Question:
Can an HOA Board hide behind lawyer-client privilege if litigation is not involved?
SITUATION: Two of the three Board directors did not follow our HOA Declaration for appointing a replacement for the third Board member who left his seat vacant when he died. The Board asked the Association Management company to consult with a lawyer about its approach to filling the vacancy (process/procedure), and now the Board and Management company refuse to share the lawyer’s opinion with the HOA members (homeowners), citing lawyer-client privilege.
The process to fill the vacancy did not comply with our Declaration, and homeowners do not like how the Board handled the vacancy (a process/procedure) and want to see the lawyer’s opinion.
Curiously, we endured a similar event in 2018, and we made sure the homeowners read the opinion, sending it out to the homeowners.
Thank you.
– Martin
Answer:
Hi Martin,
Florida Statute Section 720.303 states that homeowners are entitled to inspect and copy official records, including written communications from the association’s attorney, unless they are related to pending or anticipated litigation. If the legal opinion pertains solely to procedural advice on filling a board vacancy and does not involve litigation strategy or confidential legal advice concerning a lawsuit, it should be made available to homeowners upon request.
If the board continues to refuse, you may submit a formal written request citing the Florida Statute. If the request is denied, consider filing a complaint with the Florida Department of Business and Professional Regulation (DBPR) or removing the board members who are causing problems.
Disclaimer: We are not lawyers. The information provided on this website does not constitute legal advice.
