Ask the HOA Expert

Written by Posted On Tuesday, 29 May 2018 13:14

Question: The board wants to have a special meeting with the owners to update them on what it has been doing, however, we assume that an owner who has filed a lawsuit against the board will be present. Should we let the unit owners know that there has been a lawsuit filed and that we have legal representation? If so, how much information should we offer or limit ourselves to?

Answer: How much you divulge about litigation depends on the subject matter. Your attorney should be helpful in giving you direction. Some highly sensitive issues should be kept confidential. But generally, the owners should be made aware of any litigation that is headed to court and when substantial legal costs are possible. The general nature of the litigation, the board's position on the issue(s) and current status (without

naming names) is a reasonable approach.

Can the developer make exceptions to certain architectural restrictions? Our developer allowed some owners to enclose their decks and since turnover, the new board says it won't be permitted by others.

Answer: The developer has no special right to violate architectural restrictions established in the governing documents. However, it is commonly done because the developer wants to sell homes. If the developer has allowed certain exceptions, the board needs to decide if this is something which should be allowed by other owners. To avoid a double standard, the Answer is usually "yes" and the board should develop and approve the standard so all are done the same way with quality design and materials.

Question: We recently had the unit chimneys inspected for fire safety reasons. This required access to the units which was facilitated by the manager. One of the units was filled with garbage, furniture blocking hallways, piles of clothing, cases of empty cans etc. The manager informed the board since there was a potential fire hazard. Should the board get involved in this situation? No neighbors have complained. The area outside the condo is tidy, the resident keeps to herself, is pleasant and not a smoker.

Answer: There are several issues here. As a general rule, the board or management should not hold keys to units unless there is an emergency or a rental management contract in place. Otherwise, either the unit owner or their representative should be present to allow access.

However, assuming that the unit owner gave permission to enter, if there is a real fire hazard or sanitation problem, the manager should inform that unit owner in writing with specifics. That said, it is up to the unit owner to respond. In other words, the board and HOA do not have the authority to dictate resident lifestyles unless they clearly are affecting the common area or neighbors. For example, if the sanitation issue creates a rodent problem, the HOA has the right and duty to control it.

In every HOA, there are certain individuals that are pack rats or live like slobs. That is their right as long as their lifestyle does not bleed into the common area or adversely affect the neighbors.

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