An Example of When to Contact Association Legal Counsel
The other day, I was contacted by an acquaintance who asked for my help changing his condominium’s no-pet policy. He explained that he was a board member, and that their condominium’s “bylaws” banned all pets. My first question was whether he wanted my assistance personally or as counsel for his condominium association, to which I received a bewildered look.
After a bit more digging, I learned that the reason this person sought my counsel was because the other directors told him that if he wanted to change the bylaws, he either needed to prepare the documents himself or go get his own lawyer to prepare “the documents” for the condominium. The association would not pay for an attorney. The board’s position was unwise for several reasons.
First, an association’s board should not shy away from leading the process of an association-wide policy change. Even if the request comes from an individual owner, if the change impacts the association as a whole (and has legal ramifications, such as potentially impacting the FHA or ADA), there’s a good chance the board should treat it as an association matter and begin by analyzing whether the change is in the best interests of the association.
Second, an association’s board needs to be aware of exactly which documents need to be changed to implement the new policy. Will it require a simple resolution of the board, or an owner-approved and recorded declaration amendment, or perhaps both? Do the board members know the difference between the declaration, the bylaws, and the rules and regulations? Each likely specifies a different amendment process. Changing the rules is quite a bit different than changing a recorded declaration. The board must be the final and authoritative voice on how and which documents are changed, so that any and all changes are made correctly. If there is any doubt whatsoever, the board should consult with experienced association legal counsel, even if an individual owner claims their attorney has looked at the issue. At Barker Martin, our focus is on association issues. We have seen numerous examples of individual owners’ attorneys attempts to draft condominium documents that fall short.
Third, it would arguably be neglect for an association’s board to rely solely on a unit owner’s legal counsel. Condominium associations (as well as most HOAs) are corporate entities and are entitled to independent legal representation. What is in the best interests of the association is often different than what may be in an individual owner’s best interests. For example, an individual owner’s attorney might draft a suggested declaration amendment altering policies in a way that narrowly benefits his or her client. Since that lawyer does not represent the association, he or she has no duty to look out for the greater good. That is the board’s duty, and an association’s legal counsel can assist the board in its discussion of the ramification of any such change.
Finally, it is not uncommon for us to be contacted by associations who chose to implement document and policy changes without the assistance of legal counsel, and now find the changes being challenged as being improperly adopted, or inconsistent with other association documents. It often costs more to examine the crisis and fix the problem after the fact than it would have cost for us to help from the beginning. The proverb really is true in regard to amending governing documents: An ounce of prevention is worth a pound of cure.
Please let me know if the attorneys at Barker Martin can assist your association in any way.