Louisiana - HOA Attorney misinterpreting the law and taking Homeowners rights away, in my opinion. I'd like someone elses opinion.

Started by SandraM15 • 10 replies • 23 views

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SandraM15 (Louisiana)
Posts: 2

Posted:

Louisiana HOA established before Jan 1, 2025 (20yrs), still controlled by developer. (630+homes)Our HOA atty. finally sent his clarity about the board's failure to notify owners of board meetings: "Homeowners are not entitled to notice". He acknowledges that La. R.S. 9:1141.26(B)(5) generally requires 30 days' notice to directors AND lot owners. However, he claims R.S. 9:1141.3(A) preserves the superiority of our pre-2025 gov docs, while subsec(G) says existing HOAs need not amend them. The PCA fills gaps only when gov. docs are silent and he states ours are not silent, citing cases that predate the 2025 Act. Cooper v. Brisco, Childers v. Laurel Lakes, and Southern Trace v. Williams. Our Declaration §17.3 and Bylaws Article II §5 provide notice to owners for community meetings. Declaration §17.4 and Bylaws Article III §§7–8 require three business days' notice to directors for board mtgs (but say nothing about notifying owners for board mtgs). He argues: the doc specifies owners as the persons entitled to notice for community mtgs & directors as the persons entitled to notice for board mtgs, therefore, its not silent + overrides the 2025 law. He also cites R.S. 12:224(E)(6), stating nonprofit board meeting notice follows the bylaws. I believe his interpretation is not legally sound & is taking away homeowners' rights. Our bylaws never say ONLY directors may receive notice or prohibit notice to owners (even though he added ONLY to his opinion letter to the HOA board which uses this opinion). Can a pre-2025 bylaw requiring notice to directors for board meetings, but not addressing notice to homeowners, override the explicit 30-day homeowner-notice requirement? He won't answer what exactly in gov docs “provides for” the procedure of notifying lot-owners of board mtgs? Plus, why a provision establishing the notice that must be given to directors is also considered a provision establishing that lot owners receive no notice at all, when the gov docs never expressly address board-mtg notice to lot owners.

I believe: we don't have to amend anything. Does a bylaw prescribing notice to directors also constitute a provision governing notice to lot owners, even though lot-owner notice is never mentioned? Does a bylaw requiring notice to directors implicitly exclude notice to lot owners, or does R.S. 9:1141.20(H) allow the LPCA to supply the omitted lot-owner notice procedure? Does R.S. 12:224(E)(6) govern only the corporate notice procedure, or does it also displace the lot-owner protections under R.S. 9:1141.26(B)(5)?

TimB4 (Virginia)
Posts: 21,004

Posted:

This is the statute Sandra is pointing to: https://legis.la.gov/legis/Law.aspx?d=1387301

This is the start of LA Planned Community Act: https://legis.la.gov/legis/Law.aspx?d=106629

This is the table of contents for LA Title 9 (need to scroll down to 9:1141 to start looking at the various contents of the Act):

https://legis.la.gov/legis/Laws_Toc.aspx?folder=75&level=Parent

TimB4 (Virginia)
Posts: 21,004

Posted:

§1141.3. Applicability

A. The provisions of this Part shall be applicable to existing and future planned communities whose declarations have been duly executed and filed for registry. However, this Part shall not be construed to affect the validity or superiority of any provision of a community document filed for registry prior to January 1, 2025.

B. (3) This Part shall apply to only those associations that are organized for planned communities.

G. This Part shall not require an association existing prior to January 1, 2025, to amend or change its organizational structure or its community documents.

H. Nothing in this Part shall require a planned community in existence prior to January 1, 2025, to alter its previously established method of amending community documents or calculating and voting on assessments.

-------------------

My comments:

Note: the second line of A. This Part (statute) shall not be construed to affect the validity or superiority of any provision of a community document filed prior to January 1, 2025.

In legal statutes and regulations, the structure generally works like this:
Title — the broad body of law.
Part — a major subdivision of that law.
Section (§) — a specific provision within a Part.

TimB4 (Virginia)
Posts: 21,004

Posted:

The Question as I understand it:

Per statute: Association Documents are considered superior to the statute in question.

Per statute: Board meetings are open to the membership

Per statute: 30 day notice (or more) are to be sent to Directors and Members of Board meetings

Per CC&Rs and Bylaws: Directors are to be given 3 days notice of Board meetings

Association Documents are silent on notice to membership about board meetings.

The Legal Opinion is: The principle of expressio unius est exclusio alterius, applies. In other words the omission of a particular covenant or term from a contract reduced to writing shows an intent to exclude it.

My opinion, the Attorney found a way to argue that the declarant (developer) does not have to notify the membership (I expect something the current board wanted). Will that argument hold up if challenged in the courts? Unknown. One would have to spend the time, energy and money to find out.

I agree that documents don't have to be changed to notify members of Board meetings.

Bottom line (opinion): The current board can't refuse a member who wants to attend a Board meeting. To keep members from attending, the current board simply won't tell the membership when the meetings are and found an attorney to give a legal opinion that the Board doesn't have to notify the membership of Board meetings. If challenged, the Board says that they were following the advice and opinion of their attorney and are covered if a court said differently.

A future board can adopt the policy to notify membership and welcome them to board meetings.

If one doesn't want to wait they will have to gather support and mount a legal challenge against the developer.

A less expensive option is start gathering support and be willing to serve when control of the Association is turned over to the membership.

TimB4 (Virginia)
Posts: 21,004

Posted:

Quote:

Posted By TimB4 on 10/23/2026, 6:29 PM

The Legal Opinion is: The principle of expressio unius est exclusio alterius, applies. In other words the omission of a particular covenant or term from a contract reduced to writing shows an intent to exclude it.

OR Basically, since the documents stated that Directors were required to be notified and did not require notification to the membership of Board meetings, then the intent was to only inform the Directors (or the document would have said to also inform the membership)

TimB4 (Virginia)
Posts: 21,004

Posted:

Sorry - I keep thinking of things to add.

Do I think that the legal opinion would survive a legal challenge?

No.

However, I am not an attorney.

As I stated earlier, time, money and energy would have to be spent to make a legal challenge (that can take years).

It's also likely that the case could last long enough that it becomes mute because a future board starts to notify members of Board meetings.

ElleN (Idaho)
Posts: 1,413

Posted:

First I am going to speak to the attorney's argument. Then in a second post, I will speak to where I believe the attorney is messing up. In a third post, I will speak to what the HOA attorney's obligations are to owners.

First --

Our Declaration §17.3 and Bylaws Article II §5 provide notice to owners for community meetings. Declaration §17.4 and Bylaws Article III §§7–8 require three business days' notice to directors for board mtgs (but say nothing about notifying owners for board mtgs). ... Plus, why a provision establishing the notice that must be given to directors is also considered a provision establishing that lot owners receive no notice at all, when the gov docs never expressly address board-mtg notice to lot owners.

I believe this lawyer is applying the contractual legal principle of "exclusio unius est exclusio alterius." The latter means that when a legal document expressly mentions one specific thing but not another specific thing, the second specific thing was intentionally left out. For board meetings, your governing documents speak to notice to specifically directors. The governing documents are silent when it comes to notice to owners. For community meetings, your governing documents speak to notice to specifically owners. Both of these facts, combined with the aforementioned principle, support the attorney's argument.

Does R.S. 12:224(E)(6) govern only the corporate notice procedure, or does it also displace the lot-owner protections under R.S. 9:1141.26(B)(5)?

When two statutes genuinely conflict, the legal rule for which statute controls is this: The more apposite statute controls. In this case the more apposite statute is the HOA statute (the PCA).

Here, I do not think there is a genuine conflict. If there were, the HOA statute would control. But then the HOA statute applicability section is clear that, if the HOA statute genuinely conflicts (on a given topic) with a community document filed before Jan 1, 2025, then the community document controls (on the given topic).

ElleN (Idaho)
Posts: 1,413

Posted:

Second, in my experience, here is where the HOA attorney is messing up:

For Board meetings, RS 9:1141.26 B requires that --

-- meetings shall be open to the lot owners...

-- the board of directors shall establish procedural rules to permit participation by a lot owner in the event that the lot owner is directly impacted by an agenda item or is requested to attend by the board of directors.

-- if any materials are distributed to the board of directors before the meeting, copies of those materials shall be reasonably available to lot owners, including by posting on the association's website, except that the board need not make available copies of unapproved minutes or materials that are to be considered in executive session.

Are your governing documents silent on these points? If so, then the statute controls. Furthermore, obviously it is impossible for owners to attend a meeting for which there has been no notice.

Courts of law have ruled on whether a meeting for which (1) there is no express notice requirement but (2) there is an express requirement for the meeting to be open. The essence of the rulings is that: Where no notice is provided, the meeting is not "open." Hence the courts have ordered that notice be provided.

ElleN (Idaho)
Posts: 1,413

Posted:

Third, the HOA attorney's obligations to owners:

The only obligation the HOA attorney has is to inform owners that they should get their own attorney. This is because the owners are not the HOA attorney's client. The HOA attorney is obliged to zealously advocate for his client, the association. He will twist whatever he wants; leave out legal interpretations that help your claims; and so on.

Questions?

SandraM15 (Louisiana)
Posts: 2

Posted:

Thank you for your replies! I agree the HOA attorney did not have to email me with clarification, I am thankful he did. I'm looking for an attorney's opinion or a good strong paragraph that I could reply to him that shows his flawed interpretation and showing why the LPCA controls. He never addressed R.S. 9:1141.20(H). His opinion letter has taken away our rights as homeowners. There is no cases with precedence and I can't afford an attorney. What would you say to him in a reply? I know he is still going to use the omission part, but our gov docs are silent and the LPCA was established for issues like this. I need to show him that his interpretation is flawed. He speaks of the community meeting. That has nothing to do with board meetings. Our docs don't say "only" board members. They truly are silent on the issue. Thank you for the time and effort in this. There is so much wrong with this developer controlled board. I have canceled checks of thousands of dollars where he authorized the HOA to pay private property taxes on property the HOA doesn't own. There is so much, it's overwhelming. I'm hoping we can start attending board meetings so we can know what they are doing before the fact instead of 3 months later when the meeting minutes are approved.

ElleN (Idaho)
Posts: 1,413

Posted:

He never addressed R.S. 9:1141.20(H)

In my opinion, he did. But understanding this requires understanding the legal principle of "exclusio unius est exclusio alterius."

What would you say to him in a reply?

Consider responding as follows:

Dear Mr. ____,

For Board meetings, RS 9:1141.26 B requires that --

-- "Meetings shall be open to the lot owners except during executive sessions."

-- "The board of directors shall establish procedural rules to permit participation by a lot owner in the event that the lot owner is directly impacted by an agenda item or is requested to attend by the board of directors."

-- If any materials are distributed to the board of directors before the meeting, copies of those materials shall be reasonably available to lot owners, including by posting on the association's website, except that the board need not make available copies of unapproved minutes or materials that are to be considered in executive session."

The community documents are silent on the topic of owner attendance at meetings. Therefore the statute controls, and meetings must be open to all owners.

I understand that for meetings where (1) no notice is given, because there is no express notice requirement; and (2) there is an express requirement for the meeting to be open, courts have ruled on whether the meeting is truly "open." The essence of the rulings is that: Where no notice is provided, the meeting is not "open." Hence the courts have ordered that notice be provided. See for example Sullivan v. Credit River Township (Minn. 1974), 217 N.W.2d 502 . From the latter:

The critical question is what constitutes a meeting open to the public, as required by the statute. It is the judgment of this court that a meeting of which the public is unaware is not such a meeting. To constitute a public meeting, there must be adequate, timely notice to the public of the time and place of the meeting. The statute itself does not expressly require such advance notice to the public. However, the general rule of statutory construction is that every statute is understood to contain by implication, if not by its express terms, all provisions necessary to effectuate its object and purpose. 17B Dunnell, Dig. (3 ed.) § 8949; 82 C.J.S. Statutes, § 327. The language of the statute directing that meetings be open to the public is meaningless if the public has no knowledge that the meeting is to take place. Therefore, we believe that the statute, by implication, requires *506 adequate notice of the time and place of the meeting.

Please direct the board to provide notice to all owners consistent with the statute.

Thank you,

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