Questions Attorney and board responsibilities

Started by JackB8 • 7 replies • 1425 views

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JackB8 (Virginia)
Posts: 141

Posted:

I respect the opinions of the folks that post to this site and have two questions: Should the attorney for an HOA represent the board or the homeowners and does the board have a responsibility to respond in writing to homeowners who have expressed written concerns to the board?

MicheleD (Kentucky)
Posts: 4,491

Posted:

The attorney represents the association.

The board represents the association.

The attorney does not represent the homeowners and does not "represent" the board.

However, because the board represents the association, and is the duly elected representatives of the association, it is to the board the attorney "speaks," and not to individual homeowners.

And even then, many HOA attorneys generally only speak to one or two specific designated contacts on the board.

SusanW1 (Michigan)
Posts: 5,202

Posted:

As a member, I would want to know;
Why was the attorney consulted (reason)?
What did the attorney suggest about the issue?
What legal basis did this attorney base his/her recommendation?
Did the board vote to accept legal counsel's decision?
How much did the attorney charge for this consultation?
Was this amount in line with the annual Legal Services budget amount?

JackB8 (Virginia)
Posts: 141

Posted:

Thank you both. In response:
Why was the attorney consulted (reason)? The board wanted to pay for a scoreboard to keep track of the scores during meets of a group of residents that called themselves the (community) tennis club. This club is not sanctioned by our HOA. This scoreboard was only to be used by the tennis club (removed after events)
What did the attorney suggest about the issue? Said the board could pay for the scoreboard as an improvement to the commom area.
What legal basis did this attorney base his/her recommendation? Unknown- board did not respond to my letter.
Did the board vote to accept legal counsel's decision? yes
How much did the attorney charge for this consultation? Unknown – board did not respond
Was this amount in line with the annual Legal Services budget amount? Unknown

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Jack,
Taking your post at face value and limiting my remarks strictly to the impression your board lacks communication skills, I would say.
I think the scoreboard is a minor part of your troubles. It would appear reasonable to believe that any funds expemded should have accountability. Specifically, any unusual or one time expenditure should be explained on your financials. I would suggest if all this rings true, there should be records that are readily available for any owner to see at any time. If this is not happening, influence the Board and set up a web site, a Newsletter, monthly financials recorded and distributed. It has been impressive that many Boards over the last year are accepting and encouraging the use of web sites and e-mail blasts and newletters to communicate. It's a relatively new technology and I am happy to say, that after the first initial reaction towards a website and e-mail our association has become much more transparent and, in my opinion much more approachable and responsive.

MichaelT6 (California)
Posts: 46

Posted:

The common mistake people make is they believe the association is the homeowners. The association is the property, CC&Rs, contracts, the membership, and maybe other things - all combined. Homeowners are a small part - essential, but really small. The major part is the property. Residents come and go, but the property stays - this is the key concept of HOA, that unfortunately vastly misunderstood (in my opinion - totally deliberately).

"The board represents the association" - pay attention: NOT the homeowners. Even though homeowners are supposed to elect board members, the function of the board members is NOT to represent them.

"The attorney represents the association" - pay attention again: NOT the homeowners. Even though homeowners are paying all attorney fees, the attorney represents NEITHER homeowners all together, NOR each homeowner individually.

"As a member, I would want to know;
Why was the attorney consulted (reason)?
What did the attorney suggest about the issue?
What legal basis did this attorney base his/her recommendation?
Did the board vote to accept legal counsel's decision?
How much did the attorney charge for this consultation?
Was this amount in line with the annual Legal Services budget amount?"

The answer to these questions in my HOA is very simple: this information is CONFIDENTIAL. The best board could do is to refer you to an attorney, so he MAY answer some of your questions. It's up to him to decide what can and what can not be disclosed to the membership, the board does not make the call.

"However, because the board represents the association, and is the duly elected representatives of the association, it is to the board the attorney "speaks," and not to individual homeowners.

And even then, many HOA attorneys generally only speak to one or two specific designated contacts on the board."

The role of attorney in HOA is very interesting. He doesn't represents actually anyone in particular (not even the board), has complete control of the information, works under no ethics standards and with full protection against any type of conflict of interests - all these with very good financial compensation.

The attorney is the most powerful man in HOA, be nice to him.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Well. that's why God invented minutes . . .

ALL the info asked for should be in the minutes OR at least revealed in the financial reports - all available to members by request.

None of the questions IMO are confidential. Especially when dealing with the subject matter such as described (scorreboard).

That the board even had to consult an attorney is indicative of its management ability. The board could have even chosen to bring this to a members' vote, if there was controversary about it.

MichaelT6 (California)
Posts: 46

Posted:

"None of the questions IMO are confidential. "

Sounds like you have never had to deal with an HOA attorney. Good for you, Susan!

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