#42-06, Brandermill Association v. Wells (February 13, 2007) (Panel: Shontz, Gannon, Fleischer)
The homeowners association (HOA) filed a complaint against the homeowner (HO) seeking an order to force her to repair and paint her unit. The HO never answered the complaint about architectural violations, but did appear at the public hearing to admit the violations and plead her financial inability to make the repairs. The panel was sympathetic, but ordered her to complete the repairs within 2 months.
The HOA then asked for an award of attorney fees.The panel ruled that under Chapter 10B it could only award attorney fees if the respondent had engaged in misconduct, or if the association rules "required" such fees.As to the first point, the panel ruled, consistently with the Commission's decision in #04-06, Longmead Crossing v. Venson, that mere unresponsiveness by a respondent is not misconduct under Chapter 10B.The panel then reviewed the association's rules.The rules only required payment of attorney fees if the association had sued to collect unpaid assessments, or in order to reinstate a member's right to use the swimming pool if such right had been denied as a result of unpaid assessments.This case did not involve either type of action, and therefore the panel ruled that the fees were not "required" within the meaning of Chapter 10B and denied the request.