ASK THE HOA EXPERT: WITHOUT LIVING HERE, CAN INDIVIDUALS REMAIN ON THE BOARD?

Written by Richard Thompson

Question: I am an owner in a rather small condominium complex. The board is made up of five individuals. We have now learned that two of the officers of the board, the president and vice-president, are planning to rent their units and live elsewhere, one of them to another state. My question is, without living here, can these individuals remain on the board?

Answer: There are two issues. The board is composed of directors, some who are officers. As directors, they are entitled to remain on the board although doing so may not be practical or fair to those members that voted them in. Not living at or in close proximity to the HOA clearly compromises a director’s ability to attend meetings and be directly informed of the physical condition of the property.

A director that also serves as an officer has even a higher responsibility to those that elected them since the officers direct the day to day business of the HOA. Having a local president, in particular, is extremely important. However, officers are selected by the board itself so this can be changed when circumstances dictate. If the two top officers are no longer local, I recommend that other directors assume these duties.

It makes sense that the non-local directors tender their resignations if they are no longer able to attend the board meetings. That said, the board has no authority to remove directors, even for just cause. They were elected by the members and can only be removed from the board by the members.

Question: Our new board is preparing our Annual Calendar. How many board meetings a year should we hold?

Answer: The answer is directly related to whether your HOA is professionally managed or not and the extent of the common elements. HOAs that are professionally managed can usually operate with four board meetings a year. The manager is given authority by the board to execute normal HOA business within the parameters of the approved budget. If a situation falls outside these boundaries, the board president has the authority to approve the additional work. If the board president feels the situation dictates a board decision, she can call a special board meeting.

If the HOA is self-managed, the board usually meets at least every two months or even monthly if the common elements are extensive.

Keep in mind that board meetings are for the benefit of the general membership as well who have the right to attend and petition the board. Board meetings should be scheduled a year in advance in a location that is guest friendly. Scheduling months in advance ensures that there will be no scheduling conflicts.

Question: Our board has been advised to steer clear of Neighborhood Watch type programs due to potential liability. Your opinion?

Answer: While an HOA needs to be careful not to boast of being “secure”, the board needs to take reasonable precautions to make sure the common area is not attractive to criminals. This includes making sure there is adequate night light, landscaping and trees are trimmed to allow light to disperse and not conceal criminal activity. If there is entry access control (gates, doors), they should be maintained in good repair.

Participating in a criminal watch program not only makes sense, every HOA should encourage it. It does not mean iron clad security, only improved self-help vigilance by the HOA members. Participation in such programs should be broadcast to members and criminals alike by notices and signs. Each year, a special meeting should be held to reacquaint the members with the program and renew heightened awareness.

Question: Our current board is considering enforcing long standing architectural restrictions that previous boards failed to enforce. Should we grandfather existing violations or enforce the restrictions retroactively?

Answer: There is no “one answer fits all”. There is never any automatic “grandfathering”. The board needs to weigh each violation and its importance. The big ones may be worth fighting for while minor ones are not. The board can compromise when it’s in the best interest of the HOA and too expensive to litigate.

Question: When our HOA was developed years ago, the board allowed unit owners to customize the landscaping around their units even though the land was common area.. Some have done it well while others not so well or at all. Our current board is debating whether to return all landscape maintenance to the landscape contractor. What are the challenges?

Answer: Having professional landscape maintenance of landscaping installed by owners simply won’t work. For the contractor to maintain the new area would require replacing the custom landscaping with a standardized maintenance plan.

One fundamental principle that will help guide your board in the future: The board has no authority to grant exclusive use of the general common area to any owner for any reason. This always must be approved by an appropriate vote of the members which could be 100% depending on how your governing documents read.