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Ask the HOA Expert: Can Governing Documents Be Amended?

Written by Posted On Thursday, 28 October 2021 00:00

Question: Can HOA governing documents be amended to allow compensation to directors for their services as board members? It stands to reason that they could be held more accountable if they received compensation for performance.

Answer: Most governing document stipulate that board members serve without compensation. There is a very good reason for this. Boards are comprised of elected members who rarely have the expertise or training to manage an HOA. They are elected to hire qualified people to do this work (management companies, landscape contractors, maintenance contractors, etc.). When this is done effectively, the board job is relatively simple. When it is done poorly, the board can devote endless time at it and supposedly justify the need for compensation. Paying for poor performance is hardly in the HOA's best interest.

Also, the board has an unavoidable conflict of interest. Since contracts and other expenditures are approved by the board, so would board compensation. The board is elected to safeguard the interests of all members. It's best done when the directors serve as unpaid and unconflicted volunteers.

Question: Our board is in the process of drafting an Architectural Design Policy. We are thinking about recording the policy with the county.

Answer: Architectural design standards can be complex and subject to change as taste and technology change. It is appropriate for the governing documents to state that an Architectural Design Policy exists, that construction and renovation must conform to it. The specific policy should not be recorded but be easily available upon request or posted on the HOA's website. As with any policy, the board should have it reviewed for comment by the members and by a knowledgeable attorney prior to implementation. A sample Architectural Design Policy is available at in the Policy Samples section.

Question: A unit owner has requested permission to rebuild her deck and expand the size. What issues should the board consider?

Answer: Having unit owners repair and replace their decks is often a problem because those decks are typically attached to the structure which is an HOA responsibility to maintain. So, the unit owner should also be held responsible for any damage caused by the deck to the structure, like dryrot. This agreement should be in writing, dated, signed, notarized and recorded against the unit title to advise future owners of this responsibility. You should use an attorney to put the agreement in proper recordable form.

Will the new deck match the look, design and material of the original installation? Conformity in common wall housing reinforces market value. The new deck should look like the old unless the board has adopted a new standard.

The board has no authority to allow a unit owner to expand into common area or to enjoy exclusive use of a common area. This must be approved by a vote of the members which may be 100%.

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Richard Thompson

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