Tuesday, September 22, 2015

What Gives the Association the Right to Tell Me What to Do?

In a nutshell: the association declaration and state law gives the association the authority to regulate some of what you can do in our community.

Community associations have a governmental component. Like a city or county government, a community association has a charter—called the declaration. The declaration encompasses bylaws, covenants and other documents that give community associations their legal foundation.

These governing documents obligate the association to preserve and protect the assets of the community. To enable the board to meet this obligation, association governing documents also empower the board to make rules and define the process for adopting and enforcing them—within limits. Governing documents also establish parameters for the nature and type of rules the board can make.

State law gives associations the authority to make rules. These are called common interest community statutes, and they apply to condominiums, cooperatives, and property owners associations.

Remember, however, that the board can’t make or enforce any rule that is contrary to the governing documents, local ordinances, state law or federal regulations. Remember also that the board makes rules on your behalf—to protect your investment, your home.

Wednesday, September 9, 2015

The Value of Our Association Attorney

Like our manager, our community’s legal counsel is one of the most important people, other than volunteers and residents, involved in our association. Not a volunteer, but a paid—and integral—member of our association’s professional team, our attorney is intimately familiar with what is happening in our community. And because community association law is complex and ever changing, our association’s attorney is knowledgeable in a wide variety of practice areas that can affect our association, including:
•             Premise liability
•             Construction warranty
•             Directors’ liability
•             Real estate
•             Contracts
•             Architectural and design review
•             Insurance
•             Employment
•             Taxation
•             Environmental law
•             Water regulation
•             Collections and foreclosure

Our attorney doesn’t represent the board, individual board members, individual homeowners, any group of homeowners or the manager; he or she represents only our association. One person on the board has been designated as the contact with our legal counsel.

In addition to acting on our association’s behalf in legal matters, our attorney also advises the board on its responsibilities and obligations. And as board terms expire, our attorney acts as the de facto association historian as well, so that our board can provide continuity in policy-making and operations.

Tuesday, September 8, 2015

Deflategate as a lesson for HOA's?


Deflategate as a lesson for HOA's?  Footballs and air pressure don't seem like they have much to do with community associations. In fact, there are lessons to be learned from Roger Goodell, Tom Brady and Judge Richard Berman, starting with the importance of procedure.

By now, everyone is probably familiar with the background of Deflategate. Brady and the Patriots were accused of manipulating the air pressure of the footballs used in their games, possible even outside the parameters set by the NFL for air pressure. Another team complained, and a multi-million dollar investigation ensued. The investigators concluded that it was "more likely than not" (one of those legal phrases) that Brady and the Patriots had doctored the balls. Discipline, in the form of a lengthy suspension, was ordered by the league. Brady's appeal, amazingly enough, was heard by the Commissioner acting as an arbitrator under the Federal Arbitration Act. Not surprisingly, the Commissioner upheld his own decision, prompting Brady to appeal to federal court.

Brady, like a wounded lion (or an aggrieved Unit Owner) with his reputation tarnished and his pride hurt, pulled out all the stops. His lawyers fought with the league lawyers on every turn. They filed discovery motions, asked for Goodell to be recused and basically argued about every point. Many of the arguments had less to do with what Brady did or didnt' do, but were about what the league did and didn't do. Precedents were compared, and often found lacking.

Goodell, for his part, acted as if he had done no wrong. He sounded all the high-falutin' arguments about "the integrity of the game" and waged a PR campaign to show that Brady tampered with evidence by destroying his cellphone. There were no specific rules covering what Brady had allegedly done, and no precedents for a suspension under similar circumstances.

Judge Berman did what a good judge will do - he acted as a referee. He reviewed whether the NFL had followed its own precedents and policies, and found none to support the suspension or the analysis provided by Goodell. He excoriated the NFL for not giving Brady any notice of the type of penalties he was subjected to, not allowing him to cross examine an important witness against him and for Goodell reviewing his own decision.  Interestingly, Judge Berman never focused on whether Brady deflated any balls, his decision was based on the process and procedures that the NFL followed, finding them deficient.

So what does this mean for community associations?  It means that the "notice and opportunity for hearing" that is mandated by the Uniform Condominium Act and the UPCA should not be taken lightly. They should not be glossed over. A Unit Owner who is facing fines or suspension of their membership privileges must be given clear and meaningful notice of what they are accused of, and the sanctions that could be imposed. It means that when the Board holds that hearing, it should be as transparent as possible and give broad recognition to the "rights of the accused."  It means that Boards should give thought to the fight they'll provoke from the Unit Owner, and not give them procedural arguments that might sway the day.

Article written by Hal Barrow

Note Added:   Requirements for hearings and other due process procedures vary by state. Conceptually, everyone facing fine or suspension of privileges has "due process rights" however the details vary by jurisdiction.

Paul K. Mengert

Friday, September 4, 2015

How Are We Doing?

As board member volunteers, we work hard to make sure our residents feel at home and our community thrives. To be more effective, we feel it’s important to seek out other perspectives to learn about our perceived strengths and weaknesses. So to help us better serve you and our association, we want to know how we’re doing.

Do you feel that the board is successfully handling issues pertaining to the community, or are there some important matters we’re neglecting? Has the board been transparent with residents about the actions we take, and have residents been given a fair opportunity to weigh in on these decisions? Does the board listen to what you have to say when you disagree with the association or when you have suggestions to better the community? These are just some of the important questions we’re eager to have answered, and we hope you’ll share your thoughts with us on these and other issues.

Your opinions can help shape our community, so please don’t hesitate to give us honest feedback. Get in touch with us today to let us know what areas the board can improve on, as well as any other suggestions that would benefit our community. Thank you in advance for helping us make our association a place we’re all proud to call home.

Thursday, September 3, 2015

Guidelines for the Homeowner Forum

Residents are encouraged to attend and observe association board meetings. If you’d like to bring an issue to the board’s attention, you’re welcome to speak during the homeowner forum—a time set aside just for you. So that everyone who attends has an opportunity for a meaningful exchange with the board, we ask that you observe the following guidelines:
  •  Although we’re all neighbors, this is a corporate business meeting. Please behave accordingly.
  •  If you’d like to address the board, please sign in when you arrive. You will be called in the order you entered. This allows the board to contact you if we need further information and to report back to you with an answer.
  • The homeowner forum is an exchange of ideas, not a gripe session. If you’re bringing a problem to our attention, we’d like to hear your ideas for a solution too.
  • To keep the meeting businesslike, please refrain from speaking if you’re particularly upset about an issue. Consider speaking later, speaking privately with a board member, or putting your concerns in writing and e-mailing them to the board.
  • Only one person may speak at a time. Please respect others’ opinions by remaining silent and still when someone else has the floor.
  • Each person will be allowed to speak no more than five minutes. Please respect the volunteers’ time by limiting your remarks.
  • If you need more than five minutes, please put your comments in writing. Include background information, causes, circumstances, desired solutions and other considerations you believe are important. The board will make your written summary an agenda item at the next meeting.
  • We may not be able to resolve your concerns on the spot, and we will not argue or debate an issue with you during the homeowner forum. We usually need to discuss and vote on the issue first. But we will answer you before—or at—the next board meeting.