Attorney’s fees are a fact of life when you have to go to court. Normally, unless your purchase agreement/contract contains a provision for recovering these fees in the event that litigation becomes necessary, you’re going to have to pay your attorney yourself and you won’t be able to get that money back.
When consideration is given to how document and time intensive residential defect claims are to prosecute for the attorney hired by the purchaser, and therefore the level of attorney time needed to handle, builders do not always “offer” an attorney fee provision in their purchase and sale agreement with buyers of their residences.
There’s also an interesting but little known fact about homeowner’s associations in California formed to manage condominium and planned unit developments (also known as a common interest developments). Since the builder usually doesn’t enter into any sort of contract or agreement with the association, the association usually doesn’t have legal standing or the right to collect attorney fees when a litigation concerning construction defect claims associated with the common areas of the development has to be filed. On the other hand, when individual owners file residential defect claims, they may end up more successful in recouping legal fees in those instances when their purchase and sale agreement/contract with the builder has an attorney’s fees provision.
