Re: Re: Dividing authority between the Board and the Membership of a HOA
From: Sharon Villines (sharonsharonvillines.com)
Date: Sun, 19 Feb 2006 06:25:32 -0800 (PST)

On Feb 19, 2006, at 7:24 AM, Evdavwes [at] aol.com wrote:

If you have a legal setup where the Board is legally responsible for the rules and regulations, but the membership expects to participate (by consensus!) in the decision-making process, what process do various cohousing communities
 actually follow in making decisions?

Our lawyer explained it this way -- The Board has the ultimate legal _responsibility_ under the incorporation laws. It cannot delegate that responsibility. BUT that does not mean that the membership cannot control decisions. The Board is responsible for ensuring that decisions are made in a timely manner and according to the bylaws and other legally binding agreements (like condo docs, contracts, etc.). But this can be done as an overseeing or coordinating function, not as an autocratic rule function as in many condos.

Legally, the body that approves your right to do business as a group (usually the State) wants to be sure who is ultimately responsible for ensuring sound financial and personal safety decisions. The board is also responsible for ensuring the rights of individuals, for ensuring that the laws about accessibility are enforced properly, that a wheelchair bound individual is not isolated because a committee can't make a decision or hasn't met in months. Some one has to have the right to step up in emergencies (a fire or flood or no electricity) and make quick decisions. Legally it is a function of the board to ensure that this is done.

The Board is "the buck stops here" entity, but if the community wants community governance, it just needs to ensure that the buck gets taken care of before the board is required by law to act. AND to rein in the board when it goes beyond what is required.

Also people who do business with us want contract signed by a Board member. They want to be sure they are dealing with an entity that they can sue if their bills are not paid. Our President signs all our contracts but the Admin Team and usually the Facilities Team looks at these first.

As a possibility, the members could come to consensus on some policy, then forward it to the Board, which might want to get legal counsel and then either
veto or change the policy because the Board would be  responsible for
enforcing and would not want to adopt an illegal or unenforceable rule.

We have policies reviewed by our lawyer during the consensus process. No policy has ever come to a membership meeting only once. Usually this takes several drafts and several meetings. {I hate to bring it up bit it can take months and months.) On an issue like limiting the number of years a unit can be rented, we may have talked to the lawyer several times to be sure what is legal.

We have recently distinguished between "guidelines", which are not enforceable and "policies" which are. This makes me personally uncomfortable since people have such varying definitions of "guidelines". I would prefer "community agreements" for all our community agreements, legally enforceable or not.

I would like to address this from a sociocratic point of view but will do so in another email.

Sharon
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Sharon Villines
Takoma Village Cohousing, Washington DC
http://www.takomavillage.org


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