Cohousing-L Mailing List: Looking for law in all the wrong places

[Sherri Rosenthal (enocommons]

Dear All,
I think John makes a good point about real estate being governed by state
law, which varies quite a bit. That's why, in my opinion, "model documents"
from another state should be used mainly for ideas about what covenants and
other substantive provisions others have found worthwhile, and for language
on how to effect these provisions. I think the 'boilerplate' should come
from an in-state attorney and be pretty mainstream. My perspective is to
blend with the mainstream as far as possible, hew to the conventional legal
and financial structures as much as possible, and only deviate if it is
necessary to achieve a significant goal of the group.

Advice on looking for a good lawyer: 
1. Get a free consultation. Ask open ended questions and listen to the
answers. Part of what you are paying for with an attorney is peace of mind.
Do you have that kind of solid feeling about the attorney?

2. Simple is better. If the lawyer you interview makes everything sound
very complex and intimidating, I would look elsewhere. Do you understand
what the attorney says? Can you get answers to your questions that you
understand and feel comfortable with? 

3. You may need more than one attorney. During development, you need an
attorney to do subdivision work (See #4.) You'll also need help with
business formation and advice on keeping organizational records for your
form of corporation or organization. This may be from the same attorney,
but it's likely that it will be a different attorney with this sort of
specialization. After move in, it is adviseable for the Homeowner's
Association to create a relationship with an attorney who can then be
called when questions come up. Good candidates for this kind of
representation are likely to have experience advising non-profit
organizations and other Homeowner's Associations. Again, ask for references
and call them. It is adviseable to set up in initial meeting with this
attorney about recommendations he or she has to fulfill the necessary
record keeping requirements, and state and federal tax and corporate filing
requirements.

4. All "real estate" lawyers are not created equal. Many attorneys
specialize in residential real estate closings. You want someone with
expertise in the legal aspects of developing subdivisions, which includes
zoning, site plan approval, and subdivision documents. You may want to talk
to references, especially the developers of prior subdivisions that the
prospective attorney has worked with.

In our city, I used a state certified real estate specialist who had the
kind of experience I outline above. He also happened to be one of the
attorney's who regularly donates time to represent the homeless shelter for
families and for Habitat for Humanity. While he doesn't do business
formation, another attorney in that firm specializes in that. 

By the way, while I am an attorney, and I did the drafting of documents to
cut down on cost, I would not represent myself on real estate matters.
Similarly, unless you have a group member who is a real estate specialist,
for example, it is foolhardy to have one of your group members handle these
tasks, even if he or she is an attorney. Most of this stuff is formulaic,
but like in most things, the trick is in recognizing when the formula works
and recognizing when the formula needs tweaking. Those seemingly little
tweaks can be key. 

Sorry this is such a long post. Hope it is of some use.

Best,
Sherri Zann Rosenthal
Developer of Eno Commons Cohousing
Durham, NC