My time of trial

On HOAs, legal traps and worthy suffering

I am not one to live in fear. Most criticism, hostility or threats of libel suits I take in stride.

But I was brought down by worry last year over an issue I have not shared with readers: the possibility of facing a jury trial without representation. Arguing a point on paper or in person is one thing, but I knew facing cross examination by an attorney knowing the law and tricks of the trade would not be pretty. My lawyer friends advised against going it alone, but reaching for a life raft and paying an attorney thousands of dollars presented another problem. The cost could eat up more than the value of my claim.

I sued the homeowners association of Old Forestry Commons at Northwest 28^th and Upshur streets, where Joleen and I had lived for 32 years. In preparing our unit for sale, many structural problems were uncovered, including water damage and dry rot in the wall in my office. Only when our painter noticed faint stains and traced them to their source did anyone know the scope of damage.

In condominiums, generally, the HOA is responsible for roofing, siding and the exterior, while unit owners are responsible for the interior. Interior damage caused by water intruding from the outside is the HOA’s fault. The damage in this case extended to the adjoining unit, further complicating the affair.

The HOA president toured our home and pooh-poohed my list of concerns, such as a large buildup of moss on our roof and a sliding door installed by the HOA that had warped over the years due to improper installation. The HOA was willing to patch the deck, but that was all. No one from the HOA or its management company was even interested in looking at the damage inside the wall. The president advised me to fix everything at our expense and then submit a claim to the HOA.

Eventually we did that. But at the HOA’s insistence, we had to first submit claims on our homeowners’ policy. That involved separately filed claims for each defect, complicating and delaying things about three months. We hired a major remediation company to take potentially hazardous materials to a laboratory and fully remove the mold in the attic and rebuild the office wall from inside out. All of this was not cheap, nor was it fast. Work began in January 2023 and was not completed to the point where we could put the unit on the market until mid-September. Repairs and remodeling cost nearly $100,000 and that came atop buying a new condo and handling all costs associated with covering the mortgage, HOA dues and taxes of the old unit we were trying to sell. Every month we were putting out about $4,000 in fixed costs plus piles of bills from four contractors.

All this was eating through most of our savings and investments, and with no certainty of a sale date, no end was in sight. Any relief hoped for from our insurance and the HOA came to nothing. We covered all expenses, including to the adjacent unit, out of pocket because time was of the essence. Delaying a sale was always the greatest peril. (The Upshur unit sold in December.)

Our HOA officers could easily assess our financial pit. Our 21-year-old car was breaking down before their eyes as we were unable to replace it or repair the dents and scrapes. They knew we were maintaining two properties at once.

The HOA’s attorney offered to settle for $7,000. Many times I regretted turning it down. I could not stomach the thought of accepting a concocted figure apparently based on our weak bargaining position. Our provable losses from the leak the HOA had acknowledged was its responsibility were nearly $10,000. Other items may have been open to legitimate debate, but repairing the consequences of the deck leak should have been automatic.

Learning that attorneys are not interested in condo cases involving such modest (for them) sums, I took it to Small Claims Court despite its $10,000 maximum recovery cap. While $7,000 in the hand might seem better than $10,000 in the bush, we wanted a decision rendered by a neutral third party, even if it might turn out to be no more than the HOA’s offer. A principle was involved.

Small Claims Court provided a new round of frustration. Just serving papers to the defendants took months. The longtime president of the HOA refused to accept the letter. After finally overcoming that obstacle, the HOA’s attorney exercised his prerogative to move the case to a jury trial in Civil Court. We had 10 days to respond or the case would be dismissed. We might even have to pay their legal fees.

Figuring out how to produce a legal summons was waking me up at night, capping the worst extended period of stress in my life. Why did I have to go through this? My energies are better spent putting out a newspaper every month, something I know how to do.

I had recently read “Man’s Search for Meaning” by Viktor Frankl and found his call to “be worthy of your suffering” enlightening. This ordeal was not a distraction from my career mission—it was its essence. Challenging arbitrary, unaccountable power crushing those without a voice has been my cause from the start. I have written about bullying behavior from the behind the protections granted journalists. If I could say, “I feel your pain,” it has been mostly in the figurative sense.

So I carried my homespun summons to the Multnomah County Courthouse, my seventh such trip in this saga, and filed it. That’s all it took. The HOA’s attorney asked for more time but never countered. We were entitled to a default judgment. The HOA’s insurance company offered to pay the full claim. I insisted on including our court fees and a $345 “prevailing party fee.”

We did not prevail on the strength of my arguments (which were never heard by a court) or the skill of my maneuvers. In fact, I barely stumbled across the finish line. We won because we did not give up, a worthy lesson for all suffering underdogs.

As I imagined closing arguments I would make to a jury, I pulled together these thoughts. I did not have to finish preparing that speech, but I know my last three words were going to be, “Not in America!”