Can The HOA Claim Attorney’s Fees From The Owner In A Case?
The answer to that is sometimes. If I am representing the association and I get a call or an email or a letter or some type of contact form, typically it’s a property manager but sometimes it can be a board member that says we’ve had this notification either through a member or a member’s attorney and they are claiming that the association is either acting wrongfully or the association is failing to act in a manner that is consistent with the Florida statutes and the governing documents. If the advice that is given is the association is in the right then they certainly can charge for the attorney to review the notice or the documentation that has been sent by the member or the member’s counsel or the research that has been involved in the correspondence to the member or the member’s counsel.
If it’s clear that the association has, in fact, not acted properly, then it would be very difficult for an association to then, turn around and charge the member for having an attorney look at the documents and look at the statutes and say, the member is right. You have acted improperly or you need to do this to act properly and then the association and all its members have to pay that attorney’s fees. If it’s a gray area then it kind of depends on the association, it depends on the attorney but typically what will happen if it’s a gray area is that the attorney’s fees will be charged to the association and depending on how far the matter is taken and seeing what kind of outcome there is, if there is a settlement agreement, that can be negotiated.
In other words, if the member says we want to do X, Y and Z and the board says, absolutely not. You are not entitled to do that and then there is a settlement negotiation where the member is allowed to do X and Y but not Z, then the question is if the member is responsible for the payments. It depends, it’s all part of the negotiation so the association could say we’ll let you do X and Y but you can’t do Z and you are responsible for paying our attorneys for going through all this or a lot of times in these agreements, each party is responsible for paying their own attorney’s fee. So it just depends on the situation. The answer is yes in some scenarios, no in others and the gray areas you just have to kind of seek up and shake out.
How Does Your Firm Assist Us In The Collection Of Past Due Assessments?
Sometimes, the associations will take it upon themselves to contact the owner when there is some type of delinquency or fine or some other monetary expense that the association feels that the member owes and has not paid timely. They are going to do that through the board of directors themselves or through the property management company. The problem is that it’s only successful in a very small minority of cases where people would say oh yeah, I did miss a payment. Let me catch up. I will pay the late fee and whatever interest is on there. It happens but it’s pretty rare. Once the association makes that demand, so to speak, by themselves or through the property manager and they are either ignored or they get a response saying no we don’t owe you that or we may owe you some but we don’t owe all that you are claiming then that’s time for the association to retain an attorney especially because before you can file suit, an association has to meet certain requirements or demands with HOA.
They have to file a 45 day demand letter saying if you don’t pay within 45 days, then we can go ahead and go to the lien process and then, if they don’t get paid within 45 days, they send another notice out which says if you don’t pay us within 45 days, we are in the process of placing a lien on your property and then we are going to foreclose on that lien. Now, if you don’t so all that and if you don’t do it correctly and with the aid of an attorney and then, you give it to the attorney to file suit, the attorney either is going to say I can’t file suit, or is going to file suit and it’s going to be dismissed because they didn’t go through all that and then, as I stated before, these associations, the vast majority of them are corporations and corporations need counsel to represent them. So if you are either using the foreclosure or the threat of filing a foreclosure action as the leverage to get someone to pay or if they are simply not going to pay and then the association is forced to file suit then you must have an attorney to help in the collection process and as I stated, that’s pre-suit to do those demands.
In condominium associations, it’s a 30 days demand saying that we are going to lien the property and we are going to foreclose if you don’t pay us within 30 days. The HOA statutes are a little more forgiving to the member. Regardless, the association, at some point, gets stuck with members that refuse to pay for one reason or the other. There are several reasons and that’s when they need the attorney to step in for collection purposes and if they can’t get their money out of it, they may be able to get the property, they may be able to lease the property to recoup the delinquent assessments and may be able to sell the property depending on if there are other liens on the property as well. So having an attorney for collection purposes is almost a necessity in each and every community association.
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