Is Mangement company resposible to give advise?

Hello Everyone.

There is the background to my question:

I live in CA in an area of an extreme fire hazard, per our Specific Plan. Of course I have seen many Boards come and go, some with brand new residence on the Board. Everyone use to get a copy of the Specific Plan and the CC&R's when they moved in. For years now, they sent only the CC&R's though escrow to new residence. I finally got the Board to agree to send out the Specific Plan along with CC&R's (it was like pulling teeth because they thought the Specific Plan was not relevant). I explained to them that our CC&R's refer to the Specific Plan through-out and homeowners needed the Specific Plan to explain some of the CC&R's rules in detail.

Our Association has green firebelts in areas between tracks and only the Association can take care of them. Our Association was set up in a different way back in 1984 than the newer Associations in our area. Some of these green fire belts are on the private property of homeowners, but the homeowners, per the CC&R ,cannot maintain them, plant on them or change them at all per the CC&R's. People have been moving in and changing the greenfire belts on their property making them basically not a firebelt any longer. Unless they read the Specific Plans, they had no idea they were firebelts and not just landscape areas. The CC&R's state that they cannot plant on them, but it doesn't say why, it refers to the Specific Plan. Some Board members thought that the Specific Plan were only for the Builder when they started building the homes in our association, not so, it also has many other things including specifications for height, setbacks etc that the City uses when approving or not approving homeowner's plans in our HOA. Our Specific plan, per the City, trumps the city codes.

A member came to our Board meeting last meeting and complained about our green fire belts behind his home not being maintained as a fire belt and per our Specific plan needed to be turned back into a firebelt and nothing planted on those slopes that have been planted by homeowners or other uneducated boards cannot be grandfathered in and need to be removed because of fire safety issues.

The Board kind of panic due to the cost of cleaning them up and was going to have an attorney look at this. I will find out at the next meeting what the attorney said.

I saw this neighbor yesterday and I told him this was going to cost a lot of money. He said it was the management companies fault for not giving the correct advise to the Boards all these years. He said that some people were being fined, on and off all these years, for planing on those slopes but kept doing it anyways but Boards should of removed the unauthorized planing at that time. He said the management company, after all these years, should of read our Specific Plan along with the CC&R's and explained that those were firebelts to the Board and had to maintained as such, because some Board really had no idea that they were firebelts, they just thought that the Association had to maintain them as landscape areas. Again, It doesn't state why the Association has to maintain those ares in the CC&R's, it refers them to the Specific Plan that most Boards thought were not relevant.

So finally my question: Does the Management company have to know what the CC&R's and Specific Plan states and advise the Board when the Board seems not to understand what needs to be enforced and why? Can the management company be sued if they keep letting the Board make mistakes that ends up costing the Association lots of money? I know the management company cannot force the Board, but should they at least advise and make a note of it so they are not liable?

Hi, No the management company does not impose fines. I know our property manager does have copy of the CC&R's, she brings them to the meetings. I don't know if she has a copy of the Specific Plan but she may have one now. I say that because when I had to argue to the Board that homeowners needed a copy of the specific plan because the CC&R's referred to it, she is the one that said she could attach the Specific Plan to the CC&R's when escrow requested them.

Thank you for your reply

Say, Anna, you will get replies from actual property managers, so wait for them.

Meantime, what do your CC&Rs say about this "Specific Plan?" Is IT a governing document? Look at your CC&R's Definitions at the beginning of them (usually.) I do doubt your Specific Plan supersedes city code, by the way.

What does your contract say as agreed to by the Management company (MC) about the PM's responsibilities? I doubt it will say that they must advise the board about every thing. It may also say that the PM is not even responsible for advising the board about CA Civil Code.

The board is supposed to know what they should do and then vote to direct or instruct the PM to carry out their decisions.

Hi Kerry,

I called the City Planner regarding a homeowner's plan he submitted because I am on the ARC. She told me that our Specific Plan supersedes city codes. Reason is that the Specific Plan can have more stringent codes than the city codes, but not less stringent. The more stringent Specific Plan codes apply. We have many Associations in our area and the City Planner knows about all of them. They use the Specific Plans for each Association to approve or disapprove plans from the homeowners of each Association. Example, the code for patio covers is 12 feet high in the City, our Specific Plan states 8 feet high, the 8 feet code is the one they use for permits.

There is no mention of the Specific Plan in the definition of the CC&R's but in the CC&R's it does refer to the Specific plan in some areas. CC&R Example: "Notwithstanding the enforcement powers of the City under this Declaration, it is the duty of the Association to ensure that the Association and the Architectural Committee carry out their duties in conformance with the "Specific Plan 84-9", and to ensure the clearance of 100 foot fire bread green belts from residential structures outside of individual Lots and the use of low water/fire retardant ground covers."

Then you go to the Specific plan and it goes over this more specifically with a maps of the Association showing these area's as green fire belts.

I don't know what the contract says with the Management Company. I guess that will have to be looked at.

Thanks Kerry

Ah, sure, I now get what you meant by your Specific Plan supersedes the city codes.

Ask in writing for a copy of your HOA's contract with MC. As Douglas also points out, it's the board that's ultimately responsible for the MC doing its job.

I will take issue with Melissa saying the MC is just a contractor. Sorry, we, for the most part run the place on a day-to-day basis. If there is a plumbing issue, the MC is calling a plumber. If a landscape issue the MC is calling, and so forth. We will do the monthly billings, collect the payment, pay the bills, send out for bids, handle collections, handle emergency calls 24/7, 365 days a year, prepare taxes and financials.

Our job is to make sure we have all the relevant documents available to better serve the association. Some of we create web sites so relevant information is available to all homeowners 24/7.

What we should't be doing is giving advice. That can become a legal issue. Some states such as Florida frown on MC's giving "legal advice", but some of the MC's have better knowledge than attorneys. We should be giving our "best opinion", based on past experience.

MC's can't fine, we can issue violations based on the direction of the governing body. If the Board says they don't want owners written up for not replacing their trash bins after collection, that is the direction I must follow. It is not illegal. If annual disclosures are to be sent in December and they Board says don't waste association money sending them out because no one reads them, we have a problem as California statues requires such disclosures sent at specific times.

If there is ever a legal disagreement with a Board I will make sure it is well documented to protect my butts, as Boards will change.

It is the responsibility of the Board to know what the Specific Plan is and how it is to be enforce. The Board and the Association can be sued, but not the MC. If the Board gave the MC direction to enforce and the MC simply ignored the direction, different story altogether.

I think Richard you disagree with me just to disagree. The very first paragraph basically DEFINES the MC's relationship as a PAID contractor to the HOA. You get PAID to do ALL of that work! Your company is NOT a member of any of these HOA's you manage. You get PAID via a contract to do certain daily operations on the behalf of the HOA board. Each contract varies.

So to say you disagree that a MC is paid contractor to the HOA is not logical. You get paid via a contractual relationship with a not for profit corporation of which you are NOT a member of... Thus makes you a paid contractor...

Hi John, yes our MC does a weekly check. How it is done depends on who are Property Manager is. Around 2008 we change the MC and had brand new Board at the time. We have a lot of slopes in our Association that has to be taken care of by the landscape company. When she did inspections, she would actually walk the slopes and if there was ever a complaint she would contact the landscape manager and have him come out to look at the problem with her. She was an older lady but every good on landscape issues. She retired.

We have had a few property managers since with the same MC. All they do is drive around the neighborhood once a week.

correct

the MC is HIRED HELP, whether salaried or hourly or 'contracted'

an honest, competent, self respecting MC 'probably' would draw a line over which they would not cross ..... but,

only death and taxation are certain

I am currently going through a situation right now. One person on the Board wants to spend XXX amount on a capital improvement over the allowable legal limit. I said NO. That person had my contract terminated back in August, EXCEPT they nor the new MC (at twice the price) doesn't know how to do it. Sometimes you just can't make this stuff up.

While I was hired by the Board, I work for the Association. While the signatures on the contract might be individual Board members the language is what I will do on behalf of the Association and also what the Association is responsible for.

If what a Board wants is either unethical or illegal, I WILL NOT CROSS THAT LINE. As I said above I have a fiduciary responsible to the Association. I don't work for the Board, only take direction from them.