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William B. Esq.
William B. Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 2961
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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My parents in laws condo was foreclosed in January 2012. They

Customer Question

My parents in law's condo was foreclosed in January 2012. They did not pay condominium association fees for about 2 years before they left. The Association has now filed a claim against us for the payment of $2,200. The condo fees are "for common area expenses", but they were barred from parking in the parking lots since they failed to pay condo fees. They were also not allowed to use pools or recreation areas.

My father in law has a driver's license with handicap preference because he lost one leg in a car accident, and we explained his special situation to the Association then, but they did not allow him to park in the property, so he had to park on public streets during the 2 year period. And one day, he fell down while walking back home from the public street (very steep hill though very close to condo) after he parked the car, and he had to go to hospital for treatment.

If they are suing us for the unpaid condo fees, can we also sue them back for all the pains and stresses he went through from not being allowed to use the Condo's parking spaces including the ones for handicap.

Thanks.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  William B. Esq. replied 1 year ago.

CalAttorney2 :

Dear Customer, thank you for choosing Just Answer. Please give me a moment to review the law on your situation. While you may file a counter-claim under the terms you have proposed (claiming the HOA should have permitted your father to use the HOA's parking lot handicap stall despite the non-payment of assessments), there is no guarantee that your claim will be successful. I want to check the regulations on handicap parking for private property to see if I can find a regulation or statute to give you a more definitive statement.

CalAttorney2 :

In reviewing the Virginia statutes, the statute applies only to governmental entities and property (DANGEROUS URL REMOVED?000+cod+46.2-1242 ) However, the circumstances you describe are compelling, and moreover, I would recommend checking your HOA's CC&Rs and other governing documents as those will be controlling over the statutes in this regard. Look for parking rights and use of the parking area for guests.

Customer:

What I want to know is that when they prohibited us from using the so called "common areas" like parking spaces, pools and rec center, then why are we liable for the condo fee which is for "common area expenses"

CalAttorney2 :

You are liable for common area expenses because you owned real property within the HOA. You are prohibited from using common areas as a penalty for not paying expenses. (Remember, I don't make the rules, this is just the way it works with HOAs).

Customer:

Since we were not allowed to use the common areas, should we be only responsible for the portion of the expenses, if we are liable?

Customer:

Oh, OK

CalAttorney2 :

HOAs work under a budget of every unit paying a portion of the entire cost of upkeep, repair, contribution to the general fund, and other expenses. Unfortunately, that includes those owners who are delinquent and not allowed to use common areas.

Customer:

Then would there be room for negotiation?

Customer:

If I decide to file a counterclaim but lose, would I be liable for all the expenses and legal fees as well?

CalAttorney2 :

There is always an opportunity to negotiate, I do not know what the odds of success are. HOAs look at several things when negotiating a settlement. 1) cost of trial or litigation - they have to pay upfront even if they get to recover the fees at the end of a trial; 2) the ability to receive a "lump sum" payment instead of installments, or having to recover through collections; 3) the reduction of risk in litigation in cases where there is a possibility of losing in a damages claim. None of these are controlling, but each are considerations.

Customer:

I will ask for a copy of the Association's bylaws.

Customer:

Can I please ask you a few more questions, if any, after I get the copy?

CalAttorney2 :

You can follow up with me at any time regarding this question (even after you rate my response it just changes to an "email format" instead of "chat" but I will follow up promptly).

Customer:

Thank you so much. I will email you later then. Do I get your email address automatically after I rate and finish?

CalAttorney2 :

You don't actually get my e-mail, the format for our Q&A through this site just changes (we don't "chat" back and forth, it changes to a format that is more like e-mail). You will get a link to our entire conversation and can view it as a single page that updates each time one of us posts a response.

Customer:

OK. Thank you so much. I'll talk to you later.

William B. Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 2961
Experience: I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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