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Question: Our board president replaced sidewalks that he deemed needed replacing and then sent the affected homeowners the bills along with a letter stating that the sidewalks were an owner's responsibility according to the governing documents. Can he do that?

Answer: The board has no authority to summarily replace something that an owner is responsible for without reasonable prior notice and right of appeal, unless there is an emergency (downed power line, sink hole, etc.). For legitimate safety concern like a tripping hazard, the board has the duty to advise an owner and take action if the owner does not.

However, from the facts you relate, the board president exceeded his authority and the owners have the right to dispute the charge.

Question: Is it acceptable to take a delinquent owner to Small Claims Court?

Answer: While state laws may vary, the board usually can use Small Claims Court to collect money. However, there are many practical reasons not to. The board typically has the right to place liens on owner property, garnish wages and other strong collection methods without going to Small Claims Court. If the Collection Policy is written correctly, collection and legal costs can be recovered from the debtor. Small Claims Court is limited to the amount that can be collected and may disallow other legitimate charges (like interest, late fees, attorney fees), the judge may rule in the defendant's favor or split the difference. And even if the HOA wins, there is still a judgment which may require an attorney to collect if the delinquent still refuses to pay it. So, there is simply no advantage to the HOA using Small Claims Court.

To protect the HOA's collection rights, it's advisable to work with an attorney that specializes in HOA collections. Some collect their legal fees only when the balance is paid in full (HOA is paid first).

Question: What is the difference between a condo and a townhouse? Can one be both a condo and a townhouse?

Answer: The term "townhouse" is often used to describe side by side common wall units which may or may not be condominiums. The definition of a condominium is about how real estate is held: All condo owners own or lease an undivided interest in all real estate. In non-condo HOAs, owners share an undivided interest in common real estate plus an individual interest in real estate below their unit or home.

Since the essence of a condominium is related to real estate and not the structure, a condo can be a single or multi-level unit, a house, commercial space or even an airplane hangar. The key legal difference between a townhouse and a condo is whether the owner owns land separately from commonly held land. You can't tell just by looking at it. You need to read the governing documents. This is extremely important when buying because it often affects maintenance and insurance responsibilities. Don't count on your real estate agent to know the difference.

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