The homeowners’ association (HOA) is represented as an organization by its attorney. The individual directors, homeowners, and community managers are not the same as the HOA. Generally speaking, the HOA attorney’s job is to protect the best interests of the HOA. This may involve checking that the HOA’s governing documents, rules, and regulations are current and compliant with applicable laws. The HOA attorney counsels the Board regarding the entity’s duties to its members and what is in the best interest of the organization, for instance, in the event of a disagreement between the HOA and a disgruntled homeowner. The HOA attorney may represent the HOA in any formal mediation or litigation that may be required.
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A HOA Is a Unique, Separate Entity
Just as Walmart is a distinct entity from its shareholders, board of directors, and corporate officers, so too is the homeowners’ association. Similar to Walmart’s board of directors, the homeowners’ association’s board acts on behalf of the organization by, for example, establishing policies and procedures that safeguard and advance the interests of the homeowners’ association and the neighborhood. The HOA is able to purchase goods and services through contracts, own real estate, maintain a bank account, file lawsuits or be sued.
HOA Lawyers Act on Behalf of the Association as an Organization
Rather than defending specific directors or board members, the homeowner’s association is represented by the HOA attorney as an organization.
The legal advisor to the HOA is an attorney. The board members of the HOA are accountable for conducting business in an ethical manner on behalf of the HOA, including voting on rules and regulations and adhering to the business judgment rules. The HOA board receives legal advice on governing laws that could affect the association from the HOA general counsel, which is another term for a HOA attorney. The HOA board will receive legal assistance from an attorney when making changes to the association’s bylaws. In order to ensure that the homeowner’s association abides by its own rules and regulations, the HOA attorney is also in charge of examining the governing documents.
In order to make sure that a decision is best for the HOA as a whole and not just the board members individually, the general counsel for the association may also assess decisions that the board makes or considers making. In case the board is deliberating over increasing HOA fees and board member compensation, there exists an innate motivation for the board members to support such increases. The proposed terms of the resolution for the increase in HOA fees and board member compensation are fair and in the best interest of the HOA, not any or all individual board members. Nevertheless, the board members may still vote on these issues. In the meantime, a HOA attorney can serve as an impartial third party.
Furthermore, the HOA board may need to update its rules and regulations in light of societal changes and new laws passed by Florida’s state legislators. For instance, common HOA rules include bans on homeowners operating businesses out of their residences and noise limitations. An attorney specializing in homeowner associations could assist the board in comprehending the new legislation and making necessary amendments to the HOA’s documents, should lawmakers approve a new law that forbids homeowners’ associations or landlords from limiting a homeowner’s ability to operate a remote consulting business out of his or her home.
Furthermore, a new law in Florida states that State and City laws pertaining to the hours during which construction may begin supersede HOA rules regarding construction hours from May 1st to September 30th of each year. If, for example, the State or City law specifies that construction should cease at 8 p.m. but the HOA’s regulations and rules forbid it after 3 p.m., then the State or City law may take precedence over the HOA’s regulation.
Ensuring that the HOA stays compliant with new laws is one way that hiring an attorney to review the association’s governing documents, rules, and regulations helps to protect the best interests of the organization as a whole. In the absence of a HOA attorney, a homeowner may file a lawsuit against the HOA on the grounds that the restrictions are illegal. A HOA’s lawyer may be able to reduce the association’s liability, safeguarding the organization’s goals and objectives.