Ask the HOA Expert: Rules of Order, Fees And Negligence

By Realty Times Published Oct 3, 2023 12:21 pm

Question: If the board agrees to an action but does not follow the Roberts Rules of Order as far as making a motion, seconding and voting for the motion, is the action legal?

Answer: If state statutes or your governing documents require use of Robert’s Rules, the board needs to use them at board and annual meetings. Otherwise, agreeing to something as you describe is acceptable. However, a simplified version of Robert’s Rules is highly recommended to keep the meeting organized and to ensure a balanced and meaningful discussion with a purposeful outcome. Without it, meetings can easily become bull sessions with little accomplished. More on this topic is available to Gold Subscribers of www.Regenesis.net in the Meetings section.

Question: The board recently imposed a fee of $500 per year on all owners that rent their units. Is this discriminatory?

Answer: The board has no authority to charge certain owners special fees like this. If a fee is justifiable, it should apply to all owners.

Question: Our president likes to get only one proposal from a company. For example, we are having $7000 worth of tree work done. Then, without a board meeting to discuss the proposal, he goes door to door and collects director signatures avoiding those that would disagree with the proposal. I thought that approving expenditures required a vote of the entire board.

Answer: Unless the $7000 was already approved in the budget, three proposals are in order. Those proposals should be presented at a regular board meeting and approved with the usual motion, second and vote of all attending directors. The meeting minutes should reflect this board action. Based on the facts as presented, the president is playing fast and loose and needs to be reined in. The president serves at the pleasure of the board. If he won’t play by the rules, the board majority can remove him from office and replace him with a director that will.

Question: We are trying to determine how to handle an insurance claim caused by an overflowing toilet flood. Is this a case of negligence and, if so, should the unit owner of the toilet in Question pay for the damage?

Answer: “Negligence” in insurance terms means the occupant somehow caused the problem, like leaving the bathtub running, as opposed to a spontaneous pipe break. If there is negligence, the unit insurance may pay for damage to the common area or other affected units.

However, normally each unit owner is responsible to repair his own unit’s damage. The HOA’s insurance is broad and will often pay for this kind of claim, however the board should set limits on which claims the HOA will pay because if the HOA files too many claims, it may get its insurance cancelled or premium increased substantially.

All HOAs should enact a Maintenance & Insurance Areas of Responsibility Policy that defines common elements and who (HOA or unit owner) is responsible for maintenance, repair and insurance. This policy will guide the board in handling repairs and claims. The HOA’s insurance agent should be provided a copy of the Policy so there is no misunderstanding.