Posts Tagged ‘Statute’

Governor Otter Signs Idaho’s HOA Fine Bill Into Law

March 20, 2014

Yesterday, Governor Otter signed SB 1310 into law.
003blue_sm

The law will take effect this July as Idaho Code Title 55, Section 115 (I.C. 55-115).
A brief legislative history of the bill is available here.

However, it is interesting to see how quickly a bad experience of one homeowner can result in a new law if the conditions are right.

Here is a timeline of events a little more thorough than the legislative history.

August 2013, according to Senator Rice’s testimony before the House, an owner in Caldwell, Idaho has a lawn that went yellow. She made some effort to fix the problem, but still got fined.

On Monday, November 4, 2013, Senator Rice posts on his blog that he had “been receiving complaints about homeowner associations and specifically management companies abusing homeowner associations in subdivisions.” He asks for comments/input from the community.

Up until February 2 , 2014, Senator Rice meets with constituents and the National Association of Realtors working on his Bill.

When it was ready for the Idaho Senate, Senator Rice includes the following statement of purpose:

RS22743C1
Currently Home Owners Associations enforce covenants and restrictions in subdivisions by fining
individual home owners for violations of such covenants and restrictions. Frequently, these fines
are levied despite home owner attempts to comply with the covenants, and without any process
other than a letter informing the home owner that they will be fined. The fines are then enforced
through liens on the home owners real property. This bill puts reasonable requirements in place
that protect the home owner from arbitrary and capricious actions by the home owners association
and provides a set of standards that courts can use if there is a dispute regarding the validity of the
fine in a subsequent lien foreclosure action.

On February 7, 2014, Senator Rice’s Bill is presented to the Senate Commerce and Human Resources Committee. It passes easily.

On February 27, 2014, Senator’s Rice Bill passes on the floor of the Senate with a unanimous vote.

Local media is supportive of the bill.
Capture
A poll of newspaper web readers in Idaho shows a 60-40 split on whether HOA’s add value to property. I like comments made by a local board member.

CaptureHR
March 7, 2014, the House Commerce and Human Resources Committee reads and passes the bill on to the House floor.

March 12, 2014, the Bill passes on the house floor.
1310 Vote

March 19, 2014, Governor Otter signs the bill.

Now the clock is just ticking until the law goes into effect as our new Idaho Code S. 55-115. That leaves just over three months for all of Idaho’s HOAs to get their fines into compliance before the law is effective. I’m sure we’ll be busy here at VF Law with our HOA clients. We had a good turnout at today’s lunch among managers interested in discussing the law, and next week Vial Fotheringham Boise is hosting a free training for Board members (Thursday 7 pm) at our office. Drop by if you’d like.

Event Details are here

Fifth Annual HOA Forum a Hit

March 10, 2014

Saturday morning we hosted Vial Fotheringham’s fifth annual Spring Forum here in Boise. We’ve been doing these every year since we opened the office here. This year we had the most attendance ever: about ninety participants, I think. It was a good time. We had a lot of questions come up about SB 1310. We also discussed governing documents, managing HOA money, maintaining common area and common property, construction defects, vendor contracts, keeping common area secure, and document retention policies.

The firm will have slides available, and if you are looking for information for next year, it is easy to get on Vial’s email invitation list. Check here: http://www.vf-law.com/events/idaho for information about our free monthly training meetings, our Idaho binders, or about next year’s forum.

Capture

I suspect we will be doing quite a bit of education work about the new fine law once SB 1310 becomes Idaho Code Section 55-115. Next week, we will be hosting some training sessions for managers and owners to get ready.

New Mexico Gets HOA Reform

June 11, 2013

New Mexico recently adopted an act to govern some basic homeowner association functions. The Act  goes into effect on July 1, 2013.

New Mexico Capitol

New Mexico Capitol

I have not reviewed the Act in depth, and I am not very familiar with the law of New Mexico. However, it appears that the Act addresses a number of concerns local to New Mexico, for instance relating to water shortages. The Act was adopted in addition to a condominium act. The topics addressed in the Act’s title are a good measure of what is covered:
PROVIDING FOR THE FORMATION AND MANAGEMENT OF PLANNED
COMMUNITIES;
REQUIRING NOTICE AND OPEN MEETINGS;
PROVIDING FOR DISCLOSURE OF RECORDS;
ALLOWING AUDITS;
PROVIDING FOR ATTORNEY FEES;
REQUIRING DISCLOSURE OF HOMEOWNER ASSOCIATION INFORMATION TO PURCHASERS;
LIMITING RESTRICTIONS ON THE INSTALLATION OR USE OF SOLAR COLLECTORS AND WATER CONSERVATION MEASURES.

A number of these provisions would be very helpful in Idaho, where we have little clear law addressing homeowner rights, association obligations, or water conservation.  However, the New Mexico statute language seems very much focused on establishing homeowner rights at the expense of all of the other interested parties.  For instance, the law “providing for attorney fees” simply broadens attorney fee provisions to always award attorney fees to the prevailing party if the declaration provides attorney fees to any party.  It would have been more helpful to HOAs, in my mind, to establish a broad right to attorney fees for enforcing HOA rights found in any declaration.  These fees are often what keep homeowners from being able to enforce declaration provisions at all.

 

Good local commentary is found here:  http://www.abqjournal.com/main/208656/biz/new-law-affects-homeowner-associations.html

The Act text is here: http://www.nmlegis.gov/lcs/handouts/ERD%20-%20Homeowner%20Association%20Act.pdf

 

Mile-High State Requires High Levels of HOA Transparency

December 21, 2012

In case  you’ve missed my repeated ranting on the subject, Idaho has very little HOA legislation.  Meanwhile, our mile-high neighbors in Colorado have passed a law increasing HOA board transparency and apparently, legislating common-sense respect for privacy.

Bill

The new Colorado law drills down into the type of documents that an HOA  might have, and requires disclosure of a broader number of them, including for instance, receipts and contracts with third parties.

The new Colorado law also clarifies that HOAs are not required to disclose other, private records.

In Idaho, meanwhile, HOA record retention and disclosure is almost always governed by the Non-profit Corporation Act.   This requires disclosure, upon request by an owner, of:

(a)  Excerpts from any records required to be maintained under section 30-3-130(1), Idaho Code, to the extent not subject to inspection under section 30-3-131(1), Idaho Code;
(b)  Accounting records of the corporation, and
(c)  Subject to section 30-3-133, Idaho Code, the membership list.
Certainly the list of documents required to be disclosed is shorter in Idaho.  In case you were wondering, the “records required to be maintained”  under 30-3-130(1) include “… minutes of all meetings of its members and board of directors, a record of all actions taken by the members or directors without a meeting, and a record of all actions taken by committees of the board of directors …”  That’s it.
Despite the limited number of documents required to be produced in Idaho, it is still good common sense to keep HOA emails separate by using a separate HOA account.   Whether or not an Idaho court would consider those emails “a record of all actions taken by the … directors”  email can still be dragged out in litigation, and most folks would prefer to keep their private emails separate.
While a member list must be maintained for voting purposes, it is also still a good idea to respect everyone’s privacy.  Don’t publish “member directories”  without specific consent from the members.  Use that BCC function on group emails.

From Sacramento: Tweaking Davis-Stirling

August 30, 2012

Apparently, California has signed into law a revision to its Common Interest Development Act.  California, unlike Idaho and a shrinking handful of other jurisdictions, recognizes the important role played by HOAs and other common interest ownership associations.  One California Court said:

Indeed, the homeowners associations function almost ‘as a second municipal government, regulating many aspects of [the homeowners’] daily lives.’ [Citation.] ” ‘ “[U]pon analysis of the association’s functions, one clearly sees the association as a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government.

Wikipedia(citing Villa Milano Homeowners Association v. Il Davorge).  

On the surface, the new California laws, Assembly Bills 805 and 806 simply simplify the existing common interest ownership law:

In response to concerns that the Davis-Stirling Act is not well organized or easy to use, the California Law Revision Commission (CLRC) recommended that the existing Davis-Stirling Act be repealed and replaced with a revised version that would continue the substance of existing law in a more logical and user-friendly form.

Senate Rules Committee Digest.  In the judicial committee hearing  minutes regarding AB 806, arguments in favor were summarized as follows:

…this bill and its companion measure, AB 805, will bring much needed logical order to the Davis-Stirling Act, making it much easier for board members and practitioners to navigate and clarifying the relative authority of statutory law, by-laws, and different types of governing documents.

However, at least one commentator identifies 16 substantial changes.  CAI promises to educate its members on the changes before the law goes into effect.

 

Rather than dive into legal analysis of another state’s statutes, I would just like to point out that Idaho has an opportunity to learn from the experiences of other states.  Idaho could adopt a nice, clear, concise statute from the start, number its sections in a clear way for ease of use, and avoid overhauls like California is undertaking.  But first, Idaho needs to recognize the the value and service that HOAs, Condo associations and other CIDs provide.

-Jeremy

P.S.

If, like me, you try to follow news relating to homeowner associations, you no doubt have noticed that there is not much of it.   If you live somewhere like Idaho, relevant news is even more thin.  Only occasionally do we see an embezzlement scandal or a flare-up about American flags or the like.

This blog is going to try to avoid taking the route of mindless content farming.  I’ll try to comment on  a real event.  Or a real issue that has really stuck in my craw.  So, out of necessity, I’ll have to watch national, as well as Idaho, news. Anyway, that’s a long way to apologize for talking, again, about California law.