An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc. 
Published December 11, 2006

Another big financial blow for the board and the members of the INDIAN CREEK PHASE III-B Homeowners' Association.  They had filed a lawsuit against their neighbor, George Andres, and tried to foreclose on his home.  His "CRIME"?  He flies "Ol' Glory" from a flagpole on his private property!

The court battle for constitutional rights lasted more than five years -- and it all started with an obviously ill-advised lawsuit brought against Andres, a former Marine who dared to break non-existing rules in the association's deed restrictions. 

Not so -- decided Florida Courts and sided with the Marine.  Andres was only able to fight for his rights after finding in Barry Silver an attorney willing to defend his constitutional rights pro bono.  Without the pro bono help George Andres and his wife, Anna, most likely would have lost their home.

Judge Edward Fine, in his ruling that awarded Barry Silver the legal fees, acknowledged the risk of taking on such lawsuit pro bono and used a 2.0 multiplier to calculate the actual award!

We always hear from attorneys and over-eager board members that owners, being sued by their associations, had agreed to the restrictions by signing a contract before buying the home. 

Can such a contract take away the CONSTITUTIONAL RIGHTS OF A HOMEOWNER?  Definitely not -- according to the SUPERIOR COURT OF NEW JERSEY !

And if these people would look a little closer and not just parrot the fairy tales of the attorneys that have a financial interest in keeping this fairy tale alive, they would realize that most legal battles are fought over interpretations of these restrictions (see Jupiter Flag case) or invalid amendment or rules made up by boards as they go along -- often on advice of these attorneys!

Board members have to realize that they risk the money of the owners, whose interests they are supposed to represent, for lawsuits that really don't serve anybody's interest.  These pointless lawsuits only fill the wallets of these specialized attorneys!

Board members should think again before risking the association’s money in a legal battle that -- even if victorious in the end -- may cost a neighbor his home and leave the association with a big hole in the bank account!

Always consider what even a successful outcome will achieve for your community! 

• Will it improve the property values?  Most likely not!
• Will it improve life in your community?  Most likely not!
• Will it make your community more neighborly?  Most likely not!
• Will you see more happy neighbors?  Most likely not!
• Will it improve the income of the specialized attorney?  Definitely, YES!

Why file an expensive lawsuit that can easily cost more than $100,000?  For principle?  Or maybe because your attorney told you that you would lose the power to enforce the rules if you don't file this lawsuit?

Please don't be so gullible -- and always remember that this attorney might only have one interest in mind: HIS WALLET!

Otherwise, you may end up like the board members of the INDIAN CREEK PHASE III-B Homeowners' Association, who have to explain to their neighbors why they have to pay a large special assessment to cover the legal fees.

Believe me, that's not an easy task!  It's easier to approach the neighbor before starting litigation.  Try to find a feasible solution BEFORE the association attorney mails the first nasty letter!  It will save your association’s money and all of the aggravation of a lawsuit. 

This award of legal fees should as well send a warning to the homeowners who live in a community where the board is harassing someone for perceived violations of the rules. The homeowners definitely should get involved, and demand that the board act more responsibly.  Otherwise, they could become subject to a major assessment. 

The moral of the story: Neighbors should not be apathetic, or it could hurt not only the target of the board's aggression, but everyone else in the community as well.  

Being nice and neighborly is often more successful than a risky lawsuit!

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