“Home is where the heart is.” “Mi casa es su casa.” “A man’s home is his castle.” “Home, sweet home.” There are many idyllic homeownership catchphrases and for good reason. Buying a place to call “home” is a lifetime goal for many people. And it’s an exciting time when the plan becomes a reality.
That was the case for our client Bob* who had a lovely custom home built for his family. Unfortunately, the celebration of his dream home was short-lived. Bob was almost immediately entangled in a real-life nightmare with his homeowners’ association.
*Facts are those of an actual Robinson & Henry case. We used a pseudonym for our client and we opted to not name the homeowners’ association involved in this matter.
During construction, Bob adhered to his covenant-controlled neighborhood’s bylaws to ensure everything was up to spec. The one thing our client did not do – the result of an oversight – was get the HOA’s blessing for his landscaping.
However, Bob knew his landscaping met all the bylaws’ requirements, so this technicality should be easy to resolve. Turns out, Bob was wrong. Very wrong.
The developer-controlled HOA balked at the request to retroactively approve Bob’s landscaping. It also refused to return his $10,000 landscaping deposit unless he removed a portion of the landscaping that the HOA was upset about: a stairway. A stairway that, in fact, met the HOA’s own standards.
The bottom line: the HOA was outraged it did not have the opportunity to sign off on Bob’s stairway first.
“The demands the [HOA] was forcing upon my family had crossed over from a differing of opinions to blatant attempts to ‘punish’ my family,” Bob said.
“I have always taken pride in my ability to work well with others,” Bob told the R&H Marketing Department.
Unfortunately, no matter how reasonable Bob may have been, he was dealing with a “heavy-handed” corporate HOA that was dead set on making an example out of him to his neighbors.
“After all attempts were exhausted to reach an acceptable conclusion without legal representation … I reached out to Robinson & Henry to consult with them regarding my options,” Bob said.
The Issues to Resolve
Our Client had Two Goals:
- get the stairway approved
- recover his $10,000 landscape deposit
Robinson & Henry litigation attorneys strive to find solutions for clients other than filing a lawsuit. Why? Litigation is expensive and can last for months, even years.
When people get to the point of needing legal representation, most of them just want the dispute resolved.
That’s how Bob felt when he hired Robinson & Henry. In fact, he was prepared to give up a lot just to make the nightmare end.
“I had very low expectations, and David and Kayla were pivotal in actually raising my expectations as to the likelihood of a positive outcome,” Bob said.
David and Kayla began their efforts with a demand letter to the HOA.
Demand letters are attention-getters that put the other party on notice of a possible lawsuit if they fail to address the dispute in a timely manner. The strongly-worded letters often generate quick action by an otherwise apathetic opposing party, which can save the client time and money.
For 10 long months, our attorneys sent demand letters to Bob’s HOA in an effort to resolve the matter without having to enter into litigation.
Attorney Kayla Banzali said, “[the HOA] largely ignored us.”
Filing a Lawsuit
When pre-litigation approaches prove fruitless, the client must decide whether to file a lawsuit or walk away. And it’s not always a straightforward decision.
“The fear of the unknown and the possibility of a negative outcome that could be devastating financially was a very real concern,” Bob said.
David and Kayla were confident this case would prevail at trial. So, after weighing the options with his attorneys, Bob proceeded to sue the HOA for civil theft of his $10,000 deposit.
Defendants in civil theft lawsuits do not have to be convicted of criminal theft for the court to order them to pay up in a civil theft case.
In Colorado, someone commits theft when he or she:
“knowingly obtains, retains, or exercises control over anything of value of another without authorization or by threat or deception … and: intends to deprive the other person permanently of the use or benefit of the thing of value; knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit.” C.R.S.A. § 18-4-401
The HOA’s Response
The HOA once again dug in its heels, and it tried to initiate a countersuit against Bob.
The state of Colorado limits how long someone has to sue someone else. This time threshold is called the statute of limitation.
The HOA was apparently unaware it had run out of time to try to legally force Bob to remove the stairway.
A Strategic Legal Move
Unlike the HOA, David and Kayla were keenly aware of the statute of limitations, and they had more legal tactics up their sleeves.
Knowing a lawsuit was inevitable at this point in the case, our attorneys purposely waited to file the lawsuit after the HOA’s statute of limitations had ended. This strategic move gave Bob the upper hand.
First, our attorneys got the judge to dismiss the HOA’s lawsuit because it was filed past the statute of limitations.
Next, the judge awarded our client his attorney fees for having to defend a frivolous lawsuit that was obviously beyond the statute of limitations.
Finally, the legal maneuver forced the HOA to enter into mediation.
“After the [HOA] lost their counterclaim, we received requests to mediate within a week,” Kayla said.
Why We Sued & Rejected Other Legal Options
Cases often have alternative legal options. In Bob’s matter, he had a couple of choices along the course of his case.
Like any client, Bob could have simply walked away when the HOA ignored our demand letters. However, that was not a great choice for the client. Bob would have been out his $10,000 landscaping deposit and he would have owed all his attorney fees.
The second option came later in his case. Bob could have answered the HOA’s counterclaim. But this option could have caused Bob to incur even more fees and drag out his case even longer.
David and Kayla were confident the HOA’s counterclaim would be dismissed, placing Bob in a better position to negotiate and save him thousands of dollars in trial costs.
They were right.
Mediation was a long time coming, but it was a tremendous success. The HOA relented and agreed to give back Bob his entire deposit and pay most of his attorneys’ fees. Also, Bob got to keep the stairway.
Parting Words from Our Client
“Emotions run high when someone feels like they’ve been wronged,” Bob noted. “Try everything possible in your power to resolve a dispute outside of the courts because a lawsuit can engulf every aspect of your life for a long time.”
Bob would have resolved the dispute with his HOA on his own if he could have. But as a result of his experience, he now has a different outlook on the profession.
“It made me feel more at ease that a small-time client like me is afforded the ability to tackle big, powerful corporations,” Bob remarked. “Attorneys level the playing field, and I have a newfound respect for their ability to fight for the little guy.”
Our HOA Litigation Attorneys Can Help You
Homeowners associations are notorious for being overbearing, unresponsive, and unpredictable. If you’re having trouble with your HOA, call our HOA Litigation Attorneys to discuss the facts of your case and your possible legal options. Schedule your free case assessment at 303-688-0944.
*Past results afford no guarantee of future results; each matter is different and must be judged on its own merits. Facts are those of an actual Robinson & Henry litigation case. We used a pseudonym for our client and opted to not name the homeowners’ association involved in this matter.