The attorneys are a central part of the overall process in the community association industry because, as we all know, an organized and civilized society with laws and court rulings requires licensed and trained professionals to help community association members navigate through them. So how are the attorneys superheroes? What special powers do they possess that qualifies them for this elevated status? Here are some examples:


THEY PROTECT COMMUNITY ASSOCIATION’S FROM THE “PROFESSIONALS”


Board members deal with vendors and contractors every year, negotiating price, terms and conditions of the various products and services being offered. This can include items such as garbage removal, landscaping, routine property maintenance, pool services, insurance, property management agreements, insurance and more. Board members also engage in agreements that can have larger financial implications such as major common element repair and replacement projects.


In the majority of these examples, the board members are negotiating with professional business owners whose primary function each day is operating their business with the goal of making a profit while reducing risk in as many areas as possible. As such, these professionals are likely using contracts that have been prepared or at least reviewed by their own legal counsel in a format that protects their business and financial interests. Afterall, having an attorney prepare and review a contract is a common and prudent practice in any business-to-business arrangement. Yet all too often, board members enter into legal agreements without their own attorney reviewing the contracts they are signing.


I had one contractor tell me he often experiences situations where he presents the contract to the board members at their scheduled meeting. A cursory review then takes place, and the contract is signed without any attorney review. While contracts can range in length based on the complexity of the transaction, the important takeaway is that once it is signed there are expectations of performance and potential consequences should one or both parties not perform. The terms are typically binding on both parties and if the contract is written to favor one party over the other, a “buyer’s remorse” argument may not have much merit should a dispute end up being argued in court.


Community associations are not-for-profit by design and overseen by a board comprised of volunteers who are elected by the owners of the units within the association. These volunteer board members often come from a variety of backgrounds which may or may not qualify them to adequately review and negotiate a contract. If you are a board member, are you signing contracts without the guidance of your superhero-attorney to review it and protect


18 | COMMON INTEREST®


your community’s interests? Having a superhero such as your outside legal counsel review any contract can help to reduce risk, eliminate unwanted surprises, and ensure both parties are bound to perform as agreed in the discussion phase of the project.


THEY PROTECT BOARD MEMBERS FROM UNIT OWNERS


This heading may raise some eyebrows as, after all, we know that board members have a fiduciary duty to act in the best interest and for the benefit of the unit owners. However, there are situations that arise on a regular basis whereby a unit owner challenges the current and/or past actions of the board. The most common scenario I have seen is when a new owner acquires a unit and then begins the process of questioning decisions the board has taken over the past number of years. The spark for this type of situation is usually a disagreement about recent increases in the operating assessment level or perhaps a larger special assessment that is being considered. Other reasons include common elements perceived to be in disrepair such as roofs, windows, parking lots, balconies and staircases.


While board members are charged with properly maintaining the common elements, the condition of those common elements and the progress being made toward identifying and paying for the repairs is not always looked at through the same lens. Board members can work for months and years toward a specific repair depending on its complexity, getting engineering reports, bids and financing options in place all while conducting meetings in a perfectly legal manner according to the governing documents. It only takes one unit owner with a willing attorney to file suit and put the board in a position to defend their actions. Even the most organized board with spotless meeting minutes will tell you that a superhero-attorney is the greatest asset against a unit owner who decides to file legal action.


While the superheroes in the movies don’t typically leave behind an invoice for their services, the attorneys we retain to function as superheroes for us do not usually work for free. The cost of paying your attorney to help guide the board on how to properly take meeting minutes, pass motions, properly apply the governing documents and address unit owner complaints can save the association multiple times more in expenses and headaches.


• Spring 2024 • A Publication of CAI-Illinois Chapter


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