Homeowners Association Spends $300,000 In Legal Fees Over A Pick-Up Truck - The ConsumeristA homeowner in Florida was awarded $187,000 in legal fees from a years-long court battle over the right to park a pick-up truck in his driveway. Now the homeowners association is going to have to pick up the tab for $300,000 in fees.
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How do you react to a story like this? Do you cheer for the owner who won? Or do you lament the fact that every owner in the development now has to pay for the folly of their governing board? In any event, thanks to Mystery Reader for sending it along.
12 comments:
Without knowing the bylaws and state laws, the first thing I would suggest for the homeowners is suing the board members to make them personally liable for those costs.
This is hard-learned lesson. I discussed the issue in more detail before the attorney fee ruling. Go to: http://www.floridacondohoalawblog.com/2010/03/articles/board-operations/enforcing-vehicle-and-parking-restrictions-the-devil-is-in-the-details/
There is no point in suing the board members. People are always suing board members and almost never recover anything. If they were following the advice of the association's lawyer in filing suit and continuing to fight it, they will be protected against personal liability (unless there was some kind of conflict of interest or self-dealing, and I don't see any indication of that here). It takes a lot more than losing a lawsuit (even one that may have been ill-considered) for a corporate director to be held personally liable for damages to the corporation.
The homeowner should consider filing a malpractice suit against the HOA attorney as well as reporting the HOA attorney to the Florida State Bar.
Although the article suggests that the HOA corp members will be paying for both fees, something doesn't quite add up. First of all, unless the HOA attorney took this case on contingency someone has already been paying the HOA attorney for the last 3 years. If the homeowner had counterclaims, that likely fueled the HOA attorney via an insurance policy which will also be responsible for the homeowners attorney fees.
You'll notice the homeowner's attorney complaining about the refusal of the HOA attorney to settle or co-operate. The HOA attorney undoubtedly "advised" the board to continue to pursue the case. The targeted homeowner had no choice but to go along for the ride or bow to the whims of the HOA attorney - who by the way always demands money payable to himself as part of any settlement. If you give in, you are just inviting another shakedown.
Sometimes Board members know the risks but want to go forward anyway because they are despots and think homeowners will capitulate to their demands. Kudos to the homeowner for fighting the good fight. But, will the other homeowners "get it." No matter how you consider it this is a Board with bad judgment, but I agree they get to hide behind the attorneys in most states. Imagine how many other homeowners were coerced by the HOA Board to take action they did not have to take simply because they did not want to or did not have the money to fight back. It was easier to try to please the Kings and Queens of the neighborhood.
There's always the option of tar & feathers for the board members.
An individual association member doesn't have standing to sue the association's lawyer for malpractice. Only the association can do that, and that means the board of directors has to make the decision. It might also be the case that the membership has to vote to institute litigation. But as a member you can't do it alone, because the lawyer represents the corporation, not the individual members.
"The homeowner should consider filing a malpractice suit against the HOA attorney as well as reporting the HOA attorney to the Florida State Bar....." I agree with most everything said by this anonymous blogger. Until, you have lived through one of the targeted attacks, upon an innocent and unsuspecting homeowner, you have no idea of the devastation. Some of the HOA board member(s) and there legal expertise, will do anything to destroy the lives of their victims. The frauds upon the courts are insane. The property damage, altering paper work, outright lying under oath (perjury but who cares), have "witnesses," that never appear, and most of the perpetrators don't even show. The victims of these aggressive, fraudulent attacks deserve to be rectified, no matter the state and who ends up picking up the tab. Hopefully, that will be the boards, property owners and legal talent responsible.
Most of the people who post here know very well how bad things can get. There must be 500 posts on this blog with horror stories attached and I get phone calls and emails every week with new ones. It is really not news.
Sadly, the law does not provide owners with many options for challenging the actions of their BOD. The best you can hope for in most cases is winning a civil judgment against the association--the corporate entity.
Suing the board members and the association's lawyer and filing criminal charges (even though they may very well be justified) nearly always leads to no tangible return, and a fortune in attorney fees for both sides. The lawyers are the only winners.
There are some exceptions to that rule. I was involved in a case where the BOD members themselves had to pay. That was a case of deliberate deception, concealment of association records, and perjury. The records that undermined the association's defense (that they had lied about under oath) were discovered accidentally, from a non-association source, just before trial. And one of the association's lawyers was probably aware of the deception.
If you can prove something like that--gross misconduct, fraud, discrimination, perjury, self-dealing-- then you have the basis for the kind of personal liability people are always after.
But the emphasis has to be on what you can prove, rather than the "I know they did it" speculation that runs rampant and usually produces no admissible evidence when all is said and done.
Is it fair that, all around the US, sometimes people who run associations have gotten away with abusing people's rights and even committing what may very well have been crimes? No, of course not. But lots of things in life are unfair and nothing happens to correct it. It isn't fair that Justin Bieber is a millionaire, the cast of Jersey Shore rang the bell at the New York Stock Exchange, and millions of people around the world don't even have access to clean drinking water.
The issue is what people are willing to do about it other than write angry blog posts, and the big question is whether they're willing to organize.
I have been saying for many years that there must be a national owner's rights organization. The many activists and organizations need to unify at the national level. There have been several attempts to do that, two of which I have been involved with to some extent. Not an easy thing to do, and no success yet. Maybe someday.
But it doesn't have to be a national organization I think organization is the key to success in any arena. There is the political arena. There is the legal arena. There is the arena of the media. And there is the arena of your own association. Pick one or more, organize, and see what you can do. Look at what Shu, George, Jan, Marjorie, and others have accomplished.
The rules of American politics and the American legal system will work the same for owner activists as they do for everybody else, and there are many examples of successful grass-roots activism in many policy areas--including this one.
Like the facehugger in the movie Alien, HOA corporations have so attached themselves to homeowners that any action against the parasite threatens the host.
"It's got a wonderful defense mechanism. You don't dare kill it."
Sounds the the Goa'uld. Indeed.
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