Case Discussions

Back to homepage

Two New District Court Of Appeal Cases – Third Party Purchaser Assessment Liability And Fining Notice Requirement (FL)

If your homeowners’ association has not updated its declaration’s assessment collection provisions, then your association might be giving away its otherwise collectable assessment revenue! The problematic declaration provisions are similar to the following: “The sale or transfer of any Lot

Read More

Court Can’t Ban Resident From Discussing HOA Online–Fox v. Hamptons at MetroWest Condos

This is the third time this year I’m blogging about homeowners’ associations suppressing online speech (see my posts on the Revock and Milazzo cases). I’m pretty sure HOA online censorship is a growth industry (indeed, my CRFA primer calls out

Read More

Court reverses restriction on man’s blogging about his condo association, management company and neighbors

From today’s opinion of the Florida Court of Appeal in Fox v. Hamptons at Metrowest Condominium Association Inc., which strikes me as generally quite right:   Read the article……………

Read More

Subcontractor’s Alleged Negligence Was “Occurrence,” Seventh Circuit Says

The U.S. Court of Appeals for the Seventh Circuit, affirming a decision by the U.S. District Court for the Northern District of Illinois, has ruled that a subcontractor’s alleged negligence was an “occurrence” for purposes of a commercial general liability

Read More

Are Free Elections Guaranteed in New Jersey’s Planned Communities?

Governor Chris Christie recently signed a bill that changes how elections in Fair Lawn’s Radburn neighborhood are run — which will impact the approximately 7,000 common interest communities in New Jersey. The so-called “Radburn Bill” changes how residents are elected

Read More

Regarding the Radburn: New Law Enhances Voting Participation Rights in New Jersey Community Associations (NJ)

On July 13, 2017, New Jersey Governor Chris Christie signed into law P.L. 2017, Ch. 106 (S-2492/A-4091). The new law makes significant changes to the Planned Real Estate Development Full Disclosure Act (“PREDFDA”), N.J.S.A. 45:22A-43 et seq., with respect to

Read More

Developers’ Rights Decisions: Puzzling, Perturbing, and Problematic

Litigation is unpredictable. That’s no surprise to anyone who fights court battles regularly. It is also a theme reflected in three recent court decisions dealing with developer rights.  In the first case, Condominiums at Lilac Lane v. Monument Garden, LLC,

Read More

California’s Anti-SLAPP Statute: A Potent, Yet Confounding, Weapon

Lawsuits designed to chill the valid exercise of the constitutional right of free speech or the right to petition, denominated as “strategic lawsuits against public participation” (or “SLAPP” suits), have taken on increasing significance over the last several decades. The

Read More

Nevada HOA Super-Priority Litigation Update: Nevada Supreme Court Rules in Favor of Lenders on Standing Issue

The Government-Sponsored Enterprises (GSEs) and their servicers scored a significant victory last week in the Nevada Supreme Court. In Nationstar Mortgage, LLC v. SFR Investments Pool 1, LLC (Case No. 69400), the court held that mortgage servicers have standing to

Read More

Illinois Appellate Court Clarifies Palm Decision Regarding Association Collections

In Lake Point Tower Condominium Ass’n v. Waller, 2017 IL App (1st) 162072, decided on June 28, 2017, the Association filed a forcible entry and detainer action against Defendant to obtain possession of Defendant’s condominium. Subsequently, Defendant filed a motion

Read More

Appeals court rules construction defendants not liable in Miami injury case (FL)

The 3rd District Court of Appeal has affirmed lower court rulings of five summary judgments in cases in which a woman alleges she was injured at a condo community due to negligence in repairing the sidewalk.  The case centers on

Read More

Court Concludes Rental Restrictions are Reasonable (CA)

Recently, many residential common interest developments have experienced an influx in the number of short-term rentals within their community. This problem is exacerbated by the increased popularity of websites such as Airbnb and HomeAway. Although profitable, short-term rentals have a

Read More

MD Highest Court Holds That Condos May Not By Rule Suspend A Unit Owner’s Access To Common Elements For Delinquent Assessments

The Maryland Court of Appeals has invalidated a rule adopted by a condominium to suspend access to common elements for unit owners who are delinquent in paying assessments. In an opinion issued on June 23, 2017 in the case of

Read More

Supreme Court Leaves Standing Wells Fargo Win on Nevada Lien Law

The U.S. Supreme Court left standing a federal appeals court ruling that could help Wells Fargo and other major banks affected by a Nevada statute covering homeowners’ association liens ( Bourne Valley Court Trust v. Wells Fargo Bank N.A. ,

Read More

Court rules that Michigan HOA cannot collect assessments after restrictive covenant expires

In Deghetto v Beaumont’s Seven Harbors White and Duck Lack Association, issued June 22, 2017 (Docket No. 330972) (Unpublished Opinion), the Michigan Court of Appeals recently ruled that a homeowners’ association could not continue to collect assessments after the restrictive

Read More

What Should Condominium Associations Do After Cypress Point? (NJ)

It has been several months since the New Jersey Supreme Court decided Cypress Point Condo Ass’n v. Adria Towers, LLC.  The issue in Cypress Point was whether rain water damage caused by a subcontractor’s faulty workmanship constituted “property damage” caused

Read More

Condominium Association Cannot Collect Unpaid Fees from Lender’s Assignee (NJ)

On June 6, 2017, the New Jersey Appellate Division ruled that a foreclosing mortgagee is not liable for unpaid condominium maintenance fees simply because it winterized the unit and changed the locks.  In the published decision Woodlands Community Association Inc.

Read More

Business Judgment Rule Doesn’t Apply When the Board Acts Outside its Authority

Is an HOA Board of Directors (“Board”) entitled to protection under the Business Judgment Rule (“BJR”) when it applies an unambiguous view restriction contained in the governing documents in a manner other than written?    Read the article…………….

Read More

NJ App Div Holds Foreclosing Lender Who Simply Winterized and Secured a Condo Is Not a Mortgagee in Possession and Not Responsible for Condo Fees

In a noteworthy decision for New Jersey lenders approved for publication, the New Jersey Appellate Division recently held that a lender who simply winterizes and secures an abandoned property in foreclosure is not deemed a mortgagee in possession subject to

Read More

Does a Foreclosure Complaint Prevent a Community Association from Enforcing Rules and Regulations? (NJ)

A New Jersey Chancery Court was called upon to rule whether the filing of a foreclosure complaint by a condominium association prevents the association from taking other actions to enforce its rules and regulations as they would apply to the

Read More

Supreme Court Rules in Vallagio: No Amendment for You! (CO)

This week, the Colorado Supreme Court announced Vallagio at Inverness Residential Condo. Ass’n v. Metro. Homes, Inc., 2017 CO 69, holding (1) the Colorado Common Interest Ownership Act (“CCIOA”) permits a developer–declarant to retain the right of consent to amend

Read More

Supreme Court Affirms Declarant Consent Required for Removal of Arbitration Provision for Construction Defect Claims

On June 5, 2017, the Colorado Supreme Court issued its ruling in Vallagio at Inverness Residential Condominium Ass’n, Inc. v. Metropolitan Homes, Inc. et al. (Supreme Court Case No. 15SC508).  The Supreme Court affirmed the court of appeals and ruled:

Read More

Injunction Against Condo Owner Illustrates Just How Ugly Things Can Get

The old adage “don’t let one bad apple spoil the bunch” definitely applies in community association living. Unfortunately, conflicts between boards of directors and recalcitrant unit owners are par for the course in associations, so it is incumbent on the

Read More

Waiver of Attorney-Client Privilege in Bad Faith Litigation (SC)

The United States District Court has confirmed in a recent decision that in most circumstances, the attorney-client privilege will be waived in bad faith litigation in South Carolina. In Contravest, Inc. v. Mt. Hawley Ins. Co., the district court was

Read More

Colorado Supreme Court gives a boost to builders in construction defects battles

The Colorado Supreme Court gave builders a reason to cheer Monday, ruling that a homeowners association in Centennial was wrong to ignore a requirement that it first get consent from the developer before changing the way disputes over construction defects

Read More

HOA Fee Award Reversed Because HOA Elections Win Did Not Qualify For Award Under Frivolous Fee-Shifting Standard

Thompson v. Lakewood Hills Homeowners’ Assn., Case Nos. A144674/A146081 (1st Dist., Div. 5 May 19, 2017) (unpublished) highlights how the basis for fee entitlement can drive the result in a case. In a word, HOA was awarded fees/costs by the

Read More

Another Illinois Case Decides When an Asset Purchaser is Responsible for Liabilities as a Mere Continuation of the Seller

In our Risk Management Update of December 23, 2015, we discussed an Illinois case that had to decide when a successor entity purchasing the assets of its predecessor became liable for the debts of the predecessor. (“Mere Continuation” Doctrine Applied

Read More

Online Harassment and Risk of Liability Under Fair Housing Laws

My colleagues and I have blogged about the importance of recognizing requests for reasonable accommodations/modifications, carefully and thoughtfully considering them, and properly responding in a timely manner. We like to think our posts on this topic have helped a few

Read More

Short-Term Rentals Not a Violation of Rules Against Business, Non-Residential Uses

In the case of Santa Monica Beach Property Owners Association v. David Acord, the association appealed a lower court’s order dismissing its action against the homeowners who rented their homes on a short-term basis. The association’s argument in both the

Read More

The Fall Of The Economic Loss Rule And Rise Of The Independent Tort Doctrine

In Florida, the economic loss rule previously prevented parties who allocated their risks and remedies in a contract from bringing a tort action. For many years, the economic loss rule only applied in two circumstances:      Read the article…………

Read More

Fair Housing Act – Emotional Support Animals

A very instructive case was decided last month in a Federal Appeals Court which will demonstrate almost everything not to do with respect to compliance with the Fair Housing Act relative to emotional support animals. This case dealt with a

Read More

Ruling Illustrates Unpredictability of Fair Housing Litigation for Associations

The appellate panel of the First District Court of Appeal was divided in its recent ruling involving a Fair Housing Act discrimination complaint by a wheelchair-bound unit owner against his condominium association. The majority and dissenting opinions in the case

Read More

Bank of America seeks declaratory relief regarding foreclosure proceedings on condo

A financial institution is seeking declaratory relief regarding a foreclosure on a San Francisco condo.  Bank of America NA filed a complaint on April 17 in the San Francisco County Superior Court against California Department of Consumer Affairs, Bureau of

Read More

Why Associations and Their Managers Need to Be Wary of Debt Collections Practices and Laws

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, and the trouble that associations and managers can get

Read More

Court: Senior Citizens Can Seek Punitive Damages in Religious Discrimination Suit Against HOA

A court has rejected the latest attempt by a homeowners’ association to shield itself from punitive damages for shutting down Bible studies and a Sunday worship service.   Read the article………….

Read More

Illinois Supreme Court Clarifies Snow & Ice Removal Act

Decided by the Illinois Supreme Court on December 1, 2016, Murphy-Hylton v. Klein Creek Condominium et al. held that the immunity granted under the Illinois Snow and Ice Removal Act for the negligent removal of naturally accumulated snow and ice

Read More

When a Property Owner Association Approves Plans Then Rescinds Its Approval, Can It Be Held Financially Responsible? (CO)

The Supreme Court of Colorado answered that question in Mac McShane and Cynthia Calvin v. Stirling Ranch Property Owners Association, Inc. (2017 CO 38).  Mac McShane and his wife, Cynthia Calvin (“Owners”) bought property, hoping to build a multi-story home

Read More

PropLogix Wins Suit Against Condominium Association

PropLogix was granted a default judgment in a suit filed against a Kissimmee condominium association after the association failed to appear in court. (Case no. 2016 SC 4316)  In December, PropLogix sued Villas of Emerald Lake Condominium Association, Inc. in

Read More

Appeals court reverses summary judgment against homeowner (FL)

Florida’s 2nd District Court of Appeal has reversed a lower court’s decision to grant summary judgment in favor of a homeowners’ association.  The appeals court ruling follows a July 2016 decision by the 12th Judicial Circuit Court. The circuit court

Read More

Appeals Court Reverses Big Smoking Verdict Against Co-op (NY)

A year ago, state Supreme Court Judge Arthur Engoron sent shivers through New York City’s co-op community when he ruled that Susan Reinhard, a shareholder at the Connaught Tower co-op at 300 East 54 Street, was entitled to $120,000 in

Read More

Florida Supreme Court May Decide Fate of Liens Recorded After Foreclosure Judgments

Real estate investors, municipalities, and community associations may gain some clarity about post-judgment liens if the Florida Supreme Court decides to hear Ober v. Town of Lauderdale By-the-Sea, Case No.: 4D14-4597 (Fla. 4th DCA, January 25, 2017). The case has

Read More

Failure to Hold Formal HOA Board Votes Dooms Two Charlotte HOAs (NC)

There are times in the practice of homeowners’ association law when courts make rulings with which we as attorneys disagree but where an underlying principle or best practice is affirmed. A prime example is the N.C. Court of Appeals’ opinion

Read More

What your HOA Board Needs to Know Before You Attempt to Change Your Restrictive Covenants.

The North Carolina Court of Appeals recently rendered an opinion reiterating that all amendments to the restrictive covenants (“CCRs”) governing a planned community must be reasonable. As background, the existing law is that amendments to the CCRs must be reasonable

Read More

Construction Defect Statute of Repose: Post-Closing Punch-list Work May Delay Its Start

Florida’s Fifth District Court of Appeals is shaking up the construction defect statute of repose once again.[1] A recent 5th DCA opinion implies that the 10-year construction defect statute of repose does not start to run at the closing of

Read More

Homebuilders and Contractors Beware: Construction Defect Claims May Be Filed More Than 10 Years After Construction is Complete (FL)

A statute of repose sets a firm deadline by which a lawsuit may be filed after the occurrence of a particular event. Once the statute expires, a prospective defendant is no longer exposed to legal action. Florida has a ten-year

Read More

Insurance Coverage for Property Damage Caused by Defective Workmanship

One of the principal points of contention between insurers and insureds is whether defective construction work is, or can be, an occurrence, thereby triggering coverage.  The New Jersey Supreme Court has joined a growing number of jurisdictions holding that commercial

Read More

New Jersey Bankruptcy Court Finds Lien Held by Homeowners’ Association Is Subject to Modification

The United States Bankruptcy Court for the District of New Jersey recently overruled a creditor’s objection to the debtors’ proposed chapter 13 plan, rejecting the association’s argument that its claim is secured by a consensual lien and may not be

Read More

How a Miami Suit Grew So Contentious, No One Knew Who Won

After years of litigation, there’s finally a winner in a legal fight pitting a Miami condominium association against two unit owners over whether receivers can vote in place of delinquent unit owners.  The dispute grew so contentious it cycled through

Read More

From the Court to the Board: Lessons From Recent Decisions (NY)

Over the past few months there have been several interesting and insightful court decisions. Here are a few legal cases that provide some helpful lessons for boards and managers alike.   Read the article………….

Read More

Maryland Appeals Court Slams Owner’s Door

A homeowner’s unauthorized installation of a new entry door was slammed by a Maryland appeals court. The Maryland Court of Special Appeals ruled, in Spoon v. Deering Woods Condominium, that a Howard County condominium acted properly in requiring a unit

Read More