HOA board levies a Special Assessment for their legal fees against an owner who filed a Hair Housing complaint

BaftaH, my former HOA did this to an owner about three years ago. The HOA even took the owner to court to try to collect what the HOA claimed the owner owed the HOA for the HOA's attorney fees, incurred while the HOA attorney reviewed the complaint. The lawsuit also tried to foreclose on the owner, since he refused to pay the assessment. The dispute was settled just a few weeks ago. HUD was heavily involved. A nationally known civil rights law firm was heavily involved.

First, just because a Fair Housing Act (FHA) complaint is dismissed by HUD (or even a court) and not pursued further by the complainant does not mean that now the HOA can lawfully retaliate (via a huge bill for the HOA's attorney fees) against the owner for allegedly 'being the cause' of the HOA's attorney fees.

Second, a number of courts have ruled that billing an owner in this way is unlawful retaliation, in violation of the anti-retaliation clause of the Fair Housing Act (42 USC 3617) and also one other clause of the FHA. No court has said otherwise.

Third, the courts consider CCRs to be a contract. The CCRs usually specify when attorney fees may be assessed. For example, its usual for CCRs to say that, when an owner has failed to pay the regular assessment, and an attorney is hired to collect what is owed, the CCRs typically, expressly state that the HOA may collect its attorney fees for the collection effort.

Fourth, catch-all covenants that say something like, "Costs caused by less than all owners shall be assessed to only those owners who caused the cost" do not count. The law of contracts says that, where a contract is specific about a topic, this controls. CCRs are typically quite specific about when a HOA may bill and owner for the HOA's attorney fees. Catch-all covenants are not grounds for collecting attorney fees. As it sounds like you are aware.

Fifth, as long as the complainant truly believed, in good faith, that a Fair Housing violation occurred, the party accused may not retaliate against him or her for submitting a Fair Housing complaint to HUD. Again, it does not matter that the complaint was dismissed. Complaints get dismissed by HUD all the time on technicalities, like the complaint was not submitted within the required timeframe following the act of alleged discrimination. Those who complain are not expected to perfectly understand FHA law before filing a complaint. Investigations sometimes turn up he said-she said situations that HUD does not want to take on, so HUD dismisses the complaint. This is also not justification to retaliate.

Sixth, this is a big deal. I would rake this HOA over the coals. The first thing the owner should do is submit a complaint to HUD and Florida's own government agency for housing discrimination complaints.

Seventh, what's in the reserves is completely not relevant.

Eighth, you should consider writing me in private for more details, including citations by an attorney addressing in legal detail, with case law citations, nearly all of what I state above. My email address is [email protected].

I am not an attorney.

It seems to me if the Board finds it necessary to levy a Special Assessment against all owners to pay the legal fees, then the owner who filed the Fair Housing Complaint must be assessed as are all other owners.

However, I am not versed in HUD/Fair Housing Complaints, I am not an attorney, nor did I sleep in a Holiday Inn Express last night.

So, what's the outcome in this situation? Does the owner who filed the complaint get a pass if a general Special Assessment is needed to pay the bills or reconstitute bank accounts.

Agreed. If the HOA leadership is simply dividing up the legal bills across all members, as a special assessment, this seems acceptable.
If the HOA leadership is charging the one owner specifically, as a direct assessment, this is a serious federal offense.

I seriously am not following your statements. I think you are mixing up a lot of terms and concepts.

"Special Assessment" generally means a 1-time expense that is divided among the membership equally. By definition, this is not levied against one individual.

Generally, the term for an assessment levied against a single person is "Limited Assessment" (note, I incorrectly called it a "direct" assessment above.)

Here's the definition from my HOA docs:

"Limited Assessment" shall mean a charge against a particular Owner and such Owner's Building Lot, directly attributable to the Owner, equal to the cost incurred by the Master Association for corrective action performed pursuant to the provisions of this Master Declaration or any Supplemental Declaration, including interest thereon as provided in this Master Declaration or a Supplemental Declaration.


I think you need to be clear here. Yes, the HOA can recoup legal fees as a SPECIAL assessment against all members, but it is FEDERALLY illegal to retaliate against the individual homeowner specifically for a HUD/FairHousing suit. This is not something the court can decide about who pays the fees. The HOA is on the hook for the fees and can only charge all members a special assessment to refill their balance sheet.

Yes - the special assessment was levied only against one owner (me). And they did call it a special assessment.

The letter received from the HOA (written by the attorney) said SPECIAL ASSESSMENT - which baffles me because in our condo docs - special assessment is devised among all owners. The HOA letter states that the HOA board “feels it’s not FAIR” to have other owners pay. 😳 ok - what about the bylaws- and condo docs ? Nowhere does it say that fair feelings are allowed to be voted on by the HOA.

Many things are "not fair" when living in an HOA. I don't use the pool, it's not fair that I pay for it.

Anybody can sue anyone for anything including HOA's. Legal costs that are incurred by the HOA are owned entirely by all the HOA members whether dismissed or even frivilous.

The Special Assessment needs to be paid by all the member's. Although the case was dismissed, the owner being billed for this could again sue the HOA for this selective assessment.

Sorry to be pedantic. If the Fair Housing complaint was truly not submitted in good faith, and other things are true, then a HOA (not necessarily the OP's HOA) or housing provider (accused of unlawful discrimination) could potentially recover some of its attorney fees. The courts are pretty generous about "good faith" submissions to HUD and so on. Still, there are instances where the FHA dispute reached a certain level (in the courts?); the complaint was not in good faith, and the HOA or housing provider has recovered attorney fees.

Here though, for the two main reasons I discussed above, I doubt the attorney fees are recoverable by the HOA.

BaftaH, I believe the email you send me and what I send back to you will be one of the most important communications you have on this dispute. Please do email me when you have a chance.

Special assessments are usually issued if major repairs/replacement are required for the common areas and there's not enough money in reserves (and sometimes operation funds AND insurance proceeds) to pay for them. Legal expenses are another matter.

For example, it's one thing if the lawsuit was for something that affected the entire community (e.g. a developer who's trying to get out of paying for certain improvements promised to the homeowners). Depending on how time-consuming the lawsuit became, it might be necessary to do a special assessment to pay those legal costs if there wasn't enough money in the operating budget (where legal fees are usually placed). It's another matter if, for example, a lawsuit was bought against a delinquent homeowner. In that case, I'd expect the association attorney to ask that the association's legal costs and attorneys fees being reimbursed by that homeowner IF the association won - that needs to be part of the original lawsuit.

I wouldn't drain reserves to pay for this and think it's inappropriate. It may be your board (and the attorney) is trying to fiddle with the word "special assessment", perhaps trying to make it look like you're obligated to share in the association's expenses (which you are), but because a lot of money was spent on defending the association against you in your lawsuit, you, not your neighbors, should be held responsible. I call BS on that and don't think it'll work - if the association wants its money back, they can file another lawsuit against you for that (and they might lose since they didn't ask for it at the start.

You had an attorney represent you before, so at this point, you need to go back to him or her to discuss this and see what your options are - most of us aren't attorneys and what's true in your state may not be the case in ours. You may or may not need to countersue to stop this. Or someone will realize it's time to stop all this and come to some sort of settlement.

(This is why I believe in alternative dispute resolution - doesn't guarantee a lawsuit won't happen, but sometimes bringing people to the table in front of an impartial negotiator or arbitrator will prompt all sides to look at the heart of the issues to come to a settlement everyone can live with. Instead, this board may be thinking 'let's stick it to this homeowner because we are the board and therefore we are.")

The OP has said nothing about going to court or any lawsuit. You need to understand that it's likely the OP submitted a Fair Housing complaint to HUD; HUD "perfected" the complaint and had the complainant sign off on it; HUD then formally filed the complaint; per FHA law, HUD informed the HOA of the complaint and asked the HOA for a response; HUD did a kind of preliminary investigation; and then HUD dismissed the complaint for xyz reasons. Sometimes but not always the HOA brings the HOA attorney in and has the HOA attorney review the complaint. This of course results in attorney fees for the HOA.

I am the one who spoke of a lawsuit, but this was with reference to a HOA that I know.

There was not LAWSUIT -
I had only filed a complaint - not a lawsuit- with fha and the investigator/ fha clerk called them for some questions.
The HOA CHOOSE to hire an attorney to respond to this questions. Poor monetary decision on their part. They could have answered the questions.

agreed, my mixup. Regardless, the complaint triggers protections for the accuser. The HOA cannot retaliate or try to recoup costs against the complainant/homeowner individually.

It is NOT a choice for your HOA to hire a lawyer. Your HOA is a CORPORATION of which you are a member/shareholder of. A complaint as serious as Fair Housing could very well qualify a good reason for the HOA to hire a lawyer to consult. A corporation has to be represented in a court of law by an attorney. It could assign someone but who would let a non lawyer represent them beside Charles Manson? Either way, they need to be paid.

People forget that the HOA is a Corporation and follow under certain corporate laws and protections. It has a responsibility to protect its membership. Which should be done by professionals. Who pays for that is what is in question here.

Lawyer consultation, legal fees, or legal actions can be considered "damages" to the HOA. Which entitles them to recover. If this had gone to court, they would be entitled to collect any expense to make themselves "whole". Meaning they get their expenses back via court award. (If it decides to).

I think the way they HOA is doing the special assessment is a bit "wonky". Our HOA we would have the right to file a lien for the money. Most likely could not foreclose on that type of lien but we could lien. We would make a special assessment amongst ALL the members including the person whom filed the complaint to pay. They would not be exempt.

That is why I always say "suing your HOA is suing yourself and your neighbors". Accept that FACT and do what you got to do.

Melissa, you really are missing the key point here. This is a FHA/HUD complaint. There's protections and the HOA is barred at the FEDERAL level from seeking damages and recovery against the complaining home owner.

This is 4 or 5 times now that you've continued to promote the idea of the HOA collecting individually against the complaining home owner...

You keep insisting that such an owner will not be liable for the HOA's/COA's or say apartment complexes attorney fees. This is not so. An owner or tenant cannot submit repeated (or even one-time) bad faith, frivolous complaints (complaint) to HUD and expect that he/she will be off the hook for attorney fees. Whether she/he is off the hook will depend on the wording of the covenants.

The bar is very high for an FHA complaint to be deemed bad faith. But bad faith complaints do happen. Why? So mischievous owners with other axes to grind do not abuse the HUD Fair Housing complaint process to give what may be a perfectly upstanding HOA/COA Board and manager a hard time. This wastes both the taxpayers' and the HOA/COA membership's money.

The number of people I know who think that a manager issuing, say, a parking violation to them is a sign of discrimination, that is unlawful under the FHA, boggles the mind. Many people think any so-called "discrimination" is grounds for filing a complaint with HUD and do submit such a filing, only to have HUD dismiss it with a wave of the hands, and well before the HOA would have to be noticed of the complaint.

Depending on the wording in the covenants, HOAs may lawfully discriminate, in one form or another, against:

-- Giraffe owners.

-- Smokers.

-- Graffiti art students practicing on the pool deck at 2 AM.

-- Drug dealing owners driving on the lawns of the HOA common areas at 3 AM, having concluded their 2 AM graffiti art class at the pool.

-- Those who are not paying their assessment.

there's the problem here. You are assuming its a bad faith action because it was dropped. That's poor form. Taking the word of the OP, it was a legitimate complaint that was later dropped/dismissed/whatever. There's Federal protections for the homeowner, regardless if it was later dropped, if it was not in bad faith.

I think you mis-read.

You were making blanket assertions, indicating that a HOA/apartment complex may never bill a person who files an FHA complaint where HUD later dismisses the complaint. This is not so. Apartment complexes in particular frequently have attorney fee clauses. E.g. An owner submits an FHA complaint to HUD saying the HOA is discriminating against the owner because the HOA told the owner to get rid of the rhinocerous in the owner's front patio (or what was her front patio; the rhino destroyed the cement). The owner hates the HOA, because in the past, the HOA also told the owner his chimpanzees are only allowed in the HOA swimming pool when accompanied by an adult over the age of 15. The HOA has also prohibited the chimps from using the hot tub. So the owner said, "Enough! I will ask HUD to bust the HOA for this blatant discrimination against people who like animals!"

Furthermore, as of this writing I do not know whether the OP submitted a good faith complaint. To opine further, I'd have to see the complaint.

In the condo docs - legal fees are categorized under common expenses.

I do not see where this falls under any of the issues listed on the HUD website under complaints. https://www.hud.gov/complaints_home

HUD handles complaints in several categories:

Housing discrimination: Federal law prohibits housing discrimination based on your race, color, national origin, religion, sex, family status, or disability. If you have been trying to buy or rent a home or apartment and you believe your rights have been violated, you can file a fair housing complaint.

Bad landlords in federal housing: Hundreds of landlords have been fined and/or debarred from doing business with the federal government as a result of failing to provide safe and decent housing for the poor, while enriching themselves on taxpayer-funded subsidies. Find out how to report a bad landlord.

Manufactured housing: If you have a problem with your manufactured home, learn how to solve the problem.

Land sales: The Interstate Land Sales Full Disclosure Act protects consumers from fraud and abuse when buying or leasing land from developers. If you believe your rights have been violated, you can file a complaint by writing to HUD.

Deceptive contractors: HUD insures loans to help people renovate and repair their homes through a program called Title 1. If you have problems with a contractor who is performing work for you under this program, find out how to report it to HUD.

Fraud, waste, and abuse: If you are aware of fraud, waste, and abuse in HUD programs and operations, report it to HUD's Inspector General Hotline!

Problems with HUD's website: We do our best to keep HUD's website current and accurate for you. If you find something wrong on HUD's website - bad links, information that you believe is wrong or outdated - we want to know. Please contact us!

Customer Service: We strive to provide excellent customer service. Have a question about a HUD program? Had a great experience with HUD? Didn't get the service that you expected? Please tell us about it!

I’m a little worried that attacking people verbally and calling them names and telling them to leave back to their country - in front of the HOA board - during an HOA board meeting - is ok with you as a “housing manager or HOA President” or whatever you are… the HOA president went door to door to ask people to
Come to
The meeting because this was going to be interesting. Interesting because they were planning to attack me for my audacity to rent to people of color. In the word aid the attacker (at the direction of the hoa) “you are renting to “these” people? You see - this is a waterfront community built in the 1975 and some of these old timers don’t believe “these people” should be allowed to come and go… it’s a general discrimination environment, there have been other issues, a black kid grabbed and handled because he dared jump the gate and didn’t use the key as his dad had said…
If you condone all this - well - enough said !

Well in general nobody in a HOA likes renters. Does not matter who they are. The goal of most HOA's is to reduce renters. So the term "these people" does not necessarily mean a color thing. It could very mean renting in general.

People are just being honest with you when telling you if do not like it then sell and move. Otherwise lay in the bed you made yourself. Best to do it before they do lien...

Why is this? Because HUD has in fact been stuck with paying the attorney fees of defendants (apartment complex corporate owners and such) who prevail in a lawsuit that HUD brought against the defendants. I believe this is per a certain attorney fees clause in the HUD statute. In the early stages of a FHA complaint, there are periods where HUD plays "judge" for awhile; weighs all the evidence; and decides whether taxpayers' money is being properly spent by pursuing a case against the alleged offender.

The OP has not filed any suit. Nor obviously has HUD filed any lawsuit. The OP owes no attorney fees.

After reading the OP's account of what happened, and even though her first complaint was dismissed, I believe the billing for the HOA's attorney fees is blatant, unlawful retaliation. From the anonymity of the net, I am waiting in the tall grass for this ignorant HOA/COA that does in fact discriminate unlawfully. (Big talk? We'll see.)

Who the he-- would ever file an FHA complaint when they think they will have to pay thousands of dollars in attorney fees for a perfectly good faith complaint?

Note: The courts say that retaliation violating the anti-retaliation clause of the FHA is further, in and of itself, unlawful housing discrimination violating as well 42 USC 3604.

Fair housing law (the courts; HUD; state agencies that enforce state statutes that prohibit discrimination in housing) has long determined that HOAs and COAs are in-part "housing providers" that fall under the purview of the Fair Housing Act.

You are spreading misinformation on an important topic.

This topic runs much deeper than what I previously posted from the complaints page. Click on the first PDF on this HUD search page to view.

https://search.usa.gov/search?affiliate=housingandurbandevelopment&query=Preventing+Harassment

I really don't understand your vitriolic attitude here. As Augustin and others have said above, HOA's are certainly capable of discrimination. Why are you so hostile about this topic?

You really seem to be stuck on a few issues that are not relevant, frankly incorrect, and borderline offensive.

- On its face, the HOA hosted a meeting in which the President allowed and/or encouraged discriminatory behavior. It doesn't matter that the HOA is not literally providing a house to the complainant. Heck, I shared a lawsuit story last week where an HOA got dragged through the coals by a FHA complaint over family/age discrimination posting 'no kids allowed' signs at the pool.

- It doesn't matter that the complaint didn't graduate to a full on lawsuit. Do you have more details as to why? As posited several times above, there's many reasons why a complaint doesn't get that far. This is not the same "found not valid."

- What does it matter how the HOA chose to defend itself and answer the FHA complaint? You seem to be stuck on the fact they hired a lawyer and because of that, the HOA has a right to recoup fees specifically from the individual. As stated many times, the complainant is generally protected under FEDERAL law against retaliatory actions by the HOA, unless it is demonstrated to be a bad faith nuisance complaint.

- Even if it was demonstrated to be a bad faith complaint, the Judge him/herself is the one to award attorney fees to the defendant. The HOA charging the individual after the fact with an assessment is really pushing the limit of further federal liability...

I guess in summary, please re-read the posts. I honestly don't know why you are responding the way you are.
- FHA complainants are protected from retaliation, unless ruled as a bad-faith complaint.
- Bafta here seems to have a good faith complaint of discrimination.
- the discrimination seems to be supported and allowed during and through normal HOA business.
- The HOA shelling out $$ to defend against an FHA complaint is the nature of doing business, and is designed to 'warn' entities from even an iota of discriminatory actions. The HOA needs to eat the cost and move on....or charge all owners a special assessment.