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MarkN8 (Texas)
Posts: 4
Posted:
I'm wondering how much an HOA management company is obligated, as administrators of the HOA, has to keep the HOA and the BOD compliant with all state and local laws? Since our property manager has often informed the Board about a property code law that won't allow them to do what they want to do, the Board has come to rely on her to keep them lawful. Do they have a right to expect her to continually inform them?
ElleN (Idaho)
Posts: 1,379
Posted:
The property manager can share "legal information" but not "legal advice." For example, telling the board about a certain statute that seems to be relevant to an HOA situation is lawful. Telling the board how to interpret a statute, covenant or case law is "legal advice" and violates the law. For legal advice the board should hire an attorney.

The manager should not hold herself or himself out to know the law. If the manager does, she or his is violating laws prohibiting the practice of law without a license while nonetheless ostensibly being paid in part to give ostensible "legal advice."

As far as expecting the HOA manager to 'continually inform the board' as to what is "lawful," no, the board should not have this expectation. For example, maybe the HOA manager speaks of one statute section, but does not recognize that other statute sections are relevant.

MarkN8 (Texas)
Posts: 4
Posted:
ElleN

Thank you so much for replying. Your answers are very, very informative. You have clarified a few things for me.

The manager isn't quoting the property code law per se, she's relating it to the Board in her own words and then sometimes explains what it means when asked. Are you saying that she shouldn't be explaining it?

Personally, I don't think it is unreasonable to expect an HOA management company representative to have a working knowledge of, at least, the state HOA property code laws.

If she knows about a particular law that the BOD may be unknowingly violating by a decision they make, isn't she culpable in that violation if she doesn't inform the BOD of that law?
ElleN (Idaho)
Posts: 1,379
Posted:
The manager isn't quoting the property code law per se, she's relating it to the Board in her own words and then sometimes explains what it means when asked. Are you saying that she shouldn't be explaining it?
Yes, I am. If she is in the employ of the HOA and is giving interpretations of statutes (for one), then she is taking compensation (money) for legal advice. She is practicing law without a license, in violation of the law. See https://statutes.capitol.texas.gov/?tab=1&code=GV&chapter=GV.81&artSec=81.102
Personally, I don't think it is unreasonable to expect an HOA management company representative to have a working knowledge of, at least, the state HOA property code laws.
I would say it is quite reasonable for a HOA MC to have some knowledge of the law. The problem is when they take this knowledge and behave as an attorney would behave, and while being paid for this behavior.
If she knows about a particular law that the BOD may be unknowingly violating by a decision they make, isn't she culpable in that violation if she doesn't inform the BOD of that law?
No. I think what you are proposing is that the MC may be committing some flavor of malpractice by withholding her knowledge of the law.

As long as she does not give legal advice, she cannot commit malpractice.

Furthermore, if she does give legal advice, then in addition to violating state law, she might very well be committing an ethical violation of her regulating authority's rules of ethics. For example, see https://www.caionline.org/getmedia/f3e4377c-db51-42c1-8303-e5a7f23af297/ethics_code.pdf , page 4, part D 4. From the latter:
"managers shall not provide legal, accounting, insurance, or engineering advice and must leave such advice to the
appropriate, licensed professionals, including lawyers, insurance, engineers, and accountants."
What the manager is supposed to do is advise that the HOA Board consult an attorney.

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