Homeowners' associations (HOA) exist for the benefit of homeowners who live in the condominium, townhome, or other planned communities they manage. This benefit can sometimes feel like an obligation, however, when the HOA enforces community rules. The HOA's governing board is usually made up of volunteers from within the community, who are doing their best to interpret the rules, and not always successfully.
To help HOA board members with such interpretation and enforcement tasks, and to resolve legal disputes with, or affecting, individual homeowners, the HOA may retain an attorney. In addition, there are times when the HOA will need to hire an attorney to prepare legal documents or to negotiate or resolve disputes with outside parties such as vendors or contractors.
There are lawyers who specialize in HOAs. This article will further describe the role of the HOA attorney.
Attorneys Help Draft HOA Founding and Governing Documents
When an HOA is first formed, a variety of legal documents must be drafted, to comply with state law and to set guidelines for the ongoing operations and management of the community. The most important of these documents include the HOA's articles of corporation, the bylaws, covenants, conditions, and restrictions (CC&Rs), and perhaps less formal rules and regulations.
Many of these will be lengthy documents, setting out rules for everything from how many people will serve on the board to how meetings must be run to who owns what portion of the unit they live in to whether pets will be allowed to how the bylaws can be amended.
It's important to get these documents drafted by a professional, given that all homeowners and the HOA will be legally bound by them in the future, and will look to them for guidance in situations that no one might have anticipated early on. Therefore, many HOAs (or the construction company that builds the new development) 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's on the board, that it can't feasibly live with or lawfully enforce.
HOA Attorneys Sometimes Represent Homeowners' Interests
All too often, a construction defect is discovered long after development of a neighborhood is complete. For example, the grading might have been improperly done, leading to moisture accumulation in homeowners' basements; or the soil may not have been adequately compacted before the sidewalks were poured, leading to cracked pavement.
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, however, then when these defects affect a development's common areas, the homeowners' association should hire an attorney to assist in taking legal action against the developer. This is not the responsibility of individual homeowners.
If the defects concern 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 fellow homeowners who have been similarly affected, and bring a class-action lawsuit.
HOAs 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. Nevertheless, 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.
HOAs Hire Attorneys to Collect Fees and Assessments
HOAs at times hire an attorney to collect outstanding fees and assessments from homeowners who are not responding to the HOA's enforcement efforts. Having an attorney enforce collections increases the likelihood of success, since a lawyer will know the procedures for obtaining court judgments and liens based on nonpayment. When a few homeowners fail to pay their fair share, a greater financial burden ultimately falls on the entire community, and can bring down property values.
You May Need Your Own Attorney
In rare instances, homeowners are taken advantage of by an HOA or its attorneys. If your HOA isn't acting with your best interests in mind, you may be able to take legal action and hire your own attorney with experience in HOA matters.
Questions to Ask Your Real Estate Attorney
- For a construction defect that affects both common areas and individual properties, should the HOA provide legal representation, or will individual homeowners 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 with them?
- To what extent are the HOA board's consultations with lawyers confidential, if they concern matters affecting the entire community?