How to Sue a Homeowners Association

Choosing to Sue

Read the governing documents. Your homeowners’ association (HOA) is governed by a set of documents. These are typically called your Covenants, Conditions, and Restrictions (CC&Rs). You should take out your copy and read them. 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.

Meet with an attorney. You should meet with a lawyer before filing the lawsuit. An experienced attorney can advise you about your rights. For example, many states have laws specifically related to HOAs. The lawyer can tell you about these rights so that you can bring your strongest case possible. 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.

Ask to see the HOA’s books. You should be able to inspect the financial records for the HOA. You should look to see how money is being spent and whether the HOA maintains proper records of how it spends money. 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. If your HOA is careless with the dues it collects, then it is probably violating its fiduciary duty.

Judge the seriousness of any physical injury. You might have been physically injured in the common areas. For example, you could have slipped in an icy parking lot or fallen in the common break room. The HOA has a duty to act in a reasonably prudent manner when maintaining common areas. The HOA is "negligent" when it fails to act in this prudent manner. 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.

Consider the costs of a lawsuit. Lawsuits can be expensive and time-consuming. You certainly have the right to sue the HOA for not fulfilling its obligations. Nevertheless, you should weigh the seriousness of the violation against the time and money necessary to properly sue the HOA. 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.

Decide who to sue. You can sue either the entire HOA board or an individual member. You might not know who to sue because you can’t identify which individual board member is responsible for the problem you want to sue over. 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.

Gathering Evidence

Document the violation. In order to make a strong court case, you will need evidence of the violation. You can document the violation in several ways: 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.

Get supporting records. If you slipped and fell in a common area or were otherwise injured, then you should get evidence of your injuries. You can be compensated for any harm suffered as a result of the HOA’s actions. You should gather the following: Medical records. These are helpful at proving the extent of any physical injury. Contact your hospital or doctor and request a copy. 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.

Schedule a meeting with the board. Before suing, you should probably schedule a meeting with the HOA board. The purpose of the meeting is to find out why the HOA is not fulfilling its duties. You should take your HOA documents and your photographs to the meeting. Be civil. 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.

Filing a Lawsuit

Get a complaint form. When you decide to sue, you start the lawsuit by filing a complaint in court. The complaint identifies the parties and explains the dispute. You also tell the judge what you want. 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.

Identify what you want the judge to do. In the complaint, you must ask the judge to give you something. Typically, there are two remedies, which you can ask the judge for: An injunction. This is a legal command to do something or to not do something. 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.

Complete the complaint form. You should print neatly, using black ink. You could also use a typewriter. Each form is different, but generally you must provide the following information: 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)

File the complaint. Make several copies of the completed complaint and take them to the court clerk’s office. Tell the clerk you would like to file the original. He or she should stamp your copies with the date.

Serve a copy on the HOA board. You will need to send the HOA a copy of your complaint. You will also need to serve a “summons,” which you can get from the court clerk. Ask the clerk what are acceptable methods of service. Generally, you will be able to make service in the following manner: 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.

File your proof of service. Whoever makes service will probably need to fill out a proof of service or affidavit of service. They will then either return it to you or send it to the court. If it is returned to you, then you must file it with the court. Keep a copy for your records.

Performing Pre-Trial Duties

Participate in discovery. As soon as the other party responds to your lawsuit, a period of discovery will begin. During discovery, you and the other party will be able to collect and exchange information about the case. Discovery often takes a lot of time and can be very expensive. During discovery you will want to gather facts, get witness statements, find out what the other party plans on saying, see how good the other party's case is, and see how good your own case is. During discovery you will be able to gather information using the following methods: 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.

Defend against a motion for summary judgment. After discovery but before trial, opposing counsel may want to file a motion for summary judgment trying to dispose of the case before it goes any further. When this happens, they are required to show the judge that there are no disputed issues of material fact and that they are entitled to judgment as a matter of law. In addition to filing the motion, their attorney will also have to file affidavits and other supporting evidence tending to prove the assertions being made. 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.

Attempt to settle. Before expending a large amount of money and time preparing and going to trial, you should attempt to settle with your HOA. The stronger your case is, the more likely it is that the HOA will meet your settlement demands. During settlement negotiations, you should ask for an amount of money that will satisfy your dispute. However, you need to be prepared to provide evidence and facts that show why you are asking for what you are. 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.

Prepare for trial. Each one of your pre-trial moves should be made with a trial in mind. While most cases never get to trial, if yours does, you will need to use everything you have gathered and created up to this point. For example, when you file your complaint, you need to assert certain defenses or else they may be barred when you get to trial. In addition, the evidence you ask for during discovery should all play an integral role in what you need to prove at trial. In other words, trial preparation starts as soon as you hire your attorney.

Going to Trial

Make an opening statement. The trial will begin with each side making an opening statement. Because you are bringing the lawsuit, you will go first. If you have a lawyer, then he or she will handle the opening statement, along with the rest of the trial. 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.

Present your evidence. You also will present your evidence first. Your evidence will probably consist of documents (like the CC&Rs) as well as witness testimony. If you need witnesses to testify on your behalf, then you should notify them ahead of time and let them know when the trial is being held. 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.” 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?”

Testify on your behalf. You might also testify at trial. If you are suing because of personal injuries suffered, then you most certainly will testify as to what happened and how much pain you are in. Your attorney will ask you questions. If you don’t have a lawyer, then you will probably deliver the testimony in the form of a speech. The HOA’s lawyer will then be able to cross-examine you. 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.

Deliver your closing argument. After all evidence has been presented, each side gets to make a closing argument. You will go first. You want to put the evidence in the most favorable light to your case. 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.

Wait for the judge’s decision. After you have given closing arguments, the judge should deliver a ruling. Judgment will be entered and become final at a later date. 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.

Enforce the injunction. You might have won an injunction against the HOA to fix up the common area. If the common area remains in disarray, even after the judge has ordered the HOA to fix it, then you need to have the injunction enforced. You can do so by filing a Motion for Contempt. 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.