THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, December 30, 1995 TAG: 9512280223
SECTION: REAL ESTATE WEEKLY PAGE: 10 EDITION: FINAL
COLUMN: COMMON GROUND
SOURCE: G. ROBERT KIRKLAND and MICHAEL INMAN
LENGTH: Medium: 98 lines
Q. I am a former member of the board of directors of my association. At the recent annual meeting, individuals ran for the board, promising the owners they would be voting on all the decisions, not just amendments and elections.
I believe that this is wrong and in fact may be illegal. Can you tell me what the responsibilities of the board are? And can the board give up its authority to the owners?
A. If we were to have one resolution for the New Year it would be that everyone who lives in, serves on the board, or has other dealing with community associations stop and take a deep breath before they speak. Commitments such as the one that your board candidates made can get the board, the association and especially the individuals in serious trouble.
There is an old adage that you can delegate authority, but you can never delegate responsibility. If the board fails to act when necessary then the members of the board could be held personally responsible.
For example, if a board with authority to make special assessments knew that a special assessment was needed to repair the roof, and if that board did not repair the roof because the unit owners did not approve, then the individual board members could be held personally responsible for the repair and any damage that resulted from not making the repair.
The powers and duties of the board are subject to the limitations set forth in the legal documents and in appropriate state law. These powers and duties are to be exercised by the board, at the board's sole discretion. Such powers generally include the following:
Adopting the budget of the association upon majority vote of the directors.
Making, collecting and levying both regular and special assessments. It is understood that the assessments must be sufficient to provide for the payment of all anticipated current operating expenses and for all the unpaid operating expenses previously incurred.
Providing for the maintenance, repair, replacement and improvement of common areas.
Adopting of rules and regulations governing the operation and use of the areas.
Contracting on behalf of the association for the management of the association property.
Enforcing by legal means the provisions the declaration and rules and regulations promulgated governing use of the association property.
Carrying insurance for the protection of the members and the association against casualty and liability as required by the declaration.
Paying all costs of power, water, sewer and other utility services that is not the specific responsibility of the owners of the separate units.
Employing personnel, for reasonable compensation, to perform services required for proper administration of the purposes of the association, including accountants, attorneys, contractors and other professionals.
Granting exclusive licenses, easements, permits, leases or privileges to any individual or entity, including non-unit owners, which affect common elements and to alter, add to, relocate or improve common elements.
These powers are broad but they clearly show that it is the members of the board who should and must use their best judgment in the day to day operation of the association.
The owners should and must be informed about the decisions of the board. Budgets should be made available for comment by the members before adoption, as should most proposed rules.
Major contracts and their related costs should also have public discussion. The board should not and cannot by law meet in private closed session except for a limited number of purposes defined by state law.
Owners should be involved in providing input as much as possible by the final decision has to be made to by the board, not the owners as a whole. It only makes sense that the elected group of owners who deal with the administration of the association affairs by meeting at least once per month are the best informed persons to make these decisions.
Over the years the most common complaint from owners is that the board does not keep them informed, and from the board is that the owners don't come to the meetings and find out what is going on.
The problem with relying on owners to tell you what they think is that most do not come to meetings, do not read the notices and very seldom read the newsletter. Thus the board is faced with deciding based on their own judgment or the opinions of a vocal minority who are generally driven by more special or personal interests.
We would trust the former rather than the latter. As a member of the board, remember that you were elected to serve the interest of the whole community. Sometimes that will require you to make decisions under which some or most of the owners disagree. However, it is the responsibility that you agreed to shoulder. Rely on this rule:
Be informed, keep the owners advised and make the best decisions you can with the information you have. MEMO: G. Robert Kirkland, president of a Virginia Beach property management
consulting firm, and attorney Michael A. Inman specialize in Virginia
community association issues and are affiliated with the Southeastern
Virginia chapter of the Community Associations Institute. Send comments
and questions to them at P.O. Box 446, Virginia Beach, Va. 23458. To
submit questions by phone, call 486-7265; by fax: 431-0410.
by CNB