Attorney Fees and Associations
Always have an attorney fees provision in your association’s governing documents, even if the association is entitled to them under the law.
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Attorney Fees
Do Assessments Require Board Action – YES
Desch v. South Fork of Hillsborough County II Homeowners Association, —So.3d— (2023). What you need to know:
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Self-Dealing by Director is a Breach of Fiduciary Duty (Case 1)
Facts Plaintiff, Coley, owns a home in an HOA, the Eskaton Village (“Association”). Two other Eskaton named entities (“Eskaton”) develop and support HOAs. A five-member board runs the Association, subject to the Declaration. Eskaton has always controlled three of the five directors on the Association Board because it owns 137 of the 267 units. The
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Attorney Fees – FDCPA Violation – Failure to Follow Association Document Procedures
Facts Plaintiff, O’Donnell, bought his condo in 2012 and sold it in 2019. Beginning in 2013, O’Donnell missed various assessment payments. In late 2013 the association filed a lien, and in 2018 the association commenced a foreclosure action. To bring the lawsuit to an end, O’Donnell sold his unit. The sale allowed O’Donnell to pay
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An HOA Amendment that was not Reasonably Foreseeable under the Original Declaration may not be Enforceable Without the Consent of 100% of the Owners
What you need to know: In some States amendments to a HOA declaration that was not reasonably foreseeable is not enforceable. MacLeod v. Mogollon Airpark Inc., Not Reported in Pac. Rptr., 2023 WL 2582622 (Cal. 2023) Issues:
How to Turn $147 into $10,000 – the WRONG Way
Castilian Hills Homeowners Association v. Chaffins, (Wash. Ct. App. Oct. 22, 2018) The Facts Homeowner bought home in 2004. In 2016, the homeowner failed to pay his $147 assessment. The homeowners association (“HOA”) assessed a $20 late fee. The homeowner still did not pay, despite the normal language in the HOA governing documents about interest,
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Owners are Liable for Assessments, Even When Corporate Formalities Not Perfectly Followed
Summary Declarant owned nine of 10 units, controlled the board and association, failed to have an association bank account, intermingled the assessments that were paid into his business account, never held elections or annual meetings and kept no separate corporate records. Yet, the Court held that these failures could not be used as an excuse
Delinquent Owners – Withholding Access to Common Elements
A Maryland Court recently ruled on the extent of powers a Condominium Board had in dealing with a unit owner who was delinquent in assessments (Elvation Towne Condominium Regime II, Inc. v. Rose, 162 A.3d 1027). The Association at issue adopted a policy by which delinquent unit owners would be deprived of their right to
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Attorney Fees – How Do I Get a Court to Award Them to My Association and What is a Fee Shifting Provision?
Most states, including Wisconsin, follow the American Rule when it comes to attorney fees. In simple terms, it provides that each side in a lawsuit is responsible for their own attorney fees (win or lose) unless: A statute or law provides otherwise; or A contract provides otherwise. Because the law recognizes your Association documents as
The Importance of Due Process—What is a “Notice and Opportunity to be Heard?”
Some states have statutes that require that Associations provide a notice and opportunity to be heard to a resident before the Association can fine them for a violation of the governing documents. Even though Wisconsin does not have such a statute, providing residents a notice of the alleged violation and opportunity to give their side
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