When Should Condo and HOA Boards Seek Legal Advice?

A Spokane homeowners association was recently fined $13,500 by the state for illegally burning a boat dock last June. The burning violated Washington state law because it polluted the air with toxic chemicals. It is presently unclear whether the association will appeal the fine.

Boards of condominium and homeowners associations should consult with their association's attorney before making major decisions like removing structures from their properties. An experienced community association lawyer may have identified the law prohibiting the dock burning, recommended a different method of proceeding, and saved the association a substantial amount of money. Boards considering other important matters like contracts with third parties, proposed amendments to the governing documents, and enforcement actions against owners should also give their association's attorney the opportunity to steer them clear of trouble and advise them regarding the best course of action.

Should Your Association’s Attorney Be a Hired Gun or a Legal Navigator?

Community associations and the owners in them hire attorneys for many different reasons, but they often fall into one of two camps in terms of how they view attorneys’ primary purpose. Some view them as Hired Guns, while others view them as Legal Navigators.

The Hired Gun listens to the stated goal of the client and aggressively pursues that goal without questioning the goal, the likelihood of attaining the goal, or the method advocated by the client to attain the goal. This type of attorney resembles the classic “yes man” found in some corporate board rooms. Clients who want the Hired Gun want an attorney who will charge forward as they instruct with thoughts of nothing but success.

The Legal Navigator seeks to guide the client out of the wilderness it finds itself in by way of the most effective and efficient path. This type of attorney is quite willing to aggressively pursue the client’s goals using its preferred method when the situation calls for it, but he or she will also not hesitate to tell the client that it has made mistakes in the past that require compromise or that its favored plan of action is not the best one under the circumstances. In other words, the Legal Navigator will not shrink from telling clients things that they do not want to hear. In some cases, a well-timed “No” or “I advise a different approach” can result in lower legal expenses and better outcomes.

The “Charge!” approach of the Hired Gun is appealing to many. However, the clients of the Legal Navigator are much less likely to charge off cliffs.

The Sword, the Shield, and the Guide - Working with the Association's Attorney

A board should strive to get the most out of its relationship with the association’s attorney. There are three types of attorney roles that a board is likely to encounter – sword, shield, and guide. The third role is just as important as the first two, but it is often the least understood.

Boards retain attorneys to enforce the CC&Rs and collect delinquent assessments. The attorneys are swords used to produce compliance. Boards hire attorneys to defend the association from legal action by owners or others. The attorneys are shields used to deflect liability. Most board members are familiar with these two attorney roles.

Some boards retain attorneys to provide comments and recommendations about association affairs as they happen. The attorneys are guides used to ensure that the association is managed in accordance with the governing documents and applicable laws. They can amend declarations to produce more desirable results. They can inform boards of the risks and benefits involved when faced with difficult choices. The attorneys add their knowledge and experience to board deliberations and (hopefully) help boards make better decisions.

The guide role can produce many benefits for an association, but it does require the commitment to regularly inform the attorney of the significant business before the board. Once the proper procedures are in place, the attorney can often help resolve a matter with a brief email or phone call.