Question: The governing documents for our homeowners’ association contain a number of restrictions and rules. However, they do not contain any instructions on what happens if an owner fails to comply with the documents. If an owner is not obeying the documents, what does the homeowners’ association do? (D.H by e-mail)
The association can also take legal action. Before the association can commence legal action, the association must first send a demand for mediation (arbitration is required in condominiums). The demand for mediation must state the subject of the dispute and provide a list of five mediators the association will agree to use for mediation. Once the association has sent the mediation demand, the owner has 20 days to respond with their agreement in writing that they will participate in mediation, and then the mediation must be scheduled within 90 days. If the owner fails to timely respond to the association’s demand for mediation, the association is then able to file an action in the court of appropriate jurisdiction to enforce the governing documents. The consequences of either the association not sending the presuit mediation before filing a lawsuit, or the owner not agreeing to participate in mediation, is that the party failing to comply loses their right to recover prevailing party attorneys’ fees in the event that they are the prevailing party in any subsequent litigation.