Condo Media - April 2010 - 44

FEATURE

When a vendor provides services for a community association, who’s the vendor’s client — the association or the association’s manager?

T

his isn’t a trick question, but it brings answers more varied and triggers a discussion more complex than you might expect.

The Vendors
Stephen Marcus, a partner in the Massachusetts law firm Marcus, Errico, Emmer & Brooks, insists there is nothing complicated about this question. It is the association that hires the vendor and pays the vendor’s bills and it is the association — acting through its board — not the manager that is the vendor’s client. That distinction can become hazy, however, Marcus says, when a management company regularly taps a vendor to work for associations the company represents. Vendors understandably feel a connection with managers or management companies with whom they have worked for years, especially when those connections have produced thousands of dollars of contract work for them. “Some feelings of loyalty might become blurred,” Marcus notes. But 44
CONDO MEDIA • APRIL 2010

the fact remains, he says, that the vendor’s contract is with the community association, and that’s where the vendor’s loyalty should lie. “In more than 30 years of representing community associations,” Marcus says, “I don’t think I’ve ever seen a case where the board was telling the plumber to do one thing and the manager was telling them to do something else.” That conflict has never arisen in his firm’s dealings with association clients, either. But if it did, Marcus says, “There is no question that our obligation would be to follow the directions of the board.” He has occasionally encountered owners who assume that the association’s attorney works for them. “We have to explain that the firm represents the association, through its elected board. We have no relationship with individual owners; there is no attorney-client privilege between us and the owner, and the owner is not entitled to know what advice we’ve given the board.”

The more common conflict, Marcus says, is between boards and owners who interfere with vendor relationships. “They’ll start telling the landscaper or the plumber what to do,” or complain to contractors about the work they’re doing. Marcus deals with those problems by sending the offending owners letters “telling them to stay away.” Clearly, he says, “a vendor can’t work for, or take direction from, 100 different owners.” Jack Carr, senior manager with Criterium-Mooney Engineers, a Portland, Maine-based consulting engineering firm, says the question we’ve posed —– “Who’s the vendor’s client? is actually two questions, one legal and the other practical. The legal question, he says, is “easy.” The vendor’s contract is with the association. “I don’t think about that.” The harder question, about which Carr thinks a great deal, is the practical one: “Who makes the decisions and who writes the checks?”
Condo Media - April 2010

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