Lawyer fees part 2 - need opinions

In general, you can't generalize. :-) There are too many variables based on your individual governing documents, state law, and the nature of the particular dispute.

For garden-variety disputes and fines, the HOA wouldn't call in the lawyer - for example, a homeowner refused to clean up pet waste, the individual incidents were documented on date-and-time-stamped video, and the HOA had published a fining schedule outlining what happens in cases like this.

However, if a dispute is looking like it might involve legal action - ie. a homeowner has threatened to sue over it - then it may be appropriate to have the lawyer there. (Homeowners are much too quick to threaten to sue - boards take that sort of thing seriously, it's their job.)

Also in general, it's always cheaper to resolve things without a lawyer. We've seen many instances where a minor issue gets blown up into a major one because people get so ticked off that they allow their emotions to call the shots. Hearings can be useful if the facts of the dispute aren't clear or if the parties are negotiating (such as working out a payment schedule to clear past due assessments). If the goal is to have a meeting of the minds, hearings can be useful - if the goal is to continue fighting, maybe not so much.

Finally, the HOA will have the upper hand in these things. When people buy into an HOA, they're agreeing to abide by all of the terms in the governing documents. These things form part of the contract on the home, they're legally enforceable, and the bylaws will state that the board is obligated to enforce them. These governing documents may also spell out when lawyer fees can be passed on to the homeowner (state law may as well). For example, legal fees resulting from the HOA's attempt to collect past-due assessments and late fees typically get passed on to the homeowner. Other things may be considered part of the cost of doing business, but as I'd said it depends on the details.

To add on, even if we did contract with an attorney to prepare for the hearing, that cost would NOT be charged to the homeowner. It would be an association expense.

ErinA2,

I agree with HenryS7. To elaborate, the governing documents, usually the CC&Rs, expressly say when attorney fees may be assessed to an owner. CathyA3 repeats this point, more or less, with this statement:

I have seen a COA claim that it can assess its attorney fees anytime the person "causes" them. The Board is deciding when an owner "caused" attorney fees. The case law says this is wrong. From the case law, when a contract (like the covenants) has a specific clause on a topic, then generalized statements on the topic do not apply.

Aside: The COA to which I refer is now battling HUD because the COA billed an owner over $5000 for reviewing the owner's complaint to HUD of discrimination. The HOA filed in court to collect this billing and foreclose on the owner's unit. Settlement talks are underway.

I have never heard of a BOD charging for a violation hearing. They made this charge up out of no where.

It's completely nonsensical for the HOA to hire a lawyer to prepare themselves for a hearing, and then charge the homeowner for that cost.

I think there are scenarios where a HOA should consult the HOA attorney about a hearing. But I have yet to see CC&Rs that say the choice of the Board to consult an attorney on the matter must result in the owner paying the HOA attorney's bill for this consultation.

HenryS7, thank you for clarifying.

This forum sees questions all the time about, for one, covenant interpretation. From beekeeping, to noisy floors, to responsibility for tree root and tree limb incursions, to whether a HOA can fine to more, to racist remarks by a manager, to more, I can see a HOA board needing to consult an attorney about an alleged violation; interpreting covenants on same; and how a hearing should proceed.

Thank you Henry for your reply and I appreciate the response here sorry for the confusion.
I am just as confused as to why the board had to consult an attorney 3x to prep for a violation hearing after a $50.00 boat violation was issued and the homeowner requested the hearing.
I’ve looked at the decs and the rules and it is very confusing with how things are worded. It does say fees can be passed onto the homeowner so I guess that’s where they are protecting themselves but I just don’t understand why they would even need to contact the attorney. The rules do state the homeowner can request a hearing but it doesn’t specifically state this request will result in attorney fees and there’s no way a homeowner would even know the attorney was being contacted.

I also get every homeowner is responsible to know their HOA laws but I feel like this is a stretch. There wasn’t a lawsuit threat. Is consulting the HOA attorney for every violation/ hearing request a reasonable use of HOA funds?

As you state you can’t do this in Washington, Do you know where I could find if this is common practice in Illinois?

yes, i have you heard you say this many times and many others repeat it on your behalf ;)
there was no threat of a lawsuit, just the request for a hearing after the homeowner received a $50.00 boat violation. the homeowner attended the hearing, spoke for 5 minutes - and agreed to just pay the boat violation which they did. 2 months later they received a bill for $400.00 in attorney fees that the property manager says the forgot to send them. 2 are for emails/phone call correspondence between the Property Manager/attorney and review of the rules and regs and prep for the hearing.
3rd is a charge for the attorney to attend the hearing via Zoom.

I understand if there was threat of lawsuit and the board wanted the attorney present but I just don't understand how or why. No one is going to ever feel comfortable fighting a violation if they are going to be charged for attorney fees. I don't see this as very reasonable but that's just me.

A clearer picture is coming through a bit more. The violation sounds like someone left a boat parked in their driveway. Which if your HOA has a fining schedule, the amount/violation should be listed on this. It should be known what the rate is for violations and what consitutes a violation. Maybe the board had to consult the lawyer for this advice.

Now for them passing the expense onto the owner, that is something they should advertise so to speak. Otherwise, they probably can't charge their own consultation fee with a lawyer IF it's in the vain of them doing their HOA business. Meaning they can't charge the owner if they run to the HOA lawyer for advice about making a fining schedule. That is the price of doing business.

However, there are conditions where if there was not exactly a lawsuit threatened but they say bringing terms in like "consulting a lawyer", then maybe the expense was in response of doing business on the fine process. It's maybe a way for them to discourage others from bringing lawsuit if they get a fine.

I would bring that up in the hearing process that this fee can't be charged. It doens't fall into the cost of doing business for having a hearing if no legal consult was necessary.

It appears to me that the OP's board is billing the owner for the cost of the HOA attorney's time as it pertains to the subject of the hearing.

Has anyone tried to obtain any communications or records between board members, property manager that pertains to their account?
Now I’m wondering if maybe the property manager contacted the attorney directly without board authorization.

The OP is not an owner, the OP is a board member. Board members have rights to all communications (records or otherwise).

I honestly think you are arguing for arguments sake, and creating arguments where none would exist otherwise.

But, per the by-laws / CC&Rs of my community, directors have the right to inspect all books, records, and documents of the Association. Quoting the by-laws:

"every director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association..."

Of course, I don't know what the OP's by-laws say, but assuming the OPs look like ours, the same would apply to the OP.

I think the BOD decided on this charge for two reasons:

1. They are afraid to face the owner alone.

2. To scare people away from requesting a hearing.

Take your pick/ Maybe both.

My question to the attorney was about records. E-mails between board members and between board members and the PM are not records of the association. However, I did not ask about documents, but would believe that they qualify as documents subject to inspection by other board members.

Our HOA by-laws allow homeowners to inspect records only (not books or documents), so they don't have the right to the non-record documents per the attorney.

Non-record documents?

We disagree. Mostly because I think you are mis-using vocabulary.

I urge other Washingtonians to read the nonprofit corporation and other HOA related statutes on the topic of records inspections at HOAs.