Does an Owner in an HOA Have a Right to Send or Bring a Lawyer to an HOA Meeting or Hearing?

 

Does an owner in an HOA have a right to send or bring a lawyer to an HOA meeting or hearing?

 

According to a recent case in California, an appellate court said “No” under most circumstances. The case is unpublished and that may not be clear in some of the discussions on websites and articles written by lawyers and reporters, but the case was heard and the judges’ opinion was written. What does that mean? It indicates that the judges at the appellate level in the 4th District had an opinion but that the case itself may not be cited as binding authority in another case. In other words, the horse is out of the gate but no bets can be placed on it.

 

So what happens when an owner wants to bring or send an attorney to a meeting? Does it matter whether the attorney just plans to sit and listen, observe?  Or to speak? Or to argue? Or to badger?

 

It doesn’t really matter. A board may bar an attorney from any HOA meeting according to these judges, except that they specifically declined to address the situation where an owner that is a corporation or LLC that engages an attorney as its manager.

 

Why did these judges say that owners’ attorneys are not allowed at HOA meetings?

1. Because the law (Corporations Code and Davis Stirling) provides that Boards are in charge of HOA meetings.

2. Because the documents in the case (which had common language) stated that members were allowed to attend meetings but did not allow attendance by non-members, and attorney representatives are not members unless they own a unit and would be present on their own behalves.

3. Because California law provides that an attorney may not approach a disputant party or communicate with the party  if the attorney knows the party is represented by legal counsel –it is an ethical breach of professional responsibility.

 

In this case when the board stated it would not allow the attorney to attend on behalf of the individual owners, the owners formed an LLC and handed over ownership of the Unit to the LLC. Then they tried again to send the attorney in their place, to a meeting. That did them no good. It turns out that members must represent the LLC, not appointed attorneys. Even the fact that the owners gave the attorney a special power of attorney to appear at the board meetings on their behalf and make motions etc. did not help.

 

First of all, members are not allowed to make motions at board meetings and non-members are not allowed to make motions at membership meetings. Second of all, the rights of owners to attend meetings, serve on the board, and address the board at an open meeting cannot be “parsed out”. True, the law and many documents allow owners to appoint a “proxy” to vote on their behalves. And true, the Davis Stirling Act allows a member to designate another person to inspect association records in Civil Code Section 1365.2. But even in these cases, if the owner was “appointing” its attorney to do these things and the attorney injected himself or herself in a way that was intended to be confrontational, and especially when that attorney knew the  association was represented by legal counsel, it could be argued that is a breach of professional ethics.

 

I have always advised owners that they may ask the board if they can bring an attorney to a meeting. Why would an owner want their attorney present? There are fairly common reasons for wanting to bring an attorney –  the owner cannot fully understand the legal discussion to take place at a meeting where the association’s legal counsel is presenting information to the owners, or at a hearing where the owner is being considered for disciplinary action. Or there is distrust such as at an election ballot counting meeting.

 

Still, I have told owners that if the Board did not want the attorney there, the owner should not try to force or sneak their attorney into the meeting. It’s just not appropriate, and now we see it is likely a judge will find it to be illegal, based on solid though non-binding court review.

 

What may have hurt the owners’ cause in this case, at least in my opinion,  was the offensive, pushy, and unsophisticated conduct of the attorney who, according to some of the published materials, insisted that he had a the right not only to attend the board meeting, but to make motions and participate. We all know that board meetings are for boards to conduct business, and although they have a requirement by law in an open board meeting to allow owners an opportunity to address them (the directors), there is nothing in the law that says the board has to let the owners (or their representatives, managers, or appointed delegates) participate in the business part of the meeting.

 

The whole case erupted over an architectural dispute that arose because the owners weren’t willing to accept the board’s decision. They went to great lengths, even forming an LLC, to get around the board’s refusal to allow their attorney to attend an HOA meeting.  The owners could have instead sued for an injunction seeking malfeasance or a breach of duty on the part of the board if they felt the board acted arbitrarily, but they didn’t. Instead it certainly appears that they tried to pit an attorney against the board in a battle of wills.

Is there a lesson here? I would say, from my own experience in doing owner consultations that there are some who would rather send in a pit bull than accept the rules.  And there are some that blatantly ignore sage advice when they hear it from me because it’s not what they want to hear. But there are others that can learn from experiences like this. If you want to bring your attorney to a meeting, ask the board. If they say no, figure out a different approach. There is no law against having the attorney send written communications stating a position, backed with facts or authorities. And there are options other than litigation for trying to resolve disputes, like mediation and arbitration.

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4 Responses to Does an Owner in an HOA Have a Right to Send or Bring a Lawyer to an HOA Meeting or Hearing?
  1. Debi
    September 13, 2013 | 12:37 am

    Hi I have a question? Can an HOA charge me a fee for not being home to allow a termite inspection? My HOA sent a letter stating it would charge a 50 missed apt. Fee if no one was home on a specific date for a termite inspection.
    Thanks

    • Beth Grimm
      September 23, 2013 | 7:42 pm

      The Board has an obligation to carry out it seems (trying to investigate termite issues) and if it is trying to do that through investigation, and the association documents allow right of entry (which they should for this purpose) and allow recovery of costs the association incurs when owners do not cooperate (which is probably the case), it is likely they can charge a fee commensurate with the inconvenience or extra costs to the association of being unable to carry out those duties.

  2. Amber
    September 28, 2013 | 6:34 am

    We have a small condo building. 9 units. 5 of the units were kept by the developer & rented after the other 4 (including us) were purchased. The developer has still possessed control of the HOA’s despite multiple attempts to have him back down. The owners had a meeting and voted to hire a management company. Since we only have 5 owners total, the developer claims since he owns multiple units, he out voted us. It was agreed upon in our first HOA meeting years ago, that with only 5 owners, each one would hold a position on the board of directors. We are now holding another meeting tomorrow where he has email all the owners to inform them he is bringing is lawyer and will be taking legal action against all of us for not voting in the legal manner the CCR’s require (ie, he protests that he has majority votes) I feel as if the law should be on our side but we don’t know what to do.

    • Beth Grimm
      October 4, 2013 | 11:20 pm

      In an HOA, the bylaws and CC&Rs control the voting and so owners have to go by that until they are amended, which understandably not possible if a developer still has control. If a developer controls the board through weighted voting (meaning he or she gets more votes than owners) and takes action that is in his or her best interest and not the interests of the owners and HOA, such as failing to fund reserves, etc., there is case law that says they can be held liable (Ravens Cove case). But simply exerting control due to majority ownership does not indicate harmful conduct. The developer has an obligation to act in the best interests of the community when serving on the board, but may act in its own interest when individually voting the votes for his or her 5 units. It’s a little complicated, but I can say that as long as the individual owners can’t outvote the developer little will change unless some owner suffers a loss and can attribute it directly to the developer’s actions which cause the harm and loss to individual owner.