You can sue to enforce any “covenant” in the CC&Rs. A covenant is a promise made by the HOA to do something. There are probably many covenants in your governing documents. For example, your HOA might agree to mow the lawn once every two weeks or to maintain the exercise equipment in the gym. Read your governing documents closely. If no agreement says the HOA must do something, then it will be difficult to argue that they have violated their agreement. Some CC&Rs may include an arbitration provision. If it does, you may not be able to sue the HOA in court. Instead, you may have to take them to binding arbitration.
It is important that you find an attorney with experience suing HOAs. CC&Rs can be very confusing and complicated and you do not want to pay an attorney to learn a new area of the law. To find a lawyer, you can contact your local or state bar association and ask for a referral. You should also ask other people who live in your HOA if they have ever sued the HOA and whether they would recommend their lawyer. Always ask the attorney you speak with about their expertise in this particular area of the law. Ask how many years they have been practicing, how many cases they have tried, and what their success rate is. In addition, ask specific questions about your case and gauge their knowledge based on how they answer. They should not waiver or be unsure of themselves. They should be able to give you concrete information regarding your case. You might not have the money to hire a lawyer. However, you can still meet with an attorney for a half-hour consultation. During the consultation, you can ask the lawyer questions which will better prepare you to represent yourself.
The HOA has a “fiduciary duty” to its members. This means the HOA must fulfill its obligations under the CC&Rs using “ordinary care” and in a good faith and reasonable manner. [3] X Research source If your HOA is careless with the dues it collects, then it is probably violating its fiduciary duty.
It also owes this duty of reasonable care to visitors. If you are visiting a friend or relative and are injured in a common area, then you can sue if the HOA was negligent in how it maintained those areas. If you had to see a doctor for an injury, then it is usually worth suing. However, if the HOA’s negligence did not result in any injury, then you might not want to sue.
Be aware that most CC&Rs include fee shifting agreements, which require the losing party to pay the legal fees of the successful party. Therefore, if you are confident about the strength of your case, you may have a good chance at having your legal fees covered by the HOA. However, if you lose, you may quickly double or triple your costs. Suing an HOA can be an incredibly risky tactic and should only be undertaken if you have no other options. You can reduce costs by suing as a group. For example, you can get four other members of the association to join you as plaintiffs. This way, you can split the costs of a lawyer five different ways. In some states, you can also sue in small claims court. Small claims court is designed so that you do not need a lawyer. Also, many small claims courts hold non-traditional hours in the evening or on weekends, so bringing a lawsuit might be more convenient.
For example, if the elevator has been broken for four months, you might not know which HOA member is responsible for fixing it. You can always sue all members of the board. During the lawsuit, each named defendant can argue that they are not responsible and get dismissed from the lawsuit if the judge agrees.
Take pictures of the property. If the common areas or lawn is not being properly maintained, then you should get evidence. Take photographs or video of any area that is not properly maintained. If you videotape something, make sure that the date appears accurately on the video. Also make sure the date appears accurately on your color photographs. You don’t have to rely only on photographs and video. You can also sit down and write out a description of when you first discovered the problem. For example, if the elevator is broken, then keep a running track of the dates that it is down.
Medical records. These are helpful at proving the extent of any physical injury. Contact your hospital or doctor and request a copy. [7] X Research source Medical bills. These show how much you spent to treat the injury caused by the HOA. You can be compensated for all medical bills and rehabilitation bills. Pay stubs. If you missed work because of the injury, you can be compensated for lost wages. You will need proof of how much money you make. Get a copy of your recent pay stubs or your W-2 form. [8] X Research source
Be civil. [9] X Research source You are still at the information gathering stage right now. There might be a valid reason why the HOA hasn’t fixed a problem. For example, the board members might not be aware of the problem. If so, they could be willing to correct it immediately. After the meeting, you should summarize the conversation in a letter, which you can mail to the HOA. The purpose of the letter is to document the substance of your conversation. It is better to write a letter than to secretly record or videotape the conversation, which is illegal in several states. You don’t have to wait forever for the board to fix a problem. If more than a week or two passes without the problem being fixed, then you should consider a lawsuit.
Many courts now have printed “fill in the blank” complaint forms for you to use. Ask the court clerk if one is available. If no form is available, then you will need to draft your own complaint. You can find sample complaints on the Internet. You could also buy a book or compact disk which contains legal forms for you to use. Many online retailers sell these books and CDs.
An injunction. This is a legal command to do something or to not do something. [12] X Research source You can get an injunction against the HOA to repair dangerous common areas or to maintain the property. Damages. This is money that you get as compensation for your injury. You should seek money damages when you have been physically or financially harmed by the HOA’s action or inaction.
your name and address the HOA’s name and address what happened that gave rise to the lawsuit the legal basis for your lawsuit (the CC&Rs or the HOA’s negligence) what you want the judge to do (give you an injunction, award you damages, or both)
Have someone 18 or older hand-deliver the complaint and summons. This person should not be someone who is part of the lawsuit. Hire a process server to make hand delivery. You can find a process server in your phone book or on the Internet. Process servers will make service for a small fee, usually $45-75. Pay the sheriff to serve copies. In some counties, the sheriff will make service for a small fee. Sheriffs generally charge about the same amount as process servers. Mail it. In some situations, you can mail the complaint and summons using certified mail, return receipt requested. You should ask the court clerk if mailing the documents is allowed.
Keep a copy for your records.
Informal discovery. This will include conducting interviews, gathering public documents, and taking pictures. Depositions. These are formal in-person interviews with someone directly involved in the case. Depositions are taken under oath and will often be videotaped and/or transcribed. Requests for documents. You will be able to request almost any set of documents you believe are relevant to the case. They might include receipts, private emails, text messages, or other documents not readily available to the public. Subpoenas. You can ask the court to require the other party, or third-party, to answer questions or provide documents. [15] X Research source
The judge will only grant their motion if they can prove that all of the facts of the case, and the law, are on their side. To oppose the motion, you will file affidavits and evidence showing there are disputed issues of fact and law. The court will make every assumption your favor when they make these determinations. So long as you can show a genuine dispute, you will overcome the motion for summary judgment. [16] X Research source
For example, if you have fallen in a common area that is required to be maintained by the HOA, you might ask that the HOA pay for your medical bills as well as missed pay. Be prepared to submit your bills as well as past pay stubs that can provide the HOA with proof of your claims.
In other words, trial preparation starts as soon as you hire your attorney.
You should keep your opening statement brief. Simply tell the judge what evidence you will introduce. The opening statement is your road map: you tell the judge what evidence you will present and in what order. A good strategy in opening statements is to defuse any “bad facts” in your opening statement. For example, you might have slipped and fallen in the common area. However, you also might have ignored a sign that said “Caution. Floor is wet. ” You should admit that the sign was up in your opening statement. This helps take the sting out of the bad fact.
Be sure not to ask your witnesses leading questions. A leading question is any question that contains or suggests its own answer. Leading questions can usually be answered “yes” or “no. ”[17] X Research source Instead, ask open-ended questions. For example, if you have a neighbor testifying, you can ask the following: “Where do you live?” “How long have you lived there?” “Has the lawn always been kept neat?” “When did the lawn stop getting mowed?”
To be an effective witness, remember the following tips: Understand a question before answering it. If you don’t know the answer, then say, “I don’t know. ” Also ask for clarifications for questions you don’t understand. Sit up straight. Look at the lawyer who is asking you a question. Always tell the truth and don’t stall. Always answer in words. Don’t gesture or make sounds like “uh huh. ” The court reporter can only take down actual words.
Also try to explain away bad evidence. For example, the HOA might have put up a “Caution. Floor is wet. ” sign. You can argue that witnesses testified that the sign was not visible from the doorway because it was obscured by a potted plant. Therefore, you can argue that the HOA was still responsible for your fall.
You should receive a copy of the final judgment in the mail. If you don’t, then visit the court clerk and ask how to get a copy.
Return to the court clerk’s office and get a form for filing a contempt motion. If the HOA has refused to make necessary repairs, you also might want to hire an attorney.
