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Ruling Quashes Lingering Questions on Partial Payments to Condo Associations (FL)

Two years ago a ruling by the state’s Second District Court of Appeal created a major wrinkle in the acceptance of partial payments by condominium associations when the payments had been endorsed and presented as full and complete remittances of

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The Earth Movement Exclusion: How Does it Affect Construction Defect Cases?

One of the biggest considerations for parties on both sides of any lawsuit is whether insurance coverage will apply to the plaintiff’s claims. This is especially true in construction defect cases, where the cost of repairing the alleged damage can

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Fla. App. Court (2nd DCA) Holds Non-Party HOA Not Subject to Foreclosure, HOA Lien Not Limited

The District Court of Appeal of the State of Florida, Second District, recently reversed a summary judgment in favor of a mortgagee in two consolidated actions for declaratory and injunctive relief regarding the extent of the mortgagee’s liability for unpaid

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Homeowners Association/Reasonableness Of Fees/Section 1717: $25,614 Post-Judgment Enforcement Fee Award To HOA Affirmed On Appeal

The attorney for the prevailing homeowners association (HOA) did something very smart in Bryan Ranch Homeowners Assn. v. Lawrence, Case No. A147659 (1st Dist., Div. 1 Sept. 16, 2016) (unpublished), which we will now describe.  There, a homeowner and HOA

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Important Ruling for Associations Seeking to Foreclose in Advance of Lenders

Community associations and their attorneys are applauding the recent ruling by the Fourth District Court of Appeal in Jallali v. Knightsbridge Village Homeowners Association, which eliminates an unintended roadblock that was being used to derail association foreclosure cases throughout the

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Fundamentally Altering the Employee/Employer Relationship between Community Associations and their Management Companies & Independent Contractors

Until last year, condominium and homeowner associations and their management companies understood the relationship between an employer and its employees and who would be considered the employer of those employees. However, a 2015 ruling by the National Labor Relations Board

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The North Carolina Court of Appeals Says… Not Much in its Recent HOA Cases

As homeowners’ association and commercial real estate attorneys, we typically hold our breath when the North Carolina Court of Appeals issues new opinions (“opinions” is the term it uses to refer to its case decisions). While the judges are all

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No Good Deed Goes Unpunished: Sanchez v. Cobblestone Homeowners Ass’n (NC)

In the case of Sanchez v. Cobblestone Homeowners Ass’n of Clayton, Inc. 2016WL4598554 (September 6, 2016), the defendant Cobblestone HOA (HOA) informed plaintiff that her property was not included in the HOA declaration. Accordingly, she was not required to pay

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New Florida Foreclosure Case May Lead to Less Participation and Greater Risk for Real Estate Investors

On August 24, 2016, the Fourth District Court of Appeal issued an opinion in Ober v. Town of Lauderdale-by-the-Sea, No. 4D14-4597, 2016 WL 4468134 (Fla. 4th DCA August 24, 2016) that is likely to have broad implications on Florida’s foreclosure

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Business Judgment Rules does not Apply to Unauthorized Acts

The South Carolina Supreme Court held that association board decisions must be evaluated individually to see if the business judgment rule applied, and the business judgment rule did not apply when the board acted beyond its authority. Although this case

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Ninth Circuit Issued Ruling in Bourne Valley Court Trust v. Wells Fargo Bank, NA (NV)

Last week, the Ninth Circuit held, in Bourne Valley Court Trust v. Wells Fargo Bank, NA that Nevada’s super-lien priority statute, NRS § 116.310, prior to certain amendments enacted in 2015, was facially unconstitutional.  Nev. Rev. Stat. 116.3116 establishes that

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New Jersey Supreme Court Issues Important Ruling for Developers and General Contractors Regarding Coverage Under CGL Insurance Policies

The New Jersey Supreme Court’s August 4, 2016 holding in Cypress Point Condominium Association, Inc. v. Adria Towers, LLC is the latest decision to fall in line with the “strong recent trend” by state and federal courts to recognize that

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NJ Supreme Court Decision Paves the Way for Condominium Associations in Transition to Recover Damages against the Developer and Subcontractors

On August 4, 2016, the New Jersey Supreme Court issued its decision in Cypress Point Condominium Association, Inc. v. Adria Towers, LLC, et al., which held that faulty workmanship by a subcontractor that causes property damage is a covered loss

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Bethany Marina Townhouses Ph. II Condo. Inc. v. BMIG, (DE)

After several years of not completing outstanding condominium units, and for nonpayment of boat-slip fees, the condominium association motioned for summary judgment against the developer. Based on the condominium declaration language and the formalizing of annexations by plan amendment, the

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Connecticut Supreme Court Clarifies Condition Precedent for HOA Foreclosure Actions

On April 26, 2016 the Connecticut Supreme Court issued a decision in The Neighborhood Association, Inc. v. Jill M Limberger, et al, 321 Conn. 29, which held that pursuant to Conn. Gen. Stat. §47-258(m)(1)(C), prior to any foreclosure action of

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New Jersey Supreme Court Finds Coverage Under a Developer’s Commercial General Liability Policy for a Subcontractor’s Faulty Workmanship

On August 4, 2016, the New Jersey Supreme Court issued a unanimous decision in a case regarding insurance coverage that could have lasting impact on developers, contractors, and subcontractors. In Cyprus Point Condo. Ass’n, Inc. v. Towers, 2016 N.J. LEXIS

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Deed Holder Not Liable for Condo Accident, Panel Rules

A Manhattan appeals court has ruled that the building deed holder and owner of certain units in a Manhattan condominium building should be dismissed from a lawsuit brought by a man who fell from unsecured scaffolding in the building’s boiler

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Mass. SJC Holds HOA/COA May Obtain Successive 6-Month Priority Liens for Unpaid Common Expenses

The Supreme Judicial Court of Massachusetts recently held that a homeowners association may establish and enforce multiple contemporaneous liens for unpaid common expenses, each with a six-month period of priority over the first mortgage, by filing successive legal actions.   Read

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Judge Rules Against Beach Condo Board That Balked

A rundown beachfront property waiting for redevelopment may soon turn from eyesore to tourist destination in one of Miami Beach’s most happening areas.  Nestled between Collins Avenue and the Miami Beach Boardwalk, the All Seasons Condominium has dangled between a

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Arbitration of §553.84 Claims Under Home Warranties (FL)

One of the most common statutory claims in construction defect litigation arises under section 553.84, Florida Statutes, for failure to comply with the Florida Building Code. Many homeowner warranties require arbitration, but how do such provisions affect 553.84 claims, subsequent

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Nevada Fed. Court Denies Class Cert. on ‘Ascertainability’ Grounds, Confirms Fannie/Freddie Liens Not Extinguished by HOA Foreclosure

The U.S. District Court for the District of Nevada recently confirmed that a homeowner association’s foreclosure of its superpriority lien cannot extinguish a property interest of Fannie Mae or Freddie Mac while those entities are under the Federal Housing Finance

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Reductions in Property Value Due to the Presence of Construction Defects

Last month the Oregon Supreme Court recognized and seemingly affirmed a strategy to reduce taxable property value due to the existence of construction defects. In Oakmont, LLC v. Oregon Dept. of Revenue (2016), the owner of an apartment complex valued

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Court finds that strata owners in Victoria cannot make rules to prevent the use of an apartment for short-term lettings (BC)

In a landmark ruling, the Supreme Court of Victoria has found that planning law, not strata law, is to govern short-term lettings of strata apartments.  Specifically, in Owners Corporation PS 501391P v Balcombe [2016] VSC 384, Justice Riordan found that

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Sobering Case for HOAs, Good One for Homeowners

Winchester Community Assn. v. Perrotta, Case No. C075562 (3d Dist. July 21, 2016) (unpublished) involved a situation where homeowners and an HOA got into a dispute over the review of submission of landscaping plans. Association won at the trial level

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Homeowners Associations – Business Judgment Rule

Palm Springs Villa II Homeowners Association, Inc. v. Erna Parth Court of Appeal, Fourth Appellate District (June 21, 2016).  The “business judgment rule” refers to a judicial policy of deference to the business judgment of corporate directors in the exercise

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Looking to Go Green? You May First Need to Check with Your Homeowner’s Association

If you live in a subdivision, your property is likely governed by a homeowner’s association (HOA) and a written declaration of covenants, conditions, and restrictions regarding the use, condition, and overall appearance and aesthetic of your home (“Declaration”). As the

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Associations can once again foreclose their assessment lien after a lender commences its foreclosure

Then, on June 29, 2016, Florida community associations had a very good day because of the 4th DCA’s opinion in the case of Jallali v. Knightsbridge Village Homeowners Association, Inc., in which Kaye Bender Rembaum was instrumental as legal counsel

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When the Buyer Is a Liar (NY)

In a case decided by an appellate court, a condominium board did what many have surely wanted to do: it sued to rescind the transfer of a unit based upon misrepresentations made by the purchaser.  Shortly after she entered into

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Significant win in Supreme Court of Virginia for local association with statewide benefit

On June 1, 2016, the Supreme Court ruled on a case decided by a Suffolk Circuit Court Judge regarding the taxation of open space in a homeowners association. The Court unanimously overturned the Circuit Court ruling finding that the judge

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Waivers of implied warranty strengthened for condo, home builders in Illinois

In two recent builder-friendly decisions, the First District and Supreme Court of Illinois have ruled that the standard conspicuous waiver of the implied warranty of habitability found in most builders’ sales agreements: 1) is effective even where not verbally “called-out”

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Florida’s 4th DCA Reverses Course – Community Associations Can Pursue Lien Foreclosure Despite Pending Mortgage Foreclosure

In March we published an article discussing the ruling in Jallali v. Knightsbridge Village Homeowners Association, Inc., 2016 WL 320601 (Fla. 4th DCA Jan. 27, 2016) wherein Florida’s Fourth District Court of Appeal held the filing of the notice of

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4TH DCA Corrects Prior Ruling and Clarifies Limited Application of Quadomain Decision

In what constitutes great news for community associations in Florida, the Fourth District Court of Appeals has clarified its prior ruling from 2012, U.S. Bank National Association v. Quadomain Condominium Association, Inc., which has been causing problems to community associations

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Regulating Fun: Can an Association Prevent Children From Playing Outdoors?

In July of 2011, the Greenbrier Village Homeowner’s Association of Minnetonka adopted rules and regulations which banned playing, picnicking, and sunbathing on lawns, sidewalks, landscaped areas, and parking areas. The rules also prohibited riding bikes, scooters, rollerblades, skateboards, and more

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Defeating an Application to be Added as a Defendant (BC)

The Owners, Strata Plan KAS 2971 v. American Bankers Insurance Company of Florida, et al., 2016 BCSC 581  Most actions commenced by a strata corporation[1] alleging negligence in the design and construction of their condominium development name multiple parties as

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Rhode Island Joins Lists of True Super-Priority Lien States for Condo Associations

In December 2015, the Rhode Island Supreme Court issued an opinion holding that Rhode Island’s Uniform Condominium Act provides a true “super-priority” lien to condominium owner associations (COAs) when a condominium owner is delinquent in paying the COA assessments.  

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According to One Bankruptcy Court, the “Wrangle Over Executoriness May be a Tale ‘Full of Sound and Fury, Signifying Nothing’”

After a dispute arose between a developer of a subdivision northeast of Albuquerque and a homeowners’ association (“HOA”) over the ownership of certain common areas in the subdivision, the HOA brought an action against the developer seeking to compel it

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Does The Business Judgment Rule Protect Directors Who Violate Governing Documents?

In Palm Springs Villas II Homeowners Ass’n, Inc. v. Parth, 2016 Cal. App. LEXIS 485 (June 21, 2016), the Court of Appeal considered whether the business judgment rule is available to a director who violates the corporation’s governing documents.  

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Nevada Supreme Court Clarifies Limits to its SFR Investments Decision

On June 22, 2016, in Wells Fargo Bank, N.A. v. Premier One Holdings, Inc., the Nevada Supreme Court rejected this argument, clarified that SFR Investments has limitations, and reversed and remanded a district court’s order granting a purchaser’s motion for

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Significant New Utah Case to Impact Associations

In a case released yesterday, Fort Pierce Indus. Park v. Shakespeare, 2016 UT 28, the Utah Supreme Court has clarified the standard of review to be applied in the interpretation of community association declarations. The case clarifies previously conflicting precedent

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Construction Defect Debate to be Heard by Colorado Supreme Court

The construction defects case of Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc., et al. has garnered national attention since the Colorado Court of Appeals’ decision in May 2015, and the subsequent petition for certiorari review to

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Assessment Collections in the Wake of the Huntington Case

Collecting assessments has never been an easy job. There are pitfalls lurking around every corner and innumerable requirements waiting to be missed. To ensure a clean foreclosure process, extreme diligence and care must be taken. In the wake of the

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Successor Property Owner Win In Homeowner Assessment Foreclosure Battle Did Not Entitle Owner To Fees (CA)

In Multani v. APB Properties, Case Nos. B260610/B265172 (2d Dist., Div. 7 June 13, 2016) (unpublished), plaintiff HOA were embroiled in a protracted battle against the HOA and successor property owners of the condominiums regarding the propriety of an assessment

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Does changing the locks on a foreclosed Delaware condo make the mortgagee liable for condo fees?

A decision of the Delaware Court of Common Pleas is worrisome for mortgage lenders. In 1401 Condominium Association v. Wells Fargo Bank, 2016 WL 1734104 (May 2, 2016), the court rejected Wells Fargo’s attempt to dismiss a condominium association’s claim

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Florida Appellate Court Rules “Safe Harbor” Liability Does Not Include Interest, Late Fees, Costs, Attorney Fees Or Other Charges

For the past few years, trial courts have increasingly issued rulings limiting what charges were included in a “safe harbor” calculation of a bank’s post-foreclosure liability to community associations. However, aside from the federal case of United States v. Forest

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Community Democracy in Cayman Islands’ Strata Corporations

A recent decision of the Grand Court may affect role of developers of strata corporations in the Cayman Islands, particularly where the strata development forms part of a larger resort complex, perhaps incorporating timeshare apartments or a hotel.    Read

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NH Supreme Court upholds members-only beach access

The New Hampshire Supreme Court has ruled that residents of the exclusive Wentworth By The Sea homeowners association have the right to cross one of the 100 private properties comprising the association in order to access the beach.     Read

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MN Court: No expectation of privacy in condo buildings

If a police officer enters your secured condominium building without a warrant and a drug-sniffing dog outside your door detects the presence of drugs, is it an illegal search?  No, a divided Minnesota Court of Appeals ruled Tuesday.   Read the

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Michigan Court of Appeals rules that Unincorporated HOA may govern under Declaration

In Suttons Bay Yacht Village Condominium Association, et. al. v Board of Representatives of Port Sutton Community, et. al., Docket No. 325327 (May 19, 2016) (Unpublished Opinion), the Michigan Court of Appeals held that an unincorporated voluntary association had legal

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To Pay or Not To Pay Post-Judgment Attorneys’ Fees After an Eviction

A recent decision by the Illinois Appellate Court ruled that a condominium unit owner must pay post-judgment attorneys’ fees (in addition to post-judgment common expenses) before he or she can vacate the judgment and regain possession of his or her

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Condo Owner Ordered to pay $20,000 in Costs After Unsuccessfully Suing Condo Corporation for Harassment

In a recent Small Claims Court case, Wexler v. C.C.C. No. 28, a condominium corporation that had to undertake enforcement measures to get an owner to comply with the condominium documents and the Condominium Act, 1998 (the “Act”) found itself

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