Monday, December 5, 2011

Not all association information is created equal

Recently I came across a few topics for community associations published online and in print which were at worst legally incorrect and at best simply misleading.

It seems that most papers these days have condo and HOA columnists, online blogs abound and a new "expert" pops up every other month. Just how much of the information being blasted out there, however, is completely accurate?

A few weeks ago, an association columnist in a Florida paper answered a question from a reader who wanted to know if the members could cancel a reconstruction contract entered into by the board. The columnist answered firmly and affirmatively that the membership could indeed cancel such contract by a majority vote of the voting interests present at the next regular or special meeting of the association. The columnist even cited the particular statutory provision on which he relied. All of this to the average reader would be enough to undertake the vote to cancel the reconstruction contract. The only problem? The statutory provision cited was a subsection of a paragraph dealing with bulk cable contracts. While the columnist's advice was spot on regarding cancellation of a bulk cable contract, it was not applicable to other types of contracts such as the reconstruction contract referenced by the reader.

Most folks agree that requiring directors to be certified in some fashion to serve on their boards and undertake all of the tasks necessary to properly administer and operate a community on behalf of the residents, is a worthy goal. In fact, my group, the Community Advocacy Network (CAN) has included language in HB 319 to add the current certification requirements for condominium directors to the HOA and Cooperative Acts as well.

The current statutory condominium certification requirement can be fulfilled one of two ways: sign a certification or attend a Division-approved education class. In addition to classes provided by the Division and the Ombudsman's Office, the private sector has stepped up by providing a plethora of free classes in a variety of formats and venues. The problem this time? Some providers of these classes are not informing people that the classes are not mandatory. In fact, a newly elected or appointed condominium director (and soon HOA and Cooperative directors) can fulfill his or her statutory certification by signing a certification attesting that he or she "has read the association's declaration of condominium, articles of incorporation, bylaws and current written policies; that he or she will work to uphold such documents and policies to the best of his or her ability and that he or she will faithfully discharge his or her fiduciary responsibility to the association's members."

Whether you believe that signing this certification is meaningful or simply a waste of time, it is the law in its current form and any advice or representation regarding this requirement should cite to the current law, not wishful thinking.

The third item that made me look twice? One of the association educational providers citing in promotional materials that condominium directors must read "the statute" in addition to the association's governing documents and attest to reading same in the signed certification. In fact, when the certification language was first drafted a few years back, having to read the statute was originally in there but that language was removed from the bill before it was passed.

So what does all this mean to you? Well, advice given in blogs, online, on the radio, etc. is not all created equal. Moreover, since it is "general in nature" and comes with the standard disclaimer of such, you will probably have no recourse if you follow it to your detriment. This is why the tried and true attorney-client relationship provides you with perhaps the most comfort when it comes to relying on advice.

Does this mean your attorney will never make a mistake? No it doesn't. We all err from time to time. However, you have a lot better shot at proving you acted reasonably as a director if you do make a mistep by saying you followed your attorney's advice in writing as opposed to saying you read it in the paper or online somewhere!

1 comment:

  1. Here, here! Thanks, Donna. I'll add a bit of a wrinkle. There is some information that may be "right" but its author or slant may lead the homeowner, board member or manager astray. As lawyers, our language and words appear authoritative. But sometimes, those words are more persuasive than factual. Sometimes the facts are spun. I think as lawyers we know how to read the subtext of a blog post or an online article, but it can leave owners, board members and managers confused. From my perspective, there is much written from the HOA side of things and I believe homeowners are led down some primrose path to information that does not actually answer their concerns. It isn't that the information isn't right, it's just written for a different audience. Thanks for posting this.