What Situations Would Require An HOA To Hire You To Defend Them In A Homeowner’s Suit?
There can be all kinds of situations. Homeowners can sue the associations on breaches of fiduciary duty. In other words, the association collects assessments and are required to use those assessments to maintain common elements. Sometimes there are supposed to be separately funded accounts for limited common elements and there are suits that are brought by owners. In those scenarios, there are times when the members will try and recall a director and there is counsel needed or required by the board to have counsel representing them on those types of issues. Sometimes there will be a suit filed by a member asking for declaratory relief which is basically saying our position is that we are allowed to do X and it may be like something as simple as modifying a portion of their unit and the association has told them, no either you’ve been rejected by the architectural review or the board of directors sent them a letter saying that we don’t approve that this modification is allowable.
So you may have to go through the alternative dispute resolutions that are in the statutes which would be arbitration for condos and mediation for HOAs but sometimes if you get past that area or if it doesn’t apply because there are only certain “disputes” that apply where you have to go through the alternative dispute resolution. But if you get past that area then a member will ask for declaratory relief which is basically saying that we want you to judge, to tell us what we would do if this did go to trial. So he basically asks or requests from the judge to make a preliminary decision before anything has happened and tell the owner that yes you would be able to make that modification, then the association’s position is wrong or the association’s position is right and if you build this, then they are probably going to have a cause of action against you.
Those are just some of the issues that members bring up. I mean there are parking issues, there are angle related issues, it is anything where there is either a statute involved or declaration term and yet the governing document’s rules and regulations and a member says that they are in compliance and the association says they are not and they go ahead and file suit or if the member thinks that the association has not been acting rightfully which is the instance I brought up in fiduciary duty about spending money the right way, then those actions need to be defended and the one thing that I think a lot of people are not aware of, even board members are not aware, they should be but a lot of them aren’t and that is, in the state of Florida, a corporation cannot represent itself because it’s not a natural person. So there is a requirement that corporations have counsels represent them in court. So even though the associations are filed as non-profits, any time an action is brought against them unless they want to be defaulted then the association needs to bring counsel in to defend that action.
What Types Of Amendments Or Restatements Of Governing Documents For HOAs Or CAs Does Your Firm Handle?
We handle any and all of those. Typically when I sit down with an association or a board of directors or if the board appoints a particular board member to kind of be the legal liaison, I will sit down with them and kind of hash out what their goals are. If their goals are to amend a large part of the declaration or the bylaws then because what the suggestion is because otherwise, it would become very cumbersome when you have a large number of amendments then the better solution is to restate the declaration or restate the bylaws. So you take the older set that you have and you incorporate your changes in those and as long as they are properly approved by the members then you record a whole new set so there aren’t a number of amendments that someone has to look up to understand what exactly the association has changed. They are all contained in the restatement.
Once you have the restatement, you can have amendments that are done after those as well. So that’s kind of the initial analysis as to whether or not it is more appropriate to restate the governing document that you are talking about or if the better position is to just file an amendment or two and those amendments can deal with leasing, they can deal with parking, they can deal with debt restrictions, they can deal with, if it’s still under developer control, what parts of the development are actually incorporated into the POA that are actually committed property within the association or the condo association. So really, just any part of the declaration of bylaws that the members are going to provide the proper votes necessary according to the declaration or according to the bylaws to amend those, then we can go ahead and amend those as long as they are not in violation with the statute.
So you have to always keep that in mind. Sometimes boards will say, we have this kind of problem so we want it amended and typically you would be able to say okay. But sometimes, you have to say wait there is a statute that came into effect after your original declaration was recorded and now that statute applies so if you were to amend that you would be violating the statute and that’s something an association always wants to stay away from. That’s kind of the procedure that goes on in analyzing and going ahead and drafting those types of amendments or restatements for the governing documents and that’s something that my firm handles from A to Z. So any of the governing documents that need to be amended go through that analysis and then, we would file the appropriate documents.
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