Thank you, Barry. As you indicated, California is one of at least seven states with a statute that prohibits unilateral attorney fees clauses in contracts. The interested reader may, see California Civil Code 1717. Specifically, it converts allunilateral contractual clauses to reciprocal attorney fees clauses.
Understood, StillR and Mike. I am not getting my hopes up for my friend. Though I am going to recommend other arguments he can use, like duplicative attorneys fees as the H.O.A. (the plaintiff) battled my friend's (the defendant's) defense andcounterclaim at the same time. Also I may try procedural unconscionability and substantive unconscionability. To me, the covenants are clearly an adhesion, "take it or leave it" (in the words of the courts) contract. When my friend bought the home in the
Other statutes in my state do what California did but for specific types of contracts. E.g. tenant-landlord contracts (so unilateral attorney fees clauses are stricken) in leases and contracts for the sale of goods (likewise).case law where I am for unilateral attorney's fees clauses, in an adhesion contract. Of course there is other case law in my state for certain other contractual clauses, in an adhesion contract, being unconscionable.
I looked at the annotations for the H.O.A. statute section in question. The "commissioners" do clarify the point is to continue to allow judges discretion in the award of attorney's fees. For whatever the commissioners' comments are worth. There's no
I will try to remember to update the thread.
Thank you, Barry. As you indicated, California is one of at least
seven states with a statute that prohibits unilateral attorney
fees clauses in contracts. The interested reader may, see
California Civil Code 1717. Specifically, it converts all
unilateral contractual clauses to reciprocal attorney fees
The question is: Did the initial property owner that purchased the
property have any bargaining power? If so, you are effectively an
assignee of that prior owner so it would not be procedural
unconscionability or else assignments could never exist.
As to substantive unconscionability, that would not apply as the HOA
only has to show a "legitimate interest" in imposing such a term and deterring claims and non-compliance with HOA rules is a legitimate
aim in every U.S. state.
As to your adhesion claim, it does not matter if your friend
in particular had no bargaining power. Does the instrument
say it can be amended by a certain number of HOA members?
If so, the bargaining power is manifested through the collective rather than the individual which would be allowed.
Have you seen the bills? If the attorney bills identify work specific
to the counterclaim, you might have an argument.
However, if the attorney's bills are sloppy and indistinguishable,
then you have an argument subject to the possibility that a court
may exercise discretion and allow the attorney to cure defects in the bills.
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