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Ask the Attorney – January/February 2013
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Minnesota Community Living January/February 2013

Ask the Attorney

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By Nigel H. Mendez, Esq.

T
his column is comprised of questions that have been posed to me by homeowners, property managers and related professionals regarding legal issues they have encountered with respect to their associations.


My association publishes meeting minutes that include the names, delinquent assessment amounts and unit addresses of individual owners who are behind with their assessment payments, and also publishes the units that are being foreclosed on, either by the mortgage company or the association. Is this OK?

Well, I’m going to cop out of this answer slightly, and not address the "is it OK” question, but instead answer "Is this a good idea?” All homeowners are members of the association and have a right to review the association’s books and records. They are able to see what units are behind in their assessments. It would also be permissible for the association to send out a newsletter or post a notice on an inside bulletin board listing which units are delinquent.

It should be noted that although associations have the right to inform members of delinquent accounts, it could open itself up to a heap of trouble if it incorrectly lists an owner as delinquent. Should the association state that owner X was delinquent and in fact X was current, the association could be sued for defamation. Most associations that have addressed this issue of public shaming have decided that it is not worth the risks of wrongly stating the status of an account. In my opinion, the benefit does not outweigh the risk.


I live in a newer association that recently performed a reserve study. We learned that many of our components have a 50 year expected useful life. State law only requires that we reserve for components that have a useful life of 30 years or less. How do we properly reserve for these components?

Starting with fiscal years commencing in 2012, Minn. Stat. §515B.3-1141 controls the replacement reserve requirements for MCIOA associations. The statute requires that associations include in their budgets contributions to a reserve account to fund the replacement of "those components which the association is obligated to replace by reason of ordinary wear and tear or obsolescence.” Minn. Stat. §515B.3-1141(a). Subsection (a)(1) provides that the association must consider the estimated remaining useful life of the component and states that the reserves do not have to be segregated for a specific component. This means that a single reserve account can be created where the reserve funds for all items can be commingled. In addition, the board must take into effect how much useful life remains on each component when setting the reserve contribution amount for the annual budget.

As stated in the question, the law only requires that components with a remaining useful life of 30 years or less be reserved for. If you have a component that is required to be replaced by the association and has a useful life more than 30 years, no reserve is required. However, as the years progress the useful life will eventually fall to within the 30 year window. At that time, the association must begin to reserve for the replacement of the component. Please note, the 30-year requirement is the minimum required by the statute. Although not common, the declaration may require that a longer useful life be used, or the board may decide to reserve even though it is not required to do so by the statute.

One final note; MCIOA was changed recently to require that reserves be kept in a separate bank account from the operating funds, and borrowing from the reserves to cover a shortfall in the operating fund isn’t allowed.

In my association I believe that the board is not following the governing documents. In particular we are supposed to be a no pet association and some members have pets; our garage stalls can not be rented to non-owners, but some are; and the board meetings are not being held as required. What can I do about that?

The question of what happens when homeowners do not follow the rules was addressed recently by attorney Matthew Drewes. You can read Mr. Drewes’ article, Stick to Your Guns Without Shooting Yourself in the Foot: Enforcing Your Governing Documents and Rules, which was published in the May/June 2012 issue of this magazine on the CAI website (www.cai-mn.com).

However, the question of what to do when a Board does not appear to be following the Governing Documents was not addressed. In a sense, the procedure is the same as Mr. Drewes details, as the Board members are (usually) also homeowners, and as such subject to the rules on pets, noise, etc. But when the Board is not following MCIOA, further action may be necessary.

Minn. Stat. §515B.4-116 provides that if an association violates any provision of MCIOA, or any provision of the declaration, bylaws, or rules and regulations any person adversely affected by the failure to comply has a claim for appropriate relief. This relief may include an award of attorney fees should the violation be recognized by the court. Most associations have similar language regarding lawsuits and awarding of attorney fees in their declaration, which would be beneficial for non-MCIOA associations.

Even though you have the right to sue, and be awarded your attorney fees if you prevail, it is often not the best course of action. As a member of the association you would, in effect, be suing yourself. Any attorney fees that are awarded would partially be paid for from your annual assessment, or even a special assessment. Before running to the courthouse, I would recommend that you attend a board meeting and make a real effort to notify the board of any concerns, and provide them an opportunity to research the issue and correct their behavior. I have found that most instances of a board not following the governing documents or MCIOA is an innocent mistake and not an intentional shirking of their duties.

To have a question answered in a future article, please email it to me at nmendez@carlsonassoc.com with the subject line of "Ask the Attorney.” While I can’t promise that all questions will be answered, I will do my best to include questions that have a broad appeal. Questions will also be answered by other attorneys practicing in this area of law. The answers are intended to give the reader a good under- standing of the issue raised by the question but are not a substitute for acquiring an opinion from your legal counsel.

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