What constitutes a legal opinion?

We have just passed new covenants as an amendment to our 1996 Declaration, but we have an individual stating we cannot enforce our new covenants due to the individual challenging the legitimacy of our 1996 Declaration, that the new covenants have been added on to. As VP I handle all dealings with the attorney. I did hours of research into the issues the member was challenging - I emailed our current attorney as well as the attorney who drafted our 96 Declaration to get feedback.

The individual requested all legal documents relative to our current and 1996 covenants and Declaration. I made copies and gave to him. He is now stating the legal correspondence does not contain legal "opinions," even though our attorney drafted legal opinions and sent them via email. They just didn't happen to be on firm letterhead, signed, and sent by U.S. mail. Are they legit as legal opinions?

What is it exactly, that constitutes a legal opinion? Thank you.

Shelley H

Shelley, you received legal opinions if the attornies gave an opinion and signed their name, dated the letter and hopefully provided their title. What is the basis for the individual's challenge? I would ignore that person unless it is apparent they have a valid basis. In which case they have the right to challenge the validity through proper channels. Your Board appears to have done due diligence and fulfilled your responsibility.

I'm assuming that the new covenants were "passed" legally (in our case, by a vote of 75% of the membership). If so, it doesn't really matter what this individual states, they are valid covenants and can be enforced. As someone else posted, you can't please everyone. If the new covenants are causing him a hardship (such as no longer being able to store his work truck at home), you could give him a grace period or try to help him work out a solution. Of course, if he decides to fight you, you need to fight back. And if he decides to take the HOA to court, remind him that he is actually taking himself and his neighbors to court.

DJ1, Are you a board member or other HOA officer or volunteer? Do you know how these associations are set up and how they operate?

Perhaps you have a better example, but until you provide one, let me give one:

The CC&Rs in your association state that you cannot paint your house a different color without prior written approval of the ACC, ARB, etc. You decide to do it anyway without approval and paint your house a color that makes it incompatible with the existing houses. In this case, do you think you are a "homeowner who has done no wrong"? Do you think the HOA is justified in requiring you to repaint the house the original color or an approved color? And how exactly does the HOA enforce the CC&Rs without the option of court action?

It's unfortunate, but many people don't understand the concepts of living in a covenanted community, yet they buy the home anyway and spend their lives fighting the rest of the community.

Thank you Roger. The attorney emailed his legal opinions to us, with the date noted (as is the case in all emails), his signature. title, and firm name at the bottom. (He owns the firm.) I would think it would be simple enough for the attorney to put his opinions on letterhead, however; I'm done cooperating with this individual, as is our board. We have told him repeatedly to address our attorney with his concerns, but he keeps coming back to us. Our pres. will no longer respond to his emails, except to repeat "contact our attorney."

The individual has cost me personally way too much time, aggravation, and anguish. He also tends to be disrespectful, condescending, and falsely accusatory, which I have zero tolerance for, especially when I work so hard to be gracious and diplomatic in return.

Another "minor" problem , he's my NEXT DOOR NEIGHBOR!

His issue? When we were in the process of drafting new covenants in 2005 (our old ones expired that year), an attorney in our neighborhood was doing some research (he is NOT the individual challenging things now), and he found that our 1996 Declaration that we were building the new covenants on, had some problems. The 1996 document was to have had 100 signed consent forms by Oct. 5, 1996 in order for the declaration to be valid. Turns out only 99 signed consent forms were turned in by the due date. There were also other issues, but this was the main one.

Our attorney sent back more than one response stating that we could argue "promissary estoppel" (sp) and also that we could argue we had "100 + lot OWNERS" sign the document, as opposed to one signature per property. (The wording in the 1996 Declaration in that regard was vague and confusing.) Our then and current board was satisfied with our attorney's arguments, and also the opinions of the previous attorney who drafted the 96 document.

By the way, our current covenants - which took two years to draft since the 2005 ones were voted down - just passed by 76%.

Roger-
Thanks for promissory estoppel definition. After the 5th reading, I think I got it!

Here was the exact wording of the paragraph in our 1996 declaration causing the problems:

"3. EFFECTIVE DATE
This Declaration shall not be effective whether or not it is recorded, until and unless: (1) at least one hundred (100) Owners have executed one or more written consents on or before October 5, 1996 (the "Enrollment Period"), which consents are substantially in the form of the Consent attached hereto as Exhibit "B" and incorporaated herein by this reference, (b) this Declaration and such Consents have been recorded in the ______ County,___ land records, which shall be no later than ninety (90) days after the end of the Enrollment Period and (c) two Association officers have executed the final page hereof certifying that the minimum number of required Consents have been obtained. Additional Consents, by owners of Lots within the Additional Property, may be recorded at any time subsequent to the recording of this Declaration, subject to the terms of this Declaration. Consents shall be valid only if executed by at least one officer of the Association and recorded by thre Association."

I just noticed that the two association officers signed and had the Declaration notarized on Oct. 3, two days before the due date. (The 99th consent form came in on Oct. 5)

BTW, there were 103 signed consent forms by the time the Declaration was submitted for recording to the county on Oct. 15, 1996.

Do you still feel that the Oct. 5 deadline for signed consent forms is arbitary? The attorney who drafted the Declaration appeared to indicate when questioned that the actual date of recording the Declaration and signed consent forms was more important. If that's the case, we're totally good.

Shelley

Lance-
Re: your first paragraph and comments about non-lawyers not able to interpret the law - my thoughts exactly. And I love your comment about "It's that 'intent' that constitutes most "legal op8inion" and not the black/white writing of the laws."

There are two other people in the HOA who agree with this person; one is a lawyer, one is retired IRS. But they've dropped the issue as of several months ago. Right now this is the only guy challenging it. (He says he's doing what's best for our HOA.) I'd like to know where he was a year or so ago when all the related issues came to light? Why would he allow our 14 member covenants committee to meet week after week for months to draft new covenants, without "informing" us our covenants would not be enforceable, and that we had a high risk of being sued and losing in court? (Obviously our attorney disagrees, and we stand by him.)

Our attorney is attending our March board meeting and I'm sure a lot of answers will come then.

Shelley

RonaldW and Brad,

I was talking in generalities in response to the comment about reminding the Homeowner he is suing himself when he is suing the HOA as if that should deter him from defending himself if he has been wronged.

ie. HOA of 100 homes incurs 100,000.00 in legal fees as well as having to pay a homeowner 100,000.00 in damages/costs. HOA then has to assess 2000.00 per home to cover the cost. SO I as the homeowner have to pay my 2000.00 but I get 100,000.00 because I won. Hmmm, not much of a deterent if I felt I was right on an issue, and I'm not talking about the normal application of CCR's and some homeowner decides not to follow them. I am referring to when the Board/ARC etc ABUSE their rights. If they didn't they wouldn't have had a judgement against them.

PS I am a homeowner who's developer screwed up so badly on a number of issues including failing the register the CCR's on 34 of the ~114 homes in our subdivision, including ours...but it took us ~5 years to learn this. We opted not to then join when asked BECAUSE of how the Board/developer handled the situation after our lawyer advised them of their screwup (as a courtesy). I was advised to say nothing and let them find out for themselves eventually BUT I didn't want my neighbors to have to incur the costs to fix this problem.

Just imagine a HOA with homes not scattered along a street, 2 in, next one is out, 3 in, 4 out etc. Now imagine trying to run a HOA/CCR's under that scenario and you have our subdivision.