Non-Board Member to Represent in Small Claims?

Where I live, corporations (including HOA corporations) are required to use attorneys in any court proceeding. The following site indicates this is also so in California:

https://www.avvo.com/legal-answers/must-an-attorney-represnt-a-plaintiff-in-a-evictio-2782220.html

You can and should research this more. I would not be optimistic.

Keep checking but the likely answer is No.

In my state the answer would be found not in the statutes but in the Rules of the Supreme Court. Those rules permit an officer of the corporation to represent it in Justice Courts provided that the officer is not hired solely for the purpose of representation and that the BOD has specifically authorized the officer to do so. A non-officer employee or member would not be authorized to represent the corporation.

Our lawyer told us that as a corporation a lawyer is to represent us in court. However, we may be able to appoint someone to do it as well. However, how many HOA's are going to trust a layman representing them in a court of law? Keep in mind I believe Manson represented himself in court. You see how well that went.

Now I believe I could have represented my HOA in court as the President. I had taken a few legal courses in college and familiar with court process. However, I would never do that. Instead I took my skills and knowledge to apply it to saving us costs in the legal process. What that means is that I would hire the lawyer but limit expenses/options. If a lawyer ever told me "I will do what you tell me to do", then I knew there were options he/she was not telling me. Ones most likely to save on money and effort.

An example of this is that we could sue an owner for back dues. This would require us to hire a lawyer and go to court. If we won, then we would get a judgement for the money owed and maybe court costs. A lawyer most like would tell us they would do this option for us. (I will do what you want me to do...). Sounds great and typical right? Then why is this a BAD option?

The reason a lawsuit is a bad idea to pursue back dues is because the owner simply can sell/walk away without paying a dime. Did the lawyer tell you this? There is nothing holding the owner to pay the HOA. You can't garnish their wages. The HOA is NOT required to have their social security number! Plus the judgement has to be renewed if not paid. That is usually every 7 years. Who is going to remember to go back to court paying more court fees to collect on an owner who's been gone for over 5 years?

The best option for unpaid dues collection is a lien/foreclosure. A lien is a judgement. However, the owner can NOT sell their property till they pay up. Plus it accumulates over time. A lawsuit doesn't. You have to in a lawsuit have a set amount by the time you go to court. A lien keeps going till paid. You may or may not need a lawyer to file one. Hence why a lawyer is NOT going to inform you of this option. They don't make the money off your HOA for it.

So it's up to the HOA to decide. My preference is a paid professional. As long as I am the boss and in control.

Kerry ... ha ha. Dang, you're smart. :-) Actually, this would be for another homeowner as well. We have two problems to deal with and I'm guessing, both will end up in court.

Linda and All

Remember folks Linda said Small Claims Court and she is in CA.

In SC a BOD could appoint/authorize a fellow homeowner to represent them in Small Claims Court.

Linda. Do not confuse lawyers being allowed in Small Claims Court to mean one must be/have a lawyer. In many Small Claims Courts, they actually frown on lawyers as the intent of Small Claims Court was that each party represents themselves.

To clarify one point. In SC they are called Magistrate's Court, not Small Claims Court but the same principle.

Keep in mind you are NOT representing yourself. It is the HOA that has to represent itself. So if the HOA wants one person to represent you ALL, then need to agree on that. However, a lawyer represents the HOA as a WHOLE as it's a corporation.

Basically, the HOA is ALL the members and you are ALL either suing or being sued. This is not an individual thing. So if your HOA wants to go to court, it needs to be agreed to by the membership this is what it wants.

My apologies, Linda. I totally misread your original post. I now see that your Board hoped a knowledgeable Owner could represent the HOA in small claims court. Based on Augustin's & my citations of CA Codes, the person cannot. So, your board, of which you're a member, will vote that you represent the HOA in small claims court.

Our property mgr. (PM) has represented a different HOA when she was there, but we haven't needed her in that way.

Whether you can have the knowledgeable Owner at your side in court I do not know. Your HOA's attorney, even though not specially trained in HOAs, will be able to answer this question.

Melissa, the members of Linda's HOA do not have to vote on who represents her HOA in small claims court.

LindaK5 Cal; While you're at it, respectfully you MAY want to check not only the monetary award limit but also the scope of the small claims court to add costs & disbursements against your association if it loses, including attorney costs for the opponent.

I suggest that because my own jurisdiction reduces congestion by allowing a $ 25 K limit on Small Claims awards sought. And although costs & disbursements are here guide-lined by 15 % of the plaintiff's claim, that cap is merely a guideline that an aggravated judge can chose angrily to ignore.

Recently here a management-turfing condo association was viciously raked over the coals despite having a late- impressmented paralegal. Its testifying client was a security guard ! It was hit for almost the full $ 25 K sought by the PMC for short-notice termination. And winning former management's legal costs have not yet been announced.

It is standard to challenge here upfront any unlicensed paralegal or someone whose authorization to represent may be even the slightest shaky-looking. I have challenged so myself, in return armed with a Board resolution as manager to protect myself.

Respectfully whatever the facts, one may often be best served to hire a licensed professional, including to pursue an ADR settlement. Litigation outcomes may be all over the map.

As the registered agent for the association, I am authorized to represent my client in Small Claims Court proceedings. Attorneys are allowed in Small Claims UNTIL an appeal is filed by a losing side.

A committee person COULD represent an HOA, if the association so chooses. It is usually, but possible. They, or anyone would fill out a court form stating such.

In California, as a Corporation, the limit is $5000.00.

I have represented HOA's on at least 12 occasions over the past 5 years. The attorney not being able to represent except on appeal is statewide, not just your county.

While this won't help anyone outside Arizona, I wanted to post the current rule for that state. I just visited the website for the Rules of the Arizona Supreme Court, where Rule 31 deals with the practice of law. Rule 31 (d) grants exemptions from the requirement that only lawyers may practice law and Rule 31 (d) (31) has this to say about associations:

"31. Nothing in these rules shall prohibit an active member or full-time employee of an association defined in A.R.S. §§ 33-1202 or 33-1802, or the officers and employees of a management company providing management services to the association, from appearing in a small claims action, so long as:
(A) the association's employee or management company is specifically authorized in writing by the association to appear on behalf of the association;
(B) the association is a party to the small claims action."

This would appear to authorize any "active member" to represent the association in a small claims action in Arizona. Note this applies specifically to "small claims" actions, which are handled as a subdivision of the Justice Courts. If the action is being pursued in the regular Justice Court then it would appear that the more restrictive Rule 31 (d) (3) still applies:

"3. An officer of a corporation or a managing member of a limited liability company who is not an active member of the state bar may represent such entity before a justice court or police court provided that: the entity has specifically authorized such officer or managing member to represent it before such courts; such representation is not the officer's or managing member's primary duty to the entity, but secondary or incidental to other duties relating to the management or operation of the entity; and the entity was an original party to or a first assignee of a conditional sales contract, conveyance, transaction or occurrence that gave rise to the cause of action in such court, and the assignment was not made for a collection purpose."

Thanks, Sheila. I can certainly represent the Association as a Board member - I just don't want to. I have an extremely high level of anxiety about confrontation in a public forum, especially with the person we're going to be dealing with. I've had lots of experience in court for other matters - just don't like it. :-)

And, yes, sorry to say regarding the other Board members, incapable of much more than helping out in court. Fortunately, our election is coming up and we have much more capable people running for several Board positions. Personally, I can't wait, as I'm very familiar with the folks that are running and they have alot to offer.