Lawsuits are usually not an association’s go-to method for dispute resolution. Expensive and time-consuming, they can quickly turn into a financial burden and may create strained relations in the community. Unfortunately, in some cases there’s no other way out. Last year a couple filed a suit against a neighbor, the association, individual board members, and property managers, who all neglected to respond to the couple’s complaint of odors infiltrating their unit, the result of 20 cats inhabiting the neighbor’s unit below.
This may have been an extreme case but most associations will be involved in a lawsuit at some point, though the length and, certainly, the price tag may vary. “Factors determining the cost include the nature of the litigation, the complexity of the issues and whether there is the necessity to hire consultants and experts to assist the association,” says Ken Zeilberger, an attorney and a partner in the Community Association Law Group at Margate-based Katzman Garfinkel & Berger. “By way of example, a foreclosure action against an owner who refuses to pay his or her assessments, would in many cases be a relatively simple matter as opposed to an action brought against a developer for construction defects and deficiencies.”
Regardless of the cost or type of complaint, there are a few basic points about lawsuits that all associations should be aware of.
Unless you live in a utopian condo association, lawsuits are bound to happen. The most common ones include noise complaints between neighbors, construction defects in units and attempts to collect delinquent payments from residents. But how does a lawsuit begin? “A lawsuit typically begins with the serving of a summons and complaint, which sets forth an association’s claim against the defendant,” says Zeilberger.
Whether an individual files a suit against an association or an association files against a resident, doesn’t mean the case in on the express route to court. “The party who is served has 20 days within which to respond to the complaint. The defendant can either substantively answer the complaint or file a motion to dismiss,” says Zeilberger. Basically, if the defendant chooses to answer it, it means the two parties are now legally considered to be “at issue.” Otherwise, the defendant can seek to dismiss it on two grounds: he or she can say that the suit is not strong enough for “a cause of action” or the defendant can try to dismiss the suit by virtue of an “affirmative matter,” meaning that while the complaint may be true, the case for blame on the defendant may not be sound.