Bill Text: HI SB573 | 2010 | Regular Session | Introduced

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Bill Title: Attorneys' Fees; Condominiums; Association

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced - Dead) 2009-05-11 - Carried over to 2010 Regular Session. [SB573 Detail]

Download: Hawaii-2010-SB573-Introduced.html

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Report Title:

Attorneys' Fees; Condominiums; Association

 

Description:

Clarifies that Hawaii law relating to the recovery of attorneys' fees in actions in the nature of assumpsit does not apply to common law tort, breach of fiduciary duty, and statutory causes of actions brought by a condominium unit owner against an association.

 

 

THE SENATE	S.B. NO.	573
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO ATTORNEYS' FEES.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  Section 514B-157, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  If any claim by an owner is substantiated in any action against an association, any of its officers or directors, or its board to enforce any provision of the declaration, bylaws, house rules, or this chapter, then all reasonable and necessary expenses, costs, and attorneys' fees incurred by an owner shall be awarded to [such] the owner; provided that no [such] award shall be made in any derivative action unless:

     (1)  The owner first shall have demanded and allowed reasonable time for the board to pursue [such] enforcement; or

     (2)  The owner demonstrates to the satisfaction of the court that a demand for enforcement made to the board would have been fruitless.

     If any claim by an owner is not substantiated in any court action against an association, any of its officers or directors, or its board to enforce any provision of the declaration, bylaws, house rules, or this chapter, then all reasonable and necessary expenses, costs, and attorneys' fees incurred by an association shall be awarded to the association, unless before filing the action in court the owner has first submitted the claim to mediation, or to arbitration under subpart D, and made a good faith effort to resolve the dispute under any of those procedures.

     Section 607-14 shall not apply to this subsection."

     SECTION 2.  Section 607-14, Hawaii Revised Statutes, is amended to read as follows:

     "§607-14  Attorneys' fees in actions in the nature of assumpsit, etc.  (a)  In all the courts, in all actions in the nature of assumpsit and in all actions on a promissory note or other contract in writing that provides for an attorney's fee, there shall be taxed as attorneys' fees, to be paid by the losing party and to be included in the sum for which execution may issue, a fee that the court determines to be reasonable; provided that the attorney representing the prevailing party shall submit to the court an affidavit stating the amount of time the attorney spent on the action and the amount of time the attorney is likely to spend to obtain a final written judgment, or, if the fee is not based on an hourly rate, the amount of the agreed upon fee.  The court shall then tax attorneys' fees[, which] that the court determines to be reasonable, to be paid by the losing party; provided that this amount shall not exceed twenty-five per cent of the judgment.

     (b)  Where the note or other contract in writing provides for a fee of twenty-five per cent or more, or provides for a reasonable attorney's fee, not more than twenty-five per cent shall be allowed.

     (c)  Where the note or other contract in writing provides for a rate less than twenty-five per cent, not more than the specified rate shall be allowed.

     (d)  Where the note or other contract in writing provides for the recovery of attorneys' fees incurred in connection with a prior debt, those attorneys' fees shall not be allowed in the immediate action unless there was a writing authorizing those attorneys' fees before the prior debt was incurred.  "Prior debt" for the purposes of this section is the principal amount of a debt not included in the immediate action.

     (e)  The [above] fees provided for by this section shall be assessed on the amount of the judgment exclusive of costs and all attorneys' fees obtained by the plaintiff, and upon the amount sued for if the defendant obtains judgment.

     (f)  Nothing in this section shall limit the recovery of reasonable attorneys' fees and costs by a planned community association and its members in actions for the collection of delinquent assessments, the foreclosure of any lien, or the enforcement of any provision of the association's governing documents, or affect any right of a prevailing party to recover attorneys' fees in excess of twenty-five per cent of the judgment pursuant to any statute that specifically provides that a prevailing party may recover all of its reasonable attorneys' fees.  "Planned community association" for the purposes of this section means a nonprofit homeowners or community association existing pursuant to covenants running with the land.

     (g)  This section shall not apply to a claim for attorneys' fees in actions under section 514B-157(b) incurred by an owner of a condominium for any common law tort, breach of fiduciary duty, or statutory cause of action, including but not limited to, claims under chapter 480, brought by the owner against the association, any of its officers or directors, or its board to enforce any provision of the declaration, bylaws, house rules, or chapter 514B."

     SECTION 3.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 4.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________