Specific Assessment

Hello: our HOA was legal on Oct. 4, 2012. We are almost finished writing new Bylaws. While researching I found the following:

Specific Assessments. The Board shall have the authority to levy specific assessments against any owner to reimburse the Association for costs incurring in bringing an Owner and his or her Lot into compliance with the provisions of the Articles of Incorporation, these By-Laws, the Association rules and regulations, or any covenants affecting such Owner’s Lot, and for costs incurred in repairing damage to the Area of Common Responsibility or Common Area caused by such Owner or Occupant, which specific assessment may be levied upon the vote of the Board after notice to the Owner and an opportunity for a hearing.

Is anyone familiar with this? We have some landlords and their tenants damage the mailbox and park in the yard and cause ruts. The Board is new and we have Leasing Restrictions, Fines and a dozen other items on our To Do List.

Do Specific Assessments supersede the Board writing resolutions for fines and leasing restrictions or should we include this language in Bylaws now? I ask because the language appears to strengthen any future resolution the Board adopts for resolutions for fines and leasing restrictions. We would appreciate your assistance.

Because the covenants were mostly created for the Developer and not the property owners which is fairly typical.

Margo,

Let me elaborate just a little.

The recorded declaration of covenants set out the obligations that each property owner has to the association, including the payment of assessments. Failing to pay assessments can lead to foreclosure and loss of the property. By purchasing property covered by the covenants, each owner implied acceptance of those terms and conditions.

The bylaws set out the rules by which the association will operate. Bylaws typically state who may run for the board, when elections will be held, what officers there will be, terms of office, etc. Bylaws must conform to state law (both statutory and common law), the articles of incorporation filed with the state when the association was formed, and the recorded covenants.

Your board is attempting to add new obligations by way of this "specific assessment." That goal is not wrong but trying to do so by altering the bylaws is wrong. Your association is attempting to unilaterally impose an additional basis for obligating the property owner to pay under penalty of foreclosure. In doing so, your bylaws no longer conform to the conditions set out in the declaration.

Covenants normally have some means for amendment. This should be stated within the body of the declaration. To be legally enforceable, the amendment process must be followed to the letter.

The fact that it is easier to amend the bylaws than it is to amend the covenants is not an argument I would want to make to a judge. A criminal could use the same argument: it was easier to rob the liquor store than to find a job.

I should add, that we have been advised that even with this language in the CC&Rs, the board should not enter another person's property to do maintenance or repairs unless the issue is a safety issue to others (which makes sense).

However, this language does address any willful or negligent damage to the common area and allows the board to recoup funds expended to correct the damage.

Margo,

In rereading, I realized that your proposal also addresses the cost of collections for unpaid assessments. Again, we have that issue within our CC&Rs but under a different heading. Here is that language:

Effect of Nonpayment of Assessments: Remedies of the Association: Any Assessments which are not paid when due shall be delinquent. Assessments are due on the first day of the month and must be paid not later than the last day of the month. When an account is in arrears, a charge of ten (10) percent of the unpaid balance per month will be assessed for each following month that the account is overdue. The Association may bring an action at law against the Owner personally obligated to pay the delinquent assessment or foreclose the lien against the property and interest, costs and reasonable attorney’s fees of any such action shall be added to the amount of such assessment. No owner may waive or otherwise escape liability for the assessment provided for therein by non-use of the Common Area or abandonment of his/her Lot.

I would suggest using a dollar amount vs. a percentage for late charges. Percentages make it bookkeeping pain.

Additionally, we were advised to include the following paragraph as a better definition of "costs" used in the above. It should be in our CC&Rs but barring that, the attorney suggested we include it in our policy about assessments:

“Costs of Collection” shall include, but shall not be limited to administrative charges; notice charges; process service charges; legal fees; release fees; copy charges; postage and mailing charges; return check charges or any charge incurred by the association or its agents, contractors, or management in the collection of a lien, any assessment, as authorized in any judgment, by foreclosure or judgment action, regardless of whether the dispute is settled by agreement or by legal action.

I ASKED for information on this website because I never heard of Specific Assessments.
You, Larry, stated that the owners are totally clueless due to the fact that their sole qualification to serve on the board of directors is that they bought a house.
What is your problem besides assuming the Board is clueless? We have a good HOA Attorney. He already reviewed our Bylaws and the Board is holding a Special Meeting of the Members to discuss, answer questions and then ask for the vote to approve the Bylaws.
I was researching other Georgia HOA’s Bylaws and came across a term I never saw before: Specific Assessments. The last time I checked, America is still a free nation and we are free to research topics and ask questions.
We have talented and professional Board members and lived in a HOA before I built this home. I chose to build in and live in a HOA.
I felt you were really rude but you were more decent in your other post: Let me elaborate just a little; so maybe you aren’t so rude. Maybe, you realized I just asked a question.

MargoT,

1.You wrote: “We are almost finished writing new Bylaws”. And that while researching you came across the words “Specific Assessments”. You then asked, as I interpret, should we include this language in our Bylaws?

2. In reply Larry pointed out that words addressing Specific Assessments are not typically put in the Bylaws.

3. Then you post: “Because the covenants were mostly created for the Developer and not the property owners. So now I guess, you are asking should the words about a “Specific Assessment” be included in the “Covenants”, when you originally asked should they be included in the “Bylaws”.

4. I have found that “people” often use the word “bylaws” incorrectly to refer to their Association Governing Documents, or to use “Bylaws” when they really mean “the Covenants” or “the Declaration”, and not the actual “Bylaws”.

Which leaves me wondering “how you are using the term bylaws”, because you then post that your Attorney has already reviewed our Bylaws, but mention nothing about the rewriting of your associations Covenants.

5. None of this is to answer your specific question, but I do wish “people” would be careful to use correct terminology when referring to their Homeowners Documents.

Ellie summed up this thread. But I just want to clarify, as I see this error more often than needed.

There is the Declarations of Covenants & Restrictions, and the By-Laws. These are two VERY separate documents, and contain, for the most-part, different information.

Specific Assessments are also called Special Assessments. To my knowledge, these are one of the same. This provision should be in your Declaration, not your bylaws. This provision is an absolute necessity in any association.

Tim and Larry:

Your responses have me searching our Declarations. Help me out here: Our Developer goes into detail about the Right of Abatement: notifies Owner in violation of breach by certified mail setting forth in reasonable detail the nature of such violation or breach and specific action(s) to be taken to remedy such violation or breach and gives the owner thirty (30) days notice. If owner does not comply thirty (30) days of written notice, HOA shall have the Right of Abatement. It would take too long to type the entire language.

So, I will ask: Is this the same as a Specific Assessment?

Thanks for helping new Board members.

NO, your assumption is incorrect: I did not want to include in our Bylaws, I asked a lot of questions because I did not know.

NO, you assumption is incorrect: it costs money to Amend the Covenants.

NO, you don't need to worry about my confusing the Declaration of Covenants, Conditions and Restrictions with the Bylaws. You are assuming again.