Age of Vicarious

The hardest question raised by Board members is, “How do we get people involved in our community?”  Requests for volunteers often fall on deaf ears:  a scary and frustrating experience for the same few stepping up for the community.

One defining aspect of humanity is its need for connections.  Whether with tales told around the campfire or epitaphs carved in stone, people link themselves with events outside the space they inhabit.  Electronic communication and social media accentuate this immersion, ranging from “reality” TV shows, political radio, sports events, to any number of educational programs.  Vicarious living can consume a person’s time and alienate others, crowding out personal and regular interactions with one’s neighbors.

Breaching this barrier is a must for creating healthy community associations.  While written communications are a great tool, the Board of Directors must guard against a “means” becoming an “end”.  A Board can issue newsletters and emails detailing plans and goals, but sharing the same information at a personal level in an informal setting is far more effective in making it “real”, fostering a positive environment for neighbors to adjust their views.

The only step to growing healthy volunteerism is frequent social gatherings.  More meals together create space to form common goals with your neighbors.  Communities hosting events every two or three months for two or three years see higher committee involvement rates and lower levels of animosity:  Trust comes with time.

The key is persistence.  A Board that humanizes itself to the membership, creating a compelling narrative for connection, will see community involvement flourish.

We Second That Emotion

Think about this actual situation - A grocery store customer decided to abandon her shopping cart in the middle of a handicap parking space, walking down to the other end of the parking lot with groceries in hand.  She did this despite the fact that she had to pass a cart corral on the way to her car.  To make it even worse, she didn't even prop the cart up against the curb or concrete parking bumper, as some of us have done on occasion.

The parking lot is on an incline.  With a gust of wind, the cart began rolling downhill, toward the far end of the lot. After several hundred feet at considerable speed, it unerringly struck the side of this same lady’s car.  Everything happened to be witnessed by the store manager, along with several employees of the grocery store who were outside assisting other shoppers.

Refusing to acknowledge karma, the negligent shopper sued the grocery store and shopping center, stating the cart was defective and the parking lot should never have been sloped.  The claim was turned over to the insurance carriers, who promptly wrote a sizeable check to the customer.

Although it was the customer’s actions that resulted in the damage, and there was nothing wrong with the cart or condition of the parking lot, the insurance carriers knew the cost (in time, effort, and money) involved in going to court.  It was cheaper to write the customer a check.  Had it been up to the store manager, the customer would have never received a dime.

This is a hard lesson for Board members to learn.  Whether it's homeowner negligence or a collections case, the inclination is to have the wayward individual suffer the full consequences of his/her actions.  An example, a homeowner chooses to lease out his home, despite clearly understanding that this is prohibited by his community's covenants. The homeowner is sent multiple violation letters and incurs many fines for doing this. A year later, the matter is sent to court in order to get it resolved.  On the eve of the court hearing, the Association’s attorney comes to the Board with a recommended settlement that waives all or most of the fines incurred. The attorney's fees and court costs have already begun to mount. 

Although the Board wants to take this homeowner “to the mat”, they must weigh the very real possibility that the homeowner will prevail at the trial level. This result would require further legal action for the Association to appeal to reverse the decision.  It is about a 50-50 chance that a judge/jury will side with the homeowner against the Association “bully”.  Also as expenses pile up, the likelihood increases for foreclosure and bankruptcy of the homeowner, in the end, leaving the Association with a large, uncollectible legal bill.

That is not to say the Board of Directors should always compromise.  Consider this:  For years a homeowner has refused to pay his assessments, and knows how to game the system to make it an arduous process.  He has outlived the turnover of many Boards through the years.   He is great at avoiding service processors, and once a judgment finally occurs after 18 months, the Association is unable to locate assets or wages to garnish.   The Board announces its decision to pursue foreclose.  At this point the homeowner finally comes forward with a settlement offer. 

However, he is a symbol to others in the community, both nonpaying homeowners and those who are tired of paying more than their fair share.  To send a clear message to the community, the Board decides to incur another $7,000 to force the sale of his home on the courthouse steps.  Although expensive in the short-term, it drives the other delinquent homeowners to settle their obligations, and encourages the rest to continue paying.

The difference between the two above situations is the role emotion plays in the process.  A Board member must weigh his wish for a "pound of flesh" against short and long term costs.  Always be mindful of the impact emotion plays for all the parties involved when reaching a decision. 

Voluntary Payments

In the past, a community charged an initiation or capital contribution fee each time a home was sold.  A newly appointed Board of Directors discovers that this charge was not specifically authorized in the governing documents, and decides to end the practice.  Perhaps tens or hundreds of thousands of dollars were collected through the years.  Although the Board may wish to refund the homeowners, the reality is that the money has already been spent addressing critical maintenance issues.

The question arises:  Is there some type of statute of limitations on how far back reimbursements would have to be provided?  A quick call to the Association’s legal counsel reveals that no money will have to be refunded, due to something known as the “voluntary payment doctrine”.

This legal defense states that a payment voluntarily made cannot be recovered by claiming there never was an obligation to make the payment in the first place.  While controversial, and treated very differently in other parts of the U.S. (it is actually banned in Florida), in Georgia it has been codified as a defense to repayment.  The Georgia state statute (section 13-1-13) says “Payments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefore or to release person or property from detention or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule prescribed in this Code section.”

If your Association finds itself in a similar situation, be sure to consult legal counsel to determine if this defense may apply to you.

Pool Party Foul

Everyone enjoys splashing in the pool during our hot Georgia summers.  All too often, one of two events occurs that require the pool to be shut down for a span of days:  1. Fecal contamination and 2. glass bottles.

While a small child, a special needs person, or an elderly individual may wear swim diapers, these are not proof against fecal contamination.  Frequent (every 30 to 60 minute) bathroom breaks and diaper changes, followed by thorough cleaning of the backside, are the best proof against contamination.  When a bowel movement does occur, the pool must go through a round of chemical treatment before it is safe for use.  It is not unusual for the pool area to be closed several days to avoid chemical burns.  If the person causing the closure can be identified, an Association may choose to charge back all related costs to the individual.

Too often, glass beer bottles are found disposed of in trash cans located within the fenced area of the pool.  County regulations prohibit the presence of all glass containers, because a broken piece of glass is difficult to detect in the water, and easily injures a swimmer (think severed digits!)

Whenever glass does make it in to the pool, the County requires that the entire basin be drained to confirm that no glass is still present.  This is expensive, as it is not a service covered in standard pool contracts and there is also the cost of pumping in and treating new water.  It is also frustrating for everyone else in the community who has to wait several days before being allowed to use this wonderful amenity during PEAK season.

If you spot anyone using any type of glass container within the fenced area of the pool, immediately share the above reason to this person and make sure the glass is removed ASAP.  If the person refuses to comply, you should send your Board of Directors or management team photographic proof and any details that will help them identify the individual who is exposing everyone else to possible injury.

Turning a blind eye to these situations is not an option:  The safety of you and your neighbors is too important for this to be ignored.

Solar Power

The U.S. Department of Energy has just released, in conjunction with the Solar Foundation, guidelines for solar panel architectural restrictions in homeowner associations.  The publication can be found here:    http://thesolarfoundation.org/sites/thesolarfoundation.org/files/HOA%20Guide_Final.pdf  

It notes that over half the homes in homeowner associations would be good candidates for solar panels, and if just 5% of all homes within homeowner associations were to “go solar”, emission reductions would be the same as removing over a million vehicles from the road.  Also noted in the publication, the state of Georgia does not currently have statutes on this topic, but pending legislation may change this in 2014.  Increasing panel efficiency and soaring energy consumption have sustained growing homeowner interest in this area. 

With that in mind, now is the time for your Board of Directors to establish explicit regulations addressing items such as placement of panels, removal of trees, impact on future tree installations or other architectural requests,  etc.   Establishing expectations now reduces frustration leading to negative and combative homeowners. 

Better yet, a Board-appointed committee that garners homeowner buy-in makes it less likely that someone will want to take advantage of future government regulations negatively impacting curb appeal.  For example, the community reaches agreement that panels should be restricted to the back roof of any home.   Homeowners start installing according to this regulation.  A few years from now, neighbors are less likely to install panels on the front of the roof, or in the front yard, if the government prohibits restrictions on panel placement.

As with any Association regulation, voluntary compliance grows from mutual respect nurtured over a period of time.  Have your homeowners proactively involved developing rules on “hot” topics such as solar panels!

The Air Up There

While “black mold” has been on the radar for years, a similar health concern is being elevated with the release of monitoring standards for Legionella.  This bacterium is the source of Legionnaire’s disease, a type of pneumonia with up to a 30% fatality rate.  According to the Centers for Disease Control, between 8,000 and 18,000 individuals are hospitalized each year and 120,000 have died over the last 30 years related to this lesser known bacterium. What's worse? Up to 70% of all building systems are contaminated!

Although this is a “standard” and not law, the courts do look to such promulgations when determining liability.  In a New Jersey case (Anthony Vellucci v Mack-Cali Real Estate) decided a few weeks ago, the reason the owner of a business office building was not held responsible for a Legionella death was because of a lack of recognized standards. This was the case then, but  upcoming ASHRAE (the American Society of Heating, Refrigerating and Air-Conditioning Engineers) action will change this for future suits. 

After several years of obtaining feedback on the topic, ASHRAE  is posting standards this year that apply to buildings having any one of following attributes (among others):

     Indoor or outdoor water fountain, whirlpool, spa
Housing of occupants primarily 65+ of age

     10+ stories (including basement levels)

     Cooling tower or evaporative condenser

     Hot water heater shared by more than one home

While a condominium is more likely to qualify, homeowner associations with water amenities do need to be aware of potential exposure.  Homeowner Association claims have occurred in Florida, Maryland, Nevada, and Vermont.  Our society’s litigious nature makes it likely we’ll see claims in Georgia.

Buildings falling under the ASHRAE standard are required to establish hazard analysis and critical control point (HACCP) plans, which must be reviewed annually.  Such plans have long been used in the food industry.  An HACCP team is composed of the building owner (Board of Directors), the owner's building management team or both, and must include at least one person who understands the principles of HACCP and at least one person who understands the building water systems.

Conducting the review is not particularly difficult, and the Internet is filled with sample HAACP plans.  This can easily be incorporated in to your community’s current annual maintenance review, and pointed out as a positive action by the Board during the annual meeting.  

Epic Fail

All too often, a prospective client approaches Access Management Group, asking us to assume complete control of a community. If you really think about it, this is an unacceptable abdication of homeowner responsibility.  A management company is only supposed to act as a agent of the Association, barred from the decision-making positions reserved exclusively for homeowners.  The Community's Board of Directors makes the decisions, but its the Community Association Manager that ensures that the Board's decisions are put into action. 

The root of such requests is typically due to apathy or tyranny - homeowners who just don't care and want someone else to "deal with" community issues OR homeowners that want the community that they live in to be run "their way."  Both are just the passive and aggressive sides of the same egocentric coin.  Board bullies grab news headlines, but homeowners who choose to “check out” of community involvement are just as damaging.  Carried to the extreme, a community ripped apart by strife or smothered in apathy finds itself in the same place:  under a Court-appointed master.

What can you expect if this occurs?  A court does not step in to the situation on its own.   It must be petitioned by a homeowner, the first of many expensive legal steps.  After a judge agrees that a community is simply limping along, he/she appoints a trustee to manage affairs. Often times, this is an expensive move that doesn't even end up benefiting the association in the least!

In one instance, a trustee assumed control of all association operations and bank accounts. The trustee ran the association as he saw fit and was able to bypass any and all voting processes. There was no homeowner input and no refusing to pay any increased assessments - no matter how much.  The salary cost for the trustee was nearly $64K for four month’s work.  Unlike a volunteer Board of Directors, a trustee is fully compensated for the work, which may run $150 to $300 an hour!

Money motivation finally drove the homeowners to take back governance of their community.  It was an expensive lesson:  The cost of constructive community homeowner engagement is far less than anti-social selfishness. The moral of this story - Be active in your community! If you won't...who will?