My office is responsible for answering questions and providing guidance for quite literally thousands of people every year. In addition to the daily phone calls and emails with association members, board members, managers and anyone else involved in community associations, the Office of the Common Interest Community Ombudsman also provides Determinations (they can be found on our website at www.dpor.virginia.gov/cic-ombudsman) in response to Notices of Final Adverse Decision that have been filed with the Office.
While the daily inquiries vary, and the Determinations are by no means identical (and, there is more than enough conflict to go around) there is a common thread woven through nearly every interaction my office has with the public, and that common thread is communication.
If I had a magic wand, I would fly through Virginia (using my fairy wings) and tap every board member on the head and remind him or her that the single most important way to solve, or better yet, prevent conflict in an association is to communicate with the members.
The ways in which we see a failure to communicate in associations are numerous. When an association fails to provide access to or copies of, books and records of the association, but provides no reason for its decision, that is a lack of communication that serves no one. Those books and records belong to the association as a whole and any member in good standing should have the right to look at them. If an association denies a member the right to due process in relation to a possible violation of the governing documents, it is denying that member the right to communicate his or her side of the situation or to at least be present when a decision is being made regarding such a violation.
Other situations that demonstrate a lack of communication include a failure to provide notice of meetings, to make a proper motion to go into executive session, to carry out the five-year reserve study and its annual review, and a failure to prepare an accurate and complete disclosure packet or resale certificate. Meeting notice ensures that the greatest opportunity for communication in the community can happen with the largest number of members present – board meetings and annual meetings are important and probably the best method of communicating with the membership as a whole. Board meetings address the current issues of the association and attending these meetings allows members to keep their finger on the pulse of the community as well as share comments during the appropriate portion of the meeting. Making a proper motion to go into executive session is absolutely a form of communication and ensures that members do not question the need for the executive session or assume that something inappropriate is happening.
The reserve study is a form of communication with all members that advises them of the future financial needs of the community as they relate to capital components of the association, and the annual review of the reserve study by the board of directors helps members understand what to expect in the coming year and whether financial priorities for the association may have changed. Finally, disclosure packets or resale certificates are an essential method of communication with future residents of the community. A well prepared and accurate disclosure packet ensures that new owners will not be surprised by what they may encounter after moving into the community. A poor or nonexistent disclosure packet can result in enormous animosity and frustration for a new owner which can impact both the association and that owner’s experience for a long time to come.
While I have not touched upon every single type of issue or conflict that arises in my world, I hope my absolute belief that communication is key in resolving conflict has rung through. Truly, nearly every possible violation of common interest community law that my office may address or explain is related to communication. Virtually all phone calls and emails can be boiled down to a lack of communication in one form or another. If owners would make efforts to communicate with their board in a civil and respectful manner and boards of directors more fully recognized that the association really belongs to everyone and there is no need to deny or hide information, I think associations could function in a way that might surprise us all and lead to far more enjoyment and far less conflict.
By Heather S. Gillespie, ESQ.
Heather has been the Common Interest Community Ombudsman at the Virginia Department of Professional and Occupational Regulation for the past ten years. She is a licensed attorney in the Commonwealth of Virginia and received her law degree from the University of Richmond, T.C. Williams School of Law and her undergraduate degree from Rice University.