cfm
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Here's the Status of Condo/HOA Manager Licensure and Education Laws
Colorado was on track to renew its community association manager licensing law - a handful of states have passed such laws requiring community association managers to become licensed or get certain training - and then the governor shocked everyone and vetoed the bill.
Click here to read full article:
https://www.hoaleader.com/members/Heres-Status-CondoHOA-Manager-Licensure-Education-Laws.cfm
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Is This HOA Making Enemies Unnecessarily?
An HOAleader.com reader asks, "I live in a 360-unit condo complex. We have an association center that's underused. In fact, the only thing it's used for is events (bridal showers, baby showers, graduation parties, etc)..."
Click here to read full article:
https://www.hoaleader.com/members/This-HOA-Making-Enemies-Unnecessarily.cfm
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