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Minnesota Community Living 2013-09-10 Ask the Attorney
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Ask the Attorney

By Nigel H. Mendez, Esq., Carlson & Associates, Ltd.

Nigel Mendez

This column is comprised of questions that have been posed to me by homeowners, property managers and related professionals regarding legal issues that they have encountered with respect to their associations. Discussion of these questions, as well as prior questions, can be found on the CAI-MN LinkedIn page:

www.linkedin.com/groups?gid=1769135

How often should we be amending our Declaration, Bylaws and Rules and Regulations? Are we required to do this every year?

Associations are not required to amend their Declaration, Bylaws or Rules and Regulations (collectively referred to as the "governing documents”) on any set time frame. The governing documents are usually amended when the association wishes to change some aspect of the documents. For example, to impose a limit on the number of units that are rented, or to enact a smoking ban in a condominium, an amendment to the governing documents must be undertaken.

I recommend that all members of an association read their governing documents. These are the documents that state what activities are allowed in the association, how the association is run, and what happens if a member fails to abide by the documents. However, while I understand that many members never completely read these documents, all board members should. They should also be reviewed occasionally to ensure that the board members remain familiar with the documents and understand what they were elected to uphold. When reviewing the governing documents, I recommend that boards keep an eye out for these issues:

1. Consistency.

There is a hierarchy among governing documents when it comes to conflicting terms: the bylaws overrule the rules and regulations and the declaration overrules both the bylaws and the rules and regulations. Over the years, inconsistencies can work their way into documents. I have seen numerous boards enact rules that are in direct conflict with the declaration. Such a rule would not be enforceable by the association. A review of the governing documents will help ensure that the documents are consistent and enforceable. If conflicts are found, the board can either remove the conflict by repealing the rule or propose an amendment to the bylaws or declaration to be in concert.

2. Unnecessary/unused sections.

Many declarations, especially if they have never been amended, include information that is only relevant to the declarant - who is now long gone from the association. One of the most common reasons I hear for members not reading the governing documents is that they are too long. By amending the documents to remove unnecessary sections they can be greatly reduced in length.

3. Enforcement provisions.

Townhome associations created prior to June 1, 1994 are not automatically governed by the Minnesota Common Interest Ownership Act (MCIOA) and must rely on the enforcement provisions contained in the governing documents to ensure compliance. Often the older declarations contain no authority to impose fines, thereby requiring a lawsuit to force compliance. In addition, foreclosures to collect delinquent assessments must often be done via a longer and more costly "judicial foreclosure” rather than a "foreclosure by advertisement” authorized under MCIOA. An amendment to add the authority to impose fines and foreclose by advertisement may be beneficial.

4. Compliance with the law.

It is important for an association to ensure it is not in violation of any state or federal laws. For example, a provision in the governing documents that states "members who are delinquent with their assessment payments will be prohibited from voting at the annual meeting” would be in violation of current Minnesota law. While some associations just decide to not enforce such a provision in the governing documents, it is recommended that the offending provision be removed. Too often an association board will rely on the governing document without realizing that a certain provision is not legally enforceable. This action could lead to an expensive lawsuit against the association.

5. Assessment increases.

Many declarations impose a limit on the amount the annual assessment can be increased each year. The limit initially imposed by the developer when the declaration was drafted may have been used to boost sales of the units, but it is not a realistic cap moving forward. If your limit is too low to cover the budget that you have created, an amendment to the governing documents to either increase or remove the limit could be very helpful to the financial stability of the association.

During a recent storm, a tree from a neighboring property fell and landed on our condominium roof. Who should be paying for the repair?

In Minnesota, it depends on the condition of the tree (or the limb) prior to the damage occurring, and who owns the tree. You can usually establish ownership by looking at the trunk in relation to the property line. The tree belongs to the property on which the trunk is located. Trees located on a property line are more difficult and the courts will look at the intent of the parties they could be "jointly owned” trees. Once the ownership is determined, the health of the tree must be determined.

If an owner knows, or should know, that a tree is diseased, sick or dead, that owner is responsibl

e to take the necessary precautions to ensure that the tree does not cause damage to a neighboring property. An owner does not need to be an arborist, but must recognize obvious health problems: lack of leaves, obvious fungus, dead branches, prior fallen limbs, etc.

If an obviously unhealthy tree located on neighboring property causes damage to your association, the neighbor is responsible for the cost of cleanup and repair. If there were no prior indications that the tree was not healthy, the cost will likely fall onto the association. The fact that the tree fell during a storm does not automatically release the neighbor from liability if the tree was unhealthy prior to the storm.

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 understanding of the issue raised by the question but are not a substitute for acquiring an opinion from your legal counsel.

Published by Community Associations Institute — Minnesota Chapter, copyright 2013. All articles and paid advertising represent the opinions of authors and advertisers and not necessarily the opinion of either Minnesota Community Living or CAI–Minnesota Chapter. The information contained within should not be construed as a recommendation for any course of action regarding financial, legal, accounting, or other professional services by the CAI–Minnesota Chapter, or by Minnesota Community Living, or its authors. Articles, letters to the editor, and advertising may be sent to Chapter Staff Editor Joanne Penn at joannep@cai-mn.com, or at CAI–Minnesota Chapter, 1000 Westgate Dr., Suite 252, St. Paul, MN 55114.

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