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BrianB
(California)
Posts:1748
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| 06/05/2008 7:44 AM |
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After a couple years (has it been that long????) here on the board, i decided to try to write up a short, quick FAQ on some common legal issues that plague many HOA's. What I would love from the esteemed folks here is a critique: What more do I need? What other subjects should I catch? Do I need to include references and citations? Or is that too much? DID I GET ANYTHING WRONG? Your comments will be captured and added to my document as they apply.
I would preface this with the standard warnings: this is not legal advice, every state varies, know your own state laws, everything cannot be accurate for every situation, your own CC&R's may be different, your mileage may vary, batteries not included, misuse may cause death, etc..
The ADA: American’s With Disabilities Act: The ADA only applies to an HOA if they are engaged in the Employment of the individual, providing a Public Service as a public agency (ie, government), providing public transportation, are running a Public Accommodation (ie, something engaged in business with the general public), engaged in Telecommunications, or are Congress themselves.
Government Agencies: HOA’s are not State or Local Government bodies, agencies, etc., so any laws that apply only to government bodies (some sunshine laws, etc.) would not apply.
Sunshine Laws/Open Meetings Acts: Read the law carefully. Many such laws are written specifically for GOVERNMENT AGENCIES, and thus, do not apply to HOA’s.
Fair Housing Act: This body of law MAY apply to some HOA’s. If the HOA was built as part of a federal program, it may apply. If the HOA is a condo, apartment complex, or any sort of home OTHER THAN a single family house, the Fair Housing laws MAY apply. If the home being discussed is rented out and/or is part of a larger business run by an owner with multiple rentals, it may apply. If that home is being advertised with a realtor, lawyer, etc., the FHA may apply as well.
In general, the Fair Housing Act would NOT apply to a single family home owner selling or renting his home by himself, nor to an HOA consisting of single family homes owned by individual owners, EXCEPT for one provision: No matter your status, the FHA makes it unlawful to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
Privacy Laws: Privacy laws vary state to state. It is best you know your state completely.
Videotaping: In General, HOA’s are allowed to video tape common areas, but many states would require a posted notice that such taping is on going. It’s a good idea to post the notice. HOAs can, in some states, ban the recording of their meetings. However, MANY states have specific laws that allow any HOA member to record the meeting for their own purposes, so check your state. Other states have no law, but in general, the owner may be allowed to tape the meeting anyway, because many states require that only ONE party be aware that recording is occurring (and the homeowner is that party). In general, it’s a smart idea to simply have some guidelines to allow it to occur, openly and under some control.
Records: HOA records are not public documents and are not open to the scrutiny of the general public. They are business records. Some states specify exactly WHAT records must be kept and the process for reviewing them by an owner. Other states do not. Your CC&R’s probably have a statement about viewing records as well. In general, records of the HOA are viewable by any owner upon request. Your HOA will have to look closely to see what your state and own documents include in that term “records”. It is a good idea to have a guideline in place about this, detailing what records ARE available, how to request a viewing, where they are held, acceptable times to view, etc.. Some HOA’s charge for copies, others do not, it’s a smart idea to have a guideline on this that complies with any state laws (some states specify a charge allowed, number of copies to be done, etc.).
There is a LOT of debate on the legality of publishing delinquent owner’s list with names. The best that can be said is that in general, while it is not probably illegal to publish said names among the owners of the HOA, it is thin legal ice on a slippery, greased slope. It would only take one mistake to cross a thin line and be considered illegal under some act.
Debt Collection: In general, if an HOA is acting to collect their own legal debts, MOST debt collection laws do not apply. You cross the legal line, however, if you hire someone to do it (a management company, debt agency, even a lawyer). THOSE people must follow the law.
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BrianB
(California)
Posts:1748
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| 06/05/2008 7:51 AM |
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dang, first comment is my own, cause i forgot. Need to add something on Sattelite dishes, etc...
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MikeS1
Posts:0
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| 06/05/2008 8:16 AM |
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Brian - You're on a roll.
How about...
Solar Panels on HO's roofs, Going Green...
Trees - New laws in some states like VA that address encroachment of
branches and roots in term of subsequent damage to the neighbor's home,
foundation of home, and/or driveways and sidwalks.
Pecking order of laws - I can't even remember. Fed, State, County, local,
Bylaws, Declarations, Articles of Inc., Rules & Regs, Design guidelines.
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MikeS1
Posts:0
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| 06/05/2008 8:16 AM |
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Brian - You're on a roll.
How about...
Solar Panels on HO's roofs, Going Green...
Trees - New laws in some states like VA that address encroachment of
branches and roots in term of subsequent damage to the neighbor's home,
foundation of home, and/or driveways and sidwalks.
Pecking order of laws - I can't even remember. Fed, State, County, local,
Bylaws, Declarations, Articles of Inc., Rules & Regs, Design guidelines.
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GlenL
(Ohio)
Posts:1470
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| 06/05/2008 9:08 AM |
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Mike: An HOA attorney in Ohio describes the hierarchy as a pyramid, with the US Constitution as the base and Association rules at the apex. http://www.ohiocondolaw.com/articles/pyramid_of_laws.htm
Brian how about what constitutes a "reserve fund" and must an HOA file a tax return?
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BrianB
(California)
Posts:1748
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| 06/05/2008 9:19 AM |
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I will add all those ideas:
I will also ask for help! I know nothing about the reserve funds rules, and can use any helpful advice, laws, paragraphs, etc. about the IRS Tax things, satellite dishes, etc.. So, if you know this stuff, please contribute. I will steal gladly!
I definately want my Tax expert to give me a paragraph on the filing of 1099's. Please?
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GlenL
(Ohio)
Posts:1470
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| 06/05/2008 9:32 AM |
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| Brian see BuceF1's advice on 1099's: http://www.hoatalk.com/Forum/tabid/55/view/topic/forumid/1/postid/43885/Default.aspx |
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hoatalk
Posts:490
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| 06/06/2008 4:29 AM |
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| Maybe we at HOATalk should publish such a FAQ on the site? We do tend to get many similar questions here and Brian has a good start at covering many of them. Thoughts? |
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HOATalk.com, A free service of Community123.com
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*See legal notice below (end of page) or go to www.hoatalk.com/legal |
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BrianB
(California)
Posts:1748
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| 06/06/2008 7:56 AM |
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I think an FAQ would be cool, basically, that's what this is intended to be.. the answers to such questions.
More or less, I am getting too lazy to retype the answers every time, and wanted to simply duck into a word document, and cut/paste a paragraph here when the question came up.
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GloriaM
(North Carolina)
Posts:778
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| 06/06/2008 1:55 PM |
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"The ADA: American’s With Disabilities Act: The ADA only applies to an HOA if they are engaged in the Employment of the individual, providing a Public Service as a public agency (ie, government), providing public transportation, are running a Public Accommodation (ie, something engaged in business with the general public), engaged in Telecommunications, or are Congress themselves."
Brian, although the above is partially true this Act can be attributed to HOA’s in many case laws has already been used in HOA’s. So the above statement is not accurate.
"Fair Housing Act: This body of law MAY apply to some HOA’s. If the HOA was built as part of a federal program, it may apply. If the HOA is a condo, apartment complex, or any sort of home OTHER THAN a single family house, the Fair Housing laws MAY apply. If the home being discussed is rented out and/or is part of a larger business run by an owner with multiple rentals, it may apply. If that home is being advertised with a realtor, lawyer, etc., the FHA may apply as well."
The above is also true in part, however there are many cases on the books that HOA’s have lost and the Fair Housing Act was applied to that particular case and yes in single family homes.
"Debt Collection: In general, if an HOA is acting to collect their own legal debts, MOST debt collection laws do not apply. You cross the legal line, however, if you hire someone to do it (a management company, debt agency, even a lawyer). THOSE people must follow the law."
OMG, this statement is so untrue! Your collection laws in your state do apply to anyone collecting a debt.
Brian are you an attorney? A paralegal? What is your background to post FAQ’s? Unfortunately I find many erroneous statements in your post that could mislead a lot of folks in the wrong direction.
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Dr. Gloria J. Martinez, CFO
Official HOATalk.com Sponsor
Author of "A Guide to Community Living"
Faith Management Services, LLC (North Carolina)
(704) 799-3791
www.FaithManagementServices.com
*See legal notice below (end of page) or go to www.hoatalk.com/legal |
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BrianB
(California)
Posts:1748
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| 06/06/2008 2:00 PM |
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Gloria, that's why I am doing this, to try to get the most "correct" set of information ready to use to answer questions.
If you have case law where courts have ruled against HOA's, please provide it. That helps me build the FAQ more properly. I totally understand that judges do not have to follow the law in deciding cases, they can (and do) directly opposite sometimes. KNowing these cases, even being able to link and refer to them can help us define each case where an HOA may need to tread lightly.
Same for debt collecting laws. please, if you have links, provide them so i can include them. If your state has a special rule/law, link me to it so i can include it.
RIght now, i am simply tossing things onto the table, and hoping people like you will sift out the facts, add to it with knowledge, etc..
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BrianB
(California)
Posts:1748
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| 06/06/2008 3:00 PM |
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Gloria.. thanks for pointing some of that out. when i reread the section on debt collection, for example, i realized i didn't WRITE what i was thinking I was saying.
i have since edited that piece in my document to refer to the FEDERAL debt collection act, not the states. then i can add what you suggest, that every state is a bit different, etc..
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BruceF1
(Connecticut)
Posts:696
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| 06/07/2008 7:21 AM |
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Brian,
You may want to check the Library on this site for articles dealing with the ADA and FHA. I seem to remember reading an article (which I think I found on this site) referring to HOAs being required to make "reasonable accomodations" for people with disablilities (ie. reserved parking, permitting wheelchair ramps, etc.). There may be others.
Another good source (which you can get to from this site or go there directly) is Association Times (www.associationtimes.com). That site also has a number of good articles. |
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hoatalk
Posts:490
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GloriaM
(North Carolina)
Posts:778
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| 06/07/2008 12:52 PM |
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Brian:
In this business and dealing with so many attorneys for 25 years I come to enjoy (if you could imagine) reading law notes and articles to keep my company and our communities in the mainstream. Right here on this site in their CAN "Community Association Network" section to the left click on it and go into their library, it is filled with information that you can use. Good luck. |
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Dr. Gloria J. Martinez, CFO
Official HOATalk.com Sponsor
Author of "A Guide to Community Living"
Faith Management Services, LLC (North Carolina)
(704) 799-3791
www.FaithManagementServices.com
*See legal notice below (end of page) or go to www.hoatalk.com/legal |
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BrianB
(California)
Posts:1748
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| 06/07/2008 3:42 PM |
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I am weird that way too Gloria.. I read Federal statutes (and state ones) in my job all the time, so much so that i kind of enjoy some of them. Like you say, after 20 plus years of deciphering the darn things, it can be kind of fun to figure out the new maze they set up.
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BruceF1
(Connecticut)
Posts:696
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MaryA1
(Arizona)
Posts:2505
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| 06/08/2008 2:20 PM |
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Brian,
Following is the satellite rule adopted by my former HOA. I think it's quite good -- covers everything. You may want to include it in your FAQ. Also, if you would like any assistance writing up various sections of the FAQ, please let me know. I like to write!! Email me privately if you wish: sweetpea.43@cox.net
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Satellite Dishes and Antennas. In conjunction with Article ____ of the CCRs of the _________________________________________________
Homeowners' Association, the following rules and guidelines are hereby adopted for satellite dishes and antennas.
A. General.
1. Broadcasting facilities or antennas used for the transmission of radio signals will not be permitted.
2. Antenna equipment or fasteners cannot be attached to any party/common wall or mounted in any common areas.
B. Satellite dish antennas one meter or less in diameter.
Satellite dish antennas one meter (approximately 39") or less in diameter or diagonal measurement, which are designed for over-the-air reception of signals from direct broadcast satellites (DBS), multi-channel multi-point distribution (wireless cable) providers (MMDS) or television broadcast stations (TVBS), together with their associated mounting hardware and mast, if applicable (an Antenna System) and which are placed, installed or kept on a lot must comply with the following restrictions, unless the particular restriction would impair the user's ability to receive signals from a provider of DBS, MMDS or TVBS (a "Provider"). The FCC rules adopted pursuant to Section 207 of the Telecommunications Act covers DBS dishes less than one meter (approximately 39") in diameter, MMDS dishes less than one meter in diameter on masts less than 12 feet, and TVBS antennas on masts less than 12 feet. In conformance with the FCC ruling:
1. We would prefer that satellite dish antennas one meter or less in diameter be installed on the eave of the house at the rear of the property or on the side of the property as far to the rear as practical. However, a satellite dish antenna may be installed at a different location if that is the only location that will allow the best reception.
2. Antenna Systems designed to receive video program services from MMDS or TVBS, which require masts to receive an acceptable signal, must be mounted on masts less than 12 feet in height in accordance with guidelines provided in the FCC regulations. No mast shall be higher than the height necessary to establish line of sight contact with the transmitter.
3. It is recommended that the smaller diameter dish antenna (18" diameter size) be used whenever possible to maintain the aesthetic qualities of our community.
4. Approval of the Architectural Committee is required for any satellite dish or antenna installation, however, to avoid undue delays if the satellite dish antenna is one meter or less in diameter a homeowner may notify the Architectural Committee within 10 days after the installation.
C. Satellite dish antennas larger than one meter in diameter.
1. Satellite dish antennas larger than one meter in diameter are not covered by FCC rules adopted pursuant to Section 207 of the Telecommunications Act of 1996 and require prior written approval of the Architectural Committee before installation.
2. Satellite dish antennas larger than one meter must not be visible at ground level from the street or adjacent neighboring properties. If screening is required to meet this requirement, the screening itself shall require approval from the Architectural Committee.
Any rule within this policy which conflicts with FCC regulations shall be invalidated and this policy shall be modified to conform to current FCC regulations.
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TracyT
(Maryland)
Posts:220
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| 06/10/2008 6:07 AM |
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I think the FAQ is great idea (along with the suggested additional topics). I think that it should be placed prominently on HOATalk with a banner that says something "before posting read FAQ . . ".
Where applicable links/resources/citiation to Federal and state law, HOAtalk, CIA or CAN should be referenced.
T |
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KirkW1
(Texas)
Posts:1190
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| 06/10/2008 8:57 PM |
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Instead of simply stating that the ADA doesn't apply to an HOA, you might mention that there are a host of other related laws that could reach out and bite someone should they violate people's rights. For instance - if an HOA tried to prevent a homeowner from installing a wheelchair ramp that would not be an ADA issue. But it certainly could cause unwanted federal attention and fines. (And that said enforcement action will not prevent a lawsuit but actually make it more likely.)
As for satellite dishes, you may want to mention that the FCC rules entail more then just a dish. They cover "over the air devices" to include reception of the local TV stations. In short, you can't stop someone from putting up what antenna is needed for quality reception of any TV station in your area. And telling them to hide it in the attic would likely to be considered an undue financial burden. |
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BrianB
(California)
Posts:1748
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| 06/11/2008 7:59 AM |
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thanks Kirk... I am already rewriting things behind the scene, picking "better" words here and there, as my foray into debt Collection paragraph turned out to be so badly written. I will carefully revise both the FHA and ADA sections. The advice on the satellite is sound too, as the statutes cover all antenna receiving devices, and have caveats for size, etc... I will try to include them all in rev 2.
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MaryA1
(Arizona)
Posts:2505
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| 06/11/2008 8:31 AM |
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Kirk,
You said: "As for satellite dishes, you may want to mention that the FCC rules entail more then just a dish. They cover "over the air devices" to include reception of the local TV stations. In short, you can't stop someone from putting up what antenna is needed for quality reception of any TV station in your area. And telling them to hide it in the attic would likely to be considered an undue financial burden."
The FCC rule covers "an antenna that is designed to receive local television broadcast signals (TVBS). Mast higher than 12' above the roofline may be sugject to local permitting requirements." That is straight from the FCC rule. DTV (digital TV) antennas are also covered. These antennas are mentioned in the satellite dish policy I posted earlier. I'm not certain that the old TV antennas that used to be very common are covered by the rule. The rule states that a "conventional stick antenna" used to receive distant over-the-air TV signals is NOT covered. |
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DwightT
(Idaho)
Posts:483
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| 06/11/2008 9:11 AM |
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Posted By MaryA1 on 06/11/2008 8:31 AM
The rule states that a "conventional stick antenna" used to receive distant over-the-air TV signals is NOT covered.
Don't those become irrelevant next year anyway?
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KirkW1
(Texas)
Posts:1190
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| 06/11/2008 7:25 PM |
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I would simply write the rule to prohibit all antennas except as exempted by FCC regulations. Then put a footnote pointing to the current "OTARD" pre-emption that is currently in place. I would include language stating that they must be placed in as least noticeable position as possible. I would also place in wording about why this should be.
Unfortunately, the way the regulations are written there is little if anything that can be done about the typical antenna installation. And though you can rightly require that dishes be in the least disruptive place possible, if the installer places it dead center you have little recourse that is inexpensive. |
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