Excuse me while I step in it, but what’s the deal with Roberts Rules of Order?  I am regularly asked that question and often times in meetings board members and homeowners look to me for parliamentary citations.

I’m a lawyer, not a parliamentarian, and as legalities go in the HOA/Condo world, there are few statutes or laws that require HOA and Condo boards to follow the Rules (notice the royal capital “R”) or any special meeting procedure. There are even fewer CC&Rs and bylaws that even mention the late great Major Henry Martyn Robert, III.

Arizona’s state laws and regulations do require proper notice and do allow homeowner participation at board meetings, and HOA and Condo CC&Rs and bylaws do sometimes require certain meeting procedures.  But rare are the documents that actually mandate that a board use Roberts Rules when conducting regular board meetings.   Therefore, in most communities, the religious use of Roberts Rules becomes a hindrance, not a help, when conducting productive, orderly and legal meetings.

Don’t misunderstand, conducting meetings in an orderly manner is essential to good association governance.  But parliamentary zealots and boards who buy into the good book are what make some association meetings unbearably long, unproductive, and boring.  Here are a couple of salient points about why I always encourage orderly meetings but think that Robert’s Rules may not really be helpful at regular meetings of an HOA/Condo board.

1.    Robert’s Rules were not really written for a small assembly of 3, 5 or 7 board members.  Other than the annual or special membership meeting, most association meetings happen at the board level.  Oftentimes, there are only a handful of homeowners in attendance.  Even when there are hundreds at a board meeting, the board meeting is still a small assembly as only the board may vote (some state laws allow member comment and participation).  Even Robert’s Rules recognize the need to relax the Rules in smaller assemblies.

2.  Let the Board President vote already.  In large assemblies, Robert’s Rules make it clear that the presiding officer must appear impartial and vote only if there assembly is divided on a decision.  This isn’t the United States Senate or corporate shareholder meeting,  and in HOAs and Condos, a board president is a director and an officer.  The bylaws may require the board president to conduct the meetings, but I would argue that board president  who does not vote is teetering on a breaching of duty to the association.  At the very least, the board president that won’t commit to voice her vote has violated the trust and confidence of her neighbors  who voted for her.

3.  Robert’s Rules do not trump the Bylaws.  In Arizona, the law recognizes that bylaws are a contract.  If the bylaws are silent about using Roberts Rules, Roberts Rules cannot be used to “suspend” or otherwise alter association’s bylaws on issues related to voting, board vacancies and proxies.  And, watch out for the fervent parliamentarian that pushes Robert’s procedures and ignores state laws.  In Arizona, for example, there is no longer proxy voting in planned community and condominium elections.  Robert’s Rules cannot be used to override state legislative action.

Doing away with Robert’s Rules and conducting a meeting in an orderly manner should be the key.  Good preparation (making an agenda), good communication, compliance with the law, and having one board member preside over the discussion should be sufficient for the board to have good deliberation and to make good decisions.  An HOA or Condo board of three shouldn’t need a 208 page book to discuss and vote on a $500 landscape irrigation system repair.

Blog entry adjourned.

By. J. Roger Wood
Carpenter Hazlewood Delgado & Wood, PLC

We see it all.  When it comes to folks unhappy with their HOA or Condo Association, we know all flavors of shenanigans.  Some write letters.  Some buy 200 parakeets and house them in the condo.  Some people mail feces in a box to the association attorney and the local justice of the peace (wait for a future post about that one).  Still others organize B0ard recalls to bolster member support and they oust the directors.  There are even a few that hire lawyers (or don’t hire lawyers) and file lawsuits.

I was scanning the newspaper this week looking for our firm’s advertisement about an educational seminar in Tucson, March 9 and I stumbled upon this small, but interesting advertisement.

HOA conspiracy theorists and stalwart CAI party-liners alike can enjoy this bit of anti-HOA propaganda.  For my part, I read it, scratched my head and went, “Huh?”.

The advertisement is commendable in that it does not defame or slander anyone or any organization.  There seems to be a passionate concern about association expenditures and the high cost of the assessment, both in dollars and cents and in the impact on the membership.

But the cryptic language and veiled identity (ies) of the DOCD takes the ad to another level.  Who is DOCD (and where is Maxwell Smart when we need him)?  Where can someone who shares a similar disdain for paying assessments join up?  What if I am not that sick, but just deal with seasonal post nasal drip – can I get my assessment obligation canceled?

We see these slings and arrows hurled at our Association clients (and often at us) with regularity.  But we also see these cryptic messages are of little value to the community. In Arizona, deed restrictions are a binding contract. They do run with the land.  The law in Arizona states that any owner (and any potential owner) has record notice of those restrictions if they are properly recorded.  Arizona statutes cap annual assessment increases (without a vote of the membership) at 20%, and boards do enjoy some discretion about how to spend those assessment dollars.  The ad pushes against all of those legalities, but is short on practical ideas for changing the community.

So, today’s free advice for any and all association members with an issue, an axe or an anonymous cryptic advertisement to grind: join a committee, vote at the annual meeting,  pay your assessments, read your community’s governing documents, and go to a board meeting once in a while.  If the issues are serious, call a lawyer, get neighbor support to make a change and just get involved!   But please stop wasting your money on creepy newspaper adverts and don’t overnight me anymore poo!

There was an incredibly interesting story on National Public Radio last week.  Our nation’s turbulent history of racial segregation and is not as far back in our past as we all want to believe.  This is certainly true of racial and ethnic discrimination in housing transactions.  The story not only reminds us of the failings of our past, but spins into a modern day fair housing dispute.  While few of our clients deal with direct discrimination such as  deed restrictions that prohibit ownership or occupancy based on race, fair housing concerns are chief among the discussions we try to have with our Association clients.  For this reason, I thought this story particularly instructive for both its historical remembrances and lessons for today.

In this particular situation, an historic community called Myers Park, located in Charlotte, North Carolina has one of those fair housing situations on its hands.  The controversy has to do with the original deed restrictions placed on these properties back in the early part of the last century.  In addition to the park-like look and feel the original restrictions hoped to protect, these early restrictions also included a prohibition on the sale to or occupancy by people of certain races.    The original deed language, now nearly 100 years old, requires that Myers Park properties “be used for residential purposes only and shall be owned and occupied by people of the Caucasian race.“  Given the social and political situation in pre-civil rights era America, we shouldn’t be surprised about these kinds of restrictions.  But what may be surprising to some of us is that these deed restrictions continue to exist in their original form, even though civil rights laws and the courts have long ago deemed such restrictions unenforceable.

The story does well to discuss the argument to remove such void and obviously socially abhorrent language from  restrictions.  There are smarter folks than I that are studying and researching these kinds of property restrictions.  For the sake of the legacy we will leave to our children and grandchildren, we all need to be aware of the horrible injustices visited upon Americans of different races and ethnic backgrounds.  This was not a pleasant part of our history, but the NPR story and the related research by a Seattle Washington historian are important public discourse.

As if the issue of the discriminatory restrictions were not challenging enough, one phrase in the story stuck out at me as a warning for all HOA and Condo boards.  Obviously this beautiful community cares about how owners maintain these beautiful homes, but the story about a nice community with a challenging history is now a current legal controversy.  For decades, owners and others were aware of the unenforceable deed restrictions, but the void language “wasn’t even an issue until the homeowners association posted a sample deed on its Web site that included the racial wording.”

Boards, Managers, Homeowners, Landlords, Realtors, Title Officers and anyone dealing with Real Property – Fair housing issues are not the stuff of yesteryear.  These claims and issues are real.  The law cares little of your intent.  Here, I have no doubt this board only hoped to have all the neighbors better understand the valid and enforceable recorded restrictions.  The Board’s intent here was to continue to keep the community look-and-feel at the required standards.  The Board wanted to keep values high and the Association members well-informed.

But, fair housing disputes are rarely about intentional discrimination.  Government agencies that enforce the laws and the plaintiff’s attorneys assisting effected homeowners need only to argue the impact of the board’s actions.  Very few clients that talk to us about fair housing claims likely have such an intent, and those that do can easily hide it.  Long is the meeting and difficult the solutions when a well-intentioned board has acted in a way to impact and implicate a fair housing issue.  These cases open the Board to much liability and can cost much in time, attorneys’ fees and in some cases sanctions for board members, community managers and association employees.

And the legal battle at Myers Park rages on. We will watch and we will continue to advise and warn our clients about the trials and travails of fair housing complaints. The lesson is that a simple web-page post can turn into a fair housing problem and unwanted national media attention.

In the end, perhaps Dr. King said it best -

Many of the ugly pages of American history have been obscured and forgotten….America owes a debt of justice which it has only begun to pay. If it loses the will to finish or slackens in its determination, history will recall its crimes and the country that would be great will lack the most indispensable element of greatness –justice.     – Dr. Martin Luther King, Jr., 1967

Jason Smith, one of the Carpenter Hazlewood attorneys and fair housing issue guru, assisted in preparing and editing this entry. Thanks, Jason.