Homeowner Documents for Developers and Project Owners: Financial, Governance, Control, and Liability Provisions

Limitation of Liability, HOA Dues, Management Fees, Restrictions on Property Owners, Management and Control, Amendments

Recording of a 90-minute premium CLE webinar with Q&A


Conducted on Tuesday, October 22, 2019

Recorded event now available

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Program Materials

This CLE webinar will guide counsel for developers and project owners in structuring and drafting the essential financial, governance, control, and liability provisions of homeowners association (HOA) agreements. The panel will provide practical insights into strategies for preserving value for property owners while ensuring that developers can successfully exit the project and avoid subsequent liabilities.

Description

From single-family homes to condominiums and townhouses, project developments by necessity require lengthy and complicated HOA documents. For developers and project owners, these founding agreements are critical for the success and profitability of these projects. Tailored and well-drafted HOA documents govern specific property uses, define the services the HOA will provide, and address how property owners will jointly govern the association.

HOA agreements are also rife with points of potential dispute--from fees to management and control issues. Careful planning and drafting of these agreements are essential to the developer successfully exiting the project and avoiding later liability.

HOA litigation often results from poorly drafted HOA agreements, insufficient due diligence, or an incomplete negotiation that failed to consider all pre- and post-transition contingencies. Counsel for developers and project owners can drastically reduce the risk of client exposure and costly litigation by taking the time to ensure the initial document is unambiguous and complete.

Listen as our panel of experienced real estate attorneys provides practical guidance on structuring and drafting the essential financial, governance, control, and liability provisions of HOA agreements. The panel will offer insights and strategies for preserving property values while ensuring developers can smoothly exit the project, avoid ongoing liabilities, and maximize project profitability.

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Outline

  1. Overview
    1. The life cycle of an HOA
      1. Development
      2. Developer management
      3. Transition to property-owner governance
      4. Obsolescence (de-conversion and sale or redevelopment)
    2. Key issues and considerations
  2. Economic and financial provisions
  3. Governance and control provisions
  4. Restrictions on property owners
  5. Project manager scope of duties
  6. HOA amendments
  7. Best practices in drafting and negotiating
  8. Case studies
  9. Final considerations

Benefits

The panel will review these and other key issues:

  • What are the most effective ways of limiting developer and project owner liability through express provisions in the HOA agreement?
  • How can a well-drafted HOA agreement limit developer and project owner liability at all stages of an HOA's lifecycle: development, developer management, and transition to property-owner governance?
  • What is the difference between transfer of control and transition of control?
  • How can an association's governing documents be drafted to preserve developer rights regardless of who has majority control of the association?
  • What are best practices for drafting enforceable HOA agreements?
  • What is the importance of developer control and potential conflicts?
  • What are ways to protect developer and project owner impartiality for warranty and construction-related matters?
  • What are the critical economic and financial provisions--including the amount of HOA dues, management fees, and clauses accounting for how these change over time--to include in every HOA agreement?
  • What are the essential governance provisions of HOAs to avoid disputes and limit liability?
  • What are best practices for drafting valid restrictions on property owners?
  • How should an HOA agreement account for the scope of duties of the project manager and allow for amendments to the HOA agreement?
  • What are the most common points of ongoing liability for the developer, and how can they be mitigated?
  • How can special committees of HOAs and tolling agreements be used to protect developer interests?
  • What are the most critical reserved rights and powers of the developer to include in any HOA agreement?
  • Why should the special rights of a developer or project owner be included in an appendix to the declaration of covenants, conditions, and restrictions?
  • Reserve studies and sinking funds
  • What steps can the HOA take to protect or enhance value in older projects that are obsolete?

Faculty

Carpenter, Scott
Scott Carpenter

Shareholder, Co-Managing Partner
Carpenter Hazlewood Delgado & Bolen

Mr. Carpenter focuses primarily on general counsel, corporate and transactional matters, complex litigation, business...  |  Read More

Garfield, Ronald
Ronald (Ron) Garfield

Managing Shareholder
Garfield & Hecht

Mr. Garfield has represented landlords and tenants alike in negotiating retail, office and residential leases. He has...  |  Read More

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