Kelly,

Our board hired a landscape architect to give a proposal on redoing our entrance area. The proposal includes replacing original asphalt with pavers and installing or extending planters plus redoing all the plants. The cost will be over $90,000. I told our board that according to our CC&R’s it takes a majority vote by the membership if any new project exceeds 5% of our operating budget (budget is $255,000).

I was told that the law firm we have on a retainer said this would not be considered a new project. I asked for a copy of the lawyer’s letter and they denied my request. Can the board legally deny me from seeing the lawyer’s opinion? Our board is thinking about awarding the contract for doing the work without a membership vote.

Thanking you in advance,

B.B., Huntington Beach

Dear. B.B.,

Many HOAs have CC&Rs which ban boards from authorizing “capital improvement” projects costing more than 5% of the annual budget, unless there is a membership approval vote. The question here is not the expense amount, but whether it is “capital” or replacement. I assume your HOA’s lawyer decided it was an upgrade, not a capital improvement.

The HOA can indeed keep the attorney letter confidential. However, if the opinion guides and benefits the entire community and if there is no harm in doing so, a board might choose to disclose it.

How is the HOA funding this expense? There might be a membership vote on the special assessment that could be necessary to fund the work.

It is a good idea to hold “town hall” meetings to discuss major projects with the members. While not a legal requirement, it can help the community to understand and support the board’s action.

Best,
Kelly

Dear Kelly,

We received a letter from the property management regarding the spa on our patio, saying there is no request on file for installation of the spa and we need to complete the proper paperwork to get approval from the Architectural Review Committee. It was installed at least 13 years ago by the previous owner. 

Do we fall under some sort of “grandfathering” or has enough years gone by that we do not have to comply with their request? Our management does monthly inspections, and the current company has been with this community for over 6 years. I find it interesting that now, after 13 years, they are asking for paperwork.

Thanks for your help,

S.S., Aliso Viejo

Dear S.S.,

Hard to say why it took so long for your HOA to notice the apparently unauthorized spa, but it is good for everyone to get ambiguous situations resolved. Don’t assume the HOA is going to reject your spa. Established court precedent requires the HOA to ask you to retroactively apply for approval of the spa before the HOA decides what to do. If it otherwise complies, presumably the HOA will approve it, and that will be that.

Due to the longstanding nature of the questioned spa, it is possible that you could argue that it is too late for the HOA to demand its removal. But why not be a good neighbor, fill out the paperwork, and give your A.R.C. the opportunity to retroactively approve your spa? Getting it documented is a good thing. There may be no fight here.

Thanks,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Principal of Richardson|Ober PC.

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