Emergency powers of an HOA's property management company.

[micky]

It seems to me that our HOA's management company only has "emergency powers" when it can't contact the president, or another board member, or a majority of the board. Is that true? In Maryland.

(The phrase "emergency powers" doesn't appear anywhere but emergency does.)

Our townhouse n'hood, which has an HOA and a property management company, had a tree fall down most of the way, so that 15' of the trunk is lying on the ground, on a hill, and the rest of the tree is above ground (because at the top of the hill, the land is level, but the tree continues at an angle, getting higher, and getting its small branches up to 20 feet above the ground.) It didn't hit the house but it's right next to it and the thought that it might have hit probably scares the owner. But now it sits there, causing no problem afaict.

We asked the property management agent to get bids to have the tree disposed of. At least 2 weeks ago, maybe more. 8 days ago she got one bid from a known, very expensive tree company, for $2,350. Our president continued to ask for 2 more bids. Separately today, I got one for $650 from someone who is, he says, licensed and insured, who advertises that his company cuts down trees, and who has done landscaping work for the HOA president, to her satisfaction.

The property agent has pressured us to sign a contract with the tree company and yesterday she did that, on her own. Under "emergency powers"!

This is what she wrote to us:

While waiting for two more proposals for this tree removal, the tree has again shifted, placing more danger of damages to [the address]

=== But I looked at it 4 days ago and again today (that is, yesterday). It had not shifted during that time, and I don't think there is any danger except maybe a small branch will blow in the wind and brush the siding, maybe scuff it a little bit. Only the family that lives there has access. === She continues:

Because of the danger, I must refer to the Management Agreement to exercise sections 4 and 5, authorizing [our company] to protect the association and its members from dangerous conditions. The cost of the proposal, $2,250.00 is above the amount authorized without bidding the contract, but lies within the parameters of authority under an emergency situation. I will need to authorize and return the proposal to Davey as quickly as possible, and have the tree removed to protect this property. Thank you for your understanding.

[She quotes our contract with her company:] 4 Payables. From the available funds of the Association, the Management Company shall disburse funds for operational, capital, and other budgeted, approved or **emergency expenditures** [emphasis added by her in the form of highlighting] of the association....

1. The Management Company shall, at the direction of the Board, negotiate, execute, and make payments pursuant to the approved terms of all contracts for goods or services required by the Association for its operation, repair or maintenance including, without limitation, contracts for water, electricity, gas, telephone, HVAC systems, and landscaping. ***Contracts for amounts in excess of 50 (*****unless in the event of an emergency*****, defined as a condition that involves a danger to person or property or may threaten the safety of any Association member and/or community visitor, or may threaten the suspension of any necessary services to the association or its facilities including utilities) shall be solicited in a competitive bidding process, with the management company making a recommendation to the Association based on the price and other factors. However the management company is not responsible for vendor performance.

=== Three asterisks represent text highlighted, and within that 5 asterisks represent text underlined also by the agent.

It seems to me that the management company only has "emergency powers" when it can't contact the president or another board member. Maybe they are out of town, or sleeping and don't answer the phone. This is my most important question. Surely the management company can't seize power right out from under the board of directors, when we are in ongoing contact with each other, just because we're pondering what to do.

Doesn't this clause reflect the days when people went out of town and could not be reached? Or if there is a fire in the middle of the night? When the president is in the middle of discussions with the managing agent, what business has the agent signing a contract with a tree company?

Doesn't the fact that the tree hasn't moved for 4 days, or 8 days, or more, mean it's not an emergency? (I don't believe her, that it has shifted.) The proposal by the tree company didn't describe it as an emergency, although maybe that doesn't mean much.

Why would they need a clause like this, giving them the power to sign a contract without us? Even if the Board screws up and damages or injuries result, could the management company be held responsible? IIUC there is no privity between someone injured and the management company. And the HOA could not implead them after the HOA itself told the management company to do nothing.

I thought clauses like this were meant to help the HOA, that someone else had the authority to remedy dangerous conditions when no one from the board of directors was available, not to overrule the board.

The agent knows we have a lot of people who, because of the recession etc. haven't paid their dues, etc. we can't afford to repave the street, and we are very short of money. Yet she went to one of the most expensive tree services in town. Is it likely she's getting a kickback? A referral fee? Is that likely to be illegal in Maryland? Is it likely to be paid straight to her, or to the management company?

[Retirednoguilt]

We've lived in a condo in Maryland for the past 4 1/2 years. The Board and our management company are both diligent and most fortunate to have the services of a highly competent lawyer who specializes in condo law. I don't know whether the retainer fee is paid by management or the board but he is not only available to both, but occasionally advises on just the type of question you raise, as well as other questions of authority over unusual situations that require clarification of procedures for expenditure of funds on an expedited basis. You should first determine if your condo board or management has a lawyer on retainer and whether your management has the authority to request legal advice independent of approval from the board. If none of your board members can be contacted, something's very wrong at your condo and your HOA membership should explore their legal options to remedy that situation ASAP. One bad decision (or failure to make a timely decision) in the event of a more dire situation could end up costing all owners a bundle (and I don't mean only a few thousand dollars).

[trader_4]

It doesn't say anything about the management company needing to try to contact the board in an emergency. If that's what you wanted it should have been in the contract. In fact there should be a whole section describing what the required procedure is in an emergency, eg go down a contact list starting with the president.

However the

That they should contact makes sense, but that isn't what the contract says.

Maybe

It reflects a management company writing a contract that's in their favor and your board accepting it and signing it.

Since we can't see the tree, no way to know whether it should be deemed an emergency or not. It sounds like the management company is claiming that the tree moved, could have rolled into the building. Do you have any knowledge of what the homeowner was saying, doing? That could range from no concern at all to calling every day, calling the town, etc.

Of course. If you got crippled because of some failure, what would you do? Just sue the HOA? You'd get a lawyer and they would sue everyone involved, the HOA, management company, contractor who did any work involved, etc. And an emergency clause is needed so that emergencies can be dealt with. The problem is your contract didn't have an emergency powers section, just the one sentence.

And the management company and/or their insurance company could spend how much in legal fees defending themselves on that basis after they are sued?

There are multiple problems here. I absolutely agree that the management company should have tried to contact the president, failing that a ranking board member. That is especially true since they knew the board wanted more bids. That brings us to the second problem. You say it was over two weeks since the management company was directed to get multiple quotes. Why didn't they? Only two reasons, incompetence or corruption. I would suspect the latter. If you easily got a bid for about a quarter of the one price they were able to obtain, what does that tell you? They are in the business, they should know what a reasonable cost is for that kind of job, it happens frequently in their business.

It's illegal everywhere.

Is it likely

Your guess is as good as mine. Part of the answer would depend on if that $2400 price is in line with what that company normally charges or not. Maybe that's one reason she wasn't going to get other quotes, they all would have come in lower. How much longer is left on this management contract? I would replace them and also read the section on what your termination rights are right now. Meanwhile be suspicious, very suspicious of any proposals they bring to you.

As president of a condo HOA I went through an episode of fraud and corruption similar to this. I'll make a separate reply to tell that story.

[trader_4]

I hope you don't really mean that the same lawyer is representing your condo association and the management company.

[Ralph Mowery]

That $ 2400 sure seems high. I had a lagre Christmas looking tree fall over a year ago. It was about 50 feet tall and while the tree man was here he took down another tree similar to it for a total of $ 1500 . Took his crew less than half a day to do the job.

I would never go to a HOA place. Too many people have had problems with the ones in charge. I want to be able to do what I want with my property without having to ask other than the county rules.

[Marilyn Manson]

I'll admit that it all sounds a little fishy, but of course, we only have your side of the story. (Nothing personal, but there is probably more to this than we (and maybe even you) know.)

I'm having trouble with the price differences that you quoted. I would certainly like to see what work was quoted for $2,350 vs. $650. Not just "Removal of downed tree" but something more specific.

Removal of all debris Stump grinding Re-seeding etc.

If I was involved in this situation, I wouldn't be waving the $650 flag until I understood why there is such a price difference. How did that $650 bid come about? On-site inspection or just a phone conversation? Did you ask them how they could come in at 74% discount from another bid? Do you have a detailed bid in writing, ready to be submitted to the board?

3 neighbors/friends recently had trees taken down and I just signed a contract to have some trimming done in the spring. $650, even for a tree that is already on the ground, sounds more like a "2 guys and a chain saw" operation than a full-fledged tree service company. I watched a low bid contractor take down a tree next door. I had to go out twice and tell him to stop dropping branches onto SWMBO's flower gardens. I also watched a "real" tree service company take down 3 really tall pine trees two houses down. They lowered everything to the ground - gently. Barely disturbed the lawn. Ground the stumps down, brought in top soil and seeded the area. That's worth paying for.

The $2,350 number didn't surprise me at all. The $650 estimate did.

[invalid unparseable]

We have one with main responsibility for the road which was not built to state standards. Fortunately many years ago, when I happened to be president of the corporation, we managed to have the state take it over. Now our group is just a remnant and only worries about snow removal which the state only partially covers for developments. Costs us about $100/yr.

A friend is leader of his association which still maintains the roads and it costs about $450/yr. They are very approachable but houses are separate with no common land and home owner must pay for trees that fall on his property. People that refuse to pay dues have liens put on their houses.

Some places, particularly condos, have associations ruled by absentee owners that rent the property and things are a mess and expensive. Micky sounds closer to this type situation.

[Retirednoguilt]

No, I didn't say he represents both. I realize that from what I said it could be inferred that the lawyer may have a conflict of interest. However, we may have a rather unique situation here in which the management company is superb and the Board has continued to contract with them for their services for decades. The owners are exceedingly pleased with the management company and this is a large, high rise condo with lots of owners. There is complete trust and collegiality here between the Board and the management company and it really feels as though they are on the same team, trying to obtain the best possible environment and outcomes for all owners. There's no sense of territorial behavior among the Board, management, and the consultant attorney. I suspect that if there ever was a serious disagreement between the Board and management that the lawyer couldn't help resolve, the lawyer would recuse himself from participating in any legal action contemplated between the Board and management. However, after over 4 yrs. of close observation and participation in HOA activities, such a situation is inconceivable here.

[Ed Pawlowski]

Yes, I wonder how much kickback may be involved.

While I mostly agree with that, I don't want to live next door to some people that do what they want. Not always pretty. Couple of weeks ago I drove past my old house I moved from 3 years ago. No desire to go back.

[Scott Lurndal]

Davey is an established, nationwide, quality commercial tree service. They charge commercial prices for their services, which come complete with all required insurance coverages, performance guarantees and bonding; just the sort of service I would expect a professional property manager to hire.

I had a 75yo dead live oak removed back in 1998, and it cost almost $3000 then (granted, it was in rather inaccessible snall back yard) to piece it down - they wanted to bring in a crane and lift large trunk sections over the house - I declined that proposal.

The cost will vary considerably based on how easy it is to remove the tree safely.

[Ralph Mowery]

Sounds about like a couple of services for the home around here. One company that advertises on TV wanted $ 1900 to replace a water heater. Local plumber company with a good reputation did it for $ 950. Got ripped off by an TV advertisinger for the heatpump. Cost me over $ 300 for them to just replace a $ 20 capacitor that took the man about 10 minuites to find and replace.

Always good to get an estiment before the job. Reroof ran from 2 estiments of $ 8500, $ 12000, and $ 16000 a few years back.

[Scott Lurndal]

I disagree. Davey serves commercial customers almost exclusively.

Not homeowners.

[Marilyn Manson]

A friend was getting estimates to have a sagging gutter repaired. He suspected some rot on the facia and maybe a rafter tail or 2. He was right. He got three estimates in the $600 to $900 range to repair the damage and rehang the gutter. All three guys took their ladders off their trucks, climbed up and inspected the area.

One guy showed up with a tape measure and an clip board. (He was wearing a tie.) He walked around the house. $4500 to replace all the gutters plus extra for any damage found once the old gutters were removed.

My friend came very close to adding a muddy boot print to the back of the guy's fancy pants.

[Ed Pawlowski]

I pay $130 for two service call a year to clean and check my AC. It is the outfit that installed them for the builder here. I figure is is cheaper than the guy on TV advertising $39. for the same visit.

[micky]

2 months or 4 months. We had already decided to find another company.

I'm interested to hear it.

That sounds more like it.

In Maryland, or maybe central Maryland, 2 or 3 counties, no new neighborhood can be built (by one developer) until there is an HOA to go with it. Since about 1970 plus or minus. I think the goal was to prevent n'hoods from becoming run down. New n'hoods probably wouldn't make it all the way to slums in the first 30 or 40 years, but they be headed in that direction.

So the HOA generally sets standards of yard and external house maintenance, and it keeps one obnoxious n'bor from driving down values.

In addition, believe it or not, our documents don't support, "Our bodies ourselves". If someone doesn't maintain his property adequately, the HOA, acting through the Board, has the power to go on his land and fix it up. I think they mowed someone's lawn once and billed him for it, and before I got here, someone had a dog run or something using chicken wire, and the neighbors didn't like it and I guess he wouldn't take it down as ordered, and one afternoon several neighbors took it down. It was legal, but I was told it left such hard feelings that they knew they would never do such a thing again. That might just mean the people who live here wouuldn't do it and they'd hire someone instead. I don't know aand nothing like that has happened since, except the lawn mowing I just mentioned.

Even a street with 600,000 dollar homes has to have an HOA, although it does not have to meet, collect dues, or do anything. Someone at work had one like that, although it had one rule I know about, that the garage could not face the street, so if the garage door were left open, people going down the street wouldn't have to see the inside of a garage!! I sort of like that, and the lots were wide enough that the driveways could bend and enter a garage door that faced sideways.

In our case, we own our own streets, but they're not made well enough to give them to the county. They're not thick enough for one thing, and maybe after we repave them 3 or 4 more times they wil be, but until then, we're responsible for repairing the pavement, maintaining the sidewalks that run parallel to the street, plowing the snow, and mowing the lawn and trimming the bushes on shared property. So our HOA has to collect dues.

So the only way to avoid an HOA is to live in an individually built house or a n'hood built before the 70's and there are no such n'hoods except miles away. -- I actually planned to stay here only until i got married, and then I was going to let my wife participate in deciding where we would live. I've got 3 bedrooms but with a kid or two, I wanted a bigger house**. It didn't happen. Such is life.

When I first got here things worked well, and one woman often hosted the meetings. She like to bake and there were fresh baked cookies and cake at every meeting, plus coffee or cider or something.

But no one wanted to be president and we got one who was obnoxious and this woman didn't want to host the meetings anymore and no one else did either, so we started meeting at a community center nearby. It was fine except that I knew how much better it had been.

Now we have a good president but all the meetings have been by zoom. And the woman who baked died at age 60 from pancreatic cancer. We were on our way to becoming good friends, and I miss her.

They used to make all the houses in a townhouse row the same color, and then some trouble makers woudl want to use a different color when time came to paint or get siding. So builders in general here switched to making all the houses a different color in the first place, so it doesn't matter if somone changes.

2/3rds of our houses were russet or brown and easy to get paint or siding to match, but 1/3 were some sunrise color, yellow/orange/brown or something, and when they stopped selling the original paint, it was an honest problem for people who want their house to continue to match. But they all live two blocks away so it's not my problem.

[micky]

I'm trying to be funny here. I'm sure we could find a place we both really liked. I didn't expect to find woods or a stream a second time.

**I don't remember where I met her but I had a first date with someone and had to stop here to get something and I showed her the house, including the basement, where in the laundry room I'd made shelves and had big boxes, one marked motors, one light sockets/switches, one drill accesories, a smaller box marked electric cords... and she said, verbatim, "No wife is going to let you keep all this stuff." Huh? That's worse than an HOA telling me to mow my lawn.

I told her, "Just have to get a bigger house", which seems like a good solution to me. She didn't say anything. No even partial retraction.

I should have just taken her home then and there, but I'm a man of my word so we went out to dinner as planned. The rest of the evening went okay, but that didn't make me forget the fatal pill that she'd already delivered.

Her problem was probably that she was in charge already of too much. She worked for a government agency and I think had about 400 people under her and was due to be transferred to another city where she's have

2000 people in more than one state under her.

Or maybe 800 and 8,000, whatever, she was used to being in charge, and that seemed to include me.

[micky]

Even if they are commercial almost exclusively, I don't mind our getting an estimate from them.

But I don't like that she seemed to claim she couldnt' get a second or third one. Now that there is email, I get to read the entire exchange with the prez.

Prez: Which companies have you requested quotes from? Did you set up a time to meet them? If so, when?

Agent: I was looking in to finding other vendors to bid it out. I did not meet them out there personally, but did visit the property and took the pictures myself.

--Well of course she took the pictures herself and if she hadn't, any of us could walk over there in less than 5 minutes. In fact the pictures made it look worse than it was, although I don't mean she intended that.

She never did tells us which companies she'd requested quotes from. I don't think there were any, and she changes the subject by bring up that she took the pictures.

(I also don't see why the president thinks she should meet them here. Much too much trouble. The tree-trimmers can come on their own. Maybe the prez is using a standard from when things are more complicated and have to be pointed out or discussed in person, but this is a tree on the ground. )

[angelica...]

Hell's bells. I helped my husband build an 800-square-foot workshop.

She has a very limited idea of women.

Cindy Hamilton

[micky]

Yeah, we didn't notice that part or didn't realize what it said. More likely no one did more than skim it. Or they assumed what I want to assume, even though as you say, it doesn't say it.

No real knowledge but I think she's called once, probably twice. The president feels some urgency, maybe because the homeowner is complaining.

There has to be a better way to have phrased this, because now this woman, whom I already was uneasy about, can just declare it dangerous.

Trust me, it's not dangerous. It's not even dead. It still has all its leaves. But it was growing in the side of a hill, and I think that had something to do with its falling down.

Yesterday, Monday morning at 11 she sent that email that I quoted at the top, to quote it again:

"While waiting for two more proposals for this tree removal, the tree has again shifted, placing more danger of damages to [the address] Because of the danger, I must refer to the Management Agreement to exercise sections 4 and 5, authorizing [our company] to protect the association ...."

What she doesn't say here is that she had already signed and returned the proposal. She attached the signed proposal but it's entitled "Davey Tree Proposal.." and unless you open the attachemnt, it looks like it's just a copy of the proposal. She doesn't say anywhere in the text in any email that she's going to sign it or that she has signed it.

Not until 5 hours later, at 4:30 Monday, after the emails back and forth that I quote elswhere asking about getting other proposls, and after the prez tells her I found a cheaper place, does she say she signed and returned the proposal (contract). That's when the prez told her to cancel. It's like she got caught with her hand in the cookie jar.

They were in contact, or could have been any time the agent called. The agent and the president talk fairly often and the president hasn't left the city in the last 2 weeks and she always has her cellphone.

AFAIK the entire Board has been in town for the last two weeks.

She takes months to do other things too. Maybe she has too many clients, so that would add a third possible reason and I think they all apply. But here you're probably right, mostly corruption. Another reply gives a couple details.

Yes.

Good to know. I was going to ask them about this. Monday night I left a message with the tree-trimmer cancelling the job, and emailed the man listed on the proposal to cancel the job, then got up Tuesday and called at 8:03 (but got a recording.) Then I went out at 8:30 on the off chance they would actually try to start today (but that's what some crummy company might do.) I was going to call again and ask, "So does the referrral fee go to Betsy or the management company?" But I don't think he would slip up and tell me.

The prez had asked the agent to cancel the contract and she did it by

9AM Tuesday, so I never talked to anyone. I thought she'd dawdle or even maybe balk altogether. Two people thought there was no rush because of a 3-day cancellation period. I've explained to one of them that that doesn't exist here, and I'll tell the other one too. A lot of people lose track of how limited that law is, and the Lemon Law too.

Answered where Ralph quoted this part.

[micky]

No offense taken. It's human nature to bias a story in favor of himself.

The stump is in the woods so no one wants stump grinding.

Same thing about re-seeding.

Davey said "Tree Removal Uprooting locust behind NNNN Streat Name- remove to 3' behind fence- haul away all resulting debris"

The cheaper guy said anything beyond the property line (which is woods, and the far side of a hill so it can't even be seen) would be left as it is, and anything on this side woudl be hauled away.

It really should be 6 feet beyond the fence, but I don't think it matters.

The cheap guy is in his 30's, Latino, and trying to get his business to grow. I'm sure he used to work himself, now he has men to do the work.

On site. FWIW, he lives about 5 minutes from here.

I'm not going to remind him how much more his competition charges.

He should have sent it in writing today, and maybe he did, to the president. She and another neigbor have dealt with him before, but only landscaping, gardening.

Yes, it's very very likely if there is a difference in service, the more expensive one will do a better job. But this is a simple** job, and I think the cheap guy will be fine. Although there is a gate, He could wreck the woman's wooden fence while dragging a log out of the yard. We shall see.

For that matter, I don't think it's even our responsibility, since the tree was growing on someone else's private property, but I don't want to get that owner involved. The stream and the woods that surround it haven't had any maintenance by anyone in the 38 years I've been here, and I like it that way.

**Except for hauling away the wood, I could do this job myself, alone. When a tree just a little smaller fell into my yard and was hanging about 6 feet above the ground, I did it myself and threw the pieces into the stream bed, the part that is dry except for 3 or 4 days a year. After 10 years, some of it has perhaps rotted or washed away during flood-stage that comes on average 2 or 3 times a year, but a couple pieces are still there. But in this neighbor's case, the hill descends straight into the stream. No river bank on that side. I don't know why but I don't like the idea of throwing so much wood down there into the actual stream.