bod & prior legal advice

Started by LauraT • 4 replies • 1076 views

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LauraT (Florida)
Posts: 15

Posted:

In florida, when a new board of director is elected, in order to make knowledgeable decisions, would need to have all information, including previous legal opinions with regard to the enforceability, of the documents etc. On the other hand, could that violate attorney client privledge? If a legal opinion said that the CCrs were abandoned, does that mean that the board should not be collecting assessments?

MarkM31 (Washington)
Posts: 351

Posted:

The attorney would have worked for the board, so everything would be intact and they can blab at will to you for $200/hour

MarkM31 (Washington)
Posts: 351

Posted:

Quote:

Posted By LauraT on 06/20/2016 11:12 AM
If a legal opinion said that the CCrs were abandoned, does that mean that the board should not be collecting assessments?

The board and the HOA likely may not exist

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By LauraT on 06/20/2016 11:12 AM
In florida, when a new board of director is elected, in order to make knowledgeable decisions, would need to have all information, including previous legal opinions with regard to the enforceability, of the documents etc. On the other hand, could that violate attorney client priviledge? If a legal opinion said that the CCRs were abandoned, does that mean that the board should not be collecting assessments?

A HOA board is under no obligation to take the advice of the HOA's attorney.

Any opinions a HOA attorney puts in writing and submits to the Board are the property of the HOA.

A HOA attorney's client is first and foremost the HOA. When a board or HOA employee acts as an agent of the HOA, then the HOA attorney may, with some limits, act as the attorney for the HOA agent.

In recent years, it appears attorney-client privilege has come into play when a minority of the board is suspected of looking to sue the HOA and wants to obtain information from the HOA that the board majority alleges could help a lawsuit along. In this instance, the HOA attorney is obliged to take instruction from the highest authority in the corporation, which would be a board majority.

If a court has not ruled on the legality of collecting assessments, and there is some doubt as to the legality of same, then a board certainly can try to collect assessments. A board may place liens and so on as the governing documents may prescribe. But the board needs to be prepared to defend its actions in court. Placing a lien for bogus reasons is slander of title" and could be costly to either the HOA as a corporation or, if the directors are reckless enough, to the board members individually, without their having indemnification.

Could you elaborate a bit on what's going on?

JamesG11 (Florida)
Posts: 118

Posted:

1. Yes, the newly elected Board of Directors is entitled to receive possession, custody and control of all of the books and records of the Association, including legal opinions issued by the Association's attorney.

2. Just because the Association's attorney issued a legal opinion advising that the CC&Rs had been "abandoned," that isn't necessarily dispositive of the issue. Attorneys can, and often do, hold disparate opinions about a legal matter. The current Board should carefully examine the legal opinion in question and speak to its author about any questions it might elicit. The Board may also wish to engage another attorney to render an independent legal opinion on the subject -- particularly since the issue is such a fundamental one.

3. If the CC&Rs have indeed been "abandoned," then none of them are enforceable and the Board members can be sued individually should they attempt to collect assessments that are no longer lawful. Does your Board maintain D&O insurance?

4. I suspect that your CC&Rs may be over 30 years old, and your Association's attorney's reference to the CC&Rs having been "abandoned" is his/her way of expressing the fact that MRTA has caused those CC&Rs to expire and have no further force or legal effect. If my suspicion is accurate, then you have a very large problem. However, all is not lost; Florida law does provide for the revitalization of expired CC&Rs - see Section 720.403-407, Fla. Stat.

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