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Ask the HOA Expert: Pet Rules

Question: The board recently sent out a notice of new Pet Rules which includes that pets should not be walked within ten feet of the buildings. Violations carry a $25 fine. Although not expressed, presumably it has to do with pet messes. Thoughts?

Answer: There is a basic premise in making HOA rules to never make a rule that is unenforceable. This one has “unenforceable” written all over it. Uncontrolled animals roam and some of the problem may be from non-resident animals. Does the board really intend to do DNA testing on all the offenders? Unless there is a flagrant and documented disregard for the pet cleanup rule, this is a rule that should never be. Deal with repeat offenders and leave the rest alone. A simple “Pet owners should clean up after their pets in the common area” rule is enough.Last but not least, all rules should be circulated to the members for comment prior to enactment. This way, the residents are put on notice and given a chance to advise if the board has gone too far.

Question: For the past three years, our resident manager, a unit owner who was hired as an independent contractor, has been paid $1500 monthly with $125 of that being “applied” to monthly dues. Comments please!

Answer: The resident manager does not qualify as an independent contractor unless he is doing similar work for other clients, has a registered business name, Federal Tax ID, etc. I suspect that he is doing none of these things. What you describe is a common ploy to avoid paying taxes, unemployment insurance, workers compensation insurance, social security and other required withholding. Unless this individual qualifies as a legitimate contractor according to the IRS’s standards. the HOA should treat him as an employee along with all proper withholding. To do otherwise, puts the HOA in jeopardy of an IRS audit, fines and penalties. And if the manager is hurt on the job, he could claim disability and medical benefits against the HOA. This situation should cease immediately.

Finally, resident managers often receive housing and utilities as part of the benefits package because they are required to live on site. Tax regulations allow such job related benefits. But monthly HOA dues are not requirements of the job. To keep the accounting straight, this owner should tender monthly dues payment just like any other owner.

Question: We have a homeowner who is demanding to have copies of all architectural and landscaping modification requests. The board has refused due to privacy concerns. Your opinion?

Answer: The board is not required to provide copies of records, only to make certain records reasonably available, privacy issues an exception. Architectural and landscaping issues really aren’t privacy issues since the outcome could impact market value of neighboring homes. Arrange a time during normal business hours when records can be reviewed but not removed from the premises.

Question: We have a resident that is causing ongoing late night disturbances. The neighbor has made repeated requests to the noisemaker that have gone unheeded. What next?

Answer: Since the neighbor has made reasonable attempts to deal with an inconsiderate neighbor, it’s time for the board to take aggressive action. There should be a fine policy in place for noise violations which identifies Quiet Hours (10 pm to 8 am is the norm). The fine should be enough to get attention, like $50 the 1st offense, $100 the 2nd , $200 the 3rd.

Before fining, however, have a heart to heart with the offender explaining the problem in specific terms and the need to comply with quiet hours. Try to get compliance without resorting to fines if you can. Once aggressive action starts the neighbors will most likely be alienated from one another and reconciliation will be difficult. You might also suggest mediation as a way of having a neutral third party negotiate a compromise without either party losing face. Most cities and counties offer mediation services to HOAs.

If cajoling, mediation and fines don’t do the trick, the HOA may need to get a court injunction against the offender. With an injunction, local law enforcement is authorized to intervene. This is, of course, a last and drastic resort.

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