Agency Can Help If Fees Go Unpaid

QUESTION: The board of directors of my condominium association recently voted to hire a collection service to collect unpaid assessments from owners. What do you think of this tactic?

ANSWER: Selecting a collection or lien service to perform the task of collecting delinquent assessments is a very effective way of fairly and consistently enforcing the association’s collection policy.

In most cases, the association does not have to pay for this service because the association is entitled to pass along to the delinquent owner any reasonable costs of the collection procedures, including attorney’s fees and lien filing fees. In my opinion, unless your association’s legal documents require a vote of the owners for approval of contracted services, your board does have the right to obtain the assistance of a collection agency.

Authority Makes Communication Vital

Q: Our association’s board of directors makes important decisions without notifying the owners. For instance, a portion of the complex was scheduled for painting. But notification to the owners was not sent and there was no discussion of color or other considerations. Two people on the board approved the color, and the homeowners were amazed that they were not notified before the work was done.

Then another phase of the project was scheduled for painting and again, the owners were not notified. Three board members approved an entirely different color from that used in the previous phase.

What recourse do we have?

A: Most of the authority for making the association’s business decisions is given to the board of directors. Association members should elect board members who will be responsive to the owners’ desire to be informed about the board’s decisions. But even though the board may have the authority to make a decision of this type, its members should be communicating these decisions to the owners so that the owners’ surprise and resentment do not create a problem.

Communication is extremely important. Boards need the support of the owners, and good communication builds consensus for changes the board is contemplating.

On the other hand, if the board allowed all of the owners to actively participate in every decision, the association’s work would be less than efficient. Selection of paint color is always one of those decisions that generates complaints, because owners’ color preferences vary greatly and it is impossible to please everyone. I believe that the board may have taken this into consideration when they failed to notify people.

Now that the work is completed, repainting would add unnecessary expense. I suggest that you and other owners who feel strongly about the color volunteer to give your input to the board of directors before any additional painting is done. Perhaps the board will appoint you to a committee that would make recommendations for future projects of this type.

It’s Up to You to Police the Board

Q: What agency oversees homeowner associations and condominiums? Will the agency enforce the codes and bylaws? My neighbor and I would like to file a complaint about our board of directors for failure to comply with the association’s legal requirements.

A: There is no local or state agency that oversees community associations after the association is past the involvement of the developer. The developer of a new common-interest development must go through a lengthy approval procedure with the California Department of Real Estate. During the marketing phase of the project, the Department of Real Estate will follow up on complaints about noncompliance with the legal documents of the association.

After the association is transferred to the control of the homeowners, there is no further supervision of any public agency. The owners elected to serve on the volunteer board of directors are sometimes qualified and sometimes woefully inept. Homeowners should actively participate in the association and carefully elect board members who are knowledgeable, fair and committed to the common good of the association members.

The board of directors has a fiduciary duty to operate the association in compliance with the governing documents. Peer pressure from the owners will often cause a board to be more diligent and responsible. If this is not effective in your association, you can elect new directors when the next election occurs.

If the board is misappropriating the association’s money or is engaged in other criminal activity, you may want to hire an attorney who specializes in the representation of community associations. Perhaps with the attorney’s guidance you can gather enough evidence so that you can report the board of directors to the police or file a civil suit. The attorney can also assist you in preparing for the next election so that new directors will be able to take control.

Hickenbottom is a community association management consultant and a founding director of the California Assn. of Community Managers. Send questions to Condo Q&A;, P.O. Box 5068, Thousand Oaks, CA 91360.

Jan Hickenbottom is on vacation. These questions--from earlier columns--are among the most frequently asked by readers.