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Subject: HOA Records
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Author Messages
KayK3
(Florida)

Posts:8


10/12/2019 1:27 PM  
Is communication between the HOA's lawyer and the president of the HOA a part of the HOA's official records when this communication is for the benefit of the association? Should all correspondence between the HOA attorney and the president of the HOA be made available to all of the board of directors or just a report of the findings from the attorney?
MelissaP1
(Alabama)

Posts:9024


10/12/2019 1:50 PM  
That may be covered under client privilege about revealing those type of details. The ruling if done by court most likely be made public once completed. Do not see the need for such a conversation to be discussed openly until everything is settled.

Former HOA President
RobertaS2
(Michigan)

Posts:68


10/12/2019 4:40 PM  
When we asked to see a structural analysis report on a problem re-constructed pool, we were turned down by the HOA lawyer as "fishing" for dirt. (His reason.)

The thing is, we were concerned and able to get it through another channel AND, with it, an email from the HOA attorney to the board president, stating he would try to hide the report "as protected work materials" but that if pushed, he would have to produce it. (Guess: the president is the one who added the flawed structural requirements that are making the two new pools fail. Cost guess for that: about 200,000. if it ever gets corrected. More if the entire two pools need to be replaced again.)
PaulJ6
(New York)

Posts:632


10/12/2019 4:47 PM  
Attorney-client privilege is not lost if privileged materials are shared with other board members. At least I think.

It could be lost if shared with owners generally.

So if the goal is to keep attorney-client privilege, I don't think it matters if information is shared with board members. But there's the risk that board members could share it further, thus eliminating privilege.

At least I think.
RobertaS2
(Michigan)

Posts:68


10/12/2019 5:07 PM  
Our Board President and HOA attorney used to copy all emails to the Property Manager. Then it got very quiet. (And questionable.)
JohnC46
(South Carolina)

Posts:9139


10/12/2019 6:10 PM  
Posted By RobertaS2 on 10/12/2019 5:07 PM
Our Board President and HOA attorney used to copy all emails to the Property Manager. Then it got very quiet. (And questionable.)




The OP is asking about information shared by BOD Members, not information shared with non-BOD Members.

Pick your fights.
GenoS
(Florida)

Posts:3570


10/12/2019 6:27 PM  
Posted By KayK3 on 10/12/2019 1:27 PM
Is communication between the HOA's lawyer and the president of the HOA a part of the HOA's official records when this communication is for the benefit of the association? Should all correspondence between the HOA attorney and the president of the HOA be made available to all of the board of directors or just a report of the findings from the attorney?

All communications should be shard with the other Directors, at least. They should also be shared, on writen request, with homeowners who request to see them, UNLESS the conversation falls under attorney-client privilege where litigation is ongoing or pending. In those cases it's even more important to share them with the rest of the board because the board as a whole has the final say on what litigation strategy should be pursued. I wouldn't want one person to be making those decisions on his or her own with the attorney while everyone else on the board was in the dark.

How is anyone to know if something smells fishy if they can't go fishing to find out? Attorney-clien privilege? Off limits. No attorney-client privilege? Share it with everybody or explain what it is you're trying to hide.
RobertaS2
(Michigan)

Posts:68


10/12/2019 6:46 PM  
I'm kind of on the side of full transparency, but I also follow "the rules" (unless I don't know them, and then I appreciate being politely and kindly informed and educated).

In the case of the Attorney-President email that someone gave me, I haven't disclosed that I have it. The HOA Attorney tried to demand that if anyone in the HOA membership had any evidence on the board, that it should be handed over to him. Not going there. He's in bed with the president. Or at least he's taking direction from him. I'm not a lawyer. And the board, beyond the president, may very well be in part or in full, in the dark. I'd give them the benefit of the doubt unless I knew different. It's just the power people on the board think the president is a god. Sometimes you have to hold your nose.

I know about picking fights. Good advice. Personally, I prefer to work together.
KayK3
(Florida)

Posts:8


10/13/2019 7:15 AM  
The president is reporting the communication, just not sharing the actual emails. No one is trying to hide anything, just wondered if sharing the actual emails was appropriate with board members? I guess if these email communications are considered official records then they could be shared with non-board members upon request.
CathyA3
(Ohio)

Posts:761


10/13/2019 7:52 AM  
Posted By PaulJ6 on 10/12/2019 4:47 PM
Attorney-client privilege is not lost if privileged materials are shared with other board members. At least I think.

It could be lost if shared with owners generally.

So if the goal is to keep attorney-client privilege, I don't think it matters if information is shared with board members. But there's the risk that board members could share it further, thus eliminating privilege.

At least I think.




My association's attorneys agree with you.

I think the PM is also included here, since many of our confidential discussions included the PM as well.
FayeE
(New York)

Posts:18


10/13/2019 12:06 PM  
Do you have a management company?
The HOA's Lawyer is just that . The HOA's lawyer not the President's lawyer only. The Lawyer should share all communications dealing with the HOA's business with all members. The President has to share all communications when dealing with the Lawyer. That is a MUST
It is not the private lawyer for the President. If they are hiding something then they all should be sued for the documents.
It sounds like you have a bigger problem with 2 pool failures and their cover up. Why aren't the pool installers called back to fix the pools? Or where they a fly by night company. Or was it someone the President knew to do the job?
It all smells bad.
Unfortunately it all takes money to get all the documents that they are not turning over. Hiring another lawyer that WILL go after after another lawyer will be hard to find.
BUT there has to be something you can do.
What about your state that governs HOA's. They have rules that the HOA's have to follow. I know where I am you can file a report with the your state.
Faye
MelissaP1
(Alabama)

Posts:9024


10/13/2019 12:21 PM  
I was that President who dealt with the lawyers. The board approved the actions/communication with the lawyer prior. So if we needed a lawyer for liens/foreclosures then I would make that happen. Which we used the lawyer the Accountant used. Now if it were other needs, then I would look for the best lawyer to handle that and we'd hire.

As far as conversations with the lawyer, did not tell the exact details if your not directly effected. Meaning if it's not your lien or foreclosure then not going to provide you any more details than what actions being taken. Basically at the meetings would say "X Lot is X behind and talked to lawyer about filing lien". What else do you need to know?

If it was of another matter, then would say "I am talking to the lawyer per the board about the issue". Do not see a need to know about the exact details of the situation. It's more along the lines of client privilege then. Outcome or ramifications would be discussed if necessary.

Honestly, if your not involved directly in the legal issue do not see why need to know more details than board approved expense. The board is doing their job. President or other appointed person is doing theirs. It just saves money and miscommunications by not having multiple point of contacts. Your not contributing a solution what does it really matter?

Former HOA President
BillH10
(Texas)

Posts:432


10/13/2019 12:34 PM  
FayE, I'm more with Melissa on the sharing of information than I am with your position. I do agree communications between the designated point person on the Board and the attorney should be shared with the entire Board, in Executive Session, until the matter is resolved. At that point, the information, outcome, or whatever, should be shared with the members.

I can cite two reasons (there are undoubtedly more) why information regarding attorney communications should only be discussed by the Board, in ES:

1. If the matter involves another member, sharing the information may violate privacy and could reveal to the other party strategies and tactics being used by the Board and its attorney

2. If the matter involves a 3rd party, let us say a vendor or contractor, sharing the details could have the same result--you never know which member of the association is the cousin of the sister-in-law of the vendor or contractor.
JohnC46
(South Carolina)

Posts:9139


10/13/2019 1:29 PM  
Our MC (with us since we owners took over control 5 years ago) has every and any financial record down to a copy of the check. If an owner requests such, we will gladly Email them everything and anything. Only ever had one member formally request such and he got about a 160 page Email (our Financial Reports are about 40 pages long). He went away.

We have (somewhere) the Minutes of every Annual Meeting but as we only ever once voted on anything at an Annual Meeting (except BOD Elections), there is little to nothing there to see. Less than one page long.

We have never changed our Covenants nor Bylaws nor Rules so nothing there to document as such our BOD Minutes mean nothing, even if we could find them. I admit we rarely keep them but would if we voted on something we would. Let me clarify. Yes we vote on minutiae like sending out informational/warning letters, etc. but they have nothing to do with our docs.

The only major thing we did do was increase dues and we documented the hell out of that in the form of several letters mentioning our thinking and then the final/formal notice of us doing such.


KayK3
(Florida)

Posts:8


10/13/2019 1:56 PM  
A member of the Board threatened to sue the Board. The executive officers decided contacting the HOA lawyer would be advisable. This was revealed at the next board meeting. This board member who threatened to sue the Board, is that person entitled to see email communication between the President and the HOA attorney.
CathyA3
(Ohio)

Posts:761


10/13/2019 2:10 PM  
Posted By KayK3 on 10/13/2019 1:56 PM
A member of the Board threatened to sue the Board. The executive officers decided contacting the HOA lawyer would be advisable. This was revealed at the next board meeting. This board member who threatened to sue the Board, is that person entitled to see email communication between the President and the HOA attorney.




No. In fact, the board member who threatened to sue has a financial interest in the outcome, so must recuse him- or herself from any discussion of the topic, let alone see what the lawyer "for the other side" is advising his clients.
RobertaS2
(Michigan)

Posts:68


10/13/2019 3:00 PM  
In our HOA, all records, communications, etc. are supposed to be available during reasonable business hours for any homeowner to review or make (at their own expense) copies of. The only things not allowed are liens, foreclosures, late dues.

At our HOA, we have previously uncovered badly behaving boards and property managers and voted them out/fired them.

But not being given any agenda for what the board is doing with maintenance, being locked out of meetings, not being allowed access to any records, suspected election misbehavior, and other behaviors, many of us are concerned here.

I think that transparency eliminates a lot of concern when it is not trampling on others' rights to privacy. I also agree that the board needs the ability to cook without too many cooks. Town Halls, posting agendas, open meetings, properly run elections, friendliness are also good ideas. Sometimes necessary.

Also, the concerns are about our home values, our flooded basements when things are not maintained properly, our neighbors, and so on. We have a right to know, to expect funds to be used properly, and concerns to be heard.

JohnC46
(South Carolina)

Posts:9139


10/13/2019 3:34 PM  
Posted By KayK3 on 10/13/2019 1:56 PM
A member of the Board threatened to sue the Board. The executive officers decided contacting the HOA lawyer would be advisable. This was revealed at the next board meeting. This board member who threatened to sue the Board, is that person entitled to see email communication between the President and the HOA attorney.




Not to play lawyer, but my answer is NO. He cannot be "seeing" both sides
JohnC46
(South Carolina)

Posts:9139


10/13/2019 3:40 PM  
Posted By RobertaS2 on 10/13/2019 3:00 PM
In our HOA, all records, communications, etc. are supposed to be available during reasonable business hours for any homeowner to review or make (at their own expense) copies of. The only things not allowed are liens, foreclosures, late dues.

At our HOA, we have previously uncovered badly behaving boards and property managers and voted them out/fired them.

But not being given any agenda for what the board is doing with maintenance, being locked out of meetings, not being allowed access to any records, suspected election misbehavior, and other behaviors, many of us are concerned here.

I think that transparency eliminates a lot of concern when it is not trampling on others' rights to privacy. I also agree that the board needs the ability to cook without too many cooks. Town Halls, posting agendas, open meetings, properly run elections, friendliness are also good ideas. Sometimes necessary.

Also, the concerns are about our home values, our flooded basements when things are not maintained properly, our neighbors, and so on. We have a right to know, to expect funds to be used properly, and concerns to be heard.





Roberta

The OP also clarified her post about yet you rant on about demanding transparency. Read the post above (before) yours before you go off ranting about how bad your BOD is. Stick to the issue the OP clarified rather than introduce your grievances (right or wrong) especially when out of context. You have to let go of that bone in your teeth some.
RobertaS2
(Michigan)

Posts:68


10/13/2019 7:27 PM  
Wow, John, not trying to rant. Just to get some advice.

My family is out 17,000. but more important to me is our community.

I will stop talking now, if you think my openness here is oor.

I have always appreciated this site for the wisdom it imparts and listened.
And appreciated all sides.

But a sermon? Ouch.

MelissaP1
(Alabama)

Posts:9024


10/13/2019 7:35 PM  
A threat of a lawsuit would not have me going to the HOA lawyer FYI. It's not worth spending the money or time in my opinion. However, many HOA's do this and not uncommon. Can't judge because each HOA is different. Going to the lawyer is most likely for advice not reaction. A move still requiring approval.

This this is another reason I say "Suing your HOA is suing yourself and your neighbors". It applies to internal board members situation too. The liability insurance covers poor decisions of a board member in the process of doing HOA business. So what does the lawsuit involve factors in here.

I say the board member should be excluded from the process for the most part. Court doesn't work like it does on TV. There is a "discovery" period so there are no surprises. It's used for BOTH sides to provide it's best case. So there shouldn't be any "smoking gun" moments.

The board member really needs to just sue and the HOA counter-sue once case is filed in response. A counter-suit can be for about anything. It's cheaper to file and doesn't need a lawyer. I'd make the lawsuit at minimum for the legal expense/advice it took to file the counter-claim. Do not believe a HOA should intentionally sue a member 1st. That is a rare situation that option should ever be considered/used.

So I'd let the board member to know that since they are wanting to sue, that the exchange between lawyer is between the HOA and the lawyer. That the details will be communicated to their lawyer if need be. The board member needs to be excluded in any conversations outside of the lawyers offices when case being discussed.

Former HOA President
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