Question: Our governing documents have very clear and strict policies regarding tree cutting and removal. We get requests from time to time asking permission to cut trees. We inspect and sometimes approve the cutting. However, at times we get a request to cut a large tree because of the fear that it will fall on the house. If there is no disease or damage, we usually deny the request.
We now have an attorney/resident who is requesting the cutting of two very tall pines that are about 15' from his house due to the potential liability of the trees falling. He is stating that the HOA will be liable if the tree falls. Is the HOA exempt from such liability, if the governing documents specifically state that significant trees cannot be cut?
Answer: Jousting over legal issues with lawyers is dicey because you are playing in their field and they don’t have to hire a lawyer to play. If this is headed for a courtroom showdown, retreat or compromise may be the better part of valor.
But even if this lawyer is not the kind to pull rank or unfair advantage, there are still some valid points in his defense. These particular trees are a bigger than normal fire hazard. Trees in general should be located at least 30 feet from the structure, particularly if they are more flammable like pine trees. It would be prudent to get a licensed arborist to review of the trees in question. If the arborist believes they are a danger, they should be removed. If the arborist says they are safe, go with it and share the report with the owner in question. The board is not responsible for acts of God, only for handling business in a prudent manner. Use experts to your advantage.
Question: Are there state statutes that prohibit the board from using reserves to fund an operating account deficit?
Answer: State laws vary on this topic. Most are silent altogether. The governing documents may or may not have something to say about it. But it usually comes down to common sense. If the HOA has a real reserve fund, only reserve related expenses should be paid for from reserves.
If the HOA runs an operating budget deficit, the board should raise a special assessment to fund the deficit, not rob from reserves. If the reason for the deficit is likely to recur, subsequent year operating budgets need to be increased so it doesn't happen again.
Question: Our board is having many so called "work sessions". At these sessions many budget and other items are discussed and decided. One board member told me that if they held these discussions at the regular board meetings, the meeting would last too long. As it stands, the items that have been previously decided are motioned and approved without discussion at the board meeting. It seems to me that they should be discussed only in board meetings so that the members can hear the whole discussion.
Answer: It is not uncommon for a budget committee (which may be composed of board members) to meet several times to hash through a draft budget which is later presented at a board meeting for approval. At the board meeting, the draft budget should be presented along with comments about significant changes and additions so the minutes can reflect those changes. In particular, large or unusual line items should be noted for the record. The committee should explain the reasons for the changes. Other items of business should be discussed only a board meeting open to the members with exception of a few topics appropriate for behind-closed-door “executive session” like discussion of litigation with the attorney, contract negotiations and employee issues.
You are correct about the board misusing work sessions to transact business. Remind the board that operating in the open is not only right and required by law but will reduce challenges and questions. Opening meetings sometime take a bit more time but in the long run will actually save of time by gaining member support rather than ire.
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