Evolving Laws Emphasize Need for Lawyer

Article excerpt

Byline: Jordan I. Shifrin

As an attorney representing associations for almost 25 years, each time I read a new Appellate Court decision which expands or defines the law, I am reminded why an association needs a lawyer.

A typical board, for example, consists of people with average or above intelligence who generally have a good understand the covenants, by-laws and rules and regulations of the association. They have a working knowledge of how the association operates and the scope of their fiduciary duty. They are advised by a professional property manager.

Even with this "intelligence", unless they take it upon themselves to research and review all of the case law being handed down in 50 separate state and Federal jurisdictions, plus local, state and Federal administrative agencies such as Human Rights Commissions, FCC, etc., they will still only have a small piece of the puzzle.

The most difficult concept for board members and property managers to accept is when they think they understand a complex legal concept and then, as an attorney, I advise them that they are incorrect because Smith v. Jones says such and such. The legal pecking order as sources of authority is: U.S. Supreme Court and Federal Appellate Court Decisions, Federal Statutes, Codes and Regulations, State Appellate Courts, State statutes and local codes and ordinances, declarations and by-laws, rules and regulations.

Here are some examples of cases, some recent and some older, which may change the conventional understanding of certain issues:

Forest Glen Community Homeowners Association v Bishof, Illinois Appellate Court, 2nd District, No. 2-99-1346, April 17, 2001. The Illinois Appellate Court held that in a case where the defendants refused to pay $489.70 in assessments, they were liable for the full amount plus 1.5 percent interest from the date of the assessment, court costs of $258.00 and attorneys fees of $6,107.00. Once a board properly establishes assessments, the owners are obligated to pay them and the owners owe the association reimbursement of attorneys fees and costs.

Here is an oldie, but a goodie... Wyms v. Conashaugh Lakes Community Association, Inc., 616 A2d 749, 1992. The Commonwealth Court of Pennsylvania held that proxy forms prepared and circulated by two members of an association were invalid for failure to comply with the bylaws which invested the board with the authority to provide proper proxy forms, to be sent with notice of each meeting, where the forms were not sent and there was a significant difference between the members' forms and the board's forms. …