Vague documents

Started by TracieS • 11 replies • 1318 views

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TracieS (Colorado)
Posts: 460

Posted:

What do you all do when your documents are vague? Mine were written in the 80s from template. I'm trying to develop a "Who is responsible" type thing (someone posted an example in another post), but I can't figure it out from my documents. Most owners agree on what they would be responsible for in case of property issues, but it's not agreed upon because of any document - just general, logical consensus.

Where would I find exactly what the Association is responsible for? Then, once I know for sure, is EVERYTHING not specifically mentioned the responsibility of the owner?

I'm asking for a specific location within your documents where it outlines just what the association is responsible for.

Example - from my own documents (CCR): Article VI Covenent for Maintenance Assessments, Section 2. Purpose of Assessments: "The assessments levied by the Association shall be used exclusively for the purpose of promoting the recreation, health, safety, and welfare for the residents in the Property and in particular for the improvement and maintenance of the Property, services, and facilities devoted to this purpose and related to the use and enjoyment of the Common Area, and of the homes situated upon the Property. They shall include, but are not limited to, funds for the actual cost to the Association of all taxes, insurance, repair, replacement and maintenance of the Common Area and of the maintenance of the exteriors of the lots or Townhomes as may from time to time be authorized by the Board of Directors, and other facilities and activities, including, but not limited to, roofs and exterior walls of the Townhouse, garbage pickup, snow removal, and other charges required by this Declaration of Covenants, Conditions and Restrictions or that the Board of Directors of the Association shall determine to be necessary to meet the primary purposes of the Association, including the establishment and maintenance of a reserve for repair, maintenance, taxes, and other charges as specified herein."

So, upon a really close reading... I pull out that the association is responsible for the following:
- Taxes
- Insurance - there is a special insurance section...
- Common area maintenance
- EXTERIORS of the townhouse - there is a special section on exterior maintenance
- garbage
- snow
- reserve

Can you find anything else? If it seems like something is missing from my document (which it probably is), where would I find it?

JohnK3 (Pennsylvania)
Posts: 967

Posted:

Tracie,

You write:

>>>as may from time to time be authorized by the Board of Directors, and other facilities and activities, including, but not limited to, roofs and exterior walls of the Townhouse, garbage pickup, snow removal, and other charges required by this Declaration of Covenants, Conditions and Restrictions or that the Board of Directors of the Association shall determine to be necessary to meet the primary purposes of the Association,<<<

I'd say what's been authorized by the BOD, aside from the specifics also listed in your docs, are all the HOA is responsible for.

AnnaD2 (Florida)
Posts: 960

Posted:

Tracie maybe I'm missing it but what about the responsibility for the ROOF(S)? Or is that covered in the "exterior" section of your documents?

TracieS (Colorado)
Posts: 460

Posted:

Thanks. Roofs...

That's why I need to comb through and find all mention of association responsibilities!

ARTICLE IX
EXTERIOR MAINTENANCE
In addition to maintenance upon the Common Area, the Association shall provide exterior maintenance upon each Lot which is subject to assessment hereunder, as follows: Paint, repair, replace and care for roofs, gutters, downspouts, and exterior building surfaces. Such exterior maintenance shall not include glass surface or patios.
In the event that the need for maintenance or repair is caused through the willful or negligent act of the Owner, his family, or guests, or invitees, and not covered or paid for by insurance on such lot, the cost of such maintenance or repairs shall be added to and become a part of the assessment to which such lot is subject.

Another delightful piece... It appears the association is only responsible for the exterior/roofs of the townhomes. We started the association with carports, which are mentioned NOWHERE. Eventually, they were converted to garages, and the association assumed responsibility of the exterior of the garages and the roof.

We have nothing about pest control. Is that normal?

We only prohibit farm animals. I know that's not normal (today).

AnnaD2 (Florida)
Posts: 960

Posted:

We have nothing in our documents about pest control. But we have a pest control company treat the grounds. Two board members (in the past) wanted to get rid of the pest control company....and they could have, had they been in the majority.

Just this week I received our Insurance Appraisal (which in Florida must be done every 18 months). Their report is very explicit about who exactly is responsible (the association or individual owners) to certain parts of the building; for insurance purposes.

TracieS (Colorado)
Posts: 460

Posted:

Well, our insurance agent/company is going to change at our policy renewal. In my 7 years, he's never called/requested/asked/attended anything. He hasn't reviewed our documents in years (which is ok because they haven't changed). He hasn't called/spoken/initiated contact with me, ever. After I reviewed our insurance information, we're not even insured completely against complete loss. Since he hasn't been to the property in years, he has never adjusted coverage or anything. We'd be in the hole approx $200,000 if we had to rebuild completely up to current code.

Our documents are so vague that an owner's insurance company and the association's insurance company are fighting about water damage from a vacant unit when the water heater died.

I've seen pest control a few different ways. Exterior monthly maintenance/spraying paid for/initiated by the association. Interior are the responsibility of the owner. I've also seen it where pest control is "triaged" according to pest type (dangerous to humans - association pays. dangerous to property - association pays. nuisance - owner pays.)

If Colorado had something like Florida's required insurance thing you mentioned, I'd be a happy camper! I *think* in Colorado, coverage is determined by what the documents specify must be covered. Any additional/non-required coverage is at the discretion of the BOD. We're actually not even required to keep insurance on the structures. It would be a HORRIFIC idea if we didn't, but we don't HAVE to.

TracieS (Colorado)
Posts: 460

Posted:

Quote:

Posted By TracieS on 07/24/2009 11:10 AM
He hasn't called/spoken/initiated contact with me, ever.

Not a problem if I were just an owner, but the bill comes to me as the Property Manager...not hard to find me! My personal insurance agent calls me every six months for a policy review...

SusanW1 (Michigan)
Posts: 5,202

Posted:

I would not be worried about naming EVERYTHING in the bylaws. The bylaws should say that there is a policy, definitions or procedures that are developed by the board on an annual bases. For example, what if you no longer had downspouts, but went to a different system for water run-off? That would require a bylaws change.

The bylaws are the bones, the policies and property description (updated constantly by the board) is the flesh.

EllenS1 (Florida)
Posts: 1,148

Posted:

Tracie,

I would look up the statutes in Colorado to see if they make any portions of your docs null and void. This would be a good place to start and you can access them online.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Tracie,
Is my impression that you are trying to make sweeping changes in your documents all on your own, correct. I understand your concern, but as you have alluded to, there are some things that just come with the territory. The who pays what for water damage to another unit is a typical issue that occurs daily and is simply a matter to be contested, if the will is there. You, personally, can decided anything you want, but anyone can contest it through the courts or through the association administration, in spite of what the documents say.

Point I am making is that I don't know of any association that has been able to be all thing to all people. This is where wisdom comes in when you contemplate changing your documents, and I can't stress enough, you can't do this own your own. You have got to get the Board to appoint a committee to share this responsibility. You can point out instances for the need to change and you may make a case for completely re-examination of your documents, but unless you have a professional background in actually making changes to legal documents, I doubt you or anyone else can do a good job.

I would suggest you visit some HOAs/condos around you and take a look at their Master Deed, declaration and by-laws. See how yours differ. I suspect they are only different in a basic sense because of when they became effective. The newer ones will tend to be more viable than the ones that haven't been changed in 15 years or more.
Also, don't neglect that some of these puzzlers can be fixed by a rules change or addition, not always, but sometimes rules can be used to clarify.

Maybe you have considered all this, and if so, just ignore my remarks. It is next to impossible to sit on this side of the fence and select words for any change in any associations documents.

RogerB (Colorado)
Posts: 5,067

Posted:

Tracie, you raise good points. A townhome association for which we recently initiated management is currently addressing the same concerns. We recommended the CC&Rs be updated. We are currently working with an experienced HOA attorney to complete a draft of amended and restated (completely rewritten) CC&Rs. After being reviewed by the Board a final draft will be prepared and presented to the owners for a vote. Many items need to be updated; maintenance responsibilities need to be clearly defined; an article on insurance added; etc.

In your case, in addition to what you stated, you can read the definitions of common area and lot (or unit). This may help clarify for which maintenance items the owners and the HOA are responsible.

TracieS (Colorado)
Posts: 460

Posted:

Quote:

Posted By RobertR1 on 07/25/2009 5:58 AM
Tracie,
Is my impression that you are trying to make sweeping changes in your documents all on your own, correct.

This is where wisdom comes in when you contemplate changing your documents, and I can't stress enough, you can't do this own your own. You can point out instances for the need to change and you may make a case for completely re-examination of your documents.

I would suggest you visit some HOAs/condos around you and take a look at their Master Deed, declaration and by-laws. See how yours differ. I suspect they are only different in a basic sense because of when they became effective. The newer ones will tend to be more viable than the ones that haven't been changed in 15 years or more.

Also, don't neglect that some of these puzzlers can be fixed by a rules change or addition, not always, but sometimes rules can be used to clarify.

Maybe you have considered all this, and if so, just ignore my remarks. It is next to impossible to sit on this side of the fence and select words for any change in any associations documents.

Thanks for your comments. I also do appreciate your concern (probably for my mental health!).

Yes, I am taking a VERY close look at our documents, compared to other association documents. Our docs have not been scrutinized since they were recorded back in the mid-1980s. Since I've waded into this association business, I've been trying to learn as much as possible.

I am not planning on doing it myself, so that should rest your mind!

I am just doing some of the initial legwork/background/research, and then a committee will be appointed for a full review, AND legal assistance will be sought for this. I'm recommending, so far, just a few minor re-writes, a few resolutions for admin changes, and a few clarifications. For our purposes (not litigious, laid back), our docs are basically ok - just really old.

I'm looking closely to see which changes can be made via resolution versus amendment. Honestly, amending won't be a problem for us, due to the owner apathy. They just sign/vote how they're told (most of the time) and we move on. It's not as communist as it seems, but we're all pretty laid back, and we all recognize that the association is in the dark ages, and we're working to come into the present.

Thanks everyone!

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