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Ask the HOA Expert: Bylaw Amendments, Restricting Occupancy

Question: We are considering a bylaw amendment that requires all board candidates to be residents of the HOA. Can we do that?

Answer: Restricting candidacy based on occupancy is illegal because all members, resident and non-resident have the right to serve on the board. It is also inappropriate because it assumes that resident directors make better directors than non-resident. This, of course, ain’t necessarily so. Board candidates should be evaluated based on their talents not location.

Question: Our governing documents restrict unit occupancy to three people. There is a unit that has four. What should we do?

Answer: If you have a limit of three, I assume your units are quite small. If you have two bedroom units, four would be reasonable but, honestly, this kind of regulation is overly intrusive. It’s not the number of people that dictate problems, but the lifestyle (unless we’re talking about multiple families sharing a dwelling). One obnoxious resident can create more problems than dozens of considerate ones. Rules should focus on behavior, not numbers (weight or size, in the case of dogs).

Occupancy rules are very difficult to enforce unless the owners willingly comply. It is a constant game of cat and mouse with the violator claiming extra occupants are just temporary guests. And to really enforce it, the HOA must be willing to go to court where the judge would likely view the rule as too onerous (read “you lose”). Unless there is a clear problem being caused by the extra occupants, this is a rule that is for all intents and purposes unenforceable or effectively so. Either amend the bylaws to remove it or send periodic reminders in the newsletter asking for voluntary compliance. Don’t make this a high priority enforcement issue. You can’t win.

Question: When is a resolution required and should they be included in the homeowner’s handbook?

Answer: Resolutions are necessary for expanding on and defining complicated issues like collections, architectural control, parking and others. They should be distributed along with other rules and regulations to the members. They should also be posted on an HOA website for the benefit of prospective purchasers, real estate agents and others that have an interest. Forewarned is forearmed.

Question: What should a homeowner do about a property manager that refuses to respond to telephone calls or e-mails? The manager told the board she wasn’t responding because the person “asks too many questions”.

Answer: Let’s assume that the property manager is otherwise doing her job correctly. Homeowner inquiries can take an enormous amount of time to respond to, especially if they take research. If the question relates to maintenance that is the HOA’s responsibility, the manager should respond. But certain owners can engage the property manager in fishing expeditions related to board actions or projects. They badger the manager for details of contracts and meetings and demand copies of records. While it’s an owner’s right to review certain information, demanding the manager’s time to compile the information is not.

The property manager’s basic scope of work is typically limited to “ordinary and routine” HOA business. When a member, whether board or general, makes repeated and special requests, it exceeds the intended scope of work that the manager is being paid for. The manager can respond to this several ways:

1. Start charging for the extra work, or 2. Stop responding to requests that are excessive or non-routine business.

The board should either defend the manager against owners that believe the manager is being paid to do anything and everything or be prepared for extra charges. To do otherwise is unrealistic and ultimately will fracture the board/manager relationship.

To control costs, there must be reasonable limits to homeowner requests. The manager usually knows when an owner has reached that point and should expect the board to intervene or support the manager’s judgment.

Question: We have number and weight limits for pets at our HOA. Can we also require that pets be spayed, neutered, have ID and required shots?

Answer: These requirements would be going too far. Even a weight limit is too far. The issue should be based on demeanor, not size or reproductive capability.

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