In Pennsylvania, common interest community associations are creatures of both real estate law and state statutes. A condominium’s enforcement authority is rooted in restrictions that both run with the land and are recorded as restrictive covenants with the deed clerk of the county where the common interest community is located. The primary statute for condominiums within Pennsylvania is the Uniform Condominium Act (68 Pa.C.S. § 3101 et seq).
The Uniform Condominium Act provides that a condominium association is entitled to recover its reasonable attorney’s fees along with the costs of suit incurred as a result of the condominium having to litigate matters relating to the collection of common expense assessments like monthly maintenance fees and special assessments [68 Pa.C.S.§ 3315(f)]. Simultaneously, the majority of condominium declarations allow for the recovery of reasonable attorneys’ fees and legal costs in collection actions.
Experience has shown that the determination of the “reasonableness” of the attorney’s fees boils down to the subjective opinion of the particular judge ruling on the fee application. Courts of this state will consider such issues as whether opposition was filed by the debtor defendant, whether court appearances were required, whether discovery was exchanged and whether any additional motions or court pleadings had to be filed outside of the ordinary.
This subjective standard was well illustrated in the case of Mountain View Condominium Association v. Bomersbach, 734 A.2d 468 (Pa.Cmwlth. 1999). In Mountain View, the Commonwealth Court of Pennsylvania ruled that the lower court did not err in its calculation and award of attorney’s fees which the condominium was entitled to recover from a unit owner. What makes Mountain View so noteworthy is that the Court allowed a fee award of $46,548.64 on what was initially only a debt of $1,200.00 when the common interest community initiated the collection action.
While the fee rates which condominiums agree to pay their attorneys may be the same or similar to their competitors’ within the industry, the court’s awarding of these fees through the foreclosure or collection process is dependent upon the court’s subjective opinion. Some courts rightfully award a condominium all legal fees and costs incurred in its collection actions, penny for penny, whereas in some situations some judges dramatically reduce the amount of the attorney fee award.
When a judge issues an order awarding attorneys fees and legal costs less than the amount which the condominium incurred, the common interest community may file a motion seeking the court to reconsider its position on the award, or the condominium can appeal the court’s decision. However, both of these options will cause the condominium to incur additional legal fees which may not be recoverable from the debtor. The decision as to whether the condominium should file a motion for reconsideration or appeal the court’s decision after the entry of final judgment should be made on a case by case decision based upon the total amount which the court has reduced the fees awarded and other relevant factors.
As stated by the trial court in Mountain View, “[t]he Association had the option of either backing off or enforcing its rights under the Declaration and the decisional law. The fact that it elected not to compromise, to stand on principal and to uphold the law requires that its attorney’s fees be covered. Any holding to the contrary would cause chaos in Condominium Associations whose compliant members would have to bear the cost of dealing with non-compliant members.” In the end, there is no sure-fire way to predict the amount of attorney’s fees which will be awarded by a court. However, this should never deter a condominium from enforcing its declaration and bylaws to collect unpaid assessments, the “life-blood” of the condominium.
