FREQUENTLY ASKED QUESTIONS

Each homeowner’s association decision must adhere to the following standards:

• It must be within the scope of the association’s authority under the governing documents and the law;
• It must be based upon a reasonable investigation;
• It must be intended to serve the best interests of the association and the owners as a group;
• It must be made in good faith; and
• It must be reasonable considering the information available at the time the decision is made.

Additional standards may apply for specific types of decisions such as owner discipline or alteration approvals. Where the association has formally established policies or procedures, they must be uniformly applied and followed. But the fact that the association has permitted or approved a certain activity or alteration by a particular owner at one time does not mean that the association must permit or approve that same activity by the same or a different owner at a later time. In evaluating an association decision for compliance with these standards, the courts will defer to the board’s authority and presumed expertise.

The owner should begin by attempting to discuss the matter with the president, a director, committee chair or property manager. If this attempt does not yield satisfactory results, the owner should attend a board meeting or call an owner meeting to discuss the problem with the other owners. If the owner wishes to pursue the matter further, he/she should consult an attorney.

In general, the owners cannot override a board, committee, officer or manager decision. If the owners are unhappy with a board decision, they can convene a meeting, vote to remove one or more directors, and hope the replacement directors make a more satisfactory decision. If the owners are unhappy with a committee, officer, or manager decision, they can attempt to convince the board to overrule it or, if that does not work, vote to change the board. Alternatively, one or more owner could challenge any board, committee, officer or manager decision through litigation or arbitration on the basis that the decision was not reasonable, made in good faith, and/or in compliance with formally established policies or procedures. One notable exception to the general rule is that, in some circumstances, an owner may be authorized to convene a meeting and overturn a new Rule enacted by the board.

The first step in homeowner association decision making is determining whether the course of action under consideration would be reasonable and in the best interests of all owners. If this question can be answered affirmatively, the next step is to review the governing documents with the following questions in mind:

• Is a particular action or decision required under the governing documents and/or the law?
• Is a particular procedure for making the decision required under the governing documents and/or the law?
• Does the decision under consideration require an owner vote?

Questionable action should be reviewed by an attorney. If the action could have a significant impact on one or more owners, it is wise to get a written opinion of counsel before acting upon which the board can rely in the event of a legal challenge. A legal opinion may protect the board from liability for an erroneous decision by allowing it to assert reasonable reliance on the advice of counsel as a defense. But remember that the failure of an association to follow the advice of counsel or its own internal decision-making procedures will make inappropriate action vulnerable to a legal challenge.