WAIVING LATE
FEES
Q.
Our board of directors recently waived a late fee for a board
member because "she puts in so much free time." Other members
of the association are required to pay a late fee whenever they
pay late, without exception. What are your comments?
A.
I strongly recommend that the board cease the policy of waiving
late fees for this or any other board member because such a policy
creates a legal defense for other members of the association who
pay late fees and get fined. If the board ignores my advice, at
the very minimum, the board member who is receiving the special
benefit should be recused from voting on such a waiver. Lastly,
the receipt of such a benefit may have the legal effect of eliminating
the board member's statutory protection because it can be argued
that volunteers do not receive compensation, and that the waiver
of a fee is in fact compensation. In short, it's asking for trouble
to make exceptions such as the one described. Top
REASONABLE
ACCOMODATIONS REQUIRED
Q.
I am an elderly member of a condominium association and have trouble
walking. My parking space is located quite far from my home which
makes it very difficult for me, especially if I have to carry
packages. There is a guest parking space next to my home. I have
asked the board to allow me to use the space, but they have refused
on the basis that it is to be used only for guests. Is there anything
I can legally do?
A.
Yes. The Federal Fair Housing Act (FHAA) ensures an equal opportunity
for use of property by handicapped persons. To create an equal
opportunity for use of property by handicapped persons, homeowner
associations are required by law to make exceptions in the application
and enforcement of rules, policies and procedures, including CC&Rs,
to reasonably accommodate such persons.
The failure of a board
of directors to provide reasonable accommodations to handicapped
persons, when requested or needed, is considered a discriminatory
act under the FHAA.
It would be reasonable
for the board to assign the guest space to you. However, there
may be other reasonable options available as well. Top
OBSOLETE
RESTRICTIVE COVENANTS
Q.
We live in a home located in a subdivision created in the 1940's.
The CC&Rs include restrictions against selling to certain
persons based on their religion. We know the restriction is unenforceable.
Can we ignore it, or are we required to take some other action?
A.
In 1948 this type of restriction became unenforceable. Until the
end of 1999, no action was required. However, beginning January
1, 2000, a new law required that any CC&Rs or other governing
documents that include a restrictive covenant in violation of
the law must be amended, by action of the board of directors,
to repeal such language. Further, any person may bring an action
against the association for injunctive relief to require it to
remove such a provision. In addition, a court may award attorney's
fees to the prevailing party in such an action.
The law also provided that
after January 1, 2001, the existence of such a restrictive covenant
constitutes prohibited discrimination, regardless of whether the
covenant is accompanied by a statement that it is repealed or
void.
RULES CONCERNING
CHILDREN
Q.
Our homeowner association would like to adopt a rule prohibiting
children from playing in the common area streets. The purpose
of the rule would be to minimize the risk that a child will be
injured. Can we legally adopt the proposed rule?
A.
Assuming your association's governing documents do not prohibit
the adoption of such a rule, your board of directors can adopt
a rule that prohibits all people (not only children) from specified
activities on defined portions of the common area of your association.
By applying the rule to all persons, your board of directors will
probably avoid the claim that your association is discriminating
against children or families with children. Top
