Condo Media - October 2016 - 23

Some HOA documents reference
the Superlien statute, but most do not,
leaving these associations without the
powerful collection tool that the law
provides to condo associations. Because
HOA budgets and the fees they collect
are typically much smaller than those of
condo associations, delinquencies may
not create the same ﬁnancial risk for
them. Still, the lack of statutory authority on which to rely leaves HOAs not
only with less collection power but also
with less overall enforcement ﬁrepower
than condo associations can muster.
Their smaller budgets can also limit
the enforcement abilities of HOAs.
The owner in one HOA we represent
erected a fence without obtaining the
required approval from the association. The board determined that the
fence did not meet the community's
architectural standards and ordered
the owner to remove it. The owner refused. A condo board probably would
have ﬁled suit to enforce the association's rules and recover legal expenses
incurred; the HOA board, with limited
resources and without the ability to
recover its legal expenses, decided it
couldn't afford to do so.

ity that is "extrapolated" rather than
derived from governing documents or
statutes is going to be more vulnerable to challenge.
DEED RESTRICTIONS: NOW YOU
SEE THEM, NOW YOU DON'T
HOA deed restrictions typically expire
after a speciﬁed period, sometimes
with an option to extend them. This is
another area where the lack of detail
in the governing documents can be
problematic. Sometimes the extension
is automatic; sometimes it requires the
approval of a speciﬁed percentage of

owners; and sometimes the documents
are silent on how, if at all, expiring
restrictions can be extended, in which
case owners would have to amend
their existing declaration or create a
new one. But some HOA documents
don't establish an amendment process
either. In these communities, changing
the declaration or replacing it can be
challenging.
Even if the covenants expire, the
HOA would not necessarily cease to
exist. When the deed restrictions expired at one community we represented, a court ruled that the association

WHAT'S IN THE DOCUMENTS?
HOAs, as noted earlier, derive their
authority entirely from their declaration. But some declarations are more
detailed than others and many aren't
detailed at all, failing in some cases
even to create a board of directors
responsible for setting and collecting
fees, enforcing covenants and deed
restrictions, and overseeing maintenance of common elements.
In the absence of a governing
board, owners would have to enforce association rules individually
against their neighbors. Or, they
could assume that the existence of
the deed restrictions or declaration
implies the authority to create an
HOA with a governing board, even if
the declaration doesn't call for one.
This is what I would advise, but it
can be a little like building a house
on sand rather than cement. AuthorOctober 2016

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Condo Media - October 2016

Table of Contents for the Digital Edition of Condo Media - October 2016