HAPPY NEW YEAR, AND WELCOME TO 2020!
Here are a few reminders and updates from the Office of the Common Interest Community Ombudsperson, Delaware Department of Justice, Fraud & Consumer Protection Division, Consumer Protection Unit-Community Assistance Unit. That is a long title to illustrate DOJ’s commitment of resources to consumers and communities.
This year, please try to always remember that owners and board members, are your neighbors. Your board members, in addition, are unpaid volunteers. Please treat each other with patience, dignity, and respect. Nothing works better than “nice” in community governance and building “community!
HOW DOES YOUR COMMUNITY KEEP ITS RECORDS?
Keeping accurate and complete accounting records is important to govern a community. Under both the DUCIOA, Section 81-318, (The Delaware Uniform Common Interest Ownership Act) and the Delaware General Corporation law, section 220 (This applies to non-stock corporations too, through section 114) require that association books and records be made available to any owner requesting “access” to the records for a purpose related to membership in the corporation or community. Both statutes require that the request for access to books and records be made in writing, and the access be provided within 5 business days. We receive several complaints a month alleging a board or property manager refused to make access to the books and records available. This is a “red flag.” We must occasionally investigate a community refusing access to books and record, or without clear books and records, or without a clear access policy or request procedure. Unfortunately, we have found theft of the funds paid by owners and expensive mistakes, more than once.
Many self-managed, smaller, or low assessment community associations, (including deed restricted townhouses, freestanding home subdivisions, condominiums and co-ops) struggle with accounting for money collected from homeowners for community maintenance, insurance, and reserves.
Several inexpensive accounting programs make it easy to create, keep, audit, and review, books and records, and to provide them securely to community members on request. Many include self-guided tutorials. This time of year many office product stores put suites like Quickbooks® and others on sale, with deep discounts for the coming tax season. Some regularly priced at $300 are available for $100 less at this time of year. Advertisements abound in newspapers, in-store fliers and online.
If you have not automated your books and records, or find your current program overly complex and difficult for successor treasurers to understand, consider the small investment in an accounting software suite for 2020.
NEW CASTLE COUNTY AND KENT COUNTY ASSESSMENT BILLING SERVICES:
Did you know that both New Castle County and Kent County each have a program your community can use for Billing community “dues” Assessments? These secure systems allow communities to turn over the invoicing, mailing invoices, and accounting to the county for a modest charge.
Both programs:
- Mail the invoice, accept and record the payment, and periodically sends the money the Board;
- Charge a small fee for the service, that is in-line with the cost of providing the service, e.g. paper, ink, envelopes, postage-initial mailing and follow-up;
- Mailing follow-up reminders at specified intervals to encourage payments;
- Send collected funds to the community with reports;
- Correct errors of the county, if any;
- Provide several accounting reports on who paid and who did not;
- Provide an end of year report listing those who are still delinquent.
Neither service will follow-up collection by suing or recording a lien. However, the Ombudsman’s online Manual “Collecting Delinquent Assessments” explains use of Justice of the Peace Courts to sue delinquent owners in a Debt lawsuit, without a lawyer, and follow-up with collection process like wage garnishment, or inventory and sale of personal property. It includes links and forms for boards interested in following-up without the assistance of a lawyer.
Click here for more information about:
Sussex County does not offer this service. Consider contacting the County Administration about offering this service.
ANNUAL REMINDER: ANNUAL FRANCHISE TAX REPORT.
If your community association is incorporated (most are), then it must file an “Annual Franchise Tax Report” every year by March 1. Most Community associations, as non-profit corporations owe no State Tax, but there is an annual corporation registration fee of $25. The Report must be filled on the Division of Corporations Website at this link. Filing this report is necessary to retain corporate existence. If it lapses, it can be reinstated, but the protection of the corporation may be lost while it is lapsed.
Many associations do not realize that they must also file a Federal Tax return. Most can file an abbreviated HOA Tax report, form 1120-H, unless they have profit making activities that may require a more complex Federal Tax return. Click here for more information about Federal community association tax forms, or contact an accountant or lawyer experienced in community association law.
HAS YOUR COMMUNITY ASSOCIATION RECORDED ITS BYLAWS WITH THE RECORDER OF DEEDS?
Since the enactment of the DUCIOA, effective September 30, 2009, all communities, pre-existing the Act, or even otherwise exempt from the Act, must have and record bylaws with the Recorder of Deeds of the county or counties where a community is located.
Delaware law requires all common interest communities and all corporations to have bylaws. The DUCIOA at sections 81-116, 81-117, 81-118 and 81-121 require all common interest communities, whether they are corporations or not, to have recorded bylaws. The Delaware General Corporation Law at sections 108, 109, require all corporations to have bylaws, regardless of whether they are community associations.
This Office receives, reviews, and answers many questions and complaints about a board not having bylaws, or not providing bylaws to each homeowner or not following the bylaws. Bylaws tell the members of an association and the board how the association is to operate legally, and some of its authority and limits on authority. Boards get in trouble by not following bylaws. Common problems include not following the bylaws about having meetings, meeting notice, elections; amending bylaws without following the procedure stated in the bylaws for amendment. Those amendments are invalid and unenforceable. Actions taken in violation of bylaws, or following bylaws that conflict with the declaration or other governing documents or a statute are similarly, invalid, and unenforceable.
Check with your association to be sure your bylaws are Recorded. New Castle County waived all fees for recording community association governing documents and amended documents. Owners living in other counties might consider discussing a similar waiver with their recorder of deeds or county administration.
CHANGE TO ADVISORY COUNCIL STATUTE:
The Governor’s office sponsored legislation to change the qualification for the Governor’s appointees to the Common Interest Community Advisory Council, 29 Del. C. § 2546. The legislation was signed by the Governor in November, 2019.
Before the change, the Act required the Governor to appoint “members of the executive board of common interest community’ to the Advisory Council, “1 from each county.” The Act now requires: “The Governor shall appoint 3 members of the public who are unit owners, as defined under § 81-103 of Title 25, of common interest communities in this State, 1 from each county.”
The DUCIOA at section 81-103 defines: “(49) "Unit owner" means a declarant or other person who owns a unit, or a lessee of a unit in a leasehold common interest community whose lease expires simultaneously with any lease the expiration or termination of which will remove the unit from the common interest community, but does not include a person having an interest in a unit solely as security for an obligation. In a condominium or planned community, the declarant is the unit owner of any unit created by the declaration. In a cooperative, the declarant is treated as the unit owner of any unit to which allocated interests have been allocated until that unit has been conveyed to another person.”
This change enlarges the pool of potential appointees to the Advisory Council to include owners who are not member of the “executive board” of the community. This definition does not include those who rent or have an ordinary lease from an “owner” or sublessees.
Want To Be A Member of the Common Interest Community Advisory Council ?
The Advisory Council has two vacancies going into 2020:
- The Governor can fill one vacancy from an owner of a unit in Kent County.
- The President pro Tempore of the Delaware Senate may fill one vacancy, without the Governor’s limitations.
If you are interested in serving on the Common Interest Community Advisory Council:
- Complete the application at the Governor’s Boards and Commissions web site, and apply for board # 0349
- Contact the Office of David B. Mc Bride, President Pro Tempore of the Delaware Senate.
For additional information about the Common Interest Community Advisory Council, see section 2546 of the Ombudspersons Act. The next meeting of the Advisory Council will be held in Sussex County on January 22, 2020 beginning at 1:00 pm, most likely at the County Council Chamber on the Circle in Georgetown, DE. The public is welcome, and may offer comments and questions to the Council.
Christopher J. Curtin
Deputy Attorney General
Common Interest Community Ombudsman
820 N. French Street
Wilmington, DE 19801
Tel: (302) 577-8600
Direct: (302) 577-8943
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