Q&A: Unwarranted Attorney Fees?

Q I am living in a condo whereby I am enduring loud noise by two rude neighbors. I had to hire my own private lawyer. The condo board has their own lawyer and their lawyer responded to my lawyer. I recently received a bill from the condo charging me for the services of their lawyer. Would you please advise if I need to pay this bill and where I can file my own complaint?

—Drained by Attorney Fees

A “The inquiry as to the rights and obligations of unit owners and/or the condominium with regard to legal fees begins and ends with the condominium documents, in particular, its bylaws (but also, in some cases the condominium declaration),” says Stewart E. Wurtzel, Esq. of the Manhattan-based law firm of Deutsch Tane Waterman & Wurtzel, P.C. “These documents must be carefully read to determine what rights are granted to each party concerning attorney’s fees.

“In order for the condominium to recover legal fees from a unit owner, it must first show that the unit owner was in default of one or more of the provisions of the condominium documents. It must then show that there is a provision in the condominium documents, which would allow the condominium to recover its attorney’s fees for compelling the unit owner to cure the default. In many cases condominium documents specifically authorize the recovery of legal fees only for defaults relating to the non-payment of common charges. While the condominium can bring an action to compel a unit owner to cure other breaches of the bylaws, i.e., unreasonable noise, creating a nuisance, etc., the remedies provision of the bylaws must be examined to see if it authorizes the recovery of legal fees for non-common charge defaults. Third, the condominium must be the prevailing party in seeking to enforce its rights. This means obtaining the central relief sought regarding the default. If both parties prevail in part, then the condominium may not be entitled to recover its legal fees. Finally, the fees sought must be reasonable in relation to the default and the legal actions that needed to be taken. Note also, that even where the documents provide for the collection of legal fees, the determination of what is a reasonable fee is subject to court determination.

“It would be the unusual bylaw which would grant a unit owner the right to recover its legal fees against the condominium even if the unit owner successfully defended against the condominium’s claim. Unlike a shareholder in a cooperative who enjoys the benefit of the New York State statute which grants a tenant the same right as the landlord to recover legal fees if the tenant successfully defends against a landlord’s claim for breach of lease, the statute is not applicable to condominiums and there is no similar provision in the Condominium Act which grants the unit owner a comparable right. Similarly, in an action between two unit owners, legal fees which means that absent an agreement or a statute specifically authorizing the recovery of such fees, each party to a litigation must pay its own legal fees, even if he is completely successful in his action against the other.”

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