Question: Concerning the possible conflict of interest that develops with managers who are hired by HOA developers: In our HOA, the manager is the developer. We now have a number of construction related problems that the developer refuses to fix. The developer/manager attends all board meetings to audit board discussions of these issues. Isn’t there a conflict of interest going on here?
Answer: This developer has an indisputable conflict of interest in serving as manager. The good news is the board has the authority to hire and fire management. Considering the likelihood of continued conflicts of interest, the sooner management is changed, the better. While it’s fairly common for developers to manage the HOA during the marketing phase of the development, once the authority is turned over to a board of homeowners, it is time to get an independent management company to do the work. Even a developer with the best of intentions cannot fairly serve two masters.
Question: If the governing documents state that maintenance of the common area is the responsibility of the homeowner association, can the board enact a policy that allows homeowners to plant flowers around their unit and mandate that homeowners maintain that area?
Answer: The board has no authority to enact a policy that contradicts the governing documents. Amending the governing documents requires an appropriate vote of the members (“appropriate” means the percentage of members required in the governing documents).
Question: What are my options as an owner if the board and management company refuse to enforce one of the rules. I’ve filed an official complaint and they refuse to act. It’s a board member in violation.
Answer: “One of the rules” is a bit vague. Not all rules are created equal nor carry the same importance of enforcement. But assuming the rule in question is a flagrant violation like parking an illegal vehicle, harboring a killer pitbull or adding an unapproved addition to his house or condo, then you indeed have the right to question what is going on. A board member who thinks that rules only apply to others should not remain on the board for obvious reasons. Foxes guarding the henhouse seldom serve the chickens.
Your next move might include a petition signed by a significant number of owners (5-10) who agree with you. The petition should describe the specific violation and the need to correct or cease and desist. If that does not have the desired effect, a letter from an attorney might do the trick. Board members have personal liability for their HOA actions and some have been subject to sizeable fines for failure to heed that fact. Lastly, you have the right to run for the board to start making a difference. It’s often easier to make changes from within than without.
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