HOA property inspections

Several months ago, my 20+ year old HOA for the first time hired a contractor to conduct property inspections; previously, annual inspections were conducted by the HOA management employees. Based on the contractor's findings, the HOA sent code violation notices to several hundred property owners, stating that their driveways were faded and discolored, and therefore had to be resealed. These notices did not include a specific covenant that was violated. The attached instructions from the contractor said "Stating 'where does it say I have to fix this' or 'this was never cited before' are not valid assertions." These first notices effectively gave only 33 days for compliance, even though 45 days is standard, although not specified in the HOA due process resolution. That resolutions also does not specify any time limits on HOA actions until the HOA files a complaint with its board of code compliance (BOCC).
The owners asked the HOA management and the BOCC to point to a specific covenant that required resealing of driveways. The BOCC refused and management did not respond. The owners looked through the HOA governing documents, but these only mentioned extensions and additions of driveways in the architectural design guidelines. Existing maintenance requirements are only generic, along the lines of "properties must be kept in good repair."
Subsequently, in a HOA board meeting management said the contractor was only given a list of property items, which simply said "driveways" without being specific. A board member explained that the contractor created the driveway resealing requirement based on his experience with other HOAs in the area.
In part due to a pushback from owners, the HOA stopped issuing new driveway resealing notices and declared that the deadline for compliance with resealing is extended through this year. Now the HOA board is trying to figure out what to do; there is a debate whether the sealing of driveways is a good procedure at all (many experts disagree). However, the HOA has refused to retract the outstanding notices, instead saying "let the [due] process play itself out."
The BOCC has realized that specific property maintenance requirements are needed for the first time in the HOA's history. It asked the HOA board, who turned to an architect contractor to produce a draft that will become the basis for a resolution. Unsurprisingly, that draft includes a requirement for sealing of driveways. It looks like the board will now want to adopt the resolution and then retroactively apply it to the previously issued and pending notices. Meanwhile, some owners had already complied with the original demand and sealed their driveways late last year, despite cold weather.
Are all these HOA actions legitimate and lawful? If not, what can the owners do to challenge them, given that the due process prevents the owners from suing the HOA until the adjudication by the BOCC and appeal to the HOA board are completed?

I think you should focus on (1) the covenant requiring good repair yada; and (2) this draft resolution. First, I am not persuaded at this writing that sealing is a bad thing. Second, I think the board is probably on sufficiently solid legal ground to make a challenge not worthwhile.

You want to consider suing because you do not like the standard the HOA is setting for driveway appearance? You want something more precise for when a driveway is not attractive? I think this is too much to ask. The board hired a contractor ("expert"). There is going to be some subjectivity on when a driveway is unattractive. I cannot say the board/BOCC did anything wrong. I do not think you have a case for court that would go anywhere.

You do not like what the contractor said advising the HOA to ignore HOA members who objected to no specific covenant being cited? The contractor's words on the latter were stupid but I think not worth complaining about.

You really ought to explain to people what the relationship between the BOCC and board is. Most folks here do not want to dig through Maryland statutes to get the definition. I have seen it before but I am putting it on you to explain. As a courtesy.

Lots of good advice coming in already Craig.

For an alternative viewpoint from someone in a different state but also familiar with the generic covenant language you described, I would propose to my fellow board members a standard that nests more directly with the covenant language.

"Properties must be kept in good repair" would be complimented well by a standard along the lines of "driveways must appear intact and free of cracking or holes visible from the street." I have also seen standards online that enumerate the number of cracks allowed given a specified area of driveway (lets say no more than 2 cracks of 6 inches in length within any 4 x 4 feet area of driveway with the remedy being up to the owner to restore the driveway to good repair).

By using a maintenance driven standard you are addressing the covenant directly. You also avoid the controversy about sealing (is it good or is it bad?). It also avoids penalizing those with an unnecessary requirement when their driveway may still be in good repair.

Re: The suggestion to contact / appeal (?) the Board of County Commissioners. In my county, there is a Commission on Common Ownership Communities that deals with HOA member complaints, but only after all remedies at the HOA level have been exhausted. The problem is that the HOA has been dragging things out for months, and no time limits on its actions (until there is a complaint with the BOCC) exist in the "due process" resolution.

I am glad we got that straight.Most Declarations I have seen give the Board authority to write rules, regulations, standards, resolutions et cetera that implement the covenants. It's the same idea as federal agencies writing the Code of Federal Regulations on the basis of what the U. S. Code says.

I gather you object to the covenant that requires attractive appearance yada as too vague. It's true the courts do not like vague standards. Vague standards are vulnerable to arbitrariness and caprice. Maybe check out some of the Maryland case law on HOA architectural standards. See justia.com, Maryland case law section. Keep reading here. Then maybe talk to some attorneys. Lastly, consider getting on the board. I do not take HOA members who have such an enormous complaint seriously unless they are willing to serve on the board.

In theory it could, but no such notices were issued in 20+ years until now, and no specific maintenance standards exist as of yet. Citing cracks, bumps or missing fragments in driveways (structural deficiencies) is one thing, but nit picking on "fading" or "discoloration" is quite another. I should also add that the HOA owns plenty of cracked, faded and discolored common alleyways; there is a plan to perhaps seal them this year, but the certainly not within the same deadlines to which private property owners are held.

But didn't the HOA change the deadline? Have you asked the board why it has not fixed the common alleyways? Do you know what a reserve fund is? How about getting on the board or at least the BOCC (love that name)? DeirdreB is really onto something. You could really turn things around with a solid set of standards, which do seem to exist after just a few minutes of googling.

Yes, the HOA changed the deadline, but only for private property owners. It does not establish any deadlines for itself. The alleyway issues have been present for many years.
The HOA has a relatively large reserve fund, but so far spent it only on selective sealing of cracks and occasional small asphalt replacement patches. It is only this year that the HOA is considering more expansive sealing of some, but not all, alleyways.
Suggestions to get on the board or the BOCC are fine, but one person out of several would most likely get out-voted. BTW, in the board meeting minutes the HOA only records vote counts but not who voted for/against what motions.
As solid set of maintenance standards is certainly desirable, but it should have been in place before the first notice to reseal driveways went out.

I am not clear where you are in exercising your rights to due process (not "due diligence"). Get through the first hearing with the BOCC. Then get through the appeal with the Board. Then sure, if the outcome is not to your liking, it appears one of three possibilities apply:

-- Complain to the Maryland Division of Consumer Protection (See Maryland HOA Act)
-- Seek arbitration
-- Go to court

Let's assume the Division; arbitrator; or court agree with you that the standards are vague, so the violations are stricken. The board says, "Okie-doke. We will come up with standards. A couple of posters from Hoatalk[dot]com did a great podcast on the subject. We know an asphalt contractor who could refine the standards further." Now you argue, "But the covenant has not been enforced in 20 years. I think the courts would say it has been abandoned." The HOA attorney says, "I think not. For one, it takes 15 to 20 years before a driveway even looks bad."

I think you would go to a lot of trouble only to wind up with a set of standards.

I get that you're annoyed. People are imposing a standard on you that is not your standard. HOA living absolutely sucks sometimes. When a board is clearly breaking the law, I try to say so. But I do not like your chances of ultimate victory here.

Craig - you seem to be looking for agreement with your belief set.

Please let us know what happens.

This is helpful, but these standards only apply to concrete not asphalt driveways. And they does not cover aesthetic aspects, such as fading or discoloration, the assessment of which is highly subjective.
As for resealing of asphalt driveways: First, the hot-rolling installation of an asphalt driveway is not the same as sealing it (i.e. applying a separate substance called sealant). So in order for a driveway to be resealed, it must have been previously sealed. In my community, hardly any are. Hence, the requirement for resealing is inapplicable to begin with. Second, once a driveway is sealed, the process has to be repeated every few years. That is because UV rays gradually destroy the sealant (just like they destroy the top layer of tar, exposing the aggregate). Once started, this creates an endless maintenance cycle. Civil engineers say this is complete nonsense.

Deidre - At least your HOA had some appearance and/or maintenance standard when they required you to fix your driveway. My HOA has had no specific one and it is trying to come up with it only after issuing hundreds of code violation notices, which is totally backwards. The issue is not so much about proper regulations going forward, but rather about resolving the current mess.

I think the above is what you should present at your hearing with the BOCC and then board. Then see what they say. (I am not vouching for the above. But if the OP has researched this and is confident in the above, go for it.)

The reason I would say this is so is because of reserve funding. You said there is plenty in the reserves. However, if you ever look at a bona fide Reserve Study, you might see that money is earmarked for specific items at certain, approximate times. It is not an exact science. It is not easy planning for replacement of a capital asset. I hear you that you feel there is hypocrisy going on here. But without more information, especially about the status of reserves and the condition of other capital assets, I could not judge.I appreciate that you want to judge the ethics, morality yada of the HOA Board. But my interest is only in the law being followed. Nothing else has teeth, after all.I agree this is the key issue. Even without living at your HOA, it seems clear to me the Board has been given serious pause on this issue. You do not like still being tagged with a violation while the board comes up with a more concrete set of standards, and then applies these standards subsequently. But the HOA has not fined you, has it? Until the stakes get high, in terms of money, I do not think a court would want to hear your complaint. From what I can tell, if you can get the BOCC and board to hear your appeal, I think the board may be given further pause. I am assuming you focus strictly on the lack of a standard for members' driveways. In my opinion, complaining about the HOA not maintaining the common areas is going to hurt your chances. It is a different issue, and as I posted, has to be addressed in a different way. You're pissed, I get it. But if you want to be effective, then at any hearing you get, I suggest staying focused on the law here and what exactly is under appeal (namely, your violation).

The problem is that the terms of this "contract" are not fixed from one side. Over time, the HOA can change the rules by enacting resolutions without the other party's consent (the board can acknowledge but generally ignore any members' protestations during the comment period).

Good afternoon, everybody.
I'm going to perform an HOA audit.
I've found one article on this subject.
Can you tell me if it is correct?
https://opporty.com/blog/homeowners-association-hoa-audit-everything-you-need-to-know.html.

I see a few things right off the bat, starting with the fact that the author of that piece is a mystery. I think this smells an awful lot like thinly-disguised spam.

"Your HOA needs a reserve fund for unforeseen expenditure"
Bzzzzt! But thanks for playing!

"This article has been checked for accuracy by a certified CPA." But not written by one, obviously.

That whole "Oppoty" site looks shady. "Blockchain-powered business relationships ecosystem and marketplace." From China.
Sorry, I'm not buying what you're selling.