If you are a homeowner in a planned community and you don’t feel your HOA is doing their part to help maintain common areas, you do have options.
Has the entry gate been broken for months, or is the park overgrown with weeds and tattered equipment? The HOA is responsible for taking care of these things and, as a homeowner, action may be taken to work toward a solution. By attempting to remove a member of the HOA board of directors, make changes to the governing documents, or, (in extreme cases), initiate a lawsuit against the HOA, determining your course of action will indicate your next step.
Before proceeding with whatever action(s) you decide are most appropriate, there are a few things you need to know. Let’s review what you need to do to start seeing the changes your community needs:
First, to have a clear understanding of what your HOA’s obligations are, review the governing documents. For a community HOA, these are the articles of incorporation, declaration of covenants, conditions, and restrictions (also known as the CC&R’s or declaration), bylaws, and any other addendums or legal documents that may pertain to your community. As a new homeowner, you should have received a copy of these, but if not, you can acquire them from your county’s real estate records or from your HOA.
In most cases, HOA’s are responsible for the maintenance and repair of all common areas. Some of these may vary based on the amenities within your particular community, but they generally include landscaping services for common area parks and greenbelts, including the neighborhood entrance.
Did your neighbor just paint their house bright pink, and you are concerned about the impact on the value of your home, and it’s a clear violation of the regulations put in place and overseen by the HOA board? The clubhouse, swimming pool, exercise facility, and fitness equipment are also part of the common area. The sidewalks, parking lot, elevators, or roofs in a condominium complex are also maintained by the HOA.
The governing documents mandate that an annual budget be set forth in order to anticipate expenses for the maintenance and repairs necessary to keep a community safe, updated, and appealing. Assessments are collected by homeowners to pay for necessary costs.
Once you have a clear understanding of what your HOA is responsible for, the next step is to identify why they do not seem to be fulfilling their obligations. One way to go about this is to have a civil discussion with members of the board. You may need to provide documentation within the governing documents that spell out the HOA’s responsibilities.
In addition, if you have pictures or evidence to reflect the negligence you are concerned about, it will help the board to be able to provide a more specific solution or response. In ideal circumstances, the board of directors will take note of your concerns and set in motion the tasks needed to fix the problem. If that is not the case, you may be able to recognize their reasons for not solving the issue. Based on their response, the next steps will be determined. It may be that sending a violation to the homeowner is necessary or meeting with potential contractors to make the repairs. Keep records of the discussions you have and the HOA’s response. This information may be crucial to supporting you in the next steps if satisfactory action is not taken to remedy the issue.
You may also find that it is simply a lack of knowledge when it comes to expenses and a member refusing to make the necessary budget increase or failing to follow through with contracts and services. Removing this particular board member will allow an opportunity for the work to be completed. If an underperforming board member is the reason for the negligence, what steps need to be taken in order to remove that board member so a more willing participant can take their place?
The process to remove a board member is often a slow process. As set forth in the HOA’s governing documents, it requires the vote of other members of the board and all members of the HOA (which are the homeowners). While the steps may seem daunting and complex, if you are successful in removing a member of the HOA board, it will most likely result in significant changes to the overall maintenance of the common areas within your community.
However, if you find that the governing documents are what’s causing the problem in taking care of the necessary repairs, then amendments can be made. For example, if the gate at the entrance of your neighborhood has been broken for quite some time and the governing documents prevent members of the board from hiring a gate maintenance company, then an amendment must be made. Another example may be that the funds are simply not available to make the essential improvements and 100% of the homeowners must vote in favor of increasing the dues for a special assessment.
Your community’s governing documents lay out the steps for amending the governing documents and a vote of all homeowners may be required, but it is possible. Once the amendment is in place, the board will have the authority it needs to take necessary action and remedy the problem.
In extreme cases, a homeowner may opt to sue the HOA board for breach of fiduciary duties. If the HOA has failed to properly maintain the community’s finances, a lawsuit may be the best route. An individual board member may also be sued by a homeowne,r or homeowners, for their personal contribution or lack thereof. HOA board members are volunteers, but they are still obligated to act in the best interest of the community and must not use their role or finances for personal gain.
To be successful in pursuing a lawsuit against a board member, the governing documents must be clearly disregarded by the board member. Additionally, homeowners are able to pursue a lawsuit against the board if the HOA is negligent in providing a safe environment as outlined in the CC&Rs. For example, if the HOA failed to repair a broken slide on the playground and the amenity was not closed for use until the repair was made, and a child was injured while using the faulty equipment, the HOA can be held responsible for failing to make the necessary repairs.
By consulting with an attorney, homeowners can determine the best course of action. Be mindful of the cost that may be associated with this pursuit – lawsuits can be expensive and time consuming. You should speak with an experienced attorney to assess the circumstances and facts of the situation before taking action.
If you are a homeowner looking to make a difference in your community, being aware of your options will help lead you to solutions. If you have any additional questions, please feel free to contact us or your community representative. If you or another board member are looking for training courses to improve your skills, consider signing up for our online HOA board training classes today.