Having tried, litigated, and counseled clients on all kinds of association disputes, we have come to understand a very important concept involving legal disputes: The best route to resolution—like water—is the path of least resistance.
Some of our opposing counsel may say, “What? DeVries & Associates is claiming all legal disputes can be settled by giving in and rushing to settlement?” No, that tact does not work when parties are fully entrenched in protracted litigation. Our point, and our experience counseling community associations, is that many disputes can be resolved early, prior to both sides becoming embedded in their positions, and well prior to legal fees amassing.
What we have found over the years working with community association boards and owners is that there is a window of opportunity early on in a dispute to reach resolution. But once that window closes, the next opportunity does not avail itself until well along in the process—many times after litigation has commenced.
It is said that over 95 percent of civil legal disputes are resolved short of trial. In other words, in over 9 out of 10 cases, the parties reach an agreed resolution; which means that some level of compromise has occurred. If, ultimately, the parties are going to settle, doesn’t it make sense to be open-minded to compromise from the outset?
For community association boards or owners involved in a clash, we recommend the following course of action:
Read, understand and follow your Governing Documents and applicable Hawaii laws. The key to almost every community association dispute lies in the documents. Make sure you are reading and following the appropriate sections or provisions. We can’t tell you how many times an owner has cited the wrong statute—one that does not even apply to that association.
Consult with a professional. Instead of relying upon an unqualified expert, make sure you seek guidance from your professional manager, or seek counsel from the association's attorney.
Treat the other party with respect. Vitriol and rudeness are the breeding grounds for conflict.
Remain open to alternative outcomes. Reasonable minds may disagree and even after reviewing the proper section or provision of the Governing Documents or statute, interpretations may vary.
Lastly, always utilize common sense. What is the cost-benefit analysis to proceeding?
Sure, some disputes will only be resolved after a lengthy court battle. But for a large percentage of “neighborly” community association quarrels, it might be helpful to follow the guide of that droplet of water you see trickling down the side of the house, by following the path of least resistance.
If you are facing a dispute, or need assistance in a community association legal matter, the team at DeVries & Associates wants to help. If your community association is not yet a client, schedule a complimentary consultation by calling (808) 465 - 2500.