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If I sue an HOA is small claims court and regular court for things like
breach of contract or breach of fiduciary duty, can I be made to pay their
attorney fees if I lose? What if their attorney is provided by their
Asked on March 17, 2019 under Real Estate Law, Texas
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 2 years ago | Contributor
1) Breach of contract: while there is no inherent right for the winner to recover legal fees in a breach of contract action, if the contract itself states that they can get legal fees, they can. Such a provision providing for legal fees is valid and enforceable.
2) Courts have certain "equitable," or essentially fairness-based, powers to aware legal fees if the losing side's conduct was sufficiently unfair or improper. So again, while a breach of fiduciary duty case doesn't automatically or necessarily result in an award of attorney's fees, if the breach were sufficiently egregrious, it is possible the court might award fees.
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