Conflicts of Interest and Conflicting Interest Transactions. What Homeowner Association HOA Boards of Directors Don't Often Know.

For some, the stories I am about to tell could never have happened. However, what I am about to say is real and nothing was ever made up. Several years ago, 2003 to be exact, the homeowner association in which I reside ran into some difficulties with our Property Manager. As Treasurer, I was responsible for making materials disbursements to our roofing company from whom we had contracted to install a stone-coated steel roof. The arrangement with the roofing company called for our association to be invoiced for the cost of materials, and the roofing company would invoice for the labor once each building had been completed.

Things were moving along well enough, however, at some point in time our owners began to notice that the project had stopped. We inquired of our Property Manager at the time and she assured us it was because the crew had to be pulled from our project to complete another. After approximately 90 days, as Treasurer, I personally contacted the roofing company to ascertain as to the status of the project. It was at this time that I was informed that the crews had been pulled due to lack of payment.
If your a homeowner association board member this story may be starting to sound all too familiar.

Ironically, I had been routinely stopping by our management company's offices to sign checks. What I learned is that there wasn't enough funds available so the checks were being voided to pay operating expenses. These expenses included the monthly management fees. As such, the Board of Directors elected to place the company (in accordance with our governing documents) out to bid. As a result, they merely quit.

Shortly thereafter, I was approached by our electrician regarding a bid which had been submitted for replacing approximately 16 wooden light poles with aluminum and metal halide lighting. During a walk-thru of the property he informed me that he would decrease his bid by 20%. I inquired as to why he could do that. He responded by stating that "Since your association is now self-managed, the 20% represents the fees that I would have to pay to the management company for receiving the contract."  It wasn't long thereafter that the Board of Directors sought bids from three (3) separate painting contractors. All three stated that they had been trying to procure business with our association for nearly 20 years and were always out bid by our previous management company's preferred provider.

In 2005, the state of Colorado legislature was in the process of drafting and enacting Senate Bill 100. It was at this point in time that our landscaping contractor had inquired if Senate Bill 100 would have any effect upon his business. I explained that it mainly dealt with specific issues surrounding the Homeowner Association's Board of Directors and governance policies. I stated to him that I thought that the legislation did not go far enough to protect homeowner rights. In particular, I would have liked to have seen legislation regarding "Conflicts of Interest" and "Conflicting Interest Transactions" as they relate to the relationships between management companies and individual contractors.

During this time, our landscaping contractor serviced approximately 12 individual properties for our previous management company. In return, he indicated that he had performed a wide range of "Free Landscaping" services for the management company and its owner. I would later learn that the "preferred" roofing company provided "FREE" roofing services to the owner. Likewise, the "preferred" painter provided "FREE" and/or reduced painting services. As a property manager, I routinely hear stories regarding just how this relationship actually works. In some cases, the property manager works diligently to insure that the Board of Directors is led in such a direction as to insure that the "preferred provider" receives the contract.

In some cases the bid is increased 20 -30%. Then, when it comes to paying the invoices, a master invoice is then sub-divided into two separate payments with the contractor receiving 20-30% less. In other situations, the Board of Directors authorizes the payment, and the contractor immediately forwards a separate payment to the management company. Some management companies will tell you that they do not make their money off of managing the properties. If this is the case, then just how do they make their money?  In many cases, its has very little to do with governance as much as it does with often "undisclosed" business relationships.

If nothing else, the Colorado Common Interest Ownership Act (CCIOA) should incorporate some form of governance guidelines for property managers. At the present time, none actually exist. Thus, the homeowner association Board of Directors is often left in the dark. This makes them, and the residents they represent, the victims. It is one thing to utilize tools such as reserve studies, dues increases, or special assessments to hide much of this activity, it is another to do so knowing that the associations are spending far more than they should.  At this rate, the homeowner associations will always be behind the proverbial "eight ball".

Thus, as many homeowner association Boards of Directors are reviewing their balance sheets, maybe they should ask that their property managers and/or management companies fully disclose their working relationships with the various contractors. Especially if the association is expecting to venture into a major capital improvement project. This is stuff that one cannot make up. Board of Director members have a fiduciary duty to their associations. If the management company will not willingly disclose these relationships the Board of Directors should actively seek bids from other competing companies, regardless of the number of years the current management company has been with the property.

Caveat Emptor - Buyer Beware.

In the mean time, if your Board of Directors is presently seeking new management they should ask for the following:
- Confidential Policy
- Privacy Policy
- Conflict of Interest Policy
- Full Disclosure Policy


If the candidates are reluctant to provide such information you may just want to move on.

For samples of the above policies visit our website at http://teamstrategy.org/teamstrategy/sub_category_list.asp?category=15&title=About+Us

Should HOA Managers in Colorado be licensed?

Do you support the licensing of individual Property Managers in the state of Colorado? The Colorado Springs Gazette is currently conducting an on-line survey. Visit the following link and make your voice heard.

http://www.gazette.com/news/vogrin-134723-hoa-homeowners.html

The Future of Homeowner Associations...

If your a community association, older established homeowner association, or a small homeowner association, chances are the level of volunteerism and/or community involvement has drastically declined over the years.  For most associations, those Board of Director members who were once actively involved are now faced with an inability to find volunteers.  Those born during the Great Depression, or who lived thru World War II and understood the notion of volunteerism are dying in record numbers.

For the Baby Boomers, who approximately 2000 per day are turning age 60, college age children are moving back home.  Faced with the worst recession since World War II, the Baby Boomers are dealing with declining incomes, depleted 401k's, reduced or non-existent savings accounts, and job lay-offs never thought imaginable.  Add to that bankruptcy, and/or foreclosure and the picture becomes more bleak.

As such, the future of neighborhood, residential, and/or commercial associations is somewhat dismal at best. Where will the volunteers come from? Who will manage the association after the present Board of Directors is gone? Will our association stagnate or merely die?  Will our association become part of the management portfolio of an otherwise uncaring professional management company? Or will our properties merely crumble and decay into nonexistence because of limited resources?

These are all very important questions that many Homeowner Association HOA Board members would most likely want to ignore. At least until their term of office has expired, or they have moved.  The problem with most associations is that complacency will most likely be the order of the day.  Unless a professional management company is on the sidelines ready to adopt the troubled property, they will most likely stagnate and die. The notion that Homeowner Associations can continue to operate as a business entity as they did 20 years ago is nothing less than flawed thinking.  Those management companies that fail to recognize this issue will find themselves having revenue related difficulties as well. Thus, it is imperative that Homeowner Associations, like commercial businesses develop some form of succession plan in the event of declining volunteerism, community involvement, or revenues.

As they saying goes "A failure to plan constitutes noting less than planned failure."

FHA and HUD - Are the Fed's regulations contributing to the economic stagnation?

The real estate Gods have smiled upon you. Your asking price is accepted by a buyer. They have accepted your price and better yet - they are a qualified buyer. All things seem well and life is good. However, you receive a call from your agent and they inform you that your condominium does not meet with HUD's requirements for FHA financing? Now what?

Unfortunately, this scenario is becoming all too real. Numerous Homeowners Associations (HOA's) throughout the United States are being unfairly penalized due to the actions and/or inaction's of others.  Two of the requirements that are problematic have to do with the questions concerning Litigation and the 15% Assessment Arrears issue. What constitutes litigation? When HUD refers to litigation, does it mean civil or criminal? What about small claims? What amount would seem reasonable? No one knows. The HUD checklist merely asks if there is any on-going litigation.

Thus, one might have a contractor suing the association for some unpaid bill and this would appear in a records search. What if the amount is for $150.00? Who is screwed now? In this case, it would be both the buyer and the seller.  All because of a decision or indecision by a Board of Directors. Clearly, HUD should define what constitutes litigation. After all, if it is some form of  legal litigation seeking "Injunctive" (non-monetary) relief, why should the applicant be penalized?

Then there is the issue of monthly assessments. What if a person is merely 31 days past due for a monthly assessment of $85.00? Should this circumstance affect the application and certification process?  Most Homeowner Associations (HOA's) governing documents limit the type of Collection  Procedures that can be implemented when it comes to a thirty (30) day window. Most Boards of Directors and/or Managing Agents merely send the owner a Late Notice. Most (if not all) do not take formal collection action on assessments until 90 days.

So now you have it. A person is in arrears by one day and they could be disqualified. If you are a small condo or Homeowner association with less units, say ten (10) , then if two(2) people are in arrears by one day you can be denied. Now that is taking the sublime and sending it to the ridiculous. Why? Because if you reside in a ten (10) unit community and two (2) people are more than thirty (30) days in arrears, even by one day, you can be declined.

I wonder just how many qualified home buyers are choosing to rent because they (or the HOA) were unable to receive FHA certification? While I do not know the answer, the mere absurdity of the process tells me that there must be more than we would ever imagine. The real question is - Who were the brainiacs that came up with this fur ball. And people wonder why our economy is slogging along.

Are Colorado HOA’s violating state law?

In April, I testified on behalf of a homeowner (a very unusual procedure for a management company to do) against a homeowner association and their management company in El Paso County Court. During the trial the plaintiff counsel was asked by the defense counsel if the homeowner association had a Mediation Policy. To date, no one has seen or read any form of a Mediation Policy. In 2005, Governor Bill Owens signed Senate Bill 100 (SB100) into law. Senate Bill 100 modified the Colorado Common Interest Ownership Act (CCIOA) by adding a series of governance guidelines.

The purpose of these guidelines was to provide homeowner protections that, when implemented, would provide greater rights for homeowners. Enumerated into statute, these Responsible Governance policies appear in section 38-33.3-209.b of the Colorado Revised Statutes. The mandate by the Colorado legislature is quite clear in item 1 which reads: “To promote responsible governance, associations shall….” The operative word is “SHALL”. Nowhere is the word “MAY” utilized. Thus, associations are required by law to enact these policies and procedures.

Subsection VIII requires associations to adopt “Procedures for addressing disputes arising between the association and unit owners.” This entire section was later added and became effective on January 1, 2006. Why, in April 2010, hasn’t the association enacted a Mediation Policy? If the association Board of Directors has known about SB 100, the managing agent for the association is aware of SB100, and the legal counsel for the association has known about it, why wasn’t one adopted by the association Board of Directors?

Worse yet, what are the ramifications for failing to implement the governance guidelines contained in SB 100? The answer is none. As part of the responsible governance guidelines, the associations are responsible for adopting policies relating to 1) the collection of assessments, 2) handling of conflicts of interest involving board members, 3) protocols for conducting meetings, 4) enforcement guidelines surrounding covenant violations , hearings, and the implementation of fines, 5) inspection of records, 6) investment policies surrounding reserve funds, 7)procedures for the creation, amending, and adoption of rules and policies, and 8) a mediation policy. All of which is to be communicated to the homeowners within the association.

Today, nearly five years later, homeowners within associations are being asked to take their grievances to a court of law. Why should homeowners be required to seek justice at their expense? After all, they pay dues which are being used by the association Board of Directors (who has a vested interest in the outcome) against them. Nowhere contained in the Colorado Common Interest Ownership Act (CCIOA) is there a remedy in the form of injunctive relief for the victims. Nor is there any form of civil penalties for associations, their managing agents, or legal counsel for failing to implement said policies. If they are lucky, CCIOA does allow, if the judge rules, reimbursement of court costs. However, there is no guarantee that they will receive reimbursement of “ALL” court costs, attorney fees, and or compensation for lost wages, etc.

Section 38-33.3-123(1) (b) C.R.S. Enforcement –limitation reads as follows:

"For any failure to comply with the provisions of this article or any provision of the declaration, bylaws, articles, or rules and regulations, other than the payment of assessments or any money or sums due to the association, the association, any unit owner, or any class of unit owners adversely affected by the failure to comply may seek reimbursement for collection costs and reasonable attorney fees and costs incurred as a result of such failure to comply, without the necessity of commencing a legal proceeding.” (Emphasis added).

Ironically, the last sentence of CRS 38-33.3-123(1)(b) further provides the home owner with the ability to defend themselves or bring an action against the association without "...the necessity of commencing a legal proceeding."  Am I missing something?  What part of this am I missing that isn't clear to legal counsel and the courts? If the association Board of Directors refuses to mediate a dispute. If the managing agent refuses to recommend mediation, and if legal counsel refuses to recommend mediation, and then a judge fails to order mediation as part of the process, where is a home owner to go in their search for justice? While SB 100 was a step in the right direction, it was only a step in a long march for truth, fairness, and reason.

Ho - 6 and Condominium Policy considerations for Homeowners in Covenant Protected Communities

INTRODUCTION

As an individual condominium or townhome owner residing within a covenant protected community there are specific questions a homeowner needs to consider when purchasing a policy for their individual condominium or townhome. New homeowners are advised to carefully review the homeowner association's Declarations and Covenants, as well as the Rules and Regulations prior to purchasing their coverage. Here are just a few of the questions one should be asking when considering purchasing an HO-6 or Condominium policy.

CONSIDERATIONS

Not all Homeowner Association blanket Commercial General Liability insurance policies are alike. Unlike cookie cutter policies, the Commercial General Liability Policy for one homeowner association may be significantly different than that of an adjoining community association next door. Contrary to popular belief, the Blanket Commercial General Liability Policies are often designed by the underwriting company keeping the specifics outlined in the associations' Declarations and Covenants, as well as the Rules and Regulations. Some association Declarations are straight forward in that they cover anything on the outside and nothing on the inside. Some associations have the associations' responsibilities end at the door. This includes such items as sewer lines, water lines, electrical, etc. In addition, they often exclude coverage for such items as exterior doors and windows.


Other associations, such as condominium associations, may provide limited coverage for the interiors of the association. Under a "Paint In" policy, the associations' insurance may cover such items as interior plumbing, electrical wiring, structural framework, etc. While others have a "studs in" form of coverage. Under a "Studs In" policy the associations' policy may provide coverage for damages to drywall. The terms and types vary from one risk underwriter to another. Generally, most companies carry what is known as an "HO-6" or "Condominium" policy. These types of policies usually provide limited liability and contents coverage. The liability coverage is often set to $300,000.00 or above. Policies that provide for "Contents Coverage" are often based upon the value of an individuals personal belongings. Things one needs to keep in mind when purchasing an HO-6 or Condominium Policy are as follows:



1) What type of coverage for personal contents does this company provide?

2) What method is used in determining the value of my personal belongings should a loss occur?

3) Does this policy provide financial assistance for lodging should I be required to vacate the premises as the result of a loss?

4) Does the policy have an inflation component for increased costs associated with replacement?

5) What level of liability coverage is provided in the basic policy and can I purchase additional levels of coverage?

6) What levels of medical coverage does the policy provide? Can I purchase additional levels of coverage?

7) What are the various deductible levels and can they be modified?

These are just a few of the basic questions a new homeowner purchasing a townhome or condominium within a covenant protected community should consider. Additionally, a new owner may want to check and see if the underwriting company provides "Loss Assessment" coverage, the levels of such coverage, and whether or not the levels can be modified and/or increased.

LOSS ASSESSMENT - What is "Loss Assessment Coverage? Loss assessment coverage is coverage that kicks in whenever the association requires the enactment of a Special Assessment due to a loss. For example. The Homeowner Association suffers a loss to its roofs as a result of a violent hail storm. Suppose the cost associated with replacing the roofs requires a 2 or 3 percent wind and hail deductible. If the association does not have sufficient funds in its reserves to cover the loss, the difference is generally passed on to the homeowners.

Many HO-6 or Condominium policies provide a basic level of "Loss Assessment" coverage. This level is generally $1,000.00. Several companies, however, have recently increased their basic levels so that the minimum coverage is $10,000.00 with a maximum of $50,000.00. Very often, the companies that have increased their Loss Assessment levels are those companies that have begun utilizing a 2-3 percent wind/hail deductible. Under these policies, a homeowner could easily expect to be hit hard with additional roofing replacement costs associated with a Special Assessment. Therefore, it makes sense, for a homeowner to consider spending the additional funds for the added coverage. Generally, the costs of such additional coverage can range from as little as $8.00 per year for $10,000.00 of additional coverage to $18.00 for $50,000.00. You will have to check with your insurance agent to obtain an exact quote.

LIABILITY - Additional liability coverage should be considered. Today, most people seeking a law suit seem to be fixated with the $1 million price range. Therefore, check with your agent to see what level of liability coverage is provided and whether or not you can purchase additional levels of coverage.

MEDICAL COVERAGE - Another item to consider is the level of medical coverage that is provided with your policy. Most ofetn, these policies only provide $5,00.00 of coverage. If you or a guest becomes injured and requires hospitalization and/or medical treatment are you adequately covered?

SEWER BACKUP - Does your policy provide for sewer backup? Many homeowner association policies only carry a minimal level of coverage for damages related to backed up or broken sewer lines. These levels usually are in the $5,000.00 to $10,000.00 price ranges. Check with your agent to see if your HO-6 or Condominium policy provides such coverage and at what levels. Also check to see if you can purchase additional levels of coverage.


BETTERMENTS - Will your HO-6 or Condominium policy provide for inflationary upgrades or betterment replacement? What are betterments? These are improvements that were made to your property during its lifespan. For example, let us assume that you purchased a townhome with standard formica counter tops. You later upgrade your kitchen with granite counter tops. A fire hits your kitchen and you have to have it replaced. Will your company replace the kitchen with the formica (which is what was there when it was built) or will it replace it with the granite? Having additional "Betterments" or "Improvements" coverage will insure that you have the counter tops replaced with what was there at the time of the loss.


FLOOD - Is your property located within a FEMA (Federal Emergency Management Administration) recognized flood plain? If so, can you purchase coverage from your private insurer or are you required to seek coverage from FEMA. Be advised, most private companies and/or FEMA will not issue policies to those private residential communities that are not situated within a FEMA recognized flood zone. However, that may be a question one might desire to ask as part of the purchasing and seller disclosure process. After all, it may be a deal breaker if it is. The flood coverage price tag associated with the property may make it cost prohibitive. Especially if you the owner are required to make improvements, provide a minimum level of maintenance, or are hit with an extremely high deductible.

CONCLUSION

Finally, remember that not all blanket coverage policies for homeowner associations are alike. These policies can change from year-to-year. Indeed, most homeowner association Declarations and Covenants require the Commercial General Liability Policy to be reviewed and placed out to bid on an annual basis. As such, you may want to review the associations' policy yourself to insure that should a subrogation issue arise you are not left under insured. When in doubt it always pays to ask your agent. In addition, you may want to have your agent communicate these questions and coordinate coverage with the homeowner associations' insuring agent.
 
Author: David C. Stiver MA
Team Strategy Inc.© 2009
For additional information visit us on the web at http://www.teamstrategy.org/

Congress and Department of Education miss Boat on Student Loans

In the fall of 2008, the federal government and Congress enacted a new program that would promise relief for millions of college students across America.  Starting July 1, 2009 students with federal student loans could ask that their monthly payments on the loans be limited to 15 percent of their income.  Others, who are unemployed or underemployed could apply for steeper reductions under the Income-Based Repayment (IBR) program. 

Under either scenario, neither program actually addresses the real issue.  For most students, interest rates are substantially lower than when they completed their education.  However, under current rules, students receiving federally backed student loans may only consolidate their loans one time during the entire lifetime of the loan.  Therefore, if rates were 10 or 12 percent and a student consolidates their loans to 8.25 percent it may seem like a good deal.  Not if rates are currently 3 or 4 percent and you are still paying 8.25%!

Over the past year, student loan defaults, according to the Department of Education, rose from 5.2% the previous year to 6.7%. While these repayment programs seem reasonable, they do not address the heart of the problem. Merely delaying or deferring the payments only extends the loan repayment period. This, in turn, allows the banks and other financial institutions to benefit from a no-lose scenario. If the student defaults, the feds pay the loans. If the student opts for a deferred payment program, the banks receive greater interest over the long term.

Under these band-aid programs, students,will in the long-run end up owing and paying more. If a person pays higher principal payments toward a standard mortgage over a 15 year period, they will pay the home off sooner and owe less interest. Sure the payments may be higher, but they own the home sooner. If, on the other hand, a person pays the minimum principal and interest payments or seeks a reduced repayment over a 50 year period they will have paid far more for their home.  If students were able to refinance to a lower rate there is a greater chance of success and increased payments overall.


Ironically, unlike most federal loan programs, the Stafford, Perkins, or GRAD Plus loan program interest rates are not determined by any free-market fluctuations.  Rather, Congress is responsible for setting the loan rates.  Those 535 people in Washington D.C. who for some reason cannot figure out why the student loan default rate continues to skyrocket.  Imagine that!  Unlike other federally backed/government insured loan programs, such as VA, FHA, etc., students who have already consolidated are locked in to higher prevailing interest rates. 

Instead of creating a climate that encourages repayment, Congress in its infinite wisdom allows the rates to remain and instead bars the indebtedness from being discharged in bankruptcy.  Go figure! Then Congress increases the minimum standard deduction on one's income taxes causing fewer people to benefit from the student loan interest deduction altogether.  Hey folks, how about a lower rate!

Changing the current system would result in the following: 1) higher rate of repayment, 2) fewer defaults,  3) a new market for loan refinancing (similar to mortgage loans) opening up, and 4) reduction in the total loan value that the federal government would have to insure.

Its time the federal government addresses the mechanics of the student loan programs.  Failure to do so will only mean higher taxes for all of us as more and more students merely walk away from their financial obligations.  Seems ironic, a person is more than welcome to renegotiate their mortgage loans but not their federally backed student loans.