This is the final installment in a five-part series on HOA roles.
Today’s column is about HOA attorneys.
1. Being an HOA attorney is not simply a job. Being trusted to guide communities is an honor and a sacred obligation.
2. Clients need answers, not just options. It is helpful to explain the benefits and drawbacks of the various options, but they require you to tell them which is best.
3. It’s OK to say no. The paramount obligation of the HOA attorney is to provide ethical and competent advice for the HOA’s best interests, not to facilitate the client’s desires. Sometimes the best recommendation is different than what clients hope to hear. Attorneys who are fired because they weren’t “team players” and didn’t “play ball” should consider that as a badge of honor.
4. Attorneys analyze the HOA’s situation and then provide the best legal recommendations. It is not the attorney’s job to convince the board to follow that advice. What they do with that advice is the board’s responsibility – not the attorney’s.
5. Encourage boards to designate two points of contact for questions and assigning tasks – the manager and a director. However, respond as much as possible to the entire board. This demonstrates to the board that counsel’s loyalty is to the HOA and not to the president, the manager, or any other individual.
6. While most lawyers are proficient at courtroom battles, the best attorney victory is keeping the HOA out of court where possible.
7. Encourage the HOA to gently escalate disputes and seek alternatives before asking counsel to send homeowners a “nastygram.” It’s easy to escalate the intensity of conflict but much harder to ratchet it down. Sometimes counsel can be more valuable guiding the client quietly from the background. “Bulldog” attorneys often mostly help themselves by whipping up battles which at first stroke the client’s ego … until they realize their wallet has been shredded. Battle should always be the last resort.
8. At their core, associations are neighborhoods. Never lose sight of how your advice impacts the community and its trust in the HOA’s governance.
9. If you see something… say something. Note additional issues and warn clients about things they hadn’t asked about but need to know. You’re there to protect the HOA, so speak up if you see something like Fair Housing violations in rules, or Open Meeting Act violations.
10. Keep in mind that most homeowners don’t know what they actually own and what the HOA controls. Most homeowners are surprised when they are notified about exclusive use common area use violations or architectural conformity violations. In your letters, include some information educating homeowners along with relaying the need for their compliance.
11. Help clients retrieve their condominium plans or subdivision maps- they usually don’t have these important documents.
12. Check the client’s CC&Rs and bylaws – is the HOA using unrecorded or draft CC&Rs or draft unsigned bylaws?
13. Most management contracts in California do not include helping the HOA with the reporting and documentation requirements of Civil Code 5300 and 5310 (Annual budget report, annual policy statements) or 5500 (board monthly financial report review requirements). Help client and management by asking management to include this in their contract.
14. Always be civil – CAI’s Civility Pledge also applies to counsel, and this year’s dissident could be next year’s president.
Kelly G. Richardson CCAL is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Send column questions to Kelly@roattorneys.com.