While the term “HOA attorney” (or for that matter, “HOA lawyer”) is neither an official designation from any governing body or organization, nor a recognized area of specialty requiring additional education, testing, and licensing (as the case with a patent or estate planning attorney), some attorneys who are intimately familiar with California’s expansive HOA laws use that term to differentiate themselves from other, more generalized “real estate attorneys.” Put simply, an HOA attorney is a lawyer whose primary practice focus is representing individual homeowners and/or HOAs (although I include the word “and” here, it’s unlikely that an HOA attorney will represent both homeowners and HOAs because of the conflicts of interest that would arise). Typically, therefore, you’ll likely see HOA attorneys represent either homeowners or HOAs, but not both. Our firm, Kushner Carlson, PC, represents homeowners in all manner of disputes involving HOAs.
Now, as I said above, describing oneself as an “HOA attorney” doesn’t require any special licensing or education. That means that any lawyer licensed to practice law in California can call him/herself an “HOA attorney.” So, because all lawyers can adopt the term for themselves, homeowners who are actually in need of an HOA attorney have to have a way of separating the wheat from the chaff. They have to be able to differentiate between true HOA attorneys—those of us with substantial knowledge and experience of the laws governing HOAs, as well as understanding of the kind of disputes that occur most frequently—and the more general practitioners who have merely adopted that moniker, but whom otherwise lack the necessary experience and expertise.
Let’s start with the governing law.
Governing Law/Governing HOAs
HOAs in California are largely governed by the Davis-Stirling Act, a series of statutes located in the Civil Code (although there are sections of other laws, such as those found in the Corporations Code, that also apply to HOAs). The Davis-Stirling Act not only lays out the ground rules regarding how HOAs may be formed, governed, and dissolved, but the Act also establishes requirements that must be met before a party may sue or be entitled to an award of attorneys’ fees and costs.
Likewise, each HOA in California is further governed by its own set of “governing documents,” the most important of which is the Covenants, Conditions, and Restrictions (“CC&Rs”). The CC&Rs describe not only the rights and obligations that each member (i.e., homeowner) owes to the other members of the HOA, but also the mutual rights and obligations between the other homeowners and the HOA itself. An HOA’s CC&Rs are, therefore, intended to address a wide scope of governance type issues ranging from the maintenance of the common areas and property use restrictions (e.g., setbacks, view rights, neighborhood “character,” architectural guidelines, etc.), to enforcement powers, the raising and spending of revenues (e.g., assessments), and dispute resolution. There are other governing documents (e.g., articles, bylaws, etc., rules & regulations, etc.) that an HOA attorney must also be familiar with, but it’s not necessary for purposes of this blog to go into too much detail about those documents.
In addition, like all corporations that you’re probably familiar with, an HOA is governed by a board of directors elected by its members. And just like other corporations, the board of directors of an HOA is responsible for managing its affairs and conducting the association’s business. To accomplish the task of managing and conducting the affairs and business of an HOA, its board of directors typically enjoys many of the same powers that any corporation’s board of directors enjoys, such as:
• Creating committees and appointing people to sit on those committees.
• Calling and running membership meetings.
• Setting elections and selecting election inspectors.
• Adopting and enforcing architectural guidelines and rules.
• Filing lawsuits to protect the HOA’s rights.
• Defending against lawsuits filed against the HOA.
• Entering into contracts (with, for example, vendors, contractors, management companies, etc.).
• Hiring employees (e.g., handymen, landscapers, etc.).
• Hiring accountants, attorneys, architects, and other professionals to guide the board.
• Levying and collecting assessments.
• Maintaining, improving, and/or repairing the HOA’s common areas.
• Preparing and managing budgets.
Because an HOA’s board of directors is tasked with so many important obligations, the law also imposes on the board, as well as on each individual board member (also called a director), a heightened duty of care and loyalty, often referred to as a “fiduciary duty.” This fiduciary duty requires an HOA’s board of directors to act reasonably in carrying out the affairs of the association. An HOA’s board of directors must also treat all members of the HOAs fairly (i.e., an HOA can’t enforce certain rules against certain HOA members, but not others), without showing favoritism to certain members (e.g., to directors sitting on the board).
Given the sheer volume of specific laws aimed at HOA governance/disputes in California, it stands to reason that a “real” HOA attorney must not only be intimately familiar with the substance, requirements, and rights contained in the Davis-Stirling Act (which is an entire world unto itself), but a practiced HOA attorney must also have expertise in how California courts have interpreted that Act. In addition, an experienced HOA attorney will have a long history of reviewing CC&Rs, a keen understanding of various parts of the Corporations Code, and be experienced guiding clients through alternative dispute resolution (most commonly in the HOA context, mediation).
Needless to say, less knowledgeable attorneys who hold themselves out as “HOA attorneys” will very likely find themselves grossly outmatched and outgunned.