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Subject: Legal Information provided to the Board
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ThomasM9
(North Carolina)

Posts:9


06/19/2013 1:55 PM  
We are contesting our bylaw requirement of 25% of the vote required to call a special meeting as opposed by NC 47A which states only 10% required(we area pre-1999 Planned Community). We requested that the Board get an opinion from the HOA attorney. That opinion was obtained and the Board has offered a verbal accounting of the written opinion(response) provided by the HOA retained law firm. They have refused to provide a copy of the written document.

How can they legally do that? It pertains to the interpretation of the Bylaws! This is not how to foreclose on an individuals property, how can this attorney client privilege?

Thanks,
Tom

MelissaP1
(Alabama)

Posts:10575


06/19/2013 3:25 PM  
The relationship of a HOA lawyer is a complicated one. Many members think that the lawyer can represent them if they go to them. The fact is the HOA lawyer represents the HOA as a "WHOLE" and not as individuals. The board represents the HOA as a "WHOLE". So the HOA attorney's opinion requested then goes to the HOA board not the individual members. You are all still represented but by the HOA board.

Now should the HOA board confide in you all the results? Yes and no. They need to let you know they used your money to pay for the legal opinion. However, the opinion was sought out by them. That makes the board their client. Client/lawyer confidentiality.

This is why I always say if you sue your HOA your suing yourself and your neighbors. A HOA is ONLY funded by it's members for it's members. So you just made your board get a legal opinion using your dues funds. So be careful when requesting such activity next time.

Former HOA President
DwightT
(Idaho)

Posts:664


06/19/2013 3:57 PM  
Isn't client/attorney privilege typically a one-way street? That is, it prevents the attorney from divulging information about the client, but the client is still free to divulge that information himself if he so chooses.
ThomasM9
(North Carolina)

Posts:9


06/19/2013 4:10 PM  
thank you.

Okay that sounds like a legal answer.

What is the ethical thing to do?

They said there was nothing in writing, yet the manager of the property management company said she saw it and would summarize the letter. She was then told by the Board to stop. Why would the board not share the document? the Board represent the members does it not?

This approach by the board stinks.

Thanks again.
AnnH4
(Florida)

Posts:53


06/19/2013 4:36 PM  
The legal opinion and any correspondence with the attorney becomes a part of the Association's records. It is not a "secret opinion". It has nothing to do with open litigation. If you request a records review, you should have no problem obtaining the documentation.
AnnH4
(Florida)

Posts:53


06/19/2013 4:42 PM  
And to be honest, I don't see how your bylaws can stand and not adhere to the statutes. In our Association, when the statutes change, we have to change any bylaws that do not adhere to the statutes. Staying within the confines of the law should be a top consideration for any HOA.

I also don't believe there is anything that prevents you from taking a copy of the "opinion" and making even more copies for other homeowners to see. The Board has no reason to not just state to the membership what the opinion was or to even just read the opinion during the Board meeting to the attending membership. The opinion was requested on behalf of the membership and the membership paid for the attorney's time.
CarolR11


Posts:0


06/19/2013 4:46 PM  
An opinion such as the one Thomas understandably wants to read for himself should be, in my (non-legal) opinion, shared with the homeowners. Why does the Board want to hide it?

My understanding is that the attorney works for the association, i.e., all owners pay his/her bills, not solely directors. The Board should seek the attorney's advice on behalf of the HOA. The issues that Thomas posed clearly is not a confidential matter.

Assuming that NC gives HOA members access to HOA documents, Thomas, make your request in writing to the PM and copy the Board for the written opinion.
ThomasM9
(North Carolina)

Posts:9


06/20/2013 5:26 AM  
Thank you for all of your input.

I will certainly use this forum in the future.

Tom
JohnC46
(South Carolina)

Posts:11638


06/20/2013 7:01 AM  
Thomas:

I am not nor do I play a lawyer.


I believe this is what you are looking for:

North Carolina
§ 47F-3-108. Meetings.

(a) A meeting of the association shall be held at least once each year. Special meetings of the association may be called by the president, a majority of the executive board, or by lot owners having ten percent (10%), or any lower percentage specified in the bylaws, of the votes in the association. Not less than 10 nor more than 60 days in advance of any meeting, the secretary or other officer specified in the bylaws shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address of each lot or to any other mailing address designated in writing by the lot owner, or sent by electronic means, including by electronic mail over the Internet, to an electronic mailing address designated in writing by the lot owner. The notice of any meeting shall state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove a director or officer.

(b) Meetings of the executive board shall be held as provided in the bylaws. At regular intervals, the executive board meeting shall provide lot owners an opportunity to attend a portion of an executive board meeting and to speak to the executive board about their issues or concerns. The executive board may place reasonable restrictions on the number of persons who speak on each side of an issue and may place reasonable time restrictions on persons who speak.

(c) Except as otherwise provided in the bylaws, meetings of the association and the executive board shall be conducted in accordance with the most recent edition of Robert's Rules of Order Newly Revised. (1998-199, s. 1; 2004-109, s. 6; 2005-422, s. 5.)

Notice the above bold. In SC our Articles Of incorporation are rife with the statement "Unless The Bylaws Say Otherwise". In SC if the Bylaws said 25%, the Bylaws would over ride. would hold up.

NC puts a maximum of 10% which the Bylaws cannot over ride unless a lower % is specified in the Bylaws.

Hope this helps.
WaltH1
(North Carolina)

Posts:18


06/19/2021 7:15 PM  
The short answer Thomas is they can't. But they will, if they can get away with it. I'm not a lawyer, but have been battling my Vacation condo HOA (inc. 1972) for years. I requested, just the other day, a lawyer communication review, written documents on the lawyer's opinions given the HOA, and a proxy review. The new management company said there were none. Where do I start? My HOA has done the same thing for years. The management Co. said, well, maybe it was phone conversations. OK, in my opinion everything the HOA has said that, "the lawyer said," is hearsay and not valid or credible, and don't expect anything from the lawyer. this opens up a can of worms because you never know exactly how the question was posed to the lawyer or exactly what their answer was. That's why important documents are not only written but sometimes, depending on the document, recorded with the Register of Deeds.

The bigger question, Thomas, isn't whether it's legal, but how are you going to enforce it if it's not?
NC has no state agency or department enforcing homeowners concerns, and their Statutes have no teeth, or penalties. Unless there's another way Civil action is the only real course and most of us don't want to take the time or spend the money.

Oh, back to the issue. NC 47A was largely replaced with 47C-Condominium Act, 55A-Not for profit Act, and 47F-planned community act. I believe both 55A and 47F state the minimum is 10%. Check your articles of incorporation and Declarations. The 2 statutes have "Applicability" section at the beginning of the statue and in some cases will defer to your Declarations or Bylaws at the beginning of the Section. Google the statutes, make sure they are searchable, put Special Meetings in the search box, and viola, it will take you right to it without the mind numbing trek through the statuet.
AugustinD


Posts:1855


06/19/2021 8:07 PM  
Posted By WaltH1 on 06/19/2021 7:15 PM
I requested, just the other day, a lawyer communication review, written documents on the lawyer's opinions given the HOA,
Such documents are attorney-client privileged. Condo Members are not entitled to have access to them.

If you still have questions, you should start a new thread.
CathyA3
(Ohio)

Posts:2569


06/20/2021 5:23 AM  
Posted By AnnH4 on 06/19/2013 4:36 PM
The legal opinion and any correspondence with the attorney becomes a part of the Association's records. It is not a "secret opinion". It has nothing to do with open litigation. If you request a records review, you should have no problem obtaining the documentation.



It most certainly does have to do with open litigation. If a homeowner has sued over this issue, or has threatened to do so, then the board would be irresponsible to share the opinion since it would breach attorney-client privilege. The board's duty is to zip lip until the issue is settled.

In my state legal records dealing with collections and enforcement actions are also not available to homeowners, although some of this information may become public record and available through other channels.


MelissaP1
(Alabama)

Posts:10575


06/20/2021 7:56 AM  
Seems the original issue would have been mute considering that State, local, and federal laws trump any HOA document. HOA documents do not supercede those existing laws. So the HOA would have to go by those laws even if not explicitly written. Otherwise your always going to have to update your documents.

Former HOA President
WaltH1
(North Carolina)

Posts:18


06/21/2021 9:02 AM  
Great take away Melissa. A lot of us in HOA's don't realize that if we sue, as you said, we are suing ourselves.

Along the same lines is another quandary I have, and again, I'm not a lawyer. It seems somewhere in lawyer rules, they are allowed to serve one master. In short, as you said, the lawyer represents the Board, not the homeowner, yet the homeowners pay the tab. Your thoughts?
WaltH1
(North Carolina)

Posts:18


06/21/2021 9:06 AM  
Thomas, I think less than honorable Boards, have been using the "the lawyer said," stuff for years. Just recently I made a request to see what "the lawyer said." I was told no records could be found.

To me, the only good in that is it voids all of their "the lawyer said," opinions since the Board has no written or recorded record of what the lawyer said.
WaltH1
(North Carolina)

Posts:18


06/21/2021 9:10 AM  
Ann, the HOA laws in Florida and California are much stronger than in North Carolina.

For example, North Carolina has no reserve requirements for major improvements. It get homeowners in the neck with constant Special Assessments.
DouglasK1
(Florida)

Posts:1687


06/21/2021 10:08 AM  
Posted By WaltH1 on 06/21/2021 9:10 AM
Ann, the HOA laws in Florida and California are much stronger than in North Carolina.

For example, North Carolina has no reserve requirements for major improvements. It get homeowners in the neck with constant Special Assessments.


Most posters on an 8 year old thread are not going to still be on this board, don't expect a response from Ann.

Escaped former treasurer and director of a self managed association.
WaltH1
(North Carolina)

Posts:18


06/21/2021 10:47 AM  
Thanks. Still learning the in's and out's of this site.
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