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HOA Losing Tree Trimming CC&R Properly Hit With $200,000 In Fees And $20,621.15 In Costs

We have explained that HOA – homeowner disputes can be costly. Especially where one party prevails, in this case the homeowner. In Lingenbrink v. Del Rayo Estates Homeowners Assn., Case No. D070966 (4th Dist., Div. 1 Mar. 22, 2017) (unpublished),

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Colorado finally corrects thirty-year old flaw in construction defect statute of repose

The Colorado Supreme Court has finally settled a decades-old conundrum surrounding the state’s construction defect statute of repose.  A statute of repose is similar to a statute of limitations insofar as both restrict the time a party can bring a

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Long Canyon Phase II and III Homeowners Assoc. v. Cashion, 03-15-00498-CV (TexApp Dist 03/03/2017)

Appellant, a homeowners association, alleged in a letter to owners Chris and Lisa Cashion that the Cashions damaged a drainage easement. The letter, part of a long-standing dispute, threatened fines and a lawsuit. The Cashions responded by suing for harassment,

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Association Deficits Don’t Excuse Developer From Funding HOA Reserves (FL)

For the developer of the Sullivan Ranch community in Mount Dora north of Orlando, it appears that its decision to stop funding reserves after it established the account and began funding it in 2007 has significantly backfired. The Fifth District

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Rulings Clarify Application of Safe Harbor Caps on Association Dues” (FL)

In Brittany’s Place Condominium Association v. U.S. Bank, the Second District Court of Appeal settled some lingering questions as to whether a lender or servicer that takes title to a residence via a mortgage foreclosure must also be the current

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Don’t forget your Declaration: Appeals Court confirms necessity of the Declaration and Covenants in collection actions

The First District Appellate Court confirmed that Associations must be careful to enter their Declaration and Covenants regarding Assessment default into the record in a lawsuit to collect Assessments. In Blackstone Condominium Association v. Speights-Carnegie, (Feb. 3, 2017), the Appellate

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ALLIED PROPERTY CASUALTY INSURANCE COMPANY v. METRO NORTH CONDOMINIUM ASSOCIATION

Allied Property and Casualty Insurance Company issued a commercial general liability policy insuring a subcontractor who worked on a multi-unit residential property owned by Metro North Condominium Association. In 2006 the Metro North property sustained extensive water damage caused by

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Handgun Regulation in Community Associations

An entire textbook and law school class could be devoted to the topic of handgun regulation. This article will focus on two recent United States Supreme Court (“Court”) decisions, briefly discuss some of the ways in which the Court’s decisions

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Illinois Supreme Court Agrees to Decide Whether Third Party Buyer is Liable for Delinquent Assessments to Mortgagee’s Subsidiary

According to Section 9(g)(4) of the Illinois Condominium Property Act, any purchaser of a condominium unit who acquires a property either at a foreclosure sale or by post-foreclosure purchase from the mortgagee must pay the last six months’ worth of

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Nevada Supreme Court Departs From Ninth Circuit Ruling And Finds HOA Lien Statute Does Not Implicate Due Process

On Jan. 26, 2017, the Nevada Supreme Court issued a 5-0-2 decision in Saticoy Bay LLC Series 350 Durango 104 v. Wells Fargo Home Mortgage, 133 Nev. Adv. Op. 5, holding that Nevada’s HOA “super priority” lien statute, NRS §

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Attorney’s Fees In Homeowners Association Disputes (CA)

Civil Code Section 5975(c) states: “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” There are a few things to note about this statute. First, this only applies to an

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Does The SLAPP Statute Apply To Homeowners Associations? (CA)

(Strategic Lawsuit Against Public Participation) statute is Code of Civil Procedure Section 425.16. When the SLAPP statute was first enacted in 1992, twenty four years ago, some people, believed that it would not apply to homeowners associations because the SLAPP

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Lesson Learned: What North Carolina Management Companies Should be Thinking About

In a recent post on a South Carolina Supreme Court case from just a few weeks ago I provided a quick breakdown of things that management companies in South Carolina must not do. As always, lessons learned from different jurisdictions

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Trio of Recent Decisions on the I v. I Exclusion Should Remind Policyholders to Annually Review the Language in Their Policy to Avoid Losing Coverage

D&O policies vary quite a bit from carrier to carrier, and language on “standard” exclusions can change from year to year. Accordingly, it is important to do a yearly review of your D&O policy to make sure your company has

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Texas High Court Finds for Insurer in D&O Coverage Dispute

The Texas Supreme Court recently ruled in favor of an insurer in a case that hinged on the applicability of an insured-v.-insured exclusion in the carrier’s directors and officers (D&O) liability policy.  The Court’s action reversed the ruling in Great

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Little Love Lost in Sedimental Affair

A lawsuit for damage to property must be timely filed to prevail in court. In Virginia, the statute of limitations for property damage is five years from accrual of the claim. When an owner suffers damage caused by a neighboring

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Invalid Board Does Not Have Authority to Bring Lawsuit on Association’s Behalf

The Appeals Court of Illinois recently held that an association’s board of directors does not have authority to bring a lawsuit on behalf of the association if it is not formed properly according to the condominium’s governing documents and the

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MI Court Validates Foreclosure Sale Under the Doctrine of Substantial Compliance

On February 14, 2017, the Michigan Court of Appeals issued an unpublished opinion in the matter of Miehlke v Bayview Condominium Association of Manistee, et al. The Miehlke case is important as a reminder that a defect in a foreclosure

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Judge turns away dismissal motion, says condo member averred legitimate breach of contract claim (PA)

A federal judge decided that one member of a Bucks County condominium association had raised a legitimate claim to breach of contract towards the other member of the association, with respect to the payment of electricity fees.  On Feb. 10,

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Court Narrows Defenses in Covenant Enforcement Action (FL)

When faced with an enforcement action by a community association, owners often argue the association is selectively enforcing the covenants. Some also argue the association waived its right to enforce because the association knew about the violation for a substantial

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Hovious v. Bridgewater Homeowners Association, Inc. (In re Hovious)

The bankruptcy court enters judgment in favor of the debtor and against the home owners’ association but does not award any damages. The debtor argued the HOA violated the discharge injunction when it attempted to collect post-petition dues from the

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California Court of Appeal Ruling Eliminates Strict Liability Standard for Supplier of Chinese Building Products

On January 26, 2017, the California Court of Appeal for the Fourth Appellate District, Division One, issued a 51 page ruling in Acqua Vista Homeowners Association v. MWI, Inc., D068406 (San Diego Superior Court No. 37-2009-00104348-CU-CD-CTL) which eliminated strict liability

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Construction Defect – Application of the Right to Repair Statute to Material Suppliers (CA)

Civil Code § 8951 et seq. (the “Act”) establishes a set of building standards pertaining to new residential construction and provides homeowners with a cause of action against, among others, material suppliers, for a violation of the standards(§§ 896, 936).

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Condominium Corporation Seeks Court Order Requiring Mental Examination of Unit Owner

In a recent case, TSCC No. 2395 v. Wong, a condominium corporation that was dealing with a unit owner whose behavior had become increasingly threatening, abusive, intimidating and dangerous, applied to the Court for an order that the unit owner

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Court Defers to Association’s Interpretation of its Bylaws (WA)

The Washington Court of Appeals recently held that an association’s board of directors was validly constituted and properly passed bylaw amendments, so the board (and the management company as the board’s agent) had the authority to charge and collect fines

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Michigan court rules in favor of condominium association in interpreting newly amended MCL 559.167 (SB 610)

The Oakland County Circuit Court held that the MCL 559.167, as amended by 2016 PA 233, does not recreate “need not be built” units that were eliminated under the prior version of MCL 559.167. The ruling will have an impact

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Board members immune from personal liability (TX)

Plaintiff condominium owners sued association and board members to restore their homes after hurricane and fire damage. when complex was instead demolished,. Trial court granted summary judgment in favor of board members, and severed the remaining claims against the association.

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Court Affirmed Dismissal Of Breach Of Fiduciary Duty Claims Against Condo Board Members

In Brown v. Hensley, a condominium complex was damaged by a hurricane, and the board of the complex allowed the complex to be demolished. No. 14-14-00981-CV, 2017 Tex. App. LEXIS 727 (Tex. App.—Houston [14th Dist.] January 26, 2017, no pet.

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Appeals court decides Centex must pay into HOA reserve (FL)

The 5th District Court of Appeal recently decided in favor of a pair of homeowners representing themselves in a case against their homeowner association at Sullivan Ranch.  According to a report by the Orlando Sentinel, Sara MacKenzie, who had only

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Legal Brief: Logan’s Reserve HOA v. McCabe (PA)

On January 4, 2017, the Pennsylvania Commonwealth Court confirmed that the Uniform Planned Community Act (68 PA.C.S.A. Section 5101 et seq) does NOT permit owners to withhold assessments where they are dissatisfied with the association’s performance.   In Logan’s Reserve

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9th Cir. Limits Scope of FDCPA ‘Enforcement of Security Interest’ Exception

The U.S. Court of Appeals for the Ninth Circuit recently held that a notice regarding overdue homeowners association (HOA) assessments contained language that overshadowed and conflicted with the homeowner’s federal Fair Debt Collection Practices Act debt validation rights.  Limiting the

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Appellate Court Overturns $24 Million Judgment for HOA in SB800 Case (CA)

The Court of Appeal for the Fourth Appellate District just overturned a $24 Million verdict in favor of a San Diego County HOA. Despite the jury verdict in favor of the HOA, the Court of Appeal overturned the verdict, and

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Condo Co-owner Magician Failed to Impress in Icy Slip-Fall Case (MI)

Although Michigan’s winter of 2016-2017 has been relatively mild so far, this is usually the season when attorneys see an increase in slip and fall accident claims due to snow and ice. However, Michigan case law that developed over the

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The Super-Priority Saga Continues – Nevada Supreme Court Holds That NRS 116’s Notice Provisions Are Constitutional (NV)

The Ninth Circuit sent shockwaves through the mortgage industry when it held that NRS 116—the statute allowing an HOA to impose a nominal super-priority lien that can extinguish a senior deed of trust when foreclosed—was facially unconstitutional under the Due

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OK to sue condo association for not granting access to dog-free elevators (IL)

A Chicago federal judge has cleared the way for Holly Geraci, the wife of prominent Chicago bankruptcy lawyer Peter Francis Geraci, to proceed with her lawsuit against the association that manages the condo building in which she lives, saying Geraci

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Florida Fourth DCA Adopts Strict Compliance Standard when Joining Homeowner Associations to Foreclosure Actions

On November 23, 2016, the Florida Fourth District Court of Appeals issued an opinion in a case concerning a foreclosing lender’s obligation to pay homeowner association assessments in Federal National Mortgage Association v. Mirabella at Mirasol Homeowner’s Association, Inc., Case

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Reservation of Rights Requirements Adopted by South Carolina Supreme Court

The South Carolina Supreme Court’s recent decision in Harleysville Group Insurance v. Heritage Communities, Inc., Appellate Case Nos. 2013-001281 and 2013-001291, 2017 WL 105021 (S.C. Jan. 11, 2017) affirms what is and is not covered “property damage” under commercial general

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Court Ruling Gives Condo Boards the Power to Evict (NY)

In a major victory for condominium boards, the state’s highest court has ruled unanimously that a Manhattan condo unit-owner who refused to pay his common charges since 2007 can be evicted from his apartment, The New York Law Journal reports.

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Court Decision Clarifies HOA Developer Reserve Funding Obligations (FL)

Last month, Florida’s Fifth District Court of Appeals issued yet another opinion in Mackenzie v. Centex Homes, by Centex Real Estate Corp., Case No. 5D16-1254 (Fla. 5th DCA, December 22, 2016) reinforcing that a developer is obligated to contribute money

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Good News for HOAs: Courts Clarify Deadline for Governing Document Lawsuits (FL)

Homeowner association board members and their attorneys can breathe easier now that two Florida appeals courts have clarified the deadline for challenging an association’s governing documents. Through an affirmative defense based on time limitations, associations should see quick, concise and

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Court Declares Condo By-Law Authorizing Allocation/Lease of Common Element Parking Spaces to Unit Owners is Valid

In a recent case, Cheung v. YCC No. 759, a unit owner in a commercial condominium unsuccessfully challenged the validity of a by-law that allocated/leased 4 common element parking spaces to each unit. Before the enactment of the by-law, parking

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Possession after Judicial Foreclosure (WA)

Recently, the Division 1 Court of Appeals of Washington issued its opinion in the case of Viewcrest Condominium Association v. Robertson, 2016 WL 7470025 (December 27, 2016). The decision by the Court in Viewcrest will need to be considered when

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Washington Court of Appeals Rules in Favor of Homeowners Association

The Washington Court of Appeals ruled in favor of a Camas homeowners association’s actions concerning board membership and delinquent assessments in a recent unpublished opinion.    Read the article…………..

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Leverage Shift: Community Associations Facing Developer Transition Benefit From Court of Appeals’ Decision (NC)

The North Carolina Court of Appeals recently issued an opinion that should make it easier for owners associations to pursue remedies against developers if they discover construction defects in the common elements after control of the association is transferred from

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Industry Alert – Florida Supreme Court Rules on Bartram v. US Bank, NA.

The Florida Supreme Court issued the much anticipated opinion in Bartram v. U.S. Bank, N.A on November 3, 2016, providing long awaited guidance as to the statute of limitations on successive mortgage foreclosure actions, post dismissal. The Court answered a

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Foreclosures – Enforcement of Judgments – Equitable Redemption (CA)

In 1982, the California Legislature enacted the Enforcement of Judgments Law (“EJL”), Code of Civil Procedure section 680.10 et seq., setting forth the standards for enforcing judgments by writ of execution. The EJL made sales pursuant to foreclosure judgments absolute,

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Oregon High Court Clarifies How To Read the Four Corners of a Complaint

On December 8, 2016, the Oregon Supreme Court issued a decision, West Hills Development Co. v. Chartis Claims, Inc., 360 Or. 650 (2016), clarifying what allegations in a construction defect suit will implicate coverage under an “ongoing operations” additional insured

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NH Supreme Court issues key condo financing ruling

In NH Housing Finance Authority v. Pinewood Estates Condominium Association, the question was whether a foreclosing mortgagee could be held liable for the unpaid assessments incurred by a prior delinquent owner. The NHHFA had acquired, in a foreclosure sale, title

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An Important Lesson for Condominium Developers (MI)

On December 15, 2016, the Michigan Court of Appeals issued an unpublished opinion in the matter of Woodland Estates, LLC v. City of Sterling Heights and County of Macomb. Woodland Estates, LLC (the “Developer”) filed a lawsuit against the City

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Court Clarifies Condo Owners’ Right to Inspect (NY)

In its 2013 decision in Pomerance v. McGrath (Pomerance I),1 as noted by one of the authors in a prior article on the subject,2 the Appellate Division, the First Department handed down the first appellate decision delineating the rights of

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