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Other Civil MattersHOA and discrimination lawyers: Is this most draconian HOA rule ever? Is it even legal? (self.legaladvice)

zitzit が 投稿

A Florida HOA, in direct response to a HUD discrimination complaint, just amended their declaration with an Article stating that any home owner who raises any issue or complains with anyone that results in HOA having to use their lawyer, will have to pay for the HOA lawyer's time. So not just if you lose a lawsuit; they claim they will charge you for ANYTHING that causes them to use their lawyer against you, right away . . . is this legal, any reactions??

Here is new wording . . . "In the event that the Community Association in its sole discretion retain an attorney to prepare and/or respond to any letter, pleading, correspondence, contact, and/or issue raised by, about or between Members directed to the Community Association, its Board or Director, or related to the Community Association, and the common area, any reasonable costs and attorneys fees associated therewith inducing any pre-suit costs and fees through and inducing all trial and appellate levels and postjudgment proceedings shall be the responsibility of the individual member. The costs and attorneys fees so incurred shall be deemed to be a Special Assessment against the Residential Unit, and shall be collectible in the same fashion as an other assessment as provided in Article 7."

This paragraph would appear to violate at least "Unless otherwise agreed by the parties, section 720.311(2)(b), Florida Statutes, requires that the parties share the costs of presuit mediation equally, including the fee charged by the mediator. " Anything else it violates?

Is there any low cost way of calling the HOA out on this without major litigation, for years, where they will charge you every month for THEIR time?

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[–]_Cromwell_ 68ポイント69ポイント  (2子コメント)

The absolute best way IMO for this to be dealt with would be for the person who filed the original complaint (the one that "inspired" the HOA to make this dumbass new provision) to either amend their original complaint (if their investigation is still ongoing) or to file a new complaint alleging Retaliation by the HOA.

This is pretty creative, ballsy retaliation, but it is totally 100% retaliation. :) We LOVE direct evidence cases.

FYI you can call up the Florida Commission and chat with them about this without filing a complaint, if you want some professionals opinions (assuming you are a member of this HOA's jurisdiction). http://fchr.state.fl.us/complaints__1/housing I've been to a conference with some of their people and they are good. (I'd guess you'd have to be pretty good to deal with Florida.)

[–]zitzit[S] 14ポイント15ポイント  (0子コメント)

Wish I had several uproots for that one! Excellent suggestion. Will advice person who filed HUD discrimination.

[–]Newcliche 1ポイント2ポイント  (0子コメント)

Just a question, you said "We LOVE direct evidence cases."

Who are you in terms of position in a case like this? HUD, prosecutor, judge, attorney?

NOT questioning your answer, just want to know which perspective you're coming from.

[–]shhh_its_me 101ポイント102ポイント  (5子コメント)

I believe overreaching(no matter how wrong we are , if you sue us you have to pay for our defense. frequently fall under overreaching) "you have to pay our legal fees" have been consistently been found to be unconscionable. On the other hand HOAs have a lot of bite to go with there bark and have and do win some insane legal fee judgements.

The low cost way of calling them out is just saying "You all sure about this has a lawyer read and approved of this bylaw."

[–]erichkeane 49ポイント50ポイント  (2子コメント)

Unless asking that question is determined to be the cause of them retaining an attorney, they could hold you for said costs :)

[–]zitzit[S] 27ポイント28ポイント  (1子コメント)

HOA lawyer wrote this . . .

[–]shhh_its_me 28ポイント29ポイント  (0子コメント)

ohhh wonderful...... It will stand until challenged. Some of these never get challenged. It may take them trying to collect legal fees from someone they were found to have wronged or hiring a $500 a hour lawyer to answer ever letter.

[–]TheShadowCat 6ポイント7ポイント  (2子コメント)

They're not allowed to change the bylaws when ever they want. Start talking to your neighbors about the overreach of the HOA.

[–]zitzit[S] 6ポイント7ポイント  (1子コメント)

Unfortunately, the unique way bylaws are written, they can change anytime they want if they follow procedure.

[–]LandGuppy 8ポイント9ポイント  (0子コメント)

Florida Law is specific on this and takes precedence over any bylaw they put in to get around the law. There are certain notice requirements and all members of the HOA must be allowed to attend board meetings. They can't get around this. They also have to include in the notice if the meeting will be discussing an assessment.

[–]TheBoysNotQuiteRight 1ポイント2ポイント  (0子コメント)

I (who am not a lawyer) predict that a court would not let the provision stand. See Fl. Stat. 57.105(7); Florida courts generally construe fee provisions so that they are reciprocal, and apply to both sides. Asserting this HOA bylaw might well stay into the realm of 57.105(1)(b) which basically says that if you make a sufficiently absurd argument in court, you are on the hook for fees.

HOWEVER...getting a Circuit Court Judge to tell the HOA that they are wrong will involve spending a considerable amount of money. While the Court may well award you fees, they can - and often do - trim your lawyers' bill when awarding fees, which would leave you on the hook for the balance. Your victory might be Pyrrhic.

[–]LayeredPrayers -5ポイント-4ポイント  (0子コメント)

Yes they can do that and it's common language in the large majority of declarations. Just one more reason why you shouldn't own properties under an HOA.