Legal Practice as a Community Associations Attorney

When asked to define a “community association,” you may first picture a cookie-cutter neighborhood run by a small group of rules-obsessed homeowner volunteers. At its best, a community association embodies the ideal qualities for a neighborhood—amicable people living under a shared set of rules created to preserve the community’s nature and character, protect property values, and provide amenities and services to community members.

In its 2019–2020 U.S. National and State Statistical Review for Community Association Data, the Community Associations Institute estimated that 25–27 percent of the US population lives in community associations. They are led by roughly 2.4 million volunteer board and committee members. As these volunteers work tirelessly toward maintaining harmony and order in their communities, they often encounter various legal issues that community association attorneys can help navigate, including property law, corporate law, employment law, debt collection, and covenant enforcement. Practicing in community associations can expose attorneys to multiple areas of law, provide opportunities to get into court often, and help develop client counseling techniques.

What Is a Community Association?

A community association is a nonprofit organization formed to enforce a community’s governing rules, maintain shared facilities and amenities, and oversee the provision of services within the common-interest community. These communities can include condominiums and subdivided housing developments comprised of individually owned lots and shared common areas. In Virginia, these communities are created when a developer records governing documents among the local circuit court’s land records, thereby creating restrictive covenants that run with the land and bind all future property owners to a common-interest regime.

In a planned community, owners own their subdivided lots in fee simple. They are members of the community’s homeowners’ association and have enumerated rights of use and enjoyment for shared facilities and amenities. The homeowners’ association owns the area that is not part of individual lots, called the “common area” (e.g., open space, playgrounds, private streets, pools, and clubhouses). Similarly, in a condominium, a unit owner owns his unit in fee simple. Unlike a homeowners’ association where the association owns the common area, unit owners in a condominium regime collectively own components of the condominium that are not defined as units (called “common elements”) in proportion to their respective percentage ownership interests. Common elements can include hallways, stairwells, elevators, balconies, building roofs and exteriors, and parking lots.

Building an Interdisciplinary Practice

Community association law attorneys must have a wide breadth of knowledge on a range of topics and disciplines related to common-interest communities. They must understand the interplay among federal regulations, state and local laws and ordinances, and an association’s governing documents, including the hierarchy of these authorities. In addition to regulations governing telecommunications, solar panels, housing, and land use, association lawyers may be required to analyze issues rooted in more traditional areas of law, including contract law, torts, business law, bankruptcy, debt collection, or employment law. Association attorneys can be viewed akin to in-house counsel for each association client. Like other in-house positions, the daily work may differ; however, the client always remains the same: the association. Importantly, attorneys hired by a community association serve the association’s interests, not individual owners’ interests. Although the association’s board of directors hires and works with the attorney to administer the association’s affairs, the board is not the client.

Understanding which legal authority has priority is critical when giving an opinion to a client. For example, an association’s governing documents may attempt to restrict (or outright prohibit) the use of satellite dishes on the property. However, in 1996, the Federal Communications Commission adopted the Over-the-Air Reception Devices rule, which explicitly prohibits these kinds of restrictions. In this instance, the federal rule supplants any restriction recorded in the governing documents.

Federal and state fair housing laws are essential bodies of law for association attorneys to understand, as associations may encounter complex situations where certain fair housing protections are triggered. Fair housing laws require associations to provide reasonable accommodations and modifications for residents with disabilities and prohibit discrimination against protected classes of individuals. A common request for reasonable accommodation is a resident asking permission to have an emotional support animal in a community that prohibits pets. Another fair housing concern is a hostile housing environment, which can occur by severe or pervasive neighbor-to-neighbor harassment based on one neighbor being a member of a protected class.

State and local regulations and laws also impact community association operations. A jurisdiction’s Property Owners’ Association Act or Condominium Act can serve as gap-fillers for associations whose recorded documents are missing certain provisions. On a more local level, zoning ordinances and proffers (i.e., voluntary commitments from a landowner or developer to reduce or eliminate the impact of new development or rezoning on neighboring properties) have the power of law. They can create additional restrictions or conditions for a community. While zoning ordinances apply to the entire jurisdiction, proffers, once accepted or adopted by the jurisdiction, become a part of the zoning regulations applicable only to a specific property.

How Attorneys Can Serve a Community Association

Attorneys can offer a wide range of legal services, including:

Client Counseling

Boards of directors frequently reach out to their association attorney with questions on various topics, including “Can we hold the annual meeting via Zoom?” “Should we open the pool during COVID-19?” and “Who pays for mailboxes to be replaced?” Attorneys assist the association by interpreting governing documents, analyzing the facts under those documents and relevant authority, and providing a legal opinion, including a list of recommendations for addressing the matter. Client counseling may include meetings with the board of directors and management agent to discuss an issue.

Corporate Governance

As community associations are run by boards of homeowner volunteers that administer the association’s affairs, corporate governance issues may arise. Often armed with a tabbed copy of Robert’s Rules of Order, attorneys help homeowner boards navigate governance requirements set forth in the association’s declaration, bylaws, or articles of incorporation. From holding an annual meeting and imposing assessments to amending governing documents or enforcing restrictive covenants, following a prescribed procedure is paramount.

Community Education

One way to promote community harmony and order is through educating its members. It is not uncommon for owners to be unaware of all restrictions or rules within the community. Resale disclosure packets are often hundreds of pages long, and many owners skim the packet before purchasing. Townhall meetings are an excellent tool for educating community members and combating future conflict. Attorneys can aid boards of directors in presenting an upcoming special assessment project or soliciting feedback on proposed amendments to the governing documents.

Covenant Enforcement

Owners break the rules—sometimes intentionally and sometimes unintentionally. When this happens, associations can call upon their attorney to step in, demand compliance, and restore order. Attorneys can assist associations as they navigate due process procedures and enforce restrictive covenants, advising them of possible remedies that exist for ensuring compliance. From sending strongly worded demand letters to filing lawsuits for injunctive relief and monetary damages, association attorneys work to ensure fair and consistent application and enforcement of the association’s restrictions, rules, and regulations.

Civil Litigation and Debt Collection

Community associations may find themselves in judicial proceedings. Court cases may be filed on behalf of or against the association. Outside of general civil litigation, attorneys commonly assist communities with the collection of unpaid assessments or charges. Attorneys will send demand letters, record liens, file lawsuits, and participate in bankruptcy proceedings. Representing a community association in court is an excellent way to gain trial experience. Many cases require witnesses, multiple exhibits, and, usually in the case of collections matters, pro se defendants.

Law firms devoted to community associations can offer great entry positions for young lawyers who are interested in a multidisciplinary practice and want to gain experience. As the number of community associations continues to grow across the country, the need for association attorneys will also continue to rise!