Ask the HOA Expert: Limited Common Elements, Quorum Rules

Ask the HOA Expert: Limited Common Elements, Quorum Rules

Question: Does the board have the right to grant exclusive use of common areas to one or a few members? Several of our owners have requested to expand the size of their decks or patios.

Answer: Common elements available to one or several members (instead of all) are referred to as “limited common elements”. This means they are common but limited to exclusive use of one member (as in the case of a unit deck) or designated members (as in the case of a private street).

These limited common elements are typically identified on the legal plat and cannot be expanded without encroaching on common areas which belong to all owners in an undivided interest. So, the board has no authority to allow such requests. Changing this requires a vote of members which may be up to 100%.

Question: At our recent annual meeting, an issue was brought up and a motion was made on something that was not on the agenda for the meeting. The president allowed the motion to be made, seconded and voted upon. But, there were not enough members represented to constitute a quorum. Was this an illegal vote?

Answer: The vote was illegal due to lack of quorum even if it had appeared on the Meeting Agenda. Without a legal quorum, no business may be transacted or elections held. You might have a lively discussion but nothing official can take place.

Lack of quorum is an all too common scenario than can be cured by proxies. A proxy is the written authorization by one member given to someone to act on their behalf at the Annual Meeting. Proxies must be distributed well in advance of the meeting and collected before the meeting to ensure a legal quorum. Getting folks to return their proxies can be challenging and multiple requests may have to be made, including going door to door to collect them if necessary. There is a sample Proxy in the Meetings section of www.Regenesis.net

Question: We recently had our unit chimneys cleaned. A board member accompanied the contractor and opened and secured units upon exiting. As a result of this process, it was discovered that one of the units was jammed with stacks of newspapers, garbage, furniture blocking hallways, piles of clothing and cases of cans. The resident is clearly suffering from a hoarding problem.

Should the board get involved in this situation? No neighbors have complained of any noxious smell. The area outside her condo is tidy. She keeps to herself, is pleasant to the staff and not a smoker.

Answer: Turning a blind eye to a hazardous situation is not the way to go. A letter to the resident (and landlord if applicable) is in order. When garbage isn’t being disposed of regularly, it is only a matter of time before there is vermin problem. The fire hazard potential sounds great as well so the letter should include a request to remove or store flammables.

Question: Can the board offer discounts to members that prepay a special assessment rather than participate in a payment plan?

Answer: No discounts should be offered since they would cause a shortfall. It is appropriate, however, to charge late fees to those that don’t pay as agreed.

However, it is a bad idea for HOAs to finance special assessments at all because of the increased administrative costs and the likelihood of dealing with delinquent payments. For example, If you have a 30 unit condo and allow 24 monthly special payments, you have 720 payments to track and 720 potential collection problems. Instead, require each member to provide special assessment funds from whatever source they have available. Some have cash, some has an equity line of credit or credit card. The HOA should not finance the special assessment or borrow the money.

Question: Our homeowner association is made up of condominiums built in a townhouse style. The HOA has the responsibility for all exterior repairs and maintenance. Our board has allowed several of the members to replace their own unit roofs and repaint their units since they wanted to sell. This doesn’t sound right.

Answer: It’s a very bad idea to allow individual unit owners to do or pay for this kind of work directly because of:

1. Quality Control. Is the person doing the work experienced? Is the material being used of good or superior quality?
2. Risk Management. Is the person doing the work properly insured for injury and liability?
3. Owner Still Financially Responsible. Doing this kind of work does not relieve a current or future owner from paying his normal share of regular and special assessments.

Question: What kind of expectations or working relationship should an HOA manager have of the client’s board?

Answer: The board should:

1. Support the manager’s decisions unless a clear mistake has been made.
2. Not undermine the manager’s actions in rules enforcement and collections.
3. Carefully consider the manager’s advice since it comes from experience and training.
4. Be respectful of the manager’s busy schedule.
5. Allow the manager to execute the terms of the management agreement without micro-managing.
6. Remember that the manager works for the board.

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