Wait! You have to write an annual report?
As it happens, some states require condos/HOAs to provide an annual report to homeowners. But what to include? That’s the question we got from an HOAleader.com reader. Specifically, our reader asked for tips on what to include and not to include in an HOA annual report. Our experts walk us through what’s typically required and what to include and not.
Minnesota Says Yes
The Minnesota Common Interest Ownership Act does require annual reports, and the statute is very specific about what to include, according to Nancy T. Polomis, a partner at Hellmuth & Johnson PLLC in Edina, Minn., whose clients include local and national residential builders and developers and condos and HOAs throughout Minnesota.
It’s 515B.3-106, if you’re inclined to look it up. “It states that the annual report must be prepared by the association and a copy provided to each owner at or prior to the annual meeting,” she says. “The report must contain, at a minimum, a number of things.” Those include:
- A statement of the condo’s/HOA’s total replacement reserves, the components of the community for which the reserves are set aside, and the amounts of the reserves the board has allocated for the replacement of each component
- Revenue and expense statements for the association’s latest fiscal year and an end-of-fiscal-year balance sheet
- A statement of the status of any pending litigation or judgments to which the association is a party
- A detailed description of the insurance coverage provided by the association, along with other insurance information
- A statement of the total past due assessments on all units for a specified period.
“That last requirement trips associations up,” says Polomis. “They should be providing a total past-due assessment amount. They shouldn’t be showing each individual account information.”
California requires community associations provide some financial details, but not a full annual report, explains Andrea L. O’Toole, a community association lawyer for 15 years and the founder and shareholder at Andrea L. O’Toole PC in Lafayette, Calif. “Associations are required only to provide a financial report, which is usually prepared by an accountant, within 120 days after the fiscal year ends,” she says.
“In addition, no later than 30 days before the fiscal year begins, they need to provide an annual budget report and the annual policy statement, which includes all the rules, such as the architectural policy, and all other disclosures the law requires,” she adds. “The budget report has the budget and all sorts of disclosures, such as the insurance carried and a reserve study update. Those are in addition to the annual financial report.”
When Presidents Report
Several of our experts noted that presidents often like to deliver a report to owners at the annual meeting.
“In Oregon, there’s no annual report requirement,” explains Katie Anderson, PCAM, AMS, CMCA, the founding owner of Aperion Management in Bend, which manages nearly 70 condo, HOA, and townhome associations throughout Oregon. “There’s an annual financial report that’s required if funds exceed certain thresholds. We association managers don’t write those reports; CPAs do.
“But the president might provide a report because that’s generally the one time of the year where you may have a captive audience,” she adds. “Even if owners don’t attend board meetings through the year, many attend the annual meeting. Especially now with attendance virtually, we’ve seen attendance go up.
“The president’s report will generally include all the significant actions taken and the things the board or community has accomplished,” says Anderson. “That’s your opportunity to report back to the community what the corporation has achieved, where you are, and where you’re headed. That’s how we approach the annual meeting, with officers or managers also providing reports on anything from their perspective.”
That’s also true among the clients of Alessandra Stivelman, who is board-certified in condo and planned development law and a partner at Eisinger Law in Hollywood, Fla. “There’s no state requirement of an annual report that I’m aware of,” she notes. “But I have presidents who, at the annual meeting, voluntarily prepare an annual report to the membership. A lot are from northern states, and maybe there were requirements there, so they’re adamant about giving their annual report.
“I actually think it’s a great idea,” she adds. “I’m all about communicating to the membership where the community is, what they’ve done, upcoming projects, and some of the issues and obstacles they’re facing.”
O’Toole’s clients also include presidents’ reports. “Sometimes the president will give a sort of state of the union report,” she says. “They’ll write that out, but it’s not required by law. While the election inspector is counting ballots, the president will give a report, the treasurer will give the treasurer’s report, another officer or committee chair might also give a report, and sometimes the manager will give a short report because that’s the one time of the year when they all get together. That’s pretty much it.”
Careful What You Share
As a general rule, Anderson likes to air issues rather than avoid discussing them. “I believe conversations help solve problems,” she explains. “So if there was something brewing, you probably should have a conversation about it. Maybe you want to flesh out opinions from owners that the board doesn’t understand. But I can’t imagine something you wouldn’t want to talk to owners about.”
That said, presidents and other officers providing voluntary reports should avoid making improper disclosures. “Presidents’ reports should be subject to the confidentiality of legal matters,” says Stivelman. “For example, when you’ve filed suit against the developer, Florida law requires you to give notice and provide an engineer’s report.
“Maybe the president wants to let the community know they’re moving forward with that litigation,” she explains. “But they also want to go over the issues in the engineer’s report, the concerns over the case, how much money they think the case is worth or how much they think they’ll get if they win or settle. That’s where they think they’re giving members information, but they could really affect the outcome of the litigation itself.
“If a director wants to give a report verbally or send one out, I suggest they be careful about what they put in writing about contentious issues,” advises Stivelman. “They should keep those discussions more general than specific and run those comments by their community association lawyer first.”
O’Toole agrees. “I’d recommend against giving a report on actual or pending litigation or threats of litigation,” she says. “In California, boards aren’t required to provide disclosures to members regarding ongoing litigation unless it relates to construction defects. So if litigation is related to property damage or an enforcement action, for example, there’s no requirement to disclose it.
“But most boards do give periodic updates,” adds O’Toole. “I work with an association where there’s been roofing litigation for three years. If the president wanted to report on that, I’d recommend that the president be very careful. One of the things that association has spent a lot of money on is litigation and lawyers. Rightfully so, members will have questions. But be careful about disclosing anything to do with ongoing litigation.”
Presidents can also inadvertently inflame already-touchy issues. “My general advice would be that if an association wants to include more than the minimum information required in our state’s annual report, they should check with their counsel or, at the very least, management,” suggests Polomis.
“What they want to include may be fine or innocuous, or it may have unintended consequences,” she explains. “A lot of times, it’s not the topic of the item they want to include that might be a problem but the language they intend to use. I could easily see some associations pitting one portion of the community against the other, especially if you have different-styled homes in a community or if one phase of the community was built a significant number of years before subsequent phases. In those cases, wear and tear is well underway in phase one, and then the issue becomes a question of reserve replacement contributions and use.
“Sometimes the board simply wants to be transparent and say, ‘This is what’s going on,'” states Polomis. “But the way they say that can create division in the community. Maybe the first part of a community was built with vinyl siding, and the second part was done with wood, so the maintenance costs or requirements are different. No matter how often you say, ‘ABC community is ABC community as a whole,’ when developments are phased, it’s often perceived as a ‘we/they’ issue.”
Another way to veer off track: “Some presidents want to use the opportunity to put someone on the spot, but they end up doing it in a way that could be defamatory,” says Stivelman. “You have to be very careful about what to include. Definitely have reports reviewed before they’re presented.”
Gently Toot Your Own Horn
One thing you should definitely be doing in an annual report is letting homeowners know all the hard work that goes into running the community professionally.
“People need to see the work you’re putting in, and they need to know where their money is going,” says Stivelman. “Many owners think they’re overpaying, but they don’t understand the day-to-day expenses. And if you’re doing a special project, they need to see everything that goes into that.
“To the extent you can show them where the money is going and all the things going on behind the scenes, that’s important to include,” she recommends. “Maybe you should share all the records requests you’re dealing with. Or maybe the building is dealing with a lot of plumbing issues. That’s the kind of thing the membership would have no idea about unless you put it in a report to show them.”
O’Toole also suggests providing information that educates owners on the work being done on their behalf. “I think it’s great to highlight the things you’ve accomplished,” she says. “What goals did you set out to achieve and did you achieve them? If not, why not? Also, has the board set goals for the new year?
“And always thank the people who helped the board,” she stresses. “Everybody knows the board, but there are lots of people behind the scenes who work with the board. People like to be recognized, and doing it is also good for recruiting future volunteers.”
Managers and directors are faced with many decisions while operating and managing community associations. To be effective, it is important to prioritize which issues must be addressed, and in what order, and to be able to determine which matters need to be referred to legal counsel for further direction. Below is a list of “do’s and don’ts” that will aid both managers and directors in making such decisions.
- LIMITED PROXIES
DO open and tally limited proxies as they come in so there is a running tally on the association’s roster as the meeting opens and others sign in.
DO NOT wait until the membership meeting is called in order to open limited proxies.
DO address every violation uniformly and send a letter to the violator; if a tenant or occupant, the letter should be addressed to the owner and copied to the tenant or occupant.
DO NOT address violations by speaking with the violator while on property. DO NOT send violation notices via email or place notices on or under doors. The association needs a written record that the violator was provided notice of the violation and an opportunity to cure.
DO have the association attorney draft and prepare all amendments to governing documents.
DO NOT have directors or managers draft amendments to governing documents as the Florida Supreme Court has determined that such actions constitute the unauthorized practice of law. While it may be helpful to the attorney for the director or manager to give some thoughts on proposed language, the actual drafting should be done by an attorney.
- REASONABLE ACCOMMODATION REQUESTS
DO send all requests for the association to make a reasonable accommodation that are received from a disabled resident or guest to the association attorney for review.
DO NOT have directors or managers decide whether a request for a reasonable accommodation from a disabled resident or guest is adequate. The Federal and Florida Fair Housing Act has specific guidance on what can be asked/done and what cannot, and the association could face severe consequences if it is not done correctly.
DO have the association adopt a formal, written policy for the issuance of fines and hearings before the fining committee.
DO NOT issue fines and/or conduct fining hearings without formally adopted policies that were prepared by the association attorney.
- BOARD POLICIES
DO have the association establish written polices concerning access to official records, response to written inquiries, and owner participation at meetings.
DO NOT attempt to enforce any restrictions regarding access to official records, response to written inquiries and owner participation at meetings without formal written policies prepared by the association attorney and approved by the board.
DO have the association attorney review contracts for non-business/legal terms. The board and/or the manager can review contracts for business terms.
DO NOT have the manager or board review contracts for non-business/legal terms. DO NOT have managers sign contracts; only directors should sign contracts.
- LETTERS OF INTENT
DO submit any letter of intent to the association attorney for review.
DO NOT allow the association to execute any letter of intent without being first reviewed by the association attorney.
- MEETING NOTICES
DO make sure the board has adopted a Rule as to where meeting notices will be posted; post notice of all meetings, including closed board meetings; post notice of budget and architectural committee meetings in HOAs; post notice of all committee meetings in condominiums, unless such meetings are specifically excluded from such posting in the Bylaws.
DO NOT change meeting notice locations without a board meeting. DO NOT prepare annual meeting notices, budget meeting notices, or other meeting notices that require fourteen-day notice without attorney consultation/review.
- ELECTION MEETINGS
DO place ballot envelopes in unit/lot numerical order before meeting. DO have sign-in sheets prepared in unit/lot order and owner last name order for use at meeting. DO have voting certificates in numerical order.
DO NOT open outer envelopes, for a condominium election or for an HOA following the condominium style election, before commencement of annual meeting. DO NOT disqualify election ballots without consulting with an attorney.
Please click here to view the entire article on page 24.
Robyn M. Severs is a Board Certified Specialist in Condominium and Planned Development Law. She has significant experience representing condominium and homeowners associations in a wide variety of legal areas, including bankruptcy and appellate cases. Robyn currently chairs the Grievance Committee, 7th Judicial Circuit, of The Florida Bar and serves on the Legislative Action Committee for Northeast Florida CAI. To learn more about Robyn, please click here.
Original Article Here:
In light of the Champlain Towers South condo collapse in Surfside, Florida, in June 2021, Fannie Mae is taking measures to show the public that condos and co-ops are still viable options for people in the market looking for something convenient and affordable.
In response to increased concerns about aging infrastructure, the GSE is taking new measures to address properties with significant deferred maintenance that impacts the safety, soundness, structural integrity or habitability of condos and co-ops.
As a result, properties with significant deferred maintenance, or ones that have received a repair directive from a local agency, will have to make good on repairs before the loan will be eligible for delivery to the GSE.
The updated requirements are:
- Enacting stricter eligibility review requirements for any condo or co-op that has issued a special assessment to address deferred maintenance items that directly impact the safety, soundness, structural integrity, or habitability of a unit.
- Strengthening lender requirements for review of condo and co-op financial reserves.
- Reiterated to lenders and appraisers that appraisals must document any special assessments or deferred maintenance on the unit or on the property as a whole during the mortgage application process.
According to Jodi Horne, Director, Single-Family Collateral Risk Management at Fannie Mae, condos and co-ops are still a popular option for housing, and in some cases, they may be the more affordable choice too.
“Condos and co-ops provide homeownership options in a variety of styles. High-rise buildings, which are especially popular in urban areas and near beaches, may offer great views and rooftop decks – and they come with elevators and underground parking garages, like Champlain Towers South, that require ongoing maintenance,” Horne wrote in a blog post. “Garden-style developments with three or fewer stories may have less obvious ongoing infrastructure needs, but foundations must be maintained to avoid water intrusion or structural collapse, roofs must be maintained so they don’t leak or cave in, and balconies must be repaired or replaced periodically to maintain structural integrity and remain safe.”
“Adequate financial reserves are critical to funding the significant maintenance that supports ongoing viability of condo and co-op projects,” Horne continued. “To maintain homeownership sustainability, Fannie Mae has long required scrutiny of project reserves on loans delivered to us, as well as disclosure of any special assessments and review of a number of other important project characteristics that would impact mortgage borrowers. Our latest guidelines reinforce our project reserve requirements and focus on their importance.”
The new requirements are temporary, but are in place until further notice. The GSE is also conducting accompanying research on the challenges of aging condo and co-op infrastructure, and says it is “committed to providing sustainable homeownership opportunities for a range of housing types and helping to protect borrowers from physically unsafe or financially unstable projects.”
This is why Solutions Property Management Corp strives to educate the importance of “Policies and Procedures” for all day-to-day operations of any association
The 2021 legislative session brought some significant changes to the Condominium Act, the Cooperative Act, and the Homeowners Association Act. These changes went into effect on July 1, 2021, and many of them impacted the collections and foreclosure process for community associations.
At the outset, we always recommend that community associations work with their association’s attorney to craft a written collections procedure. When an association has written policies and procedures regarding collections, it has a greater likelihood of success in its collections for a number of reasons. Among these reasons, written policies and procedures help ensure that the association’s collections are all pursued in the same manner. This cuts down on allegations of selective enforcement and/or preferential treatment. Also, written policies and procedures help in the smooth transition in management of the collections practices through board and management changes. Further, having set procedures helps owners understand the process and manage expectations as to what will happen if they do not keep up with timely payments. There are other reasons, but suffice it to say, it is a good idea to have these policies and procedures.
If yours is an association that already has these policies and procedures in place, note that several of the legislative changes will require these to be updated in a few ways.
DELIVERY OF STATEMENTS OF ACCOUNTS
The changes in the 2021 laws prescribes a new method of delivery of statements of account or invoices for assessments.
If an association sends out regular statements of account or invoices for assessments, this change affects how those statements of account or invoices for assessments are delivered to members. Please note that these changes do not REQUIRE an association to send invoices for assessments or statements of account. Further, unless the association’s documents provide otherwise (and they shouldn’t) sending out assessment “coupons” or billing statements is not a condition to collecting properly levied assessments.
If an association sends out invoices for assessments or a statement of the account, the invoice or statement must be sent by first-class U.S. mail or by email to the owner’s email address, as reflected in the association’s official records. This addition to the statute is of some concern because it does not clarify whether email may be used when the owner has not consented to receive other official notices by email. In an abundance of caution, if an owner has not previously consented to receive email notification, the invoice or statement should be sent via first-class U.S. mail.
Also, before an association can change the method of delivery for invoices for assessments or a statement of account, the association must deliver written notice of the change to each owner, at least 30 days before the association sends the invoice for assessments or statement of account by the new delivery method. The notice must be sent by first-class U.S. mail to the owner at the owner’s last address as reflected in the association’s records, and if the last address is not the property address, the notice must also be sent to the property address by first-class U.S. mail.
In addition, a unit owner must affirmatively acknowledge by email or in writing his or her understanding that that the association will change its method of delivery for the invoice for assessments or the statement of account before the association can change the method of delivery for that owner. The law offers no guidance on what to do if an owner fails or refuses to acknowledge.
30-DAY NOTICE OF DELINQUENCY
Another change in the laws requires the association to send a 30-day notice of delinquency prior to turning an account over to an attorney for collections.
The change requires associations to provide delinquent owners with a 30-day notice of delinquency prior to turning the account over to the association’s attorney for collections. Failure to provide the delinquent owner with this 30-day notice of delinquency will preclude the association from recovering its legal fees related to a past due assessment, i.e., any fees incurred in a collection/foreclosure action.
The 30-day notice must be sent via first-class U.S. mail to the owner’s last address as reflected in the association’s official records, and if the last address is not the property address, the notice must also be sent to the property address by first-class U.S. mail. The notice is deemed delivered upon mailing and a rebuttable presumption that the notice was mailed as required can be established by a sworn affidavit executed by a board member, officer or agent of the association, or by a licensed manager.
Subsection (5) also provides a form for the 30-day notice, titled “Notice of Late Assessment,” and requires the association to list the delinquent assessments, interest, and late fees that are owed.
CHANGE IN TIMEFRAMES FOR PRE-FORECLOSURE DEMAND LETTERS
Finally, there is a change to the timeframes that an association has to notify an owner of its intent to proceed with collections and foreclosure and the timeframes that an owner has to pay the amounts detailed in the pre-foreclosure demand letters sent by the association’s attorney. There are actually two changes that were enacted, one of which affects both condominium associations and cooperative associations and the other which only affects condominium associations.
One of the enacted changes increases the minimum timeframe for a condominium association or cooperative association to notify an owner of the association’s intent to record a claim of lien from 30 days to 45 days. This change provides the owner with an additional 15 days to remit payment for the amounts demanded in the notice of intent to lien letter. The Homeowners Association Act already required this 45 day timeframe.
The second change increased the timeframe for a condominium association to notify an owner of the association’s intent to foreclose it’s claim of lien from 30 days to 45 days. This change provides the owner with an additional 15 days to remit payment for the amount detailed in the notice of intent to foreclose letter.
These changes will require associations to make significant changes to their current collections policies and procedures, especially if the board has a written collection policy in place. Failure to do so could result in serious legal ramifications for the association if the new statutory requirements are not properly followed.
If your association does not currently have written collections policies and procedures, it may be a good time to work with your association attorney to draft these. While the statute sets out minimum notice and other timeframes, the associations may be more lenient and allow even more time.
However, you should keep in mind that the longer the association delays in starting the collection process, the longer it will take for the association to collect the funds necessary to operate the community. As with all things, balance is important and perhaps the simplest way to manage this is to stick to the timelines set out in the now more lenient statutes.
To read the original FLCAJ Magazine article, please click here.
The sidewalk, the road, the park bench, the elevator, the streetlights, and more belong to and benefit everyone in a homeowners association. These common areas or common elements are shared property maintained by the association and enjoyed and used by all residents. The money for repairing and replacing these elements comes from the community’s operating budget or reserves, which are funded by everybody’s collective annual assessments.
Condominium balconies, parking spots, roofs, and sometimes even windows and doors—while designated for the exclusive use of one resident—also are considered part of a community’s infrastructure. But who is responsible for maintaining and repairing a common element that’s used by only one household?
The resulting disputes happen more often than you might imagine and are diverse and complicated to resolve. But according to some attorneys in this business, the answer to most of the conflicts are readily available.
Defining Limited Common Elements
“There’s exactly one thing that determines if something is a limited common element,” says Adam Cohen, an attorney with Pullman & Comley in Hartford, Conn. “And that’s if the (association’s) declaration says it is.”
“Maintenance, repair, and replacement of a limited common element is usually the responsibility of the association except to the extent the declaration shifts that duty to the unit owner,” writes Cohen in “What Exactly Is a ‘Limited Common Element?,’ ” a 2012 article in Common Interest magazine, a CAI Connecticut Chapter publication. “Some declarations make the unit owner completely responsible for replacing windows and doors, while other declarations say the unit owner need only remove leaves and snow from the front porch but is not responsible for substantive repairs.”
It’s essential that board members, attorneys, and community managers look to an association’s covenants, conditions, and restrictions (CC&Rs) for the definition of their limited common elements—and who has the responsibility for their upkeep.
State statutes also are good resources in identifying limited common elements and who’s responsible for them, says Marshal Granor, principal at Granor Law Firm in Horsham, Pa., and a fellow in CAI’s College of Community Association Lawyers. “A limited common element’s definition can vary based on the original builder or developer’s concept,” says Granor. “It also might have been changed over time by the association.”
Granor also concedes that it’s possible an association’s CC&Rs—or even the state statute—were written in a way that gives the association board the authority to assign limited common elements. “I like this approach because it’s awful if you have to get a super majority of owners to vote that Mrs. Smith’s deck is a limited common element,” Granor says. “You just don’t get that kind of (owner) involvement most of the time.”
Obvious Limited Common Elements
Although Cohen is adamant that “a limited common element is whatever the declaration says is a limited common element,” he concedes that Connecticut’s statute also indicates that “certain things are presumed to be common elements unless the declaration says otherwise.”
“Balconies are the most recognizable limited common elements,” according to Colin Horner, CMCA, AMS, PCAM, former general manager at Fairlington Villages Unit Association in Arlington, Va.
Unseen Limited Common Elements
But who—unit owner or association—is responsible for the wiring or plumbing pipes found throughout a condominium? The owners who live within such a community expect them to work. After all, the pipes transport hot and cold water and gas into a unit and remove wastewater, and the wiring provides electricity, cable, and internet service. The pipes and wiring run throughout the building and, at some point, enter the unit within the studs.
Assuming an individual’s ownership in a condominium is from the studs in, who is responsible for the maintenance and repair of the plumbing or wiring beyond the studs? Also, critical, if the association is liable for remediating a leaky pipe, does it have the right to access it through an individual homeowner’s property to make repairs? If an association’s CC&Rs are ambiguous, it’s essential for homeowners to correct that and make them more specific.
HOAresources.com explores questions and comments from community association members living in condominiums, homeowners associations, and housing cooperatives. We then assemble trusted experts to provide practical solutions to your most commonly asked, timely questions. We never use real names, but we always tackle real issues. Have a question or comment about your community association? Submit here for consideration:
One of the most common questions we get is, “Can I pay for this through Reserves?” If you are still unclear on what qualifies as a Reserve expense, watch the video above!
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Understanding Reserves is a comprehensive Reserve Study guide for board members and community managers. Besides answering common questions related to Reserve Studies, we thoroughly address each facet of the Reserve Study process. Download Chapter One to get a glimpse at the book that could serve as your go to Reserve Study resource!