Question: I'm confused about how we go about updating the governing documents and some of our Rules & Regulations that clearly contradict the Bylaws. Our Bylaws date back to 1965, but our Board is suggesting we update the Rules & Regulations first as the Bylaws will cost a lot of money to update. Is this a sensible way to do it or should we just bite the bullet now and get both done?

Answer: The Board does not have the authority to make Rules & Regulations that contradict the Bylaws and any Rules & Regulations that do are not enforceable. Bylaw amendments must be approved by the appropriate number of members indicated in the bylaws.

There have been many changes to HOA law since 1965. You only need to change those things that do not conform to current law. Bylaws should only be amended with the help of an attorney that specializes in HOA law and any Rules that contradict the Bylaws should be repealed.

Question: Our HOA levies an extra fee on homeowners who rent their units. The extra fee pays for the extra water usage when owners rent one unit to several people and for cleanup of the common area when tenants move out. One owner/landlord says it’s illegal and wants the practice stopped. What do you say?

Answer: This policy assumes that renters use more water than owners. I'd like to see the proof of this. Unless there are meters in place that measure water for each unit (they are available) and the bill is apportioned according to verifiable usage, this practice is unfair and illegal.

Same answer for the move out charge issue. Unless all residents (owners and renters) are being charged this fee, it is discriminatory and should be stopped. The board has the authority to assess reasonable costs but should never single out a class of resident in doing so.

Question: When owners fail to pay their assessments, we post their name in a Shame on You section of our website. Our board, while unanimous in doing this, agonized on whether or not it was legal or effective. Have you come across this before?

Answer: Every HOA attorney I've talked to says posting names of delinquents begs BIG trouble. The tone of the Shame on You posting suggests a willful refusal to pay. But individual circumstances can vary. How does the Board treat delinquent owners that truly can't pay because they are out of work, going through divorce or some other extenuating circumstance? The delinquency result may be the same but would the Board feel the same about posting those names? If they did, they would truly look mean spirited. If they don't, the policy is unequally applied and the Board would be accused of playing favorites. This is a no win policy.

Before you regret it, discontinue this practice. The good news about delinquencies is that, assuming you have a well written collection policy, collection costs can be passed through and collected with interest some day. There is a Collection Policy in our Policy Samples section of www.Regenesis.net.

Question: The Board voted on hiring an attorney and the majority, including the President, voted in favor. Several days later, El Presidente said he would not authorize payment for the services. His actions have caused two board officers to resign. Any advice?

Answer: Sure. The Board majority has the right to remove him as President. Advise Mr. Dictator he either flies with the majority or his wings will get clipped.

Question: We’ve had a few turnovers in our Architectural Restriction Committee in recent years. Some were better than others at enforcing the "minimum standards". Now, some homeowners are threatening lawsuits because they have been denied making alterations that other owners have been approved for. How vulnerable is the Board of Directors to a lawsuit?

Answer: Lack of consistent enforcement can undermine the standards and invite challenge. If some owners are being granted variances, maybe it’s time to amend the standards rather than try to justify unequal enforcement. While the Board should have Directors & Officers Liability Insurance for legal defense if the board is sued, this might be a hard case to defend. Better to agree on the standards and avoid court.

For more Ask the HOA Expert, see www.Regenesis.net

Published: September 18, 2002

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Richard Thompson owns Regenesis, a management consulting company that specializes in condominium and homeowner associations. He is a nationally recognized expert on HOA management issues. Regenesis publishes The Regenesis Report, a monthly newsletter for HOA boards, developers and managers. To subscribe, go to Regenesis.net. He can be contacted by email at .