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Can a Condo Association Recover Past-Due Amounts After Owner Files Bankruptcy?

When a condo owner in arrears on assessments declares bankruptcy, a condo association often expresses concern about the effect of the bankruptcy on its ability to collect pre- and post-bankruptcy assessments.  The bankruptcy code states that fees or assessments that

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Form Said ‘Mediation,’ But It Was Arbitration, Court Rules

An attempt to overturn an arbitration award based on one side’s claim that it believed it was engaged in mediation, not binding arbitration—an “unusual circumstance,” as the court put it—has failed.  “With the exception of the retired judge’s mistake in

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Michigan COA rules that Condo Association’s Insurance Policy may cover water damage resulting from construction defects

In Walters Beach Condominium Association v Home-Owners Insurance Company, unpublished opinion of the Court of Appeals, issued November 16, 2017 (Docket No. 335172), the Michigan Court of Appeals held that water damage caused by construction defects may be covered under

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Homeowner Association Not Bound by Buyers’ Arbitration Agreement With Builder

Claims by a homeowner association against a developer are not subject to arbitration agreements between the developer and individual homeowners, where the claims are pressed on the association’s own behalf, a New Jersey appeals court ruled Thursday in a published

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Nevada’s Clarification Regarding a HOA’s Representational Standing

On September 27, 2017, the Nevada Supreme Court issued a decision clarifying the prior version of NRS 116.3102(1)(d)1, under which numerous construction defect cases are pending in Nevada. NRS 116.3102(1)(d), at the time the Complaint was filed, allowed homeowners associations

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Trustees of Cambridge Point Condominium Trust v. Cambridge Point, LLC (MA)

In Trustees of Cambridge Point Condominium Trust v. Cambridge Point, LLC, No. MICV-2014-03136, 2016 WL 9753783 (Mass. Super. Nov. 18, 2016), appeal argued, SJC No. 2017-P-0113 (Mass. 2017), the trustees (“Trustees”) of the Cambridge Point Condominium (“Condominium”) Trust filed an

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Washington Appellate Court: Condominium Bylaws Amendment Is Invalid

A recent Washington unpublished opinion concerned the amendment of a condominium association’s bylaws.  The condominium’s declaration stated that amending the bylaws required the approval of a majority of the unit owners.  The bylaws were amended in 2015 without the approval

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And Your Association Thought Foreclosure Was Bad? The Consequences of Tax Sales & Tax Deeds For Community Associations (FL)

It is a scenario familiar to every association: an owner falls behind on his or her assessments and doesn’t get current, and the association initiates the lien recordation and foreclosure process. However, before the association can foreclose its lien and

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New Jersey Court: Continuous Trigger Ends When Nature of Damage Is Known

Last week, the New Jersey Appellate Division issued a decision that may have a significant impact on insurance coverage for progressive property damage claims in the state. In Air Master & Cooling, Inc. v. Selective Ins. Co. of Am., No.

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Unit Fire Increases Association Insurance Premiums

What happens when a fire caused within a condominium unit destroys that unit, some common area, and damages other units? It becomes an expensive situation for the association. Even though insurance should pay for all of the damages, the association’s

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Insurance Carriers Exclude Color Matching Requirements from Policies

The summer of 2017 saw a number of severe storms in the Midwest, with resulting insurance claims. As policyholders have made those claims, some have been surprised to see new provisions in their insurance contracts.  Things are not always black

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The Limits Of Exclusive Use Rights In Condominium Common Areas (MA)

It’s not unusual for condominium documents to set aside parts of the development’s common area for the exclusive use of particular units. This device allows the developer to offer a degree of privacy in decks, driveways, garages, attics, and similar

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Court Confirms Condo Board Member’s ‘Unfettered’ Rights to Access Books, Records (NY)

As litigants and lawyers have discovered the efficacy of enforcing statutory and common-law books-and-records access rights through summary proceedings, this trend has spread not only to the residential cooperative corporation context but also to an even more popular form of

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Santander Condominium Association, Inc. v. AA Construction 1 Corp., N.J. Super. App. Div.

Respondent hired nonparty to repair the façade of a condominium building on its property; the non-party subsequently entered into a subcontract with appellant to perform the work. Upon termination of the contract, appellant sought a demand for the unpaid balance

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Restrictive Covenants: The Impact on Washington Condo Owners

In 2017, the Washington Supreme Court issued a significant decision related to restrictive covenants affecting condominium units. It reaffirmed the importance of timely challenging of an amendment to condominium covenants, in particular for a restrictive covenant imposing a rental cap

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Court of Appeals upholds decision favoring POA (AR)

Arkansas Court of Appeals has upheld the Garland County Circuit Court decision in the case of Gene Garner, et al., vs. Hot Springs Village Property Owners Association board of directors, et al.  Appellants challenged four issues, including the two-tier assessment

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The Critical Importance Of Properly Serving A Construction Lien Claim (NJ)

So, you properly file your construction lien claim within the time allowed by the New Jersey Construction Lien Law (“CLL”), and then timely send out a copy of the lien by certified and ordinary mail to the address of the

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We’ve Got a Problem: Statute of Limitations on Long-Term Notes (FL)

A Florida Supreme Court justice Thursday issued a nearly five-page opinion to point out “the latest symptom of a more serious problem”—a misunderstanding over when the clock starts in foreclosure litigation with multiple defaults and suits.  The confusion centers on

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Attorneys present oral arguments in Garner lawsuit (AR)

Attorneys presented oral arguments before the Arkansas Court of Appeals Wednesday in a long-running lawsuit against Hot Springs Village Property Owners’ Association board of directors and the POA.  Representing appellants Gene Garner and Lynda Narug, attorney Phillip Montgomery of Hot

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Nevada Supreme Court Rules HOA Super-Priority Liens Can Be Revived after Release

Homeowners’ associations have a more robust tool for forcing mortgage lenders to pay delinquent assessments following a September 14 decision by the Nevada Supreme Court. Nevada HOAs have enjoyed a super-priority lien under NRS 116.3116 for nine months of unpaid

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Judge tosses key claims in Centennial suit (CO)

The Aspen-Pitkin County Housing Authority, the city of Aspen and Pitkin County are not responsible for hundreds of thousands of dollars in repairs needed to fix problems at the Centennial affordable-housing complex that include water infiltration and mold, a judge

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Wisconsin appellate court denies insurance coverage to a contractor because work was performed on a building that had synthetic stucco

A slew of lawsuits has plagued the construction industry regarding the use of exterior insulation and finish systems, also known as EIFS or synthetic stucco. Insurance companies were historically required to pay money towards those claims under standard commercial general

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Colorado Supreme Court Hears Oral Arguments in Case That Could Pose Threat to Metropolitan Districts

On September 20, 2017, the Colorado Supreme Court heard oral arguments in UMB Bank v. Landmark Towers Association, 2016SC455. The case was brought by the homeowner’s association of a condominium development regarding a TABOR election that took place several years

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Judge rejects attempts to end Ramapo Mountain Lakes lawsuit (NJ)

A Superior Court judge rejected attempts Thursday to put an end to a controversial dues lawsuit that has roiled a former summer resort community in Oakland since the beginning of the year.  Judge Christine Farrington denied a motion by Ramapo

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Privé Island Scores Yet Another Legal Victory With Judge Rulings (FL)

Privé at Island Estates, the iconic twin tower residential development on the last developable island in South Florida, announced its second legal victory, ruled by Miami-Dade Circuit Judge William Thomas, on September 20th with granted development access rights through the

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Case Alert: Emailed Notices of Foreclosure Under In Re Ackah (NC)

In re Ackah: Must Planned Communities Now Serve Notices of Foreclosure Hearing Via Email?  The North Carolina Court of Appeals issued an opinion on September 5, 2017, that appears to add an additional requirement for foreclosure trustees regarding the due

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New Jersey Supreme Court Clarifies Statute of Limitations in Construction Defect Cases

In The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisade, LLC, ___ N.J. ___ (2017), the plaintiff was the Condominium Association that brought suit based upon defects in the condominium building after the Association took over control

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Trial Court’s Refusal To Award HOA-Affiliated Individual Defendant Fees, As Against Voluntarily Dismissing Plaintiffs, Under Statutory Fee-Shifting Provision Reversed On Appeal

In Durack v. Wang, Case No. B276086 (2d Dist., Div. 7 Sept. 25, 2017) (unpublished), homeowners sued the HOA and several individual defendants for negligence and breach of fiduciary duty (among other claims), but referencing the CC&Rs in some portions

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Faulty Foreclosure Service Results in Lienholder Having to Pay Property Owner (NC)

When a lienholder starts a foreclosure, it usually is focused on getting money into its pocket. Yet a recent opinion from the North Carolina Court of Appeals (In re: Ackah – Sept. 5, 2017) should provide a warning to all

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Maryland Developer Declaration Does Not Establish Assessment Lien

A developer’s Declaration notifies the purchaser of the property of a potential lien for unpaid assessments, but is not sufficient to create an assessment lien, according to a recent decision of the Maryland Court of Appeals–the top state appeals court.

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Standing to Sue While Sitting on the Board

Standing is a party’s right to make a legal claim in Court. When the judge comes out to sit on the bench, she will read the cases and the parties or their attorneys come forward as called. “Standing” is the

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HOA Not Entitled To Fees Where Gist Of Successor Homeowner’s Suit Was Fraud Based (CA)

In Mims v. Park Hill on Pepper Avenue Community Association, Case No. E065990 (4th Dist., Div. 2 Sept. 13, 2017) (unpublished), successor homeowner initially sued HOA on various fraud-based claims based on the failure to provide her notice that the

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Justices: Condo Association Can’t Reset Clock on Construction Defect Claim (NJ)

The New Jersey Supreme Court ruled Thursday that a condominium association can’t restart the clock on the six-year statute of limitations for construction defects after acquiring a former rental property.  The justices reversed an Appellate Division ruling that found three

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Board Changes Its Mind – and Winds Up in Court (NY)

What happens when a co-op board approves an alteration project and then changes its mind? What usually happens is a lawsuit. Consider the case of Salvatore Moltisanti.  In 2012, Moltisanti purchased an apartment in the four-building 1,672-unit Co-op Village on

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5th Cir. Holds Threat of Lawsuit to Collect Partially Time-Barred Debt Did Not Violate FDCPA (TX)

In a split decision, the U.S. Court of Appeals for the Fifth Circuit recently decided that attorneys representing a condominium association did not violate the federal Fair Debt Collection Practices Act by threatening non-judicial foreclosure on debt that was partially

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Twin Creeks v. Sunset Ridge, 03-16-00653-CV (TexApp Dist 08/25/2017)

In this case of first impression, appellee sued appellant seeking a declaration that an amended restrictive covenant filed by appellant that required club membership was invalid as to condominium owners under the Uniform Condominium Act §82.0675(a) due to appellant’s failure

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Must communities retrofit for handicap accommodation

The question often arises as to whether condominium, cooperative and homeowners’ associations need to install wheelchair ramps, elevator or swimming pool lifts or redo common area bathrooms to accommodate handicap persons.  The general answer is that associations may have to

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Court case supports collection of unpaid fees (IL)

My Aug. 26 column “teased” that I would address in a future column the circumstances under which the purchaser of a foreclosure condominium at a judicial sale may be responsible for all unpaid sums due from the prior, foreclosed owner.

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Illinois App. Court (1st Dist) Holds 7-Month Delay in Paying Overdue HOA Assessments May Not Extinguish HOA Lien

The Appellate Court of Illinois, First District, recently reversed a trial court order granting summary judgment in favor of a mortgage servicer and against a condominium association (COA) holding that a material question of fact existed regarding whether the servicer

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Revisiting Claims for Breach of Implied Warranty of Habitability: Illinois Appellate Court

On February 17, 2017 the Illinois Appellate Court for the First District considered three consolidated appeals brought by a condominium association seeking damages for defects in the design and construction of a condominium building. Sienna Court Condominium Ass’n v. Champion

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Debt Collections Practices and Laws: Should They Concern Your HOA?

The fairly recent case of Agrelov v. Affinity Management Services, LLC, Case No. 15-14136, (11th Cir., November 9, 2016), is instructive for associations and their managers with respect to debt collections.  In that case, the homeowners were assessed a fine

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Snakebite Victim Waits While Insurance Companies Duke it Out in Court (FL)

The legal machinations involving three insurers duking it out in court over Florida premises liability is overshadowing the suffering of a Florida woman who has undergone various amputation procedures involving her lower extremities following a snakebite on the grounds of

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Fla. App. Court (5th DCA) Reverses Foreclosure Judgment That Excluded Interest, Escrow

The District Court of Appeal of the State of Florida, Fifth District, recently reversed final judgment of foreclosure entered in favor of a mortgagee that omitted interest and escrow amounts due, and remanded to the trial court to modify judgment

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Superior Court Explains The Personal Participation Doctrine (DE)

When is a corporate employee responsible for tortious conduct in that capacity? This decision answers that question in a very helpful way. For example, mere nonfeasance is not enough to impose liability on a corporate actor.   Read the decision (PDF)…………

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4/3 DCA Determines Civil Code Section 5235(c) Only Allows Costs Award To Prevailing HOA If Homeowner Action Is Frivolous (CA)

The Fourth District, Division 3 faced a first impression statutory interpretation of Civil Code section 5235(c), which provides that “[a] prevailing association may recover any costs if the court finds the action to be frivolous, unreasonable, or without foundation,” in

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Constantly Changing Condominium Laws (IL)

A recent opinion from the Illinois’ First Appellate District, Country Club Estates Condominium Assoc. v. Bayview Loan Servicing, LLC, 2017 IL App (1st) 162459, provides that “prompt” payment of assessments is required to extinguish presale assessments under the Condominium Property

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Fourth DCA Confirms Association Lien Foreclosure Valid Despite Pending Mortgage Foreclosure (FL)

Despite a slowing in the number of Florida mortgage foreclosure cases, many community associations still face situations where a foreclosing lender fails to timely complete its foreclosure resulting in the property sitting abandoned and not contributing financially to the community.

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HOA Winning $1,881 In Damages Against Homeowner Also Was Entitled To Attorney’s Fees Of $201,750 (CA)

We do not really need to get into the specifics of Mustafa v. Mountain View Park Homeownerss Assn., Inc., Case No. E063529 (4th Dist., Div. 2 Aug. 8, 2017) (unpublished), but the end result in sobering for purposes of our

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Recent Decision Limits Liability of Condo Sponsor’s Principal (NY)

On May 24, 2017, a New York appeals court dismissed construction defect claims against a condominium sponsor’s managing members and principals. The plaintiff Board of Managers sought to hold these individual defendants personally liable for the corporate sponsor’s breach of

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U.S. District Court Allows Association’s Claims To Proceed For Actions During Period of Developer Control (MD)

The United States District Court for the District of Maryland has denied a motion to dismiss filed on behalf of a developer, and allowed claims of a property owner’s association to proceed that concern actions taken while the board was

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