July 20, 2022
I am frequently asked if the winner of a lawsuit between a community association and a homeowner will get an award of attorney’s fees at the end. For many property owners, the cost of litigating for months or years is burdensome, especially if it cannot be recovered. Virginia, like most states, follows the “American Rule” requiring each side bear their own fees, unless there is a statute, contract or other exception that allows fee shifting. The Virginia Condominium Act and Property Owners Association Act (HOAs) allow for prevailing party attorney fee awards in actions to enforce the statutes or instruments. Also, some recorded instruments (declarations, bylaws, amendments) provide a “contractual” basis for attorney fee awards. In most community association litigation, there is a statutory or contractual basis for an award of prevailing party attorney’s fees and costs. However, the statutes may not apply if the development does not meet the statutory definition of a condominium or property owners association. In such cases, the homeowner ought to consider whether another exception to the American Rule applies.
There are judicial opinions that address attorney fee awards in the HOA context. I discussed an important Supreme Court of Virginia case in my April 28, 2017 blog post, “Condo Owner Prevails on Her Request for Attorney Fees” That case, Lambert v. Sea Oats Owners Association, restates the seven factors that courts weigh in considering the reasonableness of a petition for attorney’s fees:
- The time and effort expended by the attorney.
- The nature of the services rendered.
- The complexity of the services.
- The value of the services to the client.
- The results obtained.
- Whether the fees incurred were consistent with those generally charged for similar services
- Whether the services were necessary and appropriate.
In Lambert v. Sea Oats, the trial judge decided to reduce the fee award on the grounds that the underlying amount of compensatory damages was much lower than the attorney’s fees. The trial judge decided that the attorney’s fee ought not to be out of proportion to the claim on the merits. This presented a problem to the unit owner, whose victory was hollowed by having her attorney’s fees award drastically reduced. This practice could encourage some to “stonewall” their opponent in a way that practically deprives them of their rights. In Lambert the Supreme Court disallowed cutting fees on such grounds.
In today’s post I would like to focus more on the procedural aspects of attorney’s fees petitions, because there are things are party is required to do if they want to avail themselves of the statutory or contractual provisions that entitle them to fees. Fulfilling these procedural requirements are important in part because many trial judges in Virginia are inclined not to award attorneys fees, even when the prevailing party is entitled to such an award by a contract or statute.
The procedural requirements for presenting a petition for attorney’s fees in Virginia vary from those used in the federal courts and some other states. In Virginia, the basis for the attorney’s fees claim must be specifically alleged the lawsuit. The parties are entitled to obtain copies of their opponent’s attorney fee invoices in discovery. Unless an order is entered otherwise, any party asserting an attorney fee claim must submit evidence in support of it at trial, otherwise the claim is waived. The rules allow for bifurcation of attorney’s fees. This allows the court to declare a victor and decide the attorneys fees at a subsequent hearing. However, bifurcation is supposed to be made by the parties mutual consent or by a pretrial order. In many cases, the party seeking fees will call an expert witness to testify regarding the reasonableness of the fee. In many lawsuits regarding property, by the time the case goes to trial, recovery for the cost of litigating becomes an important issue for the parties. Attorneys and their clients often prefer dealing with attorney fee petitions post-trial for a number of reasons. Trying to win on the merits requires a tremendous amount of attention to detail. If a party presents a large fee petition as a part of their trial presentation, the judge or jury may view their case as more about the attorneys fees and less about the merits. Also, its easier to calculate the attorneys fees award a couple weeks after trial because the trial is already concluded.
By contrast, in the federal courts a claim for attorneys fees is made by a post-trial motion filed in usually a couple weeks, unless a statute or scheduling order requires it to be presented at trial. As you can imagine, attorneys accustomed to the federal rules may miss the pretrial requirements imposed by the Virginia court rules, and later discover that they are procedurally barred from presenting their attorney’s fees claim.
Many attorneys mistakenly believe that if their client prevails, they can add all of their assorted litigation costs to the attorney fee and costs award. I’m talking about things like court reporter appearance or transcript fees, hotel fees, rental cars, expert witness fees, overnight delivery charges, and so on. Many of these things, such as court reporters and photocopies are as essential to the clients case. However, the only costs that are ordinarily recoverable under Virginia law are the court filing fees and the service of process fees. Depending upon the subject matter of the case and the contract documents, other costs may be made part of an award.
The attorneys fees statutes for HOAs and condominiums don’t just apply to claims by the homeowner against the association. The association can assert the same basis for attorneys fees, be it as a plaintiff or defendant. Also, the statute can apply to claims brought by a homeowner against another homeowner under the acts or the governing instruments.
When a homeowner files a lawsuit against the community association, other owners are often concerned about payment of attorney fees in defense of the suit. Ordinarily, when an association is sued, they place a claim with their insurance, who appoints them a lawyer to defend the case. The insurance defense attorneys are ordinarily seasoned trial attorneys who different kinds of civil defense work in addition to defending HOAs. Often, the board will assure residents that the insurance is taking care of the attorney’s bills. However, the association is likely to incur additional attorneys fees, because the board’s regular general counsel ordinarily participates in the communications between the board and the insurance defense attorney. The general counsel’s fees are not ordinarily reimbursed by the insurance.
Given how expensive it can become to litigate a HOA case to the end, the parties ought to give careful consideration to how a petition for fees will be supported or opposed. One must also consider that in the event that the case can be resolved through a negotiated agreement, the attorney fee claims have to settled or released in the context of the settlement of the case.
Fairfax Square LLC v. Hermes of Paris, Inc., 89 Va. Cir. 406 (Fairfax 2015)