Lawsuits against incompetent or malicious condo boards or HOAs are difficult because the law favors them. But there’s one thing you can almost always do: Petition to remove them.
Close to 30% of Americans live in a property governed by a condo board, homeowners association (HOA), or other community association—more than 70 million people. These associations are generally responsible for property upkeep, enforcement of community rules, and acting as a go-between for residents when disputes arise. Most people have a good or at least neutral experience with their condo board or HOA, but not everyone does.
If you find yourself in serious conflict with a condo board or HOA and get to the point where the normal channels (discussion, showing up at meetings, or even running for a position yourself) can’t solve the problem, you might contemplate a lawsuit. If common areas aren’t being maintained, or repairs aren’t being done, that might seem like your only option—but suing your condo board or HOA is often not your most effective option, and there might be better avenues to explore.
Thanks to pop culture depictions of attorneys and a constant stream of headlines, there’s a tendency to think you can (and should) solve every problem with a lawsuit. Lawsuits can certainly be an effective way to get relief of various kinds—but they're also an expensive, slow, and totally not guaranteed way to seek change or redress.
This is especially true when it comes to suing your HOA or condo board, because of something called the business judgment rule. This rule requires judges hearing a suit to favor the condo board or HOA as long as they believe they are acting in good faith and with a reasonable belief that their actions are for the good of the community—and proving otherwise can be tough. The specific laws governing your community association will vary, but in general this guideline makes winning a lawsuit against your community association very challenging.
Instead of spending a lot of time and money on a lawsuit you may very well lose, the better way to deal with a condo board or HOA that is either derelict in their duties or actively harming your property is to remove problematic board members—or replace the entire board altogether. This is usually a less challenging option because there will be language in the governing documents of the association (the Declaration of Covenants, Conditions, and Restrictions or CC&Rs) that outline exactly how to do this. Most states require that these governing documents include mechanisms for calling a special meeting (usually via petition signed by a majority of property owners). This can be done even if your condo board is dodging accountability by claiming to lack a quorum every time a regular meeting is called, a tactic bad condo boards sometimes use to maintain their control.
Here’s the basic steps you’ll need to take:
Read bylaws. Review those governing documents so you know how your association is set up. Pay particular attention to two things: Automatic removal criteria and how to force a vote. Most bylaws include certain requirements for board members, including a minimum number of meetings they have to attend and their ownership status at the property. These can potentially provide a straightforward way to remove board members without the need for a lengthy process—but first you have to know what those criteria are.
Contact your neighbors. If you can’t see any easy way to push bad board members out the door, you’ll need to bone up on the removal procedures outlined in your bylaws. These will vary from state to state and association to association, but in general, removing a board member (or an entire board) requires a vote involving all the property owners. That means your first step is to meet with everyone and make sure you have the necessary support.
Next, you’ll need to call a special meeting of the condo board or HOA to hold a vote. If your board is being cagey about calling meetings because they know the residents are up in arms, you can usually force a meeting by getting a majority of owners to sign a petition.
Be ready. If you’re planning to remove the entire board, it’s a very good idea to have candidates lined up to replace them. This will minimize the chaos and delays, as well as the chance that the board members you just worked hard to remove don’t simply resume their seat when no one runs against them.
Keep in mind that if your association overtly works to prevent organizing your fellow owners like this (by imposing fines on distributing flyers, for example, to try to stop owners from organizing), it’s pretty clear evidence of bad faith, which would probably negate the business judgment rule protections and make a lawsuit a slightly better risk.
Working to remove a community association takes a lot of time and effort no matter what route you take—but if your property is being adversely affected by mismanagement or malfeasance, you really don’t have a choice. If that’s where you are, break out those bylaws before you call an attorney.
