Have you been involved for long in condo law matters?
I have been practicing in the area of condominium law since 1993. My firm has represented about 150 associations in the Chicagoland area and we handle a lot of their transactional work, including the drafting and updating of their governing documents. We do handle all forms of litigation work for associations, including assessment collections, record production disputes, contract litigation and developer construction defect litigation.
When do you think people in a condo association should look to an attorney to help resolve their dispute?
The first role of the attorney should always be to provide them with an honest evaluation of the merits of their position and the practical aspects of attempting to litigate the position. If after receiving that evaluation, the parties still cannot reach resolution by amicable measures, then counsel should be retained to file a lawsuit, if the client is willing and able to sustain the costs and involvement required of such an action. Board members must remember that their fiduciary duties to the association and its members may require them to file suit, even when their hearts desire otherwise (very commonplace dilemma in disputes involving assessment collection).
Can an attorney help to get the parties in a dispute talking before litigation actually commences?
While some attorneys are better than others at informal mediation attempts, the very nature of the attorney’s role and the legal restrictions under which an attorney operates often makes it difficult to employ an attorney in this fashion. Particularly in the realm of association law, where the Board is deemed by the non-Board owners to have all the advantages, bringing an attorney to the table to “talk” is viewed as threatening and leads to less candor and resolution, not more. The biggest key to handling disputes, in my opinion, whether with or without an attorney involved, is transparency and candor. Paradoxically, those are also two elements that attorneys are very hesitant to employ when involved in litigation because they can result in strategic weaknesses (perhaps perceived weaknesses).
People have this understanding that if they win their condo association dispute in court, the judge will always award them the attorney’s costs, ruling that the losing side is responsible for paying their attorney’s fees. Is this not true?
It is very important for both sides to understand the rules in Illinois regarding attorneys’ fees. In general, attorneys’ fees are only awarded to a prevailing party if the claims involved a contract that included a “fee shifting” provision or if they involve a statutory provision that expressly states that said party shall be awarded its fees if they prevail in prosecuting claims under that statute. In the case of association disputes, it is extremely rare that individual unit owners will be granted their attorneys’ fees – one major exception to that is when associations violate properly submitted records requests. On the other hand, associations will generally be awarded their attorneys’ fees when they prevail in enforcing their governing laws and rules – but even then, judges often cut down the amount that they will award, leaving the association out of pocket to some extent. To go into litigation assuming that attorneys’ fees will be recoverable is often a major mistake, particularly for individual unit owner litigants.
Can small associations, with six or eight or more units, ever afford to hire an attorney to litigate a conflict inside their association?
Absolutely. Aside from the fact that firms such as ours now provide reasonably affordable options for small associations, we generally will only encourage an association to litigate a matter if we are highly certain that they will be awarded their attorneys’ fees and will be able to collect them. A perfect example is in the area of delinquent assessment collections where our clients are virtually always awarded their attorneys’ fees and where the law provides for a strong mechanism by which they can be recovered.
What general advice do you have for people stuck in conflict in condo associations, as far as hiring an attorney?
First, retain the attorney to make sure that you are properly educated on the law and the realities of enforcing the law. Far too many times, potential litigants come to us certain that they are right, based on snippets of the law that they have heard or read, often just in summary form, when in reality their assumptions are flawed and they are not accounting for the true expense, in time and money, involved in taking a dispute to court. If you and the attorney still feel the case is meritorious, a letter from the attorney setting forth your position would be the next step, followed by the filing of a lawsuit if the other side simply will not cooperate.