thoughts on this bylaw ammendment

good evening.

One of the obstacles that homeowners have in holding the board accountable is the unfair playing field where the board is funded by unlimited funds and homeowners have to use their own funds to seek a remedy.

Also, the board with the help of the hoa attorney can choose a very broad or narrow interpretation of the governing documents to suit their desires.

When I have been successful at calling into question the boards initial interpretation of our documents, the board has agreed to consult with our attorney.

The problem is, I have no idea what was asked. how it was asked, what information was provided, and I'm not given access top the attorney's response..

Since attorney communication with the board is privileged, a rogue board can literally say, "we asked the attorney and they said it was fine"

Can I get some feedback. I would like the ammend our documents to reflect something like the following.

Upon petition signed by 10% of the owners, The board must contact the hoa attorney for the purposes of advise and consultation on the matter in question. The owners will submit the the question to be asked of the attorney to the board and the board will submit the question, unaltered, to the attorney. The attorney's response will be shared with all owners.

Or something like this. I think if access to the hoa attorney was available to owners(for the matter submitted on petition) the attorney would truly be giving the answer to the association and thus is more like to act in an advisory role rather than as an advocate following rules of conduct for litigation and adversarial representation.

( excuse me if I got some of the terminology wrong, I'm not a lawyer. Augustine, what do you think? do you like the idea/

Agree with Melissa.

The HOA attorney cannot talk to homeowners because there is a conflict of interest. Homeowners who want answers to legal questions need to consult their own attorneys.

In addition, corporate governance puts the board in charge, and that includes deciding on spending priorities. HOAs are not democracies, or social organizations. They are corporations, with all of the good and bad that this involves.

It is the nature of HOAs and COAs that they do not have a level playing field. The law has created the uneven playing field, and homeowners need to understand this. If it gravels your butt this much, then perhaps you need to rethink whether or not HOA or COA ownership is for you.

"Upon petition signed by 10% of the owners, The board must contact the hoa attorney for the purposes of advise and consultation on the matter in question. The owners will submit the the question to be asked of the attorney to the board and the board will submit the question, unaltered, to the attorney. The attorney's response will be shared with all owners."

Do you have unlimited funds to spend on lawyer fees?

Agree with Ben.

For the record, before reading BenA2's post and KerryL1's assent to Ben's post, I was going to say that I do like the idea but think the threshold has to be higher. But then BenA2's comments reminded me of a few things. (I know CathyA3 knows these things well, but I think BenA2 said it a bit better.)

Given the ugliness and quantity of HOA/COA disputes reaching the courts, I do not think the following is too pie-in-the-sky.

In another thread, and a bit in the vein of the thread herein, LaskaS spoke of a new model where every HOA/COA would be required to hire, perhaps only part-time, an in-house arbitrator or mediator. The arbitrator or mediator would have an attorney's license but would not have a client per se. The arbitrator or mediator's opinion would not be binding on the board. But said arbitrator or mediator would offer her or his opinion on the law and so perhaps keep disputes from getting ugly. The arbitrator or mediator's client is, get this [wink] the covenants, state and federal statutes, case law and the facts (as best the facts can be understood). This is who the client is for a district court judge, right?

If for nothing else, I am posting this to encourage board directors to also be loyal to the covenants, state and federal statutes, case law and the facts. When one takes one's ego out of disputes; just let's the covenants et cetera speak for themselves (possibly with some input from the HOA/COA attorney); is open to having one's mind changed, in my experience the effect is calming. Or at least one ends up more calm than if one injects one's ego (said ego typically being a psychological menace) into a dispute.

I like the idea of a mediator/arbitrator. I found it particularly difficult to deal with a small, self-managed HOA with long-term board members. Egos can certainly be a big factor in how a board makes decisions. With such a small group, it's hard to change perceptions about an owner that has had a major dispute with them. One gains a reputation as a troublemaker or a kook. I don't think an attorney will be completely objective because they want to make money. A mediator or arbitrator has no skin in the game so perhaps would be more objective. It could save both parties money and the bad feelings that go along with disputes.

i guess i wasn't clear.

The reason i'm looking for some solution regarding access to the associations attorney is because time and time again, the board has made a mistake regarding who is responsible for what. and or, just lazy board members not wanting to get the actual correct answer and they make a decisions on what they think sounds right.

for example. the 5 vs 4 seats up for election this year. this had a single answer. i was able to find numerous references and emails that would have had 5 seats up for election this year.

the managing agent was to create a story that was impossible to follow and it involved making several assumptions along the way,,, only then did he come up with an explanation for saying there were 4 seats.

the attorney would have been paid to look at all the data and provide the answer. ..

another example. after hurricane harvey.. the board at the time decided to use common funds to mold treat inside all downstairs units.

According to our declaration, this is the responsiblity of the individual owners. The association can require that a unit owner perform the treatment and get documentation supporting it. but they can't use common funds just becasue they want to make sure everyone does it correctly.

This resulted in everyone upstairs subsidizing all of the downstairs unit owners. The inside of a unit is not common area. Not treating the unit for mold could result in damage to the other units. this is why the board has the authority to insist the treatment be done. however. there's a big difference between insisting each unit get it done, and using common funds for work done on the behalf of individual owners.

in the second instance. myself and another owner both vehemently objected and pointed to the declaration and our own attorney's responsiblity chart. the board willfully ignored the chart and declaration and chose to utilize the phrase"the board can do all such things that it reasonably believes are in the best interest of the association"

the part they forgot was, within its authority and without contradicting the governing documents.

If owners could have forced the board to get the attorney's advice. and if owners had been permitted to submit the wording of the question without being edited. the attorney would have given the board the chart previously showing who is responsible for what and then she would have advised the board that the board has no authority to use common funds for an owner responsiblity, even if they do think it's a good idea. Its not authorized. regarding the threshold... ok if 10% is too low, maybe 20%.. that means 20% of owners would have to agree to spend association funds (our funds) to get the attorney to clarify the correct interpretation of our documents. 20% of owners are not going to agree to use association funds for questions that are frivolous.

The board having the lock and key to the common funds is at issue. The current board has spent thousands of dollars consulting the attorney over the past 3 years trying to use the litigation to prevent owners from speaking up and exposing what was going on.

How expensive do you think maintenance should be or the emergency repairs? Look at Surfside. How much money did you think fixing that leak at the pool would have cost in maintenance?

I think you are not aware of what things costs. What you have quoted sounds pretty much on par on what it would cost for maintenance items.

From Laska other posts over time it has added u. This is not their first post about complaining about projects not getting done or costing this and that

My electrical system got hit once at my house. Could you tell how much had to spend to fix it by looking? It was $6K. All you can see is the lights working.

This is how HOAs/COAs work. It's how corporations work.

You don't have to like it. You can spend your time banging your head against the wall of corporate law. Or you can understand the law and figure out a productive way to work within it. Or you can walk away (and probably be a lot more content with your life). But the law is not going to change because you don't like it.

Did not represent the bookkeeper per se. It was a lawyer they used to file our liens or foreclosures. We could use any lawyer we wanted and we did. He just also worked with them as well.