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CarolynS3
(California)

Posts:4


07/13/2010 11:11 AM  
I am in a condo association (in California) that requires the HOA to do all external maintenance including painting of all the building. The current board has approved the scheduled repainting and in the process has decided to completely change the color scheme of a third of all of the buildings (one of which I own). This was discussed and approved at board meetings without getting input from all of the home owners. There were a few discussions at board meetings but these are attended by less than 10 home owners, and when I was there the residents who were in attendance and objected to the changes were ignore. Can the board do this? What are our legal rights?

I also have a question about disclosure of major changes. The board has not disclosed the color changes or informed homeowners who are affected by these changes what to expect. The painters are in the community power washing the buildings right now and as an owner, I have no idea of what my property will look like when completed.

Any ideas as to what I should do?
SteveM9
(Massachusetts)

Posts:2924


07/13/2010 2:51 PM  
The board has not disclosed the color changes or informed homeowners who are affected by these changes what to expect. Any ideas as to what I should do?




First, before you get upset and lawyer-up, find out what color they are painting it. You might like it. Do it the old fashion way.... Telephone someone on the board, Knock on their door, ask the painter.
MaryA1


Posts:0


07/13/2010 4:02 PM  
Carolyn,

Since the HOA is resp. for exterior painting the BOD has the authority to decide on the color scheme. IMO, it would have been a good plan to let the members know what colors they have chosen; however, I doubt they are required to obtain the approval of the members. I live in a single family home community and am responsible for maintaining the exterior of my home. Our Architectural Committee decides what paint colors the members can choose from to paint our homes. The members have no input regarding these color schemes (there are quite a few) and no choice but to pick from the colors offered. This is no different than what you are faced with. Bottom line: welcome to HOA living!!
AnnJ1
(Florida)

Posts:122


07/13/2010 7:42 PM  
Hi Carolyn,

The Florida statues (chapter 718 condo laws) are very succint regarding authority for making "material changes or material alterations" to condo associations' common elements. It addresses the necessity to have membership (75% of total voting interests) approval if not so provided in the declaration of condominium.

I mention this so that you may wish to review your condo docs or state condo laws that could address the BOD's authority to make any material changes. The authority to maintain is a different horse than the authority to change.

The purpose of the material alteration restrictions in the FL statutes is to limit the board’s authority to materially change the appearance of the condominium or other aspects of the common elements that would significantly change the obligations or costs to the unit owners.

The well established definition of the term material alteration or addition means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use or appearance.


In one FL case, the court determined that a change from cedar shingles to terra cotta tiles constituted a material alteration because the change resulted in a change of the color scheme of the development and was therefore substantial and material.

Hope this helps....
Ann

CarolynS3
(California)

Posts:4


07/14/2010 7:39 AM  
Thank you for your comments. I will look further in to the law in California today and hope that it is as specific as Florida. I also heard yesterday that someone else in the community has already notified the board and management on a pending legal suit in regards to these changes without getting member approval. If anyone knows the specifics for California I would appreciate hearing from you.
MaryA1


Posts:0


07/14/2010 8:22 AM  
Ann,

Do you really think repainting the exterior of the units is a "material change or alteration"? Frankly, I don't think it is; IMO, it falls under maintenance of the units.
CarolynS3
(California)

Posts:4


07/14/2010 8:34 AM  
Yes I do think it is a material change. Maintenance would be repainting it as is with the current member approved colors. Repainting it to look completely different is a material change. Imagine your property going from a pleasant neutral color to a loud red, with green trim and yellow doors. Don't you think that is material?


MaryA1


Posts:0


07/14/2010 8:46 AM  
Carolyn,

Well, it's all a matter of opinion. Put the question to 10 people and you'll get 10 different opinions! In the end, it's the BOD who is charged with making the final decision. No matter what color scheme the board decides to use there will be some members who will oppose it. Even if the members were given the option to vote on it, some would vote for and some against. You could use the same argument for the walls that surround my HOA and the walls that separate each home. They are constructed of stucco and require repainting every 5 years or so. The board alone decides on the color that will be used -- there is no input or vote from the members. This decision is one of thousands made by the board each year in carrying out their duty to manage the assn. IMO, your board is doing the same thing.
DonnaS
(Tennessee)

Posts:5671


07/14/2010 9:34 AM  

Carolyn,

If you look into your CC&R section on association responsibility, the wording in there might give the Board the authority to change colors depending on the wording. It could say "SHALL, or MAY or WILL", meaning that the Board must or may use it's own discression on changing colors. As posted above, unless the color is hideous like hot pink or bright orange, I do not understand your being this upset over fresh paint. Do not think that because you own a unit within the building, that everything needs to go past you for approval.

My documents when describing colors of the units, says "EARTH TONES". Yours may have some color guidelines as well, otherwise just ease up on this concern. I am sure that your Board is not going to do something stupid. Gosh, they are paying for powerwashing first. Nice Job Board!
AnnJ1
(Florida)

Posts:122


07/14/2010 1:37 PM  
Hi Mary,

While my response to the OP was that of sharing the Florida Statutes and a case reference regarding color change being "material", I refrained from providing my personal opinion.

However, in response to your inquiry..... you betcha if the repainting results in a color change. I am in agreement that a change to the aesthetics of the complex is significant and warrants membership involvement. An aesthetic judgment cannot be an impirical judgment and because I personally am in agreement of the FL courts' decisions in these cases, it ratifies my belief that "when your documents" remain silent on such matters of authority to make changes such as Carolyn posted, it would be a wise BOD to seek membership input.

I recognise that color sense can vary from individual to individual. Ignoring color change as being substantial (IMO) is tantamount to ignoring design change. Color and design matters are significant components in a condominium complex.

My association has a reserve allocation for over $500,000 targeted to building painting (not the repairs portion) and an outcry of membership discontent over a poor choice of color could result in a huge monetary goof up! I would expect a BOD to be sensitive to that and take the time to give the membership an opportunity to validate the BOD's color choice(s).

Furthermore, I do not see occasional "membership involvement" as a cop-out of the BOD's responsibilities but rather a recognition that we BODs are accountable to the membership for the countless decisions we make. What's the harm in welcoming further input than from five members (directors) in certain matters?

Off my soapbox!
Ann
MaryA1


Posts:0


07/14/2010 3:50 PM  
Hi Ann,

I was answering the question of whether the board could do this, i.e. paint the exterior of the units w/o comment or a vote of the members. I do agree that they should have taken a vote even though that was not required. It is a big expenditure to tackle and it would be devestating if the majority of the members didn't like the color scheme selected.

You should get on your soapbox more often. I enjoy hearing from you!
GlenL
(Ohio)

Posts:5234


07/14/2010 9:52 PM  
Ann, I disagree that a color change is a "Material" change but the fact is most people don't like any kind of change. I would be willing to wager that six months after the change (when they become used to it) most homeowner's won't even remember the old scheme.

French historian and author of Democracy in America Alexis de Tocqueville famously observed, "In a community association, members get the boards they deserve."
CarolynS3
(California)

Posts:4


07/15/2010 8:34 AM  
Just a quick update. According to the property manager there have been so many complaints about the choice of color that the board is undertaking a new plan. If you think this is just about people not accepting change you are wrong. The board showed disrespect to the paying members of the community by not getting the members input in a major change to the environment in which they live. And yes it was a major change, the colors were planned to go from neutral to loud and from a consistent pattern to one that is random.

This is going to be costly since now we are going back to the drawing board when contractors have already begun. As far as I am concerned, the board could have prevented all of this if they had been open and disclosed their plans. Our CC&Rs did not mention this situation so the board took the lack of rules in relation to this matter as meaning that they do not need to get the opinions or approval of the members. If the board had held a meeting to get opinions and vote of support from the community members then this mess may not have happened. Yes I am aware that there would not be consensus with everyone in the community, but a majority vote would have ruled and we would not have been in this mess. Instead the board was secretive and dismissive, which resulted in a outraged community.

Also, I was told yesterday that the board has been notified of pending legal action in relation to this matter (not from me!). So if you don't think paint color matters then please take this as an example of how unhappy people can get.

I guess the lesson here is that while you may think something is not material, others do. And if there is a chance that others may get upset, disclose your plans and give members a chance to have their opinions heard.

Thanks for letting me vent and for hearing my community's drama.

MaryA1


Posts:0


07/16/2010 7:01 AM  
Carolyn,

I'm not saying the board was right or wrong in making their initial decision, so please do not miscontrue what I'm about to say. I'm not making any judgments, just stating facts.

If the board did not violate any gov doc requirements or state law then they did nothing wrong and you can't claim they showed any "disrespect" to the members in not having them vote or voice their opinion b/4 making the decision to change the color scheme. As for a law suit, if there was no violation on the part of the board then a lawsuit would have no merit. Some people like to threaten a lawsuit but that's all it ever comes to -- a threat. The board can call for a vote but that doesn't mean it must be binding especially if the docs do not require a vote to be taken. IMO, the real lesson here is that the squeaky wheel gets the oil. I just hope the members of your assn don't come away thinking they can put this kind of pressure on the board every time they think the board acts differently than they think they should have.

When the members elect a board of directors they are placing a certain amount of trust in those individuals to act responsibly and in the best interests of the assn. If the members feel the board members are not doing that then they should seek to recall the board. Otherwise there should be enough trust in the board members to know that they will exercise good judgment in their decisions. The members should not get in the habit of micromanaging the members of the board.
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