Robert E. Ducharme
“Fairness is what justice really is.” – PotterStewart
There’s a fairly well-known saying in the law that says, “You can’t murder your parents and then be an orphan and beg the court for pity.” The New Hampshire Supreme Court recently issued an opinion consistent with that saying, saying: upheld a higher court decision in which the presiding judge upheld fines imposed by a board totaling $700 and legal fees payable to the association in excess of $12,000.00. and ascending.
That might sound a bit unfair or draconian, but it’s not. It’s the law and it’s fair. let me explain.
In Brandywyne Common Condominium v. Wang (issued October 18, 2022 to the solicitors reading this column), the owner lived off-site and rented his condominium in Derry. It appears his tenant wasn’t the most community-minded resident.
Court records reflect multiple violations, including noise pollution (which resulted in at least one call to police); allow the tenant’s dogs to roam the property off-leash; not after the dogs; and illegally parked vehicles. After a lengthy analysis, the trial court upheld the fines imposed for free-roaming pets ($100, $100, and $250) and for noise ($250).
The owner, preferring not to appeal any of the fines, as provided for in the association’s articles of association, instead denying all allegations and repeatedly attacking the board, the management company and the association’s lawyer in several hundred-page briefs for fraud and fabricated evidence.
The trial court found that in each case, according to its rules, the board notified the owner of the violations, warned that such continued conduct would result in fines, imposed fines after warnings were issued, and granted the owner the right to appeal to appeal one of the decisions of the board to the club, which the owner has refused. And as such, the trial court upheld the imposition of fines and interest (at the rate of 3% per month).
The District Court then turned to the issue of payment of attorneys’ fees. The court initially denied the Pro se owner’s request for reimbursement of legal fees. The owner claimed he put at least 200 hours on the case and wanted to be compensated at $120.00 per hour for his time. In an eloquent understatement, the court noted that it “is not aware of any legal authority that would permit the court to make such an award to a self-represented party.”
The trial court then found that because the association had “established a claim for recovery in respect of certain late and/or underpaid tax assessments and fines,” the association was entitled to recover its reasonable attorneys’ fees. It then asked the association’s attorney to resubmit its fee claim to reflect the findings the court upheld in relation to the fines (see above) and those it did not uphold (e.g. for illegal parking), $12,688.50 total.
Most Supreme Court judgments run to many pages. The court has the right, if it concludes that the matter is well informed and a hearing would serve no greater purpose, to simply issue an order without a hearing before the Supreme Court, which it did in this case.
More clearly, it did not analyze the trial court’s opinion very closely, merely stating that it was a “well reasoned decision”. In other words, there was no doubt that the association had done the right thing, and the association was entitled to his legal fees.
The Supreme Court then ordered the association’s attorney to file an affidavit with the Supreme Court mentioning the association’s reasonable attorneys’ fees for defending the appeal matter, resulting in the final judgment for attorneys’ fees of $700 in fines will be well over $15,000.
The lesson? Homeowners associations must be fair. They must properly notify people of possible violations, tell them the consequences, and give them the right to appeal board decisions to the owners themselves, just in case a board is wrong. But if they follow the rules and do things right, then owners can’t cause further problems and then face consequences, in this case legal fees that are 20 times or more greater than the original fines.
Any other course of action would be unfair to the owners because it is unfair for a disgruntled owner to cause problems and then have to pay an association higher fees to pay legal fees to the owners who play by the rules, seek reasonable changes and themselves they comply, only to be rewarded with higher condo fees, punishing the law-abiding owners and rewarding the trouble-owners.
Attorney Robert E. Ducharme is a former teacher whose civil practice is limited to home ownership law, principally in Rockingham and Strafford counties. He can be reached at [email protected] and Ducharme Law, PLLC at www.newhampshirecondolaw.com.