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.
Do not let that fear paralyze you or your association. If the previous board did not follow the open meeting statutes, start following the open meeting laws today. If the previous board did not uniformly enforce the trash can restrictions, send out notices to offending homeowners today. If the previous board members routinely resisted transparency in the association’s financial dealings, start fresh by properly responding to an owner’s request for records.
Now, some greater legal minds in HOA/Condo representation will correctly counsel clients about legal defenses like waiver and laches. These are critically important theories that ultimately may impact an Association’s case for assessments or when enforcing the governing documents in front of a judge. Past bad habits or unlawful practices may expose the Association to legal liability. Other HOA practitioners get nervous advising clients about making admissions of those prior bad decisions or acts. Do not misunderstand; doing the right thing does not eliminate these possible risks of the wrongs of yesterday. But in our opinion, those risks of yesteday are less risky than ignoring legal advice and continuing in knowing non-compliance of the law and the documents.
Good communities and associations comply with the law and follow their own documents. But even in these associations, missteps happen and become habit.
Great communities and associations get good advice, measure the risk of past bad decisions and rightly move forward in compliance. It’s never too late for your community to do the right thing!
Axioms of Good Association Governance will be a continuing theme here on our blog. More will follow, so stay logged in for Axiom #2 – You Don’t Know What You Don’t Know.