Ask the HOA Expert: Amendments To Governing Documents

Written by Richard Thompson Posted On Thursday, 13 January 2022 00:00

Question: Recently, our HOA members approved substantial amendments to the governing documents which include:

1. Sidewalks are now deemed common area even though the subdivision plat indicates that the sidewalks are located within a utility-and-sidewalk easement located on private lots.

2. An HOA landscape easement was created over the front yard of the privately owned lots.

3. The HOA claims authority to enter lots to inspect for compliance with architectural design restrictions.

Can the HOA legitimately claim these rights?

Answer: The HOA cannot vote itself ownership of property belonging to private owners without their consent. In this case, all lot owners would need to agree to relinquish ownership to the HOA. A majority vote can't force it. Same answer for the landscape easement. The HOA has no authority to commandeer private property by member vote.

The third item is different. As long as the HOA has the right to dictate architectural design standards, it has the right to inspect for compliance.

Question: I've heard that special assessments have to be kept in an escrow account and cannot be used until all owners have paid. Is this true?

Answer: It depends. Special assessments should be kept in a designated account if they are to be used for a specific purpose, like repairing roofs. If the special assessment is simply to build reserves, the funds can be put in the general reserve fund. There is no requirement that an entire special assessment has to be collected before it's spent, however, if all the money is needed to pay for a specific project, the board needs to be careful about starting a project without the money to pay for it.

Question: One of our board member is pursuing a personal agenda. He performs unauthorized maintenance and pesters unit owner about minor rule infractions. What can we do?

Answer: Communicate with him directly, clearly and specifically. Explain that performing unauthorized maintenance undermines the budget and the system for addressing maintenance. Provide him details about specific complaints by owners. Explain that his independent actions undermine board authority.


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