what to do when your neighbor doesnt want to sign your architectural documents
January 2012 In one modest Chicago condo clan, lath members mistakenly thought they had to become the majority of the owners' blessing for every decision; they followed that mode of operation for years. When they double-checked their governing documents, they, of class, learned they had sole authority do determine how to spend condo funds. Our experts say it's common for HOA boards to misinterpret, fail to read, or to plain ignore their governing documents. "That does come upward more often than y'all might expect," says Nathaniel Abbate Jr., a partner at Makower Abbate & Associates PLLC in Farmington Hills, Mich., who represents associations. "People accept been misguided or ill-advised or just took information technology upon themselves to interpret things. Then a new board has come in, or someone's pointed information technology out to u.s.a., and we have to say "You're doing it wrong." Here, Abbate and other HOA experts explain the errors they discover boards making and how boards tin right the error of their means. Democracy Rules, Even When It Shouldn't Why do boards make fundamental mistakes like misapplying their governing documents? "One of the most common problems in condos is that the lath and unit owners aren't familiar with the governing documents," explainsRobert Galvin, a partner at Davis, Malm & D'Agostine PC in Boston who specializes in representing condos and co-ops. "It's important that the board especially and too the unit owners get familiar with the governing documents considering, later on all, they govern the clan. It's common to notice they're facing a problem they wouldn't be facing if they'd have just familiarized themselves with the governing documents." The Chicago condo's everybody-gets-a-vote mode of operation? Very common, especially in smaller HOAs. "I've seen boards make that fault many times," says Duane McPherson, Addison, Texas-based western region partitioning president at RealManage, an association management firm that oversees properties in Arizona, California, Colorado, Florida, Louisiana, Nevada, and Texas. "It'southward usually the smaller HOAs that don't have professional advice and nobody that's had feel working in an HOA. They sympathise the democratic process because it's all around us in our national and local governments. Simply applying it to the HOA is hard to practice. "If they've got xx members, they remember it's merely equally easy to become everybody to brand decisions, and it's not," adds McPherson. "Boards find out very quickly that it's very hard to accept the owners make all the decisions. Information technology takes a lot of stress off board members, but cipher always gets done, or decisions takes likewise long. In i case, a board wanted to rent an outside bookkeeping company, and it took three to four months to make the decision by going with the owners. And delegating determination-making power to the owners is the opposite of what the owners did when they elected the board." Another common lath blunder occurs when it comes to assessing fines. "Errors we consistently detect boards making are in the area of fines," says Abbate. "Some boards think they but have to send a letter to an possessor saying, 'You're violating thebylaws, and this is your second violation, so nosotros're assessing a $25 fine.' There are actually due process requirements, which ways boards must requite notice and an opportunity for owners to exist heard. No fine is valid unless you tell owners, 'We're going to have a meeting on Ten day. If that'south not convenient, we can reschedule. If yous don't announced, we may enter a fine by default. If you do appear and provide a defence, we may not apply the fine.' If the offset thing yous practise is utilize the fine, that probably won't wing with a court." That Matter You're Doing? Stop Information technology. What can you exercise when you realize you haven't been following your governing documents? Finish! "First, some boards do the wrong thing fifty-fifty at that betoken," says Ben Solomon, an attorney and founder of the Association Police force Grouping in Miami Beach, Fla., who advises more than 500 associations and too represents developers through his 2d law firm, Solomon & Furshman LLP. "They might say, 'We've been doing it that way for a long fourth dimension.' In one case you learn of the mistake, you demand to correct information technology. Information technology'south not an excuse to say, 'This is the way we've done information technology in the past.' Second, if you've allowed mistakes to occur, you demand to correct them and notify owners, if appropriate." Abbate agrees. "It'due south hard to unscramble the egg," he says. "But in one case you're in a hole, the all-time thing to do is stop digging. As presently as you realize you lot've been doing something wrong, you have to finish doing it and and then make up one's mind what you have to do if people have been damaged past your doing. You don't want to sweep things under the rug, only sometimes it'due south off-white to say, 'We were acting in practiced organized religion, and nobody was financially harmed. So no harm, no foul.'" If, however, owners have been financially harmed, y'all've got to undo that harm. "There take been situations where fines were applied incorrectly, and fines were piled on fines where the board's deportment became punitive," explains Abbate. "We've said, 'You have to advise people that they've overpaid on fines, and their time to come assessments will reverberate a credit for the amount they've overpaid.'" More Fixes for Your Mistakes It may likewise be wise to give owners find that y'all're changing how you're enforcing the documents. "Maybe you oasis't been enforcing certain restrictions for a long time, whether they relate to parking, tenants, or pets," says Solomon. "You lot don't desire to start communicable people in the net without proper notice. So you may accept the lath laissez passer a resolution or notify owners that there's going to be a alter in enforcement. Information technology's not that you waived your right to enforce these rules before, simply you don't desire owners to make a selective-enforcement argument. "To avoid that, notify owners of your alter in policy," adds Solomon. "You might say, 'From this solar day forward, we'll start fining owners for violating this dominion.' Even if you lot don't take to notify owners because the rule is already in your governing documents, it's prudent to practise that." Solomon also suggests ratification as a housekeeping measure. "If you have washed something improperly, 1 way to aid prepare it is to laissez passer a resolution authorizing the actions taken without proper authority," he says. "Maybe you immune the owners to vote on something they didn't have the right to vote on. But the result was what you wanted, anyway. So typhoon a board resolution stating that those deportment that were taken by the owners are hereby ratified and canonical by the lath. Now you've corrected the fault with the holding authority." Matt Humphrey is president of the Alameda, California-basedHOAleader.com, from which this article was adjusted. 
Source: https://www.realmanage.com/faq/what-to-do-when-your-board-hasnt-followed-your-own-hoa-rules/
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