Association boards and property managers are regularly faced with the question of when to seek an opinion from the Association’s legal counsel.  While it would certainly be comforting to seek a legal opinion on every issue, obvious budgetary constraints requires that a board or a property manager be selective in when an opinion should be sought.  Recognize, however, that in many instances the money spent to obtain a legal opinion will be far outweighed by the benefits of avoiding litigation or legal complications when those opinions are not obtained.  

The following is a list of occasions when legal advice should be obtained:

1. Interpretation and enforcement of condominium documents.   All documents are subject to interpretation.  Very few factual circumstances fit exactly into the language contained in documents, almost always leaving them to interpretation.  Many provisions are ambiguous or even conflicting.  If the document language does not lend itself to clear application to the circumstance, that question should be posed to the Association’s legal counsel, perhaps even before a warning letter is sent to the co-owner.  If the Association is not on firm legal ground, such a letter will likely illicit an emotional response from the co-owner, and it may be awkward or embarrassing to the Association to backdown from the inappropriate position they have taken.  And, that unfounded action by the Board may affect its credibility in other matters.   Before commencing action enforcement action, the opinion of the Association’s counsel is obviously necessary.  The attorney may have had experience on that type of problem, and he or she could either reinforce the Board’s decision to pursue legal action, or explain to the Association why such action would not be prudent.  
2. Contract review.   Anytime an association is faced with a significant contract, such as major repairs or construction, management contracts, snow and lawn contracts, etc., it would be wise to consult legal counsel before entering into those contracts.  It is much easier and certainly less expensive to eliminate potential contractual problems before they are signed than to extricate the Association from difficulties after they occur.  In other words, it is easier to stay out of trouble then to get out of trouble. Any attorney would be helpful in being sure that those contracts contain the appropriate provisions, such as time for performance, standards for performance permits, insurance requirements and termination provisions.  It may also be beneficial for legal counsel to review the Association’s insurance contracts.  With the “crisis” in insurance in Michigan and the issue of mold coverage, a review of the Association’s insurance contracts might be in order to ensure that it has adequate coverage, or is at least aware of the limitations of the policy.  
3. Document amendments.   This is one activity where an association should absolutely not undertake without competent legal counsel.  Compliance with changes in the governing laws or applicable court cases is extremely important and very technical.  Also, the amendment process itself must be carefully followed to ensure proper adoption and future enforceability.  While the Board of Directors or its property manager can be helpful in providing to legal counsel the areas in the documents that have been troublesome to them from an operational standpoint, it is imperative that the attorney draft the language and oversee the process.  
4. Review of proposed policies, rules and regulations.   Most association documents authorize the Board of Directors to adopt regulations.  Also, inherent with its authority, a Board can adopt various policies and procedures on the administration of the Association.  Because of the impact upon the individual co-owners, it is important for those policies, rules and regulations to be reviewed by legal counsel before they are formerly adopted.  Legal counsel would ensure that they are not inconsistent with the governing documents, or the law and that they are likely enforceable.  
5. Whenever the Association is served with legal papers.   While it may seem obvious, too frequently an association or its property manager delays forwarding those legal papers to its attorney.  Most legal papers allow only a limited time to respond, or adverse action can be taken.  Therefore, it is imperative that an association IMMEDIATELY contact their legal counsel upon being served with any legal papers, particularly lawsuits.    

These are just a few examples of situations where legal opinion should be obtained.  Our society has become very litigious and legal opinions can be helpful in minimizing the risk that an association would become embroiled in extended and expensive litigation.