Normally, attorneys must be reactive when asked to address an important question, issue, or even a pending lawsuit, so it is a pleasant surprise when attorneys are asked to be proactive and impart their wisdom and advice to our community association clients. Here are a few suggestions for how your community association can proactively utilize the advice of your association attorney:
Review and Update Governing Documents
Depending on the age of your community, it may be time for your attorney to review your governing documents to ensure that they: (1) are in compliance with the law, including the requirements enacted as part of the Radburn legislation and accompanying Department of Community Affairs (“DCA”) regulations; and (2) to ensure that as the community ages, the requirements and restrictions are appropriate for the association. For example, do we have to amend the provisions regarding elections and meetings to comply with Radburn? Do your by-laws allow for electronic notice/voting? Do we really need to keep outdated provisions related to developer control? What is the rule against perpetuities, and do we really need to keep that in our documents (yes, for that one, just trust me.)? Proactively reviewing your governing documents every few years will ensure that your association is compliant with the law and is up-to-date with all of the latest issues that could affect your association.
Review Rules/Regulations and Draft New Policies
Does your community have a collection policy? How about a policy on alternative dispute resolution (ADR) or electric vehicle charging stations? Are your pet, parking, and pool rules current and compliant with the Fair Housing Act (“FHA”)? These are all questions that you should ask your attorney every few years while you consider adopting or updating certain rules and policies. As new laws are enacted or change over time, it is important (and good practice) to make sure your rules, policies, and procedures are compliant with both state and federal law. There has been an increasing emphasis on FHA issues over the last several years, whether related to reasonable accommodation/modification requests for disabled residents or dealing with assistance animals (service animals and emotional support animals). Understanding those issues and updating your policies to reflect the current law can guide boards in making appropriate decisions for the community.
Navigate Transition from Developer Control
Your developer just relinquished control of your association to a majority of owners on the board, which we commonly refer to as “transition.” What should the board do now to address any transition issues proactively? For this issue, I have enlisted the advice of my colleague, Martin C. Cabalar, Esq., a shareholder in our construction law and litigation practice group. Martin advises that as part of a board’s due diligence related to the transition from developer control, the governing board should assemble your professional team. “Your legal counsel will serve as the ‘quarterback,’ providing advice, guidance, and assistance in negotiating any issues with the developer. Your engineering firm will review the construction of the common elements for general conformance with the design, building code, and industry standards and point out any areas of concern that should be further addressed or repaired by the developer. An accountant will review the association’s finances during the time of developer control to ensure that the developer made the required contributions and properly managed the association’s funds. Your professional team will also advise you on the need for a reserve study to determine if the association’s reserve funds have been adequately funded to date. With the right professional team working alongside management, your community is much more likely to have a smooth transition.”
In summary, do not be afraid to proactively use your association attorney to deal with questions in your community before they become issues. Proactively using your association attorney can save you time, money, and a few headaches.
To read the original article in Community Trends click here.