Reader Questions - Who’s In Charge?, Director Trespass, and Condo or Not?

Dear Kelly,

I really like your column. I’m on an HOA board and pride myself in keeping up with HOA legislation. I learned something new in your reply to a recent question. But I also felt there was a lost opportunity. The questioner termed their manager as “the person in charge.” It’s good to remind HOA leaders that the Board is “in charge”–not the property manager!

Thank you

C.R, San Diego

Dear C.R.,

You nailed it. The manager is the association’s managing agent, and the association delegates to the manager, but the board is still ultimately responsible. Boards – make sure you have a clear written understanding as to what you delegate to your manager for action. Managers – make sure that your client association has in the minutes authorized you to act on the association’s behalf, and do not assume. HOA members – the manager should be carrying out the board’s directives, so don’t blame the manager, talk to the board!

Thanks C.R.,
Kelly

Dear Mr. Richardson,

One of our directors likes to trespass on the ‘exclusive use’ patios of our residents. The president has said that it is okay because the person is a director. I thought exclusive use meant exclusive use unless in case of an emergency or if the board needed to check for violations. All of our patios are completely visible from the common area and there should be no reason for someone to step onto them. What do think?

K.C., Pine Valley

Dear K.C.,

Do the governing documents give the board the authority to inspect the patios? Has the board authorized the director to inspect patios? If the answer is not “yes” to both questions, the director is outside authority and also creating unnecessary friction with neighbors.

Many homeowners were never told the association still has jurisdiction over exclusive use areas, and that each such area is owned in common by all members but only used by one.

Being a director does not give one individual power – each director has one vote, and power is vested in the board. Well-meaning people can create problems by going too far.

Thanks,
Kelly

Mr. Richardson,

We appreciated your recent column on understanding the difference between condos and PUDs. However, our development is referred to as a PUD in some legal documents and filings, and as a condo in others. Do the CC&R’s have the final say, or the filings by the developer with the city/county? Or do we need to look elsewhere?

Thanks in advance for any light you can shine on this confusing situation,

M.H., Los Angeles

Dear M.H.,

The Common Interest Development Act does not recognize “PUDs” but uses the term “planned developments”. The document defining which type of common interest is your association is the document dividing up the project into separate saleable interests. Regarding condos or planned developments, that document is the Subdivision Map or Condominium Plan. That document is filed with your County Recorder and so is publicly available.

Planned developments can be attached homes, and condominiums can be detached homes. Have your association’s lawyer look into this. If the developer made a mistake with the original governing documents, your association may need some help to straighten things out.

Thanks for your question,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.