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WE ALL KNOW that the community association world is a special place. One of the things we have that makes us unique is the ability to help kick-start the economy.
Take a look at your reserve study and use it as a guide for capital projects that you can start planning. The money for these projects has been accumulating for years. Now is the time to spend it—not only to maintain your property values but also to put contractors to work at a time when they can use it.
If your community has the money to spend and anticipates remaining in good financial shape through the pandemic, you can get great quality at great prices while increasing property values. Now is the time to plan, not to hold back.
Let's help get the world back to normal as only our industry can.
Mitchell H. Frumkin is president of Kipcon in North Brunswick, N.J. www.kipcon.com
»Your Turn: Are community associations in a good position to help kick-start the economy?
CLOSE TO A year since the COVID-19 pandemic upended our lives, we now have some insight into its impact on community association operating budgets, reserves planning, maintenance requirements, and increased costs for professional services.
Sustainable association operations require accurate planning that is largely based on the reliability of budget projections and reserve studies. Any miscalculation from unforeseeable events—such as the pandemic—can easily result in unanticipated operating costs or underfunded reserves that will pose challenges for the association.
For example, the effect of residents spending more time at home and around the association will likely shorten the lifespan of common area and amenity components from increased use. An association with a pre-COVID-19 reserve study that projected a component replacement at 10 years may be confronted with repairs or replacements much sooner than the initial forecast.
A sustained presence of residents has led to higher operating expenses as well, including waste removal, routine maintenance and upkeep, and energy use. Costs associated with cleaning and disinfecting frequently touched surfaces and purchasing personal protective equipment also need to be factored into operating budgets for this year.
Boards should anticipate possible increases in fees for professional services too, such as those from community management companies. Shelter-in-place and stay-at-home orders required management professionals to comply with health and safety mandates and function with a partial or fully remote workforce. Many management companies stepped up their operations to meet associations' increased needs, leading to working more hours than initially contracted.
In addition, general costs of doing business rose globally in 2020 stemming from wage increases, annual inflation, increase in employer premiums, cost of living, and implementation of new technologies and equipment to manage remote workforces and provide continued services. These were compounded by the demand for often expensive and scarce protective equipment and cleaning and disinfecting supplies, which took a toll on businesses struggling to meet their bottom lines.
While companies can't expect to pass all of these costs to their clients, some percentage must be recovered to remain operational. This is particularly relevant when comparing aging community associations that require more management resources and professional services than newer properties. Associations should be prepared to assume a portion of these business costs.
Being aware of COVID-19's ongoing impact on community associations and on the service professionals that support them will help boards and management more realistically forecast future expenses. Reassessment of operating budget line items and reallocation of reserve amounts to meet updated component projections based on the worst-case scenario is prudent.
The pandemic also has revealed a unique opportunity for boards to benefit their communities. It's a good time to assess the condition of the association's infrastructure and create a proactive maintenance plan to improve property values. Residents working from home who have flexible schedules, for example, may be more inclined to volunteer on committees or as part of a neighborhood watch group.
The pandemic and emerging technologies have significantly changed where and how work will be performed in the future. Research and consulting firm Global Workplace Analytics projects that roughly 60% of workers around the world worked from home in 2020, and an estimated 80% want to make the switch to full-time remote work. If a large number of residents remain working at home, it could bring more changes to community associations.
Spending the majority of the day inside the community can make boards prioritize the enhancement of residents' quality of life with aesthetic improvements to common areas, which also will increase curb appeal. Furthermore, boards may need to clearly distinguish in their governing documents the differences between at-home workers and residents who establish home-based businesses, which are typically prohibited from operating in a residential community.
Professional community association management companies have always provided support and services to boards from an off-site location. Those with cloud-based technologies, newer property management software, and protocols for staff working remotely have all the tools in place to fully meet the needs of both the association and its residents during and after the COVID-19 pandemic.
Virtual meetings, which helped ensure business continuity during the initial stages of the pandemic, have become the norm to facilitate communication between boards and management. New technologies and close monitoring of employee productivity produce more transparent reporting from the management company for the communities they serve. Expanded access to personal accounts and association records give residents more autonomy and control to make assessment payments, request documents, and more.
While we can't foresee to what extent COVID-19 will leave its indelible mark on our professional and personal lives, this new normal is teaching us to anticipate, prepare for, and leverage any outcome.
Karen Martinez is CEO at ASPM-San Diego. firstname.lastname@example.org
» How is your community managing costs stemming from the COVID-19 pandemic?
FOR ORGANIZATIONS that follow Robert's Rules of Order, most tend to use the newest edition. That's because either a state or federal law or the governing documents refer not to a specific numbered edition, but to the latest edition. For instance, statutes in Connecticut, Hawaii, North Carolina, and Oregon all provide that community association meetings should use the most recent version. The model statutes from the Uniform Law Commission and some association bylaws make a similar distinction.
The new edition is the first since 2011, but don't immediately toss out your 11th edition. The every-10-years-or-so revisions tend to be tweaks, not complete rewrites. The changes are not likely to significantly change how most meetings are run. I note these general differences between the two editions:
❚ Three new subsections in Section 51 (Reports of Boards and Committees): Form and Reception of Committee Reports in General, Disposition of Particular Types of Committee Reports, and Oral Reports; Partial and Minority Reports.
❚ Paragraph and subparagraph numbers have been added to aid in referencing specific provisions (e.g., “RONR (12th ed.) 35:10-12).
❚ An expanded and more detailed index.
❚ A new appendix with 15 pages of sample rules for electronic meetings—certainly a sign of our times.
Online resources from the publisher suggest there are 89 changes between the most recent editions. The book's preface states that there are nine “notable" revisions and 13 “important points" of revision. That would seem to leave 67 other “minor" changes the authors thought should be referenced.
Many of the differences are clarifications or fine distinctions mostly of concern to professionals. The 12th edition adds greater detail or clarification as to:
❚ Different types of electronic meetings and their rules, including possible wording for “Full-Featured Internet Meeting Services," “Teleconference with Internet Voting and Document Sharing," “Some Members Participate by Speakerphone in Otherwise Face-to-Face Meeting," and “Telephone Meeting Without Internet Support"
❚ Executive session practices, the secrecy of discussions or decisions from closed sessions, and lifting secrecy
❚ The process of correcting and approving minutes
❚ The term “ballot" being broadened to include electronic devices
❚ Debate on nominations
❚ The secrecy of ballot votes
❚ Ratification of actions from an unauthorized electronic meeting
❚ When electing a group of individuals to staggered terms, who gets the longest term
❚ What should be included in meeting minutes
❚ The process for “filling blanks" (related to amending), and “close suggestions" no longer used
❚ How subordinate body bylaws must (or need not) conform to those of the superior body
❚ The phrase “one year" term of office possibly being more or less than one year
❚ The duties of a vice president
❚ When a negative vote is “intrinsically irrelevant" and not needed
❚ The adoption of convention standing rules
❚Quorum at conventions related to attendance
❚ When the Chair can “assume" a motion
❚ Timeliness requirements for a Point of Order and greater details on what are “continuing violations"
You can review a more comprehensive list of changes at www.robertsrules.com. More resources on meeting procedures are available at lawfirmcarolinas.com/blog/category/parliamentary-law and www.jimslaughter.com.
James H. Slaughter is a partner with Law Firm Carolinas in Greensboro, N.C., and a fellow and past president of CAI's College of Community Association Lawyers. He is author of The Complete Idiot's Guide to Parliamentary Procedure Fast-Track and Notes and Comments on Robert's Rules.
THE CHANGES in accounting requirements made in 2019 by the Financial Accounting Standards Board (FASB) do not entirely serve the purpose of financial reports and audits for community associations. The FASB interpretation of revenue recognition for reserves considerably understates the financial health of a community association like mine.
I manage a 30-year-old, mixed-use gated community that is 80% single-family homes and with more than 2,600 owners. Our concern is that reporting should give the most accurate information to respond to questions such as: What is the likelihood of a special assessment? Will the assessment rate go up rapidly? How much is a home actually worth? Is a nonprofit association supposed to pay taxes on accumulated funds?
The association owns about a third of the 2,850 acres in the community but does not own or operate the golf course, swimming pools, tennis courts, gym, or boat yard. It does own and maintain roadways, open spaces, walking trails, parts of rivers and creeks, 96 retention ponds plus a large drainage system, two small gatehouses, and a 2,000-square-foot office building. About 20% of annual revenue is allocated to reserves for replacements, emergency repairs, and capital expenditures. The reserve study has a 40-year projection and is updated annually.
The primary basis of the new FASB ruling appears to be that assessments and other revenue collected in advance for services to be provided cannot be recognized as revenue until the services are given (and, in many cases, further supported by a contract or other binding commitment). If an association collects assessments in advance and is obligated to give services over time, it might not be recorded as revenue until the service is provided. Revenue for most communities is often collected on a monthly or quarterly basis, and services and maintenance must be provided.
The association's objections to its auditor's interpretation of the new FASB ruling is the use of the “deferred revenue" category and whether certain funds should be reported in the liability or equity sections of the balance sheet. Our gross annual revenues are slightly over $4 million—88% from assessments and the other 12% either from tolls for use of our private roads by commercial vehicles or from telecommunications company agreements.
The three largest uses of these funds are security operations, landscaping of association-owned property, and reserves to maintain roads, storm drains, retention ponds, and for capital improvement projects and emergency repairs. We essentially have no directly paid expenditure for services or insurance on properties owned by private owners.
Deferred revenue is used for funds paid with the expectation they will be repaid or are used as payments in advance for future assessments. Deposits for construction activities are repaid if the project is completed and passes a final inspection, if they are properly classed as deferred revenue until the project is closed.
Owners who pay more than the current assessment and are prepaying a future assessment have their payments treated as deferred revenue, because if the owner leaves before the property is next assessed, the association will refund that money. If assessments are paid for the entire year and the home sells from one owner to another, the closing transaction settles a credit for the paid assessment, but the association does not refund any assessment money.
The interpretation on reserve funds completely fails to recognize normal practices in reserves. Our general concept is that current owners should pay as they go. If a road needs repair 15 years from now, the owner who lived here and contributed annually for those 15 years has properly paid into the reserve. The owner who bought just last year has only made one contribution but also has only put one year's worth of wear and tear on the roads.
Most importantly with reserve funds is the fluidity and the suggested criteria FASB states regarding when reserve funds can be recognized as revenue. We collect and hold money for roads and drainage repairs which may well occur 15–25 years out. We own about 32 miles of road and 33 miles of drainpipe. We cannot saddle homeowners 20 years from now with special assessments. The actual value of a home in our community depends, in part, on recognizing that reserve funds are assets and should have a status similar to retained earnings in the equity section.
What is done at the start of each year is approval of an annual budget by homeowners that authorizes reserve expenses planned for the next year. We might plan for a primary road to be resurfaced in six years, but it might happen in four or eight years. If another hurricane comes along, we would most likely move some funds planned either for replacement or capital projects to emergency repair so that we do not have spikes in assessments to pay for large storms. FASB wants commitment to a contract, but such a contract will not be codified or authorized for some years.
In summary, more than 90% of our total revenue would be deemed deferred for some period of time, and some of it deferred for years. It is not an accurate representation of our financial position.
» How is your community navigating the FASB's new accounting requirements?
John Watkins is the general manager of Dunes West Property Owners Association in Mount Pleasant, S.C. email@example.com
GIVEN RECENT protests for social justice and the current political landscape, it should come as no surprise that the use of the word “plantation" in community association names has become a topic of conversation. It is particularly true in North and South Carolina, where the history behind the word stirs up a mixed bag of emotions for different people.
Many community association boards struggle with the best approach to this delicate topic. Some residents in these communities are strongly for removing “plantation," while other residents are strongly against it.
Those who are against removing the word say it would be a potentially expensive rebranding that is difficult to accomplish and detrimental to the community's reputation and even home values. To some, the word denotes a certain lifestyle and recognizes the history of the land as tied to prestige and wealth—and that using it as part of a marketing strategy emphasizes these aspects.
Some communities say there is no real support for making a name change, and that an amendment to the governing documents would require at least a supermajority of all owners or may be an expense that owners aren't willing to support. Finally, there's the argument that removing the word is erasing history rather than educating about it, and that it doesn't address social issues or change individual behavior—constituting empty symbolism.
However, those in favor of removing the word say that its use could deter potential homebuyers because of its negative connotation and close ties to systems of discrimination, segregation, and slavery. They say removing the word encourages sensitivity to racial issues and is a small (and relatively easy) step in the larger battle against discrimination. In addition, they argue that we would never use words such as “ghetto" or “servitude" to name a neighborhood, so why continue to use “plantation" in the name of community associations?
Each of these arguments is on the table when communities consider whether to change their names, and they carry different weight in each. We've had more than one community look to change their name but be deterred by the cost because it may require amending several documents after obtaining homeowners' approval.
Some associations where cost is not a concern have objected to the change because of the community's reputation in the area. To them, changing the name would mean losing the well-earned, favorable reputation built up over time. Other communities have wanted to make the change regardless of these considerations and felt like it was the right thing for their residents.
A good approach to something like a name change will always involve the homeowners. For example, holding town hall meetings where different residents present the pros and cons of the debate in written formats and in person (or virtually because of the COVID-19 pandemic) allows people to comment and share their opinion in a respectful and organized way. Even better would be fostering open discussions and opportunities to work with local groups on the topic of discrimination and inequality with the goal of positive change.
When all is said and done, there may not be a one-size-fits-all answer; the right decision is the one made by the residents for their individual community. In some communities, that means making the change, but even when the decision is not to do so, the process can bring people together and provide a forum for understanding, education, and progress.
David C. Wilson is an attorney with Law Firm Carolinas. He is licensed to practice in North Carolina and South Carolina. firstname.lastname@example.org
» Your Turn: Is your community association considering changing its name?
BOARD MEMBERS, community association managers, and homeowners have been forced to fundamentally change how they go about conducting business in their communities during the COVID-19 pandemic. Holding on-site meetings is no longer feasible nor is expecting owners to cast their vote in person; both activities are simply too risky in this current state. Fortunately, the solution to these challenges already exists in the form of electronic voting.
Unfortunately, electronic voting had faced considerable resistance from a vocal minority of the community association industry here in Canada. While homeowners associations, condominium communities, and housing cooperatives in other countries have embraced electronic voting, few in Canada were even aware it was a possibility.
The pandemic changed that. Adoption levels have spiked as even the most strident critics were forced to acknowledge that not only was electronic voting the way of the future, but it is also a necessity in the present. With opponents forced to wave the white flag, electronic voting is finally getting a fair shake
In my experience, homeowners who have participated in electronic voting have high praise for it. They get to cast their vote through a secure online voting platform at their convenience and in private. They participate in the voting process and express their personal preferences—free from the influence or interference of others who may have a different agenda.
Electronic voting dramatically increases homeowner participation, frequently up to 90% or higher. Homeowners engage in the voting process and express their opinions because it is easy to do. All it takes is a click. The increased participation also ensures that quorum is easily obtained, often weeks in advance of a meeting, which translates into accountability.
Homeowners are not the only ones who vouch for electronic voting; boards and community managers motivated to serve in the best interests of their communities also have embraced it and welcome the accountability that comes with increased participation. To them, it's an affirmation and recognition of a job well done.
None of this should come as any surprise. Homeowners expect the same seamless and easy-to-use digital experience in community living as they do in other areas of their lives. The very notion that an owner should need to use a proxy to give someone else the right to cast a vote on their behalf seems like a holdover from a different era.
It's easy to see why even before the pandemic, electronic voting was the norm in over half the states in the U.S. and spreading rapidly. It also is easy to see why some states, like Arizona and Florida, have passed legislation that prohibits proxy voting, and other states are in the process of doing the same.
Arizona prohibits proxy voting after the developer passes control of the condominium to the homeowners. Florida, another state with a high density of condominiums, prohibits proxy voting for board elections. Illinois states that once a condominium adopts electronic voting in its rules and regulations, proxy voting is no longer allowed for board elections. New Jersey recently allowed condos to use electronic voting and, at the same time, passed a law that prohibits condos from offering proxies to owners unless they also allow owners to cast absentee ballots, effectively rendering proxies meaningless.
Why are these states passing laws to prohibit or severely curtail the use of proxies? Experience has shown that proxy votes may entrench incumbent directors by concentrating power and decision-making in the hands of a few—resulting in low director turnover, minimal accountability, and conflicts of interest that favor the few at the expense of the many.
Some U.S. states are now discussing whether the ban on proxies should include any type of election the association holds. There is a reason proxies have been banned in political elections in most democratic countries; if the goal is to ensure the integrity of the electoral process, allowing someone else to cast your vote makes no sense.
Canadians have historically been slow adopters. We are cautious by nature, we encourage consultation, and we seek consensus— all of which take time. But when it comes to electronic voting, the need for its widespread adoption is self-evident and urgent.
Those seeking to resist the tides of change and hang on to the inherently flawed system of proxy voting (whether by electronic or paper means) may have their own reasons for doing so, but the COVID-19 pandemic should make them concede that electronic voting is both the present and the future, and in the best interest of the communities they serve.
Denise Lash is founder and principal of Lash Condo Law in Toronto and a principal of CondoVoter, which provides services for electronic voting and virtual meetings. She also is a founding member and past president of CAI's Canada Chapter. email@example.com
» Your Turn: What has been your experience with electronic voting?
LET'S FACE IT: The COVID-19 outbreak means we're all adapting to a new normal for a while. The community association management job we had in late February, whether we've been doing it for weeks, months, years, or decades, feels a lot different now. Our priorities have changed, and so have those of the homeowners who live in the communities we manage.
Facilities and finances were probably not top of mind for many community association residents before the outbreak. Now, as residents spend more time at home and household income possibly decreases, association expenses have come into focus. Are costs going down because the pool is off limits? Is the association saving money since the clubhouse is closed and kids can't play in the playground? How does this impact my assessments?
Homeowners are asking whether associations plan to decrease or completely hold off on charging assessments. It's a tough conversation for managers to have because we know this isn't a possible outcome regardless of the circumstances. Association budgets don't account for wiggle room or lavish contingencies. Those of us who have managed communities through tough economic downturns know that collections will be challenging, and it will take a while for association finances to recover. That still doesn't mean assessments can stop or decrease for contracted maintenance and upkeep, or that the value of our management services goes down.
Temporarily closing the pool doesn't stop ongoing maintenance requirements. Canceling the contract would have an adverse impact on property values once the pool fills with algae and parts break, requiring larger expenses than would have been incurred to maintain it as usual. Cutting back on landscaping services would have a similar result, as overgrowth or dead plant material would negatively impact the community both short- and long-term. Minimizing the value of contracted security takes away a great asset that keeps eyes and ears on the property and enforces facility closures. These contracted expenses were put in the budget for a reason, and they're still important.
Projects that have been budgeted in the reserves fund and planned for years should go on as long as proper safety and social distancing measures are taken by contractors. Managers and contractors may find it's easier to accomplish some projects while fewer owners are in the common areas, such as repainting interiors, replanting areas with heavy foot traffic, and making repairs to laundry facilities that have constant use. If it can be avoided, the reserve fund should not be used to offset operating costs; associations that use reserve funds in this way will take years to recover.
How about the community management contract? Homeowners may believe that community managers now have fewer obligations since amenities are closed, but managers are continuing their work albeit under different and challenging circumstances. There are still contracts to coordinate, residents to assist, and legal requirements to meet. It's not an option to let the insurance lapse or choose to let litigation go unanswered. Someone needs to pay the association's bills, process architectural review applications, and keep the proverbial wheels for the association going in all sorts of ways.
Now is the time when community managers can become familiar with their association's budget and figure out if there are any places to cut costs, deploy resources to accomplish projects under a changing timeline, and build deeper relationships with the contractors who service their communities. Now is their time to shine.
Maureen Radon is a senior community manager with Aperion Management Group, AAMC, in central Oregon. firstname.lastname@example.org
» Your Turn: How will your community handle questions from homeowners about assessments?
RAISED VOICES, REDDENED FACES, and angry gestures. You might think you are watching a congressional hearing on C-SPAN, but you are at your community's board meeting.
The erosion of civility in our society has begun to manifest itself in private residential communities. This comes in many forms—from rudeness and disruptive behavior at meetings to more dangerous and escalating behaviors.
While it is impossible to legislate civility, the proximity of a multifamily dwelling or a community with shared amenities heightens the impact of these behaviors and creates myriad legal issues and operational challenges for volunteer boards and their managers.
Perhaps the most difficult legal issue is the determination of when a lack of civility requires action in the form of regulation, enforcement or, in egregious circumstances, additional security measures.
Boards find the quality of life and the ability to conduct business diminished as limited time and resources are increasingly devoted to the personal interactions between residents and staff, instead of the operation of the community.
It is difficult to attract and retain good staff and contractors and, most importantly, no one will want to serve on the board or a committee.
Given the obligation of the association to protect the person and property of the residents, there is a point where regulatory and enforcement action is required.
Boards that address these issues and send a message that uncivil behavior is not tolerated will do a service to their communities.
Unlike that hearing on C-SPAN that you can turn off, discord in a community association cannot be stopped at your front door. Community association residents should realize that “living together" requires a level of civility and respect that we hope will flow upward at some point.
Donna DiMaggio Berger is a board-certified specialist in condominium and planned development law, a shareholder with the law firm of Becker, and serves as the executive director of the Community Association Leadership Lobby in Florida. She is also a fellow in CAI's College of Community Association Lawyers. email@example.com. Article reprinted with permission from Sun-Sentinel.com.
»Your Turn: Is your community struggling with civility? What solutions have you tried?
While attending the CAI Gold Coast (Florida) Chapter Social in June, I met Kyle Nurminen, director of business development for Altec Roofing, a CAI business partner, and the chapter’s membership committee co-chair. Kyle was introducing Craig Glover, owner of A Better Way Home Care, as a prospective business partner. I didn’t see the immediate connection but was interested to learn how home health care fits into community association living.
A CAI brochure called “More Than Just Vendors” outlines the importance of the relationship between business partners and common-interest communities. On a short list of nine points made in the document, one states that CAI business partners are “in a better position to make recommendations and suggestions that a non-CAI business partner may not even consider.” This is exactly what Kyle did when introducing Craig to CAI.
Kyle “walks the talk” of the CAI business partner by focusing on developing relationships as assets to common-interest communities. When I asked Kyle how a home health agency fits into the CAI business partner model, he looked at me as if I was speaking a foreign language.
“How does it not?” he asked. “Whether a family member is recovering from surgery or suffering from temporary illness or even dementia or Alzheimer’s, people shouldn’t have to put their lives on complete hold. Craig provides a service that helps them manage these sorts of situations.”
A smile came to his face as he saw the veil lifted from my eyes.
“As members of CAI, whether a business partner, manager, board member, or a community association volunteer, aren’t we all here to learn from and help one another?” he asked. “If so, then why would I limit my impact by thinking my knowledge of my own position is my only asset? Anyone can do that, but that’s not what makes a solid community.”
Kyle said that thanks to CAI, he has knowledge of the entire sector; he’s had the opportunity to learn about all the other things that play a part in a community’s decision-making process. He said it’s taught him to pay closer attention to the world around him.
“If I had knowledge in any regard that may help my fellow members, wouldn’t it be in my best interest to share it?” Kyle asked. “This isn’t some sort of sales organization; it’s a community development organization.”
The “outside-the-box” introduction Kyle made was brilliant. He sees the synergy between community associations and the businesses managing their operations as an opportunity to add value and benefits to the entire community. In this case, Kyle introduced a health care agency that now becomes a resource to the community that can save residents both time and money while offering convenience and peace of mind.
I think all of us can take a few tips from Kyle’s playbook when we meet potential CAI members:
• Look beyond the obvious and into the future while building synergistic relationships.
• Educate yourself on someone else’s position but don’t feel the need to become an expert.
• Don’t assume you know everything about a potential member. Challenge yourself to really learn about and understand what the prospect does.
• Ask the right questions and see potential so you can share information.
• Come together and share resources.
• Bridge the gap and create opportunities.
• Cultivate trusting relationships. They don’t just drop out of the sky and into your lap.
Jill Kalter is principal of Resolve Mediation in Florida and a Florida Supreme Court Certified Civil & Appellate Mediator. www.resolvemediationinc.com
>>Read “More Than Just Vendors” at www.caionline.org/aboutCAI; the brochure is in the “Downloads” section on the right-hand side of the page. Read more about CAI Business Partners at www.caionline.org/businesspartners.
In September, a number of homeowners associations began reporting monthly assessment payments to a credit bureau. Such a standard financial management tool is normal for creditors, landlords, and mortgage companies, but is new to common-interest communities. It is a practice that could promote a major positive shift in how boards manage their associations.
The reporting of the information was facilitated by Sperlonga Data and Analytics, a data aggregation company that recently started helping associations report assessment payments to Equifax.
No added liability. Information reported to credit bureaus is subject to the Fair Credit Reporting Act. The law requires that furnishers of information to credit bureaus not report information if they know it is inaccurate or have a good reason to believe it is inaccurate. But if there are mistakes in the information they report, there is no private cause of action under FCRA. There is an exemption in FCRA from furnisher liability to consumers if the information is inaccurate. If there are systemic problems that cause the errors, the regulators can investigate, but as part of its service, Sperlonga assists in avoiding systemic problems. Under FCRA, furnisher liability to consumers can only arise if consumer disputes are not properly investigated.
In addition, the Fair Debt Collection Practices Act doesn't apply to associations, and reporting information to a consumer reporting agency won't make it apply. For example, Chase, Citibank, Capital One, landlords, cell phone companies, and utilities report information to the credit bureaus, but that doesn't make them collection agencies. They are creditors and furnishers to consumer reporting agencies. Similarly, associations won't suddenly be collection agencies if they report information.
It is well-settled law that FDCPA applies only to debt collectors, not entities to whom money is owed. FDCPA applies to "debts," which is defined as "any obligation of a consumer to pay money … which (is) the subject of a transaction (used) primarily for personal, family, or household purposes." Association obligations are personal debts as defined by the law. But FDCPA only applies to "debt collectors," which is defined as "any person … in any business the principal purpose of which is the collection of debts owed or due … another." The assessment is a personal debt, but an association isn't collecting debts due another—the debts are due to it.
There should be no fear that an association is operating in the capacity of a collection agency when that association is reporting account information to a credit bureau any more than Chase or landlords or cellphone companies become a collection agencies when they report.
Acceptance by associations and association attorneys. There has already been widespread acceptance of association credit reporting by many associations. Managers and attorneys say that it is filling a need.
"Reporting assessment payments will transform association management," says Julie Stephens, CMCA, AMS, president of Exclusive Association Management in Atlanta.
Ricky Zilem, business development director at PS Properties in Round Rock, Texas, believes it's the next evolution in community management. "Our goal is to offer the most innovative solutions to our associations. We continue to look for ways to provide unrivaled innovation, unmatched service, and useful solutions to the associations we manage."
At the request of clients, Homeowner Management Services, AAMC, has been looking for a credit reporting solution for some time, says Mike Crew, CMCA, PCAM, president of the Alpharetta, Ga., firm.
Jeff Rembaum, an attorney with Kaye, Bender, Rembaum in Florida, believes Sperlonga's services are a step in the right direction. "This type of credit reporting is long overdue and should be welcomed by community associations throughout Florida and the rest of the U.S.," he says.
Empowering tool. Reporting association assessments to a credit bureau can have a positive impact on a consumer's credit profile. The Consumer Financial Protection Bureau just released a report, Project Catalyst, that looks for innovators seeking to expand access to credit to borrowers who may be excluded or mispriced by existing credit models. CFPB sees opportunities to expand access by incorporating nontraditional data into credit reports. CFPB remains interested in developments that would support expanded access to responsible credit for consumers. Association data is an example of nontraditional data that would enhance such access.
All this activity by the government regulators, national credit bureaus, and credit scoring companies has encouraged the reporting of new types of data so that credit reports present a fuller picture of a person's payment history. Adding homeowner assessments to credit reports helps consumers as well as associations without adding any significant business or legal risk.
Oscar Marquis is the principal of Oscar Marquis & Associates, which specializes in privacy and consumer reporting. He served as general counsel of Trans Union, one of the three national consumer reporting agencies, for over 24 years. He also served on the Federal Reserve Board's Consumer Advisory Council. omarquislaw.com
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If your opinion piece is accepted, the full article or an excerpt of the article may be published,
at the editor’s discretion, in
Common GroundTM magazine.
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Comments should include the full name of the writer and should adhere to the
Abuse of this comments section will result in termination of privileges
at the sole discretion of CAI, and without prior notice.
Comments are not moderated. Posts solely reflect the
opinions of individual participants and do not necessarily reflect the position
or opinions of CAI. CAI does not warrant the accuracy or validity of the
contents of posted comments.
Opinion piece submissions are subject to editing for content and
clarity, and are published at CAI’s discretion. Authors must be
able to verify that the information in their articles is accurate, that the
article is their original work and that it has not appeared in another
publication. Proper attribution must be given to quotes, reports or ideas not
your own. The articles should not promote a particular company, product or
If your opinion piece is accepted, the full article or an
excerpt of the article may be published, at the editor’s
discretion, in Common Ground
Submissions may be sent to firstname.lastname@example.org.