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If I take my HOA to court, will I have to pay their attorney's fees?

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Bardia

New member
What is the name of your state? Georgia

Hello all,

I need help with my HOA, I want to install a fountain in front of my yard, similar to a fountain that another neighbor in my subdivision already has in front of their house. (Same size and similar design) However after I asked for permission they did give my a permit, I disputed their decision and met with all the members and they denied giving my permission again.
I would like to know my options. Specially since another neighbor already has a fountain in front of their house.

After looking into my HOA Covenants, it states that:

8.02 Right of Abatement.
(b) The Right of Abatement, as used in this Section and Sections 5.11 and 6.14 hereof, means the rights of the Association, through its agents and employees, to enter at all reasonable times upon any Lot or Structure, as to which a violation, breach or other condition to be remedied exists, and to take the actions specified in the notice to the Owner to abate, extinguish, remove, or repair such violation, breach or other condition which may exist thereon contrary to the provisions hereof, without being deemed to have committed a trespass or wrongful act solely by reason of such entry and such actions, provided such entry and such actions are carried out in accordance with the provisions of this Section, and with the cost thereof, including the costs of collection and reasonable attorneyís fees, together with interest thereon at the lower of the highest rate ;permitted by law or 10% to be a binding personal obligation of such Owner enforceable in law, as well as a lien on such Ownerís Lot enforceable pursuant to the provisions of Section 8.04 hereof. Such lien shall be superior to any and all charges, liens or encumbrances which may in any manner arise or be imposed upon the Lot after such entry whether arising from or imposed by judgment or decree or by any agreement, contract, mortgage, deed to secure debt, or other instrument, excepting only (i) such liens for taxes or other public charges as are by applicable law made superior, (ii) the liens crated by Section 4.01 hereof and (iii) all deeds to secure debt given to secure a loan the proceeds of which are used (1) to purchase a lot or lots (together with any and all Structures which may from time to time be placed or located thereon) and (2) to finance and construction, repair or alteration of Structures.

What does this mean?
If I take them to court and try to fight this case and loose, do I pay for their attorney fee?
Or is this only when I commit an wrongful act and THEY take my to court for it?

Any help, advice or opinion regarding to this case would be much appreciate.

Thank you!
 

adjusterjack

Senior Member
What does this mean?
That has nothing to do with your situation.

If I take them to court and try to fight this case and loose, do I pay for their attorney fee?
Possibly. The CC&Rs of your HOA is a contract. Contracts often have provisions saying in the event of litigation loser pays winner's attorney fees.

You need to read the CC&Rs thoroughly and carefully to see if it has an attorney fee provision for any litigation.

If it does you run the risk of paying thousands in attorney fees if you lose.
 

Bardia

New member
That has nothing to do with your situation.

Possibly. The CC&Rs of your HOA is a contract. Contracts often have provisions saying in the event of litigation loser pays winner's attorney fees.

You need to read the CC&Rs thoroughly and carefully to see if it has an attorney fee provision for any litigation.

If it does you run the risk of paying thousands in attorney fees if you lose.
Thank you for your respond,

Here is my HOA Contract:
http://thefallsofcherokee.net/document_view.asp?id=3

Where do I have to look for such a thing? The closes thing I found which was a bit related to my case was "Right of Abatement" which I already posted above.

If I do not violate anything, (meaning not to install the fountain without a permission) and just try to fight their decision in court, is there a possibility that I need to pay their attorney fees if I loose?

It does make sense that if I violate something and they need to get an attorney to deal with it, I am responsible for the fees since I was the cause of the whole thing, BUT if I don't violate anything and just fight their decision and loose, am I still responsible for their side of attorney fees?
 

quincy

Senior Member
Thank you for your respond,

Here is my HOA Contract:
http://thefallsofcherokee.net/document_view.asp?id=3

Where do I have to look for such a thing? The closes thing I found which was a bit related to my case was "Right of Abatement" which I already posted above.

If I do not violate anything, (meaning not to install the fountain without a permission) and just try to fight their decision in court, is there a possibility that I need to pay their attorney fees if I loose?

It does make sense that if I violate something and they need to get an attorney to deal with it, I am responsible for the fees since I was the cause of the whole thing, BUT if I don't violate anything and just fight their decision and loose, am I still responsible for their side of attorney fees?
There should be a clause in the HOA contract about attorney fees.

No one on this forum can analyze the terms of contracts. That is the practice of law and exceeds the scope of this forum.
 

adjusterjack

Senior Member
It does make sense that if I violate something and they need to get an attorney to deal with it, I am responsible for the fees since I was the cause of the whole thing, BUT if I don't violate anything and just fight their decision and loose, am I still responsible for their side of attorney fees?
It's not the practice of law to tell you to use the "find" feature of your computer to search for the word "attorney" in that document. You'll find it 9 times where it's mostly attached to the phrase "reasonable attorney fees" for a variety of issues. If you don't find an issue related to suing the HOA, then there isn't one.

However, understand that if the HOA wins the lawsuit, it could ask for its attorney fees and the court will decide if circumstances warrant the award of attorney fees to the winner. Generally, both parties would pay their own attorney fees but there are exceptions and no way to predict the outcome.

Another problem you have is that suing for injunctive relief (which is what you'll be doing) is not something you can do in small claims court. You'll have to do it in regular court which is much more complex with rules and technicalities. If you do it without a lawyer of your own, you'll be going up against the HOA's lawyer who is likely to steamroll you. Not saying you shouldn't do it just want you to be aware of the risks. Even paying your own attorney could amount to thousands.

Is a fountain really worth all that?
 

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