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Subject: Have you used an HOA Attorney to assist with things?
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NicoleO5
(California)

Posts:17


05/15/2019 6:16 PM  
Hi short of using an attorney for being sued.. Has your HOA used them for clarification and guideance? Our board recently has been consulting our HOA atty more frequently due to assumptions and off the target jumping by a few board members. While this may be a pricey approach, it seems to have stopped alot of the above... helping keeping things on track.

Do you use an HOA attorney for clarification and interpretation of your CCRS when board members can't agree or interpret the beloved CCR bible.???
JohnC46
(South Carolina)

Posts:8556


05/15/2019 7:27 PM  
We rarely contact our HOA Attorney. We do depend on the experience of our MC quite a bit.
TimB4
(Virginia)

Posts:16414


05/15/2019 7:43 PM  
We have done the same.
However, we keep this to a minimum and only when the Board agrees to seek a legal opinion.
MelissaP1
(Alabama)

Posts:8408


05/15/2019 7:57 PM  
It depends on your HOA. I'd recommend limiting who can contact the lawyer. Plus which type you hire. No need for a Real Estate attorney most of the time. A HOA isn't Real Estate. It's a corporation. A specialized "HOA" attorney is going to run you more money. Sometimes just a general practitioner of the law will do that is familiar with contractual laws.


My personal take is I never knee-jerk reacted and ran to a lawyer each "threat" of a lawsuit. I'd tell anyone who threatened to sue "See ya when you give me the paperwork". Plus suing you HOA is suing yourself and your neighbors. I've got no need to bow down to anyone who threatens a lawsuit when there are other options. (Which NEVER trust a lawyer who won't tell you those options... or says "I will do what you tell me to do..." without discussing any).


You also don't need to have a retainer. Discuss how the lawyer charges. They will charge for text, email, phone calls, and office visits. Make sure you understand their charges for their services. Limit contact and assign 1 approved board member to deal with the lawyer. The HOA isn't every members lawyer. They are the HOA's lawyer as a whole.

Former HOA President
RichardP13
(California)

Posts:3781


05/15/2019 8:17 PM  
My head is spinning with Melissa's response, once again. There has to be something in the air down there. Not sure what a specialized HOA attorney is.

I have never had a HOA have to pay for a lawyer, nor have I ever had to pay for a lawyer myself. I have done 1 set of CCRs, three Bylaws, more Rules and Regulations than I can court and about 20 Election Rules. I have a friend who I worked with and now works for a large HOA law firm. They vet the documents before going out. Knock on wood, none have ever been challenged.

I use two website for legal opinions than can guide HOA and so far than has sufficed. I have worked with about 150 HOA's in about ten years and outside of Small Claims, none have ever needed the representation of legal. Guess I have been lucky.


Been there, Done that
MelissaP1
(Alabama)

Posts:8408


05/15/2019 8:28 PM  
Richard please don't mention my name again. The OP is asking for opinion/experience. Everyone's is different. There's no need to insult others in providing that opinion/experience. I am NOT going anywhere. Deal.

Honestly, consulting a lawyer is whatever the comfort level of your HOA board is. Some are fully capable boards who aren't intimidated easily by lawsuit threats. Others are more apt to seek advice when presented with threat of lawsuit. It's just a question of limiting the expense when dealing with a lawyer. That can be very expensive and not necessarily best advice.

I've hired one for personal consultation for an issue with my HOA. They were doing an illegal special assessment. Had to force them to follow the rules. So even I an ex-President and the one who says "Suing your HOA is suing yourself/neighbor" has hired a lawyer to deal with my HOA. I am not above asking for legal help but understand the consequences of doing so.

Former HOA President
JaredC
(Texas)

Posts:214


05/16/2019 5:54 AM  
Yes we have and yes you should get an attorney that specializes in HOA law. Attorney's are like doctors. Would you go to a podiatrist for brain surgery? Nope. Should you hire an oil and gas attorney for HOA law? Nope.

That said, if you have a solid Management Company, you should lean on their expertise and advice. They should be able to answer a ton of legal questions for you without the need of an attorney but not all MC's are created equal. I do agree that seeking legal advice should be agreed upon by the board.
EdC5
(Florida)

Posts:93


05/16/2019 6:59 AM  
I'm going to throw my 3 cents in here. I've managed several communities. At ones that stand out, I used the community's attorney a fair bit. At my favourite community, I used him for a bill of sale of community property, the removal of residents, and, most of all, for the refinance of the community's mortgage. At another community we used the (same) attorney (and bank) for the refinance of that community's mortgage. (When I was brought in to manage that community I convinced the board to use the attorney I was familiar with (and they were happy with the change) and the same bank that done my previous community's mortgage.)

As far as not using an attorney for the rewrite of CCRs, bylaws, etc., in Florida that would be UPL (Unlicensed Practice of Law) and you would lose your CAM license and, probably, end up with fines and/or jail time. You ALWAYS use an attorney for those things.

Edward J Cooke, CMCA, LCAM
PatJ1
(North Carolina)

Posts:93


05/16/2019 7:14 AM  
Most definitely. We had our attorney review HOA responsibility when it came to interior damages from a common element failures. We are stacked housing in NC so we are a little different than most.

We have saved more than enough money the attorney charged for the memo. It's nice having that memo to send when an owner demands that we pay because they don't have any HO-6 insurance.

Agree that you need an attorney that specializes in HOA's. One of the demands for payment we received was from another attorney. Sent them the memo and never heard from them again.

To keep costs down, always do some research and have your questions ready. Our Board approves items that are sent to the attorney and our attorney works directly with only one Board member.

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
RichardP13
(California)

Posts:3781


05/16/2019 9:09 AM  
Posted By EdC5 on 05/16/2019 6:59 AM
As far as not using an attorney for the rewrite of CCRs, bylaws, etc., in Florida that would be UPL (Unlicensed Practice of Law) and you would lose your CAM license and, probably, end up with fines and/or jail time. You ALWAYS use an attorney for those things.


Thankfully, I don't live in Florida, as I stated all are vetted by an attorney.

Been there, Done that
SheliaH
(Indiana)

Posts:2622


05/16/2019 9:43 AM  
When I was on the board, one person (usually the president) was designated as the person to contact the HOA attorney. It was usually done only if we voted to consult the attorney because you get charged for those responses to emails and/or phone calls. This is also why our current attorney has a set amount of time in our retainer where he or an associate will answer our questions for free - once we reach the allotted number of minutes, the toll begins to run.

Incidentally, our attorney DOES specialize in HOA law - depending on what your state has, it requires focused review and actions, and the garden variety real estate or corporate attorney may or may not be familiar with the nuances you don't see in typical real estate transactions. I believe there are only three such firms in my area and just about everyone has had or currently has dealt with one or all three.

In this case, I think you can cut down on some of these consultations by coming up with some general rules as to when the attorney should be consulted and why. You shouldn't have to call every time there's a disagreement about the CCRs - some of these questions may be due to people jumping to conclusions as to what they say or not because it's written in legalese that's hard to understand. Sometimes people read something and don't want to accept that what they're reading is exactly how it's supposed to be interpreted.

Perhaps you need to schedule a sitdown with your attorney to have some sort of CCRs 101 so you'll get a general understanding of what they're supposed to do. If your documents allow the Board to enact additional rules that don't contradict the CCRs, you may be able to do that and they'll be more user-friendly, saving the more serious issues for the attorney as they come up.

You may also be having problems because your documents are as old as time and some (most?) of it no longer works for the type of community you've become. You also have to remember there have been developments that no one thought of even 5 years ago, let along 20, 30 or however old your community is. This is why it's a good idea to review the CCRs and Bylaws every 7-10 years with your attorney to see what needs to be updated to reflect changes in state or federal law, added or dropped altogether. That can be a lengthy process so this would be a great time to charter an advisory committee of homeowners who would take a close look at them and make recommendations, then you can go through the process of educating homeowners so they can vote on any changes (the current documents should address how that's to be done)


RichardP13
(California)

Posts:3781


05/16/2019 10:17 AM  
I use two HOA law firms website for opinion on matters that come up in HOA. One, everyone here references. I agree with the other one, more than the first. What it does though is give free legal advice/opinion on just about anything that comes up in a California HOA. If a Board member has difficultly after that, maybe they shouldn't be on a Board. Unfortunately legal documents are written in a manner that only an attorney can interpret and no two attorney will ever agree on anything as long as money can be made.

In the HOA I once belonged to, the MC used our attorney almost on a daily basis for their benefit, as we later found out. They were clueless on how to do things. We later fired them both, publicly.

Been there, Done that
SheilaJ1
(South Carolina)

Posts:110


05/16/2019 10:44 AM  
Richard is correct, need to be very careful on the habit you create with the attorney.
RichardP13
(California)

Posts:3781


05/16/2019 11:55 AM  
Here is a case law that a number of people reference in regards to equal access to community property and media when campaigning, whether as a candidate for a board seat or amending legals docs. A owner took the HOA to court for equal access for their point of view on amendments that were already underway. Look who the defendants law firm was. It cost the association and its members $250K in cold, hard cash.

https://www.davis-stirling.com/HOME/Case-Law/Wittenberg-v-Beachwalk

My previous HOA had a similar situation where one of the largest law firms in California milked us out of $250K on a secret owner to owner dispute.

Been there, Done that
BobB31
(Florida)

Posts:121


05/16/2019 1:32 PM  
Posted By RichardP13 on 05/16/2019 11:55 AM
Here is a case law that a number of people reference in regards to equal access to community property and media when campaigning, whether as a candidate for a board seat or amending legals docs. A owner took the HOA to court for equal access for their point of view on amendments that were already underway. Look who the defendants law firm was. It cost the association and its members $250K in cold, hard cash.

https://www.davis-stirling.com/HOME/Case-Law/Wittenberg-v-Beachwalk




Just curious about what you think should have happened in this case. I mean, the board was definitely playing fast and loose with the law and the elections. Threatening to hold as many elections, costing $5000 each, as it took to get the amendment passed was outright extortion in my mind. Then they compounded it by refusing equal access as guaranteed under the law ... what should the outcome have been?
RichardP13
(California)

Posts:3781


05/16/2019 2:17 PM  
In this instance, it wasn't the Board, but their legal counsel directing all the responses. It is not an uncommon practice in the HOA world. It's homeowners be damned. The same firm represented my HOA prior to my leaving.

Been there, Done that
BobB31
(Florida)

Posts:121


05/16/2019 2:18 PM  
Any thoughts of suing the firm for malpractice?
RichardP13
(California)

Posts:3781


05/16/2019 2:31 PM  
They would never win. Lawyers stick together.

Case in point. A law firm that also owned a MC that I worked for had a construction defect case that brought against a condo conversion company in San Diego. They were suing for $7M, and prior to trial were offered $6.4M to settle. Never informed their client and refused to settle. Went to trial and won, $800K. The HOA got nothing. They sued my ex-boss for malpractice. He is now under discipline for co-mingling of client funds. Just an outstanding citizen!

Been there, Done that
AugustinD


Posts:1886


05/16/2019 2:34 PM  
Posted By RichardP13 on 05/16/2019 2:17 PM
In this instance, it wasn't the Board, but their legal counsel directing all the responses.


The lawsuit names as the defendant Beachwalk HOA. The boneheadedness of letting this go to court is consistent with the Board's other bone-headed moves. I see nothing to back up the contention that the Board was not calling the shots here.

RichardP13
(California)

Posts:3781


05/16/2019 2:44 PM  
I know the law firm and the attorney personally. Trust me, it should have been the Board making the decision, but they got REAL bad advice from someone. The attorney also had the backing of the MC, who is no longer there.

Been there, Done that
AugustinD


Posts:1886


05/16/2019 3:15 PM  
Posted By RichardP13 on 05/16/2019 2:44 PM
I know the law firm and the attorney personally. Trust me, it should have been the Board making the decision, but they got REAL bad advice from someone. The attorney also had the backing of the MC, who is no longer there.


I believe there are HOA attorneys and law firms that give advice that aims, either directly or indirectly, to stir up angst between HOA members and a HOA Board, leading to more billable hours for the attorneys.

But I think this situation is somewhat more complicated. I can see how having to conduct a membership vote for any, "alterations, additions, or improvements, in connection with the common areas... at a cost of more than one thousand dollars ($1000)" would slow the business of the HOA down. The covenant further states that 2/3rds of voting members must vote to approve.

If this is the "Beachwalk HOA" in Huntington Beach, California, then I think this HOA dates to 1972. A thousand dollars in 1972 equates to a little over $6000 today, using the CPI. The HOA claimed it cost $5000 to run an election. In other words, every time the Board wanted to spend over $1000 for an alteration, addition or improvement (and presumably on pretty old infrastructure), it had to win approval from the membership at a supposed cost of $5000. The math here certainly seems to support the need for a radical change to the above covenant.

Yes, the HOA was unreasonable in not following the rules for the elections. But I'd say the members opposing the amendment were unreasonable, too. Who was the worst offender? I would agree the Board and its attorneys made the bigger blunders.
RichardP13
(California)

Posts:3781


05/16/2019 3:34 PM  
There is a lot more to this story than what you can see.

Been there, Done that
JohnC46
(South Carolina)

Posts:8556


05/16/2019 5:14 PM  
Richard

I have learned things from you and I and appreciate you posting. That said, do not post a link and when replied to reply that there is a lot more to this. Stop with the teasing. Lay it out.
StephanieD7
(Texas)

Posts:10


05/16/2019 6:23 PM  
We have had several disagreements within the board that we eventually had to resort to asking the attorney to resolve. We had a vote in January and the instigator wasn't voted back on to the board so it's slowed down but she's still tried to raise a lot of trouble. I got advice that I appreciated here on the forum to stop trying to convince the other party and instead stick to what I think is right and make it their responsibility to prove their interpretation, and it's made a great difference in the way disagreements about the bylaws/ccrs have gone and we've stopped going to the attorney. That being said, we are a self-managed HOA without any way for violations, these have been disagreements about increasing board size, husband and wife both having a vote, calling quorum, etc. It boils down to the board member realizing they were going to lose their seat on the board by membership vote and grasping at any straw possible to stay on (for reasons unknown), so your reasons for needing to contact an attorney may be so different that's not useful advice.

Definitely can't stress enough that you should ensure you only have one designated person for attorney communications. After that board member was removed they emailed our attorney representing themselves as a director (they weren't) and thankfully though I'd never explicitly told him I was the only one he questioned the email and didn't respond. I don't even know how we could've dealt with paying the bill if he had...
BarbaraT1
(Texas)

Posts:202


05/17/2019 9:48 AM  
As a manager, I have recommended the Board consult an attorney if I am not able to answer their question, or if they want to go ahead do the thing I am advising they cannot do.
BillB17
(South Carolina)

Posts:57


05/17/2019 11:42 AM  
Our Association has an attorney that specializes in HOA law on an annual retainer. This allows us to consult with him on issues we need advice or clarification on as often as we need his opinions.

We routinely consult with him about a dozen times a year. We find the retainer very cost effective.
GenoS
(Florida)

Posts:3132


05/17/2019 4:18 PM  
Posted By TimB4 on 05/15/2019 7:43 PM
We have done the same.
However, we keep this to a minimum and only when the Board agrees to seek a legal opinion.

Our experience is exactly the same.
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