Can I Sue My HOA?

Yes, homeowners can sue their associations, and associations sue homeowners too. But a lawsuit is rarely the first step, and some states require an intermediate step, such as mediation, before certain cases can be filed. This is general information about how that generally works, not legal advice. For your specific situation, a licensed attorney in your state is the right resource.

What homeowners typically sue over

Disputes that end up in court commonly involve:

• Breach of the governing documents — the association failing to follow its own declaration, bylaws, or rules.
• Improper assessments, fines, or liens — collection or penalties that don't track the documents or the statute.
• Records and transparency — refusing access the law requires.
• Breach of fiduciary or statutory duty by the board.
• Selective or improper enforcement of covenants.

Many state statutes say who may sue whom. In Florida, actions over a failure to comply with Chapter 720, the governing documents, or the association's rules "may be brought by the association or by any member" against the association, another member, certain directors and officers, and tenants or guests (§720.305(1), Fla. Stat.). Nevada's statute lists a civil action "By a unit's owner against: (1) The association" for a failure or refusal to comply with the statute or the governing documents (NRS 116.4117(2)).

Some states require a step before filing

A number of states require pre-suit alternative dispute resolution before certain cases can go to court. The rules differ in which disputes they cover and what happens if they are skipped.

Florida is a clear example. For many covenant-enforcement disputes, §720.311 calls for pre-suit mediation before filing:

"Disputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes ... shall be the subject of a demand for presuit mediation served by an aggrieved party before the dispute is filed in court." — §720.311(2)(a), Fla. Stat.

The requirement does "not include the collection of any assessment, fine, or other financial obligation." Election and recall disputes follow a different track: "these disputes must be arbitrated by the department or filed in a court of competent jurisdiction" (§720.311(1)).

Other states take different approaches:

• Nevada. No civil action relating to "The interpretation, application or enforcement of any covenants, conditions or restrictions applicable to residential property" may be filed "unless the action has been submitted to mediation or, if the parties agree, has been referred to a program" under the state's dispute-resolution statutes, and "A court shall dismiss any civil action which is commenced in violation of the provisions of subsection 1" (NRS 38.310).
• California. "An association or a member may not file an enforcement action in the superior court unless the parties have endeavored to submit their dispute to alternative dispute resolution" (Cal. Civ. Code § 5930(a)). The section covers enforcement actions for declaratory, injunctive, or writ relief (alone or with limited money damages), and "does not apply to a small claims action" or, "Except as otherwise provided by law," to "an assessment dispute" (§ 5930(b)–(d)).
• Texas. After a suit is filed on a matter covered by the state's notice-and-hearing rules, "a party to the suit may file a motion to compel mediation" (Tex. Prop. Code § 209.007(d)).

The point is that how and when you can sue is itself governed by state law. HOA Mediation, Arbitration and Ombudsman Programs explains how these programs work, and the Florida, Nevada, California and Texas guides cover each state's statute.

Do courts defer to HOA board decisions?

In some states, yes. Under Tex. Prop. Code § 202.004(a), for example, an association's exercise of discretionary authority concerning a restrictive covenant is presumed reasonable unless a court finds by a preponderance of the evidence that it was arbitrary, capricious, or discriminatory. Not every state has a statute like this.

The Texas statute says such an exercise of discretionary authority "is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious, or discriminatory" (§ 202.004(a)). A licensed attorney can explain the standard that applies where you live.

Who pays the lawyers?

It depends on the state and the governing documents. Several statutes shift attorney's fees to the winner: Florida's §720.305(1) and California's Civil Code § 5975(c) award fees to the prevailing party, while Nevada's NRS 116.4117(6) leaves the award to the court. That can cut either way, so a homeowner who loses may owe the association's fees.

Attorney's fees are often the biggest number in an HOA lawsuit.

• Florida: "The prevailing party in any such litigation is entitled to recover reasonable attorney fees and costs" (§720.305(1)). In collection cases, the association "is entitled to recover its reasonable attorney's fees incurred in an action to foreclose a lien or an action to recover a money judgment for unpaid assessments" (§720.3085(1)(c)).
• California: "In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs" (Cal. Civ. Code § 5975(c)).
• Nevada: "The court may award reasonable attorney's fees to the prevailing party" (NRS 116.4117(6)), which leaves the award to the court.
• Texas: In an action based on breach of a restrictive covenant, "the court shall allow to a prevailing party who asserted the action reasonable attorney's fees" (Tex. Prop. Code § 5.006(a)), so the statute is written for the party who brought the claim. Separately, an association may charge an owner its attorney's fees for enforcement "only if the owner is provided a written notice that attorney's fees and costs will be charged to the owner if the delinquency or violation continues after a date certain" (§ 209.008(a)).

Governing documents can add their own fee clauses. How these provisions apply to a particular case is a question for a licensed attorney.

Routes other than court

In a few states, a state office takes certain complaints. In Nevada, a person aggrieved by an alleged violation may, "not later than 1 year after the person discovers or reasonably should have discovered the alleged violation, file with the Division a written affidavit" (NRS 116.760(1)). In Virginia, "A complainant may give notice to the Ombudsman of any final adverse decision" from the association's complaint process, and "The notice shall be filed within 30 days of the final adverse decision" (Va. Code § 54.1-2354.4(B)); see the Virginia guide. Who Regulates HOAs? covers which states have an HOA office and what it can do.

The bigger picture

Suing an HOA is possible, but the right path — and whether you must first mediate, arbitrate, or exhaust an internal process — depends on the nature of the dispute and your state's law. Litigation also carries cost and attorney-fee risks that statutes and governing documents address. Because all of that is fact-specific, a licensed attorney in your state is the appropriate resource before taking action; Finding an HOA Lawyer covers when homeowners typically consult one and where to look.

Frequently asked questions

Do I have to mediate before suing my HOA?

In some states, yes, for certain disputes. Florida's §720.311 requires pre-suit mediation for many covenant-enforcement disputes (with exceptions like fine and assessment collection), Nevada's NRS 38.310 requires mediation or a state program before many covenant and assessment-procedure suits and says a court "shall dismiss" a case filed without it, and California's § 5930 requires an attempt at alternative dispute resolution before certain enforcement actions. Other states have their own rules or none.

Can I recover my attorney's fees if I win?

Sometimes. Florida's §720.305(1) and California's § 5975(c) award fees to the prevailing party, Nevada's NRS 116.4117(6) lets the court decide, and Texas's § 5.006(a) covers a prevailing party who brought a restrictive-covenant claim. Those same rules can make a losing homeowner pay the association's fees, and governing documents may add their own fee clauses.

Is suing my only option?

Often no. Internal dispute resolution, mediation, arbitration, or a complaint to a state office may be available or required first. Nevada accepts affidavits about alleged violations through its Real Estate Division (NRS 116.760), and Virginia's Ombudsman receives notices of final adverse decisions (§ 54.1-2354.4). The best route depends on the dispute and the state — a licensed attorney can advise.

Can I take my HOA to small claims court?

Often, for a money claim under the state's limit. California's small claims court hears a case by an individual "if the amount of the demand does not exceed twelve thousand five hundred dollars ($12,500)" (Cal. Code Civ. Proc. § 116.221). Texas hears small claims in justice court (Tex. Gov't Code § 27.060), with a civil limit of "not more than $20,000, exclusive of interest" and no jurisdiction over "a suit for the enforcement of a lien on land" (§ 27.031). Small claims is mainly for money; California's court can order an injunction "only when a statute expressly authorizes" it (§ 116.220(a)(5)). Pre-suit mediation rules like Florida's §720.311 (above) have their own scope, and California's ADR requirement "does not apply to a small claims action" (Cal. Civ. Code § 5930(c)).

Can I sue individual HOA board members personally?

Sometimes, though many states limit volunteer directors' personal liability. Florida's nonprofit corporation law, which governs HOAs incorporated under it (§720.302(5)), says a director or officer "is not personally liable for monetary damages" unless a breach of duty involves listed conduct, such as a transaction from which the director or officer "derived an improper personal benefit" or "willful or intentional misconduct" (§617.0834). Chapter 720 also allows actions against a director "who willfully and knowingly fails to comply" with the statute and governing documents (§720.305(1)(c)). In California, Cal. Civ. Code § 5800 says a qualifying volunteer director (a tenant, or an owner of no more than two residential separate interests) "shall not be personally liable in excess of the coverage of insurance" for injury from a tortious act or omission, but only if the act was within the scope of association duties, in good faith, and "not willful, wanton, or grossly negligent," and the association carried the required liability insurance. Whether an exception applies is fact-specific; What Your HOA Board Owes You covers the duties themselves.

What happens if my HOA sues me?

Association suits commonly involve unpaid assessments or covenant enforcement. In Florida, an association "may bring an action in its name to foreclose a lien for assessments" and may also seek "a money judgment for the unpaid assessments" (§720.3085(1)(c)); §720.305(1) covers suits over failure to comply with the governing documents. The deadline to answer a summons is set by statute and court rules. In California, except as otherwise required by statute, the summons directs a written response "within 30 days after summons is served" and warns that otherwise a "default will be entered upon application by the plaintiff" (Cal. Code Civ. Proc. § 412.20). For a specific lawsuit, a licensed attorney in your state is the right resource. Related: What Happens If I Stop Paying HOA Dues?, Can My HOA Foreclose on My Home? and Do I Have to Pay My HOA Fine?.

Sources

• §720.311, Florida Statutes — Dispute resolution (presuit mediation)
• §720.305, Florida Statutes — Obligations of members; remedies at law or in equity
• §720.3085, Florida Statutes — Payment for assessments; lien claims
• §720.302, Florida Statutes — Purposes, scope, and application
• §617.0834, Florida Statutes — Liability of directors and officers
• NRS 38.310 — Limitations on commencement of certain civil actions
• NRS 116.4117 — Civil actions for failure to comply; attorney's fees
• NRS 116.760 — Affidavit of alleged violation filed with the Real Estate Division
• Cal. Civ. Code § 5930 — Alternative dispute resolution before an enforcement action
• Cal. Civ. Code § 5975 — Enforcement of governing documents; attorney's fees
• Cal. Civ. Code § 5800 — Liability of volunteer officers and directors
• Cal. Code Civ. Proc. § 116.220 — Small claims court jurisdiction
• Cal. Code Civ. Proc. § 116.221 — Small claims limit for actions by a natural person
• Cal. Code Civ. Proc. § 412.20 — Contents of a summons
• Tex. Prop. Code § 5.006 — Attorney's fees in breach of restrictive covenant action
• Tex. Prop. Code § 202.004 — Enforcement of restrictive covenants
• Tex. Prop. Code § 209.007 — Hearing before board; alternative dispute resolution
• Tex. Prop. Code § 209.008 — Attorney's fees
• Tex. Gov't Code § 27.031 — Justice court jurisdiction
• Tex. Gov't Code § 27.060 — Small claims
• Va. Code § 54.1-2354.4 — Association complaint procedures; final adverse decisions