CHILDREN IN THE BUSHES

QUESTION: My association has children who like to play a hide and seek game they call cops and robbers. The 'cops' try to find the 'robbers' and bring them back to the designated home area. It is good clean fun, however some residents and board members dislike the running between buildings and hiding behind shrubbery. They are talking warning letters and fines. I feel that as long as they stick to common areas and do no damage, let them have their fun.

ANSWER: I agree. Children should be allowed to be children. Requiring children to calmly walk from point A to point B in the common areas and to never speak above a whisper is unrealistic. Children need to play and laugh and occasionally yell. It's part of the growing process. It gives them needed exercise and they learn how to socialize. Older people sometimes forget they went through the same process--if they didn't, that may explain some of the sour personalities in our associations.

GETTING OUT OF THE
INSURANCE POOL

Feedback #1. I would never recommend that an HOA allow itself to be insured under a "blanket" policy of its management company. The risks are simply too great. First, because insurers typically send premium and cancellation notices only to the first-named insured (that would be the management company), the HOAs will never receive any notices affecting coverage.

Second, if the management company does not have sufficient funds to pay the premium (because, say, some of its HOAs have insufficient funds on the day premium payments are due or are insolvent), what are the chances that the management company will advance the funds to make sure the premium is paid? -Stephany Yablow, Esq.

Feedback #2. Some important points were not noted in past insurance discussions: (1) Some of the group programs offer specific blanket limits for the individual association insured, but they do not take on the responsibility of assuring that the "insured limits" are adequate to meet a) the actual replacement cost on a total loss, or b) meet the minimum insured limits required by the Association's governing docs. (2) Some of the group programs require a $5,000 Liability deductible without any commensurate premium discount. This may be appropriate for a certain large size association, or a large property management company insuring many large owned, or client properties, but not necessarily for the smaller property owner, or association that can easily get the same basic coverages, and premiums without accepting such a onerous condition. -Anthony Verreos, VERREOS Insurance Agency

DUES vs. ASSESSMENTS

As a grammar nut, I liked the comment about “dues.” It’s plainer and better understood by owners. I use it for monthly dues, since they’re fixed and regular. They’re “due” every month, like rent or a mortgage payment. I use “assessment” for something levied or something extraordinary, such as a special or emergency assessment. (Plus “dues” is easier to type.) -Mark O.

CONFLICTS OF INTEREST

Realtor/Director: There’s a worse conflict of interest [than the president-management company employee described last week]. We had a board president who was a real estate agent who fought to keep dues low so sales would be easier. As a result, the HOA was under-funded for the four years he was president and subsequent boards were forced to make major dues increases to catch up.

RESPONSE: A realtor on the board does not automatically create a conflict of interest. Realtors can offer great insight into many aspects of the of the development. Conflicts arise, however, when realtor/directors are actively listing and selling property in their associations. They sometimes exert pressure to shift limited funds away from needed repairs and into discretionary cosmetics. For example, they might push the board to plant flowers and paint buildings when money should be spent on plumbing repairs and a new roof. Low dues and pretty flowers make it easier for the realtor/director to sell units and earn commissions. This is in the director's best interest but not the association's best interest. To avoid conflicts, a realtor/director should either cease all listing and selling of units in his/her association or step down from the board.

Insurance/Director: Do you see any problem with a board president who works for an insurance agency requesting that the HOA insurance be placed with the insurance agency where the board president is employed? The board president in question does not work in the capacity of an insurance agent and is not employed in sales.

RESPONSE: The situation you describe is less of a problem than realtor/directors described above. If the president does not personally benefit from the board's action and recuses himself from any discussion and vote on the matter, i.e., leaves the room so the board can freely discuss the issue, I don't see a problem. I would hate to see a perfectly good insurance product excluded from the board's consideration simply because a director is affiliated with the company. If the director sells insurance and receives a commission from the board's decision, or demands the board buy his company's policy, then there is a problem. If the president demand it, the board should refuse. If he simply offers it for consideration, the director should not only recuse himself from the decision-making process, he should voluntarily give up his commission so as to avoid any accusation from members that he was self-dealing.

RULES POLICE

Feedback #1. I don't think publishing names [of complainers] in the newsletter is a positive manner to run a community. There is no need to add to the animosity already found in communities.

I find that if the association has a policy (for reporting violations), it will take pressure off everyone. 1. All complaints must be in writing and signed by the complainant. 2. In cases where the complaint is against another resident, a copy is sent to the owner for response prior to any hearing or fine process. 3. The response is part of the record and will be forwarded to the original complainant.

If there is a second written complaint submitted on the same issue, a hearing is scheduled and all parties invited to attend along with their witnesses to defend their position.-Sue L.

Feedback #2. Are you guys kidding??? Are you actually advocating that the owners who complaints are filed against get to know their “accusers”?? This is not a court of law and would create a very hostile environment, and possibly a liability from retaliation related events.
-Rick R.

RESPONSE: In any disciplinary hearing, the accused has a right to know who his accusers are. It is one of the basic elements of due process. -Adrian Adams

Feedback #3. You are totally wrong. No one will turn in a CC&R violator if it is known who they are. You would be putting their lives in danger. You would then have to have a condo witness protection program. Please rethink your answer. -Patsy O.

RESPONSE: I did not say publishing the accuser's name was a good idea, just that I was not aware of any law that prevented an association from reporting in its minutes or newsletter that a particular owner lodged complaints with the board. However, when it comes to disciplinary hearings against a member, the witness (the accuser) must appear at the hearing and testify against the accused unless the association independently verified the violation, i.e., through a security camera recording, a security officer's report, a staff member, etc. -Adrian Adams

Feedback #4. I noted a word I didn't know: officious, and upon looking it up, I find that the person who wrote in used it redundantly, as one of it's meanings is meddlesome. Your advice is correct, but the implication of the person who wrote in implies that we should all just mind our own business. In a condo you can't mind your own business. You can't protect your own interests independently of the community. The community needs to be aware of setting rules that make sense, and keep to them. Otherwise change the rules. People who expect to complain anonymously also need to understand the basic rules of law which you noted. If everyone agreed on what good behavior is, and followed it, maybe we wouldn't need so many rules, but they obviously don't, and your newsletter proves that case regularly. -Anthony V.

  Very truly yours,
 
   Adrian Adams, Esq.
   Adams Kessler PLC