“Association Attorney Doesn’t Represent Owners,” News-Press

“Association Attorney Doesn’t Represent Owners,” News-Press

Q: As a condominium unit owner, am I entitled to any representation from the condominium association’s hired lawyer? (R.R., via e-mail)

A: Generally speaking, no.

While a unit owner may rightfully feel that he or she “pays” for the association’s attorney, the attorney represents the corporation as an entity, not its members individually, nor its directors or managers.

This is a bit of a complicated relationship since corporations can only deal through natural persons, which is usually an officer of the association or a manager. However, attorneys are guided by an elaborate and well-established set of guidelines in how to determine the proper scope of representing the association.

Florida’s courts have ruled, for example, that it is not a conflict of interest for an attorney to represent an association in litigation against a unit owner in the face of a claim from the unit owner that the association attorney is “my lawyer too.” If you have questions about whether what your board is doing is proper, you have the right to refer the matter to your own legal counsel, at your expense.

You may wish to consider putting your concerns in writing in the hopes that your board would refer them to association counsel, where at least you would know they are being reviewed by an independent party.

Q: I have a question about “rules” at my HOA. Does a rule that is suggested by the president of the board go into effect without a vote from the board? Also, can the owners request that the minutes include how board members voted (who voted for or against a certain subject)? (R.G., via e-mail)

A: A rule merely suggested by a director, even the board president, is not legally valid. Any amendments to homeowners’ association’s rules and regulations must first be discussed and voted on by the board of directors (assuming the board is granted such authority under the governing documents), at a duly noticed board meeting.

Rules regarding “parcel” (lot or home) use must be adopted at a board meeting with 14 days’ prior notice to the members, in the manner set forth in the statute. Further, any amendments to the rules and regulations made on or after July 1, 2018 must be recorded in the public records of the county where the community is located for them to become legally effective and enforceable. Copies must also generally be provided to owners within 30 days of recording.

Owners do need to request that the minutes include how each director voted on a particular issue. Section 720.303(3) of the Florida Homeowners Association Act requires that minutes be kept for all meetings of the board and that the minutes must reflect the vote or abstention of each director present at the meeting on each matter voted upon.

Q: I live in a condominium for part of the year. During the months I am at my other home, my neighbor instructs anyone in the area to park in my driveway since I am away. He claims that all driveways in the community are common property and can be used by anyone. I object to this. Who is correct? (J.B., via e-mail)

A: Your declaration of condominium will control in this situation.

Often, driveway areas are defined as “limited common elements,” meaning that the exclusive right of use passes with title to your unit. If the driveways are part of the “general” common elements, unless your declaration specifically addresses their use, the board of directors is usually given a fair degree of latitude in adopting parking policies.

Your neighbor has no legal authority to apply his interpretation of your condominium documents. Section 718.111(1)(c) of the Florida Condominium Act specifically states that a unit owner does not have any authority to act for the association by reason of being a unit owner. This authority lies with the board of directors and powers duly delegated to its officers or agents, such as your community association manager or management firm.