We hear it all.  When folks jump into a full-0n smack-down with the homeowners association, the muzzles come off and harsh words are common.  On occasion, these gems are worth sharing.

Today, one of our lawyers received a voice-mail.  The homeowner’s blistering message about the substance of his beef with the association ended like this:

“I don’t know you, but I don’t like you!”

Ouch.  Thankfully, the ethical rules for attorneys that obligate us to be fair when dealing with opposing parties do not also require us to be likable.  We would be in trouble all the time.

My days are spent with lawyers.  We are fortunate to have a growing and healthy practice and the lawyers I work with everyday are (for the most part and on most days) a true joy.  From the zealous and energetic “newbie” attorney to the wise and experienced (not old) counselor, I am happy to have been in this place for the last 7 years.  The facts of the cases are never boring.  The clients’ problems are always challenging.  But it is the people I work with every day that make all the difference.

But my legal practice did not start out that way.  Like many who are experiencing the tumult of today’s legal market, my entrance into the profession in the middle 1990s was far from financially robust and vocationally satisfying.  Mine was a small firm life and I bounced around between three different firms.  At one brief moment I was the lone associate for six partners.  Later I was alone with one partner who also was a fast food franchisee.  Bouncing between litigator and burger mogul, the law for me was indeed a wicked and elusive mistress.  Most days it felt like she humored and cajoled me as she would an annoying little brother.

Then, I was let go and for almost six months of great uncertainty for me, my wife and my two little boys, I searched for a new job.  I had a temporary job helping people sign mortgage refinancing documents (make sure you are a notary, it’s a good certificate to have when the bar card won’t work).  I wrote a few wills and estate planning documents for friends that knew we needed to eat.  I had countless interviews and had countless rejection letters that I three-hole punched and filed away in my “unemployment” binder.

Finally, I had an offer and a job.  With two years of lawyer and burger-ing as my experience, I was still so green.  But I was also eager to be back at work.  This job opened up a new area, a new client base and allowed me to learn and practice something that I knew I could love.  Unfortunately, the office atmosphere was abysmal and my new boss had a silent and years-long partnership with the Lord of the Legal Underworld.  Misery ensued (I’ll save those special memories for other Musings).

But misery truly does love company and in those two years of working for the spawn of Satan (Oh how I wished it simply could have been “the man”), I fell in love with my practice area and got to work with some great lawyers and more importantly, some great people.

In those years of floundering and catching fiery fallout, I learned a few things.  The legal skills and legal knowledge I gleaned are important and my bread and butter these days.  But what you really need to learn about the law and your love of the profession has nothing to do with writing skills or oral advocacy, but the quality of relationships you have with others.  I have said many times before that the most mundane and repetitive legal work is palatable when you work with people you like.   So, in these challenging and uncertain times for many lawyers, here are a few key pieces of advice as you search for that place to land.  From BIG firms to a government assignment, from small firm life to an in-house gig, I hope some of this helps you as it has helped me.

1.   Be Patient -  Law school took you three, long years.  Finding a place, a people and a practice that you love may take just as long, if not longer.

2.   Be Flexible - The law is always stretching us but dealing with people stretches us more.  The most miserable lawyers I know are not willing to adapt and change.  They are opposed to new methods, new faces and new ideas.  They not only are reluctant to compromise cases but they are recalcitrant about their lives, their relationships and in how they treat people.  You also never know when you might have to be a mobile notary for three months just to feed your family.

3.   Be Reliable – I’m a preacher’s kid and my Dad always used to talk about his favorite parishioners as the ones who were FAT – faithful, available and teachable.  That’s what being reliable is all about.  Don’t try to know the most, write the best or argue the hardest right out of the gate.  Over the long haul in this vocation, it’s your reliability that will be invaluable to the firm.   You’re smart and you can learn the law.  You have skills and they will get better with practice.  But being reliable when called upon has nothing to do with brains and everything to do with character.  As an employer of 10 lawyers and almost 50 support staff, I’ll take the FAT employee over the brilliant legal mind every day of the week.

4.   Be a Friend (not just a referral source) – It’s trite and rather elementary, but building relationships with other lawyers always pays off over time.  Burned bridges, hurt feelings and unfriendly adversarial situations only hurt you, the other lawyer and on occasion, they can hurt our clients.  Our attorney hubris and want to win hurts our relationships and make us less effective in the office, in a case and in life.   And be a friend to the other professionals and staff you work with – your paralegal, your assistant, the expert witness, the process server.  For when you find yourself lost and alone on that career path leading you nowhere, these friendships and connections are invaluable.  My friends have names and all were so helpful along the way – Maura.   John.  Theresa.  Bobbie.  Steve.  Mike.  Nils.  Adam.  Bill.  Jim.   My wife.  Be a friend and get some friends and your legal career will be fuller and richer for it.

Your legal Shangri-La may seem out of reach, but it needn’t be that fantastical and far away.  Just hang in there, let these challenges and the bumps along the road stretch you.  Don’t do it alone and be more concerned with your attitude than your aptitude.  Now, get back to work.

Excuse me while I step in it, but what’s the deal with Roberts Rules of Order?  I am regularly asked that question and often times in meetings board members and homeowners look to me for parliamentary citations.

I’m a lawyer, not a parliamentarian, and as legalities go in the HOA/Condo world, there are few statutes or laws that require HOA and Condo boards to follow the Rules (notice the royal capital “R”) or any special meeting procedure. There are even fewer CC&Rs and bylaws that even mention the late great Major Henry Martyn Robert, III.

Arizona’s state laws and regulations do require proper notice and do allow homeowner participation at board meetings, and HOA and Condo CC&Rs and bylaws do sometimes require certain meeting procedures.  But rare are the documents that actually mandate that a board use Roberts Rules when conducting regular board meetings.   Therefore, in most communities, the religious use of Roberts Rules becomes a hindrance, not a help, when conducting productive, orderly and legal meetings.

Don’t misunderstand, conducting meetings in an orderly manner is essential to good association governance.  But parliamentary zealots and boards who buy into the good book are what make some association meetings unbearably long, unproductive, and boring.  Here are a couple of salient points about why I always encourage orderly meetings but think that Robert’s Rules may not really be helpful at regular meetings of an HOA/Condo board.

1.    Robert’s Rules were not really written for a small assembly of 3, 5 or 7 board members.  Other than the annual or special membership meeting, most association meetings happen at the board level.  Oftentimes, there are only a handful of homeowners in attendance.  Even when there are hundreds at a board meeting, the board meeting is still a small assembly as only the board may vote (some state laws allow member comment and participation).  Even Robert’s Rules recognize the need to relax the Rules in smaller assemblies.

2.  Let the Board President vote already.  In large assemblies, Robert’s Rules make it clear that the presiding officer must appear impartial and vote only if there assembly is divided on a decision.  This isn’t the United States Senate or corporate shareholder meeting,  and in HOAs and Condos, a board president is a director and an officer.  The bylaws may require the board president to conduct the meetings, but I would argue that board president  who does not vote is teetering on a breaching of duty to the association.  At the very least, the board president that won’t commit to voice her vote has violated the trust and confidence of her neighbors  who voted for her.

3.  Robert’s Rules do not trump the Bylaws.  In Arizona, the law recognizes that bylaws are a contract.  If the bylaws are silent about using Roberts Rules, Roberts Rules cannot be used to “suspend” or otherwise alter association’s bylaws on issues related to voting, board vacancies and proxies.  And, watch out for the fervent parliamentarian that pushes Robert’s procedures and ignores state laws.  In Arizona, for example, there is no longer proxy voting in planned community and condominium elections.  Robert’s Rules cannot be used to override state legislative action.

Doing away with Robert’s Rules and conducting a meeting in an orderly manner should be the key.  Good preparation (making an agenda), good communication, compliance with the law, and having one board member preside over the discussion should be sufficient for the board to have good deliberation and to make good decisions.  An HOA or Condo board of three shouldn’t need a 208 page book to discuss and vote on a $500 landscape irrigation system repair.

Blog entry adjourned.

By. J. Roger Wood
Carpenter Hazlewood Delgado & Wood, PLC

We see it all.  When it comes to folks unhappy with their HOA or Condo Association, we know all flavors of shenanigans.  Some write letters.  Some buy 200 parakeets and house them in the condo.  Some people mail feces in a box to the association attorney and the local justice of the peace (wait for a future post about that one).  Still others organize B0ard recalls to bolster member support and they oust the directors.  There are even a few that hire lawyers (or don’t hire lawyers) and file lawsuits.

I was scanning the newspaper this week looking for our firm’s advertisement about an educational seminar in Tucson, March 9 and I stumbled upon this small, but interesting advertisement.

HOA conspiracy theorists and stalwart CAI party-liners alike can enjoy this bit of anti-HOA propaganda.  For my part, I read it, scratched my head and went, “Huh?”.

The advertisement is commendable in that it does not defame or slander anyone or any organization.  There seems to be a passionate concern about association expenditures and the high cost of the assessment, both in dollars and cents and in the impact on the membership.

But the cryptic language and veiled identity (ies) of the DOCD takes the ad to another level.  Who is DOCD (and where is Maxwell Smart when we need him)?  Where can someone who shares a similar disdain for paying assessments join up?  What if I am not that sick, but just deal with seasonal post nasal drip – can I get my assessment obligation canceled?

We see these slings and arrows hurled at our Association clients (and often at us) with regularity.  But we also see these cryptic messages are of little value to the community. In Arizona, deed restrictions are a binding contract. They do run with the land.  The law in Arizona states that any owner (and any potential owner) has record notice of those restrictions if they are properly recorded.  Arizona statutes cap annual assessment increases (without a vote of the membership) at 20%, and boards do enjoy some discretion about how to spend those assessment dollars.  The ad pushes against all of those legalities, but is short on practical ideas for changing the community.

So, today’s free advice for any and all association members with an issue, an axe or an anonymous cryptic advertisement to grind: join a committee, vote at the annual meeting,  pay your assessments, read your community’s governing documents, and go to a board meeting once in a while.  If the issues are serious, call a lawyer, get neighbor support to make a change and just get involved!   But please stop wasting your money on creepy newspaper adverts and don’t overnight me anymore poo!

There was an incredibly interesting story on National Public Radio last week.  Our nation’s turbulent history of racial segregation and is not as far back in our past as we all want to believe.  This is certainly true of racial and ethnic discrimination in housing transactions.  The story not only reminds us of the failings of our past, but spins into a modern day fair housing dispute.  While few of our clients deal with direct discrimination such as  deed restrictions that prohibit ownership or occupancy based on race, fair housing concerns are chief among the discussions we try to have with our Association clients.  For this reason, I thought this story particularly instructive for both its historical remembrances and lessons for today.

In this particular situation, an historic community called Myers Park, located in Charlotte, North Carolina has one of those fair housing situations on its hands.  The controversy has to do with the original deed restrictions placed on these properties back in the early part of the last century.  In addition to the park-like look and feel the original restrictions hoped to protect, these early restrictions also included a prohibition on the sale to or occupancy by people of certain races.    The original deed language, now nearly 100 years old, requires that Myers Park properties “be used for residential purposes only and shall be owned and occupied by people of the Caucasian race.“  Given the social and political situation in pre-civil rights era America, we shouldn’t be surprised about these kinds of restrictions.  But what may be surprising to some of us is that these deed restrictions continue to exist in their original form, even though civil rights laws and the courts have long ago deemed such restrictions unenforceable.

The story does well to discuss the argument to remove such void and obviously socially abhorrent language from  restrictions.  There are smarter folks than I that are studying and researching these kinds of property restrictions.  For the sake of the legacy we will leave to our children and grandchildren, we all need to be aware of the horrible injustices visited upon Americans of different races and ethnic backgrounds.  This was not a pleasant part of our history, but the NPR story and the related research by a Seattle Washington historian are important public discourse.

As if the issue of the discriminatory restrictions were not challenging enough, one phrase in the story stuck out at me as a warning for all HOA and Condo boards.  Obviously this beautiful community cares about how owners maintain these beautiful homes, but the story about a nice community with a challenging history is now a current legal controversy.  For decades, owners and others were aware of the unenforceable deed restrictions, but the void language “wasn’t even an issue until the homeowners association posted a sample deed on its Web site that included the racial wording.”

Boards, Managers, Homeowners, Landlords, Realtors, Title Officers and anyone dealing with Real Property – Fair housing issues are not the stuff of yesteryear.  These claims and issues are real.  The law cares little of your intent.  Here, I have no doubt this board only hoped to have all the neighbors better understand the valid and enforceable recorded restrictions.  The Board’s intent here was to continue to keep the community look-and-feel at the required standards.  The Board wanted to keep values high and the Association members well-informed.

But, fair housing disputes are rarely about intentional discrimination.  Government agencies that enforce the laws and the plaintiff’s attorneys assisting effected homeowners need only to argue the impact of the board’s actions.  Very few clients that talk to us about fair housing claims likely have such an intent, and those that do can easily hide it.  Long is the meeting and difficult the solutions when a well-intentioned board has acted in a way to impact and implicate a fair housing issue.  These cases open the Board to much liability and can cost much in time, attorneys’ fees and in some cases sanctions for board members, community managers and association employees.

And the legal battle at Myers Park rages on. We will watch and we will continue to advise and warn our clients about the trials and travails of fair housing complaints. The lesson is that a simple web-page post can turn into a fair housing problem and unwanted national media attention.

In the end, perhaps Dr. King said it best -

Many of the ugly pages of American history have been obscured and forgotten….America owes a debt of justice which it has only begun to pay. If it loses the will to finish or slackens in its determination, history will recall its crimes and the country that would be great will lack the most indispensable element of greatness –justice.     – Dr. Martin Luther King, Jr., 1967

Jason Smith, one of the Carpenter Hazlewood attorneys and fair housing issue guru, assisted in preparing and editing this entry. Thanks, Jason.

I’m finishing a day at this year’s CAI Law Seminar in windy Tucson, Arizona.  It’s an interesting meeting every year and this year is no exception.  Here are a few highlights of the HOT TOPICS HOA/Condo lawyers from around the country are discussing today:

1.  The unauthorized practice of law
This is a controversial topic and attorneys are always worried when non-lawyers move into the realm of our existing attorney/client relationships.  In almost all of the states, there are possible criminal sanctions for this conduct.  In Arizona, not so much and our UPL rules are enforced by our judicial branch of government.  You can download a law review article that helps explain the UPL history in Arizona, but the seminar discussion is about the future.  Will 2010 be a year that state regulations catch up to these non-lawyer practitioners?

2. Banks acting too slowly in the foreclosure process
This leaves Associations in the lurch – the homeowners have long stopped paying assessments, they stop caring for the property, but the bank has not foreclosed on its mortgage lien.  In some states, attorneys have been successful (and others have made valiant attempts but failed) to push the mortgage holder to act (and/or pay assessments) based on a theory of equity.  Essentially, the bank’s decision not to finalize the foreclosure of its loan is unfair to the Association.  Stay tuned, this may be an interesting arguement that will pop up in the near future with a higher frequency.

My favorite state specific collection tool in this regard is the Illinois procedure that allows an Association to evict any homeowner for the non-payment of assessments.  It’s not like foreclosure because the homeowner still owns the unit, but loses possession.

3.  The national case law trends for 2009
The case law on HOA and condo issues isn’t really trending in any direction.  The cases are all over the place and there are wacky decisions that disregard the law and there have been some solid opinions that have and will continue to advance many HOA/Condo precedents.  My favorite quote today was from a Texas case: “just as a door is not a wall, a fence is not a gate.”

More to come on Day 2.

Why Following Statutes that Govern Community Associations is a Good Idea

Arizona has some curious HOA and condo laws. But one of the most perplexing aspects of our condominium and planned community acts is that some of the statutory prohibitions or obligations have no corresponding penalty or sanction for non-compliance. This drives community managers, board members and homeowners a bit bonkers at times. A savvy board member looking for a loop-hole will often ask, “If there’s no penalty for holding closed board meetings, then why do we have to worry about compliance with the law?”

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Mistakes and misdirection are common in community association life. All board members are human and err.  Management does not always have the right answer. Even Association lawyers can get it wrong and give bad advice. These missteps and poor decisions of one board are often embraced by the next. Bad decisions become bad habits and an incorrect interpretation of a CC&R provision or ignorance of an important association law can continue for years.

But our advice to associations and their boards of directors is that it’s never too late to do the right thing.  This seems so simple, but so many boards and community managers are frozen with fear when they discover that years of board decisions and practice were not in compliance with a statute or the governing documents.

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There’s a new disease out there. This sickness ignores socio-economic status and geographic boundaries and seems to infect many HOA Board members and community managers alike. Your Association might already be infected.

This new sickness is market driven. As associations struggle financially to pay landscapers and save for big-ticket rainy day projects, Enforcement-Phobia is spreading. In addition to roots in the financial crisis, there are political indications of the phobia as well. Boards and managers are all too concerned about what owners in violation might think or do. Along with the financial pinch and the political push, there are also strong misperceptions that enforcing the express terms of a community’s governing documents is bad for community. And the cancer of non-compliance spreads…

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