Threatening to sue
Never threaten to sue.
Never say: "I am calling my lawyer." First of
all, it is unlikely you have a lawyer. Secondly, the manager and the board, if
they have any experience at all, know that.
Most importantly, a court room is the last place you want to go.
Without suing, owner is locked in a losing battle with HOA board
Los Angles Times
By: Donie Vanitzian
29 August 2015
Eleven years ago, I bought the perfect town home. I read all governing
documents, attended board meetings, talked to owners, then closed
escrow. After I moved in, the board fined me for something
preposterous. I paid it to get them off my back.
Since then, reserve accounts have been depleted and special assessments
reign. There's perpetual maintenance going on, but nothing gets fixed.
I'm acting as my own attorney in a dispute with the board, which stays
in power because of inertia and a complicit management company.
My home has become a paper jungle of file cabinets, faxes, copy
machines and chalkboards. All my savings have been spent fighting this
association, and I lost my job because of it. I want to sue the board
but can't afford it. How did I get in this mess and what can I do about
Perhaps you were too focused on the perfect town home and not enough on
pre-purchase diligence about the homeowner association's functioning.
Concentrating on tenure of the board, management, accounts payable and
receivable, turnover sales, maintenance issues or the lack thereof
might have proved more valuable in making a decision on whether to buy.
stays the same
Before committing to a purchase, buyers need to realize that nothing
stays the same. Governing documents could change during escrow or after
purchase and nothing prevents owners from being fined after newly
Upon realizing there were problems, you should have catalyzed joint
action with like-minded titleholders to effect meaningful change
without litigation. If self-help efforts don't work, regroup and try
again. This is usually impossible once you get into the court system,
making litigation a riskier option.
maintaining a low proﬁle
When a lawsuit is contemplated, effective litigation starts
strategically: Owners carefully and quietly gather evidence while
evolving a plan and maintaining a low profile. Documentary evidence is
crucial and far more effective than proving who-said-what-when.
Low profile means not telegraphing your potential suit; that can cause
a board to alter its public behavior and become more oppressive toward
you, as well as to hide, fabricate or destroy evidence.
threatening litigation is rarely effective
Threatening litigation is rarely effective against business entities or
bad directors. Not only are bad boards accustomed to such threats, they
also can defend against litigation with the association's deep pocket
Even if an insurer believes that a board's liability is not covered, it
may still defend with a reservations-of-rights, which means that it
will seek to recover its legal expense from the association regardless
of the outcome. Against such resources your threats stood to have
little effect, as the past 11 years bear out.
Your long history of threats has not only alerted the board and its
counsel to your legal position, but also put most all your evidence in
their hands, giving them a big and cheap head start to fashion defenses
should a suit be filed.
provided your evidence for free
Given your history, any suit you pursue has become much harder and more
expensive. You provided your evidence for free while enabling the
opposition to force you into expensive discovery to obtain theirs.
Unfortunately, you bit off more than you could chew, in effect acting
as your own lawyer and naively prejudicing your cause.
No doubt early on you thought the right letter would induce the board
to see the error of its ways. This rarely happens. Despite more and
ever stronger letters, such battles can become an addiction for some
This sorry, protracted trail renders the case especially unappealing
for all but hourly-fee lawyers. Even so, the extensive history and
documentary volume would be a quagmire for any attorney.
Michael Krieger, a Los Angeles lawyer
practicing business contract, technology and intellectual property law,
co-wrote this column. Vanitzian is an arbitrator and mediator.