Nuisance Provision In HOA’s CC&Rs Allowed For Attorney’s Fees and Costs Award of $600,000+; Allocation Not Necessary Where Same Facts And Evidence Involved On All Claims

Blog post by David Swedelson, SwedelsonGottlieb Partner, Condo Lawyer and HOA Attorney

Think the court will not award significant attorney’s fees in a breach of CC&Rs case? In Klein v. Nyamathi (Bell Canyon HOA), a recent (unpublished) Court of Appeals Decision, the Nyamathis were found liable to their neighbors at a planned development located in the Bell Canyon area of Southern California for almost $400,000 for improperly grading their property and, as a result, flooding the Kleins’ property under nuisance and breach of contract/CC&Rs theories. The Kleins also sued their HOA, claiming that the board had failed to enforce the CC&Rs as to their neighbors; the HOA settled before trial.

The trial court also awarded the Kleins attorney’s fees of $552,655.75 and costs of $63,595.83, over $600,000. The Nyamathis appealed, contending that while the Kleins may be entitled to their attorney’s fees for the breach of the CC&Rs claims, they were not entitled to all of the fees, as some of the claims were not covered by the CC&Rs. They argued that the fees must be apportioned. The Court of Appeal did not agree.

The planned development’s CC&Rs did have a prohibition on nuisances, as most associations have, and the flooding was a nuisance allowing for the award of fees. The Court of Appeal found that no allocation of fees was necessary between compensable and noncompensable claims because the same facts and evidence were interrelated to all theories of recovery.

Follow this link for David Swedelson’s letter to the Court of Appeal requesting that this decision be published so it can be cited as law, as often California community associations are required to sue owners for both CC&R violations and for other causes of action.

David Swedelson was an expert consultant in this case. He can be reached for comments:

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