Whether you just got elected to the community association board or you've served for years, you want to make a good impression. Knowing these common HOA terms will help you sound like you know what you’re doing while you get up to speed or serve as the refresher you need to keep growing as a community leader.
1. Fiduciary Duty
The highest ethical and moral obligations and duty of good faith a person is charged with for fulfilling their responsibilities. The board of directors of a community association has a fiduciary responsibility to act in the best interests of the association.
This is a fancy sounding term that applies to the board of directors of a community association. It boils down to trust. The straightforward definition of "fiduciary" alone is stated as: involving trust, especially with regard to the relationship between a trustee and a beneficiary.
That definition is not very practical. In a nutshell, when you are a board member for a community, you need to act for the good of the community as a whole and not for yourself. You have a duty to make decisions for the benefit of all instead of just your home or your friend’s homes nearby.
I know of one board member in a condo association who was great friends with one of her neighbors, but that neighbor fell behind in their assessment payments. Even though it might’ve been tempting to look the other way, the board member joined the rest of the board in applying their community association's written collections policy in this situation. This put the community first over the board member’s personal interest and ensured equal treatment of all homeowners.
2. Governing Documents
The declaration, bylaws, operating rules, articles of incorporation or other documents which govern the operation of the association.
The governing documents, sometimes referred to as the CC&R’s (Conditions, Covenants, and Restrictions) is where the HOA and the board get their authority. They will spell out exactly what you can and can’t do when governing the community.
Governing documents are arranged in a hierarchy of descending authority:
- Plat map
- Articles of Incorporation
In general, the documents above the line cannot be changed by the board alone; it will be spelled out in the documents themselves how to do so. They will require a vote of the membership, usually an approval of 66 percent or more of the residents, to actually pass changes to these documents.
The documents below the line are more fluid and can clarify the property restrictions in the documents above them, but cannot contradict documents higher in the hierarchy. For instance, if the Declaration says rentals are allowed, the board cannot pass a Rule saying no rentals are allowed. You may, however, be able to set parameters around rentals or procedures to follow if the Declaration is vague. Always check with an attorney for your state’s specific laws when implementing Rules.
As a board member, you should actually read these documents and understand the hierarchy of them.
3. Business Judgment Rule
Actions taken by directors of a community association in good faith, that are within the powers of the association, and that reflect a reasonable and honest exercise of judgment, are valid actions.
The business judgment rule is a presumption that in making a business decision, the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the corporation, in this case, a not-for-profit corporation or homeowners association.
Given that the directors cannot ensure success, the business judgment rule specifies that the court will not review the business decisions of directors who performed their duties (1) in good faith; (2) with the care that an ordinarily prudent person in a like position would exercise under similar circumstances; and (3) in a manner the directors reasonably believe to be in the best interests of the corporation.
The business judgment rule along with directors and officers insurance will cover you as a board member for any decisions you make, even if they turn out to cause more problems than they solve for the community. However, the big caveat is that you must follow the spirit of the rule.
Did you act in good faith? In other words,did youdeal with homeowners, vendors, and management in an honest and fair manner. Did you utilize care? In other words, did you read the board packet and understand the information in it prior to the meeting when making your decisions. Finally, did you act in the best interests of the community? This goes back to the fiduciary duty: acting in the best interest of the entire community and not in the interest of your friends, your neighbors or yourself.
A practice or arrangement by which a company or government agency provides a guarantee of compensation for specified loss, damage, illness, or death in return for payment of a premium.
In light of the natural disasters in 2017, including multiple hurricanes on the east coast and wind and hail damage in the midwest, you’ll want to make sure you understand your community’s insurance policy.
You’ll want to know terms like "per building" versus "per occurrence" deductibles, and the answers the key questions: Is there a per building cap? Is there a percentage wind or hail deductible? Do you have or need flood insurance? Do you have a basic, broad, or special form property policy (sometimes referred to as “all risk” coverage or “named peril” coverage), and what does that even mean?
Just for the record, “special form policy” covers everything except what is specifically excluded within the policy. “Basic and broad form policies” only cover the perils that are specifically named in the policy and excludes everything else!
Invite your insurance agent to a board meeting or schedule a conference call to ensure you know and understand what kind of coverage your community has so you can effectively communicate that to your members and/or homeowners. Condominium and townhome owners will need to have a personal lines policy (HO-4, HO-5, HO-6, etc.) to cover their personal belongings, their personal liability, to cover a possible deductible assessment, and for any physical property not protected by the community’s property policy. It’s also wise to ensure your community’s insurance agent specializes in community association coverage and can readily explain the insurance needs of your community according to its governing documents (including any insurance-related amendments or resolutions).
As mentioned above, you’ll want to ensure you have a directors and officers policy that covers the association and its board of directors for both monetary and non-monetary claims. Some policies in the marketplace exclude coverage for non-monetary claims, so it’s especially vital for the board to review this policy closely since non-monetary claims make up roughly 60 percent of most association-related D&O claims.
You cannot expect a homeowner to understand the association’s insurance policies if you as a board member don’t understand them. That’s why it’s imperative that you partner with an experienced agent to ensure your association’s policies make sense, and that they address all of the community’s exposures to loss.
The quality of being objective; not influenced by personal feelings, interpretations, or prejudice; based on facts; unbiased.
As a board member you are going to be making decisions for the community, and you’ll never be able to please everyone. Some owners will want more services and be willing to pay for those services; other owners will want to keep assessments as low as possible by any means possible; some owners will have purchased in the neighborhood because of the rules in place; others will want there to be absolutely no rules whatsoever.
You may have to make unpopular decisions such as raising the assessments to cover increasing costs for insurance, landscaping, or repairs and maintenance expenses as buildings get older. You’ll be selecting contractors, and sometimes they will do a poor job. Or, in trying to keep costs low you will choose fewer services and then owners will complain that they aren’t getting the service they “used to” receive. You are in charge of enforcing the Rules and Regulations and governing documents, making decisions on possibly fining owners that do not comply or enforcing them to remove that fence that is too tall. You just have to remember that all owners agreed to abide by the governing documents when they purchased in the community and apply the standards fairly and uniformly to everyone.
Don’t take it personally when someone acts inappropriately in response to you simply performing your duties as a board member. They are usually not mad at you but mad at the situation, and they may even apologize in the future.
Be prepared for these conflicting situations and act objectively knowing deep down you're being a true community leader.
About the AuthorMore Content by Jesse Dubuque