Legal Fees and Who is Responsible

When dealing with ongoing Common Area violations or problem homeowners and/or their tenants or other matters that may require legal assistance, can legal fees be passed through to the homeowner?

Because of what's going on at my own HOA, to me this begs the question: If the complaint from a member is so obviously frivolous, why is the matter being sent to the HOA attorney in the first place? The Board should quote back the pertinent part of the governing document refuting the complainant and then, if the complainant is not satisfied, maybe invite her or him to a meeting with the board, if she or he has new info to share. But after this, I would advise the board that the ball is in the complainant's court to hire an attorney and elevate the conflict, and the board should do nothing more.

If a complaint has any reasonable merit, then I think the HOA should bear the cost of the HOA attorney consult.

(I am assuming that the matter that required a consultation with the HOA attorney is no where near going to court.)

Pit .... Declaration doesn't address this.

Kerry, I'm talking about things that are beyond what the Board understands. Topics that aren't well comvered, if at all, in the Declaration. Areas that may require legal counsel for understanding and how to proceed. Does that make sense?

When would you enlist the assistance of an attorney?

Thank you. Guess I didn't explain myself clearly.e

When the Board was split over how the governing documents applied to a situation and a majority agreed the Board needed to consult an attorney.

Legal fees are part of the lien process. The legal expense of filing a lien for unpaid dues is part of the overall money owed to the HOA. That legal fee is passed directly to the owner after of course paid by the HOA to file.

However, if you are talking lawsuits. (An avenue best avoided in most cases). The judge most likely has the say on what party pays the legal costs. Which has to be determined/requested at time of the settlement. They are considered the price of justice and/or right to be heard in a court of law.

Now keep in mind that a court is there ONLY to make a party "WHOLE". It is NOT for a profit. If the court decides the case was entirely frivolous or grossly unjust, then the legal fees may be paid by the other party to the defending party. The court considers this "DAMAGES". These damages would NOT have been incurred if one had not been forced to defend themselves. Basically in the HOA case they would not have needed to pay a lawyer to defend themselves against a case from a homeowner if found the owner filed a grossly frivolous case. The homeowner in this scenerio would owe the HOA legal fees.

So in context of who is responsible for paying legal fees, it depends on the situation and cause of the need to do so. Not really enough details in the original question. Not sure how your HOA is conducting it's business. Legal fees are either part of the process or part of the damages incurred. Whichever way that is in the end is who pays.

My problem I'm sure. I tend to read things very literally. Davis-stirling.com has a very nice vocabulary list, but I can't remember where it is. It clarifies HOA "lingo" for us. In addition, your CC&Rs probably have a long list of definitions at the beginning of it, that also would be HOA lingo.

So, when should your Board pay an attorney for advice? As Augustine replied, when the board can't decide on how to proceed with a problem or is divided on how to proceed.

Or, JohnC's reply is good too, it seems to me. It might be, then that the boar might want to pay an attorney to write a stern letter to the rules violator.