Becker & Poliakoff

Attorneys Need Not Always Be Your Attack Dog

Attorneys Need Not Always Be Your Attack Dog

Becker & PoliakoffI am lucky enough to be part of a profession with many specialties and even luckier to work for a variety of communities and to meet a variety of people. This has taught me a few things that I want to share. While it is great to have an attorney ready to bite off the head of that curmudgeon of an owner who violates every rule, or that contractor who refuses to meet the deadlines set forth in your negotiated contract, many times, the attorney is there for risk management and education. I do a lot of classes for directors and managers and enjoy putting together CUP to further educate. Why are these things important? Because in a room with a group of people in the same boat as you, directors and managers learn that they are not alone, their problems are not unique and there are multiple ways to treat a problem.

I’ve had managers recommend that when an owner is complaining of that barking dog or loud noises, that the complaining owner is required to provide an affidavit. I find this helpful when sending a violation letter, not because I disclose who made the complaint but rather because someone willing to sign an affidavit is more willing to serve as a witness in an arbitration or trial. It is very difficult to prosecute a covenant violation dispute over a nuisance issue when your witnesses do not want to be bothered.

Additionally, I have had board members espouse benefits of newsletters to keep members informed of what is being done in the community. I find these helpful in showing an arbitrator or judge (or even a mediator) that there was no way the owner could not have known that the construction was going to require them to use a different elevator or park in a different spot and they are simply and impermissibly damaging the Association by refusing to comply with what is needed so the project can continue. Even before getting before a judge or arbitrator, showing these to the owner or their counsel, has serve to clear up the problem.

In these prior examples, I have been on the attack for the benefit of getting my client what they need (i.e., compliance). But there are times when attacking simply perpetuates the problem. That is why, one of the things I do when I teach a board certification class is ask everyone in the room if they know what contracts the association has (management, waste collection, bulk cable, elevator maintenance, landscaping, etc.) and more importantly if they had read the contract to find out what is/is not included. Many contracts are multi-year and with each year that passes, new board members are elected, managers transition in/out, and the exact nature of the services negotiated in the contract is forgotten. That leads to frustration and anger when the board expects a manager to be present 5 days a week but the contract only requires 20 hours per week, or elevator maintenance response time of no more than 2 hours but responses are taking 5 hours. I have many times had to be the bearer of bad news when a director tells me a vendor has breached and cancellation is appropriate but the contract provides otherwise.

Assuming the contract cannot immediately be cancelled without a penalty the association is not willing to incur, a meeting with the vendor to iron out the issues may be in order. I recently attended a meeting where my client was irate with its management company. I moderated a round-table discussion that included everything from “I thought the services were XYZ” to “the association needs more on-site services than it contracts for” and “we really like it when you do ABC” to “we do not understand your billing or accounting process,” and so on. It was a long meeting but by the end, my Association had answers to many questions they did not even know they had, the management company better understood the desires of the new board and how things were changing from years past, and some easy to implement plans of action were in place to address the otherwise minor issues that seemed impossible to overcome at the start of the meeting. For my client, this meeting will result in a new management contract. For your Association, this type of meeting could result in an addendum to an existing contract or simply both parties operating under the terms of the existing contract, which actually do meet all of the Association’s and vendor’s needs.

By the way, in my meeting (and likely in yours), neither party agreed that problems would not continue to arise and neither party agreed that the contract or addendum can’t be cancelled or not-renewed. What mattered was that, for the time being, they would work together for the betterment of the community. If it works in the long run great; if not, then the parties are closer to the end of the contract and termination will just happen.