Declaration Amendments Unanimous Consent
Good Afternoon,
Our HOA is on the verge of bankruptcy due to a high volume of exterior and roof repairs which the association maintains per CC&Rs. Our CC&Rs have not been revised since recorded in 1981. In today’s market, the high cost of materials and labor will never be financially sustainable by our community of 138 units.
With the recent Kalway v. Calabria Ranch HOA LL ruling, would the removal of exterior maintenance from the CC&Rs fall under this ruling and require a unanimous vote of all members or could this pass with the majority (67% per our documents) consent?
Our management company is telling us any change to the declaration requires consent from 100% of our members, which we will never achieve.
Thank you for your time and dedication to helping HOA homeowners.
LeAnne
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LeAnne,
What you are seeking is far beyond the scope of Kalway. Once again you Community Manager has no idea what he or she is talking about. Because you talked about roof repairs, I’m assuming that you are a condominium. The only way to do what you are thinking about is to terminate the condominium. Before I get into that discussion what do you think that you will solve by doing that. If the roof needs repair now, then removing the associations responsibility to repair the roofs will not get them fixed. Who will fix them? Will the need for repair magically disappear? Will each person then have to repair his or her individual section of roof alone, with whatever roofing they desire? What if they don’t and the roof damage becomes uninhabitable, and they simply abandon their unit. Will you be OK living next to a damaged vacant unit where homeless squatters and drug addicts take over the property? I know that this is extreme by surely plausible. The Condo in Florida failed to maintain the property properly and look what happened to them.
Because the association failed to raise the necessary assessments in the past or for failing to do the repairs that they raised money to do then you have two choices sue the past board for breach of duty or raise the necessary assessments now to pay for the maintenance of the complex. A lawsuit will accomplish nothing other than vengeance and thousands of dollars of income for attorneys, you still will have to repair and maintain the property.
Any board that believes that they do not want to raise assessments to make people happy and because of that puts off any necessary repairs, is absolutely wrong and fails to perform their duty to the association. Their job is not to make people happy their job is to maintain the common property.
I understand the situation with seniors on fixed income, I am one myself, but that is not an excuse, the association has a duty to maintain the property for everyone, and the unit owners have a duty to pay the assessments necessary to accomplish those repairs. If you cannot pay the assessment, you can try to sell the home or have it taken away from you in a foreclosure. I know that this sounds heartless, but it is simply reality and a fact of these communities, and what you contracted to when you bought your unit. I can never change that reality by changing laws or by the unit owners changing the CC&R’s.
Your association board has a job to do, and they need to work with the community members to find a way to do that job in a manner that impacts the community the least. Instead of expending any effort to change the CC&R’s or to terminate the condominium you should be working with your board to get the necessary repairs done and to build up the reserves to provide for future maintenance of the property.
Dennis
Dennis,
I appreciate the blunt and realistic reply.
Our community is single level townhouses in a quad configuration.
Unfortunately , as I mentioned we are on the verge of bankruptcy and our community already has a high assessment delinquency rate. The current board is doing its best to remedy the problem. I have no interest in suing or termination , just looking for solutions to keep the association solvent. I have researched communities similar to ours in the area and they do not pay for roof or exterior maintenance, it is the responsibility of the homeowner. These communities are well maintained with an equivalent annual assessment. Appreciate your time answering my questions.
LeAnne,
You’re not getting my point whether the association pays for the roof repair, or the individuals pay for the roof repair, makes absolutely no difference the money only comes from the individual homeowners. There is no escaping that fact. Because the association board in the past failed to apply sufficient money to the reserve account to pay for those eventual cost, you are left with the situation that you face. Many current association boards are faced with similar circumstances based on prior board failure to take the necessary actions to address the long-term maintenance requirements. There are few options available to those board other than special assessments or bank loans. The roofs have to be repaired and the only way to do that is with a special assessment payable by all homeowners. Because you already have a delinquency problem is something that hurts all of you that pay your assessments. The association has all the power it needs to collect those delinquent assessments including foreclosure authority and actually has a duty to all the rest of you to do so. It is not fair to everyone that pays their assessments to bear the burden of the financial shortfalls caused by the people that do not. The association needs to go after the delinquent homeowners and get their assessment current. Once that is achieved then a special assessment or loan will have to be taken out to get the roofs repaired. If all of you were individually responsible to repair your roofs now after they have been ignored for year each of you would have to come up with the money to do so now.
As for other communities that look like you may not be organized like you in their CC&R’s. Town houses can be either a condominium or a planned community depending on who owns the common property. Some communities have the homeowners own the buildings and structures, but the CC&R’s are set up to have the association maintain the exterior of all the structures these communities are planned communities and not condominiums. The community would also be a planned community if the owners were responsible to own and maintain the building exteriors.
No-one like to get special assessment and honest board hate to have to apply them, but they have a duty to the association to do so. Just think for a minute about your last statement one community near you has a similar assessment like you but they do not have the responsibility to maintain the exterior of all the buildings, and it is well maintained. This tells me that your assessments have been far too low in the past because you had more property to maintain than the other community. Which is what you are experiencing.
Dennis