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Subject: Small claims court: Is a BoD time free?
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Author Messages
GregM14
(Washington)

Posts:77


07/07/2021 10:06 AM  
I'm preparing a to file a claim against a vendor in small claims court. It is taking a number of hours of my personal time to prepare the case. I am curious. While I personally cannot get paid for my time, I would like my association to be compensated by the vendor for this time. Can I put a claim (say $500 or $1000) in to small claims court for the time that I spent working on preparing the case?

Or can I just sue for our actual out of pocket loses that were caused by this vendor?
AugustinD


Posts:1920


07/07/2021 10:15 AM  
Posted By GregM14 on 07/07/2021 10:06 AM
I'm preparing a to file a claim against a vendor in small claims court. It is taking a number of hours of my personal time to prepare the case. I am curious. While I personally cannot get paid for my time, I would like my association to be compensated by the vendor for this time. Can I put a claim (say $500 or $1000) in to small claims court for the time that I spent working on preparing the case?

Or can I just sue for our actual out of pocket loses that were caused by this vendor?
-- Are you a director?

-- If you are a director, does the association pay for your time? Some associations do have provisions where directors may be compensated. This rarely happens. Still I want to cover all bases.

-- I will assume you are not an attorney.

-- Did the Board authorize you do to this legwork (preparing a complaint, a.k.a. lawsuit, to be filed in small claims court)?

-- Whatever the answers above are, from my reading about reimbursable court costs; attorney fees; and the like, I think a judge would not award the HOA/COA the value of your time.

-- I do understand the pro se strategy, used particularly in small claims court, of not using an attorney. Do make sure this is allowed in South Carolina. Some states' corporate codes may require a corporation to use an attorney in any court proceeding, even small claims.
CathyA3
(Ohio)

Posts:2599


07/07/2021 12:46 PM  
My one concern is how to prove that you spent this time - and you can expect the vendor to fight it. It's one thing for an employee whose time is tracked and charged back as needed since they'll have the necessary documentation supporting their claim, but a director won't be on the clock.


MelissaP1
(Alabama)

Posts:10590


07/07/2021 3:02 PM  
May I add that a HOA is a corporation. It typically is incorporated. As a corporation it has to be represented by a lawyer in court (any court) OR have appointed a member to represent the HOA in court. Which judging how well Charles Manson has done representing himself in court not sure many HOA members would support a non-lawyer person doing that.

Plus why is there a need/want to file a lawsuit against a vendor? Vendor's are insured for damages. So any damage they may have done is an insurance claim. If they did not finish a job, a mechanic's lien can be filed against them for money owed. (They can do this vice-versa too). Why does this have to be a small claims case?

Is the HOA involved in this and approved? You would be representing the ENTIRE membership. Not sure if your work would be considered "damages" for the court to award. It's not a paid position. Most likely would not get this money back or compensated.

Former HOA President
AugustinD


Posts:1920


07/07/2021 3:15 PM  
Posted By MelissaP1 on 07/07/2021 3:02 PM
May I add that a HOA is a corporation. It typically is incorporated. As a corporation it has to be represented by a lawyer in court (any court)
No, this is BS. Whether an attorney is required to represent a HOA in small claims court depends on the state.
AugustinD


Posts:1920


07/07/2021 3:26 PM  
In fact, in South Carolina, and as I am betting Greg already knows, non-attorneys may represent corporations in small claims (a.k.a. "magistrate") court. See

-- https://www.scstatehouse.gov/code/t33c001.php"

"SECTION 33-1-103. Designation of representation in magistrates' court; unauthorized practice of law.

A corporation or partnership, as defined in this section, may designate an employee or principal of the corporation or partnership to represent it in magistrates' court. This designation must be in writing and must be submitted to the magistrate at the time the initial pleading in the case is filed by the party. Notwithstanding the provisions of Chapter 5 of Title 40 or any other provision of law, the person so designated, while representing the corporation or partnership in magistrates' court, is not engaging in the unauthorized practice of law.

As used in this section, a corporation or partnership is defined as a general partnership, a limited liability partnership, a limited liability company, a limited partnership, a professional association, a professional corporation, a nonprofit corporation, a business corporation, or a statutory close corporation."


-- In re Unauthorized Practice of Law Rules Proposed by S.C. Bar, 422 S.E.2d
123, 124 (S.C. 1992), at https://casetext.com/case/in-re-unauthorized-practice-of-law-rules
MelissaP1
(Alabama)

Posts:10590


07/07/2021 4:36 PM  
I DID mention this in my post. You have to hire a lawyer OR agree to have someone represent the HOA. Which who is going to NOT hire a lawyer to represent them in court? Charles Manson NOT a lawyer and did it. Bad idea but everyone has a right to make them.

BTW: I took legal courses in college. This allowed me to be able to tread the "legal waters" of my HOA. Which helped us save money and get out of troubles. However, I would never represented the HOA in court. Instead, would make sure hired the best lawyer for our needs. Not take "If that is what you want me to do..." from a lawyer. That is code is there are "other options" that don't require a lawyer.

Former HOA President
AugustinD


Posts:1920


07/07/2021 4:43 PM  
Posted By MelissaP1 on 07/07/2021 3:02 PM
May I add that a HOA is a corporation. It typically is incorporated. As a corporation it has to be represented by a lawyer in court (any court) OR have appointed a member to represent the HOA in court.
Still BS, Melissa. Contrary to what you posted, in many states a non-attorney is not an option for representing a corporation in at least the state court levels.
MelissaP1
(Alabama)

Posts:10590


07/07/2021 4:55 PM  
I got my information from a lawyer... Go figure...

Former HOA President
SheilaJ1


Posts:0


07/07/2021 5:42 PM  
Posted By GregM14 on 07/07/2021 10:06 AM
I'm preparing a to file a claim against a vendor in small claims court. It is taking a number of hours of my personal time to prepare the case. I am curious. While I personally cannot get paid for my time, I would like my association to be compensated by the vendor for this time. Can I put a claim (say $500 or $1000) in to small claims court for the time that I spent working on preparing the case?

Or can I just sue for our actual out of pocket loses that were caused by this vendor?



Absurd request.

No you won’t get a penny unless you’re contracted with the HOA. No, you cannot take the vendor to small claims because you have no actionable claim. Only the HOA does.

You act like you won already.

You could put in a derivative claim but any claim rewards would go back to the HOA. Again, absurd request especially for such a low amount. If anything, you’ll probably end up owing the vendor for their time to defend the claim.

Can you provide more details on this, you’re a volunteer? what exactly did you spend time doing? Why the insurance attorney is not involved? Are other volunteers seeking money as well? This is way out there.
AugustinD


Posts:1920


07/07/2021 5:53 PM  
Posted By SheilaJ1 on 07/07/2021 5:42 PM
No, you cannot take the vendor to small claims because you have no actionable claim. Only the HOA does.
Sounds to me like the Board selected the OP to file this claim.

Let's give the OP a chance to clarify.
AugustinD


Posts:1920


07/07/2021 6:08 PM  
From the looks of other posts by GregM14 (the OP), the signs are strong that he remains a director on his HOA's Board.
CathyA3
(Ohio)

Posts:2599


07/08/2021 4:55 AM  
More thoughts:

* Yes, a director's time is "free". The position is more like that of a salaried employee who works until the job is done, regardless of the number of hours they put in.

* Receiving compensation of any kind from a vendor, even if you have to sue them to get it, could make it appear that you have a conflict of interest. Why muddy the water?

* Assuming the vendor's contract didn't spell out any kind of allowance for HOA time, trying to essentially re-negotiate after the fact is probably a non-starter. (And of course there is the problem of having no proof supporting your claim that you did put in all these hours. A judge won't take your word for it.)

* If this particular vendor turns out to be more trouble than they're worth, the correct response is to not use them in the future. Consider it a lesson learned.

* Vendors can also learn lessons, and HOAs can also be more trouble than they're worth. You don't want your HOA to get a reputation that results in quality vendors not bidding on your jobs.
SheliaH
(Indiana)

Posts:4290


07/08/2021 7:16 AM  
I can understand getting reimbursed for photocopying, parking (when going to th courthouse to file the lawsuit), but unless we're talking about expenses where you have written verification, I don't see you getting compensated for your "time."

You're supposed to be a volunteer and I believe you've had other posts where you complain about the amount of time you spend on association business. If you have a property manager, why aren't you getting him or her to do the work? If an attorney is going to represent the association , why isn't he or she preparing the case? That's what they're paid to do.

I understand and appreciate your time is important to you, as it should be, but you didn't say If the board asked you to do this. When they did, THAT was the time where you could have asked about this. Of course, you do know if you did get paid, you'd have to list this as income on your taxes returns, don't you?

And how do you come up with a price for your personal time? Is it by the job or the amount of time you out into it? How is THAT documented? Does the association get a or if adjustment if the rest of the board is dissatisfied with your work? This can get complicated and start a nasty trend when no one will be willing to do what's necessary unless they get paid.

Volunteer work can be as involved as you want it to be and maybe it's time you decide once and for all how much time you're willing to put in this. I think on one of your previous pists, I suggested that everyone on that board should have an area to oversee. it shouldn't have to use up all your free time, especially if you take the time to organize. If everyone does a little bit, the work will be done in less time

CathyA3
(Ohio)

Posts:2599


07/08/2021 9:13 AM  
FWIW, my bylaws say that "no director shall receive compensation for any service rendered to the association as a director. However, any director may be reimbursed for his or her actual out of pocket expenses incurred in the performance of his or her duty."

So, as Sheila said, we can be reimbursed for things like printing expenses for which we have a receipt - but compensation for our time is a hard no. I think our bylaws are pretty typical.

Our bylaws do give the membership the right to change this at a properly called and noticed meeting for this purpose. But we'd have to convince a majority of the membership that increasing our assessments in order to pay the directors is a good idea. That's probably a tough sell in many communities.

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