Attorney fee spurs complaint

Question: I am a condo owner in California. Earlier this year, our homeowner association attorney sent me two letters consisting of one page each. I wrote him and asked for a copy of each letter because I’d misplaced them.

He wrote back that I could schedule a time to review them but it was not free. He wrote: “Please send a check in the amount of $350 made out to [name of law firm].”

I believe this is extortion for copies of two letters. I downloaded the complaint form for the State Bar of California but it is unclear if I can complain about an attorney I did not hire. Can a homeowner report the association’s attorney to the bar?

Answer: An attorney’s conduct can be reported to the bar, whether or not you hired that attorney. Rules of professional conduct apply regardless of the relationship between the individual and the attorney.

Although many complaints are resolved by the State Bar, either by a letter to the attorney or by the submission of some other document by the attorney, some cases go beyond that. The State Bar’s discipline of an attorney ranges from no action to private or public reproval, suspension or disbarment, although even in the most egregious cases the bar seems reluctant to impose that last penalty.

A $350 charge is exorbitant for copies of two letters previously sent to you. The letters should have been forwarded to you at no cost or, at the most, the actual cost of the copies.

If the attorney’s letter required you to take action, your letter to the association’s attorney, provided it was written before any deadline, and the fact that you are unable to obtain a copy of the letter, may be sufficient to excuse you from performing whatever action was specified in the letter.

Suggesting that the attorney provide copies of earlier correspondence may also shift the burden back to the attorney. If no action was required, you need do nothing.

Monthly fees destined by law to pay for the day-to-day operations and maintenance of the complex are also used to employ association attorneys. Homeowners fund not only the defense of actions taken against them but the prosecution as well, if it is the association that is suing.

Reporting attorneys to the State Bar can be a double-edged sword. Meritorious complaints may result in attorney discipline, giving them pause when considering further actions against homeowners. Frivolous complaints may result in the State Bar categorizing homeowner complaints as mere nuisances not worthy of full investigation.

Disclosure rules

apply to leakage

Question: Seven months ago I bought a townhouse in a 12-unit complex with a homeowner association. A month later there was a major water leakage problem throughout the complex.

I just learned this problem was reported to the board before my purchase but ignored. Now I have received a letter stating that due to a shortage of funds, there is an emergency assessment of $4,500 and my share is $375. This is above and beyond my usual monthly association fees. Can I legally ask to see the association’s books and records and am I stuck paying this special assessment?

Answer: Complaints about water leakage should have been disclosed to you before purchase by the seller, seller’s real estate agent or homeowner association. Carefully review association documents you should have received prior to purchase. Under California’s current laws, boards are not responsible for their own failures to provide documents to prospective buyers. The only recourse buyers have is against sellers.

Compare budget and complaint information provided in the association documents, supplied by the seller, with what you now know. California’s Davis-Stirling Act requires any special assessment be for the “actual” costs of the work required, no more, no less.

Any special assessment of more than 5% of the association’s operating budget requires a vote of the homeowners. Without the vote the assessment is invalid and you should dispute it, and not pay it.

You can legally ask to see anything relating to the association’s operations but whether the board complies and does so promptly, is another issue.

There are no penalties against boards that breach their duties to owners. Boards with nothing to hide are upfront with owners by disclosing problems, estimates and bank balances with supporting documentation. If your board fails to do these things, then consider moving.

Please e-mail your queries to: NoExit@mindspring.com.