Welcome home? New FHA process could make condos available to more buyers

Millions of homebuyers could benefit from new guidelines issued by the U.S. Department of Housing and Urban Development that streamline the Federal Housing Administration’s condominium project approval process. The guidelines, which went into effect yesterday, now allow single-unit approvals, extend the lifetime of approvals, simplify recertification, and more.

In a statement, HUD Secretary Ben Carson says one goal of the new process is “to open more doors to homeownership for younger, first-time American buyers as well as seniors hoping to age in place.” HUD data shows condominium unit mortgages currently account for fewer than 2% of all FHA-insured mortgages. 

One important element in the agency’s updated approval guidelines includes single-unit approvals on up to 10% of mortgages in condominiums without FHA approval provided that they are financially stable. The other changes include increasing the concentration rate so that FHA can insure up to 75% of unit mortgages in a condo project and lowering owner occupancy rates from 50% to 35% based on financial and operational stability. 

In addition, the new procedures extend FHA approvals for condominiums from two years to three, simplify recertification to only requiring updates to information instead of resubmitting all information, and ease restrictions on mixed-use condominiums with up to 45% commercial space. 

HUD estimates that between 20,000–60,000 condominium units may now be eligible for FHA-insured financing annually, and that around 7,000 new condominium projects could be built thanks to wider availability of mortgages.

The new guidelines “take some of the pressure off boards” to spend association time and money to certify a condominium project for FHA financing, says Jeffrey A. Beaumont, vice chair of CAI’s California Legislative Action Committee and an attorney with Beaumont Tashjian in Woodland Hills.  

The changes should allow greater access to FHA financing and ultimately result in a greater pool of homes for prospective purchasers to choose from, says Beaumont, a fellow in CAI’s College of Community Association Lawyers. 

CAI supports the actions and has made a balanced, data-driven approval process a public policy priority. “Following the housing crisis in 2008, the FHA condominium approval process severely impacted access to FHA-insured mortgages, which hurt homeowners and household formation,” says Dawn M. Bauman, CAE, CAI’s senior vice president of government and public affairs. “The changes mark a return for FHA as a key long-term partner for condominium associations.” 

Credit-worthy first-time homebuyers who have been prevented from achieving condominium homeownership could now benefit from the new guidelines. About 40% of the nation’s 27 million community association households call a condominium home, accounting for approximately 10% of the nation’s housing stock, according to the Foundation for Community Association Research.  

>>Read more about the updated process at www.caionline.org/FHA.  

Pamela Babcock, a writer and editor in the New York City area, contributed to this article. 

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Red, white, and blue: Tips for displaying the Stars and Stripes

The Star-Spangled Banner. Old Glory. The red, white, and blue. No matter how Americans refer to the U.S. flag, everyone has the right to fly it. Flag Day, held annually on June 14 since 1916, should serve as a good reminder for how all should properly and proudly display the Stars and Stripes.

Thanks to the Freedom to Display the American Flag Act, enacted in 2006, residents in community associations have the right to fly the flag even if there are rules and restrictions that prevent it from being displayed. CAI believes, however, that associations should be able to determine the appropriate size, placement, and installation of the flag and flagpoles.

CAI encourages associations to follow the guidelines for flying Old Glory in the U.S. Flag Code, some of which includes:

  • Display the flag in public from sunrise to sunset. It can be displayed at night if it is illuminated during darkness.
  • Do not display the flag in inclement weather, unless it is an all-weather flag.
  • The flag can fly on all days, especially on national holidays, other days that may be proclaimed by the president, and dates of admission of states into the union.
  • Do not position the flag upside down. This represents a signal of distress in moments of extreme danger to life or property.
  • Do not let the flag touch anything beneath it, including the ground, floor, water, or other objects.
  • No part of the flag should have any mark, insignia, letter, word, figure, design, picture, or drawing of any nature.

Need more information about rules and regulations regarding flags, banners, and emblems? Read Everyday Governance: The Community Association’s Guide to Flags, Rentals, Holiday Decorations, Hoops, and Other Headaches, available from CAI Press.

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Condominium assessments and bankruptcy: What can associations collect?

Courts across the nation are split on whether post-petition community association assessments constitute dischargeable debts under Chapter 13 of the U.S. Bankruptcy Code. To make matters worse, in November, the Supreme Court denied a petition to review the issue, leaving the community association industry wondering if the existing dispute among the courts will ever have a concise national remedy.

This past July, the Ninth Circuit Court of Appeals, which comprise several Western states, had held in Goudelock v. Sixty-01 Ass’n of Apartment Owners, No. 16-35385 (9th Cir. July 10, 2018), that an individual’s pre-petition debt or claim for assessments—created when a property owner takes title to property and which contractually obligates the owner/debtor to pay assessments—is dischargeable when the owner/debtor successfully completes a confirmed Chapter 13 plan. In November, CAI attorneys drafted and submitted an amicus brief in tandem with the (now denied) petition to the U.S. Supreme Court appealing the Ninth Circuit case.

CAI’s amicus brief made it clear to the Supreme Court that the rationale employed by the Ninth Circuit in Goudelock has far-reaching implications for community associations throughout the U.S., as it threatens the lifeblood of community associations—the continued ability to levy and collect assessments and dues for the maintenance and preservation of community property. Due to the Supreme Court denying the association’s petition, the Goudelock decision stands. This decision is already negatively impacting community associations in the Ninth Circuit, as courts have cited the Goudelock decision in their reasoning for denying community associations the ability to collect debts in Chapter 13 bankruptcies.

Yet not all courts across the country agree with this decision. In February, the U.S. District Court in New Jersey handed down a decision that positively impacts the amount of money a condominium association with a properly recorded lien is entitled to receive when a unit owner files for Chapter 13 bankruptcy.

In an appeal filed by the Oaks at North Brunswick Condominium Association, the New Jersey court reinforced that a condominium association lien that is recorded in accordance with the New Jersey Condominium Act is given elevated priority over other claims and that said lien is partially secured and no amount of the lien can be stripped because of the Anti-Modification Clause. This means that condominium associations should receive the full amount of their lien claim when a unit owner files a Chapter 13 bankruptcy.

For now, these conflicting rulings leave our community association attorneys confused and frustrated. Outcomes such as the Oaks at North Brunswick case provide hope for dischargeable debts in our industry. However, Goudelock provides that pre-petition condominium assessments are dischargeable in Chapter 13 proceedings but leaves some critical questions unanswered. This being the first circuit court case on the issue, chances are the other circuits may weigh in. At the end of the day, attorneys need to be aware of Goudelock and its possible application to every Chapter 13 case where the debtor owes community association assessments.

This post also is running on CAI’s Advocacy blog, where you can read about the latest court cases, state and federal advocacy efforts, public policies, and more.

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Different strokes, different folks: How community managers and property managers have distinct roles

A common mistake in state legislatures considering community association manager licensing—and among the general public—is to lump community association managers and property managers into the same bucket. While both are very important roles, they are distinctly different professions with functions, skill sets, and responsibilities specific to each.

A community association manager can manage every type of community: condominium associations, homeowner associations, resort communities, and commercial tenant associations. A community association manager works directly with property owners and homeowners.

Property managers oversee individual rental units or a group of rental units, such as an apartment complex. They’re responsible for managing the entire property, while community association managers are responsible for common areas—not individually owned properties.

“From a legislative standpoint, this incorrect categorization occurs because state legislators misunderstand the nature of community association management,” says Matthew Green, director of credentialing services for Community Association Managers International Certification Board (CAMICB). “They believe that community association management skills are identical to those of a property manager without recognizing the vastly different responsibilities of these two positions.”

This misunderstanding of the two professions often bleeds into more general conversations occurring in this space. Compounding this is the reality that there’s a slight overlap in a couple of the duties performed. For example, both property managers and community association managers supervise certain maintenance activities, such as swimming pool upkeep and trash removal. But it’s important to understand that community association managers oversee and direct all aspects of running the business operation. This means that they authorize payment for association services; develop budgets and present association financial reports to board members; direct the enforcement of restrictive covenants; perform site inspections; solicit, evaluate, and assist in insurance purchases; and even supervise the design and delivery of association recreational programs.

Property managers are responsible for managing the actual property and therefore handle the physical assets of the unit at the owner’s request. Property managers generally oversee rental units and leases. Their responsibilities might include finding or evicting tenants, collecting rent, and responding to tenant complaints or specific requests. If a property manager is responsible for a vacation or second home, he or she may arrange for services such as house-sitting or local sub-contracting necessary to maintain that property. Alternatively, an owner may opt to delegate specific tasks to a property manager and choose to handle other duties directly.

Stephanie Durner, CMCA, AMS, director of community management at River Landing, a gated golf course community in Wallace, N.C., views the distinction this way:

“While property managers are generally charged with overseeing physical structures that are used by people who are not the owners of the property, association managers represent the property owners themselves and are involved in just about every aspect of the overall community. For instance, if a garage door is broken at a rental house, the tenant would call a property manager or owner/landlord. But if there’s a pothole that needs repair or if a neighbor’s dog is running loose through the neighborhood, that’s a task for the community association manager who both maintains the common areas and upholds the governing rules. To me, community association management is a more holistic approach that contributes to the overall quality of life for all the owners in a community.”

Green emphasizes that while some job responsibilities are similar, community association managers have additional functions. “It’s critical that community association management be recognized as distinct from property management because association management requires a wider variety of knowledge and skills,” he says.

Because of these differences, community managers and property managers need different training and education.

CAMICB offers and maintains the Certified Manager of Community Associations (CMCA) credential, the only international certification program designed exclusively for managers of homeowner and condominium associations and cooperatives. The CMCA credential means an individual has taken and passed the rigorous CMCA examination, proving they have a solid understanding of the business operations involved in being a community association manager.

The post above originally was published on CAMICB’s CMCAcorner blog. Follow along for the latest on the essential credential for community managers.

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What do community associations look like in China?

Shanghai urban skyline, China

Picture this: A place where community associations aren’t legally able to have their own bank accounts, property management companies can retain ownership of common areas and rent them out without homeowners’ consent, and developers interfere with board elections because they are opposed to the formation of community associations. While this might seem improbable, situations like these occur frequently in China.

In the U.S., the community association housing model has become commonplace. According to the latest figures from the Foundation for Community Association Research, there are roughly 344,500 common-interest communities across the country. CAI has chapters throughout the world, including Canada, the Middle East, and South Africa, and relationships with housing officials in Australia, Spain, Saudi Arabia, and the United Kingdom. But how prevalent are community associations elsewhere in the world?

They’re a recent development in China, emerging shortly after housing reforms in the 1990s. Previously, urban housing was mainly provided by danwei, or place of employment. Danwei were organized by occupation and were both a physical space where people lived and a system whereby the government could regulate residents’ decisions and actions. With economic and political reform, this system largely became obsolete, leading to significant housing changes.

In response to property rights violations by developers and property management companies, community associations began to emerge. Developers have been faulted for failing to give homeowners their deeds and using them as collateral for loans, understating the area of the home, or not providing promised amenities. Unlike in the U.S., where community associations are usually formed by developers and membership occurs upon purchase of a home, associations in China are a grassroots effort spearheaded by residents to preserve their rights.

From a cultural and political perspective, community associations are novel in the single-party authoritarian regime that is the People’s Republic of China. In a 2008 dissertation by Feng Wang, at the time a Doctorate of Philosophy candidate at the University of Southern California, local governments often looked down upon associations as “an unstable social force that interrupts the establishment of a harmonious society.”

In China, a community association needs to form a preparatory group before it can officially establish—a difficult process. Residents need a representative from their developer and management company. Without their participation, local governments easily strike down the burgeoning association. The group also must meet a voting threshold for approval, and appeal to the management company or developer for a list of residents’ names and contact information to generate participation. Causing further complications, the initial vote is determined by property percentage. This gives developers an opportunity to vote to block its formation if they still own unsold units.

Despite the difficulty in forming and managing community associations, some have achieved commendable success in the country. In 1998 (before some important reforms), residents in one housing complex in China staged a coup and successfully disbanded their HOA after discovering that their management company had falsified a neighborhood mandate giving them permission to form the group. New leadership was voted in, and an HOA with community approved leadership was formed. The group was even able to successfully negotiate lower fees with the management company.

The residential conflict commonly reported in the media in community associations across the U.S. seems trivial compared to the conflict between developers, property managers, and homeowners in China. One might even wonder at the seeming lack of internal disputes among Chinese residents. In fact, according to a survey conducted by Wang, 92 percent of homeowners rate conflict among themselves as a serious issue, but only 25 percent of community associations focus efforts on addressing these issues. It is precisely because of the focus on exterior challenges, rather than internal conflict, that many community associations in China have flourished despite an unfavorable environment.

Through transparency, inclusion, and mobilization of homeowners in China, associations have made huge gains for the rights of residents. Whether in China or the U.S., community associations cannot lose sight of their goals: to elevate residents’ standard of living and protect property values.

Read more about homeowners association in China in the following:

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Why are common-interest communities so uncommon in the U.K.?

Big Ben, London

Community association living is widely popular in many areas of the world. In the U.S., for example, there are 70 million people living in 344,500 common-interest communities, one in eight live in a condominium in Canada, and three million Australians live in strata communities. Condominiums have taken off in Europe too, especially in France and Germany. However, one country remains a laggard in this trend: The United Kingdom. Despite legislation introduced in 2004 to jump-start condominiums— or commonholds as they are referred in the U.K—less than 20 have been developed.

The commonhold system was introduced to phase out the most popular form of housing in the UK: leasehold. In a leasehold arrangement, the buyer rents a flat from the freeholder, or landlord, for a specified number of years. The freeholder is responsible for managing and maintaining the common areas of the building, such as hallways, roofs, and facades. The lease is typically long-term—often as many as 120 years—but begins to decrease in value as the lease nears its end. Many individuals have taken issue with the leasehold system. Complaints range from burdensome fees imposed by landlords to the costliness of extending a lease and the fundamental nature of a leasehold as a wasting asset.

With all the complaints surrounding leaseholds, one might wonder why there’s a lack of enthusiasm for commonholds? In theory, self-management of commonholds removes conflict with the landlord, and ownership alleviates the ticking time bomb worry of a lease. The Law Commission, an entity responsible for reforming laws in the U.K., has a few ideas as to why commonholds remain so sparse.

Some potential issues affect homeowners. When changing from a leasehold to a commonhold, the law requires unanimous consent from every inhabitant 21 years or older, the freeholder, and every lender with a mortgage. Naturally, getting this many people informed, let alone on board with such a big change, is difficult. In addition, the commonhold association, the U.K. equivalent of a community association board, is a company under the current law. As such, leaseholders could face criminal penalties for violating the law. This standard is much too risky for any homeowner. Regulations also might be too stringent in some areas and overly flexible in others. For example, maintenance obligations are unchangeable regardless of age and price of the building, but on the other hand, fire insurance is the only type of insurance buildings are required to have, whereas other types of buildings require flooding and theft insurance.

Overall, commonhold’s failure to launch might simply be due to lack of a financial incentive for developers and a gap in public awareness over this type of housing. These types of large-scale transitions can be difficult and require public backing. However, the U.K.’s housing reform endeavors are an admirable effort to jump-start conversation between potential homebuyers, legislators, commonhold owners, and developers.

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