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Subject: HOA's Attorney
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Author Messages
DorisB6
(Missouri)

Posts:5


04/12/2018 7:48 AM  
The HOA of our Subdivision (Missouri) uses an attorney who is a homeowner (member) of the HOA to represent the HOA against legal actions initiatied by other homeowners. If the attorney represents the HOA, isn't he representing all members and would this not create a conflict?
AugustinD


Posts:1088


04/12/2018 8:05 AM  
I think what most competent HOA attorneys would say is that they represent the HOA as a corporation. In some disputes, this comes down to doing as a Board majority wishes. Sometimes this requires rationalizing that doing as the Board majority wishes is in the best interests of the HOA attorney's client, the corporation.

I think the HOA attorney simultaneously being a HOA members is imprudent. But if it is disclosed, then I believe it's probably legally acceptable. The parallel to draw is with a corporation whose stock is publicly traded and so has shareholders. Can a corporation's attorney hold shares of the corporation and also legally represent the corporation? I think most of the time, yes. The net has some discussion about how the most likely conflict of interest is during corporate bankruptcy proceedings. Sometimes a corporate attorney may have to recuse him- or herself, under the Rules of Professional Conduct for attorneys.
JohnC46
(South Carolina)

Posts:7695


04/12/2018 8:13 AM  
Doris

An association's attorney does not represent each owner. They represent the BOD. They are the BOD's attorney, not yours.

I see potential conflict with an owner also being the BOD's attorney. I would not do it that way.
RichardP13
(California)

Posts:2993


04/12/2018 8:44 AM  
Posted By JohnC46 on 04/12/2018 8:13 AM
Doris

An association's attorney does not represent each owner. They represent the BOD. They are the BOD's attorney, not yours.

I see potential conflict with an owner also being the BOD's attorney. I would not do it that way.



That is not correct. The attorney represents the Association, NOT the BOD. While the BOD is the governing body of the Association, if you look at a letter from an HOA attorney, it will lead by saying, "as you know, this firm represents the Association".

If they get in a legal bind and are being sued, most often they would be represented by the attorney representing the insurance company.
DorisB6
(Missouri)

Posts:5


04/12/2018 9:22 AM  
Thanks for the quick responses. I inadvertently left the impression that I thought the HOA attorney represented each homeowner, individually. My error - we, the majority of the homeowners, whether right or not, believes the attorney should represent the 'best interest' of the members as a whole.

If the attorney represents only the Board, that does not necessarily equate to the best interest of the members. Two Board members have CC&R violations, yet the attorney represents the HOA against other homeowners if a violation occurs. Some of the members are in arrears with their dues, but the Board not wanting to offend anyone, will not pursue collection, even for those members who have a default judgement against them. It causes heartburn that the Board and the attorney seem to be concerned with what is in their best interest.

Thanks again for your thought.
JohnC46
(South Carolina)

Posts:7695


04/12/2018 9:31 AM  
Posted By RichardP13 on 04/12/2018 8:44 AM
Posted By JohnC46 on 04/12/2018 8:13 AM
Doris

An association's attorney does not represent each owner. They represent the BOD. They are the BOD's attorney, not yours.

I see potential conflict with an owner also being the BOD's attorney. I would not do it that way.



That is not correct. The attorney represents the Association, NOT the BOD. While the BOD is the governing body of the Association, if you look at a letter from an HOA attorney, it will lead by saying, "as you know, this firm represents the Association".

If they get in a legal bind and are being sued, most often they would be represented by the attorney representing the insurance company.





Richard is correct. I misspoke.
BrandyJ2
(Florida)

Posts:16


04/12/2018 12:39 PM  
The idea that Association attorneys represent anyone except the people that pay them (The BOD) is delusional.
RichardP13
(California)

Posts:2993


04/12/2018 12:49 PM  
Posted By BrandyJ2 on 04/12/2018 12:39 PM
The idea that Association attorneys represent anyone except the people that pay them (The BOD) is delusional.



I think most of us here understand how the bread is buttered.
DouglasK1
(Florida)

Posts:1193


04/12/2018 2:14 PM  
In any case the HOA attorney works at the direction of the board, and reports to the board, even if they are working for the association.

Escaped former treasurer and director of a self managed association.
TimB4
(Virginia)

Posts:15954


04/12/2018 2:41 PM  
Posted By DorisB6 on 04/12/2018 7:48 AM

If the attorney represents the HOA, isn't he representing all members and would this not create a conflict?




As has been said, an Attorney representing the HOA, represents the corporate (or unincorporated) entity.
They do not represent the members of the Association.
They represent the Association itself.


Try to think of this differently.
The attorneys of a retail establishment represents the establishment, not the shareholders.
Members of the association are like the shareholders (in this example).
MelissaP1
(Alabama)

Posts:7611


04/12/2018 4:14 PM  
Suing your HOA is suing yourself and your neighbors... The board is elected from it's general membership to represent ALL members. The board hiring the attorney then represents ALL the members/corporation. The HOA attorney does not represent individual members but the whole of them.

Now the member acting as the HOA isn't doing anything wrong. Matter of fact, if the HOA is incorporated it has to hire a lawyer or have a dedicated person to represent them in court. Basically hire a professional or defend yourself in court. Think having the member being a lawyer is kind of helpful.

Former HOA President
BenA2
(Texas)

Posts:531


04/12/2018 4:33 PM  
Posted By BrandyJ2 on 04/12/2018 12:39 PM
The idea that Association attorneys represent anyone except the people that pay them (The BOD) is delusional.



Yes, the attorney usually represents the person or entity that pays. The HOA pays the attorney and the attorney represents the HOA.
BenA2
(Texas)

Posts:531


04/12/2018 4:54 PM  
Posted By DorisB6 on 04/12/2018 9:22 AM
Thanks for the quick responses. I inadvertently left the impression that I thought the HOA attorney represented each homeowner, individually. My error - we, the majority of the homeowners, whether right or not, believes the attorney should represent the 'best interest' of the members as a whole.

If the attorney represents only the Board, that does not necessarily equate to the best interest of the members. Two Board members have CC&R violations, yet the attorney represents the HOA against other homeowners if a violation occurs. Some of the members are in arrears with their dues, but the Board not wanting to offend anyone, will not pursue collection, even for those members who have a default judgement against them. It causes heartburn that the Board and the attorney seem to be concerned with what is in their best interest.

Thanks again for your thought.



I think just about everyone here is in agreement that the attorney represents the Association and not the Board. Coming back to the question of a conflict of interest, I don't think there would be a conflict unless there was an action involving the attorney, in which case she would have to recuse herself.

The attorney's duty is to the association's best interests. That does not conflict with being a member of the association. If it did, every member of the board would also have a conflict since they also have a duty to the association while being association members.

In my experience, attorneys are very careful about conflicts and your HOA attorney probably did some research before taking the position.
JohnC46
(South Carolina)

Posts:7695


04/12/2018 6:03 PM  
Ben said:

The attorney's duty is to the association's best interests. That does not conflict with being a member of the association. If it did, every member of the board would also have a conflict since they also have a duty to the association while being association members.

Conflicts can arise while serving on BOD. I have often voted for the greater good of the association when personally I did not like what we were doing. I just hope others do the same or excuse themselves if a conflict.

Example: The HOA attorney/owner is cited for a violation and decides to fight it. Let the conflicts begin.

LawrenceB4
(New Mexico)

Posts:17


04/13/2018 5:35 PM  
I am a member of the Timberlake Land Owners Association in Ramah, New Mexico. The president of the association gave me an evection notice to vacate my property because he claimed I was in violation of the covenants. There was no special board meeting or hearing where I could defend myself. Question: Is that legal?
MelissaP1
(Alabama)

Posts:7611


04/13/2018 5:41 PM  
First off it is best not to mention your HOA. 2nd this is better in a new post for us to respond to.

Are you a renter? The HOA can't evict you unless they are your landlord. Otherwise, it's up to your landlord if your a renter. If you are an owner, then they can't evict nor foreclose on you for a violation. You have to be behind in dues.

So there are many questions here. So please make a new post so we can properly respond and without the identifiers...

Former HOA President
KerryL1
(California)

Posts:5656


04/13/2018 5:44 PM  
Lawrence, please read the rules and also start a new post
JanetB2
(Colorado)

Posts:4151


04/16/2018 8:23 PM  
Posted By DorisB6 on 04/12/2018 7:48 AM
The HOA of our Subdivision (Missouri) uses an attorney who is a homeowner (member) of the HOA to represent the HOA against legal actions initiatied by other homeowners. If the attorney represents the HOA, isn't he representing all members and would this not create a conflict?


The attorney cannot represent any issue which may involve the attorney and the attorney’s own HOA property. That then becomes a conflict of interest. As others have noted ... The HOA attorney is supposed to represent ALL Owner’s equally with regards to any issue against the HOA. Yes the BOD chooses the attorney to represent the HOA, but it is not a BOD personal attorney and is an overall HOA “Corporate” attorney. If any BOD member needs an attorney they are responsible for hiring and paying for any such attorney to represent their own personal interests. The HOA attorney paid for via the assessments from all members is responsible for the best interests of all the members equally, not just the BOD.
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