Our reserve account is currently funded at 100%. Is this legal? Can we refund the money to owners?
: There may be legitimate instances when reserve funding temporarily exceeds 100%. It is not illegal and a reasonable surplus creates a contingency for unexpected expenses. However, anything over 130% is generally considered excessive. A 100% surplus is not appropriate unless it is a temporary condition resulting from an insurance or construction settlement. Even then, the monies should be in an account separate from reserves and used for those items for which the settlement occurred.
Assuming that over-funding is due to excessive reserve contributions rather than a one-time settlement, the account should be brought back to normal funding levels
. I do not recommend writing checks to owners because it (i) creates disputes between current and prior owners over who should receive the money, (ii) is an inappropriate use of reserves funds (Civ. Code §5510(b)
), and (iii) may create tax complications. The best way to restore balance in the account is to gradually deplete the surplus through normal reserve expenditures and by temporary reductions in contributions to the reserve account.
: Associations needing legal assistance can contact us
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