Your Frequently Asked Questions (FAQs) answered by EPOHOA, we do not provide legal counsel, we do provide known information to increase HOA members’ knowledge.

References to local, state and federal laws – in all cases the original document of record shall prevail.

FAQ-Tip001

 

 

 

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1. What type of organization is EPOHOA?

EPOHOA is a non-profit 501(C)3 registered with the West Virginia Secretary of State, EPOHOA cannot endorse legal counsel, businesses or political parties.

2. Who can join EPOHOA and how can my HOA become a member?

Qualifications for membership are open to ALL functioning HOAs within and the outlying areas of the Eastern Panhandle that are incorporated in the state of West Virginia as well as individual(s) and civic association(s).  On March 21, 2015 EPOHOA’s Bylaws were revised and adopted with a provision that all EPOHOA Members in good standing may vote.

The three levels of membership are available:
Qualified Homeowner or Civic Association Membership
Individual Membership
Business Membership

 Contact: membership@epohoa.org or select “About Us” from our menu above for more information.

3. How much does it cost for membership to EPOHOA?

SLIDING SCALE: (initiation fee is a one-time fee)

  • 2 to 25 homes in your HOA
    Initiation Fee $25 – Annual Membership Dues $25.00
  • 26 to 50 homes in your HOA
    Initiation Fee $50 – Annual Membership Dues $50
  • 51 to 100 homes in your HOA
    Initiation Fee $100 – Annual Membership Dues $100
  • 100 and more homes in your HOA
    Initiation Fee $125 – Annual Membership Dues $125
  • One Individual
    Initiation Fee $25 – Annual Membership Dues $25
  • One Business
    Initiation Fee $125 – Annual Membership Dues $125
4. What if our developer has filed for bankruptcy and we don’t know what to do?

Contact your County Commission/Council immediately. Contact your planning and/or engineering department(s) immediately. You must be prepared with copious notes, e-mails, telephone contacts, minutes, dates and times. Most important – always remain calm.

EPOHOA has members who have experienced this issue (and other daunting challenges), won in County & State courts – our members are available to share their experiences and assist you – remember, EPOHOA does not provide legal counsel.

5. What is the $64,000 question?

Who really has the responsibility to read, review and qualify the approval of conditions & restrictions of the developer’s required covenants/servitudes in the first place?

I cannot locate the approving agency/office that reads, reviews, and approves our HOA governing documents, e.g. servitudes”.  All I can locate is the original attorney that drew up the document(s) in a cut & paste fashion – a standard procedure of the para legal.  I do know [Jefferson] county requirements for a subdivision developer must provide without review  the governing documents (Section 20.103 of the ordinance) – the future homeowners assume the responsibility of those covenants, “servitudes” for a self-sufficient subdivision; e.g. HOA.  Also see FAQ#56

6. I pay my HOA Annual Dues and my individual property taxes but the county and/or city never plows our roads, how come?

Depends on which county you live in. Answered by Mr. Lee Thorne, District Five Engineer/Manager WV DOH:

JEFFERSON COUNTY: The Jefferson County 911 director, pursued through the former Traffic Engineering Director an exception and there are no route numbers on street signs in Jefferson County. As you stated, generally a green sign with white letters indicates a road in the WV State Highway System and brown signs are for private roads. However, we are aware that there are a few cases where the wrong color sign has been installed and we are working to have them corrected. As part of this exception, Jefferson County government maintains all of the street signs in that county.

BERKELEY, GRANT, HAMPSHIRE, HARDY, MINERAL and MORGAN COUNTIES: As far as I know, there is no rule that dictates the color of the signs for private roads in the remaining counties in District Five. Some are green and some are blue. However, if there is no route number then they would be considered a private road and the WVDOH would not perform maintenance on them. (Pendleton County is located in District 8)

select: the complete reply and original inquiry 2/7/2013 

7. Why is my HOA required to pay property tax on the Common Elements (roads, street lights, maintenance/replacement of roads, flood plain, etc.) when we pay for them in our HOA Annual Dues and our own individual property tax assessment?

WV HOAs are NOT required to pay common element (common areas) property tax. You cannot be taxed twice. The West Virginia Uniform Common Interest Ownership Act  (UCIOA) §36B-1-105 is specific about property tax assessments “prohibits separate tax or assessment” as well as the common elements property tax judgment Civil Action No. 09-C-117 is specific declared void and set aside commencing with the current tax year, 2009”. (you purchased your property with amenities, e.g. common elements and you pay an annual assessment to maintain them.)

8. When the County “floats a bond” for a developer to build an HOA subdivision just what does that mean?

Simply put it is an IOU. For example, a developer requests and may receive from the County (and in some cases the state) a financial loan of a predetermined amount to fund (in whole or part) the construction of the subdivision. The IOU “bond” must be repaid by the borrower, the developer. When the subdivision is completed the developer holds no rights and you, the total of individual homeowners at large, are then considered the self-sufficient owner of the subdivision.

Also: Government entities like towns, counties, states, and the federal government, obviously can’t sell you/the developer stocks, because they can’t “own” the government. So, they have two ways to generate revenue with which to accomplish things. They can levy taxes, or they can “float” a bond. (Float just means “offer for sale”) It’s called “float” because if you offer it and no one buys it, it “sinks.”

9. Did the WV State Tax Assessor ever reply to homeowners about taxing HOA common areas/elements?

 YES – units (your individual property & home) making up the condominium or planned community must be taxed and assessed separately, and the common elements may not be taxed and assessed separately.

select:  July 2012  THE REPLY by Jeffrey A. Amburgey, Director – Property Tax Division 5 pages 58 KB

10. What is the EPOHOA mission statement?

EPOHOA is a cohesive force to protect the interests and welfare of home owners.  Sharing information – increasing knowledge.

11. Besides Jefferson County are you going to add the other counties in West Virginia?

The addition of other West Virginia counties (and there are fifty-five) is certainly a goal and one in which is determined by education and outreach of and by EPOHOA. In 2010 this began with Chapel View, a subdivision located within two counties, Berkeley and Jefferson. By June 2011 EPOHOA included the WV Eastern Panhandle of eight counties: Berkeley – Grant – Hampshire – Hardy – Jefferson – Mineral – Morgan and Pendelton. By October 2013 Tucker County was added. By March 21, 2015 EPOHOA revised their Bylaws to include the outlying areas of the Eastern Panhandle of West Virginia.Thus Lewis county joined.

12. My HOA doesn’t show me the budget – how do I know what money is being spent or saved?

Your HOA elected officers, your Executive Board, MUST provide a proposed budget prior to the date of your annual meeting so you can clearly understand the information. At your annual meeting you will have been provided a hard copy or even an overhead projection for the assembly of homeowners to see, with discussion and definition of line items. You participate in this presentation. You, the individual homeowner, must cast your vote for or against that proposed budget. You must be provided with a copy of the ratified budget. The following statute is/should be followed by all HOAs in West Virginia. It is your protection and the required transparency expected by all HOA individual property owners who are the voters.

 §36B-3-103. Executive board members and officers.

(c) Within thirty days after adoption of any proposed budget for the common interest community, the executive board shall provide a summary of the budget to all the unit owners, and shall set a date for a meeting of the unit owners to consider ratification of the budget not less than fourteen nor more than thirty days after mailing of the summary.

Unless at that meeting a majority of all unit owners or any larger vote specified in the declaration reject the budget, the budget is ratified, whether or not a quorum is present. In the event the proposed budget is rejected, the periodic budget last ratified by the unit owners must be continued until such time as the unit owners ratify a subsequent budget proposed by the executive board.

13. When I attend a monthly HOA meeting I am ignored and told by the Executive Board I cannot participate, how come?

Your Executive Board represents you, the membership, while following an agenda for a regularly scheduled meeting. They are responsible to present an issue, make a motion, have discussion and then vote to approve or not approve of the issue on the table. Typically attendees listen and do not interject during the business of the meeting. At the conclusion of the meeting it is common practice to open the floor to the attendees, the individual homeowners, this is called a public forum. During the public forum you then ask, discuss and/or challenge any issue. The results may take the position of being deferred to one or more future meeting(s) for the Executive Board to consider and/or act upon. Or the issue may be something as simple as an announcement by an individual homeowner. Most HOAs include in their recorded minutes the public forum. Most HOAs follow the standards outlined in Roberts Rules of Order maintaining decorum and fairness. (remember – an Annual Meeting is not a regularly scheduled monthly meeting – big difference)

14. Our HOA has a management company and they will not give me a copy of the minutes. How can I obtain the minutes of HOA meetings?

We are assuming your HOA has been completed, and your developer has transferred the common area deed to you, the homeowners.

  1. WV HOAs must file as a corporation with the WV Secretary of State
  2. State law is quite clear West Virginia Code Chapter 31E-15-1501 regarding what documents and information you are entitled to request from your HOA Board of Directors.  Minutes of meetings are listed as one of the many documents homeowners can request.

Remember –  a management company, like any other contractor for an HOA, works for the Board, not the members.  Unless an HOA directly hires employees and pays into unemployment and posts labor bonds, HOAs do not have employees.  The Board is responsible for the actions of the contractors, including the management company.  By the same token, management companies should freely share non-privileged information, but they cannot force the Board to respond. 

The following rule is typical in most HOA governing documents: (not all governing documents are the same)

The Executive Board shall permit any unit Owner to inspect the minutes of Executive Board meetings during normal business hours. The minutes shall be available for inspection within fifteen (15) days [number of days are relative to the particular HOA and must be reasonable] after any such meeting.

15. I never know when our HOA meetings are let alone where they are – how can I find out about our meetings?

Regular meetings are proposed for monthly, bi-monthly or in some instances just the Annual Meeting. For regular meetings each homeowner must have access to announcements of date, time and location. Your Executive Board (or management company) must provide this information either thru a bulletin board, newsletter, mailings or telephone calls, for example. Anytime the Executive Board meets that meeting is by law open to members entitled to vote, e.g. unit owners, and you may attend. The following statutes are/should be respected by all HOAs in West Virginia. It is your protection and the required transparency all voters demand.

§36B-3-108. Meetings.

[for non-exempt Community Associations] A meeting of the association must be held at least once each year. Special meetings of the association may be called by the president, a majority of the executive board, or by unit owners having twenty percent, or any lower percentage specified in the bylaws, of the votes in the association. Not less than ten nor more than sixty days in advance of any meeting, the secretary or other officer specified in the bylaws shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address of each unit or to any other mailing address designated in writing by the unit owner. The notice of any meeting must state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove an officer or member of the executive board.

§31E-7-705. Notice of meeting. (HOAs are corporations filed with the Secretary of State)

(a) A corporation is to notify members entitled to vote of the date, time and place of each annual, regular and special meeting no fewer than ten nor more than sixty days before the meeting date. Unless this chapter, or the articles of incorporation require otherwise, the corporation is required to give notice only to members entitled to vote at the meeting.

16. How come I cannot be in an Executive Session when the HOA Board calls one?

Executive session(s) are off-the-record discussions and are closed to the public. No votes, no resolutions, no motions may occur on any issue being discussed, and there are no minutes taken during executive session. Executive Session is simply a chance for the HOA Executive Board to discuss an issue for clarification.

17. What’s the difference between a unit owner, a lot owner and a homeowner? I never know which one I am.

NONE, no difference – when you purchase your property in a subdivision you are all three.

18. I don’t want to be a member of an HOA and my choice of home is in one. How can I not be a member?

First – you cannot avoid membership when purchasing a home in a subdivision, e.g. HOA. Membership is automatic and shall consist exclusively of all the unit owners. That’s you, the purchaser of property within the subdivision – an HOA.

19. My car was damaged in an accident and I have it parked in my driveway – the HOA is threatening to have it towed, can they do that?

Depends upon your governing documents. If your driveway is included on the deed to your property the HOA cannot trespass and tow your car. The DCCR rule “usually” carries a clause similar to no unlicensed unregistered vehicles may be parked anywhere within the subdivision. So if the damaged car carries current tags and license then you are in compliance. Always check your governing documents. Also, lets turn this around – consider the damaged car parked in your neighbor’s driveway, what action would you want of your neighbor as well as your HOA Board? It is important to look at all sides of any situation.

20. Is there any law to control or prevent ATVs in our subdivision?

Check your governing documents, there may be a clause to regulate ATVs,  you should also review the following state code . . .

WV §17F-1-3. Local government authority to regulate. Notwithstanding any provision of this article to the contrary:

(1) The governing body of a municipality may regulate in any manner or prohibit, by lawfully enacted ordinance, the operation of all-terrain vehicles upon any street, road or avenue within the municipal corporate limits.

(2) Homeowner associations may petition the county commission of the county in which the area regulated by the homeowner association is located for an ordinance to regulate or prohibit the operation of all-terrain vehicles upon any street, road or avenue within the area regulated by the homeowner association. County commissions are hereby authorized, upon receipt of a petition authorized by the provisions of this section, to enact an ordinance regulating or prohibiting the operation of all-terrain vehicles.

(3) The county commission of any county which has in effect and is operating under a countywide comprehensive plan may by lawfully enacted ordinance regulate or prohibit the operation of all-terrain vehicles on any road in the county, except interstate highways: Provided, That any county which enacts any such ordinance shall notify the West Virginia state police and all law-enforcement agencies in the county of its action in writing, together with a copy of the ordinance.

21. Everybody references orphan roads and HARP, what does HARP mean?

HARP =  Home Access Road Program
Roads that have been incorporated into the state’s system. HARP route numbers are enclosed in a five sided figure that looks like a house as seen in this example:

HARP sign example

22. How many votes does it take to pass an amendment or the budget, etc. in an HOA?

That depends on your governing document (s), some require 51%, 80% or more, and sometimes 2/3 of those present at a meeting. One of our HOA members provided their outline to demonstrate ” just how many votes are required ” using their own Declaration of Covenants, Conditions and Restrictions. Remember, not all DCCRs are the same.

23. Our HOA pays for our subdivision’s street lights as part of our annual assessment budget, who do we contact at the electric company to complain about irregular billing and off-the-chart increases?

Concerns or complaints about First Energy [Potomac Edison] power company billing practices, you may file either an informal or formal complaint with the West Virginia Public Service Commission by calling . Also, at this writing [June 5, 2013] your issues may be e- mailed directly to Mrs. Charlene Gilliam, Director of External Affairs cgillia@firstenergycorp.com – remember to include your name, physical location, and telephone number.

UPDATE 2016: contacts for WV PSC Utilities Division at http://www.psc.state.wv.us/div/util.htm

24. My property may be taken by eminent domain for a new highway and I’ve heard folks talking about a “Pro Tanto Award” – what is that?

Usually, after the government has determined that they will take your land via eminent domain, the government will appraise your property. They will then send you a notice with a pro tanto award. A pro tanto award is an offer on your property based on the appraisal. Some, not all people accept the pro tanto award, but you do not have to. You really must consult a real estate attorney to determine if you should accept or reject a pro tanto award.

25. What is a limited expense liability planned community?

In West Virginia a “limited expense liability planned community” is referenced in the governing documents by Covenants that contain a cap on the annual assessment. Currently [2013] the cap is $300, but it does not include insurance or optional use fees, such as trash service or a pool.
 
The $300 cap can be adjusted by using the Consumer Price Index  and applying the formula in 36B-1-114 of the Act.  Due to the complexity of the formula, only a certified public accountant, attorney or similar professional should calculate the adjustment.

§36B-1-203 . Applicability to new common interest communities. — Exception for small and limited expense liability planned communities.

Be alert – understand your governing documents, you may have a specific amount outlined in your governing documents though you may not necessarily be defined as a limited expense liability planned community. Not all governing documents are the same.

26. Does the WV Uniform Common Interest Ownership Act 36B protect an Association with 12 homes or less?

Currently [2016] if an Association in WV has 12 units or less, only two sections of the Act apply (36B-1-106 and 107). See 36B-1-102.

27. Does the WV Uniform Common Interest Ownership Act 36B protect a limited expense liability planned community?

Only three sections apply (36B-1-105, 106 and 107). This is the exemption that most developers use to avoid the protections and restrictions of the Act. See 36B-1-203.

  • §36B-1-105. Separate titles and taxation.
  • §36B-1-106. Applicability of local ordinances, regulations and building codes.
  • §36B-1-107. Eminent domain.
  • §36B-1-203 . Applicability to new common interest communities. — Exception for small and limited expense liability planned communities.
28. Disclosure from developers, real estate agents and others is a big concern of mine; I’m seriously considering purchasing a home in an association somewhere in the countryside of West Virginia – what disclosure rules/laws should I be aware of?

Chapter 36B has an entire section (Article) with detailed lists of items and documents that must be disclosed to purchasers. Unfortunately, that section does not apply to limited expense liability communities. See Chapter 36B, Article 4; and 36B-1-203.

SELECT from the following:

ARTICLE 4. PROTECTION OF PURCHASERS 

29. I’m having trouble locating the WV website for 36B, can you help me?

Go to the website: http://www.legis.state.wv.us/WVCODE/Code.cfm?chap=36b&art=1

The following is an example – a screen should appear:

WV_36B_ScreenDump

You can then select ARTICLES from the left scroll bar, read the body of text within the center box and scroll up/down to continue reading using the right scroll bar. [July 2013]

30. I just heard [July 2013] Charleston passed a bill that urban agriculture is permitted and I want to take advantage of saving money by collecting my own eggs, however my governing documents state “No ponies, chickens, goats, or foul of any kind shall be permitted on the premises” so does this mean I can or cannot have my chickens?

First, your governing documents have precedence – secondly, the Charleston Bill 7579 is specific to the city of Charleston, not the state of West Virginia.
>>> Select: Bill No. 7579 Amending the Zoning Ordinance for the City of Charleston for the complete text.
4 pages 626 KB

31. I know that HOAs in West Virginia are governed by a lot of regulations, what exactly should I look for to understand the basic rights I could or should have?

 In addition to each unique set of governing documents, HOAs in WV are governed by the West Virginia Non-profit Corporation Act (Chapter 31E) and the Uniform Common Interest Ownership Act (Chapter 36B).

Chapter 31E is not HOA specific, and generally applies to all non-profit and not-for-profit entities in WV. (Incorporation and good standing issues are a separate topic.)

Chapter 36B is HOA specific, but many subdivisions do not fall under this statute. If a community in WV was created prior to the adoption of Chapter 36B, then the Act applies.

However, the Act does not override conflicting provisions in the governing documents of a preexisting Association. If there is a conflict, the governing documents of the Association take precedent. If a preexisting community changes their documents, then the changes must conform to the applicable section(s) of the Act. See 36B-1-204.

32. What is an optional service fee – does it include my HOA’s roads, school bus stops, mail box clusters and/or street signs?

Basically, if the expense is something that the members are entitled to, such as use of the roads and common areas, it is not optional.

If the expense is something that the Association chooses to provide, like trash service, but the Covenants do not require that service to be provided, then it is an optional user fee. [also see FAQ #25 limited expense liability planned community]

33. Is there a cost for EPOHOA’s workshops, and can members of non-EPOHOA associations attend?

Workshops & Seminars are FREE to all EPOHOA Members in Good Standing

 November 2016  EPOHOA initiated a nominal fee policy for non-members (HOAs, Individuals & Businesses)

  • $20 per person: Non-member with  RSVP registration no later than 10 days prior to a workshop or seminar.
  • $25 per person: Non-member without  RSVP registration.

Cash or check accepted at the door – no credit cards.

EPOHOA Workshops & Seminars typically include educational packets, handouts and light refreshments.
Seating is limited, preference is given to EPOHOA Members in Good Standing.

HOAs, Individuals and Businesses are encouraged to seriously consider EPOHOA Membership.

Sharing information by increasing knowledge is the major goal of the EPOHOA workshops & seminars.
EPOHOA Membership Application

34. Why do homeowners always complain they have to increase their annual budget assessments after the developer/declarant transfers the common areas to the homeowners?

The developer/declarant wears many hats, one of them is sales. When you purchase a home in an HOA it is important to the seller that you know there is a small annual assessment charged to you as a member each year.

What you are NOT told is the true cost in relation to the long term, e.g. 20 – 30 – 40 years. Developers are not required to disclose that information to you, nor are they required to provide that information to local, county or state authorities. It becomes a guessing game of dollars and cents to the HOA.

So what does it cost annually to maintain your common areas? $100/homeowner, $300/homeowner, or more? It’s pure speculation without a a reserve study. More often than not, no reserve study will be provided by the developer/declarant – the HOA must decide to be smart and pay (or do the leg-work) for a reserve study to learn what the projected costs are for maintenance of the common area, most importantly, roads. Sadly most HOAs limp along with band aid solutions for the long run so as to refrain from increasing the annual dues/assessments in support of maintaining common areas.

It is the responsibility of the homeowners thru their Board of peers to provide the General Operating Expenses & Capitol Expenses Deferred Maintenance accounts, circulate that information and follow the budget to the “T” – by setting up a budget HOAs know and will expect the outcome. There are no secrets – it’s simply a fact of life.

35. This is so confusing – what are the differences between a policy a procedure and a resolution, let alone guidelines for HOAs?

  POLICY: A policy is a standard adopted by the Board that sets out the beliefs, values and objectives that causes the homeowner association to act. (such as a collection policy, an enforcement policy, or a conduct of meetings policy). A homeowner association’s policies communicate, organize, and focus the resources of the homeowner association.

  PROCEDURE: A procedure is the process that accomplishes a particular objective. For example, the homeowner association should have a clear and defined policy regarding assessment collection. The detailed steps of how this policy is achieved comprises the procedure of collecting assessments.

  RULE – REGULATION: A homeowner association’s board of directors adopts rules, regulations or guidelines to define desired behaviors and to set limits on allowable uses of the common elements and homes or units, architectural changes and the behavior of residents and guests. Some typical examples of rules include pets, parking, noise and use of HOA facilities.

  RESOLUTION: A resolution is a method of formalizing a decision made by a homeowner association’s board of directors. Resolutions are used to adopt policies, procedures, rules and regulations or to clarify ambiguous terms in the governing documents. Resolutions should include four components:

  1. Authority. The section of the governing documents that gives the board authority to adopt resolutions;
  2. Purpose. Why the resolution is needed or being adopted;
  3. Scope and Intent. Who will be affected, the reach, range and extent
  4. Specifications. A clear and complete statement on what those bound by the rule are expected to do.

 

SOURCE: – definitions by Richard Thompson, a nationally recognized expert on HOA management issues. rich@regenesis.net

36. What is CAI?

COMMUNITY ASSOCIATIONS INSTITUTE

An American & International organization dedicated to building better communities, CAI provides information, education and resources to all community association stakeholders, including community managers and homeowner leaders.

CaiMemberTheCottonEPOHOA Board of Directors are members of CAI as well as many of our EPOHOA Members.

37. My neighbor mentioned anyone can make free calls to a bank of WV lawyers – is that true?

FancyBulletTheCotton   On Tuesday nights the WV State Bar operates the Tuesday Legal Connect. Volunteer lawyers take calls from the public, and offer suggestions and guidance about their questions. Every Tuesday evening from 6:00 p.m. to 8:00 p.m., lawyers volunteer their time to answer questions that are presented by men and women throughout West Virginia on a toll free telephone line. The lawyers listen to the citizens’ comments and questions. They help the callers assess:

  • Whether the caller really does have a legal problem.
  • Whether there are some simple steps the caller can take to try to solve their problem without a lawyer.
  • Whether the caller really does need to have a lawyer to help them.

 The volunteer lawyers can provide general legal information. But they cannot provide direct legal advice or legal assistance about your case. To give legal advice, a lawyer would need more information and details than a short telephone call can provide. To reach the Tuesday Legal Connect, call1-800-642-3617

 

FancyBulletTheCotton  West Virginia Online Legal Help allows eligible users to post a legal question to a private messaging system. The questions are answered by volunteer attorneys. Users of West Virginia Online Legal Help can check the system for answers at any time. All information posted is held in strict confidence.

West Virginia Online Legal Help is a project of the West Virginia State Bar. The website is administered by Legal Aid of West Virginia.

38. We are having serious issues in our association with homeowners and we just don’t understand the difference between negotiation, mediation or arbitration, can you please clarify this?

OK, do attend EPOHOA meetings, we have several HOAs who could share their experiences on this important subject and might provide information that would be helpful. Civility is mandatory in all instances.

To continue, you are referring to handling one or more conflict resolutions, this is also known as Alternative Dispute Resolution (ADR), which includes negotiation, mediation and arbitration. It provides HOAs with a means to resolve conflict more quickly, economically and sometimes more fairly than the traditional justice system.

  • Negotiation is the first step in conflict resolution. It allows associations to work independently, requires the least amount of time and resources and does not require assistance from a professional mediator or attorney.
  • Mediation is an informal, cooperative, problem-solving approach to conflict resolution. It relies on a trained third person (who has no personal stake in the outcome) to facilitate the negotiation. The mediator ensures constructive interchange between people and won’t allow the parties to stoop to adversarial posturing or name-calling. Mediated settlement agreements are created by the parties involved and aren’t legally binding unless formalized by contract or court order.
  • Arbitration is a formal, rule-oriented process that is more expensive and takes more time than mediation, but less than a court case. In arbitration, a neutral party renders a legal decision based on evidence and testimony and makes a final award in favor of one party. The arbitrator’s office is quasi-judicial in nature, making final awards enforceable in court.


The full explanation of this answer is provided by Community Associations Institute – ATTACHED for your convenience and continued reference.

39. What’s the difference between a regular board meeting, a members meeting, a special meeting, a committee meeting and an annual meeting?

FancyBulletTheCottonRegular Board Meeting usually monthly, bi-monthly and in some cases quarterly or every 6 months. Depends on the size and number of activities of your association. Your Board of Directors meet to handle the business of the association. You elected them from among your peers. As a member you must be provided with date, time and location so you can attend these meetings. Typically these meetings are for the Board (your peers) to make certain they are completing required time-sensitive fiduciary responsibilities governing your association.

FancyBulletTheCottonMembers’ Meeting might be an informal gathering of two or more members that does not necessarily require advertising date, time and location to the full membership. Often members simply get together and discuss issues that they may decide to present to their Board of Directors. It is a relaxed environment and information is openly shared with those in attendance. It would be a good exercise to preserve notes or minutes of this type of meeting for future reference.

FancyBulletTheCottonSpecial Meeting is a formal activity for emergencies, you must be provided with date, time and location as soon as possible and you are encouraged to attend. An emergency situation may involve a one-time assessment increase of a sizable amount of money that must be obtained immediately. This is usually due to a major expense not outlined on an approved budget. It is a one-time vote of the members.

FancyBulletTheCottonCommittee Meeting is a relaxed activity for a committee that has been delegated with a specific task by the Board of Directors and does NOT require advertising date, time and location to the full membership of the association. The committee meets when they agree to their own convenient time, date and place. They are responsible to carry out a specific task and report back to the Board of Directors. A committee is usually made up of 3 or 5 members. Some examples could be a policy committee, a website committee, a landscaping committee, or perhaps an architectural review or newsletter committee. There can be many types of committees in an association depending upon need.

FancyBulletTheCottonAnnual Meeting is exactly that – once a year, typically outlined in your governing documents and certainly required by WV Law. Some HOA’s may call this meeting a Members Meeting, try not to be confused. The Annual Meeting must be advertised with date, time and location, too and including an agenda with a proposed budget for ratification, and a proxy form. At the Annual Meeting it is required to record & certify proxy forms, take written attendance, and the Board of Directors must present proof of notice. You are encouraged to attend the Annual Meeting. It is a corporation meeting of ALL MEMBERS once a year. If you cannot attend you should complete the proxy and transfer your right to vote at this meeting.

40. Do you have any information about Maryland’s HOA assessments??

We do have a flier from Montgomery County, MD’s Commission on Common Ownership Communities

The flier contains several questions and answers specific to assessments. ATTACHED

41. I’m a voting member of my HOA and at the Board meetings they won’t let me vote – can they do that?

Purchasers in an HOA are automatically members AND they carry a vote; typically one vote one lot. However, you vote at your Annual and Special Meetings, they are the meeting of members.

As a voting member, not on the Board (you voted from your peers at the Annual Meeting to elect your directors to handle the business of the association) you do NOT vote at a regularly scheduled Board meeting.

A regularly scheduled Board meeting is specifically for the Directors to handle the business of the association during the fiscal year. The business of the association is the mandate your Board must follow by respecting the fiduciary requirements of your Declaration of Covenants, Conditions and Restrictions as well as your Bylaws and other guidelines, policy, resolutions and line item(s) of your approved budget.

EXAMPLE STEPS:

1.) at the Annual Meeting members voted to obtain a snow plowing contract not to exceed $10,000 dollars for that fiscal year.

2.) at the regularly scheduled Board Meeting the officers voted to circulate a bid for proposals, the proposals arrived, the officers reviewed them, the officers voted to choose one contractor. Thus, they’ve satisfied the members’ vote by obtaining a snow plow contract – by handling the business of the association.

also see FAQ# 13, 15 and 17.

42. What’s the difference between a director and an officer for my HOA?

Board members, directors, officers, executive directors, directors at large are typically rolled up into one package. They handle the business of the association. Together they carry the same weight at regularly scheduled board meetings.

EXAMPLE:

1.) During the Annual Meeting homeowners nominate from their peers to be considered for the board,
2.) ballots are passed out to those in attendance, some may have proxy votes from homeowners who could not attend,
3.) ballots are collected and the votes are counted,
4.) highest vote = a board member, then
5.) the newly elected board meets (usually at a later date) and they then elect their officers.

Executive Board constitutes the basic officer positions of:

President
Vice President
Treasurer
Secetary, and
remaining number of board members – aka Directors at Large

43. What actually is “servitude”?

In a nut shell, when you purchased your home within a homeowners association you were automatically included as a voting member of that association. You voluntarily accepted the documents during settlement.

With that membership you agreed to follow the governing documents, e.g. Declaration of Covenants, Conditions & Restrictions, Bylaws, policy, resolution and other guidelines of the association. The governing documents are THE association’s commandments you must follow. It is imperative homeowners read and understand governing documents.

TIP: not all governing documents are identical for all homeowner associations.

Definition of SERVITUDE in a homeowners association:

  • A servitude is a legal device that creates a right or an obligation that runs with the land or an interest in land.
  • A real-estate development or neighborhood in which individually owned lots or units are burdened by a servitude that imposes an obligation that cannot be avoided by non-use or withdrawal.
  • The recorded document or documents containing the servitudes that create and govern the common-interest community; e.g. you the homeowner.
44. I rent a home from an owner in the HOA, can I attend the HOA meetings?

Depends on the HOA’s policy – typically, HOA meetings are for homeowners. However, the HOA should consider including renters, after all, renters aid in the continuing value of property. The governing documents must be followed, no matter if you rent or own.

Without knowledge you cannot abide by the governing documents. Your landlord is required to notify the HOA of your contact information as a renter. A positive action on behalf of an HOA would be to welcome renters, encourage participation on volunteer projects while being a part of the community. Interaction is necessary for neighborly acceptance – meet your neighbors, follow the website, bulletin boards and/or newsletters, stay current.

Renters represent their landlord’s property value while living in an HOA.

45. Is there a popular site for HOA news or information that may not necessarily be published in local papers for HOAs in West Virginia?

EPOHOA’s website is well known and somewhat popular, however you might try:
  Community Associations Network
National news too and including laws that have been added and/or updated specific to homeowner associations.

You might also review the COMMUNITY ASSOCIATION FACT BOOK FOR WEST VIRGINIA

46. I just moved into an HOA and got elected as president at the Annual Meeting – I’ve never lived in an HOA or been an officer for any organization. Do you have any information to help me get started?

Most important – thoroughly read all of your HOA’s governing documents, interact with the previous board of directors, ask them questions, know and fully understand your fiduciary responsibilities, read previous minutes and do make a point of meeting your fellow homeowners in your HOA. 

47. Can the HOA Board have married couples? The Director and Treasurer are married. Also, two of the other Directors are married.

Depends on your governing documents. If your governing documents do not prohibit married couples serving on the Board, it is best to have an internal policy or resolution against it to avoid the appearance of impropriety and potential conflicts of interest. With that said HOAs often struggle attracting volunteers to run for and be elected to the board.

In the event a married couple is elected to the board from the same home/lot, Board votes should not be confused with membership votes. Each Board member (married or not) typically has one vote on any Board business. When it comes to general membership business, like annual meetings and elections, married couples typically get only one vote because their right to vote is linked to the one lot they own.  Again, read and understand your governing documents.

48. My HOA was dissolved in 2008 by the West Virginia Secretary of State for failure to file annual reports and pay annual fees. For the last 5 years I get demand letters for money from the so called HOA but no name or signature. Now I get a letter that states “we will put a lien on your property if you don’t pay”. Why should this HOA have any right to demand anything if it was dissolved?

You have two very different requirements imbedded in your question;
(1.) WV Secretary of State
(2.) HOA Annual Assessment

Both points are required. The WV Secretary of State is required because HOAs are a business corporation . All WV HOAs must file every year no later than 5PM on the last day of June. When that filing does not happen the WV Secretary of State revokes the business corporation but NOT the HOA’s governing documents’ restrictions that run with the land that you must respect.

Your governing documents outline the annual assessment in order to maintain the common areas; the amenities that you enjoy while increasing property values. That assessment is required. That assessment is a contract you agreed to when you purchased your home/lot.

TIP: after the annual budget has been ratified by the members, typically an HOA invoice should contain the following basics:

  • the name and address of the HOA
  • the name and contact information of the treasurer
    (or other official generating the invoice)
  • the fiscal year total amount for the annual assessment
    (general operating and capital expense accounts totals)
  • the date the assessment is due
  • the location where the annual assessment payment is to be made
  • the policy statement and/or cited reference for delinquency after the annual assessment due date
49. My HOA won’t let me fly my flag – can they do that??

As far as the United States flag – HOAs CANNOT PROHIBIT FLYING THE US FLAG. Federal Law trumps your governing documents.

For your reference: Freedom to Display the American Flag Act of 2005 . Public Law 109-243, 109th Congress

TIP: your HOA may have guidelines that are specific to flag & pole sizes & location.

50. When a homeowner in our HOA has not paid their assessment we considered them NOT in good standing – can they still vote at the Annual Meeting?

This question came up during the fall 2013 EPOHOA Workshop:

WV Code 31E does not allow for disenfranchising a member (i.e., not allowing them to vote). State laws supersede (trumps) covenants, bylaws and polices. This issue has not been addressed by the WV Supreme Court and it was suggested that to be safe not to disenfranchise members of your HOA. It was also suggested that your bylaws require all Board members and officers to be in good standing. Note that WV Code 31E implies that unincorporated organizations also must follow the code.

51. I just learned the WV Attorney General’s representative said we can’t file a complaint as an HOA Board against a homeowner in our subdivision – how come?

The short answer is an HOA is not a person, a human.

Consumers – e.g. a human – who believe that they have been the victim of unlawful practices in the purchases of goods and services may submit a complaint- at this writing [2014] the closest location is: Eastern Panhandle Consumer Protection Office 269 Aikens Center Martinsburg, WV 25404 Phone: 304-­267-0239 Fax: 304-­267-0248 Hotline:800-­368-8808

52. What is the difference between a lien and a super lien in an HOA?

LIEN: an HOA Board may file a formal document thru their county clerk’s office on an owners property when there is a verifiable violation of the governing documents including delinquency of an owner’s contractual annual assessment, e.g. dues. Typically, the owner ignores all contact, warnings, hearings and pleadings from their respective HOA Board of Directors. This lien can only be released after payment is made by the owner to their respective HOA. The amount differs depending on a fine/penalty schedule the HOA has in place and the cost of filing with the county clerk, too and including the basic envelope, postage, and most likely attorney fees that may develop due to difficulty in correctly filing an initial lien.

SUPER LIEN: same scenario as above except it goes to the next level of enforcement when an HOA Board forecloses on an owner’s property. West Virginia law, §36B-3-116. Lien for Assessments and Code §38.LIENS, supports HOA priority over first mortgage holders in this process. Thus, an HOA may recover an assessment. Do not take this action lightly – use of legal council is strongly encouraged.

We’ve done a bit of research to respond to the SUPER LIEN explanation – read layman’s language Mortgage Servicers’ Latest Troubles: Homeowners Association Fees by Kate Berry July 2011, and you might consider Matt Martin quoted in the article, he’s the CEO of Matt Martin Real Estate, in Arlington, Va., who established Sperlonga Data and Analytics LLC as a free service for HOAs to enable them to input documents into a portal and have the information sent directly to the servicer.

At no cost, Homeowner Associations, Condo Associations, Cooperatives, and other types of Community Associations may register their communities at SperlongaSM. This data is used to quickly connect lenders and mortgage servicers with the associations in order to facilitate prompt resolution of delinquent association fees and to ensure all accounts are kept current.

additionally: How Super Liens Help Your HOA Collect On Delinquent Assessments August 2013 external link to online article

EPOHOA does not endorse or recommend legal counsel or businesses. EPOHOA is not affiliated with any political party.

53. I’m concerned about fracking in my neighborhood, what is the law if oil is discovered on my property, my land in West Virginia?

We’ve located information thru LexisNexis Matthew Bender 2011 – West Virginia follows the ownership-in-place theory with respect to mineral interests. (Bogess v. Milam, 34 S.E.2d 267, 269-70 (W. Va. 1945)) West Virginia, however, does not treat an oil and gas lease as bestowing a vested property right until oil or gas is actually discovered on the property:

The title is inchoate [e.g. not yet completed or fully developed] , and for purposes of exploration only until oil is found.

If it is not found, no estate vests in the lessee, and his title, whatever it is, ends when the unsuccessful search is abandoned. If oil is found, then the right to produce becomes a vested right, and the lessee will be protected in exercising it in accordance with the terms and conditions of his contract. (Crawford v. Ritchey, 27 S.E. 220, 223 (W. Va. 1897); see also Arbaugh v. Raines, 184 S.E.2d 620, 623 (W. Va. 1971))

There are no known decisions in which a West Virginia court has considered the enforceability of a consent-to-assign clause in an oil and gas lease.

> SOURCE : Sixty-second Annual Institute on Oil and Gas Law (LexisNexis Matthew Bender 2011)

Oil & Gas Drilling in WV – FrackTracker Alliance REFERENCE IMAGE –opens in a separate window

2015-0101_FrackTrackeTn

54. I know EPOHOA cannot provide legal counsel or recommend an attorney for us, so how do I locate a lawyer for my HOA in West Virginia?

There is a comprehensive listing online that provides links to cities and counties within the state of West Virginia to locate lawyers – you might try this website: West Virginia Dispute Resolution Lawyers .

EPOHOA is not responsible for broken and/or expired links

55. Can EPOHOA provide the meeting dates to my HOA Board for a full year?

Certainly, there are several ways to do this.

  • Check out our website, the next scheduled meeting is on the HOME page (use the menu above),
  • link to a calendar page with a list of dates and location directions,
  • e-mail: info@epohoa.org  or use the Contact form on our website by requesting the number of printed calendars (sample below) you would need, be sure to include your HOA name and address,
  • attend the EPOHOA meetings, they’re available on the sign-in table when entering the meeting, and
  • register for news, information & updates.

 

2016_EPOHOA_Meetings two-sided printed 4″x9″ annually for circulation

56. I’ve been told my DCCR is simply an act of copy/paste from Virginia or Maryland DCCRs, is that true, is there a template developers’ lawyers used to produce the text for our HOA?

It goes farther than just Virginia and Maryland, the suggested legal documents that developers’ lawyers may use is at the federal level.
SUGGESTED LEAGAL DOCUMENTS FOR PLANNED-UNIT DEVELOPMENTS
28 pages  459 KB
FHA Form 1400, VA Form 26-8200, Rev. October 1973.

“These legal documents for planned-unit developments were prepared by the Federal Housing Administration and the Veterans Administration for nationwide use.”

57. My HOA wanted to print this page for reference but only the questions print – is there a way to print both the questions and the answers?

Yes, open each question by clicking on the plus sign (+) then choose print.
TIP: check your printer for plenty of paper.

58. We bought a pretty shed and had it placed in our backyard. Now our HOA says we are in violation and we have to tear it down. Can they really do that?

To be in compliant with your governing documents you agreed to follow is paramount. Typically a homeowner follows those documents which outline permissible structures such as a shed if they are allowed at all. The following steps must be taken:

Ask your HOA if you can install a shed. They will review the governing documents specifically for sheds. If the answer is no, then it’s simply no and you do not install a shed. If the answer is yes be prepared to provide the dimensions and location preferably on a sketch of your plat. (sheds are also known as: workshop, bike storage, boat building, shack, outbuilding, storage building, tool building, lawn/yard storage building, pool building or cabana, barn, etc.)

Some, not all, governing documents in HOAs are specific to a structure’s materials, color, height, foundation, utilities, relative placement due to the proximity of a well or septic and may require a county permit. Governing documents may contain a clause that a shed must be a stand-alone structure or an attached structure to the home itself, or even an open wall structure. Some governing documents may state the number of windows, size of a door and possibly the number of stories (levels). You might also be asked if you are planning on storing explosive or corrosive materials in the shed due to restrictions in the governing documents.

The bottom line:
ASK before you do any structural changes/additions to be in compliance with the governing documents you agreed to follow when you purchased your home in an HOA.
When ignoring your responsibility to follow your governing documents, then yes, you may be required to tear down your shed at your expense.

SEMANTICS: A rose is a rose is a rose – the meaning most often attributed to this is the notion that when all is said and done, a thing is what it is. Governing documents typically spell it out, though many times the name of an thing is obscure and left to the reader to define, ergo – policy could be considered AND with a majority vote.

59. Really? Can drones be used in our HOA to spot violations?

Recently this is a popular issue of discussion and there is no state or federal oversight to date in May 2015. Clint Goodman, Partner at Vial Fotheringham Law Firm, CAI member and publishes for HOA Institute has written a thought provoking essay on “Using Drones To Enforce HOA Violations

UPDATE:
June 21, 2016 the FAA announced law for drones:

https://www.faa.gov/news/press_releases/news_story.cfm?newsId=20515

February 20, 2016 WV Senate Bill 291 introduced, by Senator Trump though held in judiciary:
http://www.legis.state.wv.us/Bill_Status/bills_text.cfm?billdoc=SB291%20SUB1.htm&yr=2016&sesstype=RS&billtype=B&houseorig=S&i=291

60. I am a member of Community Associations Institute (CAI) and my HOA has found this organization to be very helpful. Is EPOHOA considering membership?

On July 15, 2015 the EPOHOA 5-member Board of Directors unanimously voted to join CAI. Several of our members are also CAI members representing their own individual HOAs or as individuals or businesses.

61. In our HOA we have a homeowner who applied to the county zoning board for a Bed and Breakfast and they may be approved, however our governing documents are specific “residential use only”. Can the homeowner still convert their home to a B&B?

Your governing documents are only as strong as your Board of Directors’ leadership is on your behalf, which is to say a pro-active HOA will enforce covenant restrictions of the governing documents. For example: the following quote is from Jefferson County’s 2014 amended ordinance:

SECTION 4A.6 PRIVATE COVENANTS RUNNING WITH THE LAND

Jefferson County shall not enforce or become involved in the enforcement of deed restrictions, covenants, easements, or any other private agreement, and, in the review of development proposals, the County will apply only its regulations to evaluate the proposal. All such restrictions shall be enforced by the parties to the restriction. It is the responsibility of an applicant for a proposed Cottage Industry or Home Occupation to research any private agreements relating to the subject property, contact the Homeowners’ Association, or seek the advice of a surveyor, engineer or attorney.

TIP: open communication and transparency is key to success in any HOA – your HOA should be pro-active and encourage all their members to contact their Board of Directors prior to applying for any change that may/would be considered a violation of their governing documents – basically it is contract law – a homeowner accepted and agreed to abide by the governing documents, e.g. restrictions that run with the land, at the time of settlement. Without being pro-active, eventually your HOA will most likely seek legal counsel after-the-fact at great expense to all member homeowners and/or your HOA insurance.

62. We have a maximum limit on our annual assessments and we are trying to increase it over the $300, can somebody please tell me what is the CPI ?

You’ve asked a very popular question! We will assume your HOA is a limited expense liability planned community which contains a requirement to follow WV Code 36B-1-114. 
also see FAQ #25, 26 and 27 above for reference.

Consumer Price Index (CPI) data is provided by the U.S. Department of Labor, Bureau of Labor Statistic.

EPOHOA had an important presentation in 2013 that included a practice budget using an excel spreadsheet. You might try playing around with your assessment figures and see how your annual dues might increase: PRACTICE BUDGET SPREADSHEET. Modify ONLY white cells in the spreadsheet. 

You might try the US Inflation Calculator – measures the buying power of the U.S. dollar over time. Just enter any two years between 1913 and now, a unique amount, then select ‘Calculate’.

important MOST IMPORTANT: Due to the complexity of the formula in WV Code 36B-1-114, be careful, only a certified public accountant, attorney or similar professional should calculate the adjustment.

  • EPOHOA is not responsible for broken and/or expired links.
  • The information found on the practice budget spreadsheet is intended to be used as a practice tool. No liability is assumed for the accuracy of the data presented or implied. Not responsible for results.
63. I was elected during our annual meeting but I am not clear how officers are elected. The previous officers were also elected again and I was told by the then president they discussed the officer positions they’ve agreed to remain in those positions. I was not included in that discussion. My question is how do I become an officer?

To answer your popular question we will assume your HOA is compliant with all or parts of WV Codes 31E, 36B and your governing documents.

Here are the customary steps: (typical example)
1.) During the Annual Meeting a list of nominees are announced and in some cases nominations from the floor are included.
2.) Nominees are then individually introduced; they express their reason(s) to be elected to the Board of Directors.
3.) Voting commences, winners are announced.
4.) The HOA then has a brand new Board of Directors.
5.) Depending on your governing documents, within a few days the new Board of Directors must meet and they elect their Officers. (typical example)

  • President
  • Vice President
  • Treasurer
  • Secretary and
  • other elected director(s) as member(s) at large or another defined title of position

(This meeting, as well as any meeting of the Board, is open to all members of the HOA.)

6.) The HOA then has its fiscal year slate of Officers and those names, positions and contact information are circulated to all members of the association.

Members of the HOA must remember:

  • The Board of Directors serve at the pleasure of the homeowners.
  • The Officers serve at the pleasure of the Board of Directors.
64. One of our homeowners is on our Board and not well liked by our Board and some other homeowners in our community. Our Board made a motion and unanimously voted to remove this person from the Board and forever being elected in the future, can they really do that?

While some, not all, governing documents contain a definition concerning members in good standing may cast a vote, we are unaware of HOA rules, regulations and laws preventing the entire membership of any HOA from voting for or against a homeowner based soley upon liking or not liking one or more homeowners by a Board of Directors or Officers of that Board. It is best to seek mediation, arbitration, and/or legal counsel in this instance.  EPOHOA does not provide legal counsel.

Be sure you review West Virginia §31E-8-809. Removal of directors by members or directors, and §31E-8-810. Removal of directors by judicial proceeding.

FACT: open communication and transparency is key to success in any HOA

65. Our HOA budget has a line item for potential fines levied on delinquent homeowners if they pay their annual dues late so our budget looks healthier. Some of our homeowners argue that this is wrong – is it wrong?

You cannot count  “pie-in-the-sky income”, that’s like telling the finance company you should qualify for that million dollar loan based upon next year’s overtime at your place of employment.

However, your HOA does develop a budget. An HOA budget consists of line items in real dollars typically based upon the previous year’s expenses and income. The HOA’s expenses and income must be made available to the members. Best policy: promote transparency.

TIP:
WV §36B-3-118. Association records.
The association shall keep financial records sufficiently detailed to enable the association to comply with section 4-109. All financial and other records must be made reasonably available for examination by any unit owner …

WV §31E-15-1502. Inspection of records by members.
(a) A member of a corporation is entitled to inspect, during regular business hours at the corporation’s principal office, any of the records of the corporation …

66. Can our developer, he’s also the declarant, really own property in our HOA and not have to pay the annual assessment?

We will assume your HOA is:
(a.) no longer under declarant/developer control,
(b.) that your HOA has received the declarant’s/developer’s Deed Of Transfer of the common areas,
(c.) your HOA (or a management company) now manages the business of the association on behalf of all the members and
(d.) someone has purchased property in your HOA who happens to be the developer/declarant.

1.) Anyone who financially qualifies can purchase one or more lots/homes in an HOA that is for sale.

2.) West Virginia §36B-2-107(b). Allocation of allocated interests. The declaration [your governing document] must state the formulas used to establish allocations of interests. Those allocations may not discriminate in favor of units [lots/homes] owned by the declarant or an affiliate of the declarant.

EPOHOA is aware in some cases in West Virginia where property owners have been exempt in paying HOA assessments as part of the rights that run with the land –  you MUST read and understand your own unique governing documents. Not all governing documents are the same.

67. What are the requirements for an HOA reserve study in West Virginia? I can’t find anything in my governing documents.

WEST VIRGINIA
Unit owners associations may adopt and amend budgets for revenues, expenditures, and reserves and collect assessments for common expenses from unit owners. Section 36B-3-102. Public offering statement must include the amount, or a statement that there is no amount, included in the budget as a reserve for repairs and replacement and statement of any other reserves. Section 36B-4-103.
There is no statutory requirement to conduct a reserve study and no statutory requirement to fund reserves.

additionally:  Community Associations Institute’s 2013 SUMMARY OF STATE RESERVE FUND LAWS

EPOHOA NOTICE: Missing in West Virginia law concerning HOAs is declarant/developer disclosure for long term maintenance by providing a capital reserve study covering 10-20-30- years at minimum prior to the Deed of Transfer for the HOA’s common areas.

68. Our HOA received notice for delinquent tax owed by the developer on our common area and we were told if it wasn’t paid our common area would be sold at a tax auction – can our common area really be sold because of delinquent tax?

Reference WV Code 36B-1-105 Separate titles and taxation.
(c) Any portion of the common elements for which the declarant has reserved any development right must be separately taxed and assessed against the declarant, and the declarant alone is liable for payment of those taxes.

Contact your county assessor for a resolution to the issue. If that fails, you will most likely need to retain legal counsel – to avoid obvious conflict of interest do not to use the same law firm as the developer/declarant. The burden of proof is typically on the challenger, in this case the HOA – research and gather all relative documentation. In some cases HOAs have paid the tax to prevent the auction tax sale. Do not give up.

TIP: Each county recording office is a gold mine of archived facts. We suggest your HOA build a paper-trail timeline demonstrating events prior to, during and after receipt of the tax invoice. Retain duplicate copies of documentation and maintain a log of the HOA’s time & dates expended for research with the name & contact information of those assisting the HOA’s efforts. IMPORTANT:  pass records on to new board members – transparency is key to success.

Regarding tax on HOA common area contact:
David Stiles, Attorney for WV State Tax Commissioner
Department of Revenue, State Tax Department
1012 Kanawha Blvd. E, Suite 300
Charleston, West Virginia 25301

 

69. My HOA Board says that if we join EPOHOA we must follow your Bylaws and not ours, is that really true?

NO

  • EPOHOA Bylaws are unique to EPOHOA only.
  • HOA Bylaws are unique to the HOA only.

Bylaws are developed by many corporations, agencies, federal, state & local government organizations, as well as homeowner associations, as guidelines to administer the business of the corporation, organization or association.

70. What does fiduciary responsibilities really mean?

Fiduciary responsibilities are the operation of the business of your HOA by managing finances & maintenance, keeping detailed records and protecting the HOA with insurance (protection of HOA common area and the Board of Directors) is typically initiated by your HOA board of directors and in some cases by a management company. Unfortunately not all HOAs consider insurance a requirement.

Serving on the Board can be an important way to impact and help maintain the well-being of your community while continually improving property values. Remember, to serve responsibly, and avoid potential legal liability, you must understand your unique governing documents to adhere to fiduciary obligations as an HOA Board member. These responsibilities MUST be forwarded to each Board of Directors every year.

HOA homeowners rely on their board of directors to follow the required fiduciary responsibilities. Don’t drop the proverbial ball concerning fiduciary responsibilities because you may believe no one cares.

71. My HOA has been reviewing our governing documents and a section contains a private transfer fee, our Board of Directors wants to know what that is, can you help us?

In 2010 the Federal Housing Finance Agency (FHFA) published a proposed guideline outlining issues with Private Transfer Fees. Within the proposed guidelines it was defined as:

a private transfer fee covenant is attached to real property by the owner or another private party, frequently, the property developer, and  provides for a transfer fee to be paid to an identified third party (such as the developer or its trustee) upon each resale of the property. The fee typically is stated as a percentage, such as one percent of the property’s sales price and often survives for a period of ninety-nine (99) years.

Federal Register 75-FR-49932, No. 2010-N-11
opens in a separate window for your continued reading

72. Because our HOA stopped doing the WV Secretary of State’s annual report, does our FEIN number go away, and do we need to file for a new one?

FEIN is the same as EIN it is your federal employee identification number for the business (your HOA). It is never discontinued, reassigned or reused. Regardless of whether or not an EIN was ever used, the number is PERMANENT. An EIN cannot be canceled by the IRS; however, the business account associated with the EIN may be closed. If the EIN is needed in the future, it will still belong to the business entity (your HOA) even after the account is closed.

courtesy 4-25-2016 U.S. Internal Revenue Service (IRS)

73. Our HOA treasurer said EPOHOA is a federal government agency – is that true?

No, EPOHOA is not a federal government agency.

EPOHOA is an Organization exempt under section 501(c)(3) non-profit of the Code and is further classified as a private foundation. The IRS determined that EPOHOA is a private foundation under the Code section 509(a)(2). The mission of EPOHOA is built upon sharing information to increase knowledge among homeowners in homeowner associations in the state of West Virginia.

EPOHOA Documentation

74. My HOA comes to my door over and over demanding I pay the annual assessment, I am tired of them coming over to my house, do you know how to stop them?

uh oh – they cannot come a’ knock’in over and over, it’s harassment and a violation of the Federal Trade Commission Fair Debt Collection Practices Act.

THE RULES: Fair Debt Collection Practices Act,  www.consumer.ftc.gov/articles/0149-debt-collection.

TIP: don’t forget, when you purchased your home in the HOA you agreed to pay your annual assessment when signing your settlement papers. For example, if you disagree with how your HOA may or may not be handling the business of the association, it does not justify withholding all or a portion of your required annual assessment.

75. What’s the big deal about hearings in an HOA?

Hearings are a BIG DEAL and they are in place to work with you – a homeowner in an HOA. We’ll use the annual assessment for this example, however it could be a violation regarding another issue within your governing documents. This is how it should work:

When the Treasure or Board of Directors does not receive your annual assessment after you have received your invoice AND you continually remain silent on the issue, they have no recourse but to provide you with a notice of a scheduled hearing. They must provide a date, time, and location of your hearing. You should attend to speak up for yourself, it is not mandatory. The hearing is confidential, no other homeowners attend. This is your opportunity to explain your issue, learn what the consequences could be, work out an agreeable plan and follow through with correcting your requirement of paying your assessment thereby halting a probable lien placed on your property.

Remember, you’ve elected your Board of Directors to handle the business of the association and providing a hearing is but one instance of good business.

CONFIDENTIALITY: The members of the Board of Directors learn personal information about residents during a hearing concerning covenant violations and past-due assessments. They must treat your information confidentially. They may NOT discuss information learned at the hearing outside of the hearing even with other board members.

 

76. We are a limited expense liability HOA and have been considering writing to our senator to get WV Code 36B amended and we need someone to help us prioritize our list, can EPOHOA help us?

YES – joining EPOHOA is the first step – helping HOAs is exactly what EPOHOA does when we share information to increase knowledge! The list is extensive, we’ve provided the top six.

Priorities:

1.) Close the limited expense loophole in all fifty five (55) county ordinances by requiring the entire WV Code 36B apply, thereby restoring 36B to those limited expense communities that have been stripped of the Act’s protections.

2.) Require the declarant to provide detailed common area capital reserve expense planning related to 10, 20 and 30 year life expectancy.

3.) Require HOAs to file annual board member information with their respective county as well as the WV Secretary of State.

4.) Require HOAs to file annual financial reports based on the type of financial information that is required by Article 4 of WV 36B to be provided to purchasers before closing.

5.) Require full HOA disclosure (not just individual home disclosure of condition) to be provided to purchasers before closing.

6.) Require settlement attorneys to provide purchasers with the actual rights, responsibilities, and obligations of HOAs (not just the standard PUD paragraph that purchasers initial).

Lastly, for further review:
2008 Recommendations to the Uniform Common Interest Ownership Act
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS
and by it APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES
West Virginia has not enacted one or more of these recommendations at this writing, June 2016.

77. My HOA Board says we don’t need E&O insurance, what is that exactly?

E&O insurance is Errors & Omissions which is often misunderstood. It may include a claims-made form.
E&O is a type of liability insurance that helps protect professional advice and service-providing individuals and companies from bearing the full cost of defending against a negligence claim made by a client, and damages awarded in such a civil lawsuit.

EXAMPLES: causes that involve E&O Insurance:

  • Your HOA website makes a particular statement or promise that is misleading or in some way causes a visitor to make a poor choice or decision.
  • Your HOA contractor fails to execute an order in a timely manner and a substantial loss results (this could be the project itself or the cost).
  • Your HOA contracts with an accountant to handle the finances of your HOA and that accountant makes a mistake on a tax return, resulting in a financial penalty.

    TIP: be sure your insurance agent provides exactly what your insurance covers and does not cover. Do not assume all liability insurance includes E&O coverage. It’s the “does not covers” list where you miss important benefits to your HOA that you may not clearly understand. Most important are the clarifications of:

  • occurrence
  • retroactive date
  • discovery period
  • limited discovery period, and
  • long term viability of coverage
78. What are some of the comments/questions asked of EPOHOA at the annual home show?

There are so many – we’ll provide several popular & persistent comments/questions received.

1. Obtaining HOA governing documents was the most frequent request with a second being how to learn who the board of directors are from a particular HOA and what are their terms.

2. Homeowners do not know what a reserve study means and how/why it would be beneficial to their members and common areas.

3. Homeowners want to know how to get a hoarder to respond and bring their property into compliance.

4. Homeowners were generally dissatisfied with the lack of knowledge their HOA Officers demonstrated regarding violations, fines and “calming irate neighbors”.

5. Homeowners do not receive any training or HOA courses in learning how to operate the business of their association. They complain it is by “osmosis” they manage their association’s business. Always trial and error, though more errors.

6. Homeowners cannot receive guidance from local or state and nothing from their delegates or other elected office holders to aid them in answering questions after their development has been built out.

7. Homeowners want to know how to file harassment documents against an offensive board officer, including trespassing, removal & destruction of homeowner property and physical abuse.

8. Homeowners do not understand their fiduciary responsibilities, especially the requirement of filing with the Secretary of State or forwarding their own HOA responsibilities on to the next elected board of directors.

9. Homeowners did not realize that an HOA is NOT responsible for damage or poor workmanship by the builder to their individual property. That the Association is responsible ONLY for common areas.

NOTICE: these comments/questions were from homeowners in single family & townhouse residential subdivisions.

79. Why does any HOA need Board of Director insurance?

Liability is the big answer!
Sometimes, homeowner-HOA disagreements result in lawsuits against the HOA. Not infrequently, such suits also name one or more HOA board members. Without adequate Directors and Officers (D&O) insurance, a lawsuit against an HOA board member can leave the member responsible for paying legal costs, expenses, and even damages. Since no prospective board member wants to risk going broke as a result of acting on the board, in order for an HOA to attract and keep good board members, adequate D&O insurance is a must.

What HOAs Need to Know About D&O Insurance
Learn why Directors and Officers (D&O) insurance is a must for homeowner associations.
PDF Read More


Courtesy Beth Ross, Attorney (legal information is NOT legal advice)

80. I need something different & challenging to interest my board, any suggestions??

EPOHOA meetings are different and challenging, we encourage all members of HOA board of directors to attend, including their homeowners who may eventually be elected by their own members in the future. Downside: when just one director attends an EPOHOA meeting it is often difficult for that lone director to share information to increase knowledge and provide their written report back to their board.

In the meantime you might try our crossword puzzle or leadership word search, both print on 8.5×11, and let us know when you’ve completed it.

EPOHOA Crossword EPOHOA Word Search Leadership

 

81. Do HOAs have to pay tax on their saved capital expense account each year?

Under US Internal Revenue Code 528, homeowners associations are exempt from taxes on income carried over, as long as at least 60 percent of gross income comes from membership assessments and 90 percent of that income is spent on maintaining the association’s property.

1976—Pub. L. 94–455, title XXI, § 2101(a), Oct. 4, 1976, 90 Stat. 1897, added part heading and analysis for part VII.
§ 528. Certain homeowners associations

PDF Read More

 

82. I am a committee representative for our HOA, do I have to provide a report to the HOA Board of Directors?

Typically all committees should/must maintain and publish notice of their actions to unit Owners and the Executive Board. It is smart to provide written summary for the Board of Directors to include within the minutes as part of the permanent record of proceedings.

For example, when your HOA Board appoints you as their representative to attend meetings outside of your HOA, e.g. EPOHOA, County Commission, Planing & Zoning or perhaps contractors being considered and yes, even state legislation assemblies, etc., representatives attend, like you, on behalf of their HOA.

As your HOA representative, you agreed to attend related meetings and/or assemblies faithfully and with due diligence. We encourage you to always inform your HOA of date, location, subject, proceedings, and summary facts covered. Should handouts or materials be made available you should also bring those back to your HOA Board for circulation to your homeowner members.

Sharing information is indeed increasing knowledge!

83. My HOA says we must have a fidelity bond, really?

Fidelity Bond
Fidelity insurance requirements protect association operating and reserve funds from inappropriate use, embezzlement or stealing on the part of board members having access. Community associations are required by law to have this coverage.

Below is a reprint of the fidelity insurance requirements from Fannie Mae:

The fidelity insurance policy should cover the maximum funds that will be in the custody of the owners’ association (or cooperative corporation) or its management agent at any time while the policy is in force. A lesser amount of fidelity insurance coverage is acceptable for a project if the project’s legal documents require the owners’ association (or cooperative corporation) and any management company to adhere to certain financial controls. Even then, the fidelity insurance coverage must at least equal the sum of three months of assessments on all units in the project.

A lender may accept reduced fidelity insurance coverage based on greater financial controls only when the financial controls take one or more of the following forms:

• The owners’ association (or cooperative corporation) or the management company maintains separate bank accounts for the working account and the reserve account, each with appropriate access controls, and the bank in which funds are deposited sends copies of the monthly bank statements directly to the owners’ association (or cooperative corporation);

• The management company maintains separate records and bank accounts for each owners’ association (or cooperative corporation) that uses its services and the management company does not have the authority to draw checks on – or to transfer funds from – the owners’ association’s (or cooperative corporation’s) reserve account; or

• Two members of the Board of Directors must sign any checks written on the reserve account.

SOURCE:  http://homeownersassociationinsurance.net/fidelity-bond/

84. Our HOA is confused about which court to choose for delinquent assessments – magistrate or civil?

Some HOAs prefer magistrate court and may be successful, while attorneys representing an HOA will use a civil court.  An HOA is not a person and must be represented somehow, that’s when attorneys enter into the situation. Don’t forget when a case involves real property, you must file in the county where the property is physically located.

MAGISTRATE COURTS: magistrate courts, which handle small claims is where most court cases are heard. Because magistrates have the most contact with the public, they are known as the “people’s court.”

There are 158 magistrates in West Virginia, at least two in every county and ten in the most populous county, Kanawha County. They hear misdemeanor cases, conduct preliminary examinations in felony cases and hear civil arguments with $5,000 or less in dispute. Cases lost in magistrate court can be appealed to circuit court.

CIRCUIT COURTS:
There are thirty-one circuit courts in West Virginia with a total of seventy circuit judges. Circuit courts are West Virginia’s only general jurisdiction trial courts of record. They have jurisdiction over all civil cases totaling more than $300. Civil cases usually involve private property rights, not criminal activity.

cases for each county in West Virginia, in the year of 2015

Courtesy West Virginia Judiciary

85. What are the statute of limitations for assessment delinquencies in an HOA?

W. Va. Code § 55-2-12 (1959) (Repl. Vol. 2000) provides, in pertinent part, that [e]very personal action for which no limitation is otherwise prescribed shall be brought . . .

(c) within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative.

W. Va. Code § 36B-3-116(d) (1986) (Repl. Vol. 2005), “[a] lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three years after the full amount of the assessments becomes due.”

reference reading: Stone Gate Homeowners Association, Inc., et al, Supreme Court of Appeals of West Virginia – Filed May 10, 2007

86. What are the most important points to begin writing a proposed amendment to our WV Legislators for our suggested text for 36B?

Courtesy: David C. Hardesty, Jr., Introduction to Bill Drafting in West Virginia, 118 W. Va. L. Rev. Online 68 (2016); referencing Dr. L. Christopher Plein, West Virginia University College of Law.

WV Bill Drafting Considerations:

  • How do you frame the question(s) or define the issue(s) you are addressing?
  • Why is (are) the issue(s) important now?
  • Is legislative action the best means of addressing the matter(s)?
  • What is the intent or purpose of your proposal?
  • Can your proposal be informed by comparable actions taken on this or similar issues in this state or other jurisdictions?
  • Are there potential negative spill-over effects or unintended consequences of your proposal that can be identified and addressed now?
  • What is your time frame for realizing the policy?
  • Does your proposal take into account the committee system, rules, politics, and traditional realities of the legislative arena? When is the best time to compromise on tough political issues?
  • Does your proposal complement existing policies, institutional arrangements, and traditional practices?
  • What types of findings, sanctions, remedies, and other tools will be used to encourage the changes you would like to see adopted?
  • What objectives and benchmarks will be used to allow for future policy review and assessment?
  • Is your particular policy proposal superior to other proposals designed to achieve similar concerns?

NOTE:

36B is the Uniform Common Interest Ownership Act that most, though not all, homeowner associations in West Virginia follow either in part or whole depending upon the choices of their Declarant/Developer when initiating the association’s Declaration of Covenants, Conditions and Restrictions.

87. I live in an HOA in Berkeley County and there’s a lot of low flying military planes over my house, do you have any information about them?

YES – Colonel Shaun J. Perkowski, Wing Commander of the 167th Airlift Wing was one of EPOHOA’s guest speakers in 2016 and he provided attendees with the 167th Airlift Wing Flying Operations FAQs and answers.

  • Why are the C-17s flying in the local area more than the C-5s did?
  • Why are the C-17s required to fly at night?
  • Why can’t you reroute flights to avoid residential areas?
  • What other actions are being taken to help residents?
  • How do I file a noise complaint?

 

88. Our HOA is considering a community fireworks display, are there any HOA requirements?

EPOHOA has not tracked associations that put on fireworks displays, though it is a good future survey question to consider.

However, we encourage any HOA to contact their insurance company, the local fire department and the city or county of their location for any requirements and/or guidelines that may be required. We also encourage HOAs to review their governing documents and consider developing a fireworks policy.

2016-2017 WV State Fire Marshall Fireworks Display Application

reference  firemarshal.wv.gov

89. Are HOAs bound by the WV Open Meetings Act?

The State statute on Open Governmental Proceedings, sometimes called the Open Meetings or “Sunshine” Act, was enacted to ensure that the proceedings of all public agencies are conducted in an open and public manner, so that the people may be informed about the actions of their governments and retain control over them.

Reference Summary West Virginia Code § 6-9A

An HOA is not a public agency.

Member homeowners,  e.g. all unit owners within an HOA retain their attendance rights at board meetings and annual meetings with the exception of executive session.

90. What is the minimum notification for a board meeting?

WV Uniform Common Interest Ownership Act §36B-3-108. Meetings.

A meeting of the association must be held at least once each year. Special meetings of the association may be called by the president, a majority of the executive board, or by unit owners having twenty percent, or any lower percentage specified in the bylaws, of the votes in the association. Not less than ten nor more than sixty days in advance of any meeting, the secretary or other officer specified in the bylaws shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address of each unit or to any other mailing address designated in writing by the unit owner.

The notice of any meeting must state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove an officer or member of the executive board.

COMMENT : not all WV HOAs enjoy the full intent of the law regarding §36B.

HOA board of directors’ meetings are not necessarily noticed by a secretary through the US mail. Most HOAs post the time, date & location on a physical bulletin board, website or through e-mail.

However, it is a requirement of an HOA Annual Meeting that notice be given through the US mail to all homeowners, e.g. unit owners.

Most important – be familiar with and review your HOA governing documents.

also see FAQ #39

91. My HOA is concerned about optional insurance coverage, can you help us? Is there anything on sinkholes?

HOAs must have insurance and are sometimes unaware of optional coverage.  We have provided a summary of non-definitive options. The attached article is in the public domain. It may help the reader to understand options by learning about Errors & Omissions (E&O) for their current HOA insurance as well as their members’ individual homeowner insurance coverage.  EPOHOA encourages everyone to contact their own insurance carrier for information.

Sinkhole insurance may not provide coverage for damages from mine subsidence, so be sure to review your policy carefully to see if you need additional insurance.

Mine Subsidence: [the keyword to look for in your insurance policy]
Man made underground mines, including, but not limited to coal mines, clay mines, limestone mines, and fluorspar mines and recently fracking/drilling collapse.

ISO HOMEOWNERS OPTIONAL COVERAGE ENDORSEMENTS
PDF 18 pages

one example:
HO 04 99–Sinkhole Collapse

This endorsement provides coverage for direct loss caused by sinkhole collapse, and renders the basic policy exclusion of earth movement inapplicable to such an occurrence. Sinkhole collapse is physical damage suffered when underground action of water on limestone or similar rock strata causes the actual collapse or settlement of the earth supporting the damaged property.

also see FAQ #77

92. HELP – I’m looking for how to handle delinquent assessments, I remember EPOHOA had a workshop on collecting delinquent assessments – did EPOHOA record what the lawyers went over?

What you are looking for is: HOA DEBT COLLECTION – RIGHTS – OPTIONS – ACTIONS

EPOHOA Members in good standing have access to workshop materials.

93. How do I log into the protected areas of the EPOHOA website – where do I get a password?

Your membership MUST  be in good standing.
Contact membership@epohoa.org for the password to access protected areas of the EPOHOA website.

STEP 1:
choose EDUCATION from the menu bar
STEP 2:
click Workshops and Seminars
STEP 3:
click Continue to Login
STEP 4:
type in the password then click Enter

Hurray – Success, you have access to previous education sessions, workshops and seminars including court forms & educational videos.

Or use our handy tip sheet prints on 8.5×11 paper

 

94. My HOA annual assessment keeps going up and I want to know how much it will really cost to maintain my HOA?

First – you appear to have a Board of Directors that have knowledge and understanding by looking out for your property values and increasing your annual assessment each year.

Second – the real cost to maintain and sustain your HOA’s property, e.g. COMMON AREA can be found by reviewing your:

  • Annual Budget provided prior to and during your annual meeting, and/or by
  • Reviewing your reserve study

Unfortunately there is no WV disclosure law, at this writing [2017], requiring a declarant [developer] to provide that critical information for you. The responsibility rests entirely on the shoulders of your Board of Directors.

Should your Declaration of Covenants, Conditions and Restrictions include WV §36B Uniform Common Interest Ownership Act (UCIOA) there are two sections that immediately come to mind that may be helpful:

§36B-3-118. Association records.
The association shall keep financial records sufficiently detailed to enable the association to comply with section 4-109. All financial and other records must be made reasonably available for examination by any unit owner and his authorized agents

§36B-4-101. Applicability; waiver.
(i) The declarant [developer] has a reasonable and good faith belief that the maximum stated assessment will be sufficient to pay the expenses of the planned community;

also see FAQ #62

95. How long can my HOA last?

Any HOA, including yours, should last as long as the Board of Directors exists and follow the Declaration, the Bylaws and continue updating amendments, policies, resolutions and guidelines, e.g. governing documents.

Enforcement depends on how well a Board of Directors remain dedicated to increase property values.

At this writing [summer 2017] there are no WV laws to require a staffed state agency to enforce HOA’s to follow their HOA governing documents.

Bottom Line: it’s all up to you, the homeowner, to make or break the longevity of your HOA.

96. We are having trouble locating CHAPTER 129 when reading Chapter 36B-1-201, can you help?

EPOHOA cannot answer all the questions, though we can indeed try, we’ve received a reply from Rich Olsen, Director, WV Legislative Services,  Acts of the Legislature of West Virginia

Original Inquiry 8-1-2017:

I am having trouble locating CHAPTER 129 when reading Chapter 36B-1-201.

129 might be a typo or repealed, can you help me please?

§36B-1-201. Applicability to new common interest communities

Except as provided in sections 1-202 and 1-203, this chapter [36B] applies to all common interest communities created within this state after the effective date of this chapter.

The provisions of chapter fifty-three [§53 Extraordinary Remedies], acts of the Legislature, one thousand nine hundred sixty-three [1963],

chapter one hundred twenty-nine [§129], acts of the Legislature, one thousand nine hundred eighty [1980], typo – repealed?

and chapter thirty-eight [§38 Liens], acts of the Legislature, one thousand nine hundred eighty-four [1984], do not apply to common interest communities created after the effective date of this chapter.”

Reply from Rich Olsen, Director, WV Legislative Services  8-11-2017:

As stated previously, the language highlighted above and found in current code 36B-1-201 refers back to a previous enactment of the Legislature. Acts of the Legislature 1980, Chapter 129 is the original enactment of Chapter 36B. As it was enacted in 1980, it was relating to the Uniform Condominium Act (which is separate and distinct from Chapter 36A, Condominiums and Unit Property).

Chapter 36B in its current form, the Uniform Common Interest Ownership Act, was enacted in 1986. Acts of the Legislature, Chapter 164. The 1986 reenactment of Chapter 36B replaced the previous language, relating to the Uniform Condominium Act, in its entirety and renamed it the Uniform Common Interest Ownership Act.

The 1984 date which you mentioned is incorrect. There was indeed a reenactment of Chapter 36B in 1984, which can be found in Acts of the Legislature 1984, Chapter 38, but the language then replaced the language first enacted in 1980, leaving it as the Uniform Condominium Act.

97. My HOA is not participating correctly with a couple of disabled homeowners – do you have any information that would convince my HOA to back off?

Well this question is easy – though in some instances HOAs may not be fully aware.

The two most important points are:

  •  All HOAs should review whether their current insurance policies include coverage for fair housing claims.
  •  All HOAs must ask themselves what constitutes a “reasonable” accommodation.

“For example, if an undue financial and administrative burden would be placed on the association or if the accommodation would fundamentally alter the nature of the association’s operations,  the request can be denied.

Whether an accommodation constitutes an undue financial or administrative burden will vary from case to case and will depend on a number of factors, such as the association’s financial resources, the benefits that the accommodation would provide, and the availability of alternative accommodations that may meet the person’s needs.

With reasonable modifications, there must be a close relationship, or nexus, between the requested modification and the disability. If there is no such nexus, the association may be able to refuse to allow the modification.

However, the nexus is often very fact specific and will vary in each case depending on the nature of the disability and the specific modification that has been requested.”

Courtesy of Rees Broom, Inc. – Attorneys at Law
Community Associations Institute (CAI)
2011 Newsletter (PDF)

also see FAQ #91

98. Can my HOA refuse solar panels on my roof?

Solar panels cannot be refused – BUT (yes, there is always a but) you must follow the HOA’s guidelines and that’s where homeowners receive approval or refusal.

West Virginia §36-4-19. Solar energy covenants unenforceable; penalty. (effective June 2015)

The most important practice of any homeowner associations’ Architectural Committee must be reasonableness.

Typically, HOAs are responsible for developing solar panel guidelines, especially if and when they are not specifically outlined in the Declaration of Covenants, Conditions and Restrictions of which are generally aimed at restricting certain property uses of a homeowner and ensuring uniformity of appearance.

Whenever a homeowner is denied installation of solar panels (or any other requests) the homeowner has every right to appeal, and yes, retain their own legal counsel. TIP: homeowners’  DCCRs, Bylaws and Guidelines outline time frames for particular actions to be completed, such as 30-60-90 days.

“The problem arises in the context of the association’s architectural controls, commonly found in its declaration of covenants, conditions and restrictions (CC&Rs). The developer creates these [D]CC&Rs to ensure the uniform appearance and preserve the ‘curb appeal’ of the project throughout its construction and build-out phase. After the development phase is completed, the responsibility for interpreting and enforcing the architectural controls is passed onto a Homeowner Association and its Architectural Review Committee made up of elected members of the community. In the hands of an overzealous ARC, [D]CC&Rs can become a straightjacket to solar development.”

Department of Energy 2016

(Subdivision developers/builders in most states after 2015 were smart in erecting new homes to take advantage of “positioning” for their new home buyers as a selling plus. We have all learned south facing is optimum in the northern hemisphere, and north facing is optimum in the southern  hemisphere for solar panels to be efficient.)