Association Management: Administration

Decks are one of those items that everyone takes for granted until someone’s foot falls through or until sponginess is felt by an owner. Sadly at that time the damage has been done and all that remains is the extensive cost to repair that may include replacing not just the sealant but the underlain plywood and worse still the posts and beams on which it rests. Unfortunately decks are not the most readily visible element of an association, often above the eyesight of a pedestrian and behind closed doors. This does not mean they should not be periodically inspected and maintained. This means literally walking into and onto each deck in every unit. Maybe one can hop a balcony wall on the ground floor but one still needs permission. Having done periodic plumbing, roof and HVAC inspections in all of our rental properties we know it is time consuming but we also know that we have solved a much larger problem form looming in the future. We once inspected every unit in a smaller condo building, and found 3 leaking toilets or sinks plus of all things a bath running 24 hours a day. When asked how long the water had been running we were told about a year by the owner who was formerly a board member.  There is nothing particularly frightening about doing an inspection in fact not doing it is particularly unwise. Obviously one needs to have an experienced person in the field walk each unit. We did such an inspection in a 70 plus complex and found fully 1/3^rd in dire need of work about 1/3^rd Ok and about 1/3^rd that could be worked on at a later date. The 1/3^rd that needed immediate attention was estimated to cost over $5,000 each.

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The courts usually want to allow homeowner associations to self-police. That means they will allow communities to make and enforce rules that are reasonable. The courts will tend not to interfere with rule making unless it is patently outrageous. They will less easily turn a blind eye when it comes to enforcement if it turns out not to be equitable. So pursuing one member for an infringement yet allowing another to go unnoticed is going to become a problem. Discrimination is a big no no in California and boards that do may even lack Errors and Omissions coverage for that eventuality (see article on Directors and Officers liability) Selective enforcement is sadly not uncommon. The board is upset about a particular type of infringement and pursues the owners who are infringing that rule and that rule only while leaving alone perpetrators who may be causing much greater damage or injury within the community. We had a situation in a smaller community where one director wanted to chase out a foreign born immigrant who happened to live in one home and rent out another. The problem was her tenant not the owner, but the owner was talked about openly in very derogatory terms.

The answer is if an association thinks a rule is bad they should change it or remove it. If the CC & R’s call for such a rule, they may have to rewrite the rule but ignoring it is only going to exacerbate the issue. Speaking of the C C & R’s some associations make up rules to suit themselves where the CC & R’s are silent on the issue. Without the authority of the CC & R’s no rules may be made. Most CC & R’s have a section usually headed use restrictions. Apparent violations need to be reported in writing and a letter or two seeking remedy issued. Failure to respond or failure to comply will usually result in a hearing. That will produce a plausible reason or a fine. A fine can be issued and even suspended for a short period, say 30 days, depending on the issue, pending remedy. Repeat offenders may be treated to an escalating cost, such as doubling the fine for a repeat offense within say 90 days and tripling if necessary,. Again the reasonableness of the fine can be at issue. One association I know was charging $100 a day for a minor offense and was up to $3500 before we cautioned them that it might not be collectable. As fines cannot be liened a small claims court action is a simple way to collect reasonable unpaid fines. Owners and sometimes their tenants have a variety of excuses for not complying. The most common is “I didn’t know”. Among the others are “it’s a free world”, “it costs too much”, “I am sick or elderly and need special treatment and the most famous “why are you selectively pursuing me when others…”

To most of these the cure is a polite explanation, an extension of time, a request for the filing of plans, an offer of help or a suggestion to use mediation services, internal dispute or alternative dispute resolution as called for by the governing documents. That is a far wiser and cheaper way than going to court. In a recent appeals court case in California Pacific Hills Homeowner Association v Prun, the Pruns were made to lower a fence and gate to 3 feet or set them back 20 feet from the front property line. If the Pruns opted for the second, to set back 20 feet, they would be allowed to have a 6 foot height but the association must pay 2/3rds of the cost

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Attending a CAI class in Palm Springs a few years ago the rest of the class audibly gasped when one account manager told us her board meetings lasted 12 and sometimes 15 hours. Granted it was a large community a master community as I recall, but how can anyone stay focused that long. They had meal breaks, she said and they lasted into the late evening.  The law in California now makes life easier for boards by requiring that items to be discussed at a meeting must first be noticed 4 days before the meeting.  I saw one management company’s answer to that, where they listed in general everything one might possibly talk about as their agenda. I am not sure they do that anymore but that’s hardly in the spirit of the law. I think there are two ways to stay on task and have briefer meetings.

First is to strictly adopt Robert’s rules of order and secondly stick closely to the agenda. One could even adopt a timing limit to each agenda item which when reached causes a motion to table until a later date if not concluded. This could backfire and every motion gets discussed several times before resolution.  But, setting the time for adjournment is a valuable tool to end the meeting. Robert’s rules has a bundle of ways to shorten discussion, such as allowing a speaker to only speak once until everyone has spoken and to have the Floor for only say 5 minutes at a time. If one cannot express oneself succinctly in 5 minutes join toastmasters group where 1 minute can seem like an eternity when asked to answer a table topics question.

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