Facts: An attorney was hired by two members of a homeowners’ association (HOA) and granted power of attorney to participate on the hiring members’ behalf at HOA meetings. The HOA’s bylaws state only owners may participate in meetings and membership cannot be reassigned. The remaining HOA members did not allow the attorney to participate on behalf of the hiring members at the HOA meeting.
Claim: The attorney sought the right to act on the hiring members’ behalf at HOA meetings, claiming he cannot be prevented from doing so since the hiring members granted him power of attorney.
Counterclaim: The remaining members sought to exclude the attorney, claiming the attorney may not participate in HOA meetings on the hiring members’ behalf since the HOA’s bylaws state anyone who participates must own property in the HOA community and membership cannot be reassigned, regardless of the power of attorney.
Holding: A California court of appeals held the attorney may be excluded from participating on the hiring members’ behalf at HOA meetings since the HOA bylaws requiring a participant to be an owner of property in the community trumps the power of attorney granted by the hiring members. [Liberty LLc v. HOA (2013) __ CA4th__]
Editor’s note –The HOA has the right to establish how its meetings are run despite the validity of the assigned power of attorney. Thus, the pre-established HOA bylaws trump the power of attorney which attempted to grant the attorney the right to participate.
Curious as to ‘on what grounds’ the POA was trumped, and what the significance of the word ‘participate’ might have had. It is because the ‘agent’ was an attorney? My understanding has always been that a POA allows anyone to act as anyone else in any environment. Could the attorney in fact (the POA assignee) have just ‘attended’ the meeting, or would they have been barred (no pun intended) from mere attendance as well? This is a good little topic, and warrants more. There absolutely had to be more to this than meets the eye. If the POA was granted to another random property owner it would have been acceptable, and if another property owner was an attorney, it would have been acceptable, and most likely if it were illness or inability to attend, it would have been an acceptable procedure (the POA); so what were the circumstances of refusing THIS attorney from THIS meeting? I really am curious, having been president of our HOA on multiple occasions and watching how property owners like to take control at every opportunity.
I wouldn’t put too much faith in what this appeals court said. The next court could come to a different conclusion, especially if the CC&R language is not exactly the same.
I think the conclusion of the court is wrong. Giving someone a power of attorney is not assigning membership in the association. The owners still own their membership. The owners are participating through their attorney in fact and they continue to own the property. What is the underlying reason for this restriction on the right of contract? Is it to restrict free alienation of property and restrict the right to rent? Not being able to use a representative takes away a property right. I don’t think the language you cited is so restrictive as to prevent someone from using an attorney to represent them at a meeting of this homeowner’s association–a little fiefdom.