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Compromising HOA Position
by Richard Thompson
One of the vexing issues a new Board has to contend with is lax enforcement of owner additions and modifications by former boards. Lack of enforcement often results in noncompliant decks, fences, sheds and other creature comforts. The violators often claim they got verbal approval for the installation from the developer or some board president that moved years ago. Others claim they didn't know approval was necessary. But for whatever reason, there are now a boatload of violations that need to be reconciled. How should the current Board deal with them? The length of time a violation has been in place affects the course of action. If it's been no more than a year or two, the Board's case is fairly strong. The new Board had to displace the old lax Board to correct the problem. If the violation has been in place longer, the owner can make a stronger case that a series of Boards consented by silence. But action is still called for or the current Board is accomplice to mismanagement. What action can you take? Send Violation Notices. To begin the enforcement process, violation notices should be sent to every violator with a demand for removal of the offending modification. Some may comply willingly and narrow the list. However, some won't comply so the Board must decide how strongly it feels about the violations. In this regard, choose battles wisely. Legal battles are exhausting financially and emotionally. Agree to Compromise. The idea of a compromise is to permit the violation to continue while the current owner owns the property. Once the property is sold, the offending modification must be removed at owner expense. Further, the current owner must provide for all maintenance and is responsible for any damage it might do to HOA-maintained structures (like a deck that leads to dryrotted siding). It is fairly easy to get an owner to agree to this compromise since it allows the modification to remain, it averts a potential lawsuit and it demonstrates to the other members that the Board took reasonable action without going to court. Written Agreement. Have violators pay to have the HOA's attorney formalize the agreement in recordable form which identifies the modification, the legal description of the subject property and the conditions of the compromise. Then date, sign, notarize and file it at the local title company. This makes the matter public record and puts all prospective purchasers on notice of the requirement should the owner "forget" to comply with the agreement. Then even if there is a sale, the Board can require the new owner to comply with the condition of the recorded document. Owner Maintenance Responsibility. In the case of owner modifications, all repairs and maintenance should be the owner's responsibility. This too should be described in a recorded document for the benefit of future owners. For ease of tracking, the Board should compile a list of such modifications by type, date of installation and location. Ancient history in an HOA is two years ago. This list will prove invaluable over time and keep the Board from spending money for something that it shouldn't. Damage to HOA Components. Repairs of damage caused to HOA components by owner installation should be charged back to the owner. For instance, it's not uncommon for improperly installed deck and privacy fences to cause dryrot or structural problems to the building. Establish Reasonable Standards. Even if the Board approves owner modifications, it is extremely important that they be professionally and properly installed for aesthetics and compatibility with the existing construction. To this end, the Board may set reasonable standards such as requiring the owners to: - Use only licensed, bonded and insured contractors for the work.
- Submit detailed plans in advance, say 30 days, so the Board can consider the issue adequately.
- Show evidence of proper permits required for the work.
- Pay for architect or engineer plan review if the modification is complex or affects structural integrity.
The Board should approach owner modification violations and requests in a businesslike way by seeking compromise. Life is not black-and-white and neither is life in an HOA. Position for compromise. | 
