Kevin Davis: 0:00

Now, when we talk about community associations, what we're talking about is something really unique to them, because they have three jobs. Basically, they have to make sure they enforce the rules that the Collect assessments and maintain the association. So we talk about breach of fiduciary duty. Those are the three things that will get them in trouble that maintaining Association, then enforcing the rules that collecting assessments, then guess what happens? That's when a problem is created.

Announcer: HOA Insights: 0:33

Common Sense for Common Areas, exists to help all 2 million volunteer board members nationwide have the right information at the right time to make the right decisions for their future. This podcast is sponsored by for companies that care about board members, association insights and marketplace, association reserves, community financials, and Kevin Davis Insurance Services. You'll find links to their websites and social media in the show notes.

Kevin Davis: 1:03

Hi, I'm Kevin Davis of Kevin Davis Insurance Services,

Sherry Branson: 1:06

and I'm Sherry Branson, Marketing Manager for Kevin Davis Insurance Services. And this is HOA Insights, where we promote common sense for common

Kevin Davis: 1:15

areas. Welcome to episode number 66 where we take it over. Robert Norland for over the next couple of weeks, and I'm joined by a good friend of mine and long time business associate, Sherry Branson, Sherry, how you doing? I'm

Sherry Branson: 1:29

doing fantastic, Kevin. Thank you for having me today. Kevin and I have been doing webinars for more than 10 years, and this is our first podcast together, so I'm really happy to be here. And thank

Kevin Davis: 1:38

you. Yeah, and welcome to Hoa insights. We promote common sense for common areas before we get started. I want to encourage everyone to check out episode number 65 which was another popular board hero episode. And if you want to catch prior episodes, you can listen from our podcast website at WWW.HOA insights.org, or you can watch from podcasts from our YouTube channel, or you can subscribe to the podcast from any of you or more popular podcast platforms. Also, if you have a crazy hot topic or crazy story or any question you'd like to address in upcoming episodes, leave us a comment on YouTube. Leave a voicemail message at 805-203-3130, or send us an email at podcast@reservestudy.com so Sherry, what's our goal today?

Sherry Branson: 2:36

Kevin, our goal today is to take a look at the pressing trends and the issues that community associations are facing because they're getting hit with larger and larger lawsuits, and we're hoping to offer them a few possible solutions on how to limit those lawsuits and basically save some money. Kevin, yeah, yes.

Kevin Davis: 2:55

And what we're going to really do is, from our background, you know, Sherry and I have been in insurance for many, many years, and handling specifically claims against boards of directors. And we see these things, and they can get very, very complicated and get become very, very costly. So what we want to do, basically, is to give you some tips how you can just lower the likelihood of a claim, you know, and really have a peaceful, enjoyable Community Association. That's what we really want to do and how we want to do and we're going to start with what keeps me up at night. So whenever I see a claim, I know to be costly claim, and it's going to really go, I can't believe this is happening. It could have been avoided. Okay, so at the end of the thing, we hope you give enough tips to kind of you're not going to stop these claims from occurring, but we're going to reduce the likelihood of a claim. The first we're going to talk about, that first headache that we're talking about is what I call breach of fiduciary duty claims.

Sherry Branson: 3:53

Yeah, we see lots of those. Kevin, yeah,

Kevin Davis: 3:55

whenever I hear that word, breach of fiduciary duty, coffee lawsuit, 1000s and 1000s and 1000s of dollars. Okay? Breach of Fiduciary Duty. It just drives me crazy, because these are the kind of claims that could be avoided. They're not that complicated.

Sherry Branson: 4:10

Can you explain maybe some people may not be familiar with it. Can you explain exactly what it is?

Kevin Davis: 4:15

Yeah, we talk about breach of fiduciary duty. We're talking about the board of directors of Community Association has a duty to act in a reasonable fashion. They have to act within the best interest Association without any conflict of interest. They have to do what's best for the association in a reasonable way that any reasonable person would act. The problem comes to play especially in community associations. We have board members who live in this community association says, I want to be on the board and they have an ax to grind, or they want to get some kind of benefit, you know, they want to get a house painted. So they get on the board and say, Guess what? It's time to repaint the whole structure, because I'm going to, I want to sell my place, and we need to repaint everything. So I get on the board. Or something even more sinisters, I don't get on the board because my brother in law is a land. Escaper or as a roofer. Now, when I hire him, so if you're not acting in the best interest of the association, guess what happens?

Sherry Branson: 5:07

Yeah, I can imagine what happens, claims. Kevin, yeah, costly

Kevin Davis: 5:12

claims because you're not acting in the best interest of the association. Now, when we talk about community associations, what we're talking about is something really unique to them, because they have three jobs. Basically, they have to make sure they enforce the rules that the Collect assessments and maintain the association. So we talk about breach of fiduciary duty. Those are the three things that will get them in trouble, that maintaining Association then enforcing the rules that collecting assessments. Then guess what happens? That's when a problem is created. The

Sherry Branson: 5:49

consequences are pretty big. Kevin, the consequences of not doing that, those things are very big. Yeah,

Kevin Davis: 5:55

and start with something simple as out of the collections, okay? Their job is to collect assessments. The problem is, especially today, more than any other time, because of inflation and all the things we've been seeing is that our expenses have been higher than our income. We're not taking enough revenue in to pay all the expenses that are out there. And that's what's creating the problem for community associations, and as a result, we're seeing these lawsuits come in, because guess what? Now, all of a sudden, the board have to have a special assessment. And special assessment because of number one, they didn't budget properly. They didn't take in consideration that we live in a world right now where inflation is a problem. So what they do is do what with assessments? That keep them low,

Sherry Branson: 6:42

right, right? Because they don't want to rock the boat or become unpopular. They want, they don't want their neighbors to complain and saying, Wait, why? Why are we getting this $5,000 assessment? Or why are fees going up $300 next year? Yeah,

Kevin Davis: 6:56

if they ever did it consistently over the years, people are used to it. But what they do historically, year in the year round, they say, Guess what? Good news, our assessments are still just as low as they have been for the past 10 years. And that is not reasonable. Okay, that we talk about reasonableness. It's not reasonable to expect your assessments not to change in the past 10 years, because we know over the past three years it is everything has increased, labor has increased, our bills have increased, gas, electric, water, everything has increased, human capital has increased. And so if it come in at that same rate, guess what's going to happen? You know, you don't have enough money to pay your bills, enough money to pay your bills. Guess whose fault it is? Come but sure, you live in a community association, right? You live in a homeowner association, right?

Sherry Branson: 7:42

Yes, absolutely. And yeah. And they very difficult decisions to make all the time. Kevin, if they do raise those rates, like we said a little earlier, you know, people might get upset, and if they don't raise the rates, they'll stay popular for a little while, until there's a problem, until the problem pops up. I

Kevin Davis: 7:58

guess where the problem comes into play. The problem comes into play when it comes to maintenance. They have a one their big job is to maintain the association. They have to maintain the Association for one simple reason. When it's time for you to move out, you want your condo, your unit, be worth a little bit more than it was when you left there. But if you're not maintaining it, guess what happens? Yeah,

Sherry Branson: 8:22

yeah, exactly. The property values are going to go down. And then there's big, big problems. At that point, when people go to sell and there's structural issues or plumbing issues or any kind of issues that reduce the property values, then it becomes a really big problem,

Kevin Davis: 8:38

yeah, and that's where the problem really is intensifies even more, because when we're talking about these maintenance issues, what keeps you up at night is this word deferred maintenance. Whenever I hear that word deferred maintenance, it is an insurance person's nightmare, because we know when we hear the word deferred maintenance, we're going to be spending a lot of money. You know, we're going to have what I called frequency issues, like a frequency issues that we're going to see a lot of water damage claims, and we're going to see a lot of severity issues. We're going to see things like, when see trees come down, you know, we're going to see branches come down. We're going to see people going through stop sign because the trees are overgrown and hiding those signs and everything like that. So we're going to see things that really going to create a major problem in the community association world. And again, it creates nightmares for me as an insurance professional, trying to decide on how much to charge that association in an event of a loss. So if you don't have enough money, if you're not collecting enough assessments, and you're constantly keeping that assessment level low, you're not having a reserve study done to look at reserves and maintaining reserves. Okay? And you're not spending the money it should be money, the money you should be spending. Guess what happens? It impacts the maintenance. It impacts the day to day activity. In a community association,

Sherry Branson: 10:02

absolutely. And as it goes on, year after year after year, Kevin, all of those repairs and maintenance that should have been happening all that time, now it's starting to pile up.

Kevin Davis: 10:15

And what happens is that you mentioned the word before structural problems. Okay? And you have social problems now, all of a sudden it goes into a whole different direction, because now you find out that the hard way, you know, somebody comes in and takes a little part, a piece of the aside, apart, and sees these cracks in the foundation, then all of a sudden, guess what you have to do? Hey, I figure out. How do we handle those things? And it goes back to simple thing. You didn't budget correctly. You have your assessments that you kept low for all these years, and now, all of a sudden, guess what? You can't afford to move the ball forward. You can't afford to do certain things. You can't afford it, and what happens when you can't afford it? Now you gotta decide, Where does money come from? How do we do it? There's only so much you can special assess. There's only so much you can raise. You know your assessments by law, if I come to you Sherry, because all of a sudden, you know your homeowner association hasn't maintained a roof for over years. You got a reserve study. You didn't collect the money, but you already did collect the money for the reserves, but you never spent it. Now, all of a sudden you have this big, big issue. Now you're faced with because the board failed to maintain, failed to collect assessments, and now you're talking about something that could have been a small claim. You're talking about from 1000s of dollars to hundreds of 1000s of dollars.

Sherry Branson: 11:38

Absolutely, just gets bigger and bigger and bigger. I just heard a story of somebody from a realtor who somebody was buying a condo and they wasn't disclosed when they were going to purchase it, that there was a $32,000 assessment pending after they closed on the condo, so they ended up backing out of it. So yeah,

Kevin Davis: 12:00

and again, and what's happening to make it seem even worse or tougher or more complicated is that you have the state laws that are really, truly trying to decide it's their turn to handle it. They have to step up and say, Guess what? We're concerned about, the likelihood of living in a community association. We're concerned about, you know, the structural integrity. And so we're doing with passing laws. And with passing laws, they pass what? In Florida, New Jersey has a law, and California has these balcony laws that says it's your job to make sure you fund the reserve, is make sure you have a reserve study and make sure you do structural inspections. And these are the important things to do. Without doing these things, guess what happens? You end up with again, millions and millions of dollars of claims. Again, from an insurance point of view, it's the one thing that keeps us up at night.

Sherry Branson: 12:59

Absolutely, board members have a lot of responsibility, a lot of responsibility. And like you said, Kevin, you know, failure to maintain and the structural issues and the repairs, that's something that for years, I think a lot of associations did kind of kick the can down the road, but I think now they just can't afford to do it anymore.

Kevin Davis: 13:19

So we talked about the number one thing, and that is the collecting of assessments. The collecting assessments you have more expenses than your revenue, creates a problem. Which the problems created with the maintenance part of it, if you now have enough money to maintain the association, guess what happens? You know, it diminishes the value of your unit. You know you're going to need extra money come in and maintain it, and you just don't feel happy and safe in the environment.

Sherry Branson: 13:49

Absolutely, absolutely. So

Kevin Davis: 13:52

now, now we're talking about the third issue, the third issue, and to me, is that one issue that can be eliminated pretty easily, and that is enforcing the documents. You know, we have a habit who live in a community association, which I call selective enforcement. And whenever I hear that word selective enforcement, I know I'm in trouble. Selective enforcement. $100,000 a claim. Board members of Community Association, they have to enforce the documents uniformly, consistently

Sherry Branson: 14:26

and uniformly. Yes,

Kevin Davis: 14:28

that's it. But they don't. They don't. Their reason why they don't is because of the simple thing to me, number one reason they understand the importance of the job that they have. These are board members of community associations. Okay? They have a multi million dollar responsibility for running and maintaining that association.

Sherry Branson: 14:50

It's a business. What's it?

Kevin Davis: 14:54

They don't treat it as a business. What they do? They treat it as, uh, hey, we get where to get together. And guess what's happening on the news? I can't believe this is what's going on right now, or it's a playoffs or whatever, and they don't look at it as a business, and as a result, they don't treat it as a business. And again, they have a fiduciary duty to treat it as a business. They're acting in the best interest association. So what they do is selectively enforce the documents. They selectively enforcement. And why? What I mean by a selective enforcement is this, I live in association. At every Association, you live in association, and you obey the rules. There's certain rules you have to obey if they tell you to take the take the trash can out, and remove the trash can off the trash after 48 hours, guess what you're gonna do? You're gonna take it out. You remove it okay, I'm gonna do the same thing. It says the pool hours are from nine to nine. I'm gonna obey the pool hours. Okay? Now there's certain people in there who, guess what they do, not gonna beta rules. You know, if you can have a pet, but your pet has to be 25 pounds left, and all of a sudden, I move in with 30 or 40 pound pet. Guess what? That's okay. I don't care. The rules don't apply to me because, guess what, I'm a self made individual, and the rules don't apply to me because I believe rules are suggestions. You know, it's up to me to say I'm going for I'm going to, believe it or not. And we have a group of people who live in the community association that live that way, okay, that the rules are suggestions for me to obey and not to obey. Yeah,

Sherry Branson: 16:28

they feel that, you know, I paid a lot of money for this house, so why should I have to all these ridiculous rules? And, you know, I have a like, you said, a 50 pound dog instead of a 30 pound dog. So you know, what's the big deal?

Kevin Davis: 16:44

It's entitlement. We live in a time limit era. I live in entitlement time, and

Unknown: 16:50

that's really I should be able to do this. I should

Kevin Davis: 16:53

be able to do that. It makes sense to be able to do it, because, guess what, I'm a self made individual. I bought my house. I paid cash for my house. And guess what? I should be able to do anything I want to do. Now we have the people who are on the other side, that people look to them and say, How dare they not obey the rules board. You have to do something about it.

Sherry Branson: 17:15

Right, right? That's when the trouble starts. That's

Kevin Davis: 17:20

trouble start by that one individual who's doing that, and that creates the problem. They go to the board, and the Board of Directors, they get scared. Okay? They operate at fear. Because, guess what, we don't know what to do. You know, we don't know what to do because we're not familiar enough with the association documents we've we're supposed to read them. The management company tells us that we have to do something about it, you know, notify them, maybe find them, penalize in some way. But we don't make that decision. You know, we still the decision. We get something in that said this person is in violation of the of the rules, swimming rules of the pool hours. Okay? He's in violation of that, keeping his car in the garage, any violation there is, and the board doesn't do their job. And worse is, is that they wait to that one person that is causing the most trouble, that one person says, hey, the person unit six not doing a person number 13 is not doing it. That when that individual starts to do it now, of a sudden they go after that one individual, right,

Sherry Branson: 18:31

right, yeah. And then it's, you know, then you get a complaint, then there's claims, and that person might file a lawsuit or get a lawyer or something. And, you know, it just, it can just really go in many different directions. People who weren't, who were following the rules, could also sue, you know, and say, Hey, why are you? Are you letting this person get away by breaking the rules? And I'm a rule follower, you know? Yeah. And again,

Kevin Davis: 18:58

that's what we're talking about. We're talking about, and it really is summarizing up, and then we're gonna take a break and we'll come back and talk about solutions. How do we handle this here? So let's take a quick break and bring in one of our sponsors.

Paige Daniels: 19:12

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Kevin Davis: 19:45

And we're back sherry. So when we left, we talked about the headaches that you and I have, that we hear certain turns we know it gonna be 1000s of dollars, hundreds of$1,000 or millions of dollars. We're gonna do now is take some time. Time and really talk about, you know, we talk about breach of fiduciary duty, how to handle these situations. So you have some tips to say, Okay, if I do this, I the likelihood of me having a claim, a large claim is been reduced. Anybody can sue you for anything at any time. And we know that, you know, but my goal is to say you don't have to worry about it. You don't have to worry about but guess what? You did your job. You act in a reasonable fashion. Okay? You act as a prudent man would act. Therefore, the likelihood of you having to shell out some money is a different story. Now, the number one thing you got to have a check with your insurance provider that you have an insurance policy that protects you for claims, coffee, lawsuits, and what we've talked about today that is number one, you got to have an insurance policy so that when you are sued, you go to somebody like me or Sherry and say, Guess what, I've been sued. Please handle this for me. Okay, so that's number one. However, all insurance policies are different. There may be times where you may be excluded from reason other. So we're going to do is give you a few tips. So let's talk about the breach of fiduciary duty. The breach of fiduciary duty is what you going to be targeted with whenever we're talking about collections or talk about selective enforcement or maintaining. So the first thing we talk about Breach of Fiduciary. Breach of fiduciary duty. You know, it's about making decisions. Board members make decisions, and sometimes no decision is a decision, and that's when they get in trouble, right,

Sherry Branson: 21:40

right, if they don't know what to do. Kevin, yeah, if they Yeah, absolutely, so

Kevin Davis: 21:46

they choose not to do anything, and that's where your selective enforcement comes into play. If they make a bad decision. Is better than no decision, because a bad decision is a decision that they thought about, and it's a decision that a reasonable person could apply, perfect example, assessments, okay? Or funding for the reserve. Okay? We I can live in a DAC, active adult community, okay, a 55 plus community, or I can live in a wealthy Association and say, Guess what, where we're going to agree not to fund the reserves, because if there's a problem, I'm going to write you a check out. So we made a decision as board of directors. We thought about it. We did about conflict of interest. Nobody's getting anything special about it, but we made a decision. Now, when it comes to a time you go to court, you know, making that decision, there's a decision. And then when the insurance company come in, the likelihood of them feeling better about it because of decision than no decision all, because no decision can be compounded, because all of a sudden we make no decision on the Reserve at all. Then what happens is, you get unhappy. I get unhappy. So the union owners get unhappy because we're waiting for a decision to we're gonna do about reserves, and there's no decisions being made. So make a decision number one, but make an informed decision. Yeah,

Sherry Branson: 23:07

make sure you're following the rules, the community's rules, etc. And if the association has an attorney, speak to that attorney, just make sure that you're doing it right, the right way. And

Kevin Davis: 23:19

that's and that's the definition of an informed decision. You're following the rules. You're looking at specialists, you're looking at your insurance agent, looking at your attorney, looking your accountant. If you bring those people in and say, we decided that we're not going to fund the reserve, and we looked at it. We did. We looked at the rules, we looked at our neighbors in our communities, and found out that they're doing the same thing we are operating under. So we made decision not to fully fund the reserve. Now you may be in violation some state laws, so you gotta be careful. That's why you have a lawyer. If a lawyer says you can't do it based on state law, guess what has to happen? You've got information there, so you gotta act on it, upon the information. Lawyer says so if you talk to these people, if you talk to your insurance agent, and he says you should not do it for these reasons, guess what? You do it anyway. You're not acting in the best interest of the association. Absolutely. Number one is make an informed decision.

Sherry Branson: 24:15

Speak to the experts. Speak to the expert that

Kevin Davis: 24:19

could be number two, experts, specialists in the area. That's a great number two. So you speak to the experts in the area. Yeah, that's number two. You got to be able to do that. And we nailed all those experts in and and the third thing you have to do, if you remember, it's a business, you can have fun. You can talk about different things, and talk about the game, Netflix, all those things. But at the end of the day, understand, this is a business, and your job is to maintain that association. Okay, your main your job really is to this is see that the value your unit increases so that when it's time, when I want to sell Sherry, you want to sell whoever wants to sell in that community, guess what's. Gonna happen. You know, they're happy because you're doing it

Sherry Branson: 25:03

correctly. Absolutely, absolutely. Less stress. Kevin, all the way around, on the homeowners, on the you the board member, less stress for everybody, if it's done the right way,

Kevin Davis: 25:15

if it's done the right way, yeah, one thing communication is a key. You have to communicate clearly and precisely. Okay, you can't back away from people. You can't say, I don't wanna hurt their feelings. I know they can't afford things right now. You know, if you communicate, this is what we need from you again, at the end of the day, all you wanna do is minimize the likelihood of a claim, and you do that by you doing certain things. You know, communication is so important that you have to be able to be clear and concise communication to individuals that, guess what, you are not in compliance with the rules of the association. Have you read the Community Association documents? You know, do you understand the community association documents. Maybe you have a meeting to go over the documents, the rules, so you can make sure that when it comes to enforcement of the rules, you understand that these rules has to be enforced for the betterment of the association. That's why these rules are here, you know. So we're communicating with these people. We're making the world a better place for them, and we're communicating in a kindly way.

Sherry Branson: 26:28

Yeah, okay, that's a big that's a big one. Yeah, some people like to complain and that thing, it kind of, you know, they're not, they're not. It's not such a friendly interaction. And and that causes problems too, when people are getting into arguments with board members, you know, publicly on a Facebook that kind of a thing. So, yeah,

Kevin Davis: 26:49

communicate in a kindly way. Look, we live in a world right now where half them like the other half, right? I mean, we know it's a polarized society right now, and if you are kind to individuals, no matter how upset they get. Guess what? You could just lower the temperature a little bit. That's all if they upset. Because you're saying, guess what, we need to pass a special assessment, because right now, the roofs are not going to last another couple more years, and we want to make sure we have enough money to make sure we can repair the roof again. We communicate. We're communicating concisely. We are communicating the right way, but we do it in a kind fashion, right in

Sherry Branson: 27:30

an educational way too. Kevin explaining that the reason for that assessment is so that your property values, you know, when you do go to sell in five years or 10 years, you know all of our property values are going to go up, and you're maintaining your property by contributing to the reserve reserve funds with with this special assessment. So you're basically all we're pooling our money, and we're taking care of our property, so it's helping all of us. Oh, I

Kevin Davis: 28:00

like that. So we're communicating, not only in a kind way, with knowledge,

Sherry Branson: 28:04

yes, yes, information and knowledge. So they stand the reason, yeah, this is because of, you know, X, Y and Z is happening. So that's why we have to raise these rates. I mean, raise the fund, the fees and the reserve account, etc, you know, and just explain behind what's going on, like, you know, that

Kevin Davis: 28:25

is so important they have to understand. The board of directors. We live in an Italian Can you imagine the association right now today, where we live in, I like to call it post covid world. And post covid world means that two o'clock in the afternoon, guess where we're all at. We're home, okay? And because we're home, okay? We're seeing things. We're noticing things, okay. We're getting upset by things, you know, things we don't like. Where before we went to work, nine o'clock in the morning came on. Five we came out, ate dinner, watch Netflix, life went on. We weren't home at two o'clock in the afternoon, looking outside. So this has created a problem for the board members. Of course, guess what? Everything's been heightened. Everything's been means more, and everybody just seems to be more agitated than normally. So as a result of that, if we give people that confidence by being more kinder and having that knowledge behind what we say. Guess what's going to happen? You want to be more responsive,

Sherry Branson: 29:25

right, right, right? They'll understand, you know, why the fees are going up and why, why there's a special assessment. What's, what's the need for it, etc. No, I think that's really key. That's very, very important.

Kevin Davis: 29:37

All right, good. Well, listen, I think that kind of covers it, you know, I think that's it. I Today again, today's goal was to really just explain that as an insurance provider, we see these kind of claims. We see them all day long. And what we're going to do is so much as saying they're not going to happen, because we know they're not going to happen, but we want to do is minimize them. To lower the likelihood of them happening, and if they do happen, to make sure it's not going to be as costly, because insurance doesn't cover everything. You got the best insurance policy in the world, and they'll be exclusion that says, Guess what, we're not going to cover things that resulting from X, Y or Z. So if they're not going to cover X, Y or Z, the only thing you can do is do the best job you can do, and then have a really nice, peaceful, clear cut association rules that you're following, and then make sure that this association is running the best way you maintain the association, you're collecting assessments and enforcing the rules, be doing those three things and you do without conflict of interest, then guess what? You'll be doing? Okay, absolutely,

Sherry Branson: 30:48

absolutely Kevin and seeking expert advice when needed. So you're doing everything the right way and properly, and communication, like you said, is is key if everybody understands the reasons for the increase in fees, I think it's much calmer and it's much better overall, for the mental health as well of the of the people that live there.

Kevin Davis: 31:10

Well, guess what, Sherry, there's a great closing word. So listen. With that said, I guess we should close this for the day, and thanks a lot again. Welcome to your first podcast we're gonna be doing again next week. Listen guys. Listen to everybody who's listening to us and has enjoyed us. We appreciate it. We appreciate doing these podcasts again. Our goal of mine is just to kind of give you guys a better place to live, and we call ourselves trying to build better communities. Thank you very much. Take care.

Announcer: 31:41

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