Owner’s Refusal to Participate in Arbitration Results in Award of Attorney’s Fees to Neighbor

This case concerns a dispute between neighboring property owners over a retaining wall between their respective properties that was deemed a “party wall” in their homeowners’ associations’ governing documents. One of the owners contended the wall was not a party wall because it was not constructed on the property line between their respective properties, but that contention was not consistent with language contained in their homeowners’ association’s declaration.

The neighbors on one side contended the retaining wall was a party wall in which both neighbors had equal rights and requested that the other neighbors participate in arbitration concerning the dispute in accordance with other provisions contained in the declaration. The request was refused thereby creating a need for the filing of a lawsuit to address the issue as to whether or not the retaining wall was a party wall.

A lawsuit for declaratory relief was filed seeking a judgment that the subject retaining wall was a “party-wall” as defined by the homeowners’ association’s declaration along with an award of attorney’s fees based on: