HOA Scenarios And Solutions
by Richard Thompson
Homeowner association boards can find themselves faced with scenarios that call for discernment, wisdom and compromise. If the Board is too intractable in its thinking, conflict and resentment ensues. Here are some common scenarios taken from actual incidents and how they played out. Security Bars. An elderly widow living in a first-floor condo asks the Board for permission to install security bars on the outside of her windows. There have been no break-ins in the condominium but some in the area. Since installation of security bars would be an alteration of the common area and would be aesthetically unattractive, the Board denies the request. The owner has the bars installed anyway and the HOA's attorney demands she remove them or suffer fines. The owner's lawyer counters that the owner is fearful and that an accommodation should be granted. The parties negotiate a settlement wherein the owner is allowed to keep the bars under the conditions that they be painted the same color as the trim and upon sale, she remove them. The agreement is memorialized in a written document which is recorded in the deed records so that future purchasers will be aware of the agreement. Heat Pumps. A condo owner petitions to install a heat pump to increase the efficiency of his heating system and provide air conditioning. The only location available for the heat pump is outside in the common area. The Architectural Review Committee denies it due to encroachment in the common area. The owner appeals to the Board which agrees to the installation provided that the owner pay to modify the landscaping to screen the heat pump from view and be responsible for all maintenance and related damage it may cause. The agreement is recorded on the deed record. Other owners make the same request of the Board which are denied due to visibility from the street and inability to screen the installation properly. The Board formalizes the heat pump installation criteria in a resolution articulating under what conditions they may be installed. Handicap Ramps. A wheelchair-restricted owner requests permission to install a ramp in the common area to overcome steps to his unit entry door. Permission is granted provided the ramp is built to code, painted to match the building and that the ramp is removed when the owner moves. The agreement is memorialized and recorded. Several years later, the owner must move into an assisted living facility and leaves the unit to a family member. When the Board demands removal of the ramp, the new owner claims a work-related injury caused a back injury and the ramp is easier to negotiate. The Board agrees to extend the use of the ramp if the new owner can produce the worker's compensation determination and a letter from her doctor stating the need for the ramp. Decks/Patios/Fences/Awnings. In a condominium with enclosed courtyards for each unit, an owner builds a deck and installs a hot tub without permission from the HOA. A neighbor makes a formal request for the same and is denied. When it's pointed out that there is an existing installation, the Board agrees to grant the request and grandfather the existing installation provided the owners handle all maintenance, pay for related damages (dryrot, water leaks, etc.) and restrict usage to certain hours. The same standard is applied to all future requests. Pets. In a planned community with a mandatory leash requirement, a reclusive owner keeps two pit bulls. They have broken their leashes on several occasions and scared the living daylights out of passers-by. The Board advises the owner that the dogs must go but the owner won't budge. The HOA's attorney files suit for injunctive relief and the court awards it with attorney fees. The costs are levied against the owner. When the owner threatens to set the dogs on the Board, he and his dogs are removed permanently, the HOA's attorney gets a court order to have the dogs removed permanently and the HOA eventually gets paid when the condo sells. Conclusion. An important consideration in reaching compromises is the cost of attorney fees and who pays them. In protracted disputes, the fees can get quite large. On the one hand, incurring such fees may be worthwhile because the HOA should avoid setting a poor precedent simply because someone resists complying with the covenants. On the other hand, the Board doesn't want to squander precious cash to enforce a relatively insignificant issue when a compromise can be reached that would satisfy the owner and protect the HOA. HOA covenants will usually be upheld by the court if they are clear on their face and are uniformly and consistently enforced. If the Board enacts a rule that goes beyond the covenants, it must be intended for the health and happiness of the residents or to reinforce home market values. That said, the Board is encouraged to seek compromise whenever possible as long as it doesn't impair the power of the HOA to enforce the covenants. When faced with the option to fight or compromise, lean toward the latter. For more innovative HOA management solutions, see www.Regenesis.net. | 
