What If My HOA Refused To Follow The Law
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Keep records of everything, communicate in email or registered mail, keep proof of everything in writing, photos, etc.
I recommend attempting to stay out of court with an HOA as the Board Members are at no risk. They use the insurance of the HOA and the HOA collective funds to pay for their attorneys while you have to use your own funds. They will do everything possible to attempt to stall and delay and run you out of money.
Write to the Board Members and explain how they are violating the laws or governing documents. Ask them to rectify the situation. If they refuse, you might also write a letter to the HOA Attorney asking the HOA attorney to REQUIRE the Board to respond to you and require the Board to follow the laws.
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Include the laws, covenants and proofs, like pictures of the damage. My understanding is that the HOA Attorney must either make the HOA follow the laws or quit for ethical reasons. If he does neither, file a complaint with the BAR Association. I didn’t know about this either when I was battling my HOA but I understand it has worked for others.
File a complaint with the AGs office. You MUST show them how the Board is violating the law, and how they are violating the Consumer Protection Act. Even if they don’t think they will take action, file anyway as it gets your complaint undeniably on the record.
HOAs are required to have a Fidelity Bond. A Fidelity Bond is an insurance policy designed to protect the principal, in this case, the association, against bearing financial losses due to theft or fraud by members within the association. There are different types of Fidelity Bonds with different clauses. You may try reporting the issues to the HOA insurance company.
Remove and Replace your Board. See our article on our HRLNG website.
I have personally used small claims court and won, multiple times. It is a good way to test out your case. Small claims goes up to $5000 to $15000 depending on the state. Generally small claims cost is about $50. In most states no attorneys are allowed in small claims court so you don’t have to pay an attorney, nor can they make you pay for theirs if they lose.
You need to know the laws, and assume that the judge does not know them. You must show how the HOA is violating the laws or show your governing docs and show that they are not following those docs. You must also show proof of the damage and written estimates on repair costs. Most small claims courts can not force anyone to do anything, they can only award money.
I believe you should file against the individual HOA Board members, as well as the HOA, in the same suit, as you have sent them a letter showing that they are violating the law. In some states the Board Members can only receive a judgement against them personally if they KNOWINGLY violated the law or governing documents or reasonably should have known. It still makes sense to file against them personally, it will get their attention and the next time they can’t claim they don’t know the laws that you presented in court.
I didn’t do this in my case because I didn’t know about it. It is likely if they realize that they can be personally held responsible, and this will go on their personal insurance, they might feel a little less inclined to violate the laws or governing documents again.
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I understand that if you win the small claims case it is unlikely they will win an appeal as they can ONLY use the same evidence they used in small claims, and they already lost there. They can bring an attorney to the appeal, and the insurance will pay for it until they are judged guilty by the court. I don’t think that applies to small claims but it would I believe in the appeal. That appeal is in superior court. If they lose, they may have to reimburse the insurance company for their legal fees. Hire an attorney for the appeal.
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I have found that you need to be your own attorney, as well as hiring an attorney. You need to research the laws and discuss the facts, proofs and presentation with your attorney. Don’t just drop it in their hands and assume they are going to win the case for you. They are in it for the money and they get paid whether you win or lose.
These are just suggestions based on my experience, opinions and beliefs. I/we are not attorneys.
Patrick Johansen
Chairman of Housing Justice Committee
RiseUpWA LLC