The Manager and Association Attorney
The Manager's Role - The management contract dictates and outlines the scope of the relationship between the manager and association.
The relationship is an agency relationship which is a consensual relationship between two parties--a principal and an agent--in which the agent has the power to bind the principal by the agent's actions.
The Role of the Association Attorney - An association attorney plays two roles --an advisor and an advocate.
- An advisor provides expert knowledge and insight gained through years of experience.
- An advocate speaks on the behalf of someone else. In the legal profession it describes someone who has received legal training which allows him or her to represent another individual in legal setting such as courtrooms and hearings.
The art of using an attorney efficiently and effectively involves knowing when the association needs an advisor and when it needs an advocate.
Community Association Tasks that Require Legal Advice
- Identification of potential legal problems or issues
- Interpretation of ambiguous or confusing provisions in governing documents
- Review of proposed amendments to governing documents
- Interpretation of case law and proposed or existing statues that affect the community association
- Review of proposed policy resolutions as appropriate
- Review of contracts before they are signed, as appropriate
- Review of proposed rules before they are adopted, as appropriate
- Review of personnel policies and procedures, as appropriate
Rules Development and Enforcement
Rules and regulations are regulatory imperatives that are derived from the authority of the association, and usually govern activities that occur in a community's common areas and elements. Rules can be enacted by the executive board or board of directors. Since rules protect owner's property and peace of mind, they are one of the most important aspects of a well-run community.
To write rules that accomplish their goals and that are enforceable, developers, association managers, board of directors, and attorneys should remember that the rule must be accepted by the community, obeyed and enforced easily, and efficient.
The Hierarchy of Authority for Association Laws:
- Statutory and common law foundation
- Articles of Incorporation
- Procedural resolutions and guidelines
- Other resolutions of the board of directors
- Contractual obligations imposed by the board of directors
- Actions and decisions by officers and employees