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Subject: Assessing Legal Expenses To Less Than All HOA Owners
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ElleN
(Idaho)

Posts:9


09/10/2020 10:19 AM  
A number of HOA declarations state the following:

"The Board shall have the power to assess expenses of the homeowners association against Units that are incurred as a consequence of the conduct of less than all Owners, the licensees, invitees, or guests."

An owner and a HOA are fighting over the interpretation of the above in small claims court as we speak. The HOA is trying to collect $1800 from the owner for legal expenses incurred 'as a consequence of the owner's conduct.' The HOA contends that the legal expenses billed by the HOA attorney for addressing the owner's complaint (long before the dispute is in court and with no threat of litigation) may be assessed to the owner. The owner contends that the legal expenses are incurred far less as a consequence of his actions but instead, as a consequence of a frivolous board decision, based in the board's alleged desire to harass, to send the owner's complaint to the HOA attorney for review of the relevant law. The owner also contends that the Board is not required to take the advice of counsel. According to the owner, the Board's decision not to do so and to pursue another avenue, using the HOA attorney, is again, a consequence not of the owner's conduct but of the board's subjective, and allegedly frivolous and harassing, decision-making.

The owner's complaint was that a requirement to notarize proxies violates the covenants. The HOA attorney eventually agreed with the owner and advised the board to stop requiring notarizing. But this was only after the HOA attorney prepared and sent a six page, single-spaced letter of legal citations and intimidating language essentially telling the owner that, if this went to court, then this would be a case of first impression in the HOA's state.

The board is now assessing other individual owners for the HOA attorney's bills for addressing other complaints of covenant violations; municipal law violations; and federal law (fair housing) violations.

In the opinion of people here, does the owner's argument that the legal expenses are incurred more because of a board decision than because of his actions carry weight?

Any other thoughts on the practice of billing an owner for the cost of the HOA attorney addressing the owner's complaint (with the dispute never going to court and with no threats of going to court even happening)?
CathyA3
(Ohio)

Posts:1231


09/10/2020 10:32 AM  
Based on my experience on the board, legal fees could be passed on to the homeowner only if there was actual litigation and the court ruled that way.

In situations where we had the attorney act as an advisor or as a mediator in a complaint, the association paid the cost.

I think the passage you quoted refers to things like passing on the cost of repairing damages done to the common areas by a homeowner or his guests. I believe the bar for passing on legal fees is higher, and the language in the CC&Rs needs to be very specific to allow it.

But I'm not a lawyer, so take my comments with a grain of salt.
SheliaH
(Indiana)

Posts:3456


09/10/2020 11:28 AM  
If both sides have attorneys, they need to stay out the way and let the attorneys duke this out because that's what attorneys do. Most of us on this website aren't attorneys and even if we were, most don't live in your state, so it really doesn't matter what we think because a judge may end up deciding the thing. By the way, which side are you on - are YOU the owner or a Board member?

All of that said....if the owner contends the legal expenses are less than $1800 or whatever because of a board decision vs. what he or she actually (or allegedly did), that's an argument he or she needs to make before a judge and provide relevant evidence to that effect. I don't know how a judge would look at this because there are no rules saying a specific legal proceeding should cost X dollars. There may be set expenses like filing documents or sending letters. If the association had to take legal action to fight an owner's complaint and won, it's well within its right to request the owner reimburse the Association for its legal expenses. It's not always the big bad board making crazy decisions or being stubborn - sometimes the legal wresting occurs because the homeowner cannot or refuses to read the bloody documents, or comply with them because "it's my house dammit and I'll do what I want!" This, despite buying into a community when he/she automatically became an association member and therefore legally obligated to comply with its rules (even the ones that don't make sense.)

Want to change them? Rally together your neighbors and talk to the board about drafting an amendment, then check your documents to see how amendments are made and follow instructions. Get an attorney to review the proposals to ensure they don't contradict local, state, and federal law, record them and then you're done. Of course, there's a lot more to the process, but you get the idea.

This is why Boards - and homeowners for that matter - need to consider legal action carefully before proceeding. Lawsuits should always be the last resort because they're time-consuming and expensive and in the end, the attorney gets paid regardless. If you're going to throw down in court, you need to go in knowing you have at least an 80% or better chance you'll win. Someone can also countersue you and if you lose that, you're not only out of the money you spent filing the lawsuit but may be ordered to pay the other side's legal expenses. Put another way, don't start none, won't be none. Or, as my dad used to say "don't let your mouth write a check that your ass can't pay."

Regarding the attorney's advice, it's true a HOA board isn't required to take it. There are various reasons for that, but the Board, not the homeowner, makes that decision - another reason legal action should be the last resort, whenever possible. Paying for those expenses come out of the Association's general funds, which all homeowners pay into, and it's not good for homeowners to end up paying for something that could have been settled if both sides sat down and behaved like adults instead of children. I'd rather spend money on improving the community as opposed to a lawsuit "just to teach this jackass homeowner we are the board and therefore we are." Better to have a case so strong that defense counsel takes one look and tells his/her client "you have a better chance of walking through Hell with a gasoline suit on - let's talk about settling this thing now."



ElleN
(Idaho)

Posts:9


09/10/2020 12:32 PM  
Thank you, CathyA3. After a year of court proceedings and then a trial in July, it turns out that the judge in small claims court dismissed the HOA's lawsuit against the owner, without explanation, as is the right of the small claims court. But the HOA has appealed to the next higher court, as of a few days ago. The HOA seems to want this "win." The owner is "pro se" (so has no attorney). The owner's filings with the small claims court seem a bit sloppy but he massively documented. He made the legal argument I gave in my first post above.

SheliaH, thank you for sharing your opinion of the wording of the covenant and more. the owner does not have an attorney. The HOA used its regular attorney. For the appeal, the court records show the HOA is now using both its regular attorney and a second attorney.

The legal expenses that are in dispute are not on account of court litigation. They are for the HOA attorney's work, over a year ago, researching the legalities of the owner's complaint and then sending a long letter to the owner. Subsequently the HOA assessed the owner $1800 for the cost of the attorney's work. The owner refused to pay. Then the HOA took the owner to small claims court to collect the $1800. Interestingly, the HOA did not use the law firm it normally uses to collect on owners who are delinquent in paying the regular assessment.

The owner is an acquaintance of a dear friend. I offered help, and the owner accepted. I am not an owner in this HOA. I am not on its board.
CathyA3
(Ohio)

Posts:1231


09/10/2020 12:49 PM  
Just one observation: something that can be resolved in small claims court is small potatoes. Pursuing it further will push it well beyond that, to the likely detriment of every poor soul living in that community. (Ever try selling your home when the HOA is engaged in litigation? Or see what happens if the HOA's insurer dumps them?)

People seem to get into these snits and throw more and more money at whatever it is, without stopping to consider whether the benefit they hope to achieve in any way justifies the expense needed to achieve it. The fight becomes the end goal, rather than the means to achieve the original end.

To quote the great Philosopher King Kenny Rogers: "You gotta know when to hold 'em, know when to fold 'em, know when to walk away, and know when to run."
JohnC46
(South Carolina)

Posts:9870


09/10/2020 1:59 PM  
Posted By CathyA3 on 09/10/2020 12:49 PM
Just one observation: something that can be resolved in small claims court is small potatoes. Pursuing it further will push it well beyond that, to the likely detriment of every poor soul living in that community. (Ever try selling your home when the HOA is engaged in litigation? Or see what happens if the HOA's insurer dumps them?)

People seem to get into these snits and throw more and more money at whatever it is, without stopping to consider whether the benefit they hope to achieve in any way justifies the expense needed to achieve it. The fight becomes the end goal, rather than the means to achieve the original end.

To quote the great Philosopher King Kenny Rogers: "You gotta know when to hold 'em, know when to fold 'em, know when to walk away, and know when to run."




Well said. Time for the BOD to fold'em.
ElleN
(Idaho)

Posts:9


09/10/2020 3:24 PM  
I agree, CathyA3 and JohnC46. From what I can tell, what keeps the Board determined to win this lawsuit are (1) a HOA attorney who previously, was a generalist and never practiced HOA law; (2) this attorney's reading (misreading?) of the aforementioned covenant; and (3) a long-entrenched board who like to give the impression of being powerful and smack owners around when the owners challenge them.

The interpretation of this covenant is new, courtesy of this new HOA attorney. The way this is going, with an appeal now underway, and thanks to this inexperienced attorney, I think the board naively thinks it is going to recover all the HOA's court costs from the defendant-owner. This is not the first time this HOA's board has been so reckless.

Another friend started a web site with 'just the facts' and some opining. Hopefully this will put some pressure on the board.

Where this HOA is the court one level up from small claims court does not set precedent. There will be a new trial and a new judge in this higher court (one level up from small claims court). The original pleadings filed in small claims court, along with the new trial, will determine the new judge's decision.

As an academic matter, I kind of hope this does rise to an appeals court that will set precedent. Because for one, I do not want to see this Board targeting owners with the (unlawful IMO) imposition of HOA legal fees. But this is a lot to ask of a pro se defendant.

Apathy prevails at this HOA, as is so common. I do not think the owner has the energy for a campaign to replace the board and fight the lawsuit.

I will try to update the thread with developments.
ChrisE8
(New York)

Posts:32


09/13/2020 10:44 AM  
The HOA needs to find a better lawyer. The lawyer is really so bad that the lawyer lost in small claims court against a non-lawyer? And the HOA isn't bothered the most by that?

Lawyers are bound by Rules of Professional Conduct that prohibit them from taking on matters that they aren't qualified to handle. If a lawyer had no experience in HOA matters, then the lawyer probably shouldn't have taken on this work, and the small claims loss is evidence of that.

I would consider making a demand on the board to find a better lawyer (who will tell the HOA to knock this off) and would consider going after the lawyer; you can file ethics complaints with state bar associations. And if the HOA billed me for the legal fees, I wouldn't pay them.
JohnC46
(South Carolina)

Posts:9870


09/13/2020 10:49 AM  
Chris

Did it occur to you lawyer or not, the court decided against the lawyer. A lawyer in small claims court does not guarantee a win. Especially in small claims court where a judge will listen to both sides.
ChrisE8
(New York)

Posts:32


09/13/2020 11:03 AM  
Posted By JohnC46 on 09/13/2020 10:49 AM
Chris

Did it occur to you lawyer or not, the court decided against the lawyer. A lawyer in small claims court does not guarantee a win. Especially in small claims court where a judge will listen to both sides.




I stand by my post and thought it through before posting.
JohnC46
(South Carolina)

Posts:9870


09/13/2020 11:09 AM  
I do admit it is fun seeing a lawyer get his a$$ kicked in small claims court.
CathyA3
(Ohio)

Posts:1231


09/13/2020 11:11 AM  
I would hope that the judge ruled on the merits of the case, rather than on which side had an attorney with them.

Based on what the OP said, the judge decided that either the board was using a provision in their governing docs that applies to different situations, or that the language did apply but there were additional conditions that had to be met (and were not). No lawyer can change the language of the governing docs, much as they may want to.

One thing I learned while serving on my community's board: don't read things into the CC&Rs that aren't there, and read all applicable portions in their entirety. Relevant verbiage can pop up in unexpected places.
ChrisE8
(New York)

Posts:32


09/13/2020 11:55 AM  
ElleN, I would do whatever is needed to get the HOA board to get a better lawyer who will get the board to knock this off.

Lawyers are not slaves of their clients; lawyers have professional ethics requirements to follow and should advise their client about how to best handle a situation, and lawyers must (under ethics rules) withdraw from representing a client if the client wants to take an illegal or harassing action.

By continuing with this nonsense, the lawyer is putting himself/herself and the HOA at risk.

I would go after the lawyer and get the board voted out.
CathyA3
(Ohio)

Posts:1231


09/13/2020 12:51 PM  
Posted By ChrisE8 on 09/13/2020 11:55 AM
ElleN, I would do whatever is needed to get the HOA board to get a better lawyer who will get the board to knock this off.

Lawyers are not slaves of their clients; lawyers have professional ethics requirements to follow and should advise their client about how to best handle a situation, and lawyers must (under ethics rules) withdraw from representing a client if the client wants to take an illegal or harassing action.

By continuing with this nonsense, the lawyer is putting himself/herself and the HOA at risk.

I would go after the lawyer and get the board voted out.




ElleN is not a homeowner in this community, so she is in no position to do anything.

The only ones who can get rid of the attorney are the ones who hired him in the first place: the board. You would hope that losing the first round would at least make them stop and think things through. But those of us who have many years of experience with HOAs and condo associations know that boards come in all flavors, from the competent and responsible to the arrogant and foolish, all the way down to the criminals at the bottom of the pit. This particular board seems to fall in the "arrogant and foolish" group.
ChrisE8
(New York)

Posts:32


09/13/2020 1:19 PM  
Posted By CathyA3 on 09/13/2020 12:51 PM
Posted By ChrisE8 on 09/13/2020 11:55 AM
ElleN, I would do whatever is needed to get the HOA board to get a better lawyer who will get the board to knock this off.

Lawyers are not slaves of their clients; lawyers have professional ethics requirements to follow and should advise their client about how to best handle a situation, and lawyers must (under ethics rules) withdraw from representing a client if the client wants to take an illegal or harassing action.

By continuing with this nonsense, the lawyer is putting himself/herself and the HOA at risk.

I would go after the lawyer and get the board voted out.




ElleN is not a homeowner in this community, so she is in no position to do anything.

The only ones who can get rid of the attorney are the ones who hired him in the first place: the board. You would hope that losing the first round would at least make them stop and think things through. But those of us who have many years of experience with HOAs and condo associations know that boards come in all flavors, from the competent and responsible to the arrogant and foolish, all the way down to the criminals at the bottom of the pit. This particular board seems to fall in the "arrogant and foolish" group.




ElleN said that she offered help, and the owner accepted. I stand by my recommendation and agree with you fully about the second paragraph of your response.
ElleN
(Idaho)

Posts:9


09/13/2020 6:04 PM  
ChrisE8, from knowing several who live at this HOA and for years, I believe this is one of those boards that is out of control. The board lies and harasses routinely. About 60% of the 300+ owners are absentee owners and do not care about how the place is run. Regarding ethics complaints: I understand the only time the state agencies tasked with regulating attorney ethics pretty much only listen if it is the attorney's client doing the complaining. Anyway I do not think my friend is capable of writing a letter of complaint to the state agency responsible for attorney ethics. Reading the Rules of Professional Conduct is a chore. I know they exist, but I am not up for it.

JohnC46, word is getting around. An amazing number of owners and residents at this HOA came out of the woodwork to be witnesses to the harassment and tell their own stories. Like a dozen or more. Others feared more retaliation from the Board but offered moral support to the Defendant-owner.

I do think it is quite a bit worse at this HOA than at even the worst-run HOAs. The residents who offered to be witnesses are all delighted, for now. But the appeal awaits.

CathyA3, I heard more about how the trial went. To give an idea of how things went: The trial had to be spread over three days. The attorney for the HOA-plaintiff showed up half an hour late to the first day of the trial. At one point when a HOA director was testifying, the judge snapped at the director. Months before this dispute reached the court, the defendant had requested a HOA hearing about being assessed for the attorney's fees. The HOA's rules and regs are detailed about complaints and hearings. If an owner requests for a hearing, the HOA must honor this request and hold it. With the director on the witness stand, the defendant asked the director why a hearing had not been held. The director said she did not know. According to the defendant-owner, the judge was livid.

The defendant got some help from a Legal Aid clinic a few months ago. The attorney at the Legal Aid clinic homed in on the HOA's failure to give a hearing, too.

Another attorney at the Legal Aid Clinic (at another visit) pointed out that the HOA is trying to burn out the defendant. I know for-profit corporations do this all the time. But a non-profit HOA corporation? I think the posts above show you all have the picture.

I will try to remember to update this thread in the future.
ChrisE8
(New York)

Posts:32


09/13/2020 6:17 PM  
ElleN, HOAs are prone to try to burn out a plaintiff by dragging on the litigation and trying to run up the plaintiff’s legal fees. They do it all the time. They’re perhaps worse than regular companies in this respect because the board doesn’t have investors behind it, wanting their money spent wisely. I’ve been through litigation against a HOA and your friend needs to be a lot more aggressive than just litigating; your friend needs to go after the lawyer and go after the board members personally. Only when they will individually near the consequences of their wrongdoing will they stop. So what if the HOA spends a fortune in litigation and even loses; it’s the HOA’s money and the HOA’s problem, so the board members couldn’t care less unless they feel the results themselves.
ElleN
(Idaho)

Posts:9


09/13/2020 6:20 PM  
Posted By ElleN on 09/13/2020 6:04 PM
The attorney for the HOA-plaintiff showed up half an hour late to the first day of the trial.
A bit more: The defendant and his witnesses attended by phone. I think the courthouse was still not open for trials? I am not sure. Somehow, the courts are still humming along (sputtering, hiccuping and coughing along with the occasional technological challenge of virtual court trials)?
CathyA3
(Ohio)

Posts:1231


09/14/2020 6:09 AM  
The cheaper and faster solution to rogue boards is a recall election and voting in replacements.

Easier said than done, I know. You need enough homeowners who've had their necks full of the nonsense and who are willing to volunteer their own time to creating a better situation. People need to understand that they, too, are being personally harmed (eg., rising assessments to cover the cost of litigation) - otherwise they're going to maintain their apathetic ways.

If I were in the position of the friend of the friend, I would take a hard look at my situation, the odds that it would improve, how long the improvement would last, and what it would take to achieve this. For instance, do I have deeper pockets than the association does, or can they force me to give up at some point? Also do a thought experiment - assume that nothing changes and the current board remains in power, is my community so wonderful that it's worth putting up with the status quo?

Moving is always an option, and often involves the least amount of wear and tear on your finances and mental health.

ChrisE8
(New York)

Posts:32


09/14/2020 6:11 AM  
Excellent advice, CathyA3 (and excellent advice from others in this thread as well). Well said!
ElleN
(Idaho)

Posts:9


09/14/2020 11:14 AM  
CathyA3, in the last two years at one point, the defendant owner undertook a campaign, with flyers and going door-to-door. The owner is well-liked. He found enormous sympathy and heard many stories of similar harassment. Some of these folks readily agreed to serve as witnesses in small claims court. But the defendant owner also heard many express fear if they fought or spoke out.

As John, Chris and you suggested, I advised the defendant owner to consider, as one of his options, moving. To me the problem is the legal expenses the HOA has assessed the owner are, it turns out, in the tens of thousands of dollars at this time. This was mentioned at the small claims court trial. The judge and HOA attorney noted that "attorney's fees" would be covered in a different proceeding. I am aware of this in general but am not sure how small claims/district court handles this from a practical standpoint.

As I am sure all here know, the defendant owner cannot sell as long as there is this unpaid HOA debt (based in a bogus assessment of HOA attorney fees, as far as I am concerned). So it would seem to me the owner has a noose around his neck and can't really 'fold 'em,' in the words of the esteemed philosopher Mr. Rogers and perhaps, in different words, the other Mr. Rogers.

I have advised the defendant owner to focus on the lawsuit and extricating himself from it, such that he owes nothing (no attorney fees et cetera) other than his regular assessment.

The HOA will not settle. I think this is partly because the Board is operating under what I think is bad advice from the HOA attorney regarding interpreting the covenant on assessing individual owner's for attorney fees. I have done more research. I like the defendant-owner's chances on this point (the attorney's fees being assessed to him on his HOA statements as we speak) and am having success getting him to focus on battling just this.

ChrisE8
(New York)

Posts:32


09/14/2020 11:43 AM  
A normal HOA would jump at the chance to waive outstanding fines on a troublesome owner if the owner would just move.

I think that the owner should just move and let the HOA try to hold up the sale over alleged owed attorneys' fees.
CathyA3
(Ohio)

Posts:1231


09/14/2020 3:06 PM  
Posted By ElleN on 09/14/2020 11:14 AM
... snip ...

As John, Chris and you suggested, I advised the defendant owner to consider, as one of his options, moving. To me the problem is the legal expenses the HOA has assessed the owner are, it turns out, in the tens of thousands of dollars at this time. This was mentioned at the small claims court trial. The judge and HOA attorney noted that "attorney's fees" would be covered in a different proceeding. I am aware of this in general but am not sure how small claims/district court handles this from a practical standpoint.

... snip ....





Oh my, I think the board's actions are unconscionable.

Some maybe not-so-off-the-wall suggestions:

Could he talk to his state congressperson(s) or ombudsman, especially if he can find one who has a history of speaking out against HOA excesses.

Or call a local newspaper, if you still have one, or a local TV/radio station. Sometimes they have "action lines" that help their constituents with problems. Perhaps some negative publicity will get the board's attention.

I can understand why other homeowners may be reluctant to become victims themselves, but outsiders don't have those concerns. This kind of nonsense thrives if people just roll over and get silently steamrolled. Time for some noise.

JohnC46
(South Carolina)

Posts:9870


09/14/2020 3:34 PM  
Posted By ChrisE8 on 09/14/2020 11:43 AM
A normal HOA would jump at the chance to waive outstanding fines on a troublesome owner if the owner would just move.

I think that the owner should just move and let the HOA try to hold up the sale over alleged owed attorneys' fees.




I agree. Help him out the door.
JohnC46
(South Carolina)

Posts:9870


09/14/2020 3:35 PM  
Posted By ChrisE8 on 09/13/2020 11:55 AM
ElleN, I would do whatever is needed to get the HOA board to get a better lawyer who will get the board to knock this off.

Lawyers are not slaves of their clients; lawyers have professional ethics requirements to follow and should advise their client about how to best handle a situation, and lawyers must (under ethics rules) withdraw from representing a client if the client wants to take an illegal or harassing action.

By continuing with this nonsense, the lawyer is putting himself/herself and the HOA at risk.

I would go after the lawyer and get the board voted out.




I agree.
ElleN
(Idaho)

Posts:9


09/15/2020 8:04 PM  
ChrisE8, in my experience where I am, HOAs do not ordinarily go to these lengths. I gave some thought (like 30 seconds) to naming the individual directors in a counterclaim, but the admin associated with the paperwork is a nightmare, and also, I do not want the Defendant-owner (whom I am helping) to anger the judge, given how backed up the courts are in the midst of a pandemic. If you used an attorney, then I think what you say is not applicable here.

CathyA3, thank you for sharing your impression of what I related. I know my presentation is of course one-sided. But as far as the law goes here, I continue to give this a lot of thought. I have done a lot of reading. I have a few drafts of a particular court filing (soon to be filed?) on this point. I can only agree that the board's interpretation of this one covenant is unconscionable. For example, if the judge ruled that a defendant HOA member prevailed in a trial and then awarded the defendant HOA member $12,500 for xyz, what's to keep the HOA Board and HOA from using its (mis-) interpretation of the one covenant to assess the defendant HOA member the next day for $12,500? This would be because the judge's award to the defendant HOA member ends up, in the Board's eyes, as an expense 'incurred as a consequence of" the defendant HOA member's conduct.

I will update when I can.
ChrisE8
(New York)

Posts:32


09/16/2020 2:32 AM  
If you have a valid legal claim against the directors individually, why would the judge get angry if you assert the claim?

Whether or not I used a lawyer, my approach was successful.
ChrisE8
(New York)

Posts:32


09/16/2020 2:58 AM  
Also, why would using a lawyer vs. not using a lawyer be relevant to whether or not a HOA will block a move or whether or not raising claims against the directors or the HOA's lawyer would expedite resolution? I don't follow.

In any event:

1. As bad as this HOA's lawyer sounds, you and the owner seem to be choosing to engage in litigation against the HOA without your own lawyer. That's a bad idea once this heads to "real" court, which it is due to the HOA's appeal. The HOA and its lawyer will have a big advantage then because its lawyer will know the rules of the court and if you and the owner don't have a lawyer, you may not. The HOA and its lawyer may win in the litigation due to procedural reasons, regardless of the validity of your owner's claims.

2. I choose to fight legal battles only when I'm certain to win. I wouldn't litigate against anyone who has a lawyer without getting my own lawyer. And in this case, since the HOA's lawyer sounds pretty bad, I wouldn't even need a great lawyer; any lawyer would suffice to even the playing field.

So if I weren't using a lawyer in this situation, I wouldn't continue the battle once this gets to "real" court. I'd move and then let the HOA try to mess with the sale. That would expose the HOA to even more liability.

But feel free to disregard my advice, as it sounds like you do.
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