Q. I recently purchased a condominium unit from a developer. There are 175 units, and most of the units have been sold. As I understand it, the Developer currently controls the Board of Directors, but we understand that he intends to give the Board to the owners in the very near future. What exactly does this mean? Do we, as owners, have any rights with regard to this turnover? Are there any steps we should begin taking now?

A. You are correct. When a builder develops a community association, whether it is a condominium or a home owner association, until a certain percentage of the units are sold, the developer retains control of the association. This means that the developer’s representatives are on the Board of Directors of the Association. All fees and assessments are (or should be) deposited into your association’s bank account, but the developer -- through the Board -- controls the funds, sets the budget and makes the rules. At some point in time, however, the developer is obligated to turn over control of the association to the owners. Some states have laws spelling out when control must be turned over; and most association legal documents also spell out this requirement.

You are, however, not correct when you state that the developer intends to “give” the Board to the owners. In reality, Board members are elected by the owners, in the same way as our Congressmen and Senators are elected to serve in the United State Congress.

Transition between developer control and owner control of an association is perhaps the most important aspect of any community association. If done properly, your association will be off to a good start; if done poorly, it will take you a long time to get back on track.

A community is generally governed by an association , through a board of directors. Although many owners do not understand this, when the very first home in a complex is sold, the association is already in existence. The developer usually selects the first board of directors, which controls the association until turnover of control is accomplished. In general, the laws in the surrounding jurisdictions require that control be turned over to the owners within so many years after the first sale, or when a certain percent of the homes have been sold, whichever comes first. The turnover requirement should also be spelled out in your association’s governing documents.

Unfortunately, many developers do not understand the importance of working with owners so that they will be prepared to manage the association themselves. It is not good practice, in my opinion, for a developer merely to announce one day that a meeting will be held, at which time the owners will elect a new board of directors to govern and manage the association. Owners are new to the complex and do not know one another. They are reluctant to vote someone into office without knowing who that person is or what that person stands for.

You can take the lead and arrange for a meeting of the owners. Have it in the social hall, a nearby church or school, or even in someone's home. Once you learn who is interested in taking an active role in the association, contact the developer and ask for a preliminary meeting for the purpose of asking your questions and raising any of your concerns. You and your group should try to pin the developer down as to when control will be turned over. You should also discuss the level of cooperation which the developer will give you during transition. Find out whether the developer intends to be helpful, or will just “wash his hands” and walk away. Some developers have even agreed to front some seed money so that the “rump” association will be able to hire an attorney to assist them at the earliest possible time.

At some point in time, the developer will have to schedule a meeting of owners. The purpose of the meeting will be for the owners to elect a new board of directors. I find it curious that owners are often asked to vote for members of a board that will control their own destiny without having any information on who these prospective members are or what they stand for. If possible, a notice should be circulated to all of the owners advising them that there will be a meeting before the election, at which time people can campaign for seats on the board. In my opinion, a community association is a mini-democracy. We have political campaigns for government officials; we should also have campaigns for directors of community associations.

Once the owners are in control, there are four mandatory steps that must be taken by the new Board:

1. Audit the books: An independent auditor or a certified public accountant must examine the association's books. It is important for members of the new board to satisfy themselves (and the owners they represent) that during the time the developer was in control of the association, all moneys collected and all expenses paid have been properly accounted for. Keep in mind that while the developer is in control of the association, the developer also has access to the association funds. Often, this access is unlimited. You want to make sure that funds which should have been paid by the developer are not inadvertently (or purposely) paid out of association proceeds.

Developers handle the question of payment of fees for the homes they still own in different ways, but under any circumstances, the developer must be held accountable for all its legitimate obligations. Additionally, in many instances the developer, while serving as a board member, may have allowed many owners to become seriously delinquent in paying their association fees. The new board must establish a careful and comprehensive collection policy that will be applied uniformly. I am a strong believer in a "zero tolerance" policy when it comes to delinquencies.

2. Select a management company: The new board must decide whether to retain the existing management company -- which had been selected by the developer -- or select a totally independent management company. The association may decide to forego hiring such a company and become "self-managed", but I personally do not recommend this. An association containing a large number of homes needs formal and professional management.

3. Retain Legal Counsel: The association should retain a lawyer knowledgeable about community association laws. The lawyer will have to handle a wide variety of issues, ranging from developer problems -- such as warranty and other transition issues -- to assisting the association in its day-to-day activities. A community association is not only a mini-democracy, it is also a business, and must function in that capacity as well. Your association has many owners; your annual budget may very well be as large -- if not larger -- than many commercial businesses in the Washington metropolitan area.

4. Physical Inspection of the Property: The board should consider hiring an engineer to inspect the complex as soon as possible. The engineer should determine whether there are any warranty defects or problem areas which should be called to the attention of the developer. The engineer can also help the board determine the proper level of reserves that are needed for future repairs. This is known as a “reserve analysis study”. The professional engineer determines the useful life of the major components in the complex (eg. the roof, elevator, and other common areas), and the projected cost to replace at the end of its life. On an annual basis, sufficient funds should be placed in reserve, so that when the component wears out, there will be enough money in reserve to pay for its replacement. Otherwise, each owner will be faced with a large special assessment.

Turnover of developer control is the most important aspect in determining the future success of a community association. It is not often understood by developers. Indeed, some developers do not want to encourage active participation by the new board for fear that this new board will be too conscientious in reviewing the developer's activities.

Good dialogue among unit owners, the developer and board goes a long way toward creating a successful association. It’s hard work to be on a Board of Directors, and the hours are long and there is no pay. But, the unit you own is your investment and you certainly want to protect it as best you can.

Published: March 25, 2002

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