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 […]

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.

6 comments

  1. At our airpark, we have experienced considerable duress and legal expense over the past three years due to airport safety violations and refusal to pay CC&Rs-required fees. This has led to a good deal of actual real-world legal experience. The answers to the above questions appear to be legally correct. [I am not an attorney – just educated by hard knocks.] However, in reality [in our airpark’s experience], people can withhold payments, break covenants, and do just about whatever they want if they are motivated to make trouble, they have excessive money, and they realize that the legal costs to the association can far exceed the values of the fees due to the association. Further, if your CC&Rs are comprehensive [lengthy], there is a good chance that the court will not have time and resources to fully comprehend and enforce what is written. The more comprehensive the CC&Rs, the easier it is for the opposing attorney to intentionally confuse the judge and jury. I hope that other airparks have more positive experiences to report, but in our experience (and in our court), we are coming to believe that comprehensively-written, lawyer-blessed CC&Rs are not worth the paper they are written on.

  2. Jack Horn

    Our HOA covenants have been in place for over 23 yrs. but have never been enforced to the letter of the law. Recently, an atty told us the statute of limitations for covenant enforcement is 1 yr. Now we are getting some very high end homes being built that want the covenants enforced and the current board’s hands are somewhat tied as to what can be enforced. Any ideas or references?

  3. Brent Wenger

    Our flight park has a serious HOA problem and little concrete evidence to help. Can other flight parks provide info on how they compute dues and assessments. We have a feeling that most compute dues/assessments on a per acre or per parcel basis. How many of you use 1 dues per member regardless of acres/parcels and how many of you give 1 vote for each acre/parcel assessed?
    Thanks

  4. Wesley Hunt

    Our association is making a fee to make up for those who have not paid their dues. Is it legal to have these names printed in a newsletter so that all can see who has not paid? The board says this is illegal.
    Thanks.

  5. Tom Marino

    Can a HOA use home owners dues to cut grass adjacent to our development? The parcel of land (about 3.5 acres) literally doubles the monthly lawn care fees. Secondly, we have used a particular disposal company for years and even though we had made a quarterly payment in advance they find us for non payments to the new trash company. The original community bi-laws said nothing about about who is designated to pick up trash. Finally, the HOA did not have a meeting in 2016. Does that constitute a breech of rules of the HOA?

  6. Ben Sclair

    Interesting questions Tom…
    1. HOA due usage? My assumption would be yes. Whatever the HOA members agree to, by vote, can be done.
    2. Pre-Payment of disposal fees? Sorry to say, but that is a question to discuss with the disposal company. As for which company is designated to pick up trash? I was under the impression many of those contracts are negotiated at the over-riding municipal level. (For example, if your airpark is in a City, the City would negotiate who gets the refuse contract. Same at the County level.
    3. Meeting Rules? Without reviewing your bylaws/rules, I couldn’t answer your question. It is certainly not wise.

    The above said… please note, I’m not an attorney and this isn’t legal advice. My recommendation, if you are having trouble connecting with your fellow HOA members is to consult an attorney.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.