Many homeowners who contact our firm have expectations or assumptions that are inconsistent with how we assist with HOA concerns. For instance, a common perspective is “I just want to know if I have a case,” and this is often coupled with the desire for a quick response before entering into a fee agreement with the firm. In such an instance, a person may feel that the firm should be paid only for services rendered after taking on what is considered “a good case” -- one in which homeowner is “likely to win.”

This approach to case evaluation is used in personal injury law as well as other legal matters that are likely to result in a settlement or verdict which awards monetary damages to a complainant. It is not well-suited for Georgia homeowners with HOA questions. Instead, our procedures for handling HOA matters have been developed with the purpose of assisting clients make informed decisions on the direction of their unique HOA matters.

Winning an HOA case

An important question that homeowners must ask themselves is: “What does it mean to ‘win’ against an HOA?” If the answer is to get a windfall, consider this: few HOA disputes result in recovery of money damages from the HOA to the homeowner. Most HOA disputes concern property rights – i.e., the right to do something on your land – and governance issues – such as how the Board runs its business. So if it is only a windfall you are looking for, our firm will not be a good fit. But if the answer to “What does it mean to ‘win’ against an HOA?” is “understand my rights,” we are happy to move forward and assist.

HOA law is complex and your facts are unique

HOA law covers several practice areas, including real estate law, contract law and corporate law. Each GA HOA has unique governing documents, including bylaws, restrictive covenants, rules and regulations, Board resolutions and more. GA HOAs fall into three main categories: condominiums, common law HOAs and POAA HOAs. Each of these categories has different GA statutory rules that apply to it, in addition to case law— GA Court of Appeals and GA Supreme Court written decisions.

Every GA HOA dispute involves its own set of facts and unique scenarios. How your unique facts fit into your HOA’s governing documents and the applicable statutory and case law is probably not as simple or straight forward as you might expect. The legal evaluation takes time and consideration.

It all begins at Intake

The first step is determining whether it is in your best interest to engage in a consultation. This requires preparatory work by our staff. Our intake specialist[1] will begin by collecting your case background information, performing conflict checks, answering questions about the firm and what services we offer, and explaining the scope of our offered consultations.

You will decide whether it makes sense for you to pay for a consultation. In many instances we do not believe it is in the homeowner’s best interest to spend money on a consultation. Alternatively, some matters cannot be evaluated in one consultation; some require much more time. Lastly, not every consultation will lead to an offer for further representation.

The following guidelines may assist you in your decision about whether to move forward with a consultation:

• If you have an unpaid HOA bill, what is the bill based on? If you have failed to pay regular annual assessments, we will decline to assist you unless you have a strong basis for nonpayment such as a reason to believe your property is not part of the HOA. There are very few other exceptions to the obligation to pay legal assessments. A couple of these exceptions are explored in https://www.jlibermanlaw.com/hoa-fails-follow-covenants-procedures-technicality-actionable/
• If the HOA has fined or threatened to fine you for alleged covenant violations, during the intake process, we will ask questions about the nature of the violations. The best time to seek legal advice is before the fines hit your account and as soon as you receive a warning letter. A potential defense for HOA fines is explored in https://www.jlibermanlaw.com/abdullah-v-winslow-at-eagles-landing/
• If you feel the HOA is harassing you through alleged violations, please understand that harassment is extremely unlikely to be a valid cause of action against a Georgia HOA. This concept is explored in https://www.jlibermanlaw.com/can-i-sue-for-hoa-harassment-in-georgia-2/
• If you have applied for an architectural modification, and the HOA denied it, there are many case-specific issues to evaluate. If these matters proceed, it’s often based on a technical legal reason that can be uncovered by an attorney who knows what they are looking for. If, however, there is no technical basis to challenge the Board, the Board’s decision will likely stand.
• If the HOA has proposed amendments to the governing documents, sometimes the Board calls for a homeowner vote, and sometimes they don’t. We routinely advise on whether a homeowner vote is legally required, whether the voting materials presented are legally sufficient and other questions about voting and amendments. We have had success in this area, including at the GA Court of Appeals, for example in: Marino v. Clary Lakes Homeowners Ass’n, Inc., 322 Ga. App. 839 (2013) and Marino v. Clary Lakes Homeowners Ass’n, Inc., 331 Ga. App. 204, 770 SE2d 289 (2015); https://www.jlibermanlaw.com/services/civil-appeals/
• If you are unhappy with Board management of general matters for the community, rather than anything specific to your private property, our advice is usually: try to get on the Board at the next election and invite your like-minded friends to join you. To remove and replace the Board before an election, make sure you have candidates who are hoping to serve. We can provide consultative services to discuss the process, procedure and ramifications.
• If the Board has failed in its obligations under the governing documents, such as failure to maintain and repair common property, failure to hold meetings and elections, failure to provide notices and other concerns about “transparency” these also very case specific. We can guide you through these concerns in consultation.

Whereas the above examples are not an exhaustive list of HOA related concerns, they are the more common HOA scenarios that we field questions about every day. We also regularly consult on HOA rental restrictions and developer turnover concerns.

During our intake process, our intake specialist will collect your relevant documents and questions for the attorney to analyze. The amount of documentation and questions you have will inform and guide the type of consultation we offer.

Unlike the intake process, which is not billed to you as the client, the attorney’s preparatory review of your documents and the scheduled consultation are billed to you prior to the meeting. This is due not just to the time and effort required, but also the nature of an HOA law practice which is quite different from contingency-fee based practices.

Resolving HOA disputes without escalating into litigation

Many of our consultations are spent as an educational discussion about the scope of your property rights. We often mutually decide at the end that our client will: a) continue to dialogue with the HOA Board on their own; b) discontinue the dispute; or, c) await further developments.

If we offer other services after the consultation, we set an evergreen retainer fee on all matters. We cannot guarantee success in return for the fees spent. Because we require an evergreen retainer after the consultation, you should think about the big picture. Sometimes your vision of achieving what is fair won’t align with what is economically sensible or possible. Not every fight is worth it. Most HOA disputes involve a “fight on the principle.”

Cases with novel legal issues could require appellate work

Many GA homeowners feel that HOA laws are unfairly tilted toward the HOA Boards. We are sympathetic to that perspective. But changes in the law are slow and gradual for purposes of stability and predictability of legal doctrine.

In addition to our consultative services, the firm has an active practice in appellate brief writing for cases filed at the Georgia Court of Appeals. Julie is an enthusiastic appellate advocate, ever alert to opportunities to make novel legal arguments related to HOAs and other property law issues when warranted.

Clients with advanced HOA and property law matters in litigation who have received an adverse order or judgment should consult an appellate practitioner as soon as the adverse decision issues.

You can read more about our appellate practice and successes on appeal in https://www.jlibermanlaw.com/services/civil-appeals/

Footnotes:
[1] Intake specialists, paralegals and legal assistants cannot give legal advice; they can assist you in all other areas of our process.