J.E. from Albuquerque, New Mexico writes:
Dear Mister Condo,
I live in a condo in Albuquerque. We have bollard lights between buildings (4 units in a building) that have been falling apart for over 7 years. They are being “fixed” with “pieces of metal” They are disgusting, wires are exposed. Bylaws say Board must maintain the property and that repairs and replacements must be of “first class quality”. It’s not happening. If the owners get an attorney, does the Board have to pay our attorney fees?
Mister Condo replies:
J.E., I am sorry that your bollard lights are not holding up and that the association hasn’t seen fix to apply an appropriate repair. It is even more unfortunate that you now have to bring suit against the Board just so they will take the appropriate action to fulfill the association’s bylaws. I am not an attorney nor am I an expert in New Mexico condo law so please accept my advice as friendly. The attorney you will consult with will give you the legal advice you seek.
As a rule, the prevailing party in a lawsuit can fold reasonable legal fees into the lawsuit they bring against the party they are suing. One of the issues with suing your Board is that you are, in reality, suing yourselves. Any money the Board uses to defend against your suit will come from association funds. Any award you receive as a result of the suit will come from association funds. Association funds come from your common fees and assessments. In other words, even when you win, you still pay.
I have to ask – do your bylaws actually state “first class quality”? Who determines “first class quality”? What a difficult thing to enforce! I am guessing that you and your fellow unit owners will be happy with a proper repair, regardless of class, right?
I can think of two solutions you might consider that don’t involve the time and expense of bringing suit against the Board. The first is to simply vote out the folks who are currently serving on the Board or at least those who have refused to take action on this issue. Board members are democratically elected volunteers from within the association. If they are not fulfilling their duties, they need to be replaced with alternative volunteers who will conduct the association’s business properly. If you have elections coming up anytime soon, your easiest solution is to simply elect volunteer leaders who will direct the proper repair. If you do not have election coming up soon, you can schedule a recall whereby you will remove sitting Board members and then have a special election to replace them.
The second is to get the association’s insurance underwriter involved. I can’t imagine exposed wires being considered anything but a liability and it is possible that the insurer will mandate that the Board make the repair. That won’t necessarily get you “first class quality” but it should get the threat of electrocution from exposed wires taken care of.
When you speak to the attorney be sure to ask about folding legal fees into the settlement. It may be as simple as a letter from the attorney to the Board that gets them moving in the right direction to make the repairs. If not, they will likely hire their own attorney (again at Association expense) and get ready for the lawsuit. This will make money for the attorneys at the expense of association members but it may get your bollard lights repaired to your satisfaction.
At the end of the day, you and your fellow unit owners should get the bollard light repair you seek. I am hopeful that you can save the association legal fees by working with the Board, current or newly elected, to make the situation right. I wish you and your fellow unit owners bright and safe evenings. All the best!