HOA has broad authority on community-access rules

Question: I live in a gated community with access to the Intracoastal Waterway. I have a boat behind my house. I employ a young man as a fishing mate. This individual works only on my boat. Our POA insists that, since he is paid a wage, he should be considered a vendor or a contractor. As a friend, the mate can have 24/7 access to my boat (which I need), but as a vendor or contractor, he cannot be put on my permanent gate list. Is my HOA overstepping its authority? — H.K.

Answer: While the rule you describe is unusually restrictive, overall I would prefer to be on the association’s side if this issue were ever litigated. As you may recall from previous columns, rules and regulations promulgated by a board of directors are judged on a reasonableness standard. Typically, in order to prove that a rule is reasonable, the board must demonstrate that the rule is intended to address an actual issue or problem experienced by the community — not something speculative. However, the association has a general responsibility to protect the common property and to ensure that unauthorized people are not allowed into the community, and vendors do tend to pose significantly greater security issues than friends and relatives — they often solicit other owners while they are in the community, and people regularly forget to remove vendors from their permanent lists even after they have fired those vendors. My gut feeling is that, if this issue were ever considered by a judge, the rule would be upheld.

Frankly, I think you have become a victim to your honesty. Most people would have lied and called the person a friend, and not bothered to explain the financial relationship to the association. It’s a shame that the association can’t figure out a way to accommodate you on this issue. Have you tried reaching out to the board directly? If you have only communicated with management I suggest that you attend the next board meeting and try to address the board on the issue. If possible, you can also bring some supportive neighbors with you to influence the board.

Q: I am a director on our condominium’s board. Our community consists of 237 units, probably 60-70 percent of which are rentals. I am writing for suggestions on how to get people to serve on the board. Our present board members are mostly older residents who serve again and again, and they want or need to stop serving. And of course, with so many residents who are renters and cannot serve, we have a real problem. Add to that the fact that many otherwise eligible residents aren’t bilingual, and that’s another factor that severely limits the eligible pool of candidates. With so many condos in this state (and other states as well), perhaps it’s time to change the laws for condo board directors? Maybe it’s time to compensate members of the boards. Any other suggestions? — C.S.

A: Over the past several years, the majority of changes to the Condominium Act on this issue have been intended to address the problem of board members overstaying their welcome. But, my experience is that communities where too few people are interested in serving on the board are just as common. Unfortunately, I don’t think offering to pay directors is a solution. The type of people you would want to serve on the board are not going to be motivated by money, and you are unlikely to be able to pay enough to compensate prospective directors for the significant impositions on their lives that the job entails. One solution would be to amend your bylaws to provide that any person can serve on the board, including non-owner residents. There is no law stating that board members must be owners — any such restriction would only be found in your bylaws or articles of incorporation, and either document could be amended to expand board service to any person who resides in the community, or even to any person, regardless of their connection to the association. You can balance this out by requiring that certain officers, such as the president or the treasurer, must be owners, but you are in a community where the renters are likely to have a greater overall concern for the operation of the community than the investor-owners. While amending the governing documents is a time-consuming project, it is far from impossible to achieve, and in the situation you describe it is worth the effort.

Ryan Poliakoff is a co-author of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living” and a partner at Backer Aboud Poliakoff & Foelster LLP. Email questions to condocolumn@gmail.com. Please include your hometown.

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