Questions to our firm about how homeowner and condominium associations should respond to the coronavirus (COVID-19) epidemic have come in waves. When news of the virus broke, we were asked by HOAs and condos how to keep homeowners safe. (See: Coronavirus: What Should Homeowner and Condominium Associations Do?) Then, once health concerns cancelled board and membership meetings, questions turned to how to transact association business without having physical meetings. (See: The Coronavirus, Flu, and HOA/Condo Association Meetings and “Let’s Have Our Meeting Online!”) Now, with the extended health and economic crisis, association boards are concerned both about the association’s finances and how to possibly assist owners financially, such as by deferring collection of assessments.
These concerns by directors are commendable and emphasize the
“community” aspect of community associations. However, before making any significant
changes, the whole picture and circumstances of the specific association must
be considered. This article provides a few suggestions on considerations for associations
in difficult times. But recognize: IT’S FAR HARDER FOR A COMMUNITY ASSOCIATION
TO CHANGE ITS FINANCES THAN A BUSINESS. Here are some of the difficult
realities specific to HOAs and condo associations as they consider options:
Association Expenses Are Likely Fixed
Unlike banks, mortgage companies, or other for-profit
businesses, community associations are nonprofits. Homeowner and condominium
associations aren’t designed to make money. They’re designed to pay the
association’s bills. Monies collected aren’t retained by the association, but
are forwarded to others, such as the power company, plumber, insurance carrier
and others, even the government. For instance, one of our associations recently
paid the premium covering 300 townhomes to an insurance company. Unless the
third-party vendors have also stopped requiring payment (which is very
unlikely), the association’s expenses will remain constant. In addition, the
association likely has signed yearly or multi-year contracts with vendors that
prevent the association from simply cancelling or reducing services and costs.
Assessments Are Likely the Only Revenue Stream
Usually, assessments are the only income for an
association. As a result, if the association fails to collect owed assessments,
the association will owe debts but not have funds to cover them. Such a
shortfall can usually only be made up by:
- not paying necessary obligations and suffering legal consequences,
- charging paying homeowners higher amounts,
- charging a special assessment to all owners later (if permitted), or
- allowing the community’s common elements to deteriorate.
Association finances are pretty much a zero-sum game. The only money the association has to pay out for services is what members pay in.
Directors’ Duties Are to the Association as a Whole
While thoughts about what is best for current owners should
certainly be a consideration, board members are fiduciaries of the association.
By statute, directors must discharge their obligations “in good faith” and in a
manner that is “in the best interests of the corporation.”
The Money Has to Come from Somewhere
By statute, assessments paid by owners are intended to
cover the association’s current expenses, fund a reasonable surplus, and designate
appropriate funds for future reserves. That means that every dollar in the
budget is supposed to either be needed now or in the future. A reduction in
collected funds today means that future owners will be charged more to make up
for the missing surplus/reserves needed for future expenses, such as inevitable
common area repairs, storm damage, or unexpected events.
Deferring Assessments May Not Be Fair to Owners
While not requiring owners to pay in difficult times may
seem like a considerate gesture, we’ve seen it have an unintended opposite
effect. During past financial crises some associations stopped their usual
collection policies. Eventually, the association had expenses that had to be
paid and then had to insist upon immediate full payment from owners who had
been given a deferment. By that point some owners had accumulated amounts due
that were impossible to pay. In other words, the owner might have been able to
pay $100 a month if required. But due to the deferred collections, the
homeowner was incapable of paying the $1,200 now due. The unfortunate
consequence was that the association had boxed itself into few options other
than legal action and possibly even foreclosure, which would have been unnecessary
if it had stuck with something similar to normal collections. (Also, the amounts
owed by those owners was higher than it would have been due to court costs and attorney‘s
fees.)
This doesn’t mean there is nothing an association can do to help
finances or assist owners. It’s just that there are likely few options to
discuss with the community manager. By the way, if you don’t have an
association manager, now may be the time to get one. While hiring a community
manager may seem an odd approach to cutting costs, credentialed managers are
trained and experienced in budgeting and advising on services and also tend to have
contacts for vendors that who work with community associations. (For more
details on manager credentials, here’s a Professional
Credentials for Managers and Companies At-A-Glance
from the Community Associations Institute.)
OPTIONS
As a result and depending on the association’s specific circumstances, there are possible options a board may wish to consider. Different suggestions will not work for all associations. As a result, each association in consultation with its community manager and even legal counsel would need to determine if any of the following CAN be taken as well as SHOULD be taken for the specific association:
- Decrease discretionary services, even if only
temporarily, if they will not have a significant negative impact on the
association or reduce property values - Cancel or delay non-urgent repairs or construction
- If contracts are up for renewal, look at reducing
services or obtaining bids - If budget time, take a close and critical look at the
coming year’s assessment and expenses - If the association has emergency reserves (which few have),
consider whether those monies should be used (and such use may not be
appropriate, depending on the governing documents) - Determine if the association is paying for expenses
that are an owner responsibility, as sometimes happens in townhomes and condos - Investigate the governing documents to see if they
allow the association to bill back utility charges (or other expenses) to unit
owners based on usage - Delay internal association collection actions (such as
late letters or final warning letters) for nonpayment of assessments. In other
words, if the usual process is to send 30-60-90 day letters to owners, those
could be changed to 60-90-120 or 30-60-90-120 before additional steps are
taken, even if only temporarily - Be more willing to offer or accept non-traditional
payment plans with owners in arrears - Hold off on more aggressive aspects of collections,
such as foreclosure. (Due to different court system actions, some judicial
processes are not likely available at present anyway in some jurisdictions. Our current firm policy for
accounts sent to us is to send the standard demand letter and file the
statutory claim of lien, but not file foreclosure.) - Stop suspending privileges or services for non-payment
of assessments
Some other considerations can be found in this 2014 blog: Help, Our HOA (or Condo) Needs Money!
For
now, our message is that directors should approach these issues as with all
crises—reasonably and calmly. As necessary, the association board should
discuss developments with its community association professionals and take such
steps as are warranted in its best judgment for the community as a whole and
its members.
The thoughts in this blog are as of March 27, 2020. Since the trajectory of the coronavirus and its full impact on associations are not yet known,
this blog may be revised as appropriate.
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The attorneys at Black Slaughter & Black are available to assist by phone, video-conference or email with any issues related to your community association faincnes or assessment collection. Please contact any one of the attorneys in our Charlotte, Greensboro, Triangle or Coastal offices.
Author: Jim Slaughter
Articles have been Reprinted with permission from Black, Slaughter, Black.
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