Attorney Represents Association Board, Not the Homeowners

Article excerpt

Q. I am a unit owner in a homeowner's association. The association's attorney attended a board meeting to discuss several issues with the board. During a homeowner's forum, I asked the attorney a question, but he stated he could not answer it because it would violate the attorney/client privilege. As a member of the association, and as a person who pays assessments that pay the attorney's fees, wasn't I entitled to an answer from the attorney?

A. The attorney for the association represents the association through its board of directors; the "control group." The attorney does not represent individual owners, and the owners are not part of the control group that should include the board and management. In fact the association's legal interests are frequently adverse to the interests of individual owners. This occurs, for example, when an owner violates the association's declaration or rules, or doesn't pay assessments.

Communication between an attorney and the board is covered by the attorney/client privilege. Discussion with the owners about a privileged matter would waive the privilege, and that is seldom a good idea. The attorney was correct in declining to respond to an owner's question if the subject was protected by the attorney/client privilege.

Q. The tenant of a unit owner of a condominium in our association was clearly captured on a security camera video taking packages of other residents from our mail area. What action can the board take against the tenant?

A. The actions of the tenant can constitute the civil act of "conversion" and the criminal act of "theft." The board can terminate the lease between the owner and the tenant, on ten days written notice, if the tenant has violated the association's declaration or rules. The alleged conduct here would violate a commonly found provision of a declaration that prohibits anyone from engaging in noxious or offensive conduct, or conduct that violates the law.

Before issuing the notice of termination of the lease, I would suggest the board provide both the owner and the tenant with written notice of the violation, and provide them with an opportunity for a hearing. If, after the hearing, the board finds the violation did occur, the board could then issue the ten-day notice of lease termination. …