Does An HOA Or Condo Association Need To Have An Attorney At Every Board Meeting?
Typically, an association does not need to have an attorney present at every board meeting. There are some large associations, especially master associations where, at every meeting they have, there is a vote that takes place and any time that there is a vote being taken from the members as opposed to just the board deciding on an issue, I think that certainly it’s an important role for an attorney to be there. If the board is making a decision that is either contentious or that, there have, at least been some rumblings from either other board members or from residents that live inside the community or that are owners within the community, then there may become issues regarding that particular vote. In the procedure for taking that vote, because if it’s a procedure that’s done incorrectly then that causes a problem as well and that may well end up in court.
So if it’s a situation where there is an important vote being taken then counsel probably should be present. If it’s a board meeting that is going to review old business, talk about new business but not really vote on anything that is critical to the operation of the board and does not raise the ire of any other board members or any other members, then usually the board can get away with running the meeting themselves and that’s particularly true to have a board that is familiar or persons on the board that are familiar with how to run corporate meetings and a lot of times, you get people that are retired and then they get elected to the board as a director and so they are familiar with running meetings. They don’t need counsel’s help with how to run a meeting or how to get items moved so there can be a second vote taken on that and other procedural issues that may pop up.
If you have a sophisticated board then they probably don’t need counsel but if you have a board that’s obviously never run a meeting before and that happens even though they are required to take a class to certify that they’ve read all the documents, once I become a director then I may need some help at least initially, on how to run meetings.
What Work Do You Do Regarding Amendments Or Restatements OF Governing Documents For HOAs And Condo Associations?
It depends on the circumstances. There will be instances where a board member or the board as a whole will approach myself as the attorney for the association and say we have this issue which is within our declaration or our bylaws. We have the power to amend those and we would like to get your thoughts and opinion on what we are trying to accomplish. So, in that instance, I would make sure that the amendment that is being proposed is one that is not going to violate any of the state statutes. So that’s the first step and then look at the governing documents and the particular areas within the governing documents that control the particular issue that they wish to amend. There may be some additional areas that need to be amended because they are interwoven throughout the document and the board may not be aware of that. So that’s the simplest case scenario.
You also have hot button issues and sometimes, especially if you are going to restate the documents and I will get to that in just a moment, but sometimes when you have a particularly controversial, so to speak, issue where the board wants to amend or at least a portion of the board and a portion may be against that or a faction of the members may not like that particular amendment. One thing I suggest is just to have a meeting prior to the vote being taken by either the board or the members depending on what exactly is the requirement for the amendment and it depends on the governing document and what you are trying to amend. It may just require a bard vote or it may also require a member vote but what I suggest is to have a meeting where the public gets to ask, the public being the members of the association. The members get to speak and the board kind of gets a feeling.
Another scenario is what the government calls workshops. So you have kind of an informal, even though you have to have the formalities of the notice and those types of things to make sure that you comply with the statute and the governing documents to actually have the meeting. It’s kind of an informal meeting where you let the residents speak and kind of get a feel on where they stand. Certainly, if you are going to restate the documents, I think that’s a good idea and for those unfamiliar with what that means is that if you have one or two items that you need to amend within a declaration, most declarations are close to a hundred pages if not a hundred pages. So if you have one or two items that you need to amend then you can just draw up an amendment and vote on it properly and if it passes then you actually record the amendment in the public records.
However, if there are a large number of amendments that need to be made especially with older associations that still have their original documents in place when the developer first formed the association, then you don’t want a situation where you have 30 or 40 amendments which we will see in public records for some associations. If you have that, it’s very difficult to keep track. So instead of doing that, what you do is you restate the declaration or the bylaws and so what you do is you actually rewrite those and you record those as a single document. So now those become the governing documents. It may relate as far as when property has been committed to the association. But basically you have a whole new set of documents as opposed to having the original documents and a huge number of amendments.
If you are going to do that then I think it’s very important to have the membership at least have the opportunity to come to a meeting to explain to them why the association is restating those documents whether it’s the declaration or the bylaws. Then, to kind of go through, at least on the more important issues and why those are actually being restated or amended. So they have an idea as opposed to just getting a copy with strikes and underlines showing what’s been deleted and what’s been added and the document is going to be recorded. So they have a good idea of what’s being changed because when they purchase a home or when they have a tenancy with them there, they know that the recorded documents are in place with public records and what they have to adhere to.
Now, all of a sudden, that is going to change so it’s a good idea to make sure that they are well informed on what the changes are going to be.
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