Can HOA boards represent their membership before public bodies?

I posted my comments to a LoudounTimes (VA) article about an HOA lobbying before a public body concerning construction of a hospital outside the HOA subdivision.  The article focused on allegations of an improper board vote and the composition of the board.

However, there is a much larger issue here, beyond the technicalities of the HOA management procedures and votes.  Does an HOA have the authority under the law or its governing documents to assert that it is the legal representative of the members to speak before public bodies?  I don’t think so, especially without a plebiscite from the HOA members. 

If the HOA speaks before a public entity, then isn’t the HOA a lobbyist and must so register with the state, subjecting itself to all legal requirements of lobbyists?

As the courts have reminded homeowners, as well as CAI, HOAs are contractual “businesses” subject to the business judgment rule, and are not public entities.  The election of an HOA director carries with it no powers to speak before public bodies on behalf of homeowners.  And while we are at it, it goes the same for the HOA attorneys and management firms who allege to the media, and at state legislative hearings, that they represent the people — the homeowners.

Government officials and legislators must bear this in mind the next time these organization claim to speak for their homeowners.


Published in: on November 20, 2008 at 7:31 am  Leave a Comment  

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