The Board of Directors has been advised by counsel that the Board has the authority to assess a homeowner for reasonable legal fees incurred by the MPOA in matters specific to that homeowner where the homeowner is responsible for the expense having been incurred [referred to herein as “Individual Assessment(s)”]. The Board’s authority to make Individual Assessments is in addition to its authority under Section 2 of Article IV of the By-Laws to require homeowners to pay for legal fees incurred in the collection of a delinquent yearly homeowners assessment or other delinquent assessment.
The Board has adopted this Policy to clarify how it makes Individual Assessments. Circumstances that may result in an Individual Assessment include, for example and without limitation, a situation where the Board finds it necessary to incur legal fees to enforce a provision of the By-Laws, a property right of the MPOA, or a deed restriction, or a situation where an invalid or unreasonably pursued complaint by a homeowner resulted in the Board incurring legal fees in order to resolve the matter.
It should be noted that the Board does not wish to dampen the free exchange of views with homeowners and prefers to seek resolution of a controversy with an individual homeowner without incurring legal fees. However, the Board believes it to be unfair to other homeowners that they should bear the legal fees incurred to resolve a matter with an individual homeowner caused by that homeowner’s unjustifiable or unreasonable actions.
The Board of Directors may make Individual Assessments (as defined above) if, after considering the relevant facts and circumstances, the Board determines that the relevant Individual Assessment is reasonably appropriate. In making such determinations, the Board will consider the following factors, as applicable, as well as any other factors that the Board determines to be relevant. The Board will determine the weight to be given to any single factor, which may vary:
1) In a case where the Board incurs legal fees to enforce a provision of the By-Laws, a property right of the MPOA, a deed restriction, zoning, sanitary or other laws or regulations, or other legal right:
a. Did the homeowner cause the need to enforce any of the above?
b. Was the homeowner provided written notice and did the homeowner ignore the notice?
c. Did the homeowner appropriately resolve the matter within a reasonable time after notice was provided?
2) In a case where the Board incurs legal fees to resolve a complaint (informal or otherwise) by a homeowner:
a. The nature and cause of the complaint
b. Did the homeowner present the complaint through an attorney?
c. Did the homeowner commence a proceeding in any court or before any regulatory body?
d. Was the homeowner’s complaint valid?
e. Did the homeowner seek to resolve the matter in a cooperative manner that could have helped avoid or reduce the incurrence of legal fees?
f. The homeowner’s history of making complaints and the circumstances thereof.
Scope of Policy:
This Policy is not intended to and does not address assessments of a specific homeowner where the homeowner is responsible for the expense having been incurred, but the amount at issue is other than for legal fees incurred by the Board. Such circumstances are unpredictable and will be handled outside of this policy on a case-by-case basis.
This Policy also is not intended to cover, limit, or otherwise alter the Board’s authority and powers under Section 2 and 3 of Article IV of the By-Laws.