Unit owner concerned about language added to HOA’s rules

Q: The homeowners association (HOA) of our complex added language to the association’s rules and regulations that I believe is alarming and invalid. I read your column every week and wanted to get your take.

Our HOA has around 70 units. A section of the new rules was adopted without discussion and without consultation with the unit owners. The new rules state that each unit owner is responsible for the actions of their children, guests, tenants, pets and contractors, and the tenant’s children, guests and contractors. It also requires the unit owners to hold the association harmless for the actions of those children, guests, tenants, pets and contractors. The rules state that the common elements are used at the risk and responsibility of the user and the user can’t hold the association liable for damages.

My concern is that if something happens, the unharmed person can’t do anything in this situation. That is not reasonable. If a unit owner’s dog bites someone, the dog owner should not be off the hook. I brought these issues to the HOA but was ignored.

A: Based on your question, we suspect you might be misinterpreting the rules. It appears the association’s rules basically say that the association won’t be held liable for injuries that may happen in and around the building.

In your example, if a unit owner’s dog bites another unit owner, the rules merely state that the association is not responsible for that injury. The owner that received the bite can sue the dog owner (or do whatever they want to do.) The rule merely states that the person that was bitten can’t sue the association for that bite.

The injured person can still sue the dog owner. The rule simply tries to keep the association out of disputes between owners, tenants, guests or others when they come to the building or come onto association property. We doubt the association can shield itself from liability if it does something intentionally wrong. And, we doubt the association can shield its owners from wrongdoing as well.

Is it possible you’re reading too much into the new rules? And, by the way, you and your other co-owners in the building voted in the board of directors for the HOA. You’ve given these people broad authority to care for and manage the HOA. Included in those responsibilities is their right to pass reasonable rules and regulations.

If you want to limit the HOA board’s power, start by looking at the property’s governing documents. Find the section that talks about the limits of the HOA’s board’s powers. It should describe what they can and can’t do, when they must send notice to all owners, when they pass new rules or change the old rules. There may be other guidelines placed on the board by the governing documents.

Many governing documents for HOAs will allow the board to pass rules and regulations. Frequently, the governing documents (or even state regulations) will require the board to circulate drafts of the proposed rules well ahead of time. They may also be required to provide the owners time to review those rules before the meeting in which the board will vote on the new rule.

This process should be described in your governing documents. If the board was required to circulate the proposed rules ahead of time and they did not, those rules might not be valid. Having said that, you’d have to make sure you understand the process the board used to pass the rules and whether the board complied with the requirements of the governing documents and any state regulations that might apply to your association.

And, as we say in many of our columns, if you need more information that is specific to your situation, you’d be well advised to seek professional advice from an attorney who concentrates their practice in issues dealing with community associations. Thanks for reading our column.

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(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, a financial wellness technology company. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through her website, ThinkGlink.com.)