Withholding Assessments Won't Work

Sometimes community residents become dissatisfied with the association for some reason. In this case, let’s use maintaining the parking lot as an example. Mr. Homeowner is unhappy because several small potholes have appeared in the parking lot, and the association hasn’t repaired them. He called the manager who said that all potholes will be repaired in the spring. “It’s much easier and cheaper to fix them now, while they’re small,” Mr. Homeowner states. The manager explains the association’s maintenance schedule and states that parking lot repairs are scheduled, and budgeted, for spring.

Mr. Homeowner wants the potholes fixed now, so he decides to withhold his assessment payment until the potholes are filled. Sorry Mr. Homeowner, withholding assessments will not get the potholes filled. Here’s why:

You signed a contract with the association called the Declaration, or CC&Rs, in which you agreed to pay assessments. Period. There are no Unless Clauses in the Declaration—“I agree to pay assessments, unless . . .”

Yes, the association has an obligation to maintain the common areas. Since the repairs are on the maintenance schedule and in the budget, the association is fulfilling that obligation.

Filling every pothole as it appears throughout the winter isn’t economical. Agreed, it’s less expensive to fill a small pothole. However, it’s far less expensive to have only one visit from the asphalt company to repair all potholes—even the big ones.

Unfortunately, Mr. Homeowner, instead of getting the potholes filled immediately, you get a lien filed against your home for failing to pay your assessments.

But, let’s say the potholes get especially large before the end of winter and Mr. Homeowner fears they’re dangerous. He’s believes the potholes may cause damage to his car or he injure himself. He should call the manager and explain the situation. The association will make emergency repairs to protect owners and avoid liability.

If the association still fails to repair what Mr. Homeowner believes is a hazard, he has the right to pursue other legal channels to require the association to perform its duties. But, withholding assessments isn’t one of them.

Tips for Saving on Homeowners and Renters Insurance

How to save on your homeowners and renters insurance policy.

Note to renters: Renters, if you don't have insurance you should. Paying $3-5 a month (less than $100 a year), will save you and your bank account a world of pain if disaster strikes on your rental. For example, if the roof leaks or if there's a bug infestation and you need to leave your apartment for a few days, your rental insurance policy will often cover hotel expenses while the landlord remedies the problem.

Whether you own or rent your home, insurance is essential to protect your property and household goods. Comparison shopping for the best rates will certainly save you some money, but you also can save by following these tips:

• Choose a higher deductible—increasing your deductible by just a few hundred dollars can make a big difference in your insurance premium.
• Ask your insurance agent about discounts. Dead bolts, smoke and carbon monoxide detectors, security systems, storm shutters and fire-retardant roofing material are just some of the home safety features that can often lower your rate. You also may be able to get a lower premium if you are a long-term customer or if you bundle other coverage, such as auto insurance, with your provider. Some companies also offer senior discounts for customers who are older than 55 years.
• Don’t include the value of the land when you are deciding how much coverage to buy. If you insure your house, but not the land under it (e.g. in a condominium) , you can avoid paying more than you should. Even after a disaster, the land will still be there.
• If you’re a renter, don’t assume your landlord carries insurance on your personal belongings. They likely don’t provide renters insurance. Purchase a separate renters’ policy to be sure your property—like furniture, electronics, clothing and other personal items—is covered.

Don’t wait until you have a loss to find out whether you have the right type and amount of insurance. For example, many policies require you to pay extra for coverage for high-ticket items like computers, cameras, jewelry, art, antiques, musical instruments, and stamp and coin collections.

Furthermore, not all coverage will replace fully what is insured. An “actual-cash-value” policy will save you money on premiums, but it only pays what your property is worth at the time of loss (your cost minus depreciation for age and wear). “Replacement” coverage gives you the money to rebuild your home and replace its contents.

Finally, a standard homeowners’ policy does not cover flood and earthquake damage. The cost of a separate earthquake policy depends on the likelihood of earthquakes in your area. Homeowners who live in flood-prone areas should take advantage of the National Flood Insurance Program.

The Importance of Bids

Most homeowner and condominium associations engage the services of professionals to help with the operations of the community. These professionals include accountants, landscapers, contractors, and managers. As board members, you have a duty to ensure that association funds are spent carefully and responsibly.  Part of the process to ensure financial responsibility is soliciting and reviewing competitive bids prior to hiring professionals or vendors.

1.  Define the Scope of Work

Prior to seeking competitive bids the board or committee must develop a comprehensive scope of work. In other words, what services does the board want performed? Let's suppose the association wants to hire a landscaping company to maintain the common areas. The scope of work may look something like this:

SERVICE	FREQUENCY	COST
GRASS MOWING, FERTILIZING, AND MAINTENANCE	3X MONTH
TRASH COLLECTION IN COMMON AREAS	WEEKLY
TREE & SHRUB PRUNING & MAINTENANCE	MONTHLY
IRRIGATION SYSTEM MAINTENANCE	BI-ANNUALLY
APPLICATION OF HERBICIDES AND INSECTICIDES	AS NEEDED
TOTAL ESTIMATED COST:

Each potential contractor receives the same bid form and returns the form to the association with their total estimated costs and a break-down of each line item cost.  Otherwise, its easy to be misled. Perhaps one contractor's price appears significantly lower, but it's because they haven't included the costs associated with the maintenance of the irrigation system.

Ideally, three bids should be solicited and compared.  However, some associations develop strong and lengthy relationships with vendors. That's ideal, but it makes sense to occasionally compare services and prices of other vendors even if the board is intent on continuing its relationship with its preferred vendor or contractor.

2.  Do Your Homework

Once bids are received, ask around about the vendors who submitted bids. What's their reputation? In Oregon and Washington you can check on the status of a contractor's license, review their insurance, and see if anyone has submitted complaints against the company.

For Oregon contractors visit: http://search.ccb.state.or.us/search/

For Washington contractors visit: http://www.lni.wa.gov/TradesLicensing/Contractors/HireCon/verify/Default.asp 

3.  Hammer Out The Contract

Very few people enter into a contract with the expectation of future disputes or that the other party may breach the terms of the agreement.  At a minimum, service contracts should contain the following elements:

• Detailed statement of when and how work will be performed;
• Amount and terms of the contract price;
• Acts or omissions which entitle a party to terminate the contract;
• A warranty of any work or services performed;
• A statement by the contractor that it is licensed, insured and bonded;
• Indemnification language whereby the contractor will indemnify and hold harmless the association and the board members from legal claims arising out of the contractor's work; and
• Provisions governing how disputes will be resolved, i.e. mediation, arbitration.

As always, have an attorney prepare or review all contracts prior to signing.

4.  Review

Once the bidding and contracting are done, follow-up with contractors and vendors to ensure that the terms of the contract are fulfilled.  The board or a committee should review all association contracts on an annual basis to verify that services have been performed, if new bids should be solicited, and that payments have been made.

Avoiding Fraud in Condominium and Homeowners Associations

Last week an Indiana newspaper published an article titled "Homeowners association supervisor faces 21 counts of forgery." (Click here to read article) The article states:

A McCordsville woman is charged with 20 counts of forgery and one count of theft of at least $100,000 in Marion County.

Marcy M. Smitley, 39, the owner of MCS Management Group Inc., was hired to supervise the Winslow Crossing apartment and condo complex on the southeast side of Indianapolis.

Court documents state Smitley repeatedly wrote and cashed checks without the permission or knowledge of Winslow Crossing Homeowners Association, pocketing more than $120,000 during the course of four years.

Fraud and embezzlement can occur in any condominium or homeowners association.  Here are some steps to help minimize your risk:

1. Purchase fidelity insurance to protect your association from theft of funds.  Your fidelity policy limits should match the amount of funds in your accounts.

2. Require two signers for all checks.

3. Have an independent CPA perform an annual financial review or audit.

4. Require monthly bank account reconciliation.

5. Keep blank checks in a secure location.

6. Consider background checks for any employee or contractor who may have access to association funds.