Public Utilities Right-of-Way

Started by cpoulin • 8 replies • 1331 views

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cpoulin (Colorado)
Posts: 35

Posted:

I need to know if the Association would be responsible for charges from a PUC (Public Utilities Company), if the managing agent made a decision(changed fence location)that inpeded the ability of the PUC to access equipment that belongs to the PUC????

The managing agent made a decision to move the original fence line, while staying in property boundries, when replacing a damaged section of fencing. Now the PUC is having a very difficult time accessing the equipment and is stating that they will charge the Association to change the equipment to be more accessible.

The BOD has stated, "You don't want to get on the wrong side of the managing agent." and usually goes along with anyting he says. Please help with some information on this issue.

Concerned Associate Member

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Your management agent is YOUR sub-contractor!!! Your BOD tells them what to do. They don't tell you. The only reason that is even happening is because of the relationship with the BOD and HOA is not understood. The members tend to think the management company handles everything and just gives the power over to them. It's not so. The power lies within your BOD. They are the one's that are to make the decisions and forward those decisions to the Managment company. If the management company doesn't comply or do it's job, then the BOD can fire them. If the management company was truly "in charge" they could fire the BOD. That's not the case.

Yes, the PUC can take down that fence and possibly charge the HOA. It's in their way and they are allowed access. Typically, any damage they do, they cover. However, this is an interference to their job already erected. So they can remove it as they wish and have the HOA responsible. IF the fence had gotten damaged because the PUC hit a water main and ruined it that way, then the PUC is responsible. If the fence is on top of the water main already, then it's the HOA's reponsibility.

Tell the management person to move it. If not, send the company the bill for it. Your BOD may want to start looking for other M/C's just in case.

Former HOA President

RogerB (Colorado)
Posts: 5,067

Posted:

Melissa, I agree with the theme of what you are trying to say, but must correct you on your statement "Your management agent is YOUR sub-contractor!!! Your BOD tells them what to do.

The Managing Agent is not a sub-contractor; nor are they a contractor. They are an Agent who acts on behalf of the association through the Board. It is the Mangement Agreement which gives them the authorization to act on behalf of the association and spells out their duties. If the Board desires to have the Managing Agent do other things, beyond those spelled out in the Agreement, the Agent will do them at an hourly rate, so long as they do not involve wrongdoing.

To further clarify, the Board is authorized by the By-laws and CC&Rs; the MA is authorized by the Management Agreement. The Board remains responsible for everything including those duties delegated to the MA. If the MA is not being sufficiently responsive to a member of the HOA then they can go to the Board with their problem. The Board can decide and give instructions the MA.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

cpoulin: "The managing AGENT MADE A DECISION to move the original fence line, while staying in property boundries, when replacing a damaged section of fencing...." The Managing Agent should be making ONLY the decisions the Board gives them the power to make (and according to the Assn/MC contract & role responsibilities). It is ultimately the Board's responsibility to ensure that the MC is acting at the Board's direction.

The questions to be answered are:
- Did the managing agent have authorization FROM THE BOARD to have the fence location changed?
- Did the Board sign with the vendor for the repair of the damaged fence?

cpoulin (Colorado)
Posts: 35

Posted:

To PaulB

The question about, "Did the managing agent have authorization FROM THE BOARD to have the fence location changed?", as previously stated the BOD goes along with anything the MC tells them. I doubt if anyone on the BOD even knows about, or has noticed the change. They only notice that the fencing has been repaired.

The question about, "Did the Board sign with the vendor for the repair of the damaged fence?", there wasn't a vendor.
The association has an on-site handyman(who no longer resides on site) hired by the MC, who did the fence repair. The handyman and MC are drinking buddies.

Does this help clear up your questions? The BOD followed what the MC said and let the repairs be done.

Thank you to all who responded!!!!!!

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I would like to make a suggestion. As one that's had a "Drinking buddy" handyman situation, it's time to adopt a 3 bid policy. Suggest to the board that ANY repairs (Maybe over $50) must have 3 bids. Anyone can bid or suggest a bidder. It can be open to a homeowner (Still must pay their dues can't subsitute work for dues), a friend of a homeowner, or the drinking man himself. It's just got to be put out in the open and for everyone to agree to the FINAL bidder.

I had to do this because of a ruthless con-man living in our HOA. He was the "Handyman" in our neighborhood. He is as untrustworthy as a congressman in a brothel. However, he still had his supporters. I had to respect that but I also had to put limits on that. So I made it mandatory for bids. This still allowed the crook to get his bids on occasion but it also made him work harder to get them. Regardless, I still had to go behind him and fix or drag him back to finish the job. I can tell you stories...

Former HOA President

PaulM (Pennsylvania)
Posts: 1,347

Posted:

MelissaP1: With all your experiences, I am looking forward to your book coming out...

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Thanks! I am considering writing one. Although can't find a publisher quite yet. Some people may believe some of my stories can't possibly be true. However, if your ever President of a HOA one day, you know I am not even hit the tip of the iceburg on experience!

Former HOA President

JM2 (Oregon)
Posts: 439

Posted:

Generally, the plat map will show where the utility easements are. If there is anyting built over the easement (landscaping, fences, etc.) then when the utility needs access, they can dig up whatever they need within the easement and it's up to the person/entity to restore what was placed on the easement, not the utility.

It may be very wise for the HOA to move the fence back outside the easement.

Regarding the Board's work with the Manager, the manager makes recommendatons to the board, but the Board then has to make up their own minds on things, to fulfill their fiduciary duty. This may also involve asking for more bids than the manager's buddy's price on things. It may be worthwhile for the board to define (if not already in the contract) at what point the manager has to come in with multiple bids, as opposed to below that, when the manager gets the work done by a preferred vendor.

J. Patrick Moore, CMCA

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