Recently, we were alerted to a group of homeowners planning a camp-out
on their HOA's common area – without first clearing it with the community's Board of
Directors. When they were notified that
it was not permitted due to liability concerns, the flood gate (of complaints) was opened. Apparently this was not the
first social event that had been conducted without the Board’s knowledge.
The homeowners then asked for clarification on which events
(everything from water balloon fights to Easter Egg Hunts to impromptu
concerts) required ‘permission’.
The common denominator is not the activity, but that it is
occurring on common area, and therefore requires Board approval. Think of it this way - you wouldn’t dream of setting up a social
event in the lobby of the Coca Cola corporate office, without first obtaining
permission. The same holds true for
common areas within a community, which is also a business corporation tasked with
protecting property value.
While homeowners have an undivided common interest in theses
spaces, the Board is the one charged with its oversight. Anything amiss could potentially fall on
their shoulders, and ultimately upon the Association itself. The Board must be very mindful of the
restrictions spelled out in the governing documents.
For this particular community, the disclaimer stated, “Owners,
Occupants and their guests shall use the common areas maintained by the
Association and all other Common Property and all portions of the Community not
contained with a Lot at their own risk and shall assume sole responsibility for
their personal belongings…”
When an insurer is drafting the policy for the community, such
statements are used to carve out exceptions in coverage. It is the Board’s discretion as to the level
of risk and associated expenses it believes best benefits the Association.
Yes, the Board does have the authority to close off access
to portions of the common area, and also authorize special events in these
spaces. A frequent example:
“No garage sale, carport sale, or similar activity shall be
conducted in any portion of the Community without the prior written consent of
the Board of Directors. If permitted,
such activities shall be subject to all reasonable conditions that the Board may
impose.”
In the camping situation described above, the homeowners refused
to seek permission, with the expected consequences. A future Board may revisit this decision,
hopefully consulting with legal and insurance experts while crafting
community-authorized socials.
Alexander Hamilton, the guy on the $10 bill (for now at least), authored much
of the U.S. federal system. In one of
his writings (March 18, 1788) he said (paraphrased): The representatives of the people sometimes
fancy themselves as representing themselves, and become impatient and disgusted
with the least sign of opposition from others, as if the exercise of someone
else's rights infringes on their privilege and insults their dignity.
