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|Q AND A - LIVING IN SOME SORT OF COMMUNITY?|
Courtesy of HomeAction Newsletter by Al Clark
These Q and A's are managed by Richard Thompson from www.regensis.net. Richard has been involved for many years with various aspects of community living. He provides consulting services to community groups and industry vendors. He also takes questions from online consumers with HOA issues.
For answers to your own questions and more innovative homeowner association management strategies, see Regenesis.net.
Question: We had our home painted years ago and did not request approval of the color from the board. Last month, we received a notice of paint color violation and are being threatened with fines if we do not comply within 30 days. Can the board do this after so many years have passed? Is there no statue of limitations in matters of this nature?
Answer: Member property is often subject to architectural guidelines found in the HOA's governing documents and/or policies enacted by the board. However, if there was no objection to your color choice years ago, it is not reasonable for the current board to enforce it now. The length of time that has passed has everything to do with it. To protect its enforcement authority, the board must act within a reasonable time. It's doubtful that a judge would agree with the current board's approach.
Write the board a letter or email detailing the age of the paint job and lack of challenge to it by previous boards. Indicate that you will comply with whatever color requirements in effect when you repaint. This kind of response puts the matter into its historical perspective as well as your willingness to comply.
Question: Recently, I received a proxy attached to a meeting notice to vote on a governing document amendment. The notice stated that if the proxy was not returned, the board would vote on my behalf. Can the board do that?
Answer: The board cannot take or use someone's voting right just because they don't respond to a proxy request. A proxy should be provided to every member well in advance of the meeting (whatever the governing documents require) to be completed, signed and returned. A member may designate whoever they choose (a neighbor, a family member... anybody) to represent them at the meeting. That person, of course, must be able to attend the meeting.
If the proxies aren't returned within several days of the meeting, the board needs to round them up by making calls, going door to door to pick them up or whatever it takes. At the meeting, if the required quorum is not represented by the proper number of members and their proxies, a legal meeting cannot be held.
Question: We have problems with our landscape company providing the services it contracted to perform. Most of the board members want to keep them regardless. Does the president have a right to fire the company or should the matter be put before the members for a vote?
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Answer: If the board majority wants to retain the landscape contractor, the president should not go contrary to the majority or go looking for the support of homeowners. If, however, it must be done, the board is authorized to do so.
But changing landscape contractors should not be done lightly. In fairness to the contractor, there are usually some identifiable problems that he should be made aware of in writing and given a reasonable opportunity to correct.
Question: What is the correct procedure to select officer positions? Historically, my board meets immediately following the annual meeting, someone nominates a director to the position of president, someone else "seconds" the motion, followed by a show of hands to determine if a majority vote exists. How do we get a second or third nominee considered in this procedure? We always wind-up with the old president serving another one-year term.
Answer: It's up to the directors to select the officers so the scenario you describe is normal. If you want things to change, someone (you?) needs to campaign with the stated goal of becoming president. That strategy needs to include getting other directors to support that goal before the selection meeting.
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