Alternative Legal Resources Avoiding the Courtroom--and Hefty Legal Fees

Alternative Legal Resources

These days, suing someone is often the knee-jerk reaction to resolve a problem. But before you call your attorney, focus on determining exactly what you're using your legal professionals to do. For example, do you really need to go to court over a minor dispute?

"Boards have to spend time identifying what are administrative functions and what are legal functions," says Michael T. Hartsough, a partner at the firm of Hartsough Kenny Chase and Sullivan in Hamilton. "Try to look at a possible end result and figure out what's the cost associated with getting there. Then evaluate what your course of action is based on the possible result."

When you have zeroed in on your anticipated outcome, see if the potential legal fees you'll incur justify the result. "If someone is looking to have a neighbor change the color of their door, it does not make sense to pay an attorney to have that done. There are solutions out there through your association where you may not need legal counsel. But if a board or resident is dealing with a structural issue that will cost hundreds of thousands to fix, that falls into the category where you need legal help," says Hartsough.

But you should proceed with caution: even a seemingly no-lose situation can be tricky. "In today's judicial environment, there are more gray areas and fewer areas of black-and-white," says Hartsough. "It's very difficult to tell clients they have a sure win or lose situation. There's more risk in going through the court system now than in the past, because courts are creating new laws that were once left to the legislature."

Residents vs. the Board

Before hiring their own attorney, disgruntled residents can and should try to change things from the inside, says Jeffrey S. DeCristofaro, Esq., director of The Camden Center for Law and Social Justice. "One of the first things they can do is run for the board. If that doesn't work, the resident may need to review relevant documents with a professional and see if there are ways the concerns can be addressed within the parameters of the organization," he says.

"If you're a resident, make sure you've put the issue before the board properly and follow the required steps," says DeCristofaro. "Make sure you are familiar with the agreement and that you are asking an appropriate person any questions."

Most often, the board will address the issue at hand. "From where I sit, I see a vast majority of boards and property managers who are responsive and concerned about their communities," says Curt Macysyn, the executive vice president of the New Jersey chapter of the Community Associations Institute (CAI-NJ). But if a resident has taken those steps and the board has failed to acknowledge concern or act on it as per the rules of the organization, then it's time to consult a legal professional.

"Residents are no different than minority shareholders in a corporation," says Hartsough. "If they feel that the board has been impacted in a negative way, they have recourse in court system to challenge the board."

Legal Fees and Alternatives

According to Hartsough, average legal fees in New Jersey can run anywhere from $200 and $450 per hour. Although fees are typically billed per hour, the cost and function depends on level of expertise of a particular attorney and the size of his or her firm. Available options depend largely on your financial situation.

If you're doing initial research or looking for general information regarding your own situation, you can turn to the web for preliminary information. "There are now more legal resources available online, and individuals can search cases or laws in other states for examples of how other people dealt with similar situations," says Hartsough. "You used to have to go to the state law library, but that information is now available by touch of a button."

For lower-cost help or referrals, try contacting your local Bar Association, which can provide a list of attorneys who specialize in a particular area. Most attorneys are willing to meet with clients referred to them for reduced fee for the first consultation.

Exploring ADR

Heading to court is not always the only—or best—option. Alternative dispute resolution (ADR) can provide feuding parties with a neutral ground on which to resolve their differences.

"Alternative dispute resolution is a less costly remedy to the problem," Macysyn explains. "By law in New Jersey, associations are required to offer an alternative to litigation to resolve disputes."

"In smaller-type disputes, a board can offer ADR themselves, or can go through a program like ours," Macysyn says. "In mediation, noise is a big complaint. Somebody parking in another resident's spot is another. We have a list of trained mediators who have gone through a course and been certified in dispute resolution. The form we take is mediation. Other forms include mediation, arbitration or binding arbitration. Often, if you get parties together and talking, mediators can find common ground in the dispute."

If your HOA doesn't have its own ADR program set up within the community—or even if it does—the CAI program might be an avenue to explore.

"The reason we offer the program is because a lot of communities may not have the mechanism to handle it internally or may not have a committee to handle disputes, especially if it's a small community," says Macysyn. "Also, if the problem is being handled internally through one of these resident committees, the people involved may feel as if someone is taking sides. You might create animosity between homeowners by using someone who lives in the community to settle a dispute. With a trained, neutral third party, there's less chance of that occurring."

CAI's mediation services are available to anyone who lives or works in community associations. According to CAI, this includes resident homeowners, absentee homeowners, board members, managers and developers. In general, its ADR program seeks to get to the bottom of the dispute.

"Mediation is not there to prolong the argument and not there to force a settlement," says Macysyn. "It's there to get the parties together and find common ground. The process is set up to be a less-costly alternative to litigation. And because of the closeness of living arrangements [in co-op and condo communities], in the course of everyday events these disputes can and do occur."

The ADR program through CAI NJ costs $250 for members and $350 for non-members. For more information about ADR or the New Jersey chapter of CAI call 609-588-0030 or visit its website at www.cainj.org.

Stephanie Mannino is a freelance writer living and a frequent contributor to The New Jersey Cooperator.

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