Why it’s (almost) always foolish to say ‘I’ll sue!’ if you want to win
Neighbors of Estancia Primera
Opinion
20 January 2017

Somewhere in the USA this week, some homeowner will stand up at an HOA or a condo association board or annual meeting, fuming, and say to everyone present, "I'll sue!" Maybe it's a disagreement about a fence, a pet, a special assessment, plant or a pickup truck parked somewhere.
 
To outsiders the dispute often looks silly, overblown. But for the people living under private government control, it can feel like the battle of the century. It's no wonder that legal fees as high as $500,000 have been reported in HOA and condo association disputes.
 
But here's the thing: It is always foolish to threaten anyone with "I'll sue you." It is almost always just as foolish to tell anyone, "So, you don't like what I just did?--then sue me."
 
This is true whether your angst involves an association, a local business, the government, a bad product you bought, an insurance company--whatever.
 
Why? Because this kind of talk can cripple your hope of getting what you want--of winning.
 
Your issue or your ego?
Is winning your goal? Or is your goal some kind of ego boost? If you want to win, you need to speak and act strategically--often, secretly. You need to collect documents, photos and ideas behind the scenes, and quietly.
 
In almost all situations, when you threaten or invite legal action, you give your adversary an advantage. You have told them how emotional you are. You have eliminated any element of surprise you might have had, so they can prepare--perhaps by destroying evidence, or by frightening off your potential allies.
 
Sure, if it's a bad product (such as a new car that's a lemon), you might get the attention of management by threatening legal action. But even then, the ill will you create is often not worth it.
 
For any big business (car dealerships, insurance companies, real estate brokerages) or some non-profit boards (hospitals), threats of legal action are all in a day's work. Mostly likely you are not frightening them at all. They have insurance. By the way, you don't.
 
Once a business or board has been through a legal action or two and survived, they may become more sanguine about future threats. This is especially so if their E&O or D&O insurance paid the costs of the previous action, so they lost nothing.
 
To a judge, your early threats—dutifully recorded in the minutes—could reflect poorly on you. Judges rule against flakey people in their courtrooms every day. You don't want to be among them.
 
So—What should you do?
State your position clearly, calmly, firmly, and with as much humility and sympathy as you can muster. Then sit down and be quiet. Take notes and, if you knew trouble was coming, audio record the meeting if your state laws allow it (most do).
 
If your situation does not quickly resolve to your satisfaction, quietly find out if other neighbors share the same concern. Perhaps some neighbors can phone their friends on the board and explain your group's point of view.
 
If you are contemplating legal action, don't brag about it. People who have been through lawsuits in condos or HOAs often say: Don't be surprised if most, or all, of your neighborhood "friends" abandon you. They were never your friends, you see, but they are still your business associates.
 
Not fixed yet? Time for legal advice
If this fails then you simply must get legal advice before proceeding. Call 10 lawyers in your state who are real estate litigation specialists and ask them to react to your situation over the phone. Most will talk to you, sometimes at some length, for free.
 
Take good notes of what these lawyers say, and decide which of them you'd most like to pay for a 30 minute to 1-hour consultation ($150 to $500 in most markets), in person.
 
But often, after initially phoning lawyers, you may decide to drop the matter and instead fix the fence, get rid of the pet, pay the assessment, or sell the truck. Sometimes that's all you can do, because you live in an HOA.
 
Caution: Be careful with 'Pro Se'
To represent yourself in court (pro se) against an association is, for most of us, a recipe for disaster--even if you are a licensed attorney in your state.
 
As the saying goes, a lawyer who represents him/herself has a fool for a client. With HOAs, you'd be up against a legal team that does nothing but work for insurance companies, defending boards. Very few lawyers in your town or state are prepared to prevail against such a formidable legal team, but your job as a client is to find one that will win your case for you.
 
We have heard sad stories from homeowners who faced an HOA's legal team pro se in trial court. Not only did they lose their case, they may have poisoned the well for other homeowners by setting a bad legal precedent. We believe some of these cases might have been won by the homeowner if they had hired a lawyer.
 
The good news: Many courts side with homeowners
One hopeful thing is that many judges around the USA have shown more sympathy toward homeowners than boards. It depends which state you live in. We've been pleasantly surprised to see homeowners winning cases, sometimes on appeal, that we thought were doomed (or maybe we are just too pessimistic.)
 
The homeowner cases that prevail are those that have been well prepared and well researched by creative, hard-working attorneys. This site will continue to post examples of these victories. We hope you never have to go to court, but if you do, we wish you well!


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