Impairment of the Ideal to Counsel in Community Association Disputes

Introduction

Prior to 2013, there was uncertainty as to regardless of whether a community affiliation could exclude a house owner’s counsel from attending a meeting of the board of administrators, a committee conference (these types of as an architectural committee, fantastic committee, or rules committee), or from collaborating in an inner dispute resolution on behalf of the proprietor pursuant to Civil Code sections 5900-5920.

Some associations took the placement that, considering that associations were private organizations, participation was minimal to owners, precluding the owner’s lawyer from attending these events. Other associations acknowledged conditions this kind of as Damon v. Ocean Hills Journalism Club, 85 Cal. Application. 4th 468, 475 (2000) and Cabrera v. Alam, 197 Cal. App. 4th 1077, 1087 (2011), which maintain that an association is, in effect, a “quasi authorities entity paralleling in practically each and every case the powers, responsibilities, and duties of a municipal federal government,” and hence an owner’s counsel may possibly attend affiliation conferences.

Even now other associations took a middle ground, permitting the owner’s attorney to go to some but not all of these meetings. For example, an association might let an owner’s lawyer to attend a board assembly, but not a committee conference. A further affiliation may possibly make it possible for an owner’s attorney to attend a board conference or a committee meeting, but not participate in inner dispute resolution. In 2013, the position quo transformed with the selection of SB Liberty, LLC v. Isla Verde Ass’n, Inc., 217 Cal. App. 4th 272 (2013).

The SB Liberty Circumstance

In SB Liberty, a house owner grew to become involved in a dispute with the association about the association’s disapproval of the owner’s architectural ideas for renovating the owner’s residence. The proprietor offered its lawyer with a special electric power of attorney, which gave the lawyer the proper to go to and participate in the board’s meetings on its behalf as entirely and to all intents and reasons as principals could possibly do if individually present. SB Liberty, 217 Cal. App. 4th at 277. The distinctive electric power of attorney was signed by the operator, recorded with the County Recorder, and presented to the affiliation. The owner’s attorney then notified the affiliation of intent to attend the following board assembly. The affiliation refused to enable the owner’s lawyer to show up at the assembly.

The operator submitted a complaint versus the affiliation seeking, among the other matters, a required injunction to permit the owner’s lawyer to attend board conferences. The trial courtroom denied the motion for preliminary injunction, and the courtroom of charm affirmed. Id. at 274-75. The court docket of enchantment held that only customers of the association had been entitled to go to the board of directors meetings. Id. at 281. Due to the fact the owner’s lawyer was not a member of the association, the owner’s lawyer was not entitled to show up at or take part in the board of administrators meetings. Id. As to the specific ability of legal professional, the courtroom of appeal held that an operator is not permitted to transfer membership legal rights to an additional person, such as the suitable to show up at or participate in meetings of the board of directors. Id. at 283-84. The court of charm also held that a board of directors has the authority to figure out how to carry out its conferences, and is licensed to stop a non-member from attending and participating in all those conferences. Id. at 284. Last but not least, the court of charm held that the association’s refusal to allow the owner’s attorney to attend the meeting did not induce the operator any terrific or irreparable harm due to the fact there was no displaying that such exclusion interfered with the owner’s First Amendment or membership legal rights. Id.

Now, primarily based on SB Liberty, associations have the authority to reduce an owner’s lawyer from attending or participating in issues in advance of the association. This would include board of directors conferences, committee conferences, and interior dispute resolution conferences.

Recommendations for Reform

The California legislature ought to enact laws to overrule SB Liberty by a new statute specially stating that an owner in an affiliation may designate an legal professional to attend and take part in meetings in advance of the board of administrators or committees of the association, or interior dispute resolution proceedings.

Absent legislative reform, the only other option may be a different court docket situation that presents distinctive information or authorized arguments than all those in SB Liberty. This could be a situation where the proprietor is not bodily, intellectually, or emotionally capable to present his or her scenario to the board of directors. A different lawful argument may be based mostly on the association’s impairment of the owner’s appropriate to counsel in civil disputes.

Last but not least, footnote 11 in SB Liberty might present some relief to a house owner who desires to have counsel stand for him or her in affiliation conferences. In SB Liberty, the plaintiff was a limited liability company (“LLC”) and its supervisor was a single of the house entrepreneurs. Footnote 11 suggests that there may perhaps be a diverse outcome if a manager of the LLC was the owner’s lawyer:

We express no impression with regards to the problem-which is not introduced listed here-of no matter whether an lawyer appointed by an LLC member of the Association as the LLC’s manager would have the proper to look at the open periods of the Board’s conferences on behalf of the LLC as its agent. It is undisputed that attorney Lepiscopo was not a member or manager of SB Liberty.

Id. at 285 n.11.

Conclusion

It is well founded that even in civil disputes, a man or woman has a “fundamental” and “critical” proper to counsel of one’s decision. Taheri Regulation Team v. Evans, 160 Cal. Application. 4th 482, 491 (2008). In SB Liberty, the court’s selection appears to impair this ideal. SB Liberty really should not go on to be the regulation in California.

Copyrighted and printed with the authorization of Orange County Law firm

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