This is probably the most common question that clients ask us when they come to Kushner Carlson for help with their HOAs (your HOA might be referred to just as an “association”—or if you live in a condominium, a “condominium association”—but for purposes of this article, the term “HOA” will be used to describe all common interest developments). And we generally give them all the same answer—in most cases, yes.

To begin with, HOAs in Florida are largely governed by three separate sets of laws: (i) the Homeowners’ Association Act; (ii) the Condominium Act; and (iii) the Cooperative Act. Each of those “Acts” lays out the ground rules regarding how HOAs may be formed, governed, and dissolved. In other words, all HOAs in Florida, depending upon the “type” of housing found in a particular community (e.g., single family home, condominium, or a co-op) will be governed by the particular Act that governs that type of housing unit (as well as other applicable Florida laws, of course).

Each HOA in Florida is further governed by its own set of “governing documents,” the most important of which is a document known as the Declaration of Covenants, or in the case of a condominium association, the Declaration of Condominium. For our purposes, however, we’ll call that document by its most well-known name—the “CC&Rs” (which stands for Covenants, Conditions, and Restrictions). An HOA’s CC&Rs describes not only the rights, duties, and obligations that each member owes to the HOA, and vice versa, but also the rights, duties, and obligations that the members owe to each other. And, contained in many CC&Rs are provisions awarding a prevailing party their attorneys’ fees and costs.

Homeowners frequently entitled to their attorneys’ fees and costs under the provisions of their governing documents, but the Acts themselves also provide an avenue for many prevailing homeowners to receive their attorneys’ fees and costs. For example, the Condominium Act specifically mandates that the prevailing party in actions for “injunctive relief” (i.e., actions that ask a court to force an HOA to enforce its CC&Rs, or stop violating a homeowners’ rights) be awarded their attorneys’ fees and costs. The Acts also contain language that permit a prevailing party in several other types of HOA-related lawsuits/binding arbitrations to collect their attorneys’ fees and costs (e.g., election/recall disputes, many suits involving actual money damages, etc.).

Injunctive Relief as Enforcement Actions

Generally speaking, when a homeowner is suing an HOA because the HOA is, for example, not enforcing its governing documents (e.g., CC&Rs, bylaws, rules, etc.), the lawsuit filed often seeks injunctive relief. Such a lawsuit could also be described as an enforcement action, which in simple terms means any civil action or proceeding brought for the purpose of enforcing any or a combination of the following: (i) the provisions of whatever Act is applicable to the community; or (ii) an HOA’s governing documents. The thing to remember is that the term “enforcement action” is broad, often encompassing a wide variety of conduct (or misconduct) on the part of homeowners, board members, or property management personnel.

For example, as was referenced above, many enforcement actions involve scenarios where: (i) an HOA infringes on a homeowner’s right to do something with his/her property; (ii) the board of directors fails to perform one of its material obligations (e.g., maintain the common area or make repairs to an owner’s roof, etc.); (iii) a neighbor does something that is prohibited (e.g., damages another’s property or causes a nuisance); (iv) a member of the board of directors is engaged in something called “self-dealing” (e.g., a director using the HOA’s landscaper to maintain the board member’s personal garden without paying that landscaper separately, etc.); and/or (v) the board treats certain homeowners differently (i.e., better) than others.

And, as I indicated above, once a homeowner prevails in most such types of lawsuits, the homeowner will be entitled to their attorneys’ fees and costs. So, the question then becomes: “What is a prevailing party”?

Prevailing Party

To put it simply, a prevailing party is the party that “wins” the lawsuit. You might think that determining such a winner is a simple matter, but you’d be wrong. That’s not to say that there are no easy cases where the prevailing party is easy to identify. It just means that often that determination is not so obvious.

The Acts don’t provide a neat, bright line definition of the term “prevailing party,” nor do courts have any required rubric to follow. Rather, courts have been left to make that determination for themselves, which many have done by developing various “tests” that seek to determine which party achieved its main litigation objectives. For example, take a case where the party who brings an enforcement action receives a favorable verdict on all of the litigated claims. That party clearly achieved its main litigation objectives, and thus would be deemed the prevailing party. Or, take the case of a party that dismisses an enforcement action prior to trial (or even during trial, but prior to a verdict being reached). Such a party could not claim to have achieved its main litigation objectives, and thus the defendant in that case (i.e., the party that didn’t sue) would likely be deemed the prevailing party.

Those are both the easy cases. The harder cases involve situations where, for example, a party files an enforcement action alleging multiple causes of action, and either dismisses some of those causes of action prior to trial, or prevails at trial—but on only some of their claims (or they receive only a portion of the monetary damages or injunctive relief they were seeking). In those cases, it is difficult to predict who a judge might determine to be the prevailing party for the purpose of awarding attorneys’ fees.

The only thing close to a bright line rule is that if a homeowner receives a favorable verdict that gives him/her everything (or nearly everything) that he/she initially sought (or was fighting against), then the homeowner would almost certainly be deemed the prevailing party.

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TYPES OF DISPUTES


A good homeowners’ association (or condominium association) (either, an “HOA”) can play an important role in maintaining your property values and ensuring your quiet enjoyment of your property. A bad HOA can decrease the value of your home, force you to spend a lot of money, and turn your life upside down. Good HOAs are priceless; bad ones can be a nightmare for a homeowner. If you feel your rights are being violated by your HOA or a neighbor living in your HOA, Kushner Carlson can help. And fortunately, when it comes to HOA disputes, the prevailing parties are, in most cases that we handle, entitled to reimbursement for their attorneys’ fees and costs upon prevailing. We protect homeowners located throughout Florida from abusive or negligent HOAs in a variety of different types of disputes, including:

FAILURE TO REPAIR

COVENANT VIOLATIONS

HARASSMENT / DISCRIMINATION

NEIGHBOR DISPUTES

COMMON AREA DISPUTES

SELECTIVE ENFORCEMENT

NEGLIGENCE

COMMON INTEREST DEVELOPMENT LAWS

TESTIMONIALS


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ABOUT US


Kushner Carlson is proud to offer our clients a dynamic and effective legal team with top academic and professional credentials. Our attorneys have extensive experience in HOA disputes involving single-family and multi-unit properties. In addition to having a hard-earned reputation for being strategically aggressive during the pendency of our litigation cases, our lawyers are also well known for their superior writing and innovative, client-centered approach. Further, the Firm is proud to announce its expansion into Florida. Audrey Smith, a Kushner Carlson partner, will be spearheading the Firm’s Florida operation. And, with almost 15 years of experience as a Florida licensed attorney, she is well-positioned to ensure Kushner Carlson protects the legal rights of its Florida based clientele.

OUR TEAM


AUDREY SMITH

Partner

DOMINIC M. CARUCCI

Partner

Paul Deese

Partner

Divya Bhavsar

Associate

James Calkins

Associate

SARA ETEMADI

Associate

William Bergeron

Associate

Ryan Davies

Associate

Shelby Daws

Associate

James Decker

Associate

Ramy Galal

Associate

Kyle Kasparek

Associate

Shane Micheil

Associate

Kirk Pearson

Associate

Griffin Schindler

Associate

Phong Tran

Associate

Justin Walley

Associate

Chris Xouleis

Associate

Alexandria Zuccolotto

Associate

OUR FOUNDERS


Michael Kushner was born and raised in Long Beach, California. He obtained his undergraduate degree from UC Berkeley, where he was inducted into Phi Beta Kappa during his third year and graduated with Highest Distinction the following year. Mr. Kushner then attended law school at UCLA. After moving to Orange County, Mr. Kushner honed his skills at two prestigious law firms before striking out on his own. From there, Mr. Kushner quickly earned a reputation as a formidable and skilled trial and transactional lawyer in the areas of business and real estate law, as well as an entertaining and informative lecturer on various trending topics.

Raised in Florida, where he began surfing competitively at a young age, Luke Carlson moved to California to obtain his education at Chapman University, where he graduated with honors. Prior to Mr. Carlson’s graduation from law school in 2009, he began working at Mr. Kushner’s law firm, where Mr. Carlson demonstrated not only a remarkable degree of business acumen, but also vast knowledge and expertise in the action sports industry. Mr. Kushner and Mr. Carlson complemented each other’s skills so well, that they decided to team up to form Kushner Carlson.

Since then, Kushner Carlson has grown at an impressive pace, transforming itself from a boutique law firm to a mid-sized powerhouse staffed with the industry’s sharpest legal minds. Today, the Kushner Carlson brand is synonymous with strategically aggressive representation and pioneering innovative legal technology.

And we’re just getting started.

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