Get 2 months of free community web site hosting from Community123.com!
Tuesday, July 16, 2019
Get 2 months of free community web site hosting from Community123.com!
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Is Mangement company resposible to give advise?
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
AnnaA3
(California)

Posts:19


10/20/2018 9:22 AM  
Hello Everyone.

There is the background to my question:

I live in CA in an area of an extreme fire hazard, per our Specific Plan. Of course I have seen many Boards come and go, some with brand new residence on the Board. Everyone use to get a copy of the Specific Plan and the CC&R's when they moved in. For years now, they sent only the CC&R's though escrow to new residence. I finally got the Board to agree to send out the Specific Plan along with CC&R's (it was like pulling teeth because they thought the Specific Plan was not relevant). I explained to them that our CC&R's refer to the Specific Plan through-out and homeowners needed the Specific Plan to explain some of the CC&R's rules in detail.

Our Association has green firebelts in areas between tracks and only the Association can take care of them. Our Association was set up in a different way back in 1984 than the newer Associations in our area. Some of these green fire belts are on the private property of homeowners, but the homeowners, per the CC&R ,cannot maintain them, plant on them or change them at all per the CC&R's. People have been moving in and changing the greenfire belts on their property making them basically not a firebelt any longer. Unless they read the Specific Plans, they had no idea they were firebelts and not just landscape areas. The CC&R's state that they cannot plant on them, but it doesn't say why, it refers to the Specific Plan. Some Board members thought that the Specific Plan were only for the Builder when they started building the homes in our association, not so, it also has many other things including specifications for height, setbacks etc that the City uses when approving or not approving homeowner's plans in our HOA. Our Specific plan, per the City, trumps the city codes.

A member came to our Board meeting last meeting and complained about our green fire belts behind his home not being maintained as a fire belt and per our Specific plan needed to be turned back into a firebelt and nothing planted on those slopes that have been planted by homeowners or other uneducated boards cannot be grandfathered in and need to be removed because of fire safety issues.

The Board kind of panic due to the cost of cleaning them up and was going to have an attorney look at this. I will find out at the next meeting what the attorney said.

I saw this neighbor yesterday and I told him this was going to cost a lot of money. He said it was the management companies fault for not giving the correct advise to the Boards all these years. He said that some people were being fined, on and off all these years, for planing on those slopes but kept doing it anyways but Boards should of removed the unauthorized planing at that time. He said the management company, after all these years, should of read our Specific Plan along with the CC&R's and explained that those were firebelts to the Board and had to maintained as such, because some Board really had no idea that they were firebelts, they just thought that the Association had to maintain them as landscape areas. Again, It doesn't state why the Association has to maintain those ares in the CC&R's, it refers them to the Specific Plan that most Boards thought were not relevant.

So finally my question: Does the Management company have to know what the CC&R's and Specific Plan states and advise the Board when the Board seems not to understand what needs to be enforced and why? Can the management company be sued if they keep letting the Board make mistakes that ends up costing the Association lots of money? I know the management company cannot force the Board, but should they at least advise and make a note of it so they are not liable?
MelissaP1
(Alabama)

Posts:8281


10/20/2018 9:34 AM  
Little tricky there. The MC is a contractor to the HOA. They are not a member of the HOA. So they would not necessarily have the documents you referenced. (Although CC&R's are public accessible) in all cases. It depends on how your contact with the MC is worded.


Does your HOA have the right to fine? If so, are they paying the MC to do it on their behalf? Seems to me ya need to go revisit the MC's contract and responsibilities of all parties.

Former HOA President
AnnaA3
(California)

Posts:19


10/20/2018 9:49 AM  
Hi, No the management company does not impose fines. I know our property manager does have copy of the CC&R's, she brings them to the meetings. I don't know if she has a copy of the Specific Plan but she may have one now. I say that because when I had to argue to the Board that homeowners needed a copy of the specific plan because the CC&R's referred to it, she is the one that said she could attach the Specific Plan to the CC&R's when escrow requested them.

Thank you for your reply
LetA
(Nevada)

Posts:711


10/20/2018 11:29 AM  
Posted By MelissaP1 on 10/20/2018 9:34 AM
Little tricky there. The MC is a contractor to the HOA. They are not a member of the HOA. So they would not necessarily have the documents you referenced. (Although CC&R's are public accessible) in all cases. It depends on how your contact with the MC is worded.


Does your HOA have the right to fine? If so, are they paying the MC to do it on their behalf? Seems to me ya need to go revisit the MC's contract and responsibilities of all parties.





I disagree Melissa, and here's why. If I hire a contractor lets say s plumber to install a water softener in my home. I want that contractor to be totally competent and fluent in the latest plumbing technology. for example, I don't want a plumber to use PVC pipe glue on PEX to connect two types of pipe. It is not recommended to use PVC glue on PEX because the pipe will fail resulting in a water leak.

The same applies to HOA management companies. I expect the HOA management company to be completely fluent in current laws and regulation as well as the community needs as it pertains to community adopted ecological and fire safety plans.

If a contractor can't provide that basic service, it is time to find another MC.
KerryL1
(California)

Posts:6397


10/20/2018 12:08 PM  
Say, Anna, you will get replies from actual property managers, so wait for them.

Meantime, what do your CC&Rs say about this "Specific Plan?" Is IT a governing document? Look at your CC&R's Definitions at the beginning of them (usually.) I do doubt your Specific Plan supersedes city code, by the way.

What does your contract say as agreed to by the Management company (MC) about the PM's responsibilities? I doubt it will say that they must advise the board about every thing. It may also say that the PM is not even responsible for advising the board about CA Civil Code.

The board is supposed to know what they should do and then vote to direct or instruct the PM to carry out their decisions.
DouglasK1
(Florida)

Posts:1416


10/20/2018 1:17 PM  
Ultimately, the board is responsible for the operation of the association. MCs are hired to assist the board in carrying out their duties, but the responsibility still rests with the board. Management contracts can consist of different levels of service, from simple bookkeeping to much more. Generally one of the reasons to have an MC is to help the board keep up with the requires of state and local law, and the governing docs. If you can determine that the MC failed to provide the services as defined in the management contract, you might have a case. Even so, you'd probably have to sue to recover anything, which is typically expensive and the outcome uncertain.

Do you know for a fact that the MC never brought any concerns to the board regarding the greenbelt? If they did and the board turned a blind eye, then I'd say the MC has met their commitment.

Escaped former treasurer and director of a self managed association.
AnnaA3
(California)

Posts:19


10/20/2018 1:29 PM  
Hi Kerry,

I called the City Planner regarding a homeowner's plan he submitted because I am on the ARC. She told me that our Specific Plan supersedes city codes. Reason is that the Specific Plan can have more stringent codes than the city codes, but not less stringent. The more stringent Specific Plan codes apply. We have many Associations in our area and the City Planner knows about all of them. They use the Specific Plans for each Association to approve or disapprove plans from the homeowners of each Association. Example, the code for patio covers is 12 feet high in the City, our Specific Plan states 8 feet high, the 8 feet code is the one they use for permits.

There is no mention of the Specific Plan in the definition of the CC&R's but in the CC&R's it does refer to the Specific plan in some areas. CC&R Example: "Notwithstanding the enforcement powers of the City under this Declaration, it is the duty of the Association to ensure that the Association and the Architectural Committee carry out their duties in conformance with the "Specific Plan 84-9", and to ensure the clearance of 100 foot fire bread green belts from residential structures outside of individual Lots and the use of low water/fire retardant ground covers."

Then you go to the Specific plan and it goes over this more specifically with a maps of the Association showing these area's as green fire belts.

I don't know what the contract says with the Management Company. I guess that will have to be looked at.

Thanks Kerry





AnnaA3
(California)

Posts:19


10/20/2018 2:05 PM  
Hi Douglas,

I would never sue my own Association. I am more concern about other's doing so. I have been going to the meetings since April of this years since the planting on these slopes (greenbelts) by homeowners kept coming up by other homeowners. People were planting trees and bushes on these slopes (firebelt areas that are on their property) up against other neighbors wrought iron fences which the CC&R's state they cannot do.

After listening to the Board talking about this situation, I got the idea that they thought these areas that we took care of were just landscape areas, not firebelts. I tried to get them to read the Specific Plan and I made copies of the maps showing the fire belts to the Property Manager, hoping she could talk to them about it. I finally said to the Board, "think about it, why would the city have the Association water, maintain and keep up these area's on homeowner's properties if they were just landscape areas...the reason is they are green fire belts to be maintained as fire belts by us."

Finally, one neighbor came in last meeting and let the Board have it. He wrote down every single thing that was in the Specific Plan regarding these area's and fire standards. Even though the Board did direct people in the past to stop planting in these areas, he said that the Board should of removed those things that were unlawfully planted because now our firebelts are not firebelts any longer. This neighbor thinks that the Property Manager is responsible because we have had them for a long time and when these situations kept coming up the PM should of advised the Board. Now these areas are out of control and is going to cost us lots of money to fix.

Finally, the Board reacted and is having an attorney look into this. I guess I will see what the attorney said at the next meeting.
KerryL1
(California)

Posts:6397


10/20/2018 2:46 PM  
Ah, sure, I now get what you meant by your Specific Plan supersedes the city codes.

Ask in writing for a copy of your HOA's contract with MC. As Douglas also points out, it's the board that's ultimately responsible for the MC doing its job.
SamE2
(New Jersey)

Posts:116


10/20/2018 8:00 PM  
I would talk to the insurance carrier and see if the D&O insurance would cover it. Can the association fix it and charge the people that did the planting or has too much time elapsed? I think the management company takes their direction from the Board so I think you will have a hard time getting them to be responsible but worth looking at the contract.
RichardP13
(California)

Posts:3644


10/20/2018 11:51 PM  
I will take issue with Melissa saying the MC is just a contractor. Sorry, we, for the most part run the place on a day-to-day basis. If there is a plumbing issue, the MC is calling a plumber. If a landscape issue the MC is calling, and so forth. We will do the monthly billings, collect the payment, pay the bills, send out for bids, handle collections, handle emergency calls 24/7, 365 days a year, prepare taxes and financials.

Our job is to make sure we have all the relevant documents available to better serve the association. Some of we create web sites so relevant information is available to all homeowners 24/7.

What we should't be doing is giving advice. That can become a legal issue. Some states such as Florida frown on MC's giving "legal advice", but some of the MC's have better knowledge than attorneys. We should be giving our "best opinion", based on past experience.

MC's can't fine, we can issue violations based on the direction of the governing body. If the Board says they don't want owners written up for not replacing their trash bins after collection, that is the direction I must follow. It is not illegal. If annual disclosures are to be sent in December and they Board says don't waste association money sending them out because no one reads them, we have a problem as California statues requires such disclosures sent at specific times.

If there is ever a legal disagreement with a Board I will make sure it is well documented to protect my butts, as Boards will change.

It is the responsibility of the Board to know what the Specific Plan is and how it is to be enforce. The Board and the Association can be sued, but not the MC. If the Board gave the MC direction to enforce and the MC simply ignored the direction, different story altogether.

Been there, Done that
JohnC46
(South Carolina)

Posts:8419


10/21/2018 7:43 AM  
When we hired our MC, one of the optional services offered was site inspection. We opted not to have them do such.

I believe site inspections is an optional service so the OP should check if her association purchased such.
MelissaP1
(Alabama)

Posts:8281


10/21/2018 8:43 AM  
I think Richard you disagree with me just to disagree. The very first paragraph basically DEFINES the MC's relationship as a PAID contractor to the HOA. You get PAID to do ALL of that work! Your company is NOT a member of any of these HOA's you manage. You get PAID via a contract to do certain daily operations on the behalf of the HOA board. Each contract varies.

So to say you disagree that a MC is paid contractor to the HOA is not logical. You get paid via a contractual relationship with a not for profit corporation of which you are NOT a member of... Thus makes you a paid contractor...

Former HOA President
AnnaA3
(California)

Posts:19


10/21/2018 10:59 AM  
Hello Sam,

Thanks for responding. I thought the D&O was only insurance for lawsuits. In my personal business I am required to carry E&O and Liability insurance, both will pay out without lawsuit. Not sure about D&O, never had any dealings in that area.

Yes, too much time has past. It was mostly the Board before this current Board that let things go too far. Some of the homeowners who were doing the unauthorized planting have moved, some of the things growing were probably from seedlings (that the landscape company never pulled out)and some things are just to hard to prove that the homeowner did the planting.

AnnaA3
(California)

Posts:19


10/21/2018 11:08 AM  
Hi John, yes our MC does a weekly check. How it is done depends on who are Property Manager is. Around 2008 we change the MC and had brand new Board at the time. We have a lot of slopes in our Association that has to be taken care of by the landscape company. When she did inspections, she would actually walk the slopes and if there was ever a complaint she would contact the landscape manager and have him come out to look at the problem with her. She was an older lady but every good on landscape issues. She retired.

We have had a few property managers since with the same MC. All they do is drive around the neighborhood once a week.
AnnaA3
(California)

Posts:19


10/21/2018 11:22 AM  
Richard, your post was very informative. So what you are saying is that if the Board is not following the CC&R's and they direct you "to do" or "not do" something that goes against what their CC&R's states, you give them your "best opinion" and if they ignore your opinion, you do what they want and you document it to cover yourself. Is that correct?
RoyalpitA


Posts:0


10/21/2018 11:34 AM  
correct

the MC is HIRED HELP, whether salaried or hourly or 'contracted'

an honest, competent, self respecting MC 'probably' would draw a line over which they would not cross ..... but,


only death and taxation are certain
KerryL1
(California)

Posts:6397


10/21/2018 2:38 PM  
Our contract with our MC says they are not "obligated" to follow any board directives that oppose our governing docs or state laws.

We have a full-service onsite PM who has an assistant. Our contract with her MC is long and in every case states clearly that the board bears responsibility for every thing.

I recall that Richard has written that he's terminated some accounts where the board instructed him to do something unethical or illegal. He'll clarify.
RichardP13
(California)

Posts:3644


10/21/2018 6:55 PM  
I am currently going through a situation right now. One person on the Board wants to spend XXX amount on a capital improvement over the allowable legal limit. I said NO. That person had my contract terminated back in August, EXCEPT they nor the new MC (at twice the price) doesn't know how to do it. Sometimes you just can't make this stuff up.

While I was hired by the Board, I work for the Association. While the signatures on the contract might be individual Board members the language is what I will do on behalf of the Association and also what the Association is responsible for.

If what a Board wants is either unethical or illegal, I WILL NOT CROSS THAT LINE. As I said above I have a fiduciary responsible to the Association. I don't work for the Board, only take direction from them.


Been there, Done that
RoyalpitA


Posts:0


10/22/2018 6:48 AM  
good going

seriously

Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Is Mangement company resposible to give advise?



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement