Don’t Lose Board’s Authority
You may think that if something needs to be done in the community you manage, you have some leeway in how to tell members. After all, if repairs are truly necessary, does it matter how this is announced? The answer is yes. You should follow the declaration precisely in this situation, in order to preserve the board's authority.
For example, say that the board of directors of the association has determined that it needs to make extensive repairs in the community. You inform members that this will be paid for through a special assessment. But one member asserts that this isn’t valid because the board didn’t announce it as required by the declaration. He and some others refuse to pay. But the repairs are badly needed.
Remember before making any announcements for special assessments—and in general—you need to comply with the declaration; otherwise, members don’t necessarily have to heed them. That’s why it’s crucial to follow the requirements in your community’s declaration when making announcements. A recent New York case highlights how things can go wrong when you don’t.
There, an association set the cost of annual assessment fees and then, to pay for roof repairs to certain residential units, also imposed a special assessment to be paid in specified increments. A member asked a trial court for a declaratory judgment stating that the imposition of this special assessment violated the declaration and bylaws of the community. Specifically, he said that the fees must be fixed at least 30 days in advance of each annual assessment period and, consequently, the association was without authority to impose the special assessment because the announcement had been late. The association asked the court to dismiss the case.
Instead, the court agreed with the member that the announcement hadn’t been made in time, and, therefore, the board didn’t have the authority to impose the assessment. It ruled in favor of the member.
The association appealed. It argued that the court had incorrectly interpreted the section of the declaration that mentioned the 30-day rule. An appeals court agreed. It determined that the portion of the declaration at issue was ambiguous. The appeals court said that the ambiguity made it difficult to tell whether the 30-day rule in the section applies to special assessments such as the roof repairs, or, more specifically, whether a special assessment must be included in the amount of annual assessments fixed by the board at least 30 days in advance of each annual assessment period. According to the appeals court, the language used “lacks a definite and precise meaning, and there exists a reasonable basis for differing opinions.” The appeals court sent the case back for further proceedings [St. Denis v. Queensbury Baybridge Homeowners Assoc. Inc., July 2014].