In two recent decisions, the Oklahoma Appellate Courts have allowed Homeowners Associations to collect attorney’s fees and costs after successful litigation.
Oklahoma follows the “American Rule”, which is that Attorney Fees may not be awarded unless there is a contract between the parties that allows them or there is a statute that specifically allows for fees in that type of action.
In two cases – Twin Creek Estates v. Tipps, (2011), and Whitehall Homeowners Association v. Appletree Enterprises, (2013), both decided by Division 2 of the Court of Civil Appeals, the prevailing HOA was awarded Attorney Fees, on the strength of the Real Estate Development Act, specifically section 856 which says:
“Any person owning property in a real estate development shall be entitled to bring action against any other person owning property in such development to enforce any of the restrictions or covenants of the real estate development which are specified by the covenants or restrictions. In any action to enforce any restriction or covenant pursuant to the provisions of this section, the prevailing party shall be entitled to recover reasonable attorney’s fees to be fixed by the court, which shall be taxed as costs in the action”.
It is interesting, in my opinion, that in neither case did the Court clarify whether or not the HOA actually owned property in the subdivision. In the Whitehall case, the issue was whether or not the HOA can be considered a “person”. The Court clarified by citing a statute that dictates anytime a statute refers to a “person”, the term includes partnerships, LLC’s, Corporations, and other entities.
Despite any ambiguity, it is clear that, at least for now, if the HOA owns property in the subdivision, or if the Conditions and Covenants specifically allow for fees, such fees can be awarded.
Find more information at the Oklahoma Law Website
Like and Follow my Facebook Page
Follow @marshalldyerFiled under: Homeowners Associations |
Marshall's Oklahoma Law Blog 
Leave a comment