Thinking of suing your HOA? Has your HOA filed a lawsuit against you?

Read this page for important information, and personal accounts from homeowners and residents who have lived through the ordeal.

By Deborah Goonan, Independent American Communities

debgoonan@icloud.com

I’m not an attorney. However, over the past 7 years, I have been reading legal complaints, case summaries, and generally following the progress of legal disputes in HOA-Governed Housing. I read and analyze pages and pages of dry, verbose information, including legal opinions, to gain a better understanding of exactly how current laws work for or against housing consumers.

In other words, I look for patterns of dysfunction and injustice through the lens of housing consumer protection.

Here’s what housing consumers need to know:

Homeowners, condominium, cooperative, and property owners associations are collective legal entities – usually incorporated. Governing documents of HOAs – which include Declarations of Covenants, Conditions, and Restrictions (CC&Rs), By Laws, and Articles of Incorporation of mandatory-membership HOAs are legally binding on both individual members and their Association, with U.S. courts generally viewing the relationship as contractual between and among the parties.

But that contract is usually written by and for developers, making it one-sided in favor of the HOA. In addition, governing documents are not subject to state or federal review, and state laws impose very few restrictions on the terms of HOA contracts.

A buyer or heir to HOA property must agree to all terms without any opportunity for negotiation before taking title to that property. Take it or leave it.

And, it’s important to note that state laws governing HOAs are usually written by, and therefore heavily skewed in favor of, real estate industry stakeholders: land developers and home builders, bulk investors, HOA management firms, HOA attorneys, and so on.

The HOA industry is, at best, loosely regulated by a patchwork of inconsistent state laws, and a handful of regulatory agencies. Most often, state Ombuds and regulatory departments of business or real estate – if they exist – are established with virtually no budget to investigate consumer complaints, and no mandate or authority to enforce statutes or HOA governing documents.

I call it Regulatory Window Dressing. Elected officials give the appearance of doing something to rein in excessive power and abuse of HOAs, without really doing anything at all.

That’s why, in most cases, an Association member’s sole option to enforce or defend their rights against their Association is engaging in a legal battle in civil court.

I regularly hear from owners and residents of Association-Governed Housing. I listen to their frustrations and their personal stories, as do hundreds of other housing consumer rights advocates across the U.S.

---

Blaming the victim

After following legal cases and communicating with owners all over the U.S., a pattern emerges. That pattern is that the association digs in their heels and does everything in their power to shift blame to the victim(s) of their abuse. The association must never admit fault, as it might undermine their credibility and authority.

The HOA’s goal is to wear down the “malcontent” financially and emotionally, so that they will give up the fight and move on. The goal is to set an example for other owners and residents, so that they do not dare to question status quo, for fear that they will be the next target of the Association.

That’s the kind of environment that breeds apathy. Ignoring problems and pretending not to care about HOA dysfunction is matter of self-preservation for most homeowners.

This page summarizes the struggles faced by owners and residents of HOAs, and includes a series of personal statements from individuals whose American Dream has turned into the American Nightmare.

What to expect from the HOA litigation process

The legal dispute takes over your life. Litigation involves a great deal of your time and effort, and the information gathering process can seem invasive. You will be expected to provide documentation of your complaint or facts in your defense. Your attorney or the HOA attorney will demand that you to turn over copies of any and all written correspondence you have had with the board, manager, or collections agency, including emails.

The list of correspondence includes letters, invoices, receipts for payment, violation notices. Relevant photographs, social media posts, voice mails, and recorded phone conversations are also subject to examination by both Plaintiff and Defense attorneys. One or more rooms in your home may be filled with stacks of important papers and files related to your lawsuit.

You may become the enemy. Most individuals report feeling shunned by their neighbors, and being labeled as “disgruntled,” “unreasonable,” “malcontents” or “troublemakers.” Your HOA board may openly blame you for creating the problem and saddling the Association with unnecessary legal expenses.

You find out who your real friends are. In the early stages of a dispute, you’re likely to have several friends and allies. But once the lawsuit is filed, many will shy away from you. Some will support you privately, but will not defend you publicly. Those who are willing to support you and stand by you through this ordeal count as true friends.

The dispute strains personal relationships. Isolation and social rejection spreads to your family members. This puts a strain on couples and families. Friends may also avoid your partner. Play dates with your children may stop, or a child might be bullied at school. Family stress and feelings of rejection can lead to behavior and social problems for children. Some people report that a prolonged lawsuit has led to the end of their marriage, because one partner wants to give up and settle, while the other partner wants to hang tough and fight for justice.

You get the Silent Treatment. Once litigation begins, your HOA Board and Manager will become less transparent. All communication with your HOA must be directed through the attorneys. Open meetings become less frequent.

Your requests might be ignored or rejected. Quite often, your HOA will not cooperate with your requests for access to documents. This is one of the most common complaints I hear. In addition, your requests for maintenance, as well as approval for home modifications that require permission from the HOA, may be delayed, ignored, or rejected. Some owners have received “cease and desist” letters from the HOA attorney, accusing them of “harassment,” and threatening legal action.

Retaliation is common. If you have a bully on your board or in charge of management, aggressive and abusive behaviors often escalate. Some HOAs will go out of their way to humiliate the homeowner by any means possible, including publicly spreading rumors, lies, and false accusations. Particularly bitter disputes may even devolve into physical assault.

Police complaints may be filed, even if there is no basis, as an intimidation tactic. Sometimes arrests are made, and the charges later dropped. But by that time, reputations are already damaged.

Lawsuits often drag on for years. The Civil Litigation process is anything by Civil.  It is fraught with endless motions, counter-suits, depositions, and a long and invasive discovery process. Expect the process to take at least 2 – 4 years. A complex case involving multiple parties or counter-suits and appeals can drag on for 5 – 10 years.

You don’t know who you can trust. I often hear from HOA residents that they are fearful of talking to anyone who might report back to their HOA board or manager. While many of these fears may be unfounded, HOA disputes can divide communities. When your formerly friendly neighbors snub or ignore you, it can destroy your sense of trust in others as well. And when you don’t trust people, you tend to self-isolate, compounding feelings of rejection and loneliness.

You might go broke. The legal process can be very costly. Attorneys can quickly burn through a $10,000 – $20,000 retainer. And, because finding a resolution can take years, your legal costs can exceed $30,000. As you’ll see in some of the personal stories below, legal costs can well exceed $100,000, particularly if your HOA prevails and is awarded their attorney fees by a judge.

By the way, don’t expect an attorney to take your case on contingency. Here’s why.

Prolonged stress can harm your health. I have heard reports of depression, anxiety, and sleep disorders. Some owners become so emotionally distraught, they consider or attempt suicide. Sadly, a few have taken their own lives.

Others find that stress exacerbates pre-existing health problems. Some have reportedly developed new illness, such as an autoimmune disorder or cardiac distress. People with disabilities have told me the stress makes it more difficult to cope, especially when the HOA is refusing to accommodate their disability in violation of Fair Housing Laws.

There’s no easy escape. During the heat of the legal battle, though you might choose to move elsewhere, selling your home can be difficult or next to impossible. That’s especially true if your HOA has filed one or more liens as a result of unpaid assessments. (In many states, unpaid fines turn into unpaid assessments.) If your dispute involves defective construction, environmental contamination, or significant damages that your HOA refuses to repair, your home is probably not marketable.

In the end, you may be forced to move. Owners and residents are almost always pressured by the HOA and their adversarial neighbors to move. Many ultimately do, even if they “win” their lawsuit, simply to escape community tension and start over in a new neighborhood. It’s fairly common for a legal settlement to require you to sell your property and vacate the HOA.

Out-of-court confidential settlements are common. Most lawsuits never make it to trial, and instead end outside of court with a settlement. A condition of most settlements is that both parties agree to keep the details confidential. Although you may not be comfortable with a “gag-order,” agreeing to keep quiet about the outcome of litigation may be the best way to put an end to prolonged litigation.

Bottom line – It’s not a fair fight. It’s not that individual Association members never prevail in litigation. But the odds are stacked against them.

It’s relatively easy for the HOA to meet its burden of proof when suing a member. The HOA can often prove its case against you by referring to what is written into the governing documents. The HOA also gains considerable authority under state law. State laws enable most Associations to take various punitive actions against a property owner, to include issuing fines, placing a lien on your home, and even foreclosing your home to collect on that lien.

On the other hand, it’s relatively challenging for an individual owner or resident to prove a case against the HOA. For one thing, an Association is almost always represented by an aggressive, well-trained HOA attorney – paid by an insurance company – who is very familiar with the law, and knows how to defend claims against the Association or board members.

Very few attorneys will represent a member against the Association, and those that are willing to take a case are not necessarily on equal footing with the HOA’s attorney. If you decide to sue your Association, you (or your attorney) must either prove that the board’s or manager’s actions were unreasonable or done in bad faith. Neither standard is clearly spelled out in the law or governing documents.

And, finally, state law does not specifically obligate an Association-Governed Community to uphold its maintenance responsibilities, as spelled out in the governing documents. For example, there is no law that mandates an Association to maintain the common elements and common areas to a minimum standard for health, safety, or habitability. Nor does state law require HOAs to maintain common areas to the same aesthetic standards that are required of individual property owners.

One exception: homeowners and residents quite often prevail on Fair Housing complaints, because federal law is quite clear and unambiguous on matters of disability accommodation and discrimination against protected classes. However, there’s such a backlog of fair housing claims that it can take several years to resolve, and, during that time the resident often moves in order to improve living conditions.

Sometimes, even when you win, you lose. After several years and appeals, you might prevail on your case, or at least end up with a fairly good settlement offer. But by the time you deduct legal expenses for the attorneys, you may find you’re not that far ahead of the game. In fact, the net amount of your award or settlement may not even cover your total damages, especially if your property has been devalued, sold at a loss, or lost to foreclosure.

And you may think that a judge will order the HOA to pay your legal costs. But don’t count on it. First of all, not all state laws have a “loser pays” provision. And even if your state law does stipulate that the prevailing party is entitled to reimbursement of attorney fees, a judge may find that you only partially prevail, or that both parties prevail on different issues. If that’s the case, both parties will still be covering a good portion of their own legal expenses.

So…what to do?

There’s no doubt about it. Engaging in litigation with your Association-Governed Community is not something you should take lightly.

Don’t just take my word for it. Read through the following personal accounts of homeowners and residents who have lived through the ordeal.

Then make your own decision about how to best handle your HOA dispute.

I encourage you to share this page:

• with other property owners and residents in Association-Governed Communities,
• your family and friends
• anyone who may be contemplating purchase of a home in a HOA, condo or cooperative association, and
• your state and federal elected legislators.

Have a personal HOA lawsuit story you’d like to share? Contact me at debgoonan@icloud.com

---

 

HOA Lawsuits: Personal stories

Condo owner victimized twice in dispute over toxic drywall

When Michelle Germano broke the story in her Virginia community regarding toxic Chinese Drywall, many of her neighbors shunned her.

To make matters worse ‘in their eyes’ I was appointed the lead plaintiff in the class action suit. My situation was so muddy because of the Developer telling people not to pay attention to me about Chinese Drywall, because I was ‘crazy.’ He tried to discredit me, but then the story broke in the newspaper and TV. The majority of the neighbors turned on me. I had a couple close friends that stayed in touch, supported me, and fought for me. I was blamed for ‘devaluing’ the property.”According to Germano, it was a lengthy 7.5 year battle to resolve her legal dispute with her HOA. Since she moved out of her home in 2009, she says,”It cost me thousands of dollars; a bankruptcy, emotional and financial distress. My matter was resolved when I acted as my own lawyer and pleaded my case to the Judge in court in 2015. He ordered a mediation. I had 4 attorneys: Class Action suit; bankruptcy attorney; foreclosure attorney; mediation attorney.”

In her statement to the court, Germano explained how purchasing and living in a home with toxic gases of Chinese Drywall caused physical illness and destruction of electrical and plumbing components. Under the circumstances, she was unable to live in, rent, or sell her home. The mortgage lender and other creditors had granted Germano forbearance, but her HOA continue to insist upon full payment of assessments, plus collection costs and attorney fees.

The exorbitant cost to gut her home and replace more than 150 sheets of toxic drywall, which would involve repairing or replacing corroded wiring, plumbing, and appliances, was out of the question. Even real estate investors were not interested in flipping the home, because they were unable to make any money on upon resale.

Ultimately, Germano’s lender insisted that the HOA allow the bank to proceed with a Deed in Lieu of foreclosure. That finally ended the continuous harassment by the HOA for unpaid assessments.

Asked if she was satisfied with the ultimate resolution, Germano said, “I am very satisfied with the outcome, I am just sorry it took 7.5 years. The Bankruptcy has been dismissed; Deed-in-Lieu; all judgments dismissed. Senator Mark Warner is working with me to restore my credit. They [the HOA] tried to get me to sign a gag order and I refused.”
“I was extremely ill from the Chinese Drywall. I was sick 1 year in the house and 3.5 years out of the house. I lost my personal belongings; furnishing; savings; equity in house. Having Chinese Drywall, getting sick; losing everything was nothing compared to the HOA heartache. I would have recovered years ago from the losses, but their aggressive behavior kept the pain fresh in my mind everyday…all day.”

After the bank took possession of her home, it was sold at auction. Germano is rebuilding her life, renting a home that is not located in an HOA.

Judge decides HOA can ignore barking dogs, is not obligated to enforce nuisance rules

Neil Brooks, a medically disabled man from Colorado, sued both his neighbor and his HOA after one full year of unsuccessful attempts to resolve a disputed nuisance caused by his neighbor’s barking dogs.

Immediately after Brooks filed his lawsuit, he and his wife were removed from their HOA community online discussion forum. Legal discovery would later reveal that some of Brooks’ neighbors, including several HOA board members, agreed to exclude the two homeowners from the internet forum so that they could inform all homeowners of the pending litigation, tell “their side” of the story, and rally support for the neighbor being sued. The discussion soon turned into an online posse of homeowners intent on “voting [Brooks] off the island.”

Yet none of the residents in the small association – less than 40 homes – ever agreed to speak to Brooks directly, despite his offer to meet with both his neighbor and the HOA board face to face.

A year later, Brooks’ neighbors sold their house and moved, taking their dogs with them. They settled out of court with Brooks. But a judge threw out the separate case against the HOA, and ordered Brooks to pay $68,000 in legal fees. That only escalated tension in the neighborhood.

Neighbors continued to either shun or verbally harass Brooks. A series of harassment reports were filed with the local police department by Brooks against his neighbors and by neighbors against Brooks. Ultimately Brooks was arrested for alleged “felony menacing” of his neighbors with a handgun he purchased for self-defense.

Those charges were later dismissed, on the condition that Brooks submit to a psychological evaluation (which confirmed he posed no threat to himself or others) and move out of the HOA community in order to avoid further conflict. Neil and his wife were forced to sell their home. The stress of these events led the couple to separate.

The entire ordeal left Brooks financially devastated at a time when his health was declining. Brooks continues to struggle with his medical condition.

Condo owner fights legal battle against developer-friendly condo board

Chuck Welsh is a decorated Navy Veteran of the Gulf War, a licensed yacht captain with his own business, and a former land developer. His life has been spent on the water, and boating is his passion. In the early 2000s, Welsh was thrilled to invest in a new Florida condominium with views of the Intracoastal Waterway, a private Marina, and an optional “deep water” boat slip for his sail boat.

Unfortunately, shortly after purchasing his condo, while the Marina was still under construction, the real estate market tanked. At that point, only 5% of condo owners had invested $150,000 apiece for boat slips. Continued construction came to a standstill. Welsh and other boat owners were dismayed to discover that, at low tide, it was impossible to safely navigate the channel from within the marina to the Intracoastal Waterway. Naturally, boat slip owners complained.

According to Welsh, the developer made promises to address the problem, but never did. Then the bank foreclosed on the developer. Ultimately, the association was turned over to condo owners, but the developer first appointed a member to the board to serve as Condo Association President. Two other board members, who were intent on dealing with the marina issue, were chosen by condo owners. Owners of boat slips hoped the board would address the problem of the shallow Marina. In fact, they insisted on hiring an attorney to sue the developer.

But the board President refused to discuss the issue, and organized a recall of the other two board members. Welsh vocally objected to this recall, since it was done “in the dark of night”, and no one owning a boat slip was made aware that it was occurring. He indicated that it was his intent to take legal action to see that funds were expended to make the marina functional, and, as a result, he was essentially perceived as a threat by the Condominium President.

Shortly thereafter, when Welsh was bringing his boat into the marina at high tide, he was approached by an officer of the Florida Wildlife Commission. Someone had filed a complaint that Welsh was operating his boat in a reckless manner. “After talking to me, the FWC officer realized that the complaint was unfounded and made falsely,” says Welsh. Two weeks later, a neighbor informed Welsh that each condo owner had received a letter from the Condo Association President, accusing him of harassing condo owners, and describing him as ‘dangerous.’

Welsh was horrified. “To accuse me, a Navy Veteran, of reckless operation and being under the influence of alcohol, that could result in losing my license.” Welsh concluded the false accusations were retaliatory, due to his dispute with the condo association president, who did not possess a slip nor boat and stated that she “did not want to hear anything else about the marina”. Because of the seriousness of the situation, Welsh filed a defamation suit against the condo association and its president in 2012.

Welsh then moved out of his condo. “After they did what they did to me, I left, and never went back,” said Welsh. “I was very concerned because the Condo Board President seemed intent on having me discredited and even arrested in an effort to silence my complaints. There was no way I could stay there for fear every time I went out on my boat, someone would just randomly call the police, and I had no interest in staying after filing the suit. I paid my mortgage and dues for a year, until the legal fees soaked me to a point I could not pay anymore.”

I was uncomfortable trying to rent the place, because the condo board had authority to approve/disapprove a renter and another owner had already faced difficulty getting tenants approved. I put the place on the market but, while priced at half of what I paid, my only offers were substantially less than that. The bank worked with me for nearly 3 years, knowing I was in litigation, but, on the advice of an attorney, as opposed to a short sale, I opted with foreclosure in February of 2015.”

The Association’s insurance defense attorneys, who also represented the president at no cost to her, used a qualified privilege defense, arguing that it was the board’s duty warn others of potential danger, real or not. But for a qualified privilege defense to be successful, the defamation has to be made “in good faith.” The burden is on the Plaintiff – in this case Welsh – to prove that false statements and accusations were made intentionally, recklessly, or out of malice, hatred, spite, or ill will – in effect, targeting Welsh specifically.

Over nearly 5 years, Welsh says the case, which is still ongoing, has involved no less than 20 depositions, endless motions and hearings, and continuously delayed court dates. The defense has refused to cooperate, and the case dragged on as legal costs multiplied. During that time, Welsh has endured a great deal of stress. He ultimately gave up his dream condo to the bank at foreclosure.

According to Welsh, at least seven condo owners have gone on record defending him on the grounds that they either saw him operating his boat professionally at the time and/or the allegation was as an obvious result of the dispute.

Welsh estimates that he has spent nearly $150,000 in legal and associated expenses. He cautions readers, “There is a lot to take from this case when considering litigation against your HOA or Condominium Association and the uphill battle that it can be, regardless of the merit of your complaint.”

To hear how the litigation finally came to an end, listen to Welsh with Shu Bartholomew On the Commons. 

Homeowner laments loss of friends, isolation as HOA dispute drags on

Some homeowners I interview ask me to not share their real names, for fear of retaliation. Their requests for anonymity are quite common. The homeowner’s name in this summary has been changed to protect her identity.

Darlene, a wife and mother involved in a Fair Housing lawsuit, describes her experience:

“Trust and friendships are totally lost.  It is extremely destructive to your friendships and connections – even business, even neighbors who agree with you.  You really do not know if the people who are for you will be mentioning details, even unwittingly, to your detriment.  You basically are forced to shut down and move either way, whether you win or not.  If the issue drags on for years, as in our case, your life is “on hold” during all this time.”

“Your children’s lives are also destroyed.  My children can no longer play with their best friends as the parents support the HOA.  We don’t know what information will be conveyed back to these people.  It is the children who are harmed and damaged beyond belief in this.  They will grow up with the idea that your neighbors are not people you can count on.”

“My pre-HOA version of trust is forever changed as well.  We used to take meals to neighbors when sick.  No one came to our aid, no one.”

With regard to moving, Darlene explains, “I sincerely thought we’d be able to find something affordable over time outside of an HOA.  I knew it would take a longer time than normal, but not this long.  I did not fully understand that depression could keep you from feeling like you could move at all.”

“Looking back on the struggle, I would not buy into an HOA.  We’d have never had these issues…I’d have never had to have gone “on record” to a Board … chairman who would berate and mock my medical condition.”

Fighting for freedom in developer-controlled community

Donna Simpson,a homeowner in Poinciana, Florida, one of the largest HOAs in the U.S. The large scale community spans portions of Osceola and Polk Counties, and is home to more than 52,000 residents. The Association is made up of 9 individual Village Boards under the Master Board (Association of Poinciana Villages, or APV).

In the early part of the century, Poinciana had a population explosion. That was followed by financial distress during the recession. Most homeowners pay $252 annually per property owned, although annual assessments for a portion of Village 1 are nearly double that amount at $484. That discrepancy is one matter of contention, because homeowners do not appear to be getting any additional service in return for much higher assessments.

Even though annual assessments are relatively low, widespread unemployment and default on sub-prime mortgages meant many homeowners were unable to pay.

Simpson explains, “Our community group known as Friends of Poinciana Villages (FOPV) has two matters: one filed with the Polk County Florida courts (Lawsuit filed in October 2015 against the Master HOA itself, developer and Village 1 Association – the developer still controls a majority of the Master board, along with each Village board) and the other a complaint to the Florida Department of Business Professional Regulation (DBPR).”

The DBPR complaint involves a dispute over the last election of the Association of Poinciana Villages (APV) Board. The lawsuit involves a dispute over the Master Association’s failure to follow the governing documents and State Laws, along with the developer not following an agreement known as the “1985 Agreement”. Questions have also been raised as to the legal standing of this HOA according to Florida’s Marketable Records Title Act better known as “MRTA”.

Read more about Poinciana HOA

An HOA Warrior is born

Shelly Marshall is an adolescent chemical dependency specialist, publisher and author of several books on recovery from addiction. But several years ago, when Marshall purchased a home in rural Utah, governed by an HOA, she found herself in the middle of a power play involving not one, but two, overbearing HOA boards. After several years of efforts and a lawsuit, Marshall wrote the HOA Warrior Series to share the frustrations and success of her experience, and to help other owners resolve disputes with their HOAs.

Shelly Marshall summarizes her HOA litigation experience:

“In my case, there was a group of 225–We all wanted a vote–to vote on our business and to vote on a manager–the board refused, so we organized for the next member meeting. They canceled the meeting at the last minute so we held the meeting anyway. Members can do that but the board refused to recognize it so we had to file suit.

We filed a lawsuit for the right to vote. They [the HOA] then filed a lawsuit for $250,000 naming me, 6 others and 100 John Does. That meant if anyone tried to help us they would add their name. It was intimidation.

When we went to our first hearing, It was so obvious that the judge was on our side and going to let us vote, that the board gave up and dropped the suits and gave us our vote.

The upshot was that our attorney charged $16,000 and theirs $80,000! The association blamed me and said I caused all the expense. Then our new board started doing what the old board did.

So eventually we had the same problems but dealt with it without going to court.

I filed a complaint [with the bar] against our attorney (the board’s) because he did so many dishonest things and cost the association so much money, even though he knew they were in the wrong. After we took over the board, we found his letter that told the board they had ‘not clean hands’ and could lose but told them they had more money and so could probably outlast us.

I filed the letter with the complaint but the bar didn’t care. They found that he had not done anything wrong! The attorney absolutely did not do what was in the best interests of the association–he just wanted money.

Very very dishonest and part of the good old boys club.

“I would not go to court a second time because by then, I realized how stacked against owners any legal recourse was–our group had been incredibly lucky that we got an honest and caring judge. You could never count on that a second time.”

Legal battle against an illegitimate (fake) HOA