Lawyer on retainer

Does our HOA need to have a lawyer on retainer "just in case".

It really depends on your HOA's level of understanding it's rules and limits. Some HOA's feel more comfortable and dependent on lawyers than others. If that is what the membership wants and is okay paying the amount of money to keep a lawyer on retainer then that may be an option.

However, a HOA does NOT need to keep a lawyer on retainer. If you understand your documentation and follow it, then there's no real need for an attorney except for filing paperwork that requires a lawyer to do. A lawyer is basically a TOOL for the HOA to use in areas that legal filings need to be conducted. Those areas are filing of liens, foreclosures,representing in court, and updating the CC&R's. Having a lawyer for advice is kind of an indication your HOA needs more HOA education. Making small claims court filings should always be avoided unless it's your state mandated to do so.

I wouldn't keep a lawyer on retainer as you most likely don't need one for the most part until you do. That is the general rule...

We have a law firm to take care of legal issues when they arise, but no, the firm is not on retainer. It's pay-as-you-go.

Very very good point Sheilah. There should be limited contact with the attorney down to only one or maybe 2 officers like you have it. More than that it then becomes almost personal use.

Just wanted to add that even if you have a lawyer on retainer they charge for alot of other things. They have a hourly rate in addition. They may charge for the following items: Court appearances, filing paperwork, collecting signatures, sending out letters, court costs incurred for filing/work related, phone calls, emails, and any real contact with them. So if you do need to call them do NOT leave your name or HOA information. Just say you will call them back when they are in the office. I've seen them charge for this to.

So discuss the terms of what all the charges are you may incur. That includes their rules on contact, appearance, and drafting documents beside retainer/hourly rate. Plus make sure they are in the best field you need. A HOA is a corporation and deals in CONTRACTUAL laws and NOT real estate. So if you hire a lawyer make sure they are familiar with contractual laws. Specialty lawyers in HOA law cost more.

In my area there are several law firms specializing in HOA law who charge around $50 a month to be "on retainer." For that $50, the HOA can receive advice by phone on virtually any HOA-related topic.

Sounds good, right?

The reality is that most HOA board members have no experience with hiring attorneys and are sitting ducks for these weasels to pick off. The quality of their "free" advice is just what you paid for.

The game these lawyers play is that when the HOA wishes to file suit for non-payment, the lawyers soak the HOA with unbelievable fees. We had one of these law firms who charged us over $150,000 to file suit against 50 delinquent owners to collect about $25,000 in unpaid assessments.

Our development is made up of unimproved large parcels and not one of the delinquent owners lives on their parcel. In fact, the last known address we had for most of them is out-of-state. You cannot obtain a money judgment against a person you cannot find and serve, yet our attorney filed one lawsuit after another collecting his fees in advance for services that he knew he would never render. And of course the board paid and paid and paid.

There were a couple of lawsuits that did get served. One was upon a local woman who failed to pay a $15 late fee because no one ever told her she owed it. To settle the lawsuit against her she had to pay the attorney some $4,000. Had I known of this beforehand, I would have advised her to go to trial. The judge would be unlikely to find in favor of the association as she had paid every amount they had ever billed her for and even if she lost, the judge is required by law to limit the amount of the lawyers fees to a "reasonable" amount. No judge is going to find it reasonable to charge $4,000 to collect $15.00 that the plaintiff never sought before filing a lawsuit.

Another lawsuit that did get served went all the way to foreclosure and the sheriff issued a deed to the property to the association. Too bad there is a superior lien on the property, so the deed will eventually be invalidated. The attorney had already been reprimanded twice by the court of appeals for pursuing similar actions for other associations, so it was not like it should have been news to him that he cannot foreclose when there is a lender's lien on the property.

My advice is to stay away from budget attorneys. They are sharks waiting to prey on the next unsuspecting HOA board.

Once upon a time, I read somewhere that when hiring a law firm (retainer or not), the Association should get a list of charges (responding to phone calls, court appearances, etc.) – from there, you can determine under which circumstances to contact the attorney so you’ll know exactly how much it’ll cost.

For example (and I think I read this somewhere on this site), if you know you have to sue a homeowner for delinquent fees, you can set some sort of budget to address court filings appearances, correspondence and such. Measure that against the amount owed and it can help you decide when additional action, if warranted, should be done if other efforts don’t work, especially if it means foreclosure might be in the forecast. And when the legal costs begin approaching the amount owed, you can then debate what your stopping point.

I saw another attorney website that suggests you ask who’s actually doing the work and possibly negotiate fees from that. People often get charged attorney’s fees for something a paralegal actually did, so try to find out if an attorney is actually doing the work (if not, maybe you can negotiate a lower fee for that service).

Finally, ask around about alternative dispute resolution, which may be great for CCR violation disputes (both parties often agree in advance to comply with the arbitrator’s decision). You usually don’t need an attorney and the arbitrator may come up with a resolution both parties will be happy with – it can be faster and a lot cheaper than hiring an attorney and duking it out in court. In my opinion, there aren’t nearly enough of these programs that are affordable or even free – look for one where the parties split the costs of the arbitrator, with the loser reimbursing the winner.

You have obviously never collected on a judgement. Once you have a judgement you can have the sheriff take his harley davidson, boat, whatever and sell it at auction, garnish their wages, etc. Most people never take it to that point, but I have.

I have collected on a debt after my renter ran out. However, it's a HOA/corporation we are dealing with here and NOT as an individual. You have a group of people involved. That makes it a bit more difficult. Plus you have to factor in that if you do get something like a motorcycle, that if you sell that bike at $5K and they owe you only $3K, that $2K difference goes back to the owner NOT the HOA. Something I am not sure some HOA's would be competent to understand. Which could mean another lawsuit against them.

I'd rather go the lien route for a HOA. Mind you that lawsuit judgement could be made into a lien. However, that means it was a waste of time and money originally to file the lawsuit just to file a lien.

What the heck are you talking about? The sheriff handles this stuff, not the HOA.

Why not pay the sheriff to deliver in person? I'm sure the town had the address, even if there was no mailbox.

This persons business was his house...So could not serve him at work...LOL! this wasn't his first time in trouble so he knew the law. That is why the mailbox not there.

While this is true, you dont need to reconfirm if you move. You could move 4 times, keep renewing, and still have your original address on file and no one would know.