Who does the lawyer reprsent?

If the HOA contracts with a law firm, can the board use the same law firm to give them advice? What if the advice conflicts with the wishes of the members? In other words, if the board thinks A is legal and the homeowners think it is not, can the board use the law firm that is contracted by a board motion for an opinion? Do the homeowners have to get a separate attorney? Is the communication between the board and the lawyer privileged so the homeowners can't see it?

JosephW - So you are saying that even though the members of the association pay for the attorney, they cannot derive any benefit from their services? Only the board gets the benefit, but they don't have to individually pay.

Robert,

Joseph is right on the money as far as who the attorney represents. This is a complaint many members of HOAs have. If a member brings suit against the board, they of course must pay their attorney fees and the HOA's attorney's fee is paid thru assessments, so the member ends up paying twice! And because the members assessments pay the attorney, why can't the member seek legal advice from the attorney? Seems unfair, but that's the way it is.

AZ law says that "legal advice from an attorney and pending and contemplated ligitation" are all causes for discussion in a closed session and is privileged information as far as it cannot be made available to a member requesting records. Ref: ARS 33-1248 (condos) and 33-1804 (planned communities) - open meetings and 33-1258 or 33-1805 - association financial and other records.

Mary

Robert,

I'm aware that is what the law says, but thank you for pointing it out. For others not in AZ, I should have made that clear. But the point is that it is a reason for closed session discussion and also a reason for not providing certain docs to members. Also of boards want to discuss an array of other topics in a closed session, but AZ law only allows for 4 specific topics which "may" be discussed in a closed session.

Mary

Robert,

Your Board IS the HOA. The Board represents the membership and were put there by an election of the membership. If the membership does not agree with the Board, it is their responsibility to inform the Board and do it in masses of numbers, The Board has a fudituary duty to follow what the majority of the membership requests.

If the membership has issue with those decisions, then it is up to the membership to change the Board. As for Board and attorney communication, any pending litigation or any legal issues reguarding lawsuits are priveledged information between the Board and the attorney. As a membership using the same attorney as the HOA, a good lawyer would refuse to take this on as a conflict of interest.

OKay Michelle,
Both are correct. The Board does have the fudituary duty to follow and enforce the Docs first but they also have an obligation to the membership.

Oh I agree, they have an obligation to the membership, but only so far as the integrity of the governing documents allows.

My issue is with boards who think because a lot of (majority) of the membership feels that certain restrictions are "petty" that they don't need to enforce them. Well, on the surface, that may seem "democratic," but their first obligation is to the documents. If the membership truly feels certain restrictions are "petty" then they need to organize the proper procedures to actually amend the documents to reflect that.

I'm just a little anal about that.

RobertG - I respectfully do not agree with your statement that only the board gets the benefit, but they don't have to individually pay. In the end, everyone in the Association pays for everything.

The Association is an all encompassing term for all the members and associate members of the community as defined in the Dec. of Covenants and Restrictions, and or rest of the governing documents. The Homeowner's or Condominium Association is a term that means the incorporated state not-for-profit (or perhaps non-profit) corporation. SusanW1 from Florida is very well versed in the difference btwn. not-for-profit and non-profit. But I digress...The members, associate members, and residents all benefit by the services of an attorney. The conflict occurs when the members disagree with the decisions of the Board members and or attorney the Board has employed. Basically, the benefit of an attorney is often taken for granted when the members agree, rather than disagree. Once the members disagree with decisions, and actions that are made from the front of the table, they begin to question who's paying for what.

Robert

This is part of the association problem - you are trying to make the owners, the board and the association entirely separate entities. They aren't - they just have different responsibilities and authorities. The board is elected to represent you, even if you disagree with it, just like any other form of federalism (our national, state and local gov'ts). You wouldn't tell a police officer to "take a hike - I pay your salary" if he pulled you over for speeding. It may be true, but the police are directed through the municipal, county or state government - the people elected, and the people they appoint or contract with to supervise, not the individaul citizens. Taken on a corporate level, the shareholders do not direct the activities of the board and management team, the board tell management what they expect and then reports to the shareholders, usually at the annual meeting, what has been done and what is planned.

The problem generally arises when people disagree with the board - then, all of a sudden, the association becomes this disembodied entity "THEM". Even when they screw up, they're still the neighbors that got elected. And you have the exact same remedies that you would have with a corporate board of directors, a city council, a state legislature or a federal congress - remove them from office or sue in court. And if you sue the association, the attorney will represent the association and if the board makes a decision to sue you, then the attorney will represent the association against you.

Joe

JosephW - I agree with you for the most part. While you've presented two of the options (removal and sue), there are others. However in my state, and in other states as well, there is supposed to be an alternative dispute process for association members in between a disagreement and a lawsuit. Removal from office can be more arbitrary of a path for owners or members of the association to decide upon but that still has it's requirements of which I'm sure you are well aware.

The problem can also arise when the board does not listen to an owner that is correct and actually knows the law better than those that govern and manage. I'm dealing with that exact scenario now with our association's Property Manager that thinks trying to comply with the laws regarding due notice and agenda posting for open meetings is actually good enough. That logic is frightening because it places the shareholders at risk when actions voted upon in closed session, or sessions that were not duly noticed according to the law occur.

Yes, people screw up, and those people may indeed be neighbors. However, their screw up is inexcusable and quite frankly outrageous when they won't admit it, and take corrective action. Ultimately the excuses are pathetic when binding decisions are made illegally mind you, that will cost you in the end. Generally when it becomes evident there is a screw up, an owner will get the "cry me a river" routine, such as, "we're volunteers after all, we don't get paid for this". Often the MC becomes a pitbull that will stonewall until the Board gets away with what they wish.

It can be a loose loose game for the owner that is in the right when dealing with others that wish otherwise.

Therein resides the other side to the Association coin. The side where what's right according to ethics and the law are constantly presented with challenges due to a self-serving few.

Sorry for the rant but I do understand where Robert's post comes from and how frustrating it can be to know that sometimes your paying for other people's mistakes or agendas.

Gerald said:

"Yes, people screw up, and those people may indeed be neighbors. However, their screw up is inexcusable and quite frankly outrageous when they won't admit it, and take corrective action. Ultimately the excuses are pathetic when binding decisions are made illegally mind you, that will cost you in the end. Generally when it becomes evident there is a screw up, an owner will get the "cry me a river" routine, such as, "we're volunteers after all, we don't get paid for this". Often the MC becomes a pitbull that will stonewall until the Board gets away with what they wish.

It can be a loose loose game for the owner that is in the right when dealing with others that wish otherwise.

Therein resides the other side to the Association coin. The side where what's right according to ethics and the law are constantly presented with challenges due to a self-serving few.

Sorry for the rant but I do understand where Robert's post comes from and how frustrating it can be to know that sometimes your paying for other people's mistakes or agendas."

Its like Clark W. Griswold in Christmas Vacation

“what a cheap, lying, no-good, rotten, four-flushing, low-life, snake-licking, dirt-eating, inbred, overstuffed, ignorant, blood-sucking, dog-kissing, brainless, [], hopeless, heartless, fat-***, bug-eyed, stiff-legged, spotty-lipped, worm-headed sack of monkey s**t he is."

Well maybe not that bad but definitely "Hallelujah. Holy s**t. Where's the Tylenol?”!

T:-)