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CCOOMMMMUUNNIITTYY © 2013 Law Offices of Sima L. Kirsch, PC , These articles are not intended as advice. Please arrange your legal services through Sima L Kirsch, PC. sima@skirschlaw.com, P: 773.784-2883

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BUILDING COMMUNITY WHAT DOES IT MEAN : HOW TO DO IT

Definition of CONDOMINIUM

In modern property law; individual ownership of one dwelling unit within a multi dwelling building. Unit owners have undivided ownership interest in the land and those portions of the building shared in common. This type of ownership has been present in Europe since the end of the Middle Ages; in the U.S. it dates to the latter half of the 19th century and has been popular in crowded urban areas.

Definition of COMMUNITY

1: a unified body of individuals: as a : state, commonwealth b : the people with common interests living in a particular area; broadly : the area itself <the problems of a large community> c : an interacting population of various kinds of individuals (as species) in a common location d : a group of people with a common characteristic or interest living together within a larger society <a community of retired persons> e : a group linked by a common policy f : a body of persons or nations having a common history or common social, economic, and political interests <the international community> g : a body of persons of common and especially professional interests scattered through a larger society <the academic community> 2: society at large 3a: joint ownership or participation <community of goods> b: common character: likeness <community of interests> c: social activity: fellowship d: a social state or condition

Synonyms neighborhood

Antonyms difference, disagreement, discrepancy, disparateness, disparity, dissimilarity, dissimilitude, distinctiveness, distinctness, unlikeness

Near Antonyms loner; individualist

Definition of COLLABORATE (differentiated from mediation)

1: to work jointly with others or together especially in an intellectual endeavor 2: to cooperate with or willingly assist an enemy of one's country and especially an occupying force 3: to cooperate with an agency or instrumentality with which one is not immediately connected

Origin of COLLABORATE: Late Latin collaboratus, past participle of collaborare to labor together, from Latin com- + laborare to labor — more at labor First Known Use: 1871 Synonyms band (together), cooperate, concert, concur, conjoin, conspire, join, league, team (up), and unite

At the core of every interaction/endeavor the respective personalities of the parties

interacting in the endeavor have the greatest impact on the outcome. This is no less true in

a homeowner association, whatever the form, and perhaps more so. For a HOA form of

ownership to be successful each individual member must first examine who they are and

their intentions and then put their entire preconceived notions aside and collaborate

together to become a unified body.

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It’s not a they or us mindset, it’s about COMMUNITY. Everyone has to buy into it. So what

does that mean, how does one buy into community? In the same way our personality can

affect our interactions, our level of education about the community we are attempting to

create can make or break a community. Every community has tools, the key is to find the tools

and use them, collaborate as a unified whole for a common purpose. Remember, there is no

they or us if established properly. Let’s face it, board members are not animals from another

planet, they’re just regular people like you and me, members of our community, trying to make

a difference.

We find boards committing unintentional (or sometimes intentional mistakes) and owners in

arms. Many times when the law is explained, the complaining parties retreat. Wouldn’t it be

better not to come to that point? Every business has law that applies to its operation. The first

question any member should ask is, what’s the law that applies, not- what do I want and why

can’t I have it or pushing an agenda that is anathema to community.

My guess is that few of you were counseled to the ways of the legal aspects of condominium

living. You were shown documents and were told you will need to follow them. Did you read

them, understand them? If you didn’t maybe the person next to you or behind you didn’t

either. You could be a regular member or a member that’s on the board, either way without

the proper education you are a dangerous element in an otherwise already difficult

environment.

With varied personalities mixing, temper’s flaring and a lack of education as to the tools of

association organization the results can be staggering. In the recent issue of Community

Association Institute’s, Common Ground, was a disturbing article, “In Harms Way”, about

behavior I believe will become a prevalent pattern if not addressed. The essence of the article

boils down to the fact that road rage has now made its way into the board meetings and

hallways of the place we call home. It is alarming the extent to which we speak, based on

what we think, rather than what we know to be accurate. Imagine what happens when you

combine an inaccurate analysis in the hands of a hot head or someone that is power thirsty.

Where does one start:

First Step:

Figure out who you are, make an honest assessment. Take stock and know whether you

should follow what’s going on by reading notices and minutes that are distributed, come to

meetings, join a committee or join the board. Board and committees need diversity, more

ideas are better than the same idea. A small amount of negativity can have a huge impact.

Put your best foot forward, be the best member you can be and remember no matter who you

are with or where you are, or what you are doing, everyone is entitled to be treated with

respect, civility and dignity. I believe great leaders like the Dalai Lama, Mother Theresa,

President Obama, Rosa Parks, the Reverend King and Abraham Lincoln would call it the

basic humanity that resides in all of us.

Second Step:

Everyone collectively agree to get educated, when you purchased there wasn’t a covenant

that required you know and interpret condominium law, neither were you imbued with lawyer

skills to interpret words that have technical meaning. Benjamin Franklin’s expression, penny

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wise-pound foolish can best describe the association that would rather battle every issue, in

the board meeting, hallways and courts rather than pay an up front fee to educate the entire

association. Just think $500-$2500 worth of training and materials could save you your next

big lawsuit and $30,000.00. Before you can have an educated exchange at a board meeting,

whether member or board member (you’re a member first) you must understand that aside

from the body of case law that interprets statutes, mostly everything you can and cannot do is

set by various statutes (not just the ILCPA) and your operating documents. To ignore this

body of work would be like going to work and saying you don’t care about your employer’s

policies and you can do whatever you want. Put your best foot forward, be the best member

you can be and follow best practices. Members and boards that follow best practices are

usually well run organizations.

Third Step:

Recognize the common goals, which are the same goals set out for a HOA board in the

ACT and respective Operating Documents. Upkeep of collective amenities, protection of

property values, community for those who want it, protection from crime, insuring against

negative neighborly behavior and an improved standard of living afforded by this type of home

ownership. Recognize the common tools to achieve this, best practices governance structures

and accountability. We don’t want to live in Orwell’s 1984, neither do we want to live in Lord of

the Flies. Understand the modalities available to accomplish the goals.

What’s in Your Toolkit:

Rules of Law (statutes, public acts, local ordinances, case law and our respective

constitutions)

Operating Documents (Declaration, Bylaws)

Rules, Regulations and Resolutions

Policies and Procedures

Committees (great way for owners that don’t want to be on the board and feel they have

something to offer to engage in their community, and feel a sense of achievement)

Annual Report

Annual Checkup (legal, fiscal, structural)

Website (careful of the evidence issue)

Message Board (careful of the evidence issue)

Periodic Surveys: We are each unique and therefore each association is unique and each

homeowner association board is unique. Surveys allow members to voice their opinions and

preferences in a non confrontational manner or setting. Surveys also help find the pulse of the

association making it easier for boards to focus themselves, committees and other owners

and target efforts without wasted time.

House Rules: These rules are vital to maintaining civility. Members enjoy the privacy of their

homes. Board members should be able to enjoy the same privacy. Unfortunately they happen

to sit on a board where they live. The same holds true for meetings. Everyone whether in

their units or in the lobby should have the reasonable expectation of the quiet and peaceful

enjoyment of their home, shouldn’t they? House Rules cover issues such as when and how to

contact a board member, when and how to get an item on the agenda, what information can

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be freely passed and what information must be controlled and protocol for how meetings are

handled.

Meetings: There are only three types of meetings. Member meetings, board meetings and

special meetings (that may be call pursuant to statute by members or the board) and they

each carry their own rules to follow. Do follow them. Informal meetings of the board and

committee meetings (although committees certainly want to keep notes) do not keep formal

approved minutes. Whatever type of meeting, have it mean something. If it won’t then you

probably don’t need to meet. Send an informational flyer or update, don’t call a meeting.

Meetings are to conduct and approve business decisions. The members, where good

communication techniques are practiced, will already know all the information they need to

know.

Monthly Updates/Get Togethers: Monthly update of permitted information goes a long way

towards bridging the gap between them and us. Unless its information that may not be shared

then periodic updates about the financial and maintenance aspects of their building, help keep

everyone feeling good and less likely to lash out because information has been withheld. Get

Togethers lend a softer touch however, please don’t forget liability issues when in the planning

stage.

Be different, be proactive. Train your members and your board not only to the ways of the

body of law that govern you but in ways that by example teach us to be kinder to each other.

This way, any time a new member joins the board, everyone is on the same page. Each year

have a mini training session for new board members that missed an earlier training as well as

any new members, or hold a refresher class. Successful associations have educated

members, educated members make an educated board. Education helps find the humanity in

each of us. Allowing for diversity and openness builds on that humanity.

© 2013 Law Offices of Sima L. Kirsch, PC This article is not intended as advice. Please arrange your legal services through Sima L Kirsch, PC

sima@skirschlaw.com

HOW TO DEVELOP AN INVOLVED COMMUNITY

One of the most important elements of condo living is the ability to establish a strong, involved

association with knowledge of proper governance. To achieve this, it is important to take step in

creating an involved community and a competent, responsive association. Here, see some

guidelines that will help promote harmony, ensure strong communication and establish a trusted

association. How does your community measure up?

√√√√ There is a functioning board that meets regularly and carries out duties and

responsibilities as dictated by governing documents and applicable law.

√√√√ The board has disclosed to owners the association information that is required by

governing documents and applicable law.

√√√√ The associations’ legal documents, resolutions, books and records are kept in a location

that is open to inspection by owners, provided they give reasonable notice.

√√√√ The board allows owners to be heard in association related matters and also encourages

the use of alternative dispute resolution in appropriate situations.

√√√√ The board communicates with owners on a periodic basis to share information regarding

the association and to receive feedback from owners.

√√√√ The board conducts and produces minutes of the annual and quarterly meetings.

√√√√ Election procedures conform to the governing documents and applicable law, with

information about the election process available to all owners.

√√√√ A system is in place to respond to owners’ requests for association maintenance and for

other association-related issues.

√√√√ A system is in place for property inspections and monitoring to ensure proper

maintenance and appearance, both current and preventative.

√√√√ A system is in place that assures owners’ obligations to adhere to governing documents

and there also exists a confidential and safe forum for the resolution of related disputes.

√√√√ Management is licensed, certified or holds appropriate credentials for competent over

sight and management of the community.

√√√√ The association holds insurance such as commercial general liability, property damage,

directors and officers’ liability, worker’s compensation and fidelity insurance. Such

insurance is maintained at the appropriate limits by the association as required by

governing documents and applicable law.

√√√√ A system is in place to administer property damage and personal injury claims.

√√√√ The board budgets time and funding for the ongoing education of the members of the

board; especially for those newly appointed or elected.

©2008 Law Offices of Sima L Kirsch, PC This article is not intended as advice. Please arrange your legal

services through Sima L. Kirsch, PC. sima@skirschlaw.com

AVOIDING ESCALATION

Association boards frequently receive complaints from unit owners regarding

obnoxious and sometimes innocuous conduct by their neighbors. Sometimes the types

of behavior complained of represent a clear-cut violation of association’s rules and

regulations and sometimes it is not clearly actionable. Although this article will

certainly address how a board should deal with grievances, and worst case scenario,

threats to unit owner safety, its primary focus will be on developing the kind of

community that doesn’t require a board to referee interactions between its unit owners.

Although it may sound like a cliché, a board should work closely with unit

owners to develop a culture of cooperation among incoming and existing unit owners.

Many condominium unit owners purchase believing that their fee simple ownership

allows them to treat their unit like a single family home that just happens to be adjoined

to other homes. Those lucky condo owners who have served on association boards have

undoubtedly experienced frustration with owners who believe that assessment checks

entitle them to the privileges of apathy and absentmindedness. Associations should be

proactive in dealing with this phenomenon by engaging in a bit of condominium

association socialization. Sit down with new unit owners to explain that the governing

documents they have agreed to be bound by are both empowering and limiting; the

declaration and rules and regulations of an association limit unit owner freedom but also

impose limitations that make their condominium ownership possible. The board or a

representative should also explain what is expected of each incoming unit owner and

what they can expect from the board and surrounding unit owners.

For veteran unit owners, a once a year meeting in which all association members

are invited to submit their recommendations in advance and discuss how to improve

association living can go a long way in preventing the kind of behaviors that represent

nuisances to other unit owners. Every once and a while owners need to be reminded that

their neighbors are people with their own perspectives and not just another detraction

from the association experience. Although educating unit owners will not make the

board redundant (the board will be required to put their enforcement hat on

periodically), fostering a sense of community among unit owners may make complaints

less frequent and minimize the board’s role as arbiters.

However there are times when a unit owner consistently interferes in his

neighbors’ right to the quiet enjoyment of their home. Disruptive behavior can range

anywhere from unauthorized construction to outright violence. In these cases a board

should take the following steps quickly before the dispute escalates:

• Investigate the behavior in question; this includes identification of those

involved, witnesses, and documentation of photographic evidence.

• Determine whether the behavior represents a mere dispute among neighbors or a

declaration/bylaw/rules and regulation violation. The clearer an association’s

declaration and rules and regulations, the easier this job will be. Also, board

members who cannot be impartial because of their relationship with any of the

involved unit owners, or even those board members whose relationship would

give the appearance of impartiality, should recuse themselves from any

determination of a violation.

• Follow procedures that should be set out in the association’s rules and

regulations, which could be a notice of determination, a hearing, and a fine.

Remember that unit owners must be given an opportunity to be heard at a

meeting before they are charged with fines. Failure to provide a unit owner with

such an opportunity means that the fines associated with violations will not be

enforced by a court if the dispute results in litigation.

• Advise complainants that they should call the police if the behavior is criminal

in nature; boards cannot enforce the state’s criminal laws.

© 2009 Law Offices of Sima L. Kirsch, PC

This article is not intended as advice. Please arrange your legal services through Sima L Kirsch, PC

sima@skirschlaw.com

PREVENTATIVE MEASURES FOR A HEALTHY ANNUAL

CHECKUP

1. Board: be prepared. That means read, know and understand your operating

documents and how they translate into the actions required of a board. Strictly

follow the operating documents and rules and regulations. Board, do your ‘duty’

and for the most part the life and business of the community will run smoothly. Be

respectful of other members of the board and your community and provide an

environment that encourages and welcomes participation at all levels.

Homeowner: pay your monthly assessments in a timely fashion. Be familiar with

the policies and procedures that govern your association. Strictly adhering to the

Association’s operating documents and following protocol to resolve your issues is

your responsibility as well. Be respectful of the board and your community and

realize everyone is entitled to be treated with respect.

2. Board: Adopt rules & regulations. Set fines and provide procedures for collection

and enforcement of covenants and rules that are fair, based in due process and

consideration for the person. Even if you have created your rules modeling them

after what the board considers perfect rules and regulations, have them reviewed

by an attorney to ensure they will stand up to court muster; it truly is cheaper in the

long run. All associations are different; a rule for one association may not pass the

test in another association.

3. Board: Stay up to date on changes in the law and your community and undertake

an annual checkup of the fiscal and structural integrity of the building. Review the

rules annually to adjust for life changes in the association and changes in the law.

Use questionnaires to understand what's important to association members and to

uncover any community problems. It is a tool to help the current and future Board

in determining short and long term goals and action plans. As well, review your

association’s insurance policies and all contracts annually.

4. Homeowner: Stay up to date on changes in the law and your community. Do this

by reading and reply, if requested, or complying with notices and other written

material received from the Board. Participate in the running of your association

either as a committee or board member, it will keep you educated and your

understanding of what must occur for an association to run property will become

clear. Remember though, do so only if you will bring positive energy and the well

being of the whole with you.

© 2009 Law Offices of Sima L. Kirsch, PC

This article is not intended as advice. Please arrange your legal services through Sima L Kirsch, PC

sima@skirschlaw.com

Meetings are the glue, or not, that holds a loose group of individuals together as a cohesive unit.

Board, understand the proper mechanics of calling and holding a meeting. Creating a peaceful

and respectful business environment is at the core of a successful meeting. Establish rules of

conduct for meetings and adhere to them. Send out timely and proper notices that include the

agenda and any material information needed to understand the issues. Board demeanor and

speech are critical elements in creating this environment as well. If a meeting spins out of control

call a time out. If an owner or two won’t follow the rules, are threatening or rude instruct them to

leave and if all else fails, adjourn. Between meetings consider distributing a monthly newscast

even if there isn’t any news to report, that’s always good news!

WHAT ABOUT THE MEMBERS....

Too often association members become either complacent or combative when it has to do with

the business of running their association. They forget they elected a board of managers,

volunteers no less, to do the work most would not, usually because of the serious responsibility

and time that goes along with the position. More importantly they forget that it is these very

duties and obligations they then don’t want the board to perform either.

• Remember the board is undertaking a generally unwanted task and most of the time if

permitted will rise to the occasion of running an effective association and effective

meetings.

• Before engaging in any association matter, remember there are rules of etiquette to be

followed with any interchange. Respect your leaders so they can lead.

• Become educated about rules of corporate governance. Learn that an open meeting only

means anyone can be present, not that any one can speak or that it is an open agenda or

town hall meeting; it is not.

• Be prepared. If you expect the board to assist you with something, undertake the steps

required to bring a matter to the attention of the board the correct way. Don’t try to

ambush the board. Any time set aside before the formal start of a meeting or at the

conclusion of the meeting is wasted if used as a gripe session. If the board takes the time

to provide you an agenda and whatever you need to understand or review the topic(s) you

should read everything you are provided in anticipation of the meeting, be familiar with

your operating documents and constructively offer information, suggestions and support.

• Support a board motion to pay for board training in effective governance and best

practices.

An educated Association is a well run association.

© 2013 Law Offices of Sima L. Kirsch, PC

This article is not intended as advice. Please arrange your legal services through Sima L Kirsch, PC

sima@skirschlaw.com

Of course the board should be prepared, have an agenda, know what is

informational and what requires further detail, what items only need votes of

affirmation and which require discussion, then vote or possibly table until the

next meeting. Most articles examining the meeting process look through

member eyes to correct the ills du jour; what happens when we flip the lens

the other way?

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What  Went  Wrong:  Selecting  A  Professional  

and  the  Psychology  Behind   it  All  

 

 

 

 

 

 

  Who  are  you:  Know  yourself  

  communal   l i v ing/shar ing  money  

  your  home   i s  a  bus iness  

you  gave  up  certa in  r ights   to   l i ve   in  an  assoc ia t ion  env ironment  

smal l ,  medium  or   l a rge  condo/townhome  assoc iat ion  

smal l ,  medium  or   l a rge  homeowners  assoc iat ion  

i s   there  a  master  assoc ia t ion  

what   i s   the  property   type  

are  you  a  re lat ive ly  new  or  seasoned  assoc iat ion  

what   i s   the  personal i ty  of   the  assoc iat ion  

 

  Educate  yourself:    

when  a  board  understands   i t s  dut ies  and   the  nature  of  conf l i c ts   i t   i s  

better  prepared   to  ask   the  more    probat ive  quest ions  

understand   f iduc iary  duty:  duty  of  di l igence,   loya l ty  and  care    

    the  duty  you  owe   to   the  assoc iat ion  

    the  duty  each  of  your   team  owes   the  assoc ia t ion  

understand   the  nature  and  power  of  a  conf l i c t  of   interest  

  understand   the  duty  of   loya l ty  or  div ided   loyalt ies    

what   i s   the  re lat ionship  between  your  di f ferent  prov iders  or  how  

can   they  be  al leg iant   to  you  when   they  are  al leg iant   to  each  

other  

  understand   the  concept  of   independent   judgment  

understand  who   the  c l ient   i s ‐  not   the  owners ,  not   the  board  rather   the  

owners  col lect ive ly   through   the  assoc iat ion,  governed  by   the  

board  

every  one  of  your  re lated  profess ionals  wears  di f ferent  hats ,   f igure  out  

what   they  are  and   the i r  re lat ionship   to  your  goals  

TH E   CONCEP T S   YOU   FORGE T   TO   TH INK  ABOUT ,   TH E  H IDDEN  

I N FORMAT ION   YOU  MI S S  AND   TH E  QUE S T IONS   YOU   FORGE T   TO  ASK    

OR    

TH E   PROC E S S   TO   CR EAT ING   SA T I S F Y I NG   PRO F E S S I ONA L   PARTNER SH I P S  

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Assess  your  needs:  Assess  your  goals      based  on   the  s ize  and   type  of  assoc iat ion  

based  on   the  marching  orders   in  your  operat ing  documents  

based  on   the  spec i f i c  s i tuat ion  or  genera l  corporate  maintenance  

wil l ing  part ic ipat ion  of   the  owners  as  a  whole   in  genera l  and   i s sue  

spec i f ic  part ic ipat ion  

i s  what  you  are  doing   t ied   to  a   reasonable  purpose  of   the  assoc iat ion  

have  you  done  a  cost  benef i t  analys is  of  your  needs,   the  most  

product ive   tool   in  deve loping  successfu l   (atta inable )  goals  

 

  What  does  the  fee  have  to  do  with   i t  any  way?  

 

  What   is  a   ‘tract  record’  of  success?  

  reso lves  conf l i c t  amicably  

  fu l f i l l s  object ive ,  achieves  goa l  

  sets  expectat ions ,  meets  or  exceeds  expectat ions  

 

  What   is  a   ‘good  result’?  this   is  different  than  who   is  a  good  manager,  lawyer,  CPA,  etc  

 

  Management  Co  –  Attorney,  Attorney  –  Management  Co,    

the   two  most   important  players ,  who  comes   f i rs t  and  who  do  you   look  

to   for  what,  who  should  be  doing  what?  Managers  aren’t   t ra ined  or  

sk i l led  as  Attorneys  and  Attorneys  aren’ t   t ra ined  as  property  managers ,  

their  personal  business  r i sks  are  di f ferent  as  wel l    

 

  Personal  qualit ies  and  work  ethic  to   look  for:  

what   i s   their  process ,  wil l   they  c lear ly  set  

expectat ions  and   in form  you  of  what  you  need   to  hear  not  what  

you  want   to  hear  

wil l   they  keep   in   touch,  provide  regular  writ ten  correspondence,  

return ing  phone  ca l l s  and  keeping  a  c l ient  regular ly  updated  

wil l  you  get   that  extra  effort  or  none  at  a l l  

wil l  you  get  extra   in format ion  

do  you   fee l  you  wil l  be   t reated  with  respect  and  as  an  equal  partner  

wil l   the  profess ional  c lear ly  expla in   the  matters/  subject/area   to  help  

you  make  an   in formed  decis ion  based  on  a l l  of   the  poss ib le  

outcomes  and  al ternat ives   to  reaching  a  decis ion  

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i s   the  reputat ion  one  of   t imel iness  and  cont inui ty  

do   they  engender  conf idence  and   the   fee l ing   that   they  wil l  have  your  

back  or  not/are  you  a  person ‐ent i ty  or  a   f i le ‐cash  cow  

do   they  appear   to  be  confrontat ional  or  col laborat ive    

do   they  ask   the  r ight  quest ions ,  good   l i s tener  

wil l ing   to  be  a  sounding  board   for  genera l  concerns,  not   just  ava i lab le  

with in   the  parameters  of   the  profess ional ‐c l ient  re la t ionship  

 

  Tried  and  True:  

  fo l lowing  process    

pick ing  your  attorney  as   the   f i rs t   l ine  of  offense:  be  proact ive  not  

react ive  

pick ing  a  profess iona l   i sn ’ t   the  same  as  buy ing  a  car ,  where  you  can  get  

the  same  product  on   the  same   terms  and  condi t ions   f rom  one  

dealer   to   the  other ,   the  var iab les  aren’ t  equal  

an   independent  profess ional  wil l  always  g ive   the  best  and  safest  advice  

some  management  companies   tend   to  recommend  certa in   law   f i rms   to  

their  prospect ive  c l ients  and  current  c l ients  as  do  attorneys  with  

management  company  referra ls ,   f ind  out  who  they  are ‐   th is  

appl ies   to  al l  of  your  profess ional  partners  

don’t  a lways   le t   the  other  party  set   the  expectat ions,  

  set  your  expectat ions  and   they  wil l  be  met  

somet imes  a  profess ional   fa i l s  at   i t s   task  because   the  board  has   fa i led  

at   i t s   job  

don’t  ever  g ive  up  control ,  set  up  a  system  of  checks  and  balances  –  

when   the  cats  away   the  mice  wi l l  play ‐  and ‐  even   though  your  

powers  permit  you   to  delegate   to  profess ional  partners ,   they  do  

not  permit  you   to  g ive  up  your  overs ight  ro le  

penny  wise  –  pound   fool i sh:   fa i lure   to  head  off   i ssues  before  becoming  

problems  can  bankrupt   the  assoc ia t ion  and  cause  personal  

l iab i l i ty   for   the  board   for   fa i l ing   in   the i r   f iduc iary  duty  

boards  serve  without  compensat ion  and  genera l ly  without   thanks,  don’t  

cheap  out  on  a  good   team  of  profess ionals   that  wil l  help  you  keep  

a  wel l  run  home  and  bus iness  

 ©2012  Law  Off i ce  of  S ima  L  K i r sch  PC  Th is   i s  not   i n tended  as   l ega l  adv ice .   ta lk   to  a   l awyer   for   l ega l   i n format ion  s ima@skir sch law.com  

IS MY ASSOCIATION’S LAWYER A GOOD FIT FOR OUR COMMUNITY?

THE FOUR C’S OF HIRING AN ATTORNEY Hiring an attorney to represent your community is easy. Knowing if they are a good fit is not. One way to evaluate the attorney client relationship is to employ the four C’s test: Collaboration, Competence, Cost, and Compassion.

Collaboration Collaboration may be the single most important factor in determining whether or not a particular law office is right for your association. Each association is as unique as the members that comprise it and your attorney should understand the association’s procedure, current position, and vision for the future. Unless an attorney has collaborated with the board on these matters, it will not matter how competent, cost-effective, or compassionate they are. The attorney will not be able to fully represent your community and your legal services will be reactive and mechanical. Conversely, an attorney that communicates with a board on a regular basis can be proactive and creative. They can spot and resolve problems before they become potentially expensive litigation issues and help the community develop a plan to achieve their goals.

Competence

Competence is essential. Once an attorney understands where the community is, where they want to be, and an association’s procedures; they must possess the legal skills to bring about resolutions. Standard indicators of competence include: experience, expertise, percentage of the practice devoted to association law, number of attorneys concentrating on condominium law, referrals, and potential conflicts. While all these things are important, perhaps the best indicator of competence is whether or not the attorney actually does what they say they will do, when they say they will do it, and for the price they said they would do it for. Most attorneys are competent to provide basic association services (e.g corporate governance or collections). Yet not all attorneys are equipped to handle specific condominium issues (e.g. construction defects or association turnover). Take the time to decide what level of services your community needs. After a few months with your attorney, your board should be able to determine if their attorney is competent.

Cost In today’s economy cost is always a concern. Unfortunately, this is the most difficult factor to weigh. The hourly rate is the best place to start. All things being equal, an attorney that charges $150.00 an hour (Attorney A) is less expensive than the attorney that charges $300.00 an hour (Attorney B). However, if Attorney A bills five hours to complete the same task it takes Attorney B to complete in two hours, Attorney A is more expensive despite the fact the hourly rate is lower. Additional factors to consider are whether the law firm bills every minute, at what interval they bill, who is actually doing the legal work, if more than one person works on a document, to what extent support staff is used, and what is included in the general retainer. On this topic, the devil really is in the details. If the fee arrangement is overly complicated, there may be hidden costs. As with any contract do not sign anything you do not fully understand and do not be afraid to ask your attorney to explain their invoices.

Compassion An association’s attorney client relationship is typically an ongoing relationship. A board should feel comfortable with their attorney and the attorney should care about the community it represents. Strictly speaking, your lawyer doesn’t have to be compassionate, but if there is more than one collaborative, competent, and cost-effective attorney being considered by the board, why not choose the one you like working with and who you know will go the extra mile because they understand that at the end of the day, after courts have closed, the practice of law is really about helping people. * This article is not legal advice. As always, consult with a lawyer on specific association issues. By: Luke P. Hajzl, Esq. Of Counsel, Sima L. Kirsch, P.C.

HELP FOR THE HOA BOARD: BASICS FOR COMMITTEES

For any committee to be successful some basic steps should be followed.

� Identify the scope of authority that the committee has to act - are they allocated a budget, can they make decisions independently or do they make recommendations only to the board without authority to act?

� Clearly define the purpose and function of the committee so that they fulfill a specific need within the association.

� Detail the responsibilities and activities of the committee and its members.

� The composition/structure of the committee should identify how many members it should have, how they are appointed, the leadership and voting structure of the committee.

� Identify a timeline for tasks to be completed and the term of the committee's charter (especially for ad-hoc committees).

� State how many and what kinds of recommendations the committee is expected to deliver to the board; this may vary depending on the project.

� Clarify the board's expectations for reports and minutes to be provided to the board at regular intervals so as to ensure clear oversight and communications (OPERATING RULES).

� For continued success of committees in your group be sure to recognize the efforts of the volunteers. Set up a structure to do that. Maybe a volunteer recognition day.

� The board should be prepared to make decisions and act on recommendations brought to them by committees. (Think this through when establishing the committee and defining its purpose).

� Verify that insurance covers committee members in addition to board members for errors and omissions.

� Often overlooked or under-appreciated, committees are the basic building blocks of a healthy organization. Committee member involvement meets the board's goal of fostering a stronger organization in several ways. Aside from fulfilling a specific role in the functioning of the organization and addressing an identified need, the committee's contributions help the board to fulfill its policy-making role more efficiently by allowing board members to receive necessary input and different viewpoints, while remaining focused on their role of governance.

© 2010 Law Offices of Sima L. Kirsch, PC

This article is not intended as advice. Please arrange your legal services through Sima L Kirsch, PC

sima@skirschlaw.com

Shortage of Volunteers for Board Memorandum

To: From: Date: Re: Shortage of Volunteers for Board Issue: What action must the board of directors, a lone director, member or management, if any, of a not-for-profit corporation take when no one seeks election to the board of directors, leaving the corporation without a board to carry on its business? Short Answer: If the present board doesn’t want to stay and no one runs, you can refuse to accept their resignation until replacement or election. If no member is left and authority is granted to a manager to oversee operations, the manager can be a stop gap measure while they lobby to fill the spots. Members may also with the proper vote call a special meeting to hold an election. Any of these choices must find authority in the individual association’s operating documents. As part of your duties as a board you must inform the owners the consequences of no board and give them an opportunity to come forward. Every owner, whether or not they are willing to accept it, knows and understands the obligations they undertook when they purchased a condominium form of ownership. You are all volunteers and everyone needs to do their share. If no one steps up, a director or member of the condominium association can file a complaint for involuntary dissolution and appointment of receiver under section 112.5 of the General Not for Profit Corporation Act or alternatively file a complaint for appointment of a receiver under section 14.5 of the IL Condo Property Act or a custodian under section 112.55 of the General Not for Profit Corporation Act. Discussion: A Board facing the loss of willing volunteers to fill board positions will be unable to conduct business. An association that cannot conduct business must be turned over to a court-ordered receiver or custodian, generally at the election of the judge. Although dissolution is an option, a court would more than likely appoint a custodian or receiver, unless the association is, what is now covered under section 14.5 of the Act and referred to as, distressed condominium property. A custodian will be entitled to exercise all the powers of the corporation’s board of directors and officers to the extent necessary to manage the affairs of the corporation and the court will allow reasonable compensation to the custodian for services rendered. Members of the association (unit owners) will not have a say in the management of the association or compensation for the custodian set by the court. In the event a board cannot find willing unit owners to step up and join the board, it might be more worthwhile to hire a company to manage all aspects of running the association as an alternative to filing suit to appoint a custodian. The downside to all of this of course is that property management services or appointed custodians can be very expensive for small associations and remove all control from its members until unit owners willing to handle board governance step forward. It is also important to note that dissolution prevents the board from doing anything other than wrapping up, once the association is dissolved, its unit owners cannot engage in piece-meal management of the association’s affairs.

© 2012 Law Offices of Sima L Kirsch, PC

This form is not intended as advice. Please arrange your legal services through an attorney sima@skirschlaw.com

RESIDENTS________________________________________________________________

[Date]

TO: All Unit Owners of [Insert Name of Association]

FROM: Board of Directors

RE: Notice of 20__ Annual Meeting

As required by the governing documents, The Annual meeting for the Board election for your

Association will be held on [Day], [Month], 20___ at [am/pm] at the [Insert Location].

The success of any Association rests in the hands of the elected Board of Directors. The election of a

Board is the most important decision made by the Association membership. An association has a

fiduciary duty as imposed by case law and by statute, to seek out and retain qualified individuals to

maintain the building and to prudently manage association funds. If you obtain the following traits, you

should consider being part of the governance of your Association.

You have the ability to use prudent, sound business judgment.

You care about property values, resale and appreciation.

You are not afraid to make decisions.

You are not narrowly focused on a “single” issue.

You have the right temperament, experience and philosophy for business.

You are able to attend board meetings.

We would like to solicit candidates for the Board vacancies. If you wish to be a candidate for our

Condominium Association, please complete the Candidate Questionnaire and return it to [Insert Name],

no later than [Day], [Month] 20__. Your name will then appear on the ballot that will be used. The

owners will be electing ____ Board Members. To be eligible to serve on the Board, you must be an

owner of record. Our Board Meetings are held 4 times a year. A building of our size does not run by

itself. The Board needs your help to be successful. Your participation is vital to the success of your

Association.

© 2010 Law Offices of Sima L. Kirsch, PC

This form is not intended as advice. Please arrange your legal services through Sima L Kirsch, PC

sima@skirschlaw.com

1

The Chicagoland Cooperator

The Condo, HOA & Coop Monthly

Following the Golden Rule Drafting Rules and Making Them Stick By Keith Loria

September, 2012

Nothing stays the same forever. As community standards, attitudes and populations shift and evolve, rules and

regulations that once made sense or that reflected the views and standards of their day can become antiquated,

irrelevant, or just plain silly. Those changes often necessitate the amendment of existing ones—or the drafting

of new ones—to fit the new paradigm.

Criteria that a board should use when considering a new rule include its fairness to the entire membership, its

enforceability, and its ability to serve a purpose that will better the community. “The first thing a board needs to

do is ask themselves why are they doing this,” says attorney Sima L. Kirsch of Sima L. Kirsch PC in Chicago.

“What makes a good rule really turns on whether you should be

making the rule or not.”

A Good Rule

Andrea Sorgani, president of the Illinois chapter of the Community Associations Institute (CAI-IL) and owner of

Alma Property Management in Schaumburg, says that good rules should be “reasonable, objective, enforceable

and consistent.”

Fundamentally, a good rule is something that is fair and reasonable to all owners. It needs to be transparent with

no ulterior motive and is thought through.

“A fair rule is well-written so when you read it everyone can understand it and it doesn’t need further

interpretation,” says Ryan H. Shpritz, an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. “There’s

nothing worse than having a rule that owners can’t follow and understand.”

In Illinois, rules may not be in violation of the First Amendment of the Constitution, may not be against

the law and may not contradict what’s already in the bylaws.

“When a board does draft a rule, it should always have it looked at by an attorney for those three

purposes alone,” Shpritz says. “The reason behind that is enforcement. The worst thing that can happen

is you have a rule that needs to be enforced and you realize your policy is improper and unenforceable.

That knocks the feet right out of the board and their authority.”

The first thing that a board should do is determine if something should be a bylaw, amendment or rule,

and it’s important that they all reflect the laws of the building and that they make sense and are up to

date. It’s recommended that boards only change those rules that may contribute to the betterment of

the quality of life for the entire community.

“When you make the decision on having a rule, no rule or an amendment, you are already on the path

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to really starting a good rule, because half the battle that boards face is making those decisions,” Kirsch

says. “That’s how the rule will look at when it’s challenged—whether there was a strong purpose.”

A sound enforceable rule is one that is rationally based on a goal of protecting the rights of the residents

in the building. In addition, one must clearly think about the methods and procedures for enforcing a

rule or policy. Without a system of enforcement, the policy or rule is going to fail.

“Criteria beyond purpose is connecting to a permitted need, which goes to health, safety of owners’

occupants, structural integrity, fiscal stability and unit saleability,” Kirsch says. “Its application has to be

uniform, applied evenly (meaning you can’t have different classes) and an enforcement mechanism

that’s intended to generate cooperation.”

A Time for Change

Boards considering rule changes should consult their association attorney if they are not certain that

they have authority to pass such rules and if they are not certain how to word the rules to ensure that

they are reasonable.

“Most boards are adopting rules reactively, so they find a problem and realize there is no policy and

they adopt a rule so it applies moving forward,” Shpritz says. “I implore clients to look at all the rules

that are out there and make sure they are in place when you have a problem, as opposed to writing a

new one when the problem occurs.”

The process to change rules is dependent on what the community’s documents provide. Some

documents require membership approval before boards can pass certain rules or, in the most rare

circumstances, any rules.

An overwhelming majority of rules changes are done by a vote of the board and a majority is usually

enough for a change to happen.

A board contemplating a change or addition to the rules must first confirm that it has the authority to

do so under the governing documents. Sometimes boards are constrained by the governing documents

with regard to their rule-making authority while other community documents may give boards a very

wide berth when it comes to passing rules and regulations.

“Once the process of creating or updating rules has been completed, the manager has reviewed them

and the association’s attorney has reviewed and accepted them, a copy of the rules are made and given

to all owners of record with a cover letter stating the contents and that there will be a meeting held for

the purpose of adopting the rules,” Sorgani says. “The owners have the right to attend the meeting and

voice their concerns. Once an open forum has concluded, the board has the right to adopt the rules or

may decide to make a change.”

A No-Pet Policy?

Two rule changes that pop up quite a bit concern pets and smoking. Both are hot issues and many times

boards try to write rules about these items without following what their governing documents say.

A classic example of this is a board attempting to pass a no pet rule or a no leasing rule when the

governing documents are silent on those issues. The absence of such restrictions in the governing

documents have been interpreted by the courts as an implied right and any attempt to alter those rights

would have to be done via an amendment to the documents rather than via board rule alone.

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Other hot topics for rule changes include those dealing with smoking, disabilities and guests.

Mistakes & Blunders

Sometimes boards aren’t trained initially to understand or recognize the basic facts of creating rules

and they don’t know that owners don’t get the right to vote on rules and regulations.

One thing to keep in mind is that a rule will not be deemed reasonable if it has a disproportionate

impact on some of the community’s residents.

For example, some boards have passed rules not allowing for strollers to be placed under the stairs, but

if you’re in a building with a lot of families, this is going to cause an uprising. You need to know your

community.

“The biggest mistake boards make is not having your attorney review it and that can lead to liability

issues,” Shpritz says. “Another is to know the makeup of your building so if you have a laid-back

building, you don’t want 30 pages of strict rules to disrupt the building.”

Any changes to rules that impact unit use in a condominium must be preceded by 14-day advance

notice to the membership so that they may attend a board meeting.

“There should always be a meeting to discuss rules and the board has to decide depending on the

seriousness of the rule whether there should be a general meeting to just discuss and then go back and

think about it and tweak it and then come back for a meeting to vote them in,” Kirsch says. “They need

to give them the time they need according to the declaration—usually 30 days.”

Boards would also be well advised to gather membership input from its residents before passing a rule.

This doesn’t mean that the board must get their approval (unless the governing documents requires it as

discussed above) but it does mean that an elected board should be sensitive to the membership’s

desires.

“Another common mistake boards make is creating rules because they have an axe to grind,” Sorgani

says. “Making rules because of one owner who consistently does something that they should not, but it

is not stated in the rules.”

Enforcing the Rules

Another faux pas that boards make is that once rules are created, they fail to enforce them or only

enforce them selectively.

“Typically, once the rules are sent out the board adopts them as distributed. This is a very time consuming

process and very costly,” Sorgani says. “The board should take all steps to make certain they

have made rules which they intend on adopting.”

Also, don’t regulate just for the sake of regulating. If you are going to adopt a rule, use plain English and

clearly state what behavior is prohibited.

It’s important to establish your policies early on because it sets a tone for the entire community.

Remember, it’s easier to have rules in place to begin with rather than having to train people to learn the

You are here: ChicagoTribune.com>Collections

How to recruit (and retain) quality board members COMMUNITY LIVING

January 30, 2009 |By Pamela Dittmer McKuen, SPECIAL TO THE TRIBUNE

President Barack Obama's former seat in the U.S. Senate drew plenty of takers before

Roland Burris was appointed to fill it. But finding candidates to serve on the board for a

community association? That's another story.

"Not every community is lucky enough to have energetic and committed board members

who are eager to serve and work for the greater good of the association," said association

attorney Sima Kirsch of Chicago.

For some associations, filling vacant chairs is a downright struggle. The problem has gotten

worse since the economy took a landslide, said Christine Evans, regional vice president of

Associa management company in Schaumburg. "It affects those portions of a board member's job that were

the toughest to begin with," she said.

Among them are managing maintenance needs, now with less money; collecting

assessments from an increasing number of delinquent owners; and keeping up the

aesthetics of the property despite a greater number of empty, foreclosed homes, Evans said.

Some associations that were accustomed to professional management had to move to selfmanagement

to make ends meet, and that adds a tremendous workload on the board. "It

was never an easy job," she said. "Now it's much more difficult."

Another factor is that many owners buy into the myth of the maintenance-free lifestyle, and

they believe they don't have to pitch in, said Andrea Sorgani, president of Alma Property

Management Services Inc. in Schaumburg.

Kirsch cautions that the consequences of non-involvement can be severe. Associations by

design are run by boards of volunteers. Without them, the association doesn't have the

necessary quorum to make decisions and pass votes. If the problem lingers, the association

could be turned over to a court-appointed official to handle its affairs.

Kirsch and other association pros offer some suggestions for recruiting and retaining board

members:

Ask questions. Take a survey or hold a town hall meeting to learn what your residents are

interested in, then match them to the association's needs. That's how an association

managed by Kara Cermak, president of Rowell Inc. in Palatine, formed a new civic

committee to attend village board meetings and report back to the association.

Reinvent your meetings. Few owners who sit through a three-hour meeting riddled with

complaint and criticism will volunteer, said Evans. "Stick to a strict policy of 'if it's not about

the common elements, it's not on the agenda, and if it's not on the agenda, we aren't talking

about it,'" she said.

Hold quarterly meetings rather than monthly meetings, start on time and limit the duration

to an hour and a half, she said.

Remind attendees that board members are donating their time and effort to benefit the

association, said Brian White, executive director of the nonprofit Lakeside Community

Development Corp. in Chicago.

Say please. It's easy to discard an announcement in a newsletter or a general plea for help.

It's harder to refuse a personal request.

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__________________________________

A Boards: Keep Your Homeowner Association

Board from Bailing

December 2008

It's every board member's nightmare. The number of owners willing to serve on your board dwindles and

dwindles. Before you know it, your association has too-few board members to meet a quorum and no volunteers

willing to step up and take the vanishing board members' places.

Though that sounds far-fetched, it may become a reality at more associations if the nation's economic funk drags

on. As more homeowners lose their property to foreclosure, the pool of association volunteers shrinks. And if the

remaining owners feel stressed enough over their own financial well being, they may choose not to take on the

burden of dealing with the association's problems.

But you can lay the groundwork today to prevent that from happening at your association. Here's how.

Explain the Problem to Owners

If you're having trouble attracting people to serve on your board, explain to all the owners what happens when an

association lacks the volunteers to meet the quorum necessary for the board's actions to be valid. In that case, the

association may end up in receivership, overseen by a person hired to collect the assessments, operate the

association's necessary functions (like utilities), and pay the bills. Receivers typically don't work to build a

community or even administer the funds collected in the best interest of the community or in a manner that

enhances and preserves property values.

"Put together a letter to all owners explaining how the law operates," explains Sima L. Kirsch, a principal at the

Law Office of Sima L. Kirsch P.C. in Chicago. "The letter should say, 'We need three officers to operate the

board. If we can't do that, we'll go into receivership. If you don't want to have somebody else control our building,

you need to step up.' Or go door-to-door explaining the situation."

Cut the Fighting

The best way to avoid receivership is to never come close to it in the first place by always having a stable of new

recruits willing to fill open board positions. One way to achieve that goal is by running your association

professionally.

"You'll see fewer people stepping up to serve on association boards at associations that have a lot of rancor or

discord among board members," says Michael S. Hunter, an attorney and partner at Horack Talley in Charlotte,

N.C. "I've seen many a good director run off because of infighting. They say, 'Why do I need to put up with this?

I'm not even getting paid.'"

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Kirsch has also seen chaotic and tension-filled associations lose volunteers. "It happens when you have three-hour

meetings and allow bad behavior at meetings," she explains. "You need to run your association as a business.

Also, I recommend that boards call a once-a-year meeting to discuss appropriate neighborly behavior and have a

get-together so that owners can get to know each other."

Toot Your Own Horn

Another reason homeowners refuse to participate in association management is because they don't have a clue

what the board really does. "The most common complaint I hear from owners is, 'I don't know what my

association does. I send them a check and I don't see anything done with my money,'" explains Hunter. The

answer is to frequently explain to owners the services your association provides. "If the board communicates well

with the community, owners will see the good it's doing, and it will be easier to attract people," explains Hunter.

"The board needs to explain that all community residents do benefit from what the association does. It's

all about communication, communication, communication."

1

Creating Committees: REPRINT

The existence of volunteer committees to support a board of

directors can be essential to the success of a productive board and may also serve as the training

ground for new and future board members. The major function of such committees is to assist the

board by providing information gathered through research for a recommended course of action

for which the purpose, scope and authority must first be agreed upon. Sound simple? Read on.

Lead down the Garden Path

I am reminded of a story I was told by a frustrated member of a committee who now refuses to

participate on a board or committee. At a board meeting, the board was discussing the need for a

project. The president immediately asked for volunteers to establish the committee to come up

with the necessary plan for the board to implement.

A volunteer raised her hand and was appointed to chair the committee and gather the necessary

help she would need from other volunteers. During the course of the next month the committee

expended over 25 hours gathering the information and bids for the project. The final cost of the

project was to be twenty four thousand dollars; a prudent amount for the job in their estimation.

The committee members were excited to present their plan to the board at the upcoming meeting

for approval and implementation.

The night of the board meeting came and the chairperson stood up and verbally presented the

committee's proposal. Half way through her presentation she began to witness the horror on the

faces of the board members. The board president stopped her cold and announced, we only have

five thousand dollars available in our budget and we were only interested in something more

appropriate for our current situation. Needless to say, the committee chairperson and fellow

volunteers were quite upset as their hours of work were in vain and they stormed out of the board

2

meeting swearing they would never get involved again. The point

to this true story is to stress the importance of the board of directors setting the correct structure

for committees to perform effectively for the board.

Tips for Creating Committees

First and foremost, the board establishes the purpose of the committee as well as the parameters

with which the committee shall operate. For example to ascertain a written specification and bid

to present to the board of directors with a budget guideline for this project that shall not exceed

five thousand dollars and the committee is requested to present a qualified proposal in written

form within thirty days. Any contractor who is bidding on the work must be licensed, insured and

provide a warranty with a minimum of a ninety day time frame.

With this directive, the board has presented to the committee the three important guidelines:

purpose, scope, and authority. Once these criteria are met, the committees have a platform to

work from which will assure the focus that is necessary so the results will be effective for the

board of directors.

Another pitfall to avoid, which many presidents and boards experience, is when the board

chooses all of the members of the committee. It is usually more effective for the president or

board to appoint the committee chair and allow the chairperson to choose their volunteers. In this

manner, the committee has a better chance to be more productive and

to work together as opposed to becoming a committee saddled with participants who may

ultimately agree to disagree. The success of the committee itself is dependant upon the quality of

the leadership of the chairperson. It is the chairperson who sets the tone of committee meetings

and keeps the committee members informed of the progress. In addition, the chairperson must

ensure that the issues are thoroughly researched, all member ideas are considered, and any

controversial issues are resolved prior to presentation to the association board of directors.

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Presentation of Findings

The final requirement is for the committee to present its findings and recommendations in written

form to the board of directors. Of course a verbal presentation supplemented with the written

report is ideal, as board members will have an opportunity to study the written documentation,

possibly request additional information, and then be in a position to make the best educated

decisions for the community.

With the proper use of the committee structure, not only does a board receive the immediate

assistance of a support group to help with the current operations of an association, but it also lays

the groundwork for potential, more experienced, future board members with knowledge of how

the current board is structured. What better method to establish the training of future board

members than to have volunteers who have worked together, have successfully participated with

their ideas and plans being accepted by the current board, and who have seen their hard work

and results placed into action?

A committee with proper direction is a powerful support mechanism to an often over burdened

board of directors who will most certainly appreciate the added help. The results can be amazing

to behold! When a board has a strong committee structure, it can save the organization a wealth

of time. Instead of requiring that the board as a whole be an expert on every issue, directors can

delegate areas of research and responsibility to appropriate committees. During tenure as a

board member, one should expect to serve on at least one committee as well. This is a very

important responsibility. Committees do much of the legwork and much of the consensus building

that helps a board make good decisions. Remember: committees are time-savers. Board

members should not undermine their efforts by insisting on retracing whatever path the

committee members took to reach their decision!

Committee Reporting

To help ensure that the board will focus on the result of the committees' efforts (and not on the

process by which they reached their conclusion) consider using a basic committee report form.

Such a document is easily created and gives the board the information it needs to act on a

committee recommendation without a prolonged discussion of the committee's work. The

committee chairperson is usually charged with completing the report form and giving it to the

property manager, who then includes it with the agenda packet for the next board meeting. Board

members read the report, have the chance to ask any questions before the meeting, and are

ready to vote when the item comes up! What a way to spread the workload while accomplishing

more than ever!

In Harm's Way Managers and board members can expect hostility and threats as they serve their communities, but they can take steps to limit the violence and vitriol too.

By Mike Ramsey

Reprinted with permission from Common Ground TM

magazine, March/April 2013 Diana Weeck was no stranger to potential workplace violence when she and her husband ran a grocery store for nearly 30 years in a rough district of San Francisco. Yet nothing prepared her for some of the confrontations she's experienced as a community association manager. Over the past decade, a woman threatened to kill her over complaints about the family's dog. Another time, an irate owner stormed her office and threw an object at her. He had been ordered to take down a fence. "He was just a hothead, and he came in here screaming and yelling at me. I had to call the police," says Weeck, who oversees operations at Florin Estates, a 250-lot mobile home community in Sacramento, Calif. "I just can't believe how irate people get just by trying to enforce the CC&Rs. The worst part of it is that 99 percent of the people in this community are absolutely wonderful. It's just 1 percent." For the 1 percent of people who are not wonderful, she keeps pepper spray at her desk—just in case. In Honolulu, Suzanne Alawa managed a large homeowners association where tempers also were known to flare. Fortunately, she had in-house security and didn't have to go it alone. If she suspected trouble might materialize as she went about her duties, she posted an officer nearby. Alawa left the position unscathed—not counting vandalism to her car. "I listened to the hairs on the back of my neck. It was always better to be prepared for the worst and hope for the best," says Alawa, CMCA, LSM, PCAM. Managers and volunteer board members have always faced the mental stress that comes with trying to sort out conflicts and disputes with owners in common-interest developments. Unfortunately for some, the tension can take more serious and tangible forms, according to a CAI survey conducted this past fall. Twenty-eight percent of 1,300 respondents—managers, staff and board members—say they have been verbally threatened "several times" by a resident, while 23 percent say they've been threatened at least once. Forty-nine percent say they've never been threatened. Tellingly, most of the respondents say they have at least felt threatened by residents, even if words were not spoken. Nearly 5 percent say they feel threatened "frequently," while 29 percent say they feel threatened "occasionally." On the other side of the spectrum, 35 percent indicate they "rarely" feel threatened, while 31 percent say they never feel threatened. Portfolio manager Judy Moncovich, CMCA, AMS, PCAM, of Community Group Inc. in Virginia Beach, Va., has seen the other side of the coin: a board member threatening a resident. She recalls how a new association board president became livid during a covenants hearing when an owner stood his ground during a debate. "The board president started screaming and literally lunged over the table at the owner," recalls Moncovich. "He calmed down. We finished up the hearing. I turned to him and said, 'You will never do that again. If you do, I will walk out of here as your manager.'" Actual physical attacks on board members and managers are relatively rare, but they have happened to some, the CAI survey indicates. Nearly 10 percent of respondents say they've been physically assaulted (grabbed, slapped, punched, kicked, pushed or spat upon) by an angry resident, while another 3 percent say they were assaulted "several times."

The overwhelming majority of respondents, 87 percent, say they've never been attacked. But 20 percent say they know of a board member or former manager who has been physically attacked by a resident. Among the most likely triggers to set off emotions are issues involving parking, assessments, fines and delinquencies, according to the survey. Among the least likely factors: elections, pets, rules governing yard signs, landscaping and other restrictions. "I think it's still rare," Denver area attorney Loura Sanchez, a member of CAI's College of Community Association Lawyers (CCAL), says of threats and violence directed at leaders and professionals. "But if associations are seeing more of it, it's reflective of violence in our society. They're not immune to it." Louisville Tragedy Indeed not. The CAI survey results come in the wake of the fatal Sept. 6 shootings of two association board members in Louisville, Ky., by a disgruntled resident. Mahmoud Yousef Hindi allegedly shot David Merritt, 73, and Marvin Fisher, 69—Spring Creek Homeowners Association board members—after he became involved in a drawn-out dispute over a fence and driveway on the property of his adult children. The former physician opened fire during a board meeting that was being held at a local church. Audience members managed to subdue Hindi, who later offered detailed statements to police about why he felt compelled to shoot. "I was hoping that I could reason with them," Hindi was quoted by The Courier-Journal as saying in a videotaped interview with detectives. "But I said to myself, if they are not going to resolve peace with me, honestly, I had to kill them. So I took my gun." The death-row defendant has a history of mental illness, but published reports suggest there were no clear warning signs Hindi would erupt in such a violent way. A homeowner who declined to be interviewed said the association is managed by volunteers; other members and the association's attorney could not be reached for comment to discuss the case. The deaths, which have sent ripples of shock through the industry, have altered the professional landscape in Louisville, two CAI members there say. "It definitely makes you stop and think a little bit more," says Ben Adams, CMCA, site manager for Kentucky Realty Corp. "In this day and age, of course you see on the news all the time about shootings. But in our line of work, people do take their homes very seriously. You take those threats more seriously than before." His company has noticed a reluctance by churches to rent space to community associations following the shootings. If they are willing, the religious organizations are not scheduling church activities during the same blocks of time. Another Louisville management professional, Jeanette Pollett, CMCA, AMS, of Paragon Management Group, says a bank that previously rented space to one of her associations for $210 in 2012 quoted a price of $890 for the same number of meetings for 2013. "I think they don't want the meetings anymore," says Pollett. She adds: "You can't blame them. I've got one fire department in a suburban location that I've used. They said from now on they're going to screen who they let in and who they don't. They will pick and choose. Some associations will not be allowed to meet there, because they've met there before and they've gotten loud." Although by no means justifiable or explainable, the recent deaths in Louisville underscore the frequent disconnect between associations and owners and the volatility that can result, professionals say. "Unfortunately, our industry puts us at odds with homeowners who are in violation of an association's rules," says Adams.

Finding Solutions So, what can be done to stop flashpoints from occurring? There are no failsafe solutions, professionals agree, but they say being inclusive and giving residents a forum will go a long way in helping defuse many potential conflicts. "Have more meetings, not fewer, of the members," advises St. Louis attorney Marvin Nodiff, a CCAL member. "It doesn't have to be business meetings, it can be social activities. People will have more of a sense of belonging in the community. That's something that is low-tech, low-cost that can have a calming effect in the community and deter people from acting out." Unfortunately, managers and attorneys say, there may be no placating the most disturbed individuals who harbor grudges. There will always be the risk that a deranged or mentally ill person may try to find a way to exact his or her idea of revenge against association representatives. Some boards have long employed armed, uniformed off-duty police officers for meetings where controversy is expected. Not surprisingly, the use of officers has become more common in Louisville. Pollett says she recently hired an armed cop as members of a community association gathered to discuss and vote on a hotly debated amendment to ban rentals. "My instructions to the officer were to stand in the back of the room. If anyone starts getting loud or comes to their feet, walk up and stand next to (that person)," Pollett says. "I don't want anybody to be intimidated in either direction. That's my goal: Everybody gets to vote the way they want. And the policeman was there to make sure nobody got harassed or bullied." Of course, armed officers won't be around all the time at most associations. Experts say when an individual is identified as a potential safety threat, community associations should create a paper trail that can be used in future legal proceedings, if necessary. Sanchez, the Denver area attorney, has helped associations secure restraining orders against owners whose behavior has gone beyond the pale. That's no cure-all either, given that both parties could legitimately run into each other, she says. "When you're talking about managers, they still have to do their jobs," Sanchez says. "But oftentimes what they do is they make the owner—who is making the threats—at least a little more aware that it's escalated to a different level." Documenting alarming behavior can include sending correspondence to the association's attorney and—if the behavior is egregious enough—filing a report with police. Authorities, however, may not be willing to do much if no physical contact has been made, professionals concede. Alawa, the property manager in Hawaii, has employed a "Note to File" system in which she keeps written records of interactions with owners. Sometimes, she has e-mailed the board president and head of security if she felt someone crossed the line. "Over time, people find out that you mean what you say. But then again, you just never know," Alawa says. Her conflicts are fewer these days now that she manages an investment hotel in Honolulu for absentee owners. Things have slowed down, too, for Weeck, the mobile-home property manager in Sacramento. She says her years of experience have taught her how to de-escalate confrontations and be thick-skinned about insults. If all goes well, she'll retire in a few years. "I really do enjoy the people, who are great. And they depend on me a lot," she says. "Right now, it's quiet. It's been very quiet."

Mike Ramsey is a freelance writer in Chicago.

Concealed-Carry: Solution or Another Problem? As if the discussion about keeping managers and board members safe at community associations isn't perplexing enough, along comes the issue of "concealed-carry" laws. Most states allow licensed gun owners the opportunity to carry a firearm in a concealed fashion. A handful of states allow "open carry," meaning a licensed person can wear a firearm visibly. Civilians typically cannot wear guns in certain public settings, such as churches, schools and government buildings. Concealed-carry laws also may grant community associations the power to create gun-free zones in their private facilities, such as clubhouses, gyms and offices, by posting signs. Such is the case in Missouri. So far, however, St. Louis attorney Marvin Nodiff says, his association clients have not moved to impose restrictions in common areas. "It's been a quiet issue, but all it takes is one incident like the one that happened in Louisville where somebody takes a gun into a meeting," says Nodiff, a member of CAI's College of Community Association Lawyers (CCAL), referring to the fatal shootings of two association board members in Kentucky. "The bottom line is, if the association considers this to be important, then it's worth doing." There are potential headaches. Both Nodiff and Houston attorney Marc Markel, whose state also has concealed-carry statues, say creating a rule brings an obligation for an association to enforce it. And Markel, a CCAL member, suggests an owner who is attacked in a gun-free zone could try to hold an association liable for making him or her vulnerable. Meanwhile, concealed-carry statutes theoretically give board members and managers the ability to carry concealed guns if they feel it's necessary for their safety. Nodiff and Markel say they aren't aware of any controversies at the associations they represent. Says Markel: "Most people who carry (guns) don't advertise the fact that they do." —M.R.

At Risk The Sept. 6 shooting of two community association board members in Louisville, Ky., wasn't the first time resident aggression turned deadly. Rita Hohmeier, the board secretary at Willows Condominiums in Franklin Park, Ill., was shot and killed in July 2004 by Zdzislaw Kuchlewski after he was evicted for owing more than $4,000 in overdue assessments and fees. A few years earlier, on April 19, 2000, Richard Glassel interrupted the Ventana Lakes Property Owners Association board meeting in Peoria, Ariz., and shot and killed two members. Glassel, who frequently battled with the association over landscaping, died in prison from apparent natural causes in January. While these deadly incidents are rare, a CAI survey this past fall showed association representatives are at risk and have been victims of physical and verbal assaults. As the results illustrate, a majority of the 1,300 board members, managers and association staff who responded have at least felt threatened, even if there was no overt threat. Have you ever been physically assaulted (e.g., grabbed, slapped, punched, kicked, pushed, spat upon) by an angry resident?

Never 87%

Once 10%

Several times 3%

Have you ever been verbally threatened with physical violence by a resident?

Never 49%

Once 23%

Several times 28%

Are you aware of a board member or former manager in your community who was physically assaulted in the past by a resident?

Yes 20%

No 80%

How often do you feel threatened by residents, even if there is no overt threat?

Never 31%

Rarely 35%

Occasionally 29%

Frequently 5%

Manager and board member survey respondents also shared some personal comments and opinions on the issue of violence related to the governance and management of community associations. Truly Frightening It is truly frightening to look into the eyes of someone who is so very angry that he or she wants to do you physical harm. Thank goodness it has only happened a few times in my 30+ year career. Getting yelled at and being called names happens all too often. —Kathryn C. Danella, CMCA, LSM, PCAM, Boca Pointe Community Association, Boca Raton, Fla., CAI President 2012 Respect Key While the threat of violence is always present, I refuse to be intimidated by anyone. The key is to communicate openly and honestly while being diplomatic and treating everyone—no matter how much they push your buttons—with the same respect and dignity with which I expect to be treated. —Tonya D. Entzi-Martin, CMCA, AMS, Classic Property Management, Arlington, Texas

Increasing Animosity We already have a difficult time finding volunteer leaders to serve on the board. I fear that increasing animosity toward leaders will leave our association either ungoverned, inadequately governed or governed by people with less than honorable intentions. —Paulla Weinberg, Regency Park Homeowners Association, Merrillville, Ind.

Bullied by Members As a former police officer and federal special agent, I have the training and background to deal with workplace violence. However, many of our volunteers do not. They are bullied and threatened by members who do not get their way. —John Moore, Clearwood Community Association, Yelm, Wash.

Undercover Officer Over a period of 25 years, I have had an undercover officer attend board meetings three times for protection against angry owners. I interviewed for a general manager position in Arizona some years ago and did not take the job. Several years later, an angry owner killed several members of that board. —George J. Einfeldt, LSM, PCAM, East Highlands Ranch Homeowners Association, Highland, Calif.

© Community Associations Institute. The above article is reprinted with permission from Common Ground™ magazine, published by Community Associations Institute. Further reproduction and distribution is prohibited without written consent. Go to www.caionline.org for more information.