Elk Creek Ranch Owner’s Association wins case (CO)

Elk Creek Ranch Owner’s Association prevailed in its lawsuit against developer William H. Wheeler for breaching his fiduciary duties while he was a director on its board. Elk Creek Ranch is a premier fly-fishing and hunting club outside Meeker, Colorado. An eight-person Rio Blanco county jury also found that Wheeler’s company Elk Creek Operations, LLC […]

Court puts condo investors on the hook for shoddy construction (NY)

New York City condo investors may increasingly find themselves having to dig into their wallets to pay for any construction defects, according to a new court ruling.  The Appellate Division of state court upheld a ruling last week that a condominium board does not have to prove a fiduciary or confidential relationship between itself and […]

Michigan Condominium Association found not liable for violating the Fair Housing Act and PWDCRA in request for handrail

In Estate of Romig by Kooman v Boulder Bluff Condominiums Units 73-123, 125-146, Inc, No. 347653, issued October 15, 2020 (Docket Nos. 347653 & 348254), the Michigan Court of Appeals ruled that a condominium association’s alleged denial of a request to install a railing to accommodate a disabled person did not constitute discrimination in a […]

$180,442 Fees Award, $2,195 Expert Fee Award Under Section 998, And Certain Other Costs Awarded To HOA And Against Homeowner Sustained On Appeal (CA)

Kashani v. Wilshire House Assn., Case No. B296976 (2d Dist., Div. 1 Oct. 28, 2020) (unpublished) involved a HOA-homeowner dispute involving a right of first refusal battle to bid on a particular condo unit, with the HOA winning on summary judgment where the CC&Rs also had a fee-shifting clause.   Read the article………………………………

Texas Court Ruling on Short-term Rentals Aligns with CAI Public Policy

In August, the Texas Court of Appeals ruled that state statute allows for a community association to adopt rules prohibiting short-term rentals.  In this case (JBrice Holdings, L.L.C. v. Wilcrest Walk Townhomes Associations, Inc.), a two-unit owner in a community association located in Houston rented their units for periods of one to 10 days through […]

Clipper Mill court hearing lifts veil on developer’s tactics to keep residents in line (MD)

Grilling the lawyer handling Larry E. Jennings’ litigation against residents of the Clipper Mill community, Baltimore Circuit Court Judge John Nugent kept returning to one issue:  The developer’s request for millions of dollars of damages.  “Let me ask you a question: $25 million in punitive damages?” Nugent asked Jennings’ attorney. “What am I to take […]

An Emotional Support Animal – a Boxer – Lands Condo Board in Court (NY)

In an action sure to send shivers through co-op and condo boards across New York, the federal Department of Housing and Urban Development (HUD) has charged a Long Island condominium complex and its management company with discriminating against a disabled resident who claims the complex blocked her from keeping her two dogs as emotional support […]

Indiana Tax Court Permits Limited Use of Form 133 Petition in HOA Case

In a recent decision, the Indiana Tax Court has kept alive a limited portion of a Homeowners’ Association’s (HOA) claims using what was historically known as Indiana’s Form 133 Petition for Correction of Error (Form 133). In Muir Woods Section One Assn., Inc., et al v. Marion County Assessor, Joseph P. O’Connor, 19T-TA-00025 (Ind. Tax […]

Court of Appeals Rules The Court’s Evidentiary Gatekeeping Role Applies to Evidence Presented to Support a Request for an Emotional Support Animal (MI)

On September 17, 2020, the Michigan Court of Appeals, in Riverbrook v Abimbola Fabode and All Other Occupants, ___ Mich App ___ (2020) (Docket No. 349065), issued a unanimous decision finding that the district and circuit courts “abandoned their roles as the gatekeepers of evidence under MRE 702” in rejecting a landlord’s attempt to challenge […]

Federal Judge Slaps Delray’s Seven Bridges, Litigants LaGrasso and Tannenholz (FL)

Sometimes you don’t have to make a federal case out of a federal case. That’s more or less the loud message sent today by U.S. District Judge Donald Middlebrooks who denied a joint request by the Seven Bridges Homeowners Association, Deborah LaGrasso and Rachel Tannenholz to delay their three-way over claims of anti-semitism, harassment and […]

The Business Judgment Rule Rides to a Condo Board’s Rescue (NY)

The board of managers at a Brooklyn condominium has learned, first-hand, about the thickness of the armor provided by the Business Judgment Rule. State Supreme Court Justice Kathryn E. Freed has dismissed a lawsuit against the board at the Bridgeview Tower Condominium, at 189 Bridge St., saying the suit was “procedurally defective” and the board […]

Appeals Court Nixes Order Declaring Water Damage Covered Under State Condo Act (GA)

Reversing a trial judge, the Georgia Court of Appeals issued a ruling in a relatively low-dollar dispute over damage from a leaky water heater that the winning lawyer said finally clarifies that a statute requiring “fire and extended coverage” for condominium associations does not extend to water damage. Read the decision (PDF)…………………………….

Insider Real Estate and Community Association Law Update, September 2020 (FL)

A homeowner had rented out three of the four bedrooms in his home to three separate individuals at the time he passed away. He left the home, his homestead, to his son. A judgment creditor of the deceased homeowner sought to collect from the equity in the home. The probate court ruled that seventy-five percent […]

COMMUNITY ASSOCIATION TRANSITION: CONSTRUCTION DEFECTS, IMPLIED WARRANTIES AND CONSUMER FRAUD

For every condominium and homeowner association, “control” is eventually transferred by the developer to an owner-controlled governing board after construction. This is called “transition.” A successful transition is one in which the owner-controlled board works with the developer to ensure appropriate governance, adequate financial resources, and a properly designed and constructed community. But what happens […]

Court Rules Telephonic Annual Meeting Appropriate During COVID-19 Pandemic Under New York Not-for-Profit Corporation Law

The New York Supreme Court recently ruled that under the COVID-19 emergency amendments to the New York Not-for-Profit Corporation Law (N-PCL), a homeowners’ association board of directors’ decision to not hold an in-person annual meeting, but instead use measures including a telephonic meeting, mail-in voting for the election of new directors and pre-meeting submission of […]

Subrogation: Stepping into the Shoes of Another to Enforce Claims: the Virginia Supreme Court Hands Down an Opinion on Subrogation in the Context of a Condominium Fire (VA)

By recent decision, the Virginia Supreme Court weighed in on an insurance subrogation dispute arising out of a fire at a Virginia condominium. The case is illustrative as to situations that sometimes face community associations when there are casualty losses.   Read the article……………………………..

Mid-Year CAI Amicus Curiae Program Update

Community Associations Institute files amicus curiae, or “friend of the court” briefs, in federal or state cases that address issues of significant importance in community association law. CAI’s amicus curiae efforts enable us to share our expertise and educate a court about the legal and policy issues in pending appellate litigation. Characteristically, court cases where […]

Improper Amendments Are VERY Expensive

Earlier this year, I blogged on the case of Johnson v. Board of Directors of Forest Lakes Master Association, 454 P.3d 623 (2019) unpublished (Kansas) and explained how improperly passing and/or filing amendments can be VERY expensive. This is true in every state, and today we learn of another way that amendment errors can be […]

Later Finding That HOA-Homeowner Settlement Agreement Was Invalid Presented Good Cause To File Fee Motion After 60-Day Deadline (CA)

In Gallian v. Gragnano, Case No. G057198 (4th Dist., Div. 3 Sept. 15, 2020) (unpublished), HOA sued a homeowner for architectural violations under the CC&Rs, which prompted homeowner to crossclaim against the board members for indemnification, fault apportionment, and declaratory relief. The board members were dismissed with prejudice, with HOA and homeowner reaching what they […]

Florida Condo Complex Settles COVID-19 Sick Leave Suit

A Broward County senior living condo community and a former maintenance man there who said he was unlawfully denied sick leave after getting COVID-19 have struck a deal to end the former employee’s suit, they told a Florida federal court.  On Monday, plaintiff Randy Constance and Hollybrook Golf and Tennis Condominium asked U.S. Magistrate Judge […]

Hitting A CEQA Snag: Third District Affirms Rejection of Statutory Road Abandonment And Brown Act Challenges (CA)

In a published opinion filed on August 17, 2020, the Third District Court of Appeal mostly affirmed the trial court’s judgment upholding Placer County’s partial abandonment of public easement rights in an emergency access/public transit road connecting two Lake Tahoe-area residential subdivisions; the County took the action to resolve disputes that had arisen after one […]

Homeowner Tells Court She Wasn’t All That Bad (FL)

The drama over the federal lawsuits in the Delray Beach community of Seven Bridges continues to unfold through federal filings.  One homeowner is suing another — and the HOA — in federal court, while a separate suit has been filed in state court.    Read the article…………………………….

The Association’s Strong Hand for the Removal of Non-Approved Structures (FL)

Enforcing HOA restrictions can be a formidable task, implicating myriad overlapping declaration provisions, association rules, and Florida law. And going to court to get injunctive relief – a court order requiring an owner to comply – can seem even more daunting. The elements that are required to establish a basis for injunctive relief are: (1) […]

Fifth DCA Recedes From Its Own Precedent Ruling Community Association Assessments Are “Debts” Under FCCPA (FL)

In a recent decision Williams v. Salt Springs Resort Association, Inc., Case No. 5D18-3913 (Fla. 5th DCA, June 12, 2020), Florida’s Fifth District Court of Appeal receded from its own longstanding precedent in holding that condominium assessments may be considered “debts” within the meaning of Florida’s Consumer Collection Practices Act, Chapter 559, Florida Statutes (“FCCPA”). […]

Court Holds That County’s Abandonment of Public Road Easement Rights Did Not Violate Brown Act, Was Supported by Substantial Evidence, and Did Not Create Takings Liability (CA)

On August 17, 2020, in Martis Camp Community Association v. County of Placer, __ Cal.App.5th __ (2020) (Case Nos. C087759 and C087778), the Third District Court of Appeal addressed several novel legal claims arising from the County of Placer’s partial abandonment of public easement rights in a road connecting two adjacent residential subdivisions near Lake […]

Defamation Claim can be a Weapon for Condos with Bad Owners (NY)

Owners are not allowed to defame board members and a defamation claim is a way condos can address bad owners. There have been a lot of articles about the limits on condominiums addressing bad owners and how they are more difficult to address than bad shareholders in cooperatives. This is true, but there are ways […]

Insurance Subrogation Case Impacts Condominium Associations

In May, the Supreme Court of Virginia ruled that an insurer did not waive its subrogation rights (the process by which an insurance company collects money from the party at fault) against tenants of a unit owner in a condominium insurance policy. The insurance company can pursue a claim for damages against the tenant even […]

Court Says Pandemic Losses Not Covered by Business Interruption Insurance

In a ruling sure to send shivers through many New York housing cooperatives and condominiums, a Michigan judge has thrown out a lawsuit by a restaurant owner who sought to recoup income lost during the coronavirus pandemic through his business interruption insurance policy. Judge Joyce Draganchuk, ruling on one of the first such cases in […]

GOOD BYE: Association Who Fails to Enforce Covenants Loses Right to ENFORCE

In 2016, Plaintiff sent Defendants a letter telling them that the dog-breeding building (“kennel”) they built violated the restrictive covenants of the Texas association. The restrictions had been recorded in 1981. The letter stated that the kennel constituted a “noxious or offensive activity.” Defendants tried sound proofing the kennel in response. Plaintiff’s then sued seeking […]

Rule Interpretation Conundrums (FL)

A recent Monroe County court case illustrates the importance of well drafted rules.  In Biza Corp. d/b/a Galway Mobile Home Park v. Jarome Kaczmarek (FlWSUPP 2710BIZ2), the plaintiff mobile home park filed an action to evict Mr. Kacmarek (“Defendant”) from his lot in Galway Mobile Park for his violations of the park rules. The action […]

New Appellate Case May Impact Townhome Exterior Repairs (NC)

Today (August 4, 2020), the NC Court of Appeals issued an opinion that could impact townhome exterior repairs.  The case is Shearon Farms Townhome Owners Ass’n II, Inc. v. Shearon Farms Dev., LLC. Shearon is a “published” case, which means the holding is binding on other parties with similar facts.    Read the article……………………………….

FINALLY, a Helpful Emotional Support Animal Case

Plaintiff, Linder (“Tenant”), entered into a lease in October 2016. Tenant agreed in the lease not to bring dogs, or other animals on the premises. Five months later Tenant asked the Landlord if she could have an emotional support animal. She gave one of the internet letters to support her need for the animal. The […]

Prevailing Party: Trial Court Properly Exercised Its Discretion In Finding Dismissed Civil Harassment Defendant Was Not Prevailing Party And Not Entitled To Attorney Fees (CA)

Plaintiff in Steele v. Holcomb, Case No. G057931 (4th Dist., Div. 3 July 27, 2020) (unpublished), who served on the board of directors for a residential homeowners association, filed a petition for a civil harassment restraining order against a resident for violent and harassing conduct she alleged he displayed concerning maintenance issues at his residence. […]

Failing to Maintain and Properly Collect Assessments is a Breach of Fiduciary Duties

Plaintiffs were two owners (Maples and Brown) at Compass Harbor Village Condominium Association in Maine (the “Association”) who had purchased their respective units sometime in 2007. The Declarant was an LLC that held more than 50% of the votes (15 of the 24 units) and therefore controlled the board. For many years the Association common […]

Supreme Court reverses appeals decision in lake level lawsuit (MN)

The state’s highest court affirmed a portion of the Court of Appeals decision regarding the lake level lawsuit and reversed a portion. Then they sent it back to the three-judge appeals panel.  In a decision issued July 15, the Minnesota Supreme Court said plaintiffs in the case against the Department of Natural Resources (DNR) brought […]

Did you know that Owner Bankruptcy Filings Do Not Discharge Association Assessments or Pre-Petition Liens?

During these challenging economic times, many owners are failing to pay assessments and may even threaten to file, or actually file for bankruptcy protection. Many associations mistakenly believe that unit assessments are fully discharged when an owner files for bankruptcy protection. Pursuant to Section 523 (a) (16) of the U.S. Bankruptcy Code (cited as 11 […]