Can I post our attorney's proposal for amendment?

Remove the name of the Association and I don't see an issue with it. This is because the attorney knew you were going to release it to the membership, so it's not necessarily attorney client stuff.

Tino,

Well, you really need to hire another attorney if you feel that the proposed amendment is full of holes and mistakes. But is it?

What qualifications do you have in order to see all of these holes and mistakes? Tell the guy, after all, you are hiring him to write what YOU want. Have a conversation with him, telling him of your concerns. Why hire another lawyer unless this one refuses to fix what you are concerned about.

--I am asking whether it is okay to post what the attorney has written along with my review of it.
If it is okay I will post his writings verbatim so that you see what I am concerned about.

- Yes, I am the guy who posted about the hardship clause. I understand that a hardship clause is problematic and you will see when I post what he has written that it may be a lousy idea to include one.

- Yes, I am not a lawyer so I am not qualified to decide on my own whether what he has written is good or bad. But my opinion is that it is full of holes and logistical problems. We have already paid for about 6 hours of his time and I am so disappointed that I don't want to spend more time fixing what we could have got from an experienced HOA and well respected attorney for half the price.

I respectfully ask you people who might be experienced with the policy of this forum whether it is okay to post attorney generated documents for review. If the answer is Yes I would like to post it and THEN we can discuss the whole strategy of what I should do after we get some comments about the documents. -- If you guys haven't run out of patience with my approach.

Tino,
I am NOT a lawyer but IMHO, if he has sent the amendment as a proposal, then it should be open for review to all. That may include us. If a million of us review it, what is the difference if 5 of you in the HOA review it. Once it leaves his desk as a proposal, then it should be open to anyone. Just my opinion. Where are all of the legals here? (You said that the HOA has not paid his bill yet?) Wonder if that matters?

Here's what he wrote for the first paragraph:
1. No more than three units at any time may be leased to non-owners of the units. The board of Directors will maintain a waiting list of owners who wish to lease their units. When the number of units being leased is less than three, the next owner on said list shall be entitled to lease his or her unit. If the owner of the unit does not inform the board that it will lease the unit within 10 days of being notified of his or her eligibility to rent, that owner will lose the right to rent and the next owner on the list shall then be given the right to rent.

Here's my thoughts: My understanding is that there is a real and legal distinction between Leasing and Renting. The rule starts by making a statement about leasing and gives conditions relating to renting. Maybe that is acceptable but legalese is usually much more tightly written and we would hate to have someone think they can break the rules because they say they are renting, not leasing - there is a difference.

He mentions that the board will keep a list. But he doesn't describe how it will be determined. I would prefer that the system was spelled out so that people voting for or against the amendment would know how that list is determined. And much more important, when courts determine whether a rental restriction is legitimate the judge looks at whether the rental restriction is equitable, reasonable and non-discriminatory. The list would have to meet those criteria and it would be helpful for defending the validity of the list to define how it works. Without the system spelled out we would be at a disadvantage if it was contested.

Also the system described in the proposal says that if an owner decides not to rent when the opportunity is given to them they lose that right. Since the proposal doesn't say how that right is given back that would mean the owner loses it permanently. Is that what he intended? It is possible that everyone would lose their right to rent. Where would that association? I have no idea why he worded it that way.

Tino,

The problem with paraphrasing is that you lose the legalese and we only see what you understand it to read, not necessarily what it does say. In legalese, each word and how it is used means something and changing one word can make the whole paragraph mean something else.

If it's a word document you may just want to attach it to a response using the "message attachments" section above the submit button. All you need to do is select the browse button and locate the document on your computer.

Tim

Mary,

My understanding of our relationship with our attorney is that we have to pay for his time for him to answer our questions and concerns. We have already spent more money than we should have, compared to other more HOA specialized attorneys.

I don't know the laws or how to write a CC&R amendment as well as an attorney but my knowledge of human nature is that if I go back to the attorney to question what he is has written and suggest that I might be right and that he might be wrong I will be wasting my time and paying a lot to do so. I am hoping to get some other opinions here on this forum from people who may or may not be attorneys but have lots more experience in HOA issues and maybe have seen more amendments and contracts than I have.

The newly adopted amendments would come into effect when adopted, so yes, new owners would be told that they cannot rent for 2 years.

It would be interesting to see how you are going to handle renewal of rental leases and/or grandfathering in of current rental properties.

Attorney's grandfather clause: Any unit that was being rented as of [end of last month in this case], shall be grandfathered and shall continue to be allowed to rent to the existing tenants until there is a change of ownership of the unit or until the present tenant vacates the unit. If the owner wishes to rent the unit again after the existing tenant vacates, the unit will be placed on the waiting list maintained by the Board, as described in #1 above.

My thoughts: The attorney has written it so that the grandfathering expires when the existing tenant moves out. This is going to ensure that at least those three people who are currently leasing their units are not going to vote for the amendment. My estimate of whether a rental amendment would pass our 51% level needed for approval is that it will fail without those three people.

I also think that if by some chance it does pass, those people would soon be fighting us in court. (By the way, one of them is a congress person in Washington DC.)

Note that attorney starts the amendment stating a three limit for "leasing" but uses renting and leasing interchangeably throughout the document. Is that okay to do?