Mediation and Arbitration

NpB (Arizona)
Posts: 605

Posted:

Our CC&Rs state that a Board's decision is final. There is no requirement in the CC&Rs or a state law that mandates mediation or arbitration if an owner contests a Board's decision. Should an owner be unsatisfied with a Board decision and requests mediation or arbitration, how should a Board respond?

PaulJ6
Posts: 990

Posted:

I would recommend engaging the owner in discussions, to try to smooth things over, and being open to mediation or arbitration if the situation seems to be one that could end up in litigation.

I had an issue with a board. I was in the right. Instead of being willing to have a discussion, the board's lawyer threatened me and the board refused to discuss anything. Result? I filed a lawsuit. So the HOA incurred costs of litigation, higher insurance premiums, lost time, etc., when it could have been resolved by a discussion.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By NpB on 01/24/2020 2:17 PM
Our CC&Rs state that a Board's decision is final.

Also, your CC&Rs just mean that a Board's decision is final UNLESS a court decides otherwise or the board is forced to settle with an owner.

The board in my situation took the position that it was the board and its edict was final, end of story.

A lawsuit upended that. Refusing to engage an angry owner can mean a lawsuit.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By PaulJ6 on 01/24/2020 2:36 PM
I would recommend engaging the owner in discussions, to try to smooth things over, and being open to mediation or arbitration if the situation seems to be one that could end up in litigation.

I had an issue with a board. I was in the right. Instead of being willing to have a discussion, the board's lawyer threatened me and the board refused to discuss anything. Result? I filed a lawsuit. So the HOA incurred costs of litigation, higher insurance premiums, lost time, etc., when it could have been resolved by a discussion.

The owner has absolutely no case that she/he could prevail on. All the facts and paper trail are in favor of the Board. Owner is assuringly unsatisfied with Board decision in case and already exhausted her/his appeals entitled to her/him in HOA rules.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By NpB on 01/24/2020 2:42 PM

Posted By PaulJ6 on 01/24/2020 2:36 PM
I would recommend engaging the owner in discussions, to try to smooth things over, and being open to mediation or arbitration if the situation seems to be one that could end up in litigation.

I had an issue with a board. I was in the right. Instead of being willing to have a discussion, the board's lawyer threatened me and the board refused to discuss anything. Result? I filed a lawsuit. So the HOA incurred costs of litigation, higher insurance premiums, lost time, etc., when it could have been resolved by a discussion.

The owner has absolutely no case that she/he could prevail on. All the facts and paper trail are in favor of the Board. Owner is assuringly unsatisfied with Board decision in case and already exhausted her/his appeals entitled to her/him in HOA rules.

Then that means the owner's sole remedy is to file a lawsuit. You want that?

Has a real lawyer (not a dingbat HOA one) confirmed that "[t]he owner has absolutely no case that she/he could prevail on"?

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By PaulJ6 on 01/24/2020 3:07 PM

Posted By NpB on 01/24/2020 2:42 PM

Posted By PaulJ6 on 01/24/2020 2:36 PM
I would recommend engaging the owner in discussions, to try to smooth things over, and being open to mediation or arbitration if the situation seems to be one that could end up in litigation.

I had an issue with a board. I was in the right. Instead of being willing to have a discussion, the board's lawyer threatened me and the board refused to discuss anything. Result? I filed a lawsuit. So the HOA incurred costs of litigation, higher insurance premiums, lost time, etc., when it could have been resolved by a discussion.

The owner has absolutely no case that she/he could prevail on. All the facts and paper trail are in favor of the Board. Owner is assuringly unsatisfied with Board decision in case and already exhausted her/his appeals entitled to her/him in HOA rules.

Then that means the owner's sole remedy is to file a lawsuit. You want that?

Has a real lawyer (not a dingbat HOA one) confirmed that "[t]he owner has absolutely no case that she/he could prevail on"?

Based on the fine amount, it would be counterproductive economically for the owner to file a lawsuit.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By NpB on 01/24/2020 2:42 PM
The owner has absolutely no case that she/he could prevail on. All the facts and paper trail are in favor of the Board. Owner is assuringly unsatisfied with Board decision in case and already exhausted her/his appeals entitled to her/him in HOA rules.

If the Board refuses mediation or arbitration, I think four outcomes are possible:

1.
The member drops the dispute; corrects the problem; and pays whatever penalty has been imposed.

2.
The member uses Arizona's Homeowners Dispute resolution process (advertised as an alternative to going to court). It costs the member $500. See recent statistics for this process here: https://www.azre.gov/hoa/documents/HOA_Dispute_Process_Stats.pdf . Note the number one complaint is "Board acting without authority." Note that the "respondent" (as opposed to the petitioner) apparently prevailed in 83% or so of all cases from Oct thru December. I think I would call up ADRE and ask for more statistics.

3.
The member files in civil court, likely at much greater cost.

Mediation is supposed to compel both parties to compromise. If the case is so shut and closed, then I vote no for mediation.

Arbitration seems no better than the ADRE process. At least at first blush.

I vote for this board not to go to mediation or arbitration. Let the member do whatever.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By AugustinD on 01/24/2020 3:24 PM

Posted By NpB on 01/24/2020 2:42 PM
The owner has absolutely no case that she/he could prevail on. All the facts and paper trail are in favor of the Board. Owner is assuringly unsatisfied with Board decision in case and already exhausted her/his appeals entitled to her/him in HOA rules.

If the Board refuses mediation or arbitration, I think four outcomes are possible:

1.
The member drops the dispute; corrects the problem; and pays whatever penalty has been imposed.

2.
The member uses Arizona's Homeowners Dispute resolution process (advertised as an alternative to going to court). It costs the member $500. See recent statistics for this process here: https://www.azre.gov/hoa/documents/HOA_Dispute_Process_Stats.pdf . Note the number one complaint is "Board acting without authority." Note that the "respondent" (as opposed to the petitioner) apparently prevailed in 83% or so of all cases from Oct thru December. I think I would call up ADRE and ask for more statistics.

3.
The member files in civil court, likely at much greater cost.

Mediation is supposed to compel both parties to compromise. If the case is so shut and closed, then I vote no for mediation.

Arbitration seems no better than the ADRE process. At least at first blush.

I vote for this board not to go to mediation or arbitration. Let the member do whatever.

The ADRE does not adjudicate the type of violation the owner was fined for. If the Board were to agree to waive the owner's fine, it would permit other owners to violate section of CCRs without penalty. If another owner were to be fined in the future for that violation, the owner could then claim selective enforcement.

AugustinD
Posts: 5,144

Posted:

,NpB, can you cite the part of the statute that set up this ADRE dispute resolution process, that says what cases ADRE will not hear?

PaulJ6
Posts: 990

Posted:

Quote:

Posted By NpB on 01/24/2020 3:19 PM

Posted By PaulJ6 on 01/24/2020 3:07 PM

Posted By NpB on 01/24/2020 2:42 PM
Based on the fine amount, it would be counterproductive economically for the owner to file a lawsuit.

That's what the board of my HOA thought about the dispute with me. I filed anyway.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By AugustinD on 01/24/2020 3:40 PM
,NpB, can you cite the part of the statute that set up this ADRE dispute resolution process, that says what cases ADRE will not hear?

Here is the petition form. A complainant must identify a section of the CC&Rs, Bylaws or ARS statues that was violated. None were. It would be the complainant that violated the CC&Rs.

https://www.azre.gov/hoa/documents/HOA_Petition_Form.pdf

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By PaulJ6 on 01/24/2020 4:03 PM

Posted By NpB on 01/24/2020 3:19 PM

Posted By PaulJ6 on 01/24/2020 3:07 PM

Posted By NpB on 01/24/2020 2:42 PM
Based on the fine amount, it would be counterproductive economically for the owner to file a lawsuit.

That's what the board of my HOA thought about the dispute with me. I filed anyway.

What was your fine amount and what were your attorney fees?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Many states encourage taking things to Mediation versus court. Either party can hire an arbitrator to hear their case together. It saves both parties money and avoids lawsuits/court. Considering how overloaded the court system is.

Will warn you have seen some situation where mediation is REQUIRED BEFORE a lawsuit can or IF be filed. One MUST go to arbitration BEFORE a case can be filed. Skip that step and the judge will send you back a step. They want everything beat to death in mediation before they hear it.

Even rarer are some contracts out there require no lawsuits at all. It has to be ONLY Mediation. So be careful just in general when reading contracts or making them for your HOA. Car dealerships were very notorious for putting that clause in their agreements. It meant you could never sue them. All had to go through arbritation and that isn't necessarily public knowledge.

Former HOA President

PaulJ6
Posts: 990

Posted:

NpB, take the dollar amount in dispute in my situation, and multiply it by 10. That's how much I spent in legal fees in my situation.

It was worth every cent to do so. If I dispute something, (1) I'm right and (2) I don't give into bullies. Period. The costs of standing up for what's right do not matter.

Maybe not everyone has that viewpoint, but I do, and I had and have the ability to carry through.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By PaulJ6 on 01/24/2020 4:28 PM
NpB, take the dollar amount in dispute in my situation, and multiply it by 10. That's how much I spent in legal fees in my situation.

It was worth every cent to do so. If I dispute something, (1) I'm right and (2) I don't give into bullies. Period. The costs of standing up for what's right do not matter.

Maybe not everyone has that viewpoint, but I do, and I had and have the ability to carry through.

I believe our Board does too in this situation and some members are just as committed as you were.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By NpB on 01/24/2020 4:31 PM

Posted By PaulJ6 on 01/24/2020 4:28 PM
NpB, take the dollar amount in dispute in my situation, and multiply it by 10. That's how much I spent in legal fees in my situation.

It was worth every cent to do so. If I dispute something, (1) I'm right and (2) I don't give into bullies. Period. The costs of standing up for what's right do not matter.

Maybe not everyone has that viewpoint, but I do, and I had and have the ability to carry through.

I believe our Board does too in this situation and some members are just as committed as you were.

If the Board spent 10x what the amount in dispute was, then if I were the owner I'd also be pursuing a breach of fiduciary duty claim against directors individually.

Depending on the Board's insurance coverage, the insurance company might not allow spending that much anyway.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By PaulJ6 on 01/24/2020 4:36 PM

Posted By NpB on 01/24/2020 4:31 PM

Posted By PaulJ6 on 01/24/2020 4:28 PM
NpB, take the dollar amount in dispute in my situation, and multiply it by 10. That's how much I spent in legal fees in my situation.

It was worth every cent to do so. If I dispute something, (1) I'm right and (2) I don't give into bullies. Period. The costs of standing up for what's right do not matter.

Maybe not everyone has that viewpoint, but I do, and I had and have the ability to carry through.

I believe our Board does too in this situation and some members are just as committed as you were.

If the Board spent 10x what the amount in dispute was, then if I were the owner I'd also be pursuing a breach of fiduciary duty claim against directors individually.

Depending on the Board's insurance coverage, the insurance company might not allow spending that much anyway.

If an owner hires an arbitrator or files a case in small claims court over a $50 parking violation, how would the Board be breaking their fiduciary duty, since it's the owner that caused the situation?

PaulJ6
Posts: 990

Posted:

Also, NpB, before the board gets in a legal battle with a determined owner, be sure that the board's legal firepower is capable.

HOA lawyers aren't the best, generally. Insurance defense lawyers may be better. But an angry owner with resources can hire a senior partner in a big firm, with a Yale Law School degree, and outmatch the HOA's team. Pretty easily. Particularly if the angry owner is a senior partner in a big firm, with a Yale Law School degree, and hires similar counsel. The HOA will be outclassed.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By NpB on 01/24/2020 4:40 PM

Posted By PaulJ6 on 01/24/2020 4:36 PM

Posted By NpB on 01/24/2020 4:31 PM

Posted By PaulJ6 on 01/24/2020 4:28 PM
NpB, take the dollar amount in dispute in my situation, and multiply it by 10. That's how much I spent in legal fees in my situation.

It was worth every cent to do so. If I dispute something, (1) I'm right and (2) I don't give into bullies. Period. The costs of standing up for what's right do not matter.

Maybe not everyone has that viewpoint, but I do, and I had and have the ability to carry through.

I believe our Board does too in this situation and some members are just as committed as you were.

If the Board spent 10x what the amount in dispute was, then if I were the owner I'd also be pursuing a breach of fiduciary duty claim against directors individually.

Depending on the Board's insurance coverage, the insurance company might not allow spending that much anyway.

If an owner hires an arbitrator or files a case in small claims court over a $50 parking violation, how would the Board be breaking their fiduciary duty, since it's the owner that caused the situation?

If the board spends 10x more on the lawsuit than the amount in controversy, that could be seen as a breach of fiduciary duty.

In my case, I spent well into the five figures, and so did the board, I think, although my counsel was much better and had higher hourly fees.

PaulJ6
Posts: 990

Posted:

NpB, my point is just that a HOA board is volunteers, some of whom may have expertise needed for a legal battle, but many of whom may not. The HOA board's counsel is usually not the most capable lawyer out there. So it's volunteers with varying degrees of skill and a lawyer who is not really particularly skilled. They can run over an unskilled owner without counsel or without good counsel, but if a board is in a fight with an owner, an owner may be skilled in these situations (in his or her career) and may have the resources to hire an A-list legal team. If that happens, the HOA will at least incur significant expense and may end up being subject to significant damage.

Very few people do stand up to HOA boards like I did, but when people do, it may end up as a total disaster for the HOA. So be careful.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By PaulJ6 on 01/24/2020 4:48 PM
NpB, my point is just that a HOA board is volunteers, some of whom may have expertise needed for a legal battle, but many of whom may not. The HOA board's counsel is usually not the most capable lawyer out there. So it's volunteers with varying degrees of skill and a lawyer who is not really particularly skilled. They can run over an unskilled owner without counsel or without good counsel, but if a board is in a fight with an owner, an owner may be skilled in these situations (in his or her career) and may have the resources to hire an A-list legal team. If that happens, the HOA will at least incur significant expense and may end up being subject to significant damage.

Very few people do stand up to HOA boards like I did, but when people do, it may end up as a total disaster for the HOA. So be careful.

A $50 parking ticket would be under the jurisdiction of small claims court. Not sure if attorneys are permitted to represent clients in small claims court.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

FYI: The HOA since it is incorporated does have to have an attorney represent them in court. However, they can also choose someone else to represent them in court like a board member. Just who in their right mind is going to send someone to court that doesn't know what they are doing? Most HOA's are going to make the logical decision to be represented by a lawyer. (Charles Manson represented himself in court you know...)

So the $50 court case just went up a notch... The HOA can counter-sue or request all their legal costs like hiring the lawyer is paid by you.

Former HOA President

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By NpB on 01/24/2020 4:08 PM
Here is the petition form. A complainant must identify a section of the CC&Rs, Bylaws or ARS statues that was violated. None were. It would be the complainant that violated the CC&Rs. https://www.azre.gov/hoa/documents/HOA_Petition_Form.pdf

I am not seeing that this means the member does not have a complaint that may be filed with ADRE. After all, the member can say the board is acting outside its authority; has imposed too large a fine; or similar.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By NpB on 01/24/2020 5:01 PM

Posted By PaulJ6 on 01/24/2020 4:48 PM
NpB, my point is just that a HOA board is volunteers, some of whom may have expertise needed for a legal battle, but many of whom may not. The HOA board's counsel is usually not the most capable lawyer out there. So it's volunteers with varying degrees of skill and a lawyer who is not really particularly skilled. They can run over an unskilled owner without counsel or without good counsel, but if a board is in a fight with an owner, an owner may be skilled in these situations (in his or her career) and may have the resources to hire an A-list legal team. If that happens, the HOA will at least incur significant expense and may end up being subject to significant damage.

Very few people do stand up to HOA boards like I did, but when people do, it may end up as a total disaster for the HOA. So be careful.

A $50 parking ticket would be under the jurisdiction of small claims court. Not sure if attorneys are permitted to represent clients in small claims court.

In the times when I have been a plaintiff in small claims court, I always brought a lawyer, to be sure to win, and that was allowed.

If this is really over a $50 parking ticket, just drop it. Have the owner sign a confidentiality agreement, with penalties for doing the bad behavior again.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By PaulJ6 on 01/24/2020 4:48 PM
Very few people do stand up to HOA boards like I did,
The case law is replete with member-HOA board disputes. I can't say the members end up winning. It just depends. In short, I do not think the above is a fair accounting.

Posted By PaulJ6 on 01/24/2020 4:48 PM
but when people do, it may end up as a total disaster for the HOA. So be careful.

I guess you should be proud of this victory that cost you five figures. Yet other posts of yours indicate the board has not improved. To me, I am not sure spending five figures would be worth it.

PaulJ6
Posts: 990

Posted:

AugustinD, the board that I had the dispute with did improve. In the course of the dispute, the old board was voted out of office. Court filings can be easily found online when you Google the names of the parties, and neighbors use Google...

The damages that I sought ballooned due to the HOA's and its counsel's missteps.

So I spent a lot over what was initially a small matter. It grew. I'm under a confidentiality obligation regarding the outcome.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By PaulJ6 on 01/24/2020 5:11 PM
If this is really over a $50 parking ticket, just drop it.

First, Boards have a fiduciary duty to enforce the covenants. Second, I think the risk is too high that others will catch wind that 'talking big' will cause the board to cave. I do not agree with your "strategy."

PaulJ6
Posts: 990

Posted:

Also, AugustinD, the board that I had the legal dispute with is not the board where I live now.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By PaulJ6 on 01/24/2020 5:20 PM
AugustinD, the board that I had the dispute with did improve. In the course of the dispute, the old board was voted out of office. Court filings can be easily found online when you Google the names of the parties, and neighbors use Google...

The damages that I sought ballooned due to the HOA's and its counsel's missteps.

So I spent a lot over what was initially a small matter. It grew. I'm under a confidentiality obligation regarding the outcome.

Yet you keep bringing up other battles here that are not going your way.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By AugustinD on 01/24/2020 5:20 PM

Posted By PaulJ6 on 01/24/2020 5:11 PM
If this is really over a $50 parking ticket, just drop it.

First, Boards have a fiduciary duty to enforce the covenants. Second, I think the risk is too high that others will catch wind that 'talking big' will cause the board to cave. I do not agree with your "strategy."

The board in my case waived all sorts of things (prior to things escalating). I think that the board can waive things selectively, as long as the decision to do so is reasonable and shows good judgment.

I'd say that spending a few thousand dollars over a $50 parking ticket is not a decision that a reasonable person would make in the best interests of the HOA and creates the risk that the board could be violating fiduciary duties.

"But Paul, you spent 10x the amount initially in controversy, in legal fees!" Yes, but I have no fiduciary duties; this was me and my own money.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By AugustinD on 01/24/2020 5:21 PM

Posted By PaulJ6 on 01/24/2020 5:20 PM
AugustinD, the board that I had the dispute with did improve. In the course of the dispute, the old board was voted out of office. Court filings can be easily found online when you Google the names of the parties, and neighbors use Google...

The damages that I sought ballooned due to the HOA's and its counsel's missteps.

So I spent a lot over what was initially a small matter. It grew. I'm under a confidentiality obligation regarding the outcome.

Yet you keep bringing up other battles here that are not going your way.

I'm not engaged in any active disputes now. My current board is just beyond redemption. I ask online, but don't act in real life.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By AugustinD on 01/24/2020 5:10 PM

Posted By NpB on 01/24/2020 4:08 PM
Here is the petition form. A complainant must identify a section of the CC&Rs, Bylaws or ARS statues that was violated. None were. It would be the complainant that violated the CC&Rs. https://www.azre.gov/hoa/documents/HOA_Petition_Form.pdf

I am not seeing that this means the member does not have a complaint that may be filed with ADRE. After all, the member can say the board is acting outside its authority; has imposed too large a fine; or similar.

Application form is very clear that the complainant must cite a specific ARE statute of section of the CCRs Board is violating. If the CCrs state no overnight street parking permitted and the complainant parked overnight, how could complainant claim Board acting outside authority?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By NpB on 01/24/2020 5:53 PM
Application form is very clear that the complainant must cite a specific ARE statute of section of the CCRs Board is violating. If the CCrs state no overnight street parking permitted and the complainant parked overnight, how could complainant claim Board acting outside authority?

The complainant could argue:

-- The CC&R is not fair and not reasonable.

-- The CC&R is being selectively enforced.

-- The fine for the CC&R in question is exorbitant.

More.

We are not going to agree on this.

AugustinD
Posts: 5,144

Posted:

NpB, I think what you are missing is that the governing documents always list the duties of the Board. If the complainant thinks the Board has done anything outside those duties (such as selective enforcement or exorbitant fine), then the complainant need only list the pertinent sections of the governing documents and statutes and say the board acted outside them.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By AugustinD on 01/24/2020 5:59 PM

Posted By NpB on 01/24/2020 5:53 PM
Application form is very clear that the complainant must cite a specific ARE statute of section of the CCRs Board is violating. If the CCrs state no overnight street parking permitted and the complainant parked overnight, how could complainant claim Board acting outside authority?

The complainant could argue:

-- The CC&R is not fair and not reasonable.

-- The CC&R is being selectively enforced.

-- The fine for the CC&R in question is exorbitant.

More.

You are correct. In addition:

1. The last election wasn't done to the letter in compliance with the HOA's governing documents, so the board is illegally in office and has no power to enforce anything.

2. Notice of the fine (or some other procedural thing) wasn't properly given so it's invalid.

Etc., etc., etc.

A determined owner with a good lawyer can outwit the HOA.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By PaulJ6 on 01/25/2020 7:24 AM

Posted By AugustinD on 01/24/2020 5:59 PM

Posted By NpB on 01/24/2020 5:53 PM
Application form is very clear that the complainant must cite a specific ARE statute of section of the CCRs Board is violating. If the CCrs state no overnight street parking permitted and the complainant parked overnight, how could complainant claim Board acting outside authority?

The complainant could argue:

-- The CC&R is not fair and not reasonable.

-- The CC&R is being selectively enforced.

-- The fine for the CC&R in question is exorbitant.

More.

You are correct. In addition:

1. The last election wasn't done to the letter in compliance with the HOA's governing documents, so the board is illegally in office and has no power to enforce anything.

2. Notice of the fine (or some other procedural thing) wasn't properly given so it's invalid.

Etc., etc., etc.

A determined owner with a good lawyer can outwit the HOA.

And a good HOA defense attorney can outwit the plaintiff's lawyer too. There are far more HOA defense attorneys in my area than HOA plaintiff (HOA homeowner attorneys).

PaulJ6
Posts: 990

Posted:

Quote:

Posted By NpB on 01/25/2020 7:31 AM

Posted By PaulJ6 on 01/25/2020 7:24 AM

Posted By AugustinD on 01/24/2020 5:59 PM

Posted By NpB on 01/24/2020 5:53 PM
Application form is very clear that the complainant must cite a specific ARE statute of section of the CCRs Board is violating. If the CCrs state no overnight street parking permitted and the complainant parked overnight, how could complainant claim Board acting outside authority?

The complainant could argue:

-- The CC&R is not fair and not reasonable.

-- The CC&R is being selectively enforced.

-- The fine for the CC&R in question is exorbitant.

More.

You are correct. In addition:

1. The last election wasn't done to the letter in compliance with the HOA's governing documents, so the board is illegally in office and has no power to enforce anything.

2. Notice of the fine (or some other procedural thing) wasn't properly given so it's invalid.

Etc., etc., etc.

A determined owner with a good lawyer can outwit the HOA.

And a good HOA defense attorney can outwit the plaintiff's lawyer too. There are far more HOA defense attorneys in my area than HOA plaintiff (HOA homeowner attorneys).

As I've stated over and over, the best lawyers do not work for HOAs; HOA work is low-paying, and talented lawyers generally do low-paying work only in public interest fields, such as working for human rights organizations. Unless the board goes to the best law firm in town and does a new engagement for this matter, I can assure you that the HOA's lawyer is not the best. Did he or she go to Yale Law School? Likely not.

NpB (Arizona)
Posts: 605

Posted:

Quote:

Posted By PaulJ6 on 01/25/2020 7:36 AM

Posted By NpB on 01/25/2020 7:31 AM

Posted By PaulJ6 on 01/25/2020 7:24 AM

Posted By AugustinD on 01/24/2020 5:59 PM

Posted By NpB on 01/24/2020 5:53 PM
Application form is very clear that the complainant must cite a specific ARE statute of section of the CCRs Board is violating. If the CCrs state no overnight street parking permitted and the complainant parked overnight, how could complainant claim Board acting outside authority?

The complainant could argue:

-- The CC&R is not fair and not reasonable.

-- The CC&R is being selectively enforced.

-- The fine for the CC&R in question is exorbitant.

More.

You are correct. In addition:

1. The last election wasn't done to the letter in compliance with the HOA's governing documents, so the board is illegally in office and has no power to enforce anything.

2. Notice of the fine (or some other procedural thing) wasn't properly given so it's invalid.

Etc., etc., etc.

A determined owner with a good lawyer can outwit the HOA.

Many HOA defense attorneys in my area have private practices and graduated from prestigious law schools, give HOA seminars, are quoted in newspapers, journals, etc..

And a good HOA defense attorney can outwit the plaintiff's lawyer too. There are far more HOA defense attorneys in my area than HOA plaintiff (HOA homeowner attorneys).

As I've stated over and over, the best lawyers do not work for HOAs; HOA work is low-paying, and talented lawyers generally do low-paying work only in public interest fields, such as working for human rights organizations. Unless the board goes to the best law firm in town and does a new engagement for this matter, I can assure you that the HOA's lawyer is not the best. Did he or she go to Yale Law School? Likely not.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By PaulJ6 on 01/25/2020 7:36 AM
Did he or she go to Yale Law School? Likely not.

What a load of crap.

Sikubali jukumu. Read all posts at your own risk.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By NpS on 01/25/2020 8:09 AM

Posted By PaulJ6 on 01/25/2020 7:36 AM
Did he or she go to Yale Law School? Likely not.

What a load of crap.

Where did your HOA lawyer go to law school? What's that school's median GPA and LSAT score? A Yale Law School graduate is almost certainly smarter- as measured by those criteria, and IQ, than your HOA lawyer. Sorry.

PaulJ6
Posts: 990

Posted:

And, NpS, you can disagree with my assertions about lawyers all you want, but look at the website of the most profitable law firm in the country: http://www.wlrk.com. Its profits per equity partner were about $6.5 million in 2019. It's widely considered among the most prestigious firms in the country, and it's extremely difficult to get a job there. Assuming that law firms can charge based on perceived quality, it's one of the highest-quality firms in the country.

Look at the law schools where its lawyers went. Here and there there will be someone from a lower-tier school (usually top of the class though). But look at the lists of lawyers from Yale, Columbia, etc.: slews of them.

Did your HOA lawyer go to Yale or Columbia? Was he or she #1 in the class at a lower-ranked school? If not, that's an indication that there are sharper lawyers out there.

PaulJ6
Posts: 990

Posted:

Back to the original question:

Google "Raymond Wedlake". He's an owner who sued his HOA's board for $1 and could bankrupt it, due to all of his activities.

AugustinD
Posts: 5,144

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Quote:

Posted By PaulJ6 on 01/25/2020 8:21 AM
And, NpS, you can disagree with my assertions about lawyers all you want, but look at the website of the most profitable law firm in the country: http://www.wlrk.com. Its profits per equity partner were about $6.5 million in 2019. It's widely considered among the most prestigious firms in the country, and it's extremely difficult to get a job there.

It's difficult to get a job there because this firm's clients are only for-profit, large corporations. The large corporations have money to waste. Meanwhile because of these greedy attorneys, the little guy and gal (including non profits like HOAs/Condos and HOA/Condo members; the unfairly prosecuted, and others) do not get adequate representation. Paul you got your bit of justice, but at great cost. I think your "victory" was Pyhrric. Yet here you are encouraging people to hire the most expensive attorney possible.

PaulJ6
Posts: 990

Posted:

AugustinD, I agree with you on 99.99% of items on this board and think very highly of you and your posts, so this isn't a disagreement.

My point is just that a HOA board that thinks it will prevail in any battle just because it has a HOA lawyer or whatever, and that its HOA lawyer is adequate, hasn't experienced the real world yet. I've told owners to pick their battles carefully, and I say the same to HOAs. A HOA board that thinks that it can pick a fight and be assured of victory needs to think again. It isn't necessary to pick the best and most expensive lawyer out there- most good ones won't bother with HOA disputes, which are generally bush league. It's just necessary to pick a better lawyer than the HOA lawyer, which isn't hard.

I will not discuss the outcome of my own litigation due to being under a confidentiality obligation, so please don't make assumptions about what I got out of it.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By PaulJ6 on 01/25/2020 11:46 AM
It isn't necessary to pick the best and most expensive lawyer out there- most good ones won't bother with HOA disputes, which are generally bush league.

If by bush league you mean an attorney cannot make much money from such disputes, I agree. Else I do not know if I would generalize about disputes where, say both sides reach the point of paying for an attorney's opinion. I think of sewage backing up into peoples condos because the board refused to maintain the trees on common area. I think of members in lower level units with upper level neighbors that violated the covenants and installed hard surface flooring, resulting in enormous noise, all while the board did nothing. You say "bush league." I say, these are things that destroy people's quality of life.

Quote:

Posted By PaulJ6 on 01/25/2020 11:46 AM
It's just necessary to pick a better lawyer than the HOA lawyer, which isn't hard.

I think what's more important is to have as unambiguous a case as possible.

Quote:

Posted By PaulJ6 on 01/25/2020 11:46 AM
I will not discuss the outcome of my own litigation due to being under a confidentiality obligation, so please don't make assumptions about what I got out of it.

Paul, since you cannot share the terms, people cannot judge whether doing something similar might be worthwhile for their own situation. In this thread, it seems you are trying to scare NpB into caving into a member. NpB has indicated the member is clearly in the wrong. Why would you want to encourage HOA members in general to threaten suit when the HOA members are clearly in the wrong?

PaulJ6
Posts: 990

Posted:

Quote:

Posted By AugustinD on 01/25/2020 12:04 PM
Paul, since you cannot share the terms, people cannot judge whether doing something similar might be worthwhile for their own situation. In this thread, it seems you are trying to scare NpB into caving into a member. NpB has indicated the member is clearly in the wrong. Why would you want to encourage HOA members in general to threaten suit when the HOA members are clearly in the wrong?

I'm speaking to NpB in this thread, not owners, and am telling him that his HOA could face a war over a $50 parking ticket.

While I have no reason to doubt NpB, we haven't heard the owner's side of this and perhaps the owner fully believes that the owner is in the right.

Pick your battles carefully, and if you engage in battle, be sure to have a team that will prevail. That guidance applies to HOAs and owners.

PaulJ6
Posts: 990

Posted:

To add, I'm seeing a train wreck waiting to happen for NpB's HOA.

* Being adamant that the HOA board is right.

* Insisting that the owner is wrong and not showing an interest in mediating or even anything more than asserting that the HOA board is right.

* Denying that a lawyer who went to Yale may be better, as evidenced by that educational background, than any other lawyer. (Thus likely having a shoddy HOA lawyer.)

My HOA did the same things.

AugustinD
Posts: 5,144

Posted:

I wish the moderators would step in and stop all these effing positive references to Yale law school. Next thing ya know Harvard law alumni/ae will be suing the site for failing to take a scientific approach to rating HOA attorneys. [I know: Watch my mouth.]

PaulJ6
Posts: 990

Posted:

AugustinD, you went to HLS? Wouldn't surprise me, given the well-thought posts that you make.

AugustinD
Posts: 5,144

Posted:

No, but thank you for the banter. Made me laugh.