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December 22, 2006
It's Christmas and My Lawn Needs Cutting (and other wintertime thoughts)
It's December 22nd and it's raining. I'm standing outside trying to decide if I should pull my lawnmower back out from the back of the garage and cut my lawn. It sure needs it. Now, for many of you around the country, the lawn gets cut year-round. But here in Michigan, the last cut usually is in early November, and at this time of the year, you're more worried about the snow on the roads for your holiday traveling. Not this year. With the exception of one week, the temperatures here haven't dropped below 40. Maybe Al Gore's right.
I was reading the news this mroning about the storm in Denver that has stranded so many travelers, One article commented on HOA's and the problem of who plows the snow. People were muttering about the association not plowing the snow, while forgetting that every plow in the area has probably been working around the clock, and even if they were to get out of the association, where would they go?
This reminded me of an experience I had my very first year as a condo manager. 1975, and I was the resident manager of a small, condo association located on an island in the Detroit River. That's right, resident manager - my wife and I lived in a small apartment in the clubhouse. My first winter, I heard a news report on the radio (no Weather Channel back then) that said Detroit was in for a very heavy overnight snowfall. Since I was responsible for plowing the snow (with my trusty 8HP John Deere tractor), I knew that if I didn't get ahead of it, I would never be able to push as much snow as they were forecasting.
So, at 8PM, I put on my longjohns, two layers of clothes and socks, parka, boots, scarf, woolen hat that pulled down over my face, and two pair of gloves and headed out into the night. From 8PM until 7AM, the next morning, I plowed and shoveled continuously. There were 8 buildings with two floors on each, with carpeted, open stairways to the second floors, which had to be hand shoveled (of course not tearing the carpet); 4 two-car garages per building that had to be kept clear, and all of the roads connecting them.
The snow stopped at 6AM, after having deposited 22" on the ground. I must have looped those roads 100 times, pushing as much snow as that little John Deere could handle on each loop. At 7AM, I looked around, and every road was clear, every stairway cleaned, every garage entrance totally free of snow. I'd even managed to clear a few of the open decks that sat above the garage, knowing that the weight of the snow could create more problems. Those decks that I cleared were from units that the owners were gone for the winter. I knew I would have to clean the others later in the day.
So, I decided to take a break, after 11 straight, freezing, hours, to warm up and catch a nap. No coffee or hot chocolate for me, I knew that to unthaw my bones it was going to take a rather large slug of 12-year old single malt scotch, which did the trick wonderfully. I was just starting to peel of the second layer of ice-crusted clothing when a rather heavy-handed pounding sounded at my door. I opened it to find an irate owner who prceeded to inform me of my uselessness as a manager and how grossly overpaid I was, and how he was going to get me fired at the next board meeting. Taken aback and feeling the effect of the long night and straight scotch, I asked him what he was talking about. He said he absolutely had to get to work and couldn't get out. I stammered that I was sure I'd cleaned the area in front of his garage, and in fact, remembered that he lived in an area where I had had to use the shovel to pile the snow up over 6' high because there was no place to push it.
He said "Come here!!" and led me out front, where he pointed to his car, at the end of the association road, where it turned onto the main street. "I CAN'T GET OUT!!!" he yelled again. The city plows hadn't been by on the main road yet. I guess I was lucky that I had taken that drink before he showed up, because I just started to laugh, rather than hitting him with the snow shovel. I at least had the presence of mind to respond quietly, pointing out that I wasn't allowed to plow city roads with my little 8HP John Deere tractor, and that he might want to call the city or county, and then left him standing there.
He actually did complain to the board, but the President used the terms I couldn't when responding - "jerk", "idiot" and a few I won't re-print here. The board gave me a bonus ( I think as much as a way of apologizing for that owner, as for the work) $25. Hey, back then that was a lot. Anyhow, for the people in Denver - kick back, listen to holiday music, if you haven't done your Christmas shopping, forget it, and don't go driving around, you'll just be in the way. The plow will get there when it can. The people driving them are working as many hours as they can stay awake and they want to be home for Christmas too.
To all of you, Merry Christmas, Happy Holidays, and drive safely.
Posted by joewest at 11:30 AM
December 12, 2006
Interruption
Although I've only covered about half of the AARP Bill of Rights for Homeowners, I thought I would take a moment to explain a few things about my opinions on this article. If you've read the posts regarding it, you would obviously come to the conclusion that I am vehemently against it and can find very little redeeming value in their proposals. Not exactly true.
My basic issue is that it is about as fair and balanced as a Fox News report. It was designed to play to a specific audience. By using only those people who have a long and histrionic relationship with community associations as sources, it chose to promote their agenda with no discussion of the down side, added costs, bureaucracy, burdens on volunteers, etc. While I can agree with specific points, and the need to deal with those abuses that do occur ( and no one has yet to show me any evidence that abuses are the 'norm' and not the exception), their blind zeal to overturn the basis for the existence of community associations, does not put forth a workable solution.
But this is what it has come to. There seems to be no middle ground or even the opportunity to find one. The "industry" creates, manages, represents, advises and usually has a broader knowledge of associations than the advocates of the AARP proposal do. They, of course, look at issues differently, each with their own opinion of what it would take to make an association run well. However, they (or we) have become the "enemy" with which there can be no discussion, only diatribe. To disagree on a point, or points, is proof that one has gone over to the enemy and can no longer be abided. Too bad, because finding a middle ground will be the only way a workable solution can come into existence.
For the record, here are a few of my beliefs as they relate to community associations:
- a "one-size fits all" solution won't work. Many of the AARP proposals sound fine for a 1,000 home, profesionally managed HOA, but would be a disaster for the 10 home HOA.
- all states need a clear and concise set of laws governing community asociations, both condo and HOA/POA.
- once laws are in place, I think the state should provide a set of guidelines for the operation of the association. If a board follows these guidelines, they should be doing a least the minimum necessay to operate the association in a good manner.
- CAI is not the devil incarnate, they're a trade association that represents their membership, now mostly managers, attorneys, and other professionals. While there are a number of associations or individuals that are members, they are not the power. It should be noted that CAI has not claimed to represent homeowners for some time now.
- the power in legislatures rests with the combined lobbying force of the attorneys, realtors, mortgage bankers, insurance and developers. Any major legislation is going to have to deal with the fact that these groups have back-door access to the legislators. CAI is not that big yet, they still have to sit out at the table and testify, thats why they are such easy targets.
- disclosure is critical to the future of community associations. People need to know what they are buying into, and that information, with its impact on sales, will go a long way in forcing associations to clean up their act, if they aren't doing a good job. Any disclosure documents should include a simple checklist of what is allowed and what isn't.
- somewhere in this discussion, room must be made for personal responsibility. The fact that an an owner doesn't read the documents has somehow become the association's fault. It isn't and it shouldn't be. I think a separate document at closing, that says "I have read all of the documents and agree to abide by them" and signed by the purchasers, is just as important as any "right" others want.
- as for individual rights, to my knowledge, no association has ever taken away anyone's basic rights, but they have put controls on them, as the owner agreed to let them do when they purchased (either knowingly or unknowingly, see above). Anyone who wants to be patriotic can put a flag up in their home and feel good every day, but the issue was always about the pole outside. Anyone could wear a button, or put a decal on their car, to show their political feelings, the issue was about signs in the yard, again, location. And yes, people can agree or contract to give up some control over their rights. Anyone who has ever enlisted or been drafted into the US military knows that you can give up ALL of your rights. The question has always been where the line was drawn. And its never drawn in the right place if you don't agree with it. But that's what elected representatives are supposed to do, decide where the line is drawn.
- as long as there is no standard required for the creation of the critical documents, associations and owners are going to be burdened by badly written ones. Set a standard and enforce it.
- are boards elected to govern, or serve? Interesting question, with no simple answer. They have to govern, they should serve.
- as long as associations are made up of people, there are going to be problems, and legislation won't be able to fix all of them. Sometimes, its just the people.
- last, an exception is not the rule. I've dealt with, easily, over a thousand condos and HOA's, in my 30+ years of working with, and living in, community associations. Here are a few observations based on a broader sampling than the "advocates" draw on:
-- associations hate to foreclose on someone's home. It is a last resort.
-- nosey condo commandos were simply busybodies before they moved in. If you elect them to the board, you should know what to expect. If you don't like it, don't elect them.
-- a surprisingly large number of people move into a community association because they like things to be a certain way. Their desires need to be considered in this also.
-- most associations haven't figured out the critical importance of good communications, which results in most of the problems
-- the President is the key to whether an association has a good year or bad one. Look for someone who has been a good leader outside of the association.
-- almost every problem that makes the media starts off with the owner breaking a rule and then challenging it, not trying to change the rule first. It goes with the "blame others" that seems to be in fashion these days. You usually find a pretty stubborn board also, with the resultant 'head-bumping'.
Enough! I'll finish out the "Bill of Rights" pieces in the coming days, but basically I just needed to clarify some points. Yes, there needs to be better written laws governing community associations, but the AARP Bill of Rights isn't it. Its just one side.
Posted by joewest at 10:19 AM
December 7, 2006
AARP - The Right to Individual Autonomy
Homeowners shall not surrender any essential rights of individual autonomy because they live in a common-interest community. Homeowners shall have the right to peaceful advocacy during elections and other votes as well as use of the common areas.
We've finally arrived at the heart of the matter - the issue so near and dear to the hearts of those who contributed to this manifesto - "I don't want somebody else telling me what I can or can't do with my home!" To accomplish this, thy wish to impose governmental standards on associations.
Over the past few years, people have fought with their associations over flags, signs, displays, standards, pets, renting, and other issues. In most cases the individual was technically in the wrong, but used arguments that went to people's emotions ("I'll never take down 'Old Glory' while our troops are in Iraq"), and often, the board of directors, or management, failed to deal with the issue properly, making a bad situation worse. Does this require turning the association into another layer of formal government. Sometimes you get what you wish for, but its not what you expect. The level of bureaucracy will increase, you're going to have to pay the boards, just like other elected officials, and costs will go up.
The author also ignores the differences between an HOA and a condominium. In a condo, the owner does not individually own the exterior of the building or the grounds around it, so signage, flagpoles, etc. would have to be allowed in common property, which will require a vote of the members. You can't arbitrarily give someone the right to put a sign on ground that I own an equal share of, at least, not without my permission.
Other questions are not answered. If an owner is allowed to place signs and places something offensive, or possibly defamatory, could the association incur liability? A similar situation arises in the access to association communications. What the association does is normally self-monitoring, with a cautious eye cast toward potential liability. Does the association have a right to require an owner wishing to publish an opinion of a subject in the associations newsletter, or on their web site, to provide it with waivers and proof of liability insurance?
This one has to many unanswered questions, mainly because it doesn't address the extremes that are bound to occur.
Posted by joewest at 2:55 PM
AARP - The Right to Stability in Rules and Charges
Section 105 - Homeowners shall have rights to vote to create, amend, or terminate deed restrictions and other important documents. Where an association's directors have power to change operating rules, the homeowners shall have notice and an opportunity, by majority vote, to override new rules and charges.
Most of the items inthis section are normally included in just about every set of documents. Rarely do directors have the power to amend, without an owner vote, most of the documents. Managers never have the power to institute rules, although directors, not wanting a confrontation with an owner, will sometimes blame the management for enforcing it.
The main item, once you work your way through all the legal verbiage, is the reversal of the implied powers of a board. In the past, courts have held that boards have the power to act, or create rules, when there is a need and there is no specific provision in the documents prohibiting it. This document wants there to be no implied powers. The board can only take actions or adopt rules if the documents expressly allow them to create a rule covering that subject. And even then, some rule implementation would require a 100% vote of the owners. One of these areas which would require a 100% vote is any rule that would "prohibit or materially restrict the use or occupancy of, or behavior within, individually owned lots or units.." So, unless your original documents deal with rentals, pets, smoking, noise, business use, and a hundred other potential issues or problems, your chances of amending your documents to deal with them is nil.
I had to laugh a little when I read the section on "Operating Rules". After listing the requirements, the author then adds that infamous word "reasonable". The whole advocacy movement is based on the fact that they don't believe elected boards of directors are capable of being "reasonable" and so legislation is required to make them so. Of course, their definition of "reasonable" rarely co-incides with others" which is the heart of the issue. Only courts can decide what is "reasonable", so this doesn't improve much.
The rest deals with requiring notice and a meeting to vote on any rule (creation, change or elimination) for any rule that isn't put in place because of a threat to the health, safety or security of the owners; and the right to call a special meeting (5% of the owners can call one) to rescind any rule.
This one is aiming at removing the right of an association to have any say regarding what an owner can, or can't do with their property, which pretty much guts architectural control, as well as providing any stability in an owner's expectations of the people who live around them.
Posted by joewest at 1:58 PM