HOA spending caps in New York

Started by DavidF22 • 28 replies • 706 views

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DavidF22 (New York)
Posts: 91

Posted:

I live in a fairly small HOA in New York. Given wasteful practices in recent years (i.e., a board going 25% over budget, or $125,000 more than the community was told they were spending without any substantial change in improvements and amenities) a number of us would like to have caps on annual increases in dues and assessments (yes, we have annual assessments for capital improvements). If the board desires to exceed the caps, it would require a two-thirds community vote. We do not currently vote on annual dues or assessments or the annual budget. The board merely imposes them.

We have heard all the arguments about the board needing spending flexibility in times of emergency, etc., etc. While we get that, our board -- without any community notice or vote -- could go out today and sign a million-dollar contract for something frivolous and each of the 56 homes would be stuck with the bill. To those who say the board would be more responsible than that because each director would also have to pay the bill, we say that each would only have to pay 1/56th of the bill for something that might benefit them more than that. To those who say we should run against the current Board, well, our community falls into two camps. We have a large group that is apathetic and a second group of former board members whose experiences have been so bad that they would never run again.

We know some other states have imposed caps, but one of our directors, an attorney, claims to never having seen an HOA in New York State impose them. Yet, in a very cursory search, our property manager found one local client who has something of a cap. I am sure there are more HOAs in New York that have spending caps. If you are in such an HOA, I would appreciate your chiming in here so I can relay the information to our board.

Thanks!

DouglasK1 (Florida)
Posts: 2,046

Posted:

I would expect that this type of limitation would need to be in the CCRs. What do the CCRs say about amending them?

Escaped former treasurer and director of a self managed association.

DavidF22 (New York)
Posts: 91

Posted:

Quote:

Posted By DouglasK1 on 11/20/2020 8:20 AM
I would expect that this type of limitation would need to be in the CCRs. What do the CCRs say about amending them?

We need a two-thirds vote of the community on any amendments. In more than 25 years, there has been only one amendment to prevent cumulative voting for directors. People are so apathetic that I doubt we could get anything passed. They might only wake up if the board imposed a $50K assessment on each of them.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By DavidF22 on 11/20/2020 7:30 AM
I live in a fairly small HOA in New York. Given wasteful practices in recent years (i.e., a board going 25% over budget, or $125,000 more than the community was told they were spending without any substantial change in improvements and amenities) a number of us would like to have caps on annual increases in dues and assessments (yes, we have annual assessments for capital improvements).

DavidF22, evidently a group of you Owners think the Board is being reckless. You seem to be saying, "OMG, the board spent more than budgeted. Outrageous!" Unless you provide more details, it is impossible to judge whether some sort of incompetence or worst case, graft is going on.

Associations often go over their budgets. Budgets are only a rough guide and thoughts on what anticipated future expenses will be. On major HOA projects, best practices is to get at least a few bids. Has your board been doing this?

Most importantly, rather than doing all the work of trying to get an amendment passed, wouldn't it be easier for you, and others who feel as you do, to just run for the board at the next election? If you win, then you can happily do all the work the current directors are doing. The pay is terrible, plus your HOA sounds like it has lots of Monday Morning quarterbacks who are eager to criticize, possibly without being well-informed, but not do all the work a director has to do.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By DavidF22 on 11/20/2020 7:30 AM
To those who say we should run against the current Board, well, our community falls into two camps. We have a large group that is apathetic and a second group of former board members whose experiences have been so bad that they would never run again.

But as you seem to indicate, the apathetic group does not amount to 2/3rds of the membership who would pass an amendment that would frivolously IMO place a spending cap on the Board.

I think you and yours ought to be asking more questions about bidding.

SheliaH (Indiana)
Posts: 6,964

Posted:

Caps have a nasty way of working against peopke, because they always forget about inflation, changes in building codes that could affect replacing major components (the stuff in Your reserve study), emergency repairs that may come up at any time and there's not enough between reserves, master insurance and the operating budget to pay for them.

That doesn't mean spend whilly-nilly and Jack up assessments just because you can. It means considering repair projects carefully, doing your due diligence in selecting contractors, asking for references and checking them, and, as has been said, getting more than one bid (three is a good place to start).

put another way, think about what you do when your own house needs something updated or repaired and extrapolate that to the entire community. The problem with many board members is they forget this is everyone's money and not a bottomless pit. They have a duty to be prudent with managing it and keep homeowners informed.

Glad you and your neighbors are starting to pay attention to where the money's going. It appears a change in board members (maybe all of them) is appropriate. You will need people to replace them and one of them may have to be you. In the meantime, I think you could go with required homeowner approval if Next year's budget requires assessment increases over 5% from the current year budget (We have that in our documents) and homeowner approval of special assessments, which you may already have (check your documents). If this isn't already in the documents, talk to your association attorney about starting amendments that will probably require homeowner approval.

If you change the board, start taking a close look at the last 3-5 years budgets. What line items have increased the most and why? Has the reserve fund been funded properly? look at you deserve study recommendations to see if they're being followed - if not, why not? If the study's older than 5 years you need a new one.

All of this is just a start in looking at expense and income before you even think of spending caps, especially if there are faster and more effective ways of getting spending under control. You and your neighbors have work to do - good luck!

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

DavidF22 (New York)
Posts: 91

Posted:

Thanks for all the well-meaning comments. We are divided into three groups in the community: 1) the board and a handful of supporters, 2) the largest group in the middle that is totally apathetic and disinterested, and 3) a third group of former board members who were so ill-treated during their tenures that none will run again. So we no longer have elections and are lucky to find five people to fill the director slots.

Some in the third group were pushed out in a sham election that saw the opposition send out a scurrilous community letter, collect blank proxy/ballots, fill them out themselves and then submit them. A number of ballots had the same handwriting. After assuming office, said opposition went on to go 25% over budget without any homeowner approval or notable change in community amenities or improvements. Up to the present day, there is no competitive bidding for contracts and several large, entitled, overcharging vendors now feel invincible with allies on the board. With the input from these contractors, the board is now proposing three large, unnecessary projects that would add well over half a million dollars to our costs in the next several years beyond regular operating expenses. They do not feel anything needs more than a board vote. Hence, the interest in spending caps.

All we in the third group want to ensure is that such large, optional projects are brought before the community for discussion and a shareholder vote. We understand inflation, we get the need for emergency funds and some flexibility. But we also understand that our board has no limits on spending whatsoever, nor does it believe much in community notice, discussion or approval. If we could depend solely on the goodwill of directors to control costs in a constructive manner, then every HOA would be a paradise and no spending caps would be needed. However, we know that they are human beings and not all act in the best interests of the community.

As stated earlier, any information on HOAs in NY with spending caps would be appreciated. Thanks again!

KerryL1 (California)
Posts: 14,550

Posted:

Just double checking: there are no spending caps in NY for HOAs without a membership vote?

There are no spending caps sated in your CC&Rs or possibly indoor bylaws?

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By SheliaH on 11/20/2020 10:01 AM
Caps have a nasty way of working against people, because they always forget about inflation, changes in building codes that could affect replacing major components (the stuff in Your reserve study), emergency repairs that may come up at any time and there's not enough between reserves, master insurance and the operating budget to pay for them.

... snip ...

I agree completely with Sheila's and others' comments. Caps are not a substitute for responsible money management and they unreasonably tie a board's hands. They also encourage short-term thinking, something that is already an issue in most HOAs and COAs. If anything, many boards underestimate expenditures in order to keep assessments low - because they don't want to be the bad guys - which will inevitably lead to overspending because they tried to budget according to the bottom line they wanted rather than actual expenses.

What to do instead? Homeowners should inform themselves about how HOA finances work - warning: they're more complicated than personal finance - and they should pay attention and ask hard questions.

This will allow them to determine whether the overspending is the result off overly optimistic planning vs. a warning sign that something nefarious is going on.

I also agree with electing more responsible directors. You may have a fight on your hands, but financial mismanagement is one area where the stakes are high enough to warrant the effort.

DavidF22 (New York)
Posts: 91

Posted:

I believe California has spending caps, but New York has nothing. Also nothing in our governing documents. Sky’s the limit. We can amend bylaws or remove board members with 2/3 vote of shareholders. That’s it, but that wouldn’t let us off the hook for any financial obligations signed by the board without shareholder consent.

Because NY has so few HOA laws, I believe the Attorney General won’t get involved in any disputes unless there’s evidence of criminality. So one has to spend big bucks for a lawyers and file suit, often with little or no hope of success.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By DavidF22 on 11/20/2020 11:03 AM
After assuming office, said opposition went on to go 25% over budget without any homeowner approval or notable change in community amenities or improvements.

Do you know what "reserve funding" is? For what common areas is the HOA responsible? Roads? Entrance gate? Pond?

One cause of an increase in the assessment is on account of an underfunded reserve. Owners won't see a change in services or appearance of the grounds. Instead, the increase is going to an account that ultimately will pay for road replacement or similar capital components.

Quote:

Posted By DavidF22 on 11/20/2020 11:03 AM
Up to the present day, there is no competitive bidding for contracts and several large, entitled, overcharging vendors now feel invincible with allies on the board.

Along with seeming election abuses, signs like this would bother me too.

Quote:

Posted By DavidF22 on 11/20/2020 11:03 AM

With the input from these contractors, the board is now proposing three large, unnecessary projects that would add well over half a million dollars to our costs in the next several years beyond regular operating expenses. They do not feel anything needs more than a board vote.

Come on. Chances are the governing documents in fact require only a board vote.

The sort of limits to which I am accustomed is a limit on how much the annual assessment can be increased. In theory, this ensures that Boards do not postpone maintenance and repairs until a place is falling apart and the bill becomes so high that Owners will be forced to take out loans.

More at https://www.condoassociation.com/blog/how-much-can-an-hoa-board-spend-without-approval

I think your options are:
(1) make a list of transgressions and the exact covenants you think are being violated. Then hire an attorney for a consultation. Any competent attorney will first require a review of the HOA's governing documents, with said review running from $1000 to $5000. If the Board is violating the governing documents, plan on a several year battle, where all owners get to foot the bill for the Board's defense. Figure $50,000 to $200,000 of legal expenses, easily.

(2) In complete seriousness, move. Keep reading here, and you will see many realize this is the least painless route.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By DavidF22 on 11/20/2020 12:15 PM
I believe California has spending caps, but New York has nothing.

The only restrictions I see in California are (1) max of 20% increase in the assessment without a membership vote; and (2) a Special Assessment may only be used for the specific project identified as needing funding via the Special Assessment.

Quote:

Posted By DavidF22 on 11/20/2020 12:15 PM
Because NY has so few HOA laws, I believe the Attorney General won’t get involved in any disputes unless there’s evidence of criminality. So one has to spend big bucks for a lawyers and file suit, often with little or no hope of success.

Attorney Generals nationwide have next to no power over HOA and condo regulation.

From my reading over the years, New York HOAs are a bit peculiar, but only a bit. Just like other states, NY HOAs are based on the law of covenants; the legal reality that the courts view covenants as a contract; and that all Owners buy a HOA property with eyes wide open, because the covenants are recorded with the County.

DavidF22 (New York)
Posts: 91

Posted:

Quote:

Posted By CathyA3 on 11/20/2020 12:15 PM

Also great comments, if we could only apply them to our own community. I think we would want to build enough flexibility into the caps. Some states — through legislation — have managed to do it and we’re not asking for more than that.

We have some board members who would like to convert our upper-middle-class complex to a luxury one and think that the addition of some superficial glitz and much higher fees (without corresponding amenities that offer value) is the way to do that. Many of us like the place the way it is and think large fee increases would hurt property values.

Even if the association just committed to necessary expenses in our recently done reserve study, we might be satisfied with that. But right off the bat, the board inserted into the study an additional half million dollars in unnecessary pet projects not requested by the community nor recommended by the study’s engineers. The dollar figures come from the same favored contractors who will get the business without competitive bidding.

Yes, we do have a constant fight on our hands and no one willing to run against these people.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By DavidF22 on 11/20/2020 12:33 PM
I think we would want to build enough flexibility into the caps. Some states — through legislation — have managed to do it

Please name these states and what these caps are that you seem to claim resemble what you desire.

Quote:

Posted By DavidF22 on 11/20/2020 12:33 PM

Even if the association just committed to necessary expenses in our recently done reserve study, we might be satisfied with that. But right off the bat, the board inserted into the study an additional half million dollars in unnecessary pet projects not requested by the community nor recommended by the study’s engineers.

Is the Board proposing the addition of reserve components that are not listed in the governing documents? If so, they are breaking the law in a major way, and you should hire an attorney.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

David

Yes, please name those states.

DavidF22 (New York)
Posts: 91

Posted:

Quote:

Posted By JohnC46 on 11/20/2020 12:43 PM
David

Yes, please name those states.

I don’t have the specifics before me right now, but I do believe California and Florida limit annual increases to certain percentages before shareholder votes are required. Lots of homes in those places and I don’t see any movements for repeal. I also believe there’s at least one other state, but would have to check.

DavidF22 (New York)
Posts: 91

Posted:

Also Arizona. Here’s California:

Civil Code § 5605 – Limit on Annual Increases in Assessments

(a) Annual increases in regular assessments for any fiscal year shall not be imposed unless the board has complied with paragraphs (1), (2), (4), (5), (6), (7), and (8) of subdivision (b) of Section 5300 with respect to that fiscal year, or has obtained the approval of a majority of a quorum of members, pursuant to Section 4070, at a member meeting or election.
(b) Notwithstanding more restrictive limitations placed on the board by the governing documents, the board may not impose a regular assessment that is more than 20 percent greater than the regular assessment for the association’s preceding fiscal year or impose special assessments which in the aggregate exceed 5 percent of the budgeted gross expenses of the association for that fiscal year without the approval of a majority of a quorum of members, pursuant to Section 4070, at a member meeting or election.
(c) For the purposes of this section, “quorum” means more than 50 percent of the members.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By DavidF22 on 11/20/2020 12:51 PM
[snippage] I do believe California and Florida limit annual increases to certain percentages before shareholder votes are required. Lots of homes in those places and I don’t see any movements for repeal. I also believe there’s at least one other state, but would have to check.

The title of this thread and some of the verbiage in the first post threw me off. Now I am 'wised up' (along with being a wise guy) and see the following:

Quote:

Posted By DavidF22 on 11/20/2020 7:30 AM
a number of us would like to have caps on annual increases in dues and assessments (yes, we have annual assessments for capital improvements).

As I noted above, California's HOA/condo statute has such a cap. I am looking at Florida's statutes and do not think they have a cap on assessment increases. Same for South Carolina's, Texas's and Arizona's statutes.

Regardless, from general reading I do think nationwide many HOA's governing documents have a percentage cap on annual assessment increases.

California is big enough that I'd say its 20% cap on assessment increases is a good guide.

If your group is successful in passing an amendment that will impose a cap on the regular assessment, then I think there's the issue of putting a cap on special assessment.

One of the other challenges will be getting the board's cooperation on the mechanics of a vote to amend the governing documents. If the board does not favor the amendment (and yours will not), anticipate a few to several years of litigation.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

David

Are you saying your BOD regularly goes above a 20% yearly increase? With a 20% increase per year, dues could double in less than 4 years.

We had a 40% dues increase one year but we did such a good job presenting why it was needed, only 1 of 112 owners tried to get it stopped and we stopped him fast. And no, are owners did not get to vote on it. The BOD can do it once a year.

AugustinD
Posts: 5,144

Posted:

Here are a couple of New York HOA Declarations I pulled up with caps on assessment increase. Triple check my work, please.

https://esd.ny.gov/sites/default/files/Radisson%20Declaration%20thru%20Amendment%2047.pdf
"(b) Maximum Residential Annual Assessments
From and after November 1st of the year in which the first Lot is conveyed to an Owner, the maximum Annual Assessment levied with respect to a Residential Lot may be increased each year (i) not more than five percent (5%) over the Annual Assessment for the previous year or an amount equal to the increase in the Consumer Price Index for such preceding year whichever is greater without any vote of the Class A Residential members or (ii) more than five percent (5%) over the Annual Assessment for the previous year by an affirmative vote of twothirds (2/3) of Class A Residential members who are voting in person or by written proxy at a Referendum duly called for such purpose."

https://www.briaridgehomeownersassociation.com/uploads/1/2/3/1/123109530/declaration-of-covenantsrevised-edition.pdf
(a) From and after January 1 of the year immediately following the conveyance of the
first Lot to an Owner, the maximum annual assessment may be increased each year not more
than 3% above the maximum assessment for the previous year without a vote of the membership.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JohnC46 on 11/20/2020 1:21 PM
David

Are you saying your BOD regularly goes above a 20% yearly increase? With a 20% increase per year, dues could double in less than 4 years.

We had a 40% dues increase one year but we did such a good job presenting why it was needed, only 1 of 112 owners tried to get it stopped and we stopped him fast. And no, are owners did not get to vote on it. The BOD can do it once a year.

ADD ON

Our BOD can raise dues without approval, but a Special Assessment would require 75% of our owners saying Yes to it.

DavidF22 (New York)
Posts: 91

Posted:

Quote:

Posted By AugustinD on 11/20/2020 1:22 PM
Here are a couple of New York HOA Declarations I pulled up with caps on assessment increase. Triple check my work, please.

https://esd.ny.gov/sites/default/files/Radisson%20Declaration%20thru%20Amendment%2047.pdf
"(b) Maximum Residential Annual Assessments
From and after November 1st of the year in which the first Lot is conveyed to an Owner, the maximum Annual Assessment levied with respect to a Residential Lot may be increased each year (i) not more than five percent (5%) over the Annual Assessment for the previous year or an amount equal to the increase in the Consumer Price Index for such preceding year whichever is greater without any vote of the Class A Residential members or (ii) more than five percent (5%) over the Annual Assessment for the previous year by an affirmative vote of twothirds (2/3) of Class A Residential members who are voting in person or by written proxy at a Referendum duly called for such purpose."

https://www.briaridgehomeownersassociation.com/uploads/1/2/3/1/123109530/declaration-of-covenantsrevised-edition.pdf
(a) From and after January 1 of the year immediately following the conveyance of the
first Lot to an Owner, the maximum annual assessment may be increased each year not more
than 3% above the maximum assessment for the previous year without a vote of the membership.

Thanks, Augustin! This is exactly what I was looking for.

The way I look at it is that it would be nice if we could always depend on the goodwill of directors to be fiscally responsible, but that’s not always possible. We have no screening of buyers except your ability to afford one of our homes and we have no screening of board members or elections because, in recent years, there haven’t been more than five warm bodies to fill the seats. (Things are so bad here that two of the community’s biggest rule violators sit on our architectural review committee. We are thinking of writing a sitcom about the place.)

Our annual special assessments have ranged in recent years from $2850 to $3500. With our board’s insertion of over half a million in pet projects into the reserve study, it is proposing a hike in the assessment from $2850 this year to $4500 in 2021 and further hikes each year until we reach $5400 by 2030. Yes, we must pay for roads and other infrastructure since no reserves had been set aside in the early years of our 25+ year-old complex, but we also believe the other expenditures are frivolous, the money will be spent and we’ll hardly notice a difference in the looks or amenities of our complex. In our rather comical situation, we need some spending caps, even if they are generous enough to allow flexibility.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By DavidF22 on 11/20/2020 1:49 PM
Yes, we must pay for roads and other infrastructure since no reserves had been set aside in the early years of our 25+ year-old complex, but we also believe the other expenditures are frivolous, the money will be spent and we’ll hardly notice a difference in the looks or amenities of our complex. In our rather comical situation, we need some spending caps, even if they are generous enough to allow flexibility.

From the information you have provided so far, I would say that it might be more likely that you folks opposing the increases are the comics. Here's why:

-- 25 years translates to old infrastructure just about anyway one slices it.

-- 25 years without establishing and continually growing a reserve fund is irresponsible.

-- Large special assessments and/or large regular assessment increases are the usual response in a situation like this.

I'd like to hear the board's side of things.

At least you have one director and PM listening and giving some attention to your group's interest in caps on increases.

AugustinD
Posts: 5,144

Posted:

Here's a third NY Declaration with a cap on assessment increases:
https://croftoninc.files.wordpress.com/2013/05/lpdeclaration.pdf
See pdf page 11 (document page 9). Without a vote of members, cap is 10% per annum.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

David is opening his Kimona a bit more. A 25 year old association with no reserves and they"own" the roads. What a cluster "kiss" that is.

David

What are the Annual Dues?

GeorgeS21 (Florida)
Posts: 3,808

Posted:

David,

I may have missed ... is this HOA or COA?

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Be careful on this proposal as the issue is not a flaw in the CC&Rs but in poor leadership by the sitting board of directors if annual budgets are routinely running over projected expenses. You can handcuff future boards of directors who are, in fact, very competent and face a project-based crisis that's expensive.

Change members of your board of directors. If the local community cannot stand up and do that, you'll never get a successful petition.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

DAvid

What are the Annual Dues/Assessment? Not the Special Assessments.

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