William-Douglas

Going Above & Beyond

Usually when the term “Going Above and Beyond” is used, it is being used in a positive and complementary way to apply to someone who has exceeded themselves in helping someone else.  Unfortunately, “Going Above and Beyond” within the framework of an association’s governing documents is rarely a positive affirmation.  From exceeding maintenance responsibilities to becoming entangled in personality conflicts between neighbors, “Going Above and Beyond” what the governing documents specify can be treacherous ground to say the least.

When going above and beyond situations arise, it is usually a result of the Board of Directors trying to help resolve a situation in good faith.  When these situations arise, rarely does everyone realize at the onset the ramifications of exceeding what the governing documents specify.

The Declarations of Covenants are usually the association governing documents that are exceeded or, more preciously, where scope and authority are exceeded.  The Declaration of Covenants also known as Covenants, Conditions and Restrictions and commonly called “CC&Rs”, are written regulations, limitations and restrictions on use, mutually agreed to by all owners of homes in a subdivision or condominium complex.  CC&Rs may limit size and placement of homes, exterior colors, pets, ages of residents, use of barbecues and other conduct to protect the quiet enjoyment of the various residents.  CC&Rs are enforced by the homeowners association or by individual owners who can bring lawsuits against violators, and are permanent and “run with the land” so future owners are bound to the same rules.  Both North Carolina and South Carolina require that a copy of the CC&Rs be legally recorded with the county register of deeds and be provided to any prospective purchaser.

Because the CC&Rs are legally binding to the association and to the individual homeowner, they specify what each party’s legal obligation are.  Legal action can be brought against the board of directors or against the individual association member for failing to address issues that are their responsibility. Vise versa, each party can also be subject to legal action for exceeding what they are responsible for.  It is also worth noting that a third party such as another member of the association can instigate legal action against the association or another individual association member for failing to act or exceeding the authority as provided for in the governing documents.

There are two examples we are going to reference in this article as going above and beyond: exceeding maintenance responsibilities  and becoming involved in personal disputes between neighbors.

Maintenance may seem like a clear-cut aspect of a board of directors decision making process because this subject is usually covered in some detail in the governing documents, but maintenance can be a slippery slope.

For example, there is an erosion issue from storm water running off an association owned street and it crosses a member’s property.  Is the association responsible for fixing the water runoff issue? Is the association responsible for the damage to the individual’s land? What if the water runoff damaged the foundation of the home? Who pays for the repairs?  One thing is for certain, if you fix these items without being required to by the governing documents, be prepared to fix similar problems on other members’ property.  This often comes up in condominium associations. For example, there is a roof leak and a piece of furniture is damaged and, per the CC&Rs, the association is only required to repair the roof leak and paint the interior wall to remove the water stains.  If the board of directors elects to compensate the owner for the damaged furniture because they feel that paying for the damaged furniture is a marginal expense,  what does the Board of Directors do when an expensive piece of artwork is damaged by a roof leak in someone else’s condominium in the future?

Another common issue that boards of directors get entangled with is personal conflicts between neighbors.  The overwhelming majority of people who decide to serve on their association’s board are geared towards helping their association and the membership.  Most board members who get involved in resolving personal issues are truly trying to help in a difficult situation.  But in almost all cases this board member is drawn into a personal squabble and both disputing neighbors end up being angry at the board member who was trying to help resolve the matter.  These disputing neighbors usually want the board member to just take their side and when that does not happen they assume the board member is siding with the other neighbor.

Our standard recommendation is to offer the name of a third party mediator to both disputing neighbors with the hope that a trained mediator can broker a peace between the two parties.  Interestingly enough, in our company’s 30 plus year history, we have only had two instances where disputing neighbors follow this mediation recommendation; with such a low number seeking resolution through this method, it truly demonstrates the difficulty in becoming involved in personality conflicts between neighbors.  When disputing neighbors want the board to become involved in the fight, we always look for a foundation in the association’s governing documents to justify the involvement.  In the vast majority of situations that arise, there is no such foundation to support the board of directors taking any action.

In closing, unless the governing documents specify that an issue is the association’s responsibility it is generally safe to assume it is not.  There are a few exceptions to this rule and these exceptions are state statutes that may require the association to address a particular issue.  But for the great majority of issues not addressed in the governing documents, always tread lightly, if at all.     WDMC

 

Copyright – William Douglas Management, Inc. 2016