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GertrudeC (California)
Posts: 23
Posted:
Just wondering what may be any success stories or defeats. The reasons and the costs would be helpful if you are willing to share. Thanks
JimR24 (Texas)
Posts: 399
Posted:
Hi there, i haven't had any experience with this on my own; however, some of the more interesting lawsuits are published by the Community Associations Institute (CAI) in a legal newsletter they distribute.

Gertrude, I recognize this is not exactly what u are wanting, but thought it might help. Good luck in your search!

oljim, in texas

Lovin' life with my honey!
and, President of HOA in Texas
JerryD5 (Colorado)
Posts: 218
Posted:
I will tell you from a different perspective. I am on the board and we faced a lawsuit (filed in small claims court) by one of the homeowners last year. Their case was dismissed before the judge even heard any arguements because the homeowners made some serious tactical errors. One, they sued our PM but should have sued the board (but serving the PM as our agent). Plus, they were asking for reimbursement of fines/fees they were assessed but hadn't paid. Those errors would have been caught if they had consulted a competent attorney. In the end, they tried to go it alone. All I can suggest is that be sure you have a strong case. Obviously, small claims court is much easier and less expensive way to go (though there is a limit you can sue for) and you can do it yourself. If you go through regular court, it is much more expensive.

In our only other lawsuit was 5 years ago. It was a personal injury lawsuit brought by a homeowner that slipped on ice. She recovered a 6 figure settlement. The case went on for 18-24 months. I was not on the board at the time the lawsuit was filed but was the board president by the time it was settled. The case itself never went to court. I am very friendly with the homeowner that sued us and we ensure that the area in front of her house is adequately cleared of any ice/snow. Though my own personal opinion the majority of the ice that she slipped on was caused by 2 water fountains that she has on her property and overflowed onto the sidewalk.

Good luck
JimR24 (Texas)
Posts: 399
Posted:
Excellent summary of things from Jerry. Thanks for posting up!

oljim, in texas

Lovin' life with my honey!
and, President of HOA in Texas
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Right or wrong there are just some basics when deciding to sue your HOA. (It is NOT just your HOA board).

1. Suing your HOA is suing yourself and your neighbors. This is a FACT. Can't change it right or wrong in your lawsuit pursuit. You have to accept this when factoring in when pursuing your lawsuit. You will be paying BOTH ends of your lawsuit and even award. The HOA lawyer is NOT your lawyer. They are the HOA's lawyer and represents the HOA as a WHOLE. You being a member, means that lawyer is also defending you against your own lawsuit. You have to have your own legal council.

2. Court can ONLY make you "Whole". That means the court can ONLY pay you back for damages you incurred to put you back to your original state. This may or may not include your legal costs. It will depend on your case what the court will decide if you pay your own legal costs, the other parties, or the other pays yours.

You do NOT make a profit in a court. There has to be actual damages like money or proven bids of what it will take to fix the issue. The court has to see receipts and proof. The court will not award "pain and suffering" to most cases unless there is proven gross negligence beyond reason.

3. 99% of your issue can be resolved within your own HOA documents. If you don't like rule like no boats in the driveway, then you can change that rule. The power is in your hands to do it. Just get a majority of the owners to agree to modify the documents to allow boats, and your issue is done. It takes a lot more work and less money to do this route. However, I find most people would rather sue their HOA than be part of it making changes.

4. HOA boards have Liability insurance. This means individual board members can't be sued as individuals if acting in a board capacity. Plus this also means that the HOA may have a 1 Million dollar policy. That does NOT mean you get a million dollars or to sue for it. You most likely top out around 60 - 80K pay out. Anything over that million dollars, then ALL the owner's have to pay to the difference. Which could mean a special assessment. You still have to pay that special assessment.

So sue your HOA all you want... Just realize you face consequences for doing so. It's up to you to accept those consequences and do you... Don't expect your neighbors to support you when they find out your suing them...

Former HOA President
JohnC46 (South Carolina)
Posts: 14,265
Posted:
gertrude

What reason(s) do you have to consider such?

Thanks
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By JerryD5 on 05/01/2015 6:09 AM

I am on the board and we faced a lawsuit (filed in small claims court) by one of the homeowners last year. Their case was dismissed before the judge even heard any arguements because the homeowners made some serious tactical errors. One, they sued our PM but should have sued the board (but serving the PM as our agent). Plus, they were asking for reimbursement of fines/fees they were assessed but hadn't paid. Those errors would have been caught if they had consulted a competent attorney. In the end, they tried to go it alone. All I can suggest is that be sure you have a strong case. Obviously, small claims court is much easier and less expensive way to go (though there is a limit you can sue for) and you can do it yourself. If you go through regular court, it is much more expensive.

Small Claims courts usually have some severe limitations on what issues they may decide. It sounds like this owner was seeking a declaratory judgment that he did not owe his HOA the money for the fines and/or fees; in my state any action for declaratory judgement, regardless of the amount, must be filed in Superior Court.

Regardless of the court, a plaintiff must name the proper parties he is proceeding against and he must serve process on the persons identified in the statutes or by rules of court. Failing to abide by those simple rules is fatal to a case.

The average person (and that includes nearly all HOA board members) knows little about the law and how to protect their rights. Long ago I concluded that many people, businesses, and organizations, perform illegal acts against others mostly out of ignorance of the law rather than an intent to cause harm. The victims seldom seek justice because, being ignorant themselves, they do not know they have been wronged or they feel the cost of seeking justice is either beyond their means or not worth the effort.

JerryD5 (Colorado)
Posts: 218
Posted:
Larry, I totally agree with you on your points. In our case, in the small claims court, the homeowner was so dejected when the judge dismissed his case. In reality, I truly think it was his wife's idea to file the case but he was alone in court. The wife only showed up after the case was dismissed (it was the first case on the docket and I am sure she expected to be there in time). The family admitted they received all their information from a non-lawyer source (and the internet). Fast foward to today, the homeowner is current on all their fines/fees (after we had to send them to collections).

TimB4 (Tennessee)
Posts: 21,059
Posted:
I prefer resolving the issue at the lowest level possible. When I had my issue with my Association, I looked into and considered legal action. I had statutes that supported my position and strong documentation. I was positive I could win any legal action.

Instead of perusing my legal options, I tried to resolve the issue with the Board. The Board refused to change their position even though I provided statute and documentation. Therefore, I took my issue to the membership via newsletters. I attended every board meeting and wrote about the issues, how the Board was or was not complying with the governing documents, gave praise when deserved and educated the membership on the various issues I discovered. After three years, the membership became more involved. This had one person (who had served on the Board for over 18 years) choose not to run again.

At the annual meeting, I was informed by the Board that they had seen the light and changed their position. This told me that my issue was really with that one individual and the fact that nobody wanted to challenge them.

A year after that occurred, I was elected to the Board. Now my real education into the issues I thought I knew began. What an education it has been and, thankfully, I found this site and the support and assistance of the members who frequent it (I would not have been able to accomplish what I have done without that assistance).

There are times when issues must be taken to the courts. However, I think that most of those could be resolved within the Association if people are willing to put in the work required. As I said, it took three years to get things to change within my Association.
NancyG3 (North Carolina)
Posts: 342
Posted:
Hi Gertrude - I sued my HOA in small claims court without a lawyer, it was about a storm water drainage pipe they installed on my property. I made a big mistakes and my only regret is I didn't have an attorney with me. I lost my case because the magistrate said I didn't prove my damages. Two years later my HOA sued me for replacing the pipe after they had obtained a permit from the State and a survey to include the pipe on my property. I had my attorney with me this time and the HOA lost their case against me. It cost quite a bit of money, however, I was willing to pay the price to protect my property. What the outcome is now is that a lot of neighbors and of course the Board still dislike me. I just keep my head high and keep on walking. By the way, in the beginning I tried to work with our Board and they just ignored me. My lesson learned is never go into a court room without an attorney unless you are an attorney.
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By NancyG3 on 05/02/2015 5:16 AM
I had my attorney with me this time and the HOA lost their case against me. It cost quite a bit of money, however, I was willing to pay the price to protect my property.

Does the law in your state not allow the prevailing party to recover attorney's fees? I know that's a big deal here in Florida. When someone hears, "If you lose you have to pay the other guy's lawyers, too," they think twice before suing.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By GenoS on 05/03/2015 6:55 PM

Does the law in your state not allow the prevailing party to recover attorney's fees? I know that's a big deal here in Florida. When someone hears, "If you lose you have to pay the other guy's lawyers, too," they think twice before suing.


The problem with that is it causes parties to think, "If I keep at this long enough I will prevail and recover my costs." I sometimes think it encourages protracted litigation in the misplaced belief that the courts will order reimbursement of all costs for the winner.

In my state, lawyer fees are recoverable only in actions arising from a contract. Even then, there is no guarantee that all fees paid will be awarded. The statutes allow the judges great latitude in how much can be awarded. The prevailing party can collect only what he paid, at a maximum. The judge may also consider the relative wealth of the parties, whether previously untested legal theories were raised by the defendant, whether a lawsuit was even necessary, and whether the fees were reasonable. Never count on recovering all attorney fees.

GertrudeC (California)
Posts: 23
Posted:
Thanks to all for the great information. So far our storm drains are not an issue here as we are in CA with no water. In the future it will be an issue. Not only if we do or do not get rain but because of new state mandated law on how storm water will need to be diverted. We do have trip hazards buckled streets with tree roots reference to (ice lady)and lots of liability issues. It is interesting that change thru a 3 year process was possible. Also it is important for folks to realize that we as a whole could pay thru assessments should the award exceed our "Fidelity" Bond or Insurance limit, now that is something! Me? I have no intention of going to Court. I am just learning all about HOA living for the first time.
NancyG3 (North Carolina)
Posts: 342
Posted:
I did ask for reimbursement when the Board sued me but was denied. I guess it depends on what you are suing for. I handled a suit against our Board and the Board denied me my cost of going to court and attorneys fees to defend our HOA. I was awarded expenses which included Attorney fees.
ThomasD2 (California)
Posts: 208
Posted:
Quote:
Posted By JerryD5 on 05/01/2015 6:09 AM
I will tell you from a different perspective. I am on the board and we faced a lawsuit (filed in small claims court) by one of the homeowners last year. Their case was dismissed before the judge even heard any arguements because the homeowners made some serious tactical errors. One, they sued our PM but should have sued the board (but serving the PM as our agent). Plus, they were asking for reimbursement of fines/fees they were assessed but hadn't paid. Those errors would have been caught if they had consulted a competent attorney. In the end, they tried to go it alone. All I can suggest is that be sure you have a strong case. Obviously, small claims court is much easier and less expensive way to go (though there is a limit you can sue for) and you can do it yourself. If you go through regular court, it is much more expensive.

In our only other lawsuit was 5 years ago. It was a personal injury lawsuit brought by a homeowner that slipped on ice. She recovered a 6 figure settlement. The case went on for 18-24 months. I was not on the board at the time the lawsuit was filed but was the board president by the time it was settled. The case itself never went to court. I am very friendly with the homeowner that sued us and we ensure that the area in front of her house is adequately cleared of any ice/snow. Though my own personal opinion the majority of the ice that she slipped on was caused by 2 water fountains that she has on her property and overflowed onto the sidewalk.

Good luck

These stories are informative. Does anyone else have any case histories like this they can mention?
ThomasD2 (California)
Posts: 208
Posted:
Quote:
Posted By ThomasD2 on 05/11/2015 10:51 AM
Posted By JerryD5 on 05/01/2015 6:09 AM
I will tell you from a different perspective. I am on the board and we faced a lawsuit (filed in small claims court) by one of the homeowners last year. Their case was dismissed before the judge even heard any arguements because the homeowners made some serious tactical errors. One, they sued our PM but should have sued the board (but serving the PM as our agent). Plus, they were asking for reimbursement of fines/fees they were assessed but hadn't paid. Those errors would have been caught if they had consulted a competent attorney. In the end, they tried to go it alone. All I can suggest is that be sure you have a strong case. Obviously, small claims court is much easier and less expensive way to go (though there is a limit you can sue for) and you can do it yourself. If you go through regular court, it is much more expensive.

In our only other lawsuit was 5 years ago. It was a personal injury lawsuit brought by a homeowner that slipped on ice. She recovered a 6 figure settlement. The case went on for 18-24 months. I was not on the board at the time the lawsuit was filed but was the board president by the time it was settled. The case itself never went to court. I am very friendly with the homeowner that sued us and we ensure that the area in front of her house is adequately cleared of any ice/snow. Though my own personal opinion the majority of the ice that she slipped on was caused by 2 water fountains that she has on her property and overflowed onto the sidewalk.

Good luck


These stories are informative. Does anyone else have any case histories like this they can mention?

Beth Grimm often has current HOA law news. I am sure many people who read this site are familiar with her. http://condolawguru.com/
RichardP13 (California)
Posts: 163
Posted:
Just In..

One of the lawyers that works for www.davis-stirling.com and I are going head to head on a couple of legal issues involving my association. This should be real fun.

Love a good challenge.
KerryL1 (California)
Posts: 14,550
Posted:
In your spare time, Gertrude, you can visit davis-stirling.com an click on "Case Law." Here you'll find rulings in CA about HOAs. To see Owners suing an HOA, I think you'll just click on those that are a person vs. an HOA name, e.g, Gertrude vs. Shady Shingles. By doing that, you might get a general answer to your question.

Might work for you too, Thomas, since you're also in Calif.

If you want to share your "issue" with an attorney from the firm that sponsors davis-stirling.com, Richard, why not start a new thread?? It doesn't sound like it fits this one as it doesn't sound like you're suing your HOA. Or are you?
RichardP13 (California)
Posts: 163
Posted:
Quote:
Posted By KerryL1 on 05/12/2015 5:17 PM
In your spare time, Gertrude, you can visit davis-stirling.com an click on "Case Law." Here you'll find rulings in CA about HOAs. To see Owners suing an HOA, I think you'll just click on those that are a person vs. an HOA name, e.g, Gertrude vs. Shady Shingles. By doing that, you might get a general answer to your question.

Might work for you too, Thomas, since you're also in Calif.

If you want to share your "issue" with an attorney from the firm that sponsors davis-stirling.com, Richard, why not start a new thread?? It doesn't sound like it fits this one as it doesn't sound like you're suing your HOA. Or are you?

Yes, I am suing my HOA and there are the legal counsel for the HOA. This will be fun!
KerryL1 (California)
Posts: 14,550
Posted:
Well, I haven't sued my HOA either. But I tried for almost three years to convince the Board (I'm on it) to change the billing. Some Owner were paying too much in dies peer our governing documents and one owner in particular was paying way too little. For reasons I won't go into, that Owner, Mr. Niceguy, was a favorite with the Board and management company and the Board just would not vote to increase his dues (thereby reducing the dues of the rest of us owners)

My last attempt, last fall, in my agenda request, I this time stated that as a Board, we were not in compliance with our governing documents. We must enforce them I argued. At the same time, I wrote to the MC and simply asked that they increase Mr. Niceguy's bill to comply with our CC&Rs. Isaid, after all, they decide how much o bill me....

Well, about three days before the Board mtng. our PM called me & the Board Prez to a meeting and unformed me that Mr. Niceguy's dues were going up a very good chunk. Amazing, I said. Why? The reason was a bunch of double talk that I could see through, but, all it's OK, Mr.Niceguy is much closer to paying what our CC&Rs say he should pay (very complicated, not expressed in a dollar amount).

I strongly believe that the MC CEO and Mr. Niceguy could see that I was ready to launch or file an enforcement action (have no idea how), even though I didn't come out and threaten. too. This year at budget time, I expect to get his dues all the way up to where they belong.

My point is, with a persuasive, knowledgeable fact-based argument, you might be able to get the Board to do the right thing either on your own or with other Owners before a lawsuit is needed.
RichardP13 (California)
Posts: 163
Posted:
The suit initially about a website, an "official website, and a disclaimer. Many people, including many here, think www.davis-stirling.com is the "official" of the Davius-Stirling Act, but it isn't.

The Association, and one Board member, opened something they shouldn't have.
KerryL1 (California)
Posts: 14,550
Posted:
Sorry, Richard, I don't know what you mean when you wrote that "The Association...opened something it shouldn't have."' Do you mean an employee of your association? Or what?
RichardP13 (California)
Posts: 163
Posted:
Kerry

It's a long story. It's not an employee, as we have none.

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