Attorney opinion does not take precedence over bylaws

[Clyde Gibson]

Our bylaws state that any special assessment over $500 needs to by approved by 75% of the owners.  At a recent meeting our president produced a memorandum from our attorney that stated that any funds required for repairs did not need to be approved by the owners.  My thought was that the opinion was just that, an opinion, and that the members of our association would be required to approve changes to our bylaws before any board approved assessment over $500 could be approved by the board.

[Joshua Katz]

Well, yes, an opinion is just an opinion. If my attorney advises me not to put down an ingenious trick I just thought of on my tax return, nothing forces me to follow it. Similarly, if your attorney advises you of a course of action, the organization is still free to decide whether to follow it or not. But the decision not a follow an attorney's advice is one you should make carefully. You say:

On 10/18/2023 at 5:19 PM, Clyde Gibson said:

Our bylaws state that any special assessment over $500 needs to by approved by 75% of the owners.

and

On 10/18/2023 at 5:19 PM, Clyde Gibson said:

At a recent meeting our president produced a memorandum from our attorney that stated that any funds required for repairs did not need to be approved by the owners. 

Clearly, this is not what your bylaws say. But, presumably, your attorney knows what your bylaws say. (If not, you might need a new attorney.) Yet the attorney produced an opinion saying that this particular situation was an exception. Why? Perhaps, even likely, because an applicable procedural law says so, and that overrides your bylaws. So there's every reason to think you should listen to your attorney, or at least ask more questions before ignoring his opinion. Presumably, the memo explains why, rather than just stating the conclusion. So I'd start there.

Note that, if you turn down the assessment, some people will be mad, and if you approve it, others will be mad. So there's no covering all your bases here. It is very likely the case that one course or another is mandated, and you need to know which one. That is far beyond the scope of this forum.

 

[Weldon Merritt]

I was about to post a resumes saying much the same thing as Mr., Katz said in hos more detailed response. So I will just say that I concur with his response.

[Gary Novosielski]

I tend to agree with @Clyde Gibson's skepticism.  While presumably an attorney's opinion on matters of law would be persuasive, the fact that it conflicts with the text of the organization's own bylaws would at least warrant some explanation.  There may be a very good one.  Or there may not.  Did the president reveal what the actual question was, that prompted the attorney's reply?  Was the attorney even aware of what the bylaws said?  We are free to hope so.

Adopting a motion that conflicts with the bylaws creates a continuing breach which may be the subject of a Point of Order at a future meeting even if none was raised one at the time.  But before raising too much of a stink I'd seek to know the lawyer's reasoning in concluding that the bylaws did not apply in this case.  

Edited October 18, 2023 at 09:49 PM by Gary Novosielski
clarity

[Drake Savory]

What if the attorney's opinion reflects his interpretation of the law?  Then it would take precedence over the bylaws.   But I would hope this letter would say, "The law says ..."

[Gary Novosielski]

On 10/19/2023 at 12:01 AM, Drake Savory said:

What if the attorney's opinion reflects his interpretation of the law?  Then it would take precedence over the bylaws.   But I would hope this letter would say, "The law says ..."

The law (but not the opinion itself), if it applies to procedural matters, would take precedence over the bylaws. 

But all we know is that there was produced "a memorandum from our attorney that stated that any funds required for repairs did not need to be approved by the owners."   This does not sound clearly procedural, although I suppose it could be based on some procedural regulation.  I don't know enough to imagine what the reasoning might be. There might be some quirk that's unique to homeowner's associations, with which I am (thankfully) unfamiliar.

[Josh Martin]

On 10/18/2023 at 11:01 PM, Drake Savory said:

What if the attorney's opinion reflects his interpretation of the law?  Then it would take precedence over the bylaws.   But I would hope this letter would say, "The law says ..."

To be clear, it is the law itself (not the opinion) which takes precedence over the bylaws. To the extent the attorney's opinion is a correct interpretation of the law, then it should be followed.

On 10/18/2023 at 11:15 PM, Gary Novosielski said:

But all we know is that there was produced "a memorandum from our attorney that stated that any funds required for repairs did not need to be approved by the owners."   This does not sound clearly procedural, although I suppose it could be based on some procedural regulation.  I don't know enough to imagine what the reasoning might be. There might be some quirk that's unique to homeowner's associations, with which I am (thankfully) unfamiliar.

If an applicable law relates to the delineation of authority between the board and the membership, it would seem to me that is a procedural law. That is where I understand the attorney to be going with this - that the law provides that certain authority is granted to the boards of HOAs.

I have no knowledge of the association's bylaws (save the excerpt quoted here), let alone applicable law, so I am in no position to second-guess the association's attorney on this matter.

On 10/18/2023 at 4:19 PM, Clyde Gibson said:

Our bylaws state that any special assessment over $500 needs to by approved by 75% of the owners.  At a recent meeting our president produced a memorandum from our attorney that stated that any funds required for repairs did not need to be approved by the owners.  My thought was that the opinion was just that, an opinion, and that the members of our association would be required to approve changes to our bylaws before any board approved assessment over $500 could be approved by the board.

Mr. Gibson, if you are asking for a second opinion on whether your association attorney's opinion is correct as a matter of law, that is well beyond the scope of RONR and this forum. We are not in any position to offer you legal advice.

Edited October 19, 2023 at 10:36 AM by Josh Martin