Assessment for Legal fees

We had to hire legal counsel to respond to a "Settlement and Release" from a lot owner's lawyer after we disapproved plans for a new home construction. We did not enter litigation, but reluctantly gave approval with condition of lowering the elevation. The home is being built without approval because the condition was not met. We are too small to take risk of litigation (although we have an excellent case)and are living with our wounds and a huge lawyer fee.

The lot owner of the home in question was included in the special assessment for the lawyer fees. They have notified us they refuse to pay for HOA expenses as they had their own expenses. Since this never reached litigation or arbitration, is the lot owner responsible for their portion of the special assessment?

you will need legal counsel

Sherry,

I do not recall the particulars of your subdivision but you describe it here as "too small."

Now may be a time for the owners to decide whether to keep the CC&R's. It sounds like the owners and the association were unwilling to defend the restrictions against one owner's attack.

As I understand it, the result of that attack was an agreement to allow a non-conforming home to be built and the owner has already violated that agreement. (I have my doubts as to whether your association had the authority to enter into such an agreement, but that is a whole nuther issue.) You assert that you have an excellent case yet no one wants to move forward.

Since your association and its members are unwilling to enforce the restrictive covenants, why bother to have them at all if you are going to back down each time an owner hires a lawyer?

To answer your question, yes the guy who caused the expense pays the same as everyone else. Since this is not a case that went to trial, that owner has no judgment that exempts him from paying. You might hope that he does not pay so you can begin foreclosure proceedings asap.

Sherry,

Should he pay, the answer is simple - Yes. Providing all the proper procedures were followed to impose the special assessment.

Will he pay - well, as Larry pointed out, he won once so why not try again.

My suggestion is, since the individual did not agree to the settlement, that you send him and his attorney a cease and desist order on building the house. Take the evidence and ask for a summary judgment from a court on the issue.

Will it cost the Association money - yes. However, providing you win, you can also ask for reasonable attorney fees.

The issue is - will the Association enforce the covenants or not.
If they will, then legal battles, when needed, are part of the process.
If the Association won't enforce, then, as was pointed out, see about amending or removing the governing documents to get rid of those sections that the Association won't enforce.

Oh, you may also want to record a lien on his property for the assessment amount (use his letter of refusal as justification). Once build, the loan will need to go from a construction loan to a mortgage. The lien may or may not have to be satisfied. If it doesn't then the Association can always wait for a sale/refinance or simply foreclose on the lien.

Thanks to those who have offered advice/opinions. Most helpful. Board is working on it and will also check with our legal counsel.