Ask the HOA Expert

I came across a good article by Richard Thompson in one of our real estate related newsletters which I thought would be of interest to condo dwellers.

Question: If the governing documents state that maintenance of the common area is the responsibility of the homeowner association, can the Board enact a policy that allows homeowners to plant flowers around their unit and mandate that homeowners maintain that area?

Answer: The board has no authority to enact a policy that contradicts the governing documents. Amending the governing documents requires an appropriate vote of the members ("appropriate" means the percentage of members required in the governing documents).

Question: What are my options as an owner if the board and management company refuse to enforce one of the rules? I've filed an official complaint and they refuse to act. It's a board member in violation.

Answer: "One of the rules" is a bit vague. Not all rules are created equal nor carry the same importance of enforcement. But assuming the rule in question is a flagrant violation like parking an illegal vehicle, harboring a killer pit bull or adding an unapproved addition to his house or condo, then you indeed have the right to question what is going on. A board member who thinks that rules only apply to others should not remain on the board for obvious reasons. Foxes guarding the hen house seldom serve the chickens.

Your next move might include a petition signed by a significant number of owners, say, five to ten, who agree with you. The petition should describe the specific violation and the need to correct or cease and desist. If that does not have the desired effect, a letter from an attorney might do the trick. Board members have personal liability for their HOA actions and some have been subject to sizable fines from the court for failure to heed that fact. Lastly, you have the right to run for the board to start making a difference. It’s often easier to make changes from within than without.

Question: A unit owner has requested that the HOA repair damage to his unit deck that was caused by a prior owner. It looks like burn marks from a barbecue. This owner claims the HOA should inspect units for sale so this kind of damage is repaired prior to sale closing.

Answer: This damage is not normal wear and tear and damage caused by a resident, even a previous resident, is not the responsibility of the HOA. And, no, the board is not responsible to inspect units that are for sale. Presumably this owner did not buy the unit sight unseen and likely knew of the damage before closing the deal. If it was a deal breaker, he should have made sure the seller fixed it, not the HOA.

While HOAs are often responsible to repair and replace things like decks, the board should maintain all units in a consistent and cost effective manner, and not take special action or expense to increase a particular unit’s value or marketability.