Thursday, 09 April 2020

Ask The HOA Expert: Can The Board Modify Architectural Design Policy?

Written by Richard Thompson Posted On Wednesday, 19 February 2020 05:30

Question: Our board wrestles with whether it has the authority to modify the formal architectural design policy.

Answer: This kind of policy is generally amendable by the board when it's in resolution form (a separate document outside the recorded governing documents). If the policy is part of the governing documents, a vote of the members is needed. But even if the board has the authority to amend, it is strongly recommended that proposed amendments be circulated to the members for comment prior to voting to enact them. A 30 day review is not going to make much difference in the long run and members will be more likely to comply when they've had a chance to be heard.

Question: Does a director of the board have the authority to give a power of attorney to another person to act on his/her behalf?

Answer: No. Directors are elected by the members and cannot give that authority to another person.

Question: We have a board member who argues that damage done to the interior of a condo unit from a roof leak is the responsibility of the homeowner association. I have been telling the board that the HOA is not responsible for the interior damage unless the board does not address the roof leak in a timely manner. Who's right?

Answer: Technically, this board member is correct. When HOAs purchase insurance for the structures, that insurance extends to the units themselves. However, the governing documents often has or the board can establish a requirement for unit owners to carry insurance for their individual units and be the primary insurance in the event of a claim, regardless of the source of the problem (kitchen fire, toilet overflowing, flooding from the upstairs unit, sprinkler system leaks leaks through foundation, etc.).

This kind of policy is necessary to protect the HOA's insurability. If every unit owner was allowed to file claims against the HOA's insurance, it would not be long before the HOA's insurance would be cancelled due to excessive claims or the premium increased beyond affordability. Spreading the risk out to unit owners keeps the HOA's insurability viable.

Question: What can be done about a board member that slanders another board member? He not only does it at meetings but spreads his accusations around the neighborhood.

Answer: It is inappropriate and divisive for a board member to engage in character assassination. The remaining directors should take action to rein him in in a diplomatic but firm way. The director with the best rapport with him should have a heart to heart with him and explain the damage that is being done. Insist that he keep such personal opinions to himself.

While the board doesn't have the authority to remove a rogue director from the board (only the members do), the board can remove a director from his office (President, Treasurer, Secretary) if he has one. That may be necessary to make the point.

Question: Our HOA has many residents that leave trash receptacles out long after trash pick-up day. It makes the HOA look shoddy. What can we do?

Answer: Most HOAs have a requirement that trash receptacles are only allowed out on pick up day and need to be stored out of sight within 24 hours. This is both reasonable and desirable from a curb appeal standpoint.

Question: Our HOA has a member that is a chronic offender of rules. How should the board deal with this?

Answer: Three special "scofflaw" penalties come to mind: caning, tarring and feathering, and the stock and pillary. But seriously, rules that carry no penalties are useless. If you need a rule, it needs an effective enforcement mechanism in the form of a fine significant enough to get noticed. Scofflaws often refuse to pay fines so failure to pay them must be treated the same way as failure to pay regular HOA fees. Process them through the normal collection process. Eventually, even the most persistent scofflaw will come to understand the price of being a jerk.

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