Should We Hire a Member?Jul 02, 2023
By Kelly G. Richardson, Esq.
Hi Kelly: Three of the members of our HOA board are employed directly or through service contracts with the master community company. They hold the top offices, including president, of the HOA board. It appears to be a conflict of interest to serve both masters. Is this legal or just poor judgment to look improper to the community? S.F., Mission Viejo.
Dear S.F.: Directors of your HOA who are at the same time being paid for services by the master association are in a no-win position, as they are serving two corporations whose interests are not always identical. It also creates problems for the master HOA board, as other homeowners wonder why the master HOA is paying some of its members. Surely in the Mission Viejo area, there are many service providers outside the master HOA membership. It looks bad for both your HOA and the master HOA, which is why I believe HOAs should bend over backward to avoid hiring one of their own. Sincerely, Kelly
Dear Mr. Richardson: Our HOA is considering hiring a member to design our remodel. Is this legal or advisable? R.B., Coronado.
Dear R.B.: Unless your governing documents prohibit hiring members, hiring a member as your HOA’s designer is not illegal. However, it may be very unwise. If the member performs poorly, is the HOA board going to hold that person to the same standard as any other service provider? If the member’s design services are negligently performed, will the HOA board sue the designer for damages? If the HOA’s relationship with a service provider is personal as well as professional, it's not truly an “arm’s length” relationship, and that makes it much harder to keep things strictly professional – potentially harming the HOA’s interests. Furthermore, no matter how much a member may discount their services, there will always be those HOA members who feel that it is improper to hire homeowners or residents. There are many designers in the greater San Diego area – can’t your board find someone really good outside of the HOA membership? Best regards, Kelly
Mr. Richardson: We have a small association. The board consists of a president who is the boyfriend of the old president. The new president made the old president "property manager." No election has been held because they keep election time and ballots secret from everyone else. How does one go about challenging entrenched authority of an HOA? These people have control of the HOA but not by a true vote, many people are fed up and are wanting to know a course of action for this. Best, J.A., Glendale
Dear J.A.: For the same reasons as stated above, hiring a homeowner to manage their own community is a bad idea. Good intentions are valueless to the HOA if the manager is not qualified to manage the community. Furthermore, even if the homeowner were a credentialled manager, they would still be hopelessly entangled between their conflicting roles as homeowner, manager, and board buddy. Small HOAs usually have an easier time than larger ones in electing boards, so things will change when enough members have had enough of this clubby control of the HOA. When that happens, I hope you can find some good volunteers who will commit to clean governance. Thanks, Kelly