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Ask The HOA Expert: Second Hand Smoke

Written by on Tuesday, 26 April 2016 3:10 pm
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Question: Our HOA has ongoing problems with cigarette smoke which permeates the hallways and stairwells every time a resident smoker comes and goes from their unit. The ventilation system recycles the smoke throughout the common areas. Besides the bad odor, I'm concerned about health hazards.

Answer: Second hand smoke is a serious health hazard. The estimated 41,000 deaths in the US in 2015 related to second hand smoke are well documented. For details, see www.lung.org Health Effects of Second Hand Smoke. So, this issue is much more than just a nuisance and the board needs to respond to complaints with real action. The easiest place to start is a ban on smoking in all common areas, including decks, patios, common hallways, stairwells, elevators, lobbies, building entries, meeting rooms and the pool area.

Some boards worry that bans on smoking will negatively impact property values. In reality, there is growing support for smoke free HOAs which would be highly prized by non-smokers who would pay a premium to live there. Something to think about.

There is no Constitutional right to smoke. Moreover, inflicting a health hazard on others is against the law. The board should take this issue seriously. For a sample No Smoking Policy, see the "Policy Samples" section at www.Regenesis.net.

Question: Our governing documents, like most, prohibit co-owners from serving on the board at the same time. Does this principle apply to committees?

Answer: Committees can be composed of anyone that has an interest in serving, including renters. As long as the members are serving effectively, the board should encourage such participation. Since committee members are appointed rather than elected, the board can unappoint them if they aren't doing their job.

Question: Our HOA board wisely ordered a reserve study this year. The study was completed and indicates that we are seriously underfunded. The study includes a funding recommendation that will substantially increase our fees. Is increasing reserve contributions a decision that the board alone can make? Do the general members have the right to voice their opinions, concerns, etc. prior to the board's decision. Should the reserve study be available to the membership to review?

Answer: As long as the governing documents give the board authority to approve the budget (usually the case), the board alone can make the decision. The board doesn't have to follow the reserve study provider's recommendation but departing from it will encourage greater challenge from members, particularly those that don't want to pay more. The logic is "If the board can propose an increase lower than the professional, why not propose one even lower still?"

If the governing documents require the board to get member approval for increases over a certain amount, the board will have to bring the matter for a vote. In either case, it's wise for the board to hold a special meeting to discuss the reserve study and its implications, particularly if there is a significant increase in fees indicated. Ask the reserve study provider to present the study and answer questions. This will add a much higher level of credibility to the process and take the spotlight off the board.

One mistake some boards make is deciding ahead of time that the members won't approve a large increase so a much smaller one is proposed. It is always preferable to present the higher recommendation and let the chips fall where they may. If the case for the professional's funding plan is made and a majority of the members still vote it down, future shortfalls can be blamed on the membership, not the board. If the board decides on its own to under fund, it has failed in its fiduciary duty to budget properly and should be held responsible for shortfalls.

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