I just received a copy of a letter from a homeowner in which the HOA manager explains the rights of the homeowner under the CC&Rs. This is not an uncommon occurrence, where untrained and uneducated managers, even if they are a Certified Legal Document Preparer (independent paralegal), make such statements in response to a homeowner’s request “to know”. The average homeowner is not familiar with the law and usually doesn’t understand what the rules mean or say. And, obviously, the same goes for these HOA managers, including those with those CAI “certified” as to training designations — PCAM, AAMC, etc.
The manager, in defense of a board rule change, had misdirected the homeowner by quoting a section of the CC&Rs that grants the board to the right to create rules and regulations. However, the issue at hand and pointed out to the manager, limiting the number or dogs, is not specified in the CC&Rs, which simple says dogs may be kept. Consequently, the CC&Rs would have to be modified accordingly to specify any limitation, not by a vote of the board, but by the members. This is both unethical and an outrageous unauthorized practice of law, which I shall say once more, occurs all too frequently under HOA regimes.
The letter did not contain a disclaimer that, “I am not giving legal advice or opinion, and I am not an attorney nor employed by an attorney. You should seek independent legal advice from a competent attorney.” (Remember that the HOA attorney is just that, the attorney for the fictitious HOA and not for the opposing party, the homeowner.) This simple disclaimer never appears on statements made by HOA managers, in violation of Arizona, and all other state UPL (Unauthorized practice of law’) restrictions. Under the Arizona Rules of the Supreme Court, R 31(a)(2)(A), “‘Practice of law’ means providing legal advice or services to or for another by: (5) negotiating legal rights or responsibilities for a specific person or entity.”
Rule 31(a)(2)(B) states: “‘Unauthorized practice of law’ includes but is not limited to: (1) engaging in the practice of law by persons or entities not authorized to practice pursuant to paragraphs (b) or (c)”
Subsections (b) and (c) state that UPL occurs when a person is not a member of the State Bar, including a disbarred or restricted Bar member.
If you receive any such letter from a manager or management firm employee, and that letter does not contain a disclaimer, please file a UPL complaint against the manager. This is the only way to stop this practice. It is a small thing you can do to help yourself and all other people living in an HOA. If a director writes such a letter, then he risks personal liability for his error since he did not consult an attorney. If he claims “acting on the advice of the attorney”, demand to see it in writing! If he does not provide it, then he is not acting in good faith as required of directors of nonprofit corporations.
Qui Pro Domina Justitia Sequitur
(“who prosecutes on behalf of Lady Justice?“, DOJ seal)
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