Human beings share a common character flaw: we measure our self worth by our net worth. Our houses are often the largest assets we have. Homes quickly become our personal sanctuary. A place to set down roots, raise our families, and grow old together. In and around our homes we surround ourselves with things we value, have personal meaning, and further define us. It is natural to identify who we are by the home we live in.
A recipe for disaster. Take one disgruntled homeowner that wants to hang onto their flagpole, bronze statue (or substitute whatever item has personal meaning) and an HOA with governing documents that prohibit whatever the item is you want to hold onto. Combine these ingredients and you have a recipe for angry claims of violations of personal freedoms and Constitutional rights. Unfortunately the last words uttered are often ”I’m going to sue” … instead of… “How can we resolve this?” They want to sue the HOA
If you are an owner considering filing a suit against your HOA, you need to consider the following:
This will be expensive. Owners must pay their own attorneys fees. However, your homeowners’ association may have insurance to cover its legal expenses. Further, if you lose the lawsuit, you may very well have to pay the legal fees incurred by the association as outlined in your community’s governing documents.
You are suing yourself. Most HOA governing documents allow the HOA to allocate the costs of the suit to its members through a special assessment. Therefore as a member, you will also be responsible for paying your assessment (a.k.a.) your share of the legal fees to fight the suit you have brought against the association. In the event that you prevail in the case and obtain a judgement against the association, the association can again levy a special assessment of the owners to pay the damages. Once again, you will be paying for the suit you brought and won against the association.
Did you sign away your rights? The courts seem to have consistently rejected the idea that owners can challenge HOAs for violating Constitutional rights. After all, you signed a contract when purchasing your home to abide by the declaration and follow the rules. In effect, by signing the deed, you waived these Constitutional rights.
So before angrily jumping into a lawsuit, step back and thoroughly read all the governing documents which you agreed to live by. If the issue is clearly outlined in the documents as unacceptable or against the rules, you probably do not have a good chance of winning in the first place. Rather than threaten a lawsuit, is there a possible compromise? It doesn’t hurt to ask. At the end of the day, it almost always pays to be reasonable.