CC&R Vote: Why the "Loser Pays" Amendment is a Win for Every Homeowner
No one ever wants to be involved in a legal dispute, but unfortunately, litigation is sometimes the only tool we have to protect our precious ocean views and our home values.
Under our current rules, if you are forced to file a lawsuit to protect your view and you win your case in court, you are still burdened with the heavy costs of the lawsuit. This proposed amendment will add specific language (see below) to the CC&Rs to ensure that in any lawsuit between the Association and a member, or even between individual members, the prevailing party is awarded their attorneys’ fees by the losing party.
These types of attorneys’ fees provisions are standard for CC&R documents, and most neighborhoods across California already have them in place to protect their residents. They serve as a critical safety net, ensuring that if the Association or a homeowner must take legal action to enforce our rules, the winning party can recover their legal costs rather than leaving those significant expenses unreimbursed.
Consider a scenario where a neighbor installs a new fence, wall, tree, or construction project that directly blocks your ocean view. You have a clear right to ask them to eliminate that obstruction, but if they refuse to engage or ultimately refuse to remove it, you are faced with a difficult choice: sue to protect your rights or lose your view forever. Currently, the fact that you must cover all legal costs yourself—even when you are in the right—makes litigation an incredibly expensive proposition. This financial burden discourages many homeowners from standing up for their rights, which ultimately hurts our collective home values.
On the flip side, this amendment will naturally discourage unnecessary disputes and violations. If a homeowner knows they will be held responsible for both their own legal fees and their opponent's fees if they lose, they will be far less likely to violate a neighbor's rights or block a view in the first place.
Furthermore, this change will protect the Association’s limited resources by promoting fairness and accountability throughout Sunset Mesa. While the SMPOA has acted and will continue to act legally to protect homeowners from blatant and extreme CC&R violations, our resources are very limited. We can only afford to engage in litigation on a very limited basis, which means it often falls to individual homeowners to take action to protect their own property rights. By approving this amendment, we make it more effective for individuals to defend their investments and less likely that litigation will be needed at all. This is a vital step toward ensuring that our community restrictions are respected and that the beauty of the Mesa is preserved for everyone.
The Board proposes adding the following new section (s) to the CC&Rs: (s) Attorneys’ Fees:
In the event of any litigation or alternative dispute resolution procedure regarding the rights or obligations of the Association or any member subject to this Declaration (or any other governing documents of the Association) and/or the enforcement of this Declaration or any other governing documents of the Association between the Association and any member and/or between members, the prevailing party in such proceeding shall be entitled to recover its reasonable attorneys’ fees and costs, as well as any expert witness fees and costs if applicable. The foregoing provision shall also apply to attorneys’ fees and costs incurred to collect upon any judgment entered as a result of such litigation or alternative dispute resolution procedure. Further, in the event the Association engages legal counsel to enforce any violations of the Declaration (or any other governing document of the Association) including, but not limited to, any architectural improvements or modifications performed by a lot/owner without the Association’s required architectural approval, the Association shall be entitled to recover its reasonable attorneys’ fees and costs incurred, whether or not formal legal action is initiated. In the event of any conflict between this provision and Article VIII of the Bylaws, this provision shall be deemed controlling.