June 11, 2021 - 1:39 pm
Q: I have sought your advice in the past and have been very pleased with the responses you have given. Hopefully you will be able to give us your guidance in the following matter.
I am a board director at a homeowners association community in Las Vegas.
Our covenants, conditions and restrictions clearly address the weight limit for pets (dogs) in our community. No pet shall exceed 40 pounds per this document.
This weight limit has been totally disregarded by past boards. Curiously, one or more of the then board members owned a pet that was in violation of the weight limit and the issue was not dealt with properly. We now have a new board and wish to visit this matter as part of our fiduciary obligations.
We have done some preliminary checking related to insurance and it appears that the HOA may have liability should this weight limit not be enforced and injury or worse happens to another pet or person, which was caused by the pet over the weight limit.
Can, and should the HOA, enforce the CC&Rs, as written? It creates a very difficult issue that had not been enforced previously, and thus, by the lack of enforcement, has been seen as allowable to residents.
I know that the CC&Rs could be changed by vote. I also believe that section 116 allows for nonenforcement of rules the board believes to be unenforceable. I believe this criterion of being unenforceable does not really exist in this situation and would also be an open invitation for anyone to have very large pets.
Any suggestions would be greatly appreciated.
A: This is not an unusual case where previous boards did not enforce a restriction. If the current board wants to enforce this restriction, the topic should be on a board agenda so that homeowners have been given notice. Potentially, you may have to grandfather those owners who have pets exceeding 40 pounds because of the nonenforcement by past boards. You would need to check with the association’s legal counsel as to whether you should grandfather or whether you should start enforcing the restriction to all existing violators. Expect pushback as not only is this a public relations issue but, face it, if you are a dog owner, your dog is part of your family.
Moving forward, you need to publicize the restriction both the existing homeowners and through your resale packages to new homeowners.
Q: I don’t know if this falls in your field or not, but I was recently informed the legal counsel of the association has said the community’s 60 clubs could no longer have officers called president, vice president, treasurer and secretary because the association is permitted only one of these officers and the association already has on its board of directors these officers. Otherwise, there is a legal responsibility involved. Would you please let me know if the legal counsel is correct. It sounds nuts to me.
A: Generally speaking, there is only one set of officers within an association’s corporate structure. Because your association’s legal counsel has become involved, you would need to follow his directive.
Q: Our HOA (Southern Utah) will not allow solar. Many of us believe the administrator (who also lives within the development) is adamantly against solar and will do whatever she can to keep it out. There are a lot of residents who are in favor of approving the installation and use of solar. We recently had an open ballot issue concerning the changing the CC&Rs, but there were not enough ballots cast to reach a quorum. The problem for those of us who are in favor of solar is that we have many (probably more than 50 percent) who are part-time residents and they really don’t care one way or the other and rarely if ever vote on HOA issues.
The current CC&Rs state that “no solar heating panels” and go further to restrict nearly anything attached to the roof.
A few years ago, the Utah legislators passed a bill that would have prohibited HOAs from restricting the solar installations, but our HOA had recorded our CC&Rs prior to the dates governed by the legislation.
The long and short of it, is there any way to get past this roadblock from the HOA?
A: First, you should see if the solar legislation that was passed in your state supersedes your association’s covenants. If that is the case, you would be able to file a complaint with the state.
There was federal legislation proposed, HR2454, called the American Clean Energy and Security Act that would have made it illegal for a homeowner association to prohibit the installation of solar panels. Unfortunately, this proposed federal legislation did not pass.
You may have to do some campaigning to either change the administrator or change your CC&Rs with another ballot.
Barbara Holland is a certified property manager and holds the supervisory community manager certificate with the state of Nevada. She is an author and educator on real estate management. Questions may be sent to email@example.com.