When is it appropriate to use an attorney, and how often? Let’s start with the obvious:
- When the board is engaged in a legal dispute
- When a lawsuit has been brought against the association or the board
- When the association brings a lawsuit against an individual or company
What do all of the above items have in common? They all represent conflict between the association and others. In my humble opinion, the greatest role of an attorney is to create a path for the association to avoid these conflicts in the first place.
Often, financial concerns delay consulting legal counsel but I would argue the scenarios above could have been avoided if legal advice was sought sooner. Notice the key word here: legal advice. Boards should approach legal representation from the standpoint of conflict avoidance, with the understanding that should a conflict arise they will be better situated to justify their position and succeed in court.
Find a Balance
The most effective boards find a balance between when to seek legal advice and when not to. Legal should not be used to manage the day-to-day operations of an HOA. However, legal should always be brought in to review contracts because when a contract is presented, it always favors the presenting party.
The primary purpose of the HOA attorney is to protect the interest of its client. Their eagle eyes can quickly single out any provisions in the contract that could have a negative impact. A reputable attorney will also identify protections that are missing from the contract.
How Attorneys Help
Attorneys also help to prevent conflict by ensuring that HOAs have and are utilizing the legal interpretation of their governing documents. Most HOA documents are old and confusing, with provisions that have been prohibited or invalidated by statute. Boards should seek a legal opinion on the application of these areas of concern within the documents themselves.
For example, can a board remove an elected member? (And if so, under what circumstances?) The answer varies depending upon the documents and legal statues. The same goes for areas of responsibility, such as who is responsible for maintenance of an area and if maintenance includes repair and replacement.
An attorney should be able to answer questions like these to help the board make an appropriate decision. Remember, the name of the game is conflict avoidance. The board should not be afraid to use an attorney and should not use cost as the benchmark. After all, good attorney will save the association a lot of time and money in the long run.
-by Harold Palmer
As a senior HOA manager with more than 14 years in the field, it’s been my experience that boards should clearly define when to seek legal services (including legal opinions) to solve or avoid a dispute. Sometimes, board members rely too heavily upon their past experience or personal opinions. These factors shouldn’t be discounted or ignored; however, they will not hold up in a court of law. Managers can also be a great resource and a good manager will offer their professional opinion based on past experience in similar situations, but they should always remind the board to consult their legal counsel.