HOAleader.com - Tip of the Week - September 27, 2019
Published: Fri, 09/27/19
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An HOA Developer Was Doing Work It Didn't Have To; Can Owners Insist That Continue?
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In this week's tip, we answer a reader's question about whether a developer can begin demanding owners do something it's been doing without an obligation to do so.
Check out the question — it's pretty detailed. Because of that, our experts can't offer precise advice without more details. But they have a number of thoughts to help our reader and guide boards in this situation:
* This situation is truly unusual. "This is a little tricky," notes Brad van Rooyen, founder and senior member of Tampa, Fla.-based HomeRiver Group and its national specialist for community association management and the president of Home Encounter. "To answer this, I'd need to see the full spectrum of the situation.
"Often what ends up happening is that a developer may deficit-fund certain things, then as the developer winds down, they try to build those expenses into the budget and homeowners push back," he explains. "I work with a lot of developers, both regional and national developers, and I've never seen any developer maintain something then stop maintaining it. I've also not seen them not maintain something and then tell the homeowners they have to do it — never. I'm on my 40th developer-run community.
"Could it happen?" asks van Rooyen. "Sure. And I can't say it hasn't happened. But to me, this seems to be a major misunderstanding.
"Also, more and more around pond banks, we're getting advice from engineers who are saying that, due to the fluctuation of water levels, there's erosion," he adds. "They recommend leaving a 1- to 1.5-foot barrier around the pond that allows the roots and vegetation to stabilize. Some homeowners see that as the board not wanting to maintain or do upkeep when that's not the case."
* It's very common for developers to do things that aren't required of it before turnover. "We see situations like this," reports 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.
Hear about examples McClintic has experienced, why our reader may be frustrated at the wrong party, and much more in our new article: https://www.hoaleader.com/members/3988.cfm
Best regards,
Matt Humphrey
President
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Recent articles posted at HOAleader.com:
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The Records That Are "Public" When It Comes to Condos and HOAs
An HOAleader.com reader asks, "Are documents prepared for the board, such as a reserve study or a quote for a construction job, considered in the public domain? That is, should any unit owner have access to documents such as these?"
Click here to read full article:
https://www.hoaleader.com/members/Records-That-Are-Public-When-It-Comes-Condos-HOAs.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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Is This Lawsuit An Appropriate Use of Condo Funds?
A condo board in Manhattan sued to block construction of a 50-block bike lane for many reasons, among them that the neighborhood will lose free parking. Though its lawsuit has so far been dismissed, the question is whether this is a proper use of condo funds. Our experts weigh in here.
Click here to read full article:
https://www.hoaleader.com/members/This-Lawsuit-Appropriate-Use-Condo-Funds.cfm
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Who Knew Basketball Hoops Could Be So Complicated for HOAs?
An HOAleader.com reader writes, "A prospective purchaser has asked the board for confirmation of rules/guidelines for portable [basketball hoops] before buying. He sees our docs have none and is asking for written clarification. I'm told we've had two portables here for 10+ years, each located in the front of the garage just off the driveway (not located down close to street). No ARB applications exist, nor any documentation of how or if the prior boards reacted when the portables arrived."
Click here to read full article:
https://www.hoaleader.com/members/Who-Knew-Basketball-Hoops-Could-Be-So-Complicated-for-HOAs.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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