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Subject: help finding an attorney
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SteveA7
(California)

Posts:20


07/19/2019 11:10 AM  
I've been making calls all day and can't seem to find a lawyer who seems like he knows condo law.
I describe my situation, and say it's very similar to Cohen v Kite. The HOA has granted a variance that is harmful to me. So i ask the attorney are you familiar with Cohen v Kite? and no one has a clue.
As far as i can tell Cohen v Kite is one of the most important HOA case law.
I don't feel like paying someone to read it.
Shouldn't a good condo lawyer know that case?
This is probably not allowed on this site, but does anyone know someone who knows California condo law?
AugustinD


Posts:2063


07/19/2019 12:05 PM  
Maybe try the authors of the davis-stirling.com site. They are attorneys. Their site even has the full opinion for Cohcn v. Kite Hill at https://www.davis-stirling.com/HOME/Case-Law/Cohen-v-Kite-Hill . See the "Contact Us" section at the bottom of the site, where there is a phone number and link for emailing, or go directly to the law firm's main site: https://www.adamsstirling.com/ . If they cannot help you, maybe they can suggest someone in your area.
SheliaH
(Indiana)

Posts:2772


07/19/2019 12:26 PM  
I work with attorneys and despite what you may think, they really don't know everything. That doesn't mean they're incompetent - they may not specialize on condo law, or they haven't had situations where they've needed to look at that case. You may think Cohen v Kite is similar to your situation and perhaps it is, but to know for certain, you need someone who's familar with legal research and state condo law to help you determine that. I've seen the Davis-Stirling website - lots of good information there, but even then, there could be nuances in your case which can turn things upside down.

Most people here aren't attorneys, including me, which is why I personally try not to say the law says x and therefore the HOA board can or cant do Y or Z. We come from different states and what's true in california may be different in Nevada or New York. Sometimes there's no state law on various subjects at all - this is why law clearks were invented to research all this stuff.

If you're thinking of going after the HOA in court, do it right, otherwise you may get your ass handed back to you in court if they don't laugh you out of the place. Try contacting your state or local bar association for a referral to a condo attorney. Other HOA property management companies might also know someone you can call.

Yes, you will need to pay someone to look at what you have, so accept it. You can and should ask what to expect and pay during your first meeting (you're paying for his/her time, remember?) You may not get all the answers you seek in one sitting - the attorney will probably have to look at whatever documents you have and then call in his or her paralegal or law clerk to do the donkey work before you get his/her suggestions. Keep an open mind - if you don't like the recommendation, you can get someone else, but at the same time, there's a chance YOU may be in the wrong and don't want to accept that.
GenoS
(Florida)

Posts:3370


07/19/2019 1:39 PM  
Posted By SteveA7 on 07/19/2019 11:10 AM
Shouldn't a good condo lawyer know that case?

One would think so. From 2200 miles away I've concluded that if this is also a problem in Florida (it is), then it's a problem everywhere. Nothing grinds my gears more than speaking with an attorney who allegedly has knowledge of Florida HOA law and the very first impression you get is that you know more than they do. That's disgraceful in my book. But it's also common. You pay good money, hundreds of dollars per hour, and you expect an attorney to know what he's doing. Hah! You have to search around very carefully because having actual competence doesn't seem to be a job requirement for HOA attorneys. Good luck to you.

/ramt
SheilaJ1
(South Carolina)

Posts:121


07/19/2019 2:23 PM  
Posted By SteveA7 on 07/19/2019 11:10 AM
I've been making calls all day and can't seem to find a lawyer who seems like he knows condo law.
I describe my situation, and say it's very similar to Cohen v Kite. The HOA has granted a variance that is harmful to me. So i ask the attorney are you familiar with Cohen v Kite? and no one has a clue.
As far as i can tell Cohen v Kite is one of the most important HOA case law.
I don't feel like paying someone to read it.
Shouldn't a good condo lawyer know that case?
This is probably not allowed on this site, but does anyone know someone who knows California condo law?


Can you describe the granted variance?

The people on the forum have far more experience than most attorney that claim to know corporate law or interpreting association documents. I suggest you give more details on your particular issue before reaching out to an attorney.

SheilaJ1
(South Carolina)

Posts:121


07/19/2019 2:24 PM  
Spoke too soon, your other topic is a few rows down, let me read that and report back.
KerryL1
(California)

Posts:6726


07/19/2019 4:04 PM  
In CA, Steve, condos and single family homes, etc. that are in HOAs are covered by Common Interest Development legislation-- the Davis-Stirling Act. So looking for a "condo" attorney isn't quite right. The firm that Augustin notes should have a branch near you.

I'd say that if an individual HOA attorney doesn't know all case law, you might not want to rule her/j him out. To get an idea about what I mean, look at the list of Case Law at Davis-stirling.com.
SteveA7
(California)

Posts:20


07/19/2019 4:05 PM  
Thanks all.
i tried adams - stirling law firm. Same as davis stirling i think. They work for the HOA only. They were nice to give me a reference, but he didn't know what an IDR was. I think the big money is working for the HOAs- no one wants to rock the boat. Guess i can't blame them. I'm thinking maybe file it myself, and just copy Cohen v Kite with changes where necessary. It's all there - HOA misused the variance power. A great read- good to see member Cohen beat em! But he must have had big bucks. 2 trials and 4 lawyers.
RichardP13


Posts:0


07/19/2019 4:49 PM  
Try the Kushner Carlson Law Firm in Orange County.
RichardP13


Posts:0


07/19/2019 4:49 PM  
Try the Kushner Carlson Law Firm in Orange County.
SteveA7
(California)

Posts:20


07/19/2019 5:13 PM  
Kushner Calson. Saw there add a few days back. I'll try on monday-thanks
PaulJ6
(New York)

Posts:382


07/19/2019 5:23 PM  
SteveA7, there are very few attorneys who are owner-side lawyers in HOA matters.

I’m a lawyer. HOA lawyers generally are bottom-of-the-barrel. HOA law is not complex and the field doesn’t pay well (as they represent nonprofits with small budgets).

I’d find a talented litigator with some type of background in real estate litigation. He or she will be way better than the HOA lawyer and can figure anything HOA-specific out pretty quickly.
KerryL1
(California)

Posts:6726


07/19/2019 5:47 PM  
Having served on our board when we had two different HOA lawyers, I'd say gthe weakness of each was being unwilling or unable to pay close enough attention to our own govenering documents. One did admit they are among the top 10 most complicated of 100 sets he'd amended over the years. But still, he misses things that surprised me.

On the other hand, CA HOA law is perhaps way more complex than in other states so knowing it really well seems important. So....maybe a litigator who has a record with HOA litigation?

Steve I would NOT just copy Cohen v. Kite Hill--bad idea.
SteveA7
(California)

Posts:20


07/19/2019 6:10 PM  
Kerry,
think i was in a Perry Mason dream last night.
You're right, dumb idea probably.
SteveA7
(California)

Posts:20


07/19/2019 6:14 PM  
Paul,
I'm hoping I can sign up Augastin .
PaulJ6
(New York)

Posts:382


07/19/2019 6:45 PM  
Posted By KerryL1 on 07/19/2019 5:47 PM
Having served on our board when we had two different HOA lawyers, I'd say gthe weakness of each was being unwilling or unable to pay close enough attention to our own govenering documents. One did admit they are among the top 10 most complicated of 100 sets he'd amended over the years. But still, he misses things that surprised me.




Wow. Following governing documents (of whatever entity the lawyer represents) is the most fundamental part of a lawyer’s job and that’s what you’re paying for.

Both HOA lawyers in that situation should have been fired.
AugustinD


Posts:2063


07/19/2019 7:23 PM  
Cohen v. Kite Hill (1983) is one hilarious read. I quote:

-- "This is an appeal from a judgment of dismissal entered after an order sustaining the demurrer of defendant, Kite Hill Community Association (the Association), to the plaintiffs' fourth amended complaint. Because we conclude that the plaintiffs finally succeeded in pleading a cause of action, we shall reverse the judgment."

-- " ... [T]he Declaration also contains several so-called "exculpatory" clauses. These clauses purport to absolve the Association from any affirmative duty to enforce any of the covenants, conditions and restrictions in the Declaration, and to immunize the Association from liability for any of its acts of malfeasance or nonfeasance. ... Moreover, just in case any doubt remained as to the intent to establish the Association's immunity to suit, Article XVI, section 12 provides... "

-- "The Association advanced the proposition (during oral argument) that the Committee's approval of improvement plans could be "arbitrary" as to an individual homeowner, yet reasonable in light of the overriding interests of the community. Nonsense. ..."

-- "Therefore, we hold that the exculpatory provisions contained in the Declaration constitute no bar to suit against the Association."

The California Appeals Court decision in Cohen v. Kite Hill is only a ruling throwing out the lower court's dismissal on a "demurrer." Said demurrer is unrelated to the plaintiffs' core arguments. I imagine the case was sent back to the lower court for trial. Or the case may have been settled.

With somewhat more research, I think the plaintiffs' fourth amended complaint (concerning a HOA's approval of a fence not allowed by the Declaration) may very well be a template for SteveA7's own complaint (concerning his HOA's approval of a floor not allowed by the Declaration).

But before court and per California statute, first IDR needs to be wrapped up. Then ADR needs to be attempted. I am observing from afar these steps for a group of HOA members in California. They are using a remarkable attorney. Then again, this group is expert on the governing documents and HOA law and can speak analytically and articulately on same. In my opinion, this has greatly facilitated their progress.

I do not agree that attorneys for HOA members are so out of reach.

I am not an attorney. My email addie is [email protected]
SteveA7
(California)

Posts:20


07/20/2019 11:20 AM  
AugustinD
a quote from an article you referred me to. California Supreme Court.

The Court analogized the granting of an architectural variance to the administrative award of a zoning variance by a
city or county.
In the zoning context as well as here, a departure from the master plan in the Declaration stands to
affect most adversely those who hold rights in neighboring property. Hence, what the California
Supreme Court has stated with regard to judicial review of grants of variances applies equally well to
the Association's actions herein: "[C]ourts must meaningfully review grants of variances in order to
protect the interests of those who hold rights in property nearby the parcel for which a variance is
sought. A zoning scheme, after all, is similar in some respects to a contract; each party foregoes rights
to use its land as it wishes in return for the assurance that the use of neighboring property will be
similarly restricted, the rationale being that such mutual restriction can enhance total community
welfare. [Citations.] If the interest of these parties in preventing unjustied variance awards for
neighboring land is not sufficiently protected, the consequence will be subversion of the critical
reciprocity upon which zoning regulation rests." (Topanga Assn. for a Scenic Community v. County of
Los Angeles (1974) 11 Cal.3d 506, 517-518 𖏩 Cal.Rptr. 836, 522 P.2d 12].) For nearly identical
reasons, we conclude that the courts must be available to protect neighboring property interests from
arbitrary actions by homeowner associations. (Cohen v. Kite Hill Community Assn (1983) 142
Cal.App.3d 642, 652.)

Keeps a smile on my face.
Thanks
AugustinD


Posts:2063


07/20/2019 12:31 PM  
Steve, I agree, and this is consistent with what appears to me to be a general rule in the United States regarding HOAs and either (1) variances; or (2) looking the other way while someone violates covenants.

I would not trust your condo's directors further than I could throw them. I am sorry so much teeth pulling is necessary. You are doing your neighbors a huge favor.
JZ2
(Florida)

Posts:52


07/20/2019 12:54 PM  
// SteveA7, there are very few attorneys who are owner-side lawyers in HOA matters.

I’m a lawyer. HOA lawyers generally are bottom-of-the-barrel. HOA law is not complex and the field doesn’t pay well (as they represent nonprofits with small budgets).

I’d find a talented litigator with some type of background in real estate litigation. He or she will be way better than the HOA lawyer and can figure anything HOA-specific out pretty quickly. //

Actually, that's terrible advice (and your opinion denigrating HOA lawyers is uninformed).

I have no idea what your experience has been with HOA/Condo law practitioners, but I can tell you that many of them are outstanding attorneys. By the way, I regularly litigate False Claims Act and constitutional issues in federal court in addition to litigating community association disputes, so I like to think I have a decent handle on the matter.

Having said that, attorneys are just like those in any other profession: you have a wide spectrum of competence represented from barely competent to extraordinary. That is why it is so important for clients to do their due diligence before engaging ANY attorney.
PaulJ6
(New York)

Posts:382


07/20/2019 1:08 PM  
Posted By JZ2 on 07/20/2019 12:54 PM
// SteveA7, there are very few attorneys who are owner-side lawyers in HOA matters.

I’m a lawyer. HOA lawyers generally are bottom-of-the-barrel. HOA law is not complex and the field doesn’t pay well (as they represent nonprofits with small budgets).

I’d find a talented litigator with some type of background in real estate litigation. He or she will be way better than the HOA lawyer and can figure anything HOA-specific out pretty quickly. //

Actually, that's terrible advice (and your opinion denigrating HOA lawyers is uninformed).

I have no idea what your experience has been with HOA/Condo law practitioners, but I can tell you that many of them are outstanding attorneys. By the way, I regularly litigate False Claims Act and constitutional issues in federal court in addition to litigating community association disputes, so I like to think I have a decent handle on the matter.

Having said that, attorneys are just like those in any other profession: you have a wide spectrum of competence represented from barely competent to extraordinary. That is why it is so important for clients to do their due diligence before engaging ANY attorney.




I am a lawyer and have worked with numerous HOA lawyers.

I stand by my statements.
JohnC46
(South Carolina)

Posts:8892


07/20/2019 1:50 PM  
I have known lawyers, construction companies, plumbers, etc. that do not like working with HOA's especially on any long term project. Their main reasons were they had to explain it over and over to several people. As BOD people change, they often have to re-justify everything the prior BOD agreed to. BOD's are always crying poor mouth and looking to do things on the cheap.

I say a rookie lawyer should easily be able to read Covenants/Bylaws. Though often contradictory, they are not that difficult to read.
JZ2
(Florida)

Posts:52


07/20/2019 1:51 PM  
You certainly have that right, but your comments are inaccurate and advice considerably off-base.

A little humility might serve you well, sir, BWTFDIK....?

PaulJ6
(New York)

Posts:382


07/20/2019 2:18 PM  
Posted By JZ2 on 07/20/2019 1:51 PM
You certainly have that right, but your comments are inaccurate and advice considerably off-base.

A little humility might serve you well, sir, BWTFDIK....?





I'm not claiming to be a super lawyer myself--I'm quite the opposite.

However, I stand by my statements about HOA lawyers. It's a low-paying field. Low pay, except in charitable situations (human rights, etc.), does not attract top talent.

How many Supreme Court justices, top academics (at top-10 law schools) or CEOs of Fortune 500 companies were HOA lawyers? Currently, ZERO.

MelissaP1
(Alabama)

Posts:8764


07/20/2019 3:07 PM  
You do realize that many lawyers and judges live in HOA's themselves?

Myself would not hire a Real Estate attorney. Your really not dealing with property. A HOA is a corporation. So you are dealing with more contractual or corporate laws. There's nothing wrong with hiring a "general" lawyer to draft a few letters but not sure want one to go to litigation if it's a bigger case than small claims.

Lawyers also don't like you going on about this case law and that case law. It doesn't make you a better or easier client. Lawyers are paid/Licensed to PRACTICE law. You are not. So let them do their job. Your case law quotes don't help anyone.

I am always very wary of a lawyer who tells me "I will do what you tell me to do...". That puts up a red flag to me. Investigate a bit more of what they mean by that... It's not all bad. Just need to clarify that there isn't other options. Those options of course NOT taking a lawyer...

Former HOA President
PaulJ6
(New York)

Posts:382


07/20/2019 3:13 PM  
MelissaP1's advice is excellent.
PaulJ6
(New York)

Posts:382


07/20/2019 3:33 PM  
I say a rookie lawyer should easily be able to read Covenants/Bylaws. Though often contradictory, they are not that difficult to read.




Exactly- which is why I was so taken aback by the post above that one HOA lawyer didn't follow those documents. They're not rocket science, and figuring them out is Job #1 of a lawyer.
SteveA7
(California)

Posts:20


07/20/2019 3:43 PM  
Your case law quotes don't help anyone.

I beg to differ.
If i can explain my problem , then show an attorney a similar case, where the person in my situation won.
Why not? Should i withhold the information ? Wait for him to stumble on it?
I want a quick answer, is this a case i can win. I may be wrong, but i thought case law is the basis of a judge's decision.
Of course i could be totally wrong on this.
Regardless, it helps me.

SteveA7
(California)

Posts:20


07/20/2019 3:53 PM  
My case is that my CC&Rs have rules for installing hardwood floors. The floors need to be tested for sound transmission after install.
The CC&Rs were not followed, no test was done, (they would have failed spectacularly) but the owner who installed the floors was granted a variance. No test needed- thus the quote from the courts stating Variance and it's effect on the neighbors.
I'm the downstairs guy.
Sorry i should have explained my case earlier.
PaulJ6
(New York)

Posts:382


07/20/2019 3:54 PM  
SteveA7, when I've looked for counsel before (yes, even lawyers hire lawyers) to go after HOAs, I've Googled caselaw in the relevant state/county and have contacted the plaintiffs' counsel listed in those cases. That's one way to find someone.

I don't think it's a bad idea to show caselaw to the lawyer. But just don't expect the lawyer to jump to use it.
SteveA7
(California)

Posts:20


07/20/2019 4:19 PM  
PaulJ6
I tried that with the Cohen v Kite lawyers but i think the case was 1983, and i couldn't track them down.
I'll try with the other case law and see what happens. Thanks a great -suggestion.
MelissaP1
(Alabama)

Posts:8764


07/20/2019 4:29 PM  
My point exactly Paul. Don't quote "case law" to a lawyer and expect them to act on it. Each case is different. It didn't become a "case" study/law until it was completed. Your case isn't completed and details may not all match up. Plus it doesn't mean you get the same result. It's just another argument to bring to the table to prove your case.

Again. Let the lawyer decide how they want to proceed. They are licensed professionals. It doesn't mean they are perfect. Don't go in suggesting case laws. It's okay for you to be aware of them and make the lawyer aware. Just don't ASSUME it applies to your situation.

For me, I've never suggested a "case law" to any lawyer I've hired. It's not relevant other than "hey I am familiar with a similar case". If it makes you feel better to know it, then so be it. Otherwise, I just keep up the actual process of case and options.

Former HOA President
IslamM
(Florida)

Posts:56


07/30/2019 4:43 PM  
I am in Florida, and like your suggestion very much, if you can't help me, then could you refer me one I don't mind if is not in my town next to Tampa, I need advise and possible a couple of letters.
Thank you
IslamM
(Florida)

Posts:56


07/30/2019 4:50 PM  
I liked your suggestion very much, makes perfect sense, if you are a Fl attorney maybe you could assist me, I am close to Tampa but don't mind if you are not close I need advise and a few letters possibly. If you can't help me maybe you can refer me to another good Fl litigator. I had a great attorney we never met, but I would ask the questions, and mail a check, once received he would email me the advise or letter, but it was in a different issue and it worked very good!
Thank you
JZ2
(Florida)

Posts:52


07/30/2019 5:29 PM  
Happy to speak with you about your matter to see if it makes sense for you to consider engaging my services. If you would like to have that conversation, please post an email address I can use to reach you. (I don't charge for the conversation.)
AugustinD


Posts:2063


08/18/2019 12:40 PM  
Thanks to another member for sending me this link on noisy floors in California and how Boards need to take them seriously:

https://www.echo-ca.org/article/hoa-duty-address-upstairs-units-noisy-floors
NpS
(Pennsylvania)

Posts:3921


08/18/2019 1:10 PM  
Try www.martindale.com

Search by location under Homeowners Association Law.

Sikubali jukumu. Read all posts at your own risk.
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