A Home Owner's Association (HOA) exists for the benefit of homeowner's who live in the condominium, town home, home or other planned community. Everyone benefits when the HOA enforces community rules. The HOA's governing board is usually made up of volunteers within the community who are doing their best to interrupt the rules and regulations, and always successfully. The job of the attorney is to help the HOA board members with such interpretations and enforce the communities' rules and regulations, as well as to resolve legal disputes with or affecting individual homeowners. In addition, there are times when the HOA will need an attorney to prepare legal documents or to negotiate or resolve disputes with outside parties; such as vendors or contractors. Attorney's draft the HOA founding and governing documents
When an HOA is first formed, a variety of legal documents must be created to comply with state law and set guidelines for the ongoing operations and management of the community. The most important of these documents include the HOA's Articles of Incorporation, the Bylaws, Covenants, Conditions and Restrictions (CCandR's) and perhaps less formal rules and regulations.
Many of these will be lengthy documents, setting out rules from everything from how many people will serve on the Board, how many meetings must be run, who owns what portion of the unit they live in, whether pets will be allowed and how the bylaws can be amended.
It's important to get these documents drafted by a professional, given that all homeowner's in the HOA will be legally bound by them in the future and will look to them for guidance in situations no one might have anticipated early on. Therefore, many HOA's (or the Developer) will hire an experienced HOA attorney to draft or review the documents.
Doing so makes it less likely that an HOA will be stuck with rules such as how much it can charge in monthly fees or how to terminate someone who is on the board that it can't feasibly live with or lawfully enforce.
HOA attorneys sometimes represent homeowner's interests
All too often a construction defect is found long after the development of a neighborhood is complete. For example, the grading might have been improperly done, leading to moisture accumulation in the homeowner's basements or the soil may not have been adequately compacted before the sidewalks were poured leading to a cracked sidewalk.
Depending on timing and other factors, the property developer should remain liable for these defects and for any necessary repairs. In some cases, the developer or builder will recognize its responsibilities and take action without pressure from an attorney. If not, and the defect affects the developments common areas, the HOA should hire an attorney to assist in taking legal action against the developer. This is not the responsibility of individual homeowners.
If the defect concerns parts of your property that you own individually, it's possible that the HOA will refuse to pay for an attorney. In which case, you will need to hire one yourself (your insurance is unlikely to pay for construction defects). To bring costs down in such a situation, you might band together with other homeowners that have been similarly affected and bring a class action lawsuit.
HOA's consult attorneys for ongoing management issues
In theory, the HOA's governing documents are written in plain English, so that anyone can understand their meaning. Never the less, situations may arise where an HOA board member needs an expert opinion, particularly if it involves a dispute with a homeowner or allegations of unlawful behavior such as discrimination. An attorney can help decipher the language of the relevant documents and explain the HOA's obligations under State and Federal law.
HOA's hire attorneys to collect fees and assessments
HOA's at times, hire an attorney to collect outstanding fees and assessments from homeowners who are not responding to HOA's enforcement efforts. Having an attorney enforce collection increases the likelihood of success. Since a lawyer will know the procedures for obtaining court judgement and liens based on non-payment. When a homeowner's fail to pay their fair share, a great financial burden ultimately falls on the entire community and can bring down property values.
You may need to hire your own attorney
In rare instances homeowner's are taken advantage of by an HOA or it's agents. If your HOA isn't acting with your best interest in mind, you may be able to take legal action and hire your own attorney with experience in HOA matters.
Questions to ask your HOA attorneyFor construction defects, that affect both common areas and individual properties, should the HOA provide legal representation or will individual homeowner's need to pitch in?Our property developer hired a different attorney to draft the HOA governing documents, are the resulting contents fair and complete and do you see any legal issues within them?To what extent are the HOA Board's consultations with lawyer's confidential if they concern matters affecting the entire community?
When you purchase a property in a community, that's governed by a Homeowner's Association (HOA), you agree to abide by its rules.Where do the rules come from?
The property developer usually sets up the HOA and its rules, but residents later have the power to join the HOA board and either enforce or amend the rules; depending on the procedures set forth in the community's bylaws.
Review your HOA's rules
Your HOA community's rules for homeowner's to follow are most likely set forth in a document referred to as the Declaration of Covenants, Conditions and Restrictions (CCandR's). New buyers are ordinarily given a copy of these for review before they finalize the sale, so that they know what they are getting into.
Typically, CCandR's go a lot farther than merely prohibiting bad behavior. They are meant to help maintain the condition, value and in many instances, uniformity of the property within the association. So, for example, CCandR's might state whether homeowner's may erect fences, laundry lines, whether they may hang flags, what their obligations are regarding lawn mowing, snow removal, what type of color curtains they may put up, what time of pets are allowed and much more.
Before protesting any HOA action against you, make sure to review the CCand R's to see whether your own actions were allowable or were in fact done in violation of the rules.
Keep up with rule changes
The rules in your community can change and you might end up living under different rules from when you moved in. Rule changes generally occur at periodic meetings of the HOA Board, which is typically made up of volunteer homeowners from within the community. Residents can and should attend these meetings. By doing so, you can voice your opinion, keep up with current issues affecting the HOA and any changes to the rules. You might even want to join the HOA board!
Consider ways to achieve compromise in a dispute with an HOA
If you notify your HOA that you are having a problem with it's rules or another homeowner, the HOA may, depending on your state's laws, be obligated to arrange for mediation or arbitration. You might be able to work out a compromise or initiate an amendment to the rules. Alternatively, for minor issues, you might agree to simply follow the rules.
Taking further action can create a negative relationship with your HOA and fellow homeowners, who may after all be your neighbors for the long term. You don't want to get into a downward spiral, such that you feel that the only option is to sell your your home and move.
Take legal action against the HOA
If you have a major dispute and believe your HOA is out of line, you can take legal action. For example, the HOA might be asking that you take some legal action or refrain from taking some action that isn't officially covered in the CCandR's or it might be unfairly favoring some homeowner's over others. Because and HOA is a legal entity, you can file a lawsuit against it and ask a court to get involved. A judge can order the HOA to obey its own rules. A court can even decide that a certain rule is unfair or unconstitutional and order it to be stricken or removed from teh HOA governing documents.
In today's litigious society, board members, community members and the association itself can easily be the targets of civil lawsuits. As such, it is important for the associations and their community manager to follow the governing document (covenants, restrictions, bylaws, architectural review guidelines, etc). It is equally important for associations and community managers to uniformly enforce the governing documents but not engaging in selective enforcement. We can help assess the current framework of your governing documents, draft the necessary revision and then work in conjunction with you to enforce them properly. In handling community association law, we can help with:
Collection of delinquent accounts and unpaid duesDrafting an initial set of governing documents or a complete rewrite of your existing documentsPreparing a targeted amendment which only addresses specific governing documentsIssuing written legal opinions which interrupt confusing previsions in your governing documents, offer guidance on difficult liability issues, etcMaking claims against developer for inadequately funding the HOA, poor turnover of the HOA or breaching their judiciary duty to the HOAPursuing covenant violations by homeownersHandling construction defect litigation for the HOAOffering advice regarding board and member meetingsAdvising the board on issues relating to insurance, contracts, elections and other tort issues.
HOA and community association law
At NLG we work closely with the officers, board members and community managers of HOA's in condominium regimes to handle a variety of legal issues they face on a daily basis. In that capacity, we have represented over 65 community associations. If you are an officer or board member of the community association or you are a community manager searching for legal counsel concerning HOA law, we are here to help