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Illegal HOA Attorney Fee Charges California: How to Fight Back

by | HOAs, Real Estate

ILLEGAL HOA ATTORNEY FEE CHARGES IN CALIFORNIA

OVERVIEW

More and more California homeowners are discovering unexplained legal fees added to their HOA account statements—fees they never agreed to, never had a hearing for, and were never adjudicated responsible for paying.

These charges are often buried under vague line items like “enforcement fee,” “legal consultation,” or “rule violation processing,” and they frequently appear before any lawsuit has been filed, let alone concluded. The strategy is clear: intimidate homeowners financially by making them think they are required to pay the HOA’s attorney even when no legal process has occurred.

In the vast majority of cases, these charges are not just improper, they’re illegal.

California law draws a sharp line when it comes to attorney fee recovery. And unless your HOA follows that law to the letter—or your governing documents clearly give the board authority to impose pre-litigation legal costs—those charges are unenforceable.

This article breaks down the specific statutes that govern attorney fee recovery in HOA disputes, exposes the most common tactics HOAs and their lawyers (attempt to) use to sidestep them, and gives you the tools you need to fight back when your board tries to make you pay for their legal bills.

This article is based on a full-length episode of my HOA HELL podcast, titled “Is Your HOA Charging You for Attorney Fees? It’s a Scam, so Push Back,” which you can watch by clicking here.

WHAT CALIFORNIA LAW ACTUALLY SAYS ABOUT HOA ATTORNEYS’ FEES

HOAs derive their authority solely by California law and the scope and limitations contained in the governing documents. Consequently, an HOA may only act if that power is granted to them by law or by their governing documents (the latter assumes, of course, that the provision in question is otherwise legally enforceable).

Under Civil Code sections 5975 and 5600, HOAs can only recover legal fees from a homeowner under two circumstances:

  • When the governing documents explicitly authorize fee recovery for any pre-litigation issues.
  • When they win a lawsuit or binding arbitration and the judge/arbitrator has explicitly awarded those fees.

That’s it. Absent those conditions, no legal fees can be charged. There is no general legal right for your HOA to charge you for their attorneys’ fees just because they consulted a lawyer about your behavior or because of a question that you posed, sent you a demand letter, or scheduled (or held) a disciplinary hearing.

In other words, there are no exceptions for pre-litigation consultations, hearing notices, or internal board communications with counsel.

COMMON HOA ATTORNEYS’ FEES CAMS TO WATCH OUT FOR

Despite the clarity of the law on this subject, HOAs regularly impose legal charges outside the limits of Civil Code sections 5975 and 5600. Some of the more common tactics that HOAs and their attorneys use to intentionally ignore the law and improperly pass legal fees onto homeowners include the following:

  1. The Consultation Charge Trick. A homeowner sends a question or concern to the board or management, often regarding something routine like a dispute over enforcement, architectural review, or fines. Rather than respond directly, the board sends the question to its attorney and gets a memo back. Then, without any hearing or legal process, the board adds a charge to the homeowner’s account to cover the attorney’s time. There’s no warning. No due process. Just a fee. And depending on how long the attorney spent, the fee can range from a few hundred dollars to over a $1,000. [Sometimes, the HOA attempts to couch the charge as an “enforcement consultation” or “legal review,” but it’s just an excuse to make you pay for a lawyer that you didn’t hire. Unless your CC&Rs expressly allow the HOA to pass along legal expenses like this (and most do not), the charge is illegal.
  2. The Pre-Hearing Legal Fees. Some HOAs charge their members for attorney time spent on a disciplinary matter. These charges often appear after the HOA sends a formal hearing notice accusing A homeowner of violating a rule. Even though the law requires that hearing notices be sent in writing at least 10 days in advance, and that homeowners be given the opportunity to appear and respond, some boards try to make homeowners pay for the attorney’s time drafting the letter or preparing for the hearing before any finding has been made. Even in the rare cases where an HOA’s CC&Rs expressly authorized passing on pre-litigation legal fees, doing so to a homeowner who hasn’t bee found to have committed any wrong is almost certainly going to be deemed illegal.
  3. Post-Hearing Legal Fees. Some HOAs, typically ones like the ones described in #2 above, also try to hold homeowners responsible for post-hearing legal fees. For example, if the board later holds the hearing and rules against a homeowner, they may then charge that homeowner additional legal fees for drafting the follow-up notice. In some cases, they might even charge the homeowner for having the attorney attend the hearing. Here too, unless your CC&Rs expressly allow the HOA to pass along legal expenses like this (and most do not), the charge is illegal.
  4. Legal Fees Incurred After IDR, ADR, or Settlement. In some cases, a homeowner and the board resolve a dispute through informal means, either during Internal Dispute Resolution or following a formal mediation (i.e., settlement talks before a paid, neutral mediator). These fees are often couched as “cost recovery” or “reimbursement,” and unless the parties expressly discussed those charges and they were agreed to as part of the settlement, the board has no right to recoup them.
  5. Legal Fees Disguised as General Assessments. This tactic affects everyone. Instead of charging a specific homeowner for legal fees, the board simply inserts a line item into the next budget or assessment cycle and spreads the legal bill across the community. Often labeled “enforcement costs” or “legal services,” these charges are never explained. The HOA doesn’t specify what the legal work was for, which members it related to, or whether any due process occurred. They just spread the cost across all units. Again, unless the CC&Rs expressly authorize such pass-through legal billing, this practice violates the law.

Understanding these tactics is the first step. But recognizing them isn’t enough. To protect your rights, you also need to know exactly how to respond when one of these charges shows up on your statement.

If your HOA adds legal fees to your statement, and you haven’t been taken to court, found liable, and ordered to pay those fees, then you need to take immediate action. California law gives you specific legal rights, but you must assert them.

  1. Request an Itemized Invoice. If your HOA adds a legal fee to your account, and you suspect it’s an improper charge, you should request an itemized invoice from the association. You’re not asking for confidential details about what the attorney said or advised—that information will likely be redacted. What you’re asking for is confirmation that the work was actually performed, how much time was billed, and whether the charge corresponds to a real expense. Even if you already know the charge is unlawful (because your CC&Rs don’t authorize pre-litigation fees), this step forces the HOA to produce documentation that may help you challenge the charge later.
  2. Demand Legal Authority. Send a written request asking the HOA to identify the exact provision in the governing documents that allows the HOA to charge you legal fees in the absence of a court ruling. In short, you want the HOA to explain the basis of its authority to charge you for such legal fees. If your HOA refuses to provide such authority to you, or can’t, then it’s almost certainly an illegal charge.
  3. Dispute the Charge in Writing. Once you’ve gathered your documents, send a formal dispute letter challenging the charge. Keep a copy for your records. But pay the charge. Remember, California law doesn’t recognize a homeowner’s right to offset, and payment of a fine or assessment under protest does not constitute a waiver of any of your rights.
  4. Consider Filing a Small Claims Lawsuit. If the HOA won’t reverse the charge, and the amount is under $12,500, you can sue in small claims court to recover it. You don’t need an attorney, and judges are generally receptive to clear statutory violations. Bring your documentation, your written dispute, and a copy of your governing documents. Show the judge that no lawsuit was filed, no arbitration occurred, and no language in the CC&Rs authorized the charge.
  5. Notify Your Fellow HOA Members. If this happened to you, it probably happened to others. Under Civil Code section 5200, you have the right to request a copy of the HOA’s membership list. Use that to email or contact your neighbors. Explain what happened. Share the law. And ask if has happened to them too. Boards often back down when they realize multiple owners are informed and organized.

While these steps can help you fight back against improper charges and put your HOA on notice, they’re only effective if you act promptly.

CONCLUDING THOUGHT

When your HOA tries to charge you for legal fees, don’t assume it’s valid. If your CC&Rs don’t explicitly authorize your HOA to pass pre-lawsuit attorneys’ fees onto you, in the absence of a lawsuit in which you lost, coupled with a judge’s order granting the HOA its attorneys’ fees, your HOA is not entitled to one dime.

California law protects homeowners from exactly this kind of abuse. But that protection only works when you assert it.

Push back. Ask questions. Demand documentation. And if they still try to make you pay, call us at MBK CHAPMAN and we’ll set your HOA straight.