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CCOC Decision Summary

#64-10 , McDonald v. Briars Acres Community Association (April 20, 2011) (Panel: Alkon, Fonoroff, Henderson)

The homeowners filed a complaint challenging a decision of their HOA board directing them to remove a children's playground set from the common area behind their home where it had been placed for 10 years before the HOA objected to it.  After mediation failed to resolve the dispute, and the CCOC had accepted jurisdiction of the dispute and set it for a formal hearing, the HOA hired an attorney who filed discovery requests against the homeowners.  The homeowners then filed a request for permission to withdraw her complaint.  They also removed the playground set.  The HOA objected to a dismissal of the complaint and filed a motion for an award of $5000 in attorneys' fees.

In support of its motion for attorneys' fees, the HOA argued that the homeowners' complaint was frivolous and made simply for the purpose of delay.        The hearing panel denied the motion and dismissed the complaint with prejudice. 

The panel began by noting that the parties agreed that the homeowners had removed the playground equipment and that the alleged violation had been cured.  Therefore, the complaint was moot.

The panel said that the homeowners had fully cooperated in the CCOC dispute resolution process and that their conduct justified the inference of good faith as much as or more than it supported an inference of bad faith.  The homeowners were not represented by a lawyer and could not be held to the same standards as a lawyer might be.  In addition, because the complaint was moot, there was no evidentiary hearing to test the strength of the homeowners' case or the HOA's response, and it could not be said with any certainty that the homeowners' case was completely without merit or that the HOA was sure to prevail.  The undisputed facts were that the playground equipment had been located on the common area for over 10 years without objection from the HOA.   There were also allegations that the HOA was aware of the violation and might even have consented to it, and in the panel's view, it was not unreasonable for the homeowners to believe that under such circumstances the HOA had waived its rights to object to the play area.  The panel noted that CCOC had never awarded attorneys fees on the basis of a claim of pursuing a

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