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Risk from leaky roofs can bring fee hike without homeowner vote

September 13, 2009|Stephen Glassman and Donie Vanitzian

Question: Our homeowners association has fewer than 30 condos. We sent out secret ballots and asked that the owners approve an increase of $100 a month to raise enough money to replace the roofs. Only eight of the owners responded and all eight approved the measure, but our covenants, conditions and restrictions require a two-thirds vote to raise the fees more than 5%.

We do not have enough money in the operating and reserve accounts to cover anything except the bare minimum, such as garbage removal, gardeners and water and power bills. Our roofs are well over 20 years old and several of the units had problems with leaks last winter.

Predictably, those without the leaky roofs didn't return their ballots. Roof estimates from licensed and bonded companies are around $60,000. Can the board just send out notices that the monthly fee has been raised to $220 so we can replace the roofs?

Answer: California Civil Code section 1366(b) allows the board to increase the annual assessment no more than 20% in one calendar year without homeowner vote or approval.

Section 1366 states: "Notwithstanding more restrictive limitations placed on the board by the governing documents, the board of directors may not impose a regular assessment that is more than 20% greater than the regular assessment for the association's preceding fiscal year or impose special assessments which in the aggregate exceed 5% of the budgeted gross expenses of the association for that fiscal year without the approval of owners."

Whether the board can implement an increase amounting to $100 a month without requiring a vote will depend on what the assessments were on the date the increase became effective and limitations that may exist in your governing documents.

If the association determines that the leaky roofs constitute a threat to personal safety and/or a safety hazard exists, the board may levy an emergency assessment without a vote by owners to repair that condition (Civil Code section 1366(b)(2)).

It is irrelevant that owners without leaky roofs did not vote. All owners are obligated to share in the costs of repairs to the common property, regardless of whether the repair directly affects them.

It is the board's responsibility to repair and maintain the common property and it is the obligation of all the owners to pay for it.

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Send questions to P.O. Box 11843, Marina del Rey, CA 90295 or e-mail noexit@mindspring.com.

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