The Condominium Statutes are written such that associations can collect their actual attorneys’ fees if they proceed in a lien enforcement action for unpaid assessments. But, as in many things law-related, there are traps for the unwary, and if your attorney is not savvy, you may miss out on collecting everything you are owed…
Facts. In a 2017 case, a unit owner was delinquent in paying assessments and the Association hired an attorney to file a lawsuit against the owner seeking collection of the assessments. The attorney filed suit, seeking a “breach of contract” cause of action against the owner, since he violated the portion of the condominium documents that says owners must timely pay assessments. The attorney was successful in getting a judgment in favor of the association for the unpaid assessments, but when he asked the court for an award of his attorneys’ fees, the Court’s answer was no.
Court Rulings. The Court denied the request for attorneys’ fees, because the association’s attorney failed to submit the condominium documents as evidence that the association is entitled to an award of its attorneys’ fees. While there is a statute that says owners must pay assessments and if they don’t the association’s attorney can recover fees and costs associated with the collection, the attorney’s complaint did not sue relying on that statute; instead, he brought a breach of contract claim that relies solely on what the condominium documents say. By failing to provide copies of the documents to the court in support of the attorneys’ fees claim, the court rightfully denied the attorneys’ fees award.
Lesson. Associations have many options for assessment collection, both insofar as ways to collect them and attorneys to hire to assist with collection. This case highlights why your association should be sure to hire an attorney who is skilled and experienced in condominium and HOA assessment collection—to make sure you are not caught holding the bag!
If you have any questions, please feel free to contact the Husch Blackwell LLP Condominium and HOA Law Team.