Rose colored glasses or cold hard world?

Hi PjW:

You have here the difficult line that those who volunteer must walk.

An HOA is in essence a business (i.e., Non-Profit Corporation, etc.) in which all homeowners own a percentage of said business. All actions also must be viewed in a non-partial manner regarding what is in the best interest of all business owners, not just for a few while following the Articles of Incorporation, By-Laws, and State Corporation Statutes.

Then you have the Declaration of CCR’s which govern other various aspects of the business members and their property. Again, the issue is conducting business in an impartial manner regarding what is in the best interest of everyone within the community following the governing documents and state statutes.

In essence the board’s responsibility is to insure the business operates properly and all governing documents are followed. The board also needs to try and insure it does so impartially and in a manner fair to everyone within the business organization. This is the cold hard business world we all live within.

Then you have the other side of the line in which the board members are also homeowners within the association. Just because they volunteer time and effort to insure the business operates properly, does not mean that they still do not have their property rights. This is the time period when they will look around with the rose colored glasses.

The two sides you mentioned I agree are not exclusive:

If you look through the eyes of a realtor they are going to view the aesthetics with regards as to does the homes, landscaping, community property, etc. appear to be well taken care of and maintained. If the governing documents are followed as the business members agreed and apparently wanted when they chose to purchase within the subdivision, then the other concerns are met regarding the maintenance of common areas, etc. Both the required community areas are taken care of and the potential value of all homes is protected.

Also, if everyone volunteers and works together you then will generate a “team” for the community. The other group needs to realize that it is not the business board who will build a neighborhood; it is instead the neighbors themselves who are responsible for insuring these actions. It takes neighbors being involved and also volunteering on committees and participating in meetings. A close knit community is where you will get the sense of warmth and pride, this is not something that a board can wave a magic wand and instill within the members.

Okay - I'll double check our papers to see what's laid out there. I'm thinking its something rather vague which was how all our papers were written 20+ years ago.

So what if you're having a problem getting people to sign up for committees but if they see you doing something they'll come out and help a bit. Community involvement is like pulling teeth for us but it was stating to build until this year when we got new board members that are particularly well liked in the whole communtiy.

A HOA runs BOTH as a government and corporation. It's structure includes Board members, President, and shareholders. It also has an Executive, Legislative, and Judicial Branches. Unlike a corporation, the BOD and officers are ELECTED out of it's general membership. The BOD members are to act on the behalf of the GENERAL membership on day to day operations. Which means the BOD act as Senators in a pure government environment. Owners have the right to vote which straddles the line between empowerment to run the HOA as they view it should done and where the money goes.

I always say that a HOA is run by it's owners FOR it's owners just like it's funds. The power to make changes is IN the documentation and NOT in the power to bring lawsuits against your fellow neighbors and yourself. People who look outside their HOA for answers/solutions tend just to bring even more restrictions upon themselves.

All in all, the BOD is to represent the WHOLE of the membership. When I was president, my goal was to act as a FASCILLATATOR to my members. If they wanted our streets painted red, my job was to find out how much that would cost and find a way to get it done. It was afterall ALL of our money, and what majority or most participated wanted is what you got...

Melissa, I actually don't understand what you mean when you say an HOA is a government with 3 branches. I've read where you've said that before, but I'm struggling with your point. Can you expand it a bit?

Rob

The Executive Branch is the President. The Legislative Branch is the BOD/ACC. The Judicial Branch is the BOD/Officers/Lawyers. If you have a democratic government you have the 3 branches and the positions in the HOA can somehow be put into those branches. A HOA is BOTH a mini-government because it is ruled by it's people but also a corporation because there is a monetary component.

It's all in that right to vote each owner in good standing has at their disposal and their freedom of speech. All should be balanced just like the budget...

Hi Carol

We are a small-ish HOA - about 90 townhomes on only 3 tiny streets. We have no pools, no clubhouse, no fun amernities, just a couple of garden beds. Yes both parties want to keep common areas nice they just don't have the same vision. For example one side want's to keep kids out of the common areas (ie no skateboards, no scooters, no bikes, no toys - which I believe is against Fair Housing) and the other side is trying not to exclude people but would like to protect both people and property (so the only thing this side has asked is that kids play with balls in the large open areas away from homes and cars).

We currently have a 9 person board - to big in my opinion, but that's what are papers say we should have. In the past we have worked with 3-5 on the board and that worked fine since there isn't much to take care of. The new people (who are not very well liked) got on the board because we had 4 open seats an no one ran to oppose them.

We have anemic H.O. participation.

I would not call the President of the US a dictator, nor would I call a Senator one. But that is because, by law, neither one can do or control more than 1/3rd of the governmental process. The president can execute laws, but cannot make them. The senator can make laws, but can be overruled by the judicial courts.

However, in many many HOA's, there are no distinctions among these duties: the president (and board members) can write the laws, execute them, and judge the legality of them. There are some checks/balances, but the raw power of all three major duties lies in one governing body. It is not split apart as a true tripartate government does it. To do so in an HOA would require electing a rules committee to write code/regs and rules, elect a separate group of people to execute them, and a third group of people to over-rule and adjudicate questions of the workings of the first two groups. Three separate, independent bodies.

An HOA, even with committees, is not a tripartate governmental system. It's much more a board of directors of a simple corporation than representative of the US government.

lol.. Yes he did.
1) At the request of the UN as well as with NATO approval
2) The president has the specifically deliniated power to command the US Military. There may even be a title given to him to do so, such as Commander in Chief of the US Armed forces or something.
3) Congress has the deliniated power to declare war... no such war has been declared. Congress has NO deliniated power to manage the Armed Forces of the US (as such power has been placed, by law and charter, in the hands of the executive branch, where the President owns it)
4) The very fact that a President could be impeached for his actions by a separate body of government, and/or his actions declared void by a court system, are what make a tripartate government system 'work' as a series of checks and balances.

I think the analogy of an HOA to the U.S. government is stretching it past its breaking point. And that's one of the problems, in my opinion. We play at governing, but in reality, we are only corporations (those of us whose HOAs are, in fact, corporations). We aren't municipalities, counties or states, and we are bound by the real branches of government in the land.

The 3 branches of the U.S. government exist as 3 separate and unique divisions, each with its own rules and regulations, and each with its own powers. It's a system of government that has built into the checks and balances necessary to prevent one branch from taking control, and even when we've seen an imbalance over the course of American history, the pendulum always swings back.

I'm going to speak only about California HOA government, because that's what I know. Your mileage may differ.

First, we only have one body: the membership, and one group of people elected to represent that membership: the directors. The homeowners elect the directors, and the directors elect the officers. The directors can remove an officer - including the president - and replace him or her anytime they wish, simply by voting in a regular meeting. No special recall procedure needed. There is nothing like that in the U.S. Government.

President: The president has no authority to speak of, and in fact, is the commander-in-chief of nothing. The president is answerable to the directors, and cannot be removed from office by the homeowners.

Other officers: VP, Secretary, Treasurer - all are answerable to the other directors as a whole.

Directors: A director is not necessarily an officer, and an officer is not necessarily a director. Only directors may make motions, second motions or vote on motions. Directors are answerable to the members of the association, and can be recalled via petition to hold a special meeting of the membership at any time. It only takes a vote by a majority of a quorum to remove a director.

Here's an excellent summary of the Powers of Board and Membership in a California HOA.

Another major difference is that directors are elected - and removed - by popular vote. There is no electoral college.

Legislative: BODs cannot enact laws. They can invent rules and regulations, but they have no force of law. Only the members can change the CC&Rs or by-laws. The BOD can't send the police to arrest someone for violating a rule, and any enforcement is strictly limited to civil action, and even that is limited in California when it comes to foreclosing and collections.

Judicial: There is virtually no judicial authority in an HOA. There is no constitution, and no Supreme Court to determine the constitutionality of any law, because there is no law-making authority anywhere in an HOA. There are no judges, and no lawyers. A hearing for violations of the governing documents is very limited in terms of what can be decided, and unlike an actual judiciary, no one can be sentenced to jail or prison for violations.

So, what are we, exactly? We are volunteers who serve our communities. The only actual power we have is the power of persuasion, and we have a fiduciary and ethical obligation to do our level best to make sure what we persuade others of is actually legal, fair and honorable.

That's my take on it.

Rob