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DavidW5 (North Carolina)
Posts: 565
Posted:
As some of you know I moved from my HOA in Virginia in November to an HOA in North Carolina. I have now been appointed assistant treasurer at the new HOA. I have now learned that the board's investment policy allows up to 40% of the funds to be invested in uninsured mutual funds, ETFs, and preferred stocks. The rest of the board does not appear to have any concerns about the risk to the invested principal. In fact, last year the investment they had made in a bond fund was sold at a significant loss.

I have provided the other board members with a compilation of articles from various law blogs and HOA advice publication that strongly recommend against this practice but they do not seem inclined to accept my recommendation that the policy be changed and to liquidate the remaining uninsured investments (which would result in a gain at current market levels). I want the policy to require only investments backed by the full faith and credit of the US government.

Are there any HOA's represented here that allow such uninsured investments? If so, please post how you would explain to the membership a loss of principal. Would such a loss subject board members to personal liability for violating their fiduciary duties?
KerryL1 (California)
Posts: 14,550
Posted:
All of our funds are invested in FDIC insured institutions as required by our CC&Rs. CA has no such requirement. Wonder if NC, might, David.

Sounds like you're in another large HOA, yes?
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By DavidW5 on 03/11/2015 7:36 PM

Would such a loss subject board members to personal liability for violating their fiduciary duties?

Probably not. Under the Business Judgment Rule, board members are allowed to do stupid things.

Unless a person could prove that the board members had some sort of underlying motive, such as making a personal gain, they are not personally liable for making bad decisions. The ultimate responsibility rests with the membership who sat idly by while the board did dumb stuff with their money.

MarkM31 (Washington)
Posts: 556
Posted:
Quote:
Posted By DavidW5 on 03/11/2015 7:36 PM
I want the policy to require only investments backed by the full faith and credit of the US government.

Such accounts pay what kind of interest? Zero?

There is nothing wrong with a mix of investments, including bonds (municipal and corporate) and mutual funds.
JonD1
Posts: 2,350
Posted:
First off the business judgement rule does not permit boards to do stupid things it simply requires they act in good faith. If some board decides to invest outside bank accounts and CDs in the hopes of better returns is their motive to lose money for the property? I would guess not. And if successful I would guess their decisions would then be other than stupid.

I would ask if there are guidelines in your documents or your state laws governing where HOA funds can be invested.

Is there any rules that prohibit such investment?

My next question who is making these investment decisions and based on what information?

Is some investment advisor being used? If so that might suggest they are acting in good faith.

Then I would ask for how long has this been done? And what rate of returns has the HOA seen?

The fact one investment lost principle does not condemn the entire effort.

When CD rates dropped to below 1% we discussed investing elsewhere I or no one else was comfortable investing the property's money based on our decisions. That was our choice but if there is no LAW preventing such investment then the board might have the authority to do so.

Results would matter to be absent any legal restrictions.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Bruce posted this in an earlier thread on the same topic:

Here are some additional points to ponder:

According to the law firm of Epsten Grinnell & Howell, in a newsletter article, "Losses from investments in riskier or speculative securities could be personally charged to the individual Board members who authorized those investments." And "Thus, safety of deposit and preservation of principle is the first and highest priority." "It is this firm’s opinion that all investments should be in federally-insured Certificates of Deposit or Treasury Bills backed by the United States Government." (and, the NAV of mutual funds is not backed by the U.S. Government.) Finally, the firm goes on to prioritize the investment objectives of an association’s reserve account: 1) Preservation of principal, 2) Liquidity, and 3) Return.

From HOA Leader "Practical Guide to Homeowner Association Management": "Some HOA boards place their funds in riskier investments, but that carries its own dangers. Without explicit disclosure and formal consent from association members, you could face anger and lawsuits if your reserves drop. Even if you get members' consent, you'll still likely face claims that the risks weren't adequately explained. All in all, risky investments are the surest way to invite trouble."

From Reality Times: "Because of fiduciary concerns, the Board should usually only invest in guaranteed and insured investments unless the membership votes to be more aggressive. In either case, there should be a clear and written investment policy for the Board to follow."
JamesG (Connecticut)
Posts: 83
Posted:
Our documents and the state laws were not clear on this issue. When we transitioned from developer control we researched the issue and formulated the attached policy. This policy requires compliance from all future Boards unless they vote to change the policy which would require notification to the association members.

Jim
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📄1312471477571.pdf(62 KB)
KerryL1 (California)
Posts: 14,550
Posted:
Along with Tim's citations, which include Epsten, Grinnell & Howell, a well-respected HOA law firm in CA (maybe elsewhere too?), here's advice from another good HOA law firm in CA:

Investment Strategy. Prudent investments of reserve monies should focus on the following parameters in their order of importance:

Safety. A board's primary goal should be the preservation of the association's reserves against loss. Accordingly, investing in mutual funds, money market funds, and municipal bonds is considered by many to be too risky. Certificates of Deposit, Treasury Bills and Ginnie Mae securities are generally considered safe because they are direct obligations of the U.S. government. Simple bank savings accounts, while secure, may be too conservative because of their low rates of return. Sometimes an association's governing documents require that funds be kept in FDIC insured accounts.

Liquidity. Liquidity refers to the ability to quickly convert investments into cash. If reserves are tied up on long-term investments, they will not be available in the event the association needs to (i) use funds for emergency repairs, (ii) borrow for short-term operating expenses or (iii) repair or replace large common area components that reach the end of their useful life earlier than expected. Accordingly, investing all of an association's reserves into a jumbo 3-year CD would not be prudent. A more prudent strategy is to invest in smaller CDs and stagger them to mature every six months.

Yield. Yield is the return received on an investment. Boards should seek a reasonable return on the association's reserve accounts but should never adopt a strategy that emphasizes return over preservation of capital (as occurred with Orange County in the 1990s and resulted in bankruptcy when the investments collapsed).

Read more: Investing Reserve Funds http://www.davis-stirling.com/tabid/1503/Default.aspx#ixzz3UBkNzF4Q
from Davis-Stirling.com by Adams Kessler PLC.

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