Condominium Owner Upset Over Legal Fees
By Kay Senay
“One of the prior board members sued the five people he blames for starting the recall against him. If that attorney asks the board who will pay for his or her legal fees, can the board meet and decide without notifying the owners? Is it legal to use condominium funds to pay these legal fees?”
Legal counsel to the condominium association is provided by the condominium attorney. That legal counsel does not represent the board or a single member of the board, nor any particular officer. Although the attorney usually communicates with one member of the board, the board president or other officer of the board, that person is not the client of the attorney. The condominium management company also is not the client of the attorney.
The condominium association as a whole is the client. The attorney does not represent the interest of one or more owners or any particular group of owners. The attorney must represent only the association. Owners frequently challenge this concept by suggesting that since the attorney advises the board, he or she represents the board.
Another misconception is that condominium owners think that legal counsel is available to answer their questions as well as the questions the board may have. Owners sometimes need to be reminded that the board and the attorney are on the same team and that the attorney provides advice to only those who govern the condominium association.
Check the Declaration and Bylaws for what they say about when the board is permitted to call a meeting without the owners present. If those two documents do not speak to this issue, then you can assume the board is permitted to do so at any time that is convenient for them. That being the case, a board may call an emergency, closed meeting at their discretion without notifying the owners for matters such as delinquencies, employee problems, and some legal issues.
The legal counsel is a contractor to the association the same as the landscaper, accountant, insurance agent, management company, etc. Therefore, he or she must be paid from the funds of the association just as all the other contractors. As described above, you must remember who the client of the attorney is. Association funds may not be used to pay the attorney for anything other than his or her representation of the condominium.
It is the board who determines which contractors are hired to provide services to the association. That decision also includes consideration of the costs. Owners are not involved in the matter of either selecting the contractors or how much they are paid. According to the condominium governing documents, there are usually only two powers the owners have, electing and recalling board members and voting on the addition and removal of capital assets of the association.
Kay Senay
Kay is the author of CONDO BUYING & OWNERSHIP MADE SIMPLE: TIPS TO SAVE TIME & MONEY. This book is full of Kay’s secrets for solving difficult condominium issues. She is available to speak at conferences and to advise condominium and homeowner associations’ boards of directors. Visit her website at the link above for FREE TIP SHEETS, books, and more valuable articles.
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