Robert Meisner Special to hometownlife.com
Q: The president of our condominium association’s board of directors never wants to settle any conflicts with our co-owners. It seems we are constantly in litigation over matters that could have been resolved out of court, and the legal fees are piling up. What do you suggest?
A: Any responsible, ethical attorney representing the association would advise the board to consider settling a matter out of court if it makes sense when weighing risk versus reward. This is not a straightforward calculation, and it is one of the finer points of practicing community association law which can only be mastered with many years of experience.
On the other side of the spectrum, you also see boards of directors that don’t want to spend any money on attorneys, no matter how bad things get.
I hope your association’s attorney regularly advises the board of all your options before proceeding with litigation. However, there have been occasions during my career when boards of directors could not see through their emotions and took on too much litigation risk against my better advice.
While the outcome of litigation is never 100% clear, there are situations where you can reasonably expect to prevail and recover your attorney’s fees from the opposing party. On the other hand, there are situations where your chances are less clear and you should seriously consider negotiating a settlement.
The applicable statute may be nebulous or there may be a lack of precedential case law, for example. And frankly, my confidence in trial court judges’ ability to properly apply our state’s laws is not as high as it used to be.
Of course, there is also a measure of risk in not proceeding with litigation.
For example, if the matter concerns a violation of your governing documents, you may risk other co-owners attempting the same or similar violations. But it may be possible to mitigate that risk and draw a line in the sand going forward, perhaps by adopting new policies or rules, or by amending your governing documents. Again, this underscores the importance of having a seasoned community association attorney to guide you.
If the president of your association cannot objectively evaluate an important business decision like whether to litigate matters, it may be time for you to initiate a political movement within your association to remove them from the board.
Robert M. Meisner, Esq. is the principal attorney of The Meisner Law Group, based in Bingham Farms, Michigan, which provides legal representation for condominiums, homeowner associations, individual co-owners and developers. His book, Condo Living 2: The Authoritative Guide to Buying, Owning and Selling a Condominium is available at www.momentumbooks.com.