CODES

Litigation shall be your last line of defense. Such process is very lengthy and costly. Most individual owners can not afford this. Try to resolve disagreements and/or problems that may arise in dealing with your association’s board without employing the court of law system.

In reality there is no way for an individual owner to enforce the rules when facing a hostile board, or to protect him/herself against the board when the board acts wrongfully. It is very difficult to justify a lawsuit against a single board member or its president. Even though paragraph 1365.7 (a3) of Davis-Stirling Act implies that if it can be proven that a board member acted wrongfully and intentionally (“willful”), he/she may be sued in a court of law, in reality this rule is almost impossible to implement.

We have spoken to many individual owners in California who have had problems with their boards. These owners felt that nobody cares about them, while board members enjoyed complete liability protection via insurance paid by all owners.

The judges will find every possible legal excuse to claim that any actions, which you may categorize as wrongdoing and violations of your civil rights or your rights as a homeowner, are the collective actions of your board and, therefore, you may only sue the board as a whole. Besides, the judges consider the board as a corporation, they see it as a “sacred cow” that is untouchable, while individual owners are often perceived as those attempting to “milk” the cow.

And the lawsuit against the board is considered by the current system as an action against the whole association. Such situation puts you immediately in a disadvantaged position.

First, because the board and thus each board member are covered by the association’s insurance which means that the attorney(s) on the association’s side will be paid by the association’s insurance (read – with your money too) while your attorney(s) will ask you to cover their, sometimes tremendous, expenses including their fees, court filings, depositions costs etc.

Second, you will become an “enemy of the state” in the eyes of other homeowners in your association because the board, in such writings as board meeting minutes and some special communications (e.g. association’s meetings), will attempt to depict you as the violator and trouble maker, who is causing the association to lose money due to direct losses or following premiums increases.

In an extreme case, when your attorney(s) manage to prove that your fundamental rights were intentionally violated, the insurance company may refuse to compensate your attorney’s fees and expenses (in California in reference to Insurance Code 533, which precludes  paying the prevailing party’s attorney’s fees and expenses in such cases). This means that the board (read – the whole association) will be responsible for such payments, and each homeowner may be assessed by a share of such debt. This is when the board will again point at you.

It could be painful and very stressful. And the Small Claims courts are not designed either to resolve the majority of disagreements that often arise between the boards and individual owners. You can file a claim in a Small Claims court in a dispute regarding late payments or when arguing about a specific amount of payment, and similar. But more serious disagreements hardly will be resolved in a Small Claims court.

Finally, mediation, suggested by Davis-Stirling Act, not always works either, because it can be easily sabotaged by a board if the board members do not want to resolve a problem peacefully.

Before we touch the topic of finding a proper attorney, we will briefly discuss the steps needed when you decide to go to a Small Claims court, or opt for mediation or arbitration

A. Small Claims Courts

For those who are not familiar with the procedures common for this type of litigation, we suggest that you either go to the one in your area, and ask the clerk to give you a set of paperwork needed for filing a claim, or you contact one of the Small Claims advisory centers where weekly or periodic workshops are conducted.

The following are the phone numbers of some of such centers in California: RIVERSIDE (800) 244-8898 or (951) 6…;  SAN BERNARDINO (909) 387-3880; SAN DIEGO (858); LOS ANGELES (213) 974-9759, ext. 260;  SACRAMENTO   (9…. Please note, that these numbers may have changed.

If you go to a court building, you can review the paperwork given to you while you are there and ask the clerk for explanations and/or for help to fill in some parts of the papers. The clerk will also explain the fees (what impacts the cost of Small Claims filing is the method you chose for serving the other party with a notification that they are sued).

You may also ask the clerk for a schedule of upcoming hearings, and go seat there for a couple of hours to hear cases of other people in order to familiarize with the procedures of such type. The current limits to monetary claims in Small Claims courts in California are $7,500. This is the maximum you may be awarded. One of the problems you may face after you are awarded a certain sum of money is how to collect.

Should you choose to go to an advisory center, you will get there a set of paperwork similar to the one you get in court, and attend a workshop where all the Small Claims court procedures are explained, and also help offered in filling in your papers, award collecting methods clarified and, if requested, you may be referred to an attorney who will offer help for a moderate fee.

B. Mediation

Paragraph 1363.810 of Davis-Stirling Act explains the conditions for a so called Internal Dispute Resolution (“IDR”). It applies to a dispute between an association and a member involving their rights, duties, or liabilities. Paragraph 1363.820 of Davis-Stirling Act, part (b) requires that available local low-cost mediation programs be used and a neutral third party involved. Such programs are listed on the Internet Websites of the Department of Consumer Affairs and the U.S. Department of Housing and Urban Development (HUD).

In case of irreconcilable differences, when an owner feels that a lawsuit is his/her last resort, Davis-Stirling Act requires that before you file such a lawsuit, you need to offer an attempt to resolve your dispute using the Alternative Dispute Resolution (“ADR”) process. Paragraph 1369.510 of Davis-Stirling Act provides definitions, explaining that ADR means mediation, arbitration and other non-judicial procedures that involve a neutral party in the decision-making process.

Paragraph 1369.520(a) of Davis-Stirling Act stipulates that ”An association or an owner…may not file an enforcement action in the superior court unless the parties endeavored to submit their dispute to alternative dispute resolution pursuant to this article”. Paragraphs1369.520 through 1369.580 of Davis-Stirling Act explain the procedures, time limits, statute of limitations, and other related conditions.

Arbitration can be binding or non-binding. In a non-binding one, a third party is employed (hired) to bring both sides to and agreeable solution. In case of irreconcilable differences each side has the right to proceed the way they find beneficiary for their case.

In a binding arbitration, at the beginning, both parties sign an agreement that the Arbitrator’s decision will be final and no appeals will be allowed.

C. How to Find a Proper Lawyer.

This is not an easy task. Some attorneys do offer a 30-minute free consultation while others may charge $50 or more just for reviewing a couple of pages of your paperwork. Some attorneys delegate to their paralegal assistants the job of briefly interviewing you over the phone and making an appointment. Then your meeting with such an attorney will be charged at $250/hour or more.

You can start with the Yellow Pages book, however chances that you will find an appropriate attorney this way, are slim.  For starters, to avoid wasting your money from the very beginning, we would advise to find some legal aid organizations in your area. The names may vary, but the words “Legal Aid” and similar may help you when google on the internet or peruse a telephone book.

Examples are “Legal Aid Foundation of Los Angeles”, “Legal Aid Society of San Bernardino”, “Legal Aid Society of Orange County” phone numbers (800) 834-5001   and (714) 571-5200, “Legal Resolutions” in Santa Ana, California (714) 571- 5204, and others. There you may get an initial consultation on how to proceed further. You may get a formulation for your type of tort and lawyers free referral for your specifics.

You may also go to “Attorney – HELP.us” on the Internet. There you select the type of issue that fit your description, select the State and the City of your residence in the boxes provided.

These are a popular service that claims they are instantly putting people in touch with experienced lawyers who give a free case evaluation for simply considering them for your legal needs. There is no obligation to use their lawyer. When you submit your information, their system will instantly present your legal issue to an experienced lawyer who handles your type of case for your area. They claim that you may get a response in as little as 15 minutes. They are a member of Better Business Bureau and in business since 1999. Your information will be kept strictly confidential.

Another source for finding an attorney who fits your needs can be a publication titled “Best Lawyers” which is updated every year. Their website is www.bestlawyers.com and e-mail address info@bestlawyers.com. For information call (803) 648-0300  .

The magazine lists attorneys by specialty. For your needs, we recommend to start in the Real Estate Law section and go to condominium law subgroup. Or you can check the Alternative Dispute Resolution section if you are at this stage. This website lists attorneys in all States. Just select the proper state in the box.

Keep in mind that the majority of attorneys and law firms listed in these groups are those who work on the side of the associations, not for the individual owner. If they tell you that they are defense lawyers for associations you may ask the receptionist or whoever answers the phone whether they do know an attorney who would take a job to defend an individual owner. Sometimes they may know some of their former partners who retired and take on cases on both sides, so if you are lucky, you may get a couple of referrals from them.

Try to talk with several attorneys. This will help you to clarify your objectives and obstacles, and will help to compare and evaluate your candidates and your options. As far as cost is concerned, the majority of the lawyers will just give you their hourly rates. Insist that they give you a “worst case scenario” approximate estimate including potential court costs. This may give you an idea of what you can expect, and help to decide whether you can afford such lawsuit. Some attorneys may just offer you to write a letter to the association on your behalf. This will cost you an hour or a couple of hours of the attorney’s time, and will “tap the waters”, i.e. show how serious is the board on defending their position.