Serving on your community association’s board is a tough job, regardless of whether you’ve done it before or not. And, unfortunately, there are some mistakes that board members can inadvertently make that end up causing the association a world of trouble. Here, we’ve listed seven of the more common mistakes that board members can make as well as the consequences of these mistakes and, of course, how to best avoid them.
So, what do you do, if a member has voted in opposition to the others, you can try to find out why they
don’t agree and have a discussion on the matter. If that doesn’t work, your only option is to have a duly called meeting. And, once you have a duly called meeting, the typical voting rules apply – you need a majority vote of the present members. So, in this instance, call a meeting for the sole purpose of voting on the issue at hand, have the meeting, and vote. The meeting need not be in-person; it could be via phone or virtual. The requirement for any meeting is that everyone participating must be able to hear everyone else during the meeting. Therefore, you can attend via phone if the call is on speaker mode and all members are able to listen to all participants in the conversation. Board members don’t ever want to find themselves accused of improper voting as that will create distrust between board members themselves as well as between the board and the membership.
As a board member, you’re fully aware that community associations have a lot of governing documents and those sets of documents have different
Rules and regulations may only be adopted if there is underlying authority for the rule, and these generally apply to the common areas – think amenities, speed limits, pet areas, things like that. Rules and regulations can often be adopted by the board alone without a vote of the membership but remember, they must be reasonable, or else you may be opening a can of worms. Rules must also be clearly defined and enforceable in practice i.e., any reasonable person would easily be able to identify a transgression. If not, there is no value in passing the rule. An example of an unenforceable rule is would be “no loud noises after 10 pm” – what is the threshold for “loud” and who is going to patrol the property to identify violators?
Declarations, covenants, or whatever your association calls them to provide the board with the authority to make any rules or restrictions that govern private lots These days, courts tend to favor the free use of one’s private property, so it is essential that the language within the covenants be clear and reasonable. And, if your board is considering any changes to these, it typically requires an amendment and a super-majority vote of the membership to impose more restrictive measures, such as rental restrictions. Also, be careful with both rules & regs as well as covenants as these are easy places to inadvertently violate the Fair Housing Act (FHA).
When owners make ARC requests, boards should only evaluate the aesthetics of the request and stay away from viewing permits, etc. Why? Because viewing things like this can potentially expose the association to liability. A good example is if your board approved the addition of a second-story deck, viewed the specs, permits, etc., and the deck collapses. The association could easily find itself being named a party to a lawsuit surrounding the collapse. Architectural rules and guidelines should be kept separate from rules and regulations governing the use of the property.
We know, that telling people that they must pay more money isn’t fun, and you probably don’t enjoy being told that yourself. But, for the proper running
What about reserve funds, are associations legally required to have these? While there is no law in NC or SC requiring these, your governing documents may so be sure to consult those. Is it a good idea to keep a reserve account? Absolutely. What will you do if a long-term capital improvement need pops up and you don’t have the money to address it? Sure, there are special assessments (but remember, the membership must vote on this) and loan options but, when a bank is considering giving a loan, they’ll look at your association’s financial health and, if they see that you haven’t been responsible with money, it’s unlikely they’ll be willing to give you a loan. Board members should consult with specialists to determine the appropriate levels of funding and keep the capital plan updated by having a reserve study conducted every 3-5 years for associations that are responsible for capital assets.
Chatting with my neighbor Deb, how could that be troublesome? Well, it can be. If board members individually communicate with owners on certain topics, it may be interpreted as if that one board member is speaking on behalf of the entire board when that is not the case. Besides that, we all know how words can be easily misconstrued – if you tell Deb you think the deck she wants to install in her backyard sounds like it would be a great place to hang out, that may be taken as “Oh, the board is going to approve my deck!”. And, if the deck isn’t approved, you may find yourself in a heap of trouble. It is useful to remember that board members are only empowered to act when they are convened in a properly called meeting or when carrying out duties consistent with a policy that is on file. Outside of this, a board member is a regular homeowner.
Most of the time, violations of the Fair Housing Act (FHA) and Americans with Disabilities Act (ADA) are unintentional but that doesn’t matter in the eyes of the law. It is essential that your community’s policies fall within the requirements of both acts, and when they don’t, make adjustments. While there are some obvious ways to violate these acts, there are some less obvious ones as well that can easily trip you up if you aren’t careful.
One of the easiest to violate is familial status. Though this is often thought to be saying something like “families with children can’t live here”, it goes further than that. If your community has common area policies that put restrictions on minors, you’re likely in violation of this part of the FHA and you should have your attorney go over your documents. Some examples would be things like “no skateboarding” or “no toys in the common area” – those are all things that are probably going to be applicable to minors. Even posting pool hours that are designated as “adult swim time” can be a big problem. Again, consulting your attorney is the best way to determine if these rules are violations and come up with some acceptable
Regarding the ADA, there are parts of the act that address rules and policies and others that address real property. The ADA states that handicapped persons can request reasonable accommodations and modifications. What’s the difference? Reasonable accommodations apply to rules – an example would be assigning a handicapped person a parking space close to their unit at a condominium complex where there are otherwise no assigned spaces. Reasonable modifications apply to property – this would be something like allowing a person to install a ramp at their home by granting a temporary variance to the community’s architectural restrictions.
It is also crucial to remember that the ADA applies to more than just obvious disabilities – it very much applies to things you can’t see, like mental illnesses, so boards must be very careful in determining what requests to deny (think emotional support animals) Not sure? Call your attorney!
This list, of course, shouldn’t be considered the end-all and be-all of possible pitfalls board members may encounter. But, if you’re conscious of these things and consult professionals when uncertainties arise, you’ll be doing your best to avoid litigation and keep your community running smoothly, thus fulfilling the “prudent man” standard for board members.
Is your community getting the Trusted Guidance it deserves? If not, give us a call at 888.798.2624 or reach out through our website to learn more about the wonderful services CAMS can offer to your association.