Homeowner Association Questions & Answers

The vast majority of residential airparks operate with some type of homeowners’ association. As a result, many questions come up as a result of meetings, non meetings and the various rules and regualtions that are part of those residential airparks that have a homeowners’ association or similar type organization.

While not an attorney or schooled in legal matters, we have compiled many questions that have come to us via e-mail or at forums that we conduct at various aviation events such as Oshkosh, AOPA, Sun ‘n Fun and the like. Frequently the answers to the questions raised at these meetings are answered by someone in attendance at the gathering and very frequently that person is an attorney.

Remember, state laws often govern what an association operating where there are airport homes can and cannot do.

Here are some of the issues that we’ve compiled. More will be added in coming weeks and months. If you have a question, please let us hear about it and we’ll try to get an answer for you.

Question: How can association members get a special meeting called to address an issue?

Answer: This frequently is spelled out in the association declarations or covenants, conditions and restrictions (CC&R). Some states have special regulations that state who or how special meetings can be called, in addition to the homeowner’s documents.

Question: Can an association board of directors fill a vacancy on the board by itself or must a special meeting and election be conducted?

Answer: Subject to the association documentation, many states allow a board of directors to fill association board vacancies without a special meeting or election. The association CC&Rs are the initial source of information for such a decision in most instances.

Question: Can a member of a homeowner’s association withhold an assessment if they are dissatisfied with the association or feel they have been treated unfairly?

Answer: Generally speaking, the answer is no. A homeowner association member can seek redress through the courts if appeals to the homeowner’s association board of directors fails, but as long as the assessment  (including special assessments) has been properly authorized by the board under the association’s rules and regulations, an owner cannot withhold payment of an assessment.

Failure to pay an assessment that has been properly enacted can result in the homeowner’s association pursuing legal action against the individual. The most frequent legal action is placing a lien on the property.

Question: Is there any sort of legal limitation on how much of an assessment an association board of directors can levy or how much of an increase it can establish?

Answer: Limitations to assessments whether new or adjusted are usually established in the Covenants, Conditions and Restrictions (CC&R) that have been made part of the establishment of the homeowner’s association and declarations made in the sub-division creation. Depending on how these documents are written, a board of directors might have certain restrictions to amounts or the manner in which they are approved.

Question: If a homeowner’s association provides certain utilities or services as part of the regular association fee, can these utilities or services be withheld if a regular or special assessment is not paid?

Answer: In some states there can be provisions for such actions. However, the declarations of the homeowner’s association must address such a situation before it probably can be enforced. Additionally, any such action probably will require certain notifications as set out by the association declarations as well as any state regulations.

In most instances, as long as the utility company has received payment for its services (the homeowner’s association pays a single fee for utilities for all properties) the utility most likely will not directly cut off the service. The homeowner’s association will most likely have to take the action itself.

Question: Must a homeowner’s association publicize its regular and special meetings?

Answer:Any homeowner’s board of directors is generally restricted to what it must do by its governing documents. Usually, closed meetings are authorized only to discuss specific items such as litigation or personal issues.

Question: Can a member of a homeowner’s association sue the association itself or the board of directors if they feel the board is acting improperly or unfairly?

Answer: Any member of a homeowner’s association usually can sue the board members personally or the association. The court will then determine if the actions being questioned are within the province of the board, if the actions taken have been done so negligently or in bad faith.

Board members have a fiduciary responsibility to the association and can be held liable if they breach this obligation by actions that are deemed dishonest. Courts generally will not second-guess the actions of the board in making business judgments providing the court determines that actions have been taken inn good faith and have been made within the scope of association documents authorizing such actions or activities.