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October 30, 2006
AARP: Right to Fairness in Litigation
"Where there is litigation between an association and a homeowner, and the homeowner prevails, the association shall pay attorney fees to a reasonable level"Removing limitations on a homeowner's right to sue the association, allowing compliance without giving up the right to challenge and allowing owner's the right to collect reasonable attorney fees when they prevail are all decent concepts that provide a modicum of fairness in the legal arena.
Some of the explanation borders on the idealistic, as if a level playing field can be achieved between the owner and the association. Our legal system is not built that way so that isn't going to happen, but giving the owner the right to offset their costs if they win, would go a long way in discouraging boards from using the legal system to solve minor problems.
One statement I would like to address is "However, such a provision [allowing prevailing homeowners to obtain attorney fees] does not fully rectify the imbalance of positions for homeowners and associations." This implies that such a position of "balance" exists outside the community association arena. It doesn't. Fairness is not a part of the US judicial system. City attorneys represent the city, not the taxpayers; corporate attorneys represent the corporation and the board, not the stockholders. The larger organization will always be able to draw on much greater resources than the individual when it comes to legal issues. You won't see fairness, what you are hoping for is justice. They are not the same thing.
Posted by joewest at October 30, 2006 4:00 PM