An Interview with Community Association Lawyer Brendan Bunn, Esq.
- Posted on May 9, 2012
Condominiums, cooperatives, and homeowners associations rely heavily on professionals from various backgrounds to maintain their property. An integral part of any association’s team is a capable and professional community association law firm. Sabrina Hamm, owner of The Professional Documents Service, spoke with Attorney Brendan Bunn of the law firm Chadwick, Washington, Moriarty, Elmore & Bunn, P.C. to ask a few questions about the difference between condos, cooperatives, and HOAs; how an experienced firm can help with difficult situations like litigation, collections, and developer transitions; and bad habits that associations should cease immediately to avoid potential legal problems. 
PDS: For those who may be unsure, what’s the purpose or role of a community association law firm?
BUNN: An association law firm is there, in my view, to provide three main services to their clients. One is what I call “general counseling”, which is the Board or manager will have any number of questions regarding any number of different legal issues that will come up, whether it’s reviewing a contract, interpreting the bylaws, or helping to draft rules. Those are all things that the association needs counsel for. So number one is what I call “general counseling”. Number two would be litigation; the association needs to sue somebody or they’re getting sued by somebody and they need representation in court. And I guess the third one – I’ll group it together – is in the area of collections, because I think most association law firms assist associations in collecting assessments from delinquent owners, and that’s another important role that a law firm plays for an association.
PDS: Okay, great! When an association is looking for a law firm to represent them, what qualities should they look for?
BUNN: I’d say three different things. Number one would be focused representation by that firm in this practice area. It’s a practice area that’s very hard to dabble in because it has many edges to it; many statutory overlays. I think you need a lot of experience working with community associations to counsel them well, so I’d say a firm that has . . . that focuses their practice on this and has depth in that regard. Secondly, you’d want responsiveness because associations have ongoing issues all the time, and sometimes you need your lawyer to get back with you quickly on something. If you have an emergency, you want a firm that will be responsive and quick in getting back to you. And then finally, not to be underrated, I think it’s got to be a pretty good personality match between a lawyer and their client. They need a lawyer that is able to understand the psyche and the personality of the Board members and the community in general; because when you’re explaining complex legal issues, you need to be able to relate to them as people as well.
PDS: That makes a lot of sense. So when you’re considering condominiums, cooperatives, and homeowners associations, do they each have specific needs when it comes to retaining legal representation?
BUNN: Oh no, all those are different from each other. Condominiums are more regulated from a statutory perspective. There’s just more law on the books that associations have to contend with, and that makes them innately a little more complex than representing an HOA, for example. And then also condominiums have people living in closer quarters than HOAs, which brings a whole different kind of legal issue among the owners than the Board has to contend with. So that’s a little different from HOAs, which are usually either townhome communities or single families. The owners are more spread out and they’re a little less regulated from the perspective of the statutes that apply to them. And then co-ops are a completely different kind of legal structure from the other two. They’re a much older kind of setup and actually can be far more complex just because of the legal manner in which they’re set up. So yeah, all three are kind of different from each other.
PDS: I knew the three (condominiums, cooperatives, and homeowners associations) were different, but I didn’t know it made your job different in terms of the things you do for them.
BUNN: Definitely. But it’s not hard to work with all three because at some level, all are similar, too. They all have a Board. They’re all trying to deal with owners who are living in the community. So that part’s all the same, but just the way that the law looks at them can be different.
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PDS: Okay. How can an experienced community association law firm help with difficult situations like litigation, collections, and developer transitions?
BUNN: Well if you’re an experienced firm, then you just have exposure to more situations. For example, a second-year condo lawyer versus a 25-year condo lawyer – they just have a whole different set of experiences from which they can draw on when counseling. I think the longer you do this, the more situations you see, the more options you think of and more approaches you think of that might work for a client. There’s no substitute for experience. I mean you can have all the good book learning that you want; but unless you spend a few years actually in the trenches in this kind of practice area, you aren’t going to think of the kind of real world type of options that are available to your client as they deal with tough legal issues.
PDS: Now, since we’re a minutes provider, I can’t resist getting your opinion about this. Do you find any benefit to an association using an outside, professional meeting minutes service versus having an in-house Board member, manager, or volunteer handle the minutes?
BUNN: Well, I would strongly suggest that associations consider professional minutes takers, and the reason is there are a lot of minutes out there that are done by volunteers that, although the volunteer is trying hard, they simply don’t have the experience to do good, professional minutes. And from the perspective of a lawyer who represents an association, the minutes of the meeting can become incredibly important in a lawsuit situation. And because they represent the corporate record that’s kept of Board decisions, those minutes need to be done properly; they need to be done promptly; they need to be done well. They’re not supposed to be a transcript of everything that was said at the meeting. They’re supposed to be a logical and accessible record of what was decided at the meeting. So I think it’s very important that associations consider getting a professional if they don’t have an able volunteer.
PDS: Are you aware of any “bad habits” associations commit that you would advise them to change to avoid legal problems and other issues?
BUNN: I’d name a couple. I’d say unfocused meetings; the meetings that go on way too long because the Board doesn’t very carefully plan the meeting, and maybe the President doesn’t keep a grip and control of a meeting the way it should be. I just see sometimes meetings become free-for-alls with owners being involved in addition to Board members; and the result of that is the Board, I don’t think, has the best, most focused discussion of the issues they need to be deciding. And then also when you have longer meetings like that, there’s a burnout effect where the Board members . . . it takes a lot of toll on them individually and personally so that sometimes you have very good volunteers who get burned out by that situation and that tendency to have bad meetings.
The other thing I’d say is sometimes there’s a tendency for Boards to not bring in the experts they need to counsel them on things. I’m not talking about lawyers or minutes takers. I mean sometimes they need expert advice that might be they need an engineer, or an accountant, or a banker, or an investment advisor in addition to the usual things like lawyers. And sometimes there’s a hesitancy to do that because of the cost that’s involved. But Boards need to understand that they’re making important business decisions as fiduciaries on behalf of other people, so they really need to put themselves in the best position to make the best decisions. Sometimes that involves getting expert advice.
The other thing I can think of would be not staying on top of the latest developments in the industry. There are a lot of things that are constantly changing in our business, be it changes in the laws themselves, or the court cases that come out, or changes in the insurance industry regarding associations. It’s sometimes hard to track all of that, but that’s why you have organizations like CAI (Community Associations Institute) and you have seminars put on by different law firms and management companies. All these things are meant to help educate and keep Board members up-to-date on what’s happening. It’s better that you stay ahead of the curve rather than be blindsided by some issue that, if you had kept up, maybe you would have found out about it in advance.
I’d say those are the top three things I can think of.
PDS: Thank you for your time.
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