Question: I serve on the board of a homeowner association and was cautioned not to interpret the meaning of our bylaws or the state and local laws that apply to homeowner associations. I felt like I need a magic decoder ring. Am I getting good advice?

Answer: The board has the duty to enforce the bylaws and is not expected to be an expert in the law according to the "Business Judgment Rule". The Business Judgment Rule protects the board as long as decisions are made based on reasonable research, expert advice and no conflicts of interest.

From time to time, however, it is wise to consult with a knowledgeable attorney. Some older documents may contain provisions that violate current federal or state law, like restrictions against children or zoning ordinances. Many governing documents lack structure, are difficult to read (too much legalese) or lack a table of contents. If so, it may be time to redraft them to make them more user friendly. A knowledgeable attorney (defined as one who specializes in this kind of law) can be invaluable in redrafting the documents. Do not attempt amending the documents alone. Even if the board performs the rewrite, always have a knowledgeable attorney review the work before approving and filing. When hiring an attorney to do the work, ask to see a sample of their work. The last thing you would want is another set of undecipherable documents.

Another area where bylaw interpretation gets critical is in the case of potential litigation. If the association is being threatened with a lawsuit, it's time to get a legal expert. Even though the bylaws may provide for recovery of legal costs, when a judge and jury is involved, this is not a given, and the association may not win. In many such cases, compromise is the prudent path and the board often needs outside perspective to get to that point.

The governing documents are the constitution of your homeowner association. Treat them with the respect they are due. When you aren't clear on a point or if they need updating, get expert advice. You can keep your secret decoder ring for Captain Marvel messages.

For more information on this subject, see www.Regenesis.net.

Published: August 18, 1999

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Richard Thompson owns Regenesis, a management consulting company that specializes in condominium and homeowner associations. He is a nationally recognized expert on HOA management issues. Regenesis publishes The Regenesis Report, a monthly newsletter for HOA boards, developers and managers. To subscribe, go to Regenesis.net. He can be contacted by email at .