Whenever cooperative, condominium or HOA board members are sued individually in a lawsuit, the first thing counsel will try to do is get the case dismissed against the individuals. The general principle is that if the board members did not commit tortious acts independent of their decision making as board members, then they shouldn’t be […]
Defaulted Mortgagee Saved By Distinction Between Note and Mortgage Claims (OH)
Previously, I wrote blog posts on planning commercial litigation and the considerations involved in voluntarily bringing claims in one lawsuit as a plaintiff. See Planning Commercial Collection Litigation: A Primer and Joinder of Claims in Commercial Foreclosure Litigation is a Choice. The lessons of those posts were applied to save a mortgage lender in Villas […]
Second District Affirms $67,458.07 Attorneys’ Fees Awarded To Prevailing Defendant On Remand (CA)
We first discussed our next case – Durack v. Wang, Case No. B293597 (2d Dist., Div. 7 November 18, 2019) (unpublished) – in a September 27, 2017 post. In that appeal, Wang, who prevailed on demurrer against most of plaintiffs’ causes of action – with the remaining causes of action voluntarily dismissed by plaintiffs – […]
7th Circuit: State Farm estimate $89K lower than final award not proof of bad faith (IN)
An initial State Farm residential estimate more than $14,000 below the company’s independent appraiser’s and nearly $89,000 below the final umpire award wasn’t proof of bad faith, the Seventh Circuit U.S. Court of Appeals ruled earlier this month. “At best, it may suggest that State Farm’s first inspection was inadequate,” Circuit Judge Amy St. Eve […]
Your Tenant’s Water Leak Damaged My Unit – Now Pay Up – 4th DCA Says Otherwise (FL)
In Universal Prop. & Cas. Ins. Co. v. Loftus, 276 So. 3d 849 (Fla. 4th DCA 2019) the Court held Section 718.111(11)(j), Florida Statutes, does not provide a private cause of action against condominium unit owners for the alleged negligence of the unit’s tenants. The decision underscores the complicated nature of Section 718.111(11), Florida Statutes, […]
NY’s First Department Walks Back Pomerance Condo Document Inspection Rights a Little Bit
New York’s Appellate Division, First Department (which covers the Manhattan and Bronx) just decided a case by a unit owner seeking to inspect certain condominium records. In Frankel v. Board of Managers of the Central Park West Condominium, the Court just decided on November 14, 2019, that dismissal of the plaintiff unit owner’s claim seeking […]
Smugglers’ Notch Resort Settles Class Action Lawsuit With Its Homeowners (VT)
Smugglers’ Notch Resort has agreed to settle a class action lawsuit that alleged it was overcharging homeowners for routine property maintenance. A Vermont Superior Court judge on Tuesday approved a settlement that calls for Smuggs to change how it charges homeowners at the resort for services such as landscaping, snowplowing and security along its roads […]
Court slaps down South End garage owner’s legal complaints about neighboring condo building (MA)
The Supreme Judicial Court today told the owner of a garage that wraps around a condo building at 477 Harrison Ave. to knock it off with retaliatory legal filings over the building’s construction. Garage owner Arthur Leon and developer Holland Development have been battling in court and before the Boston zoning board since 2012, not […]
The Evolving Landscape of Sex Discrimination in Housing
On its face, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission is a discrimination claim solely relegated to the employment world; however, the United States Supreme Court’s decision on whether sex discrimination includes a person’s transgender or transitioning status and a person’s refusal to conform to sex-based stereotypes will also impact […]
No Diving: What You and Your Property Manager Should Know Could Hurt You (FL)
In an unpublished opinion from the 11th Circuit Court of Appeals, a three-judge panel unanimously reversed summary judgment which had been entered in favor of a property management company — Paradise Beach Homes (“PBH”) — in a premises liability suit which alleged PBH failed to warn guests about the danger of diving off the pier […]
Appeals Court Deems Association Street a First Amendment Public Forum (TN)
Disputes between individuals and HOAs frequently occur on the roads or sidewalks owned by the Association. The rights of way are usually the HOA’s largest budgetary and operational responsibility. The lot owners and their invitees rely upon the roads to access properties. State and local governments benefit financially by shifting the maintenance burden of the […]
Condominium Mechanic’s Liens
Mechanic’s lien claims are complex in that each state’s statutes differ dramatically. There are certain unique issues when a contractor seeks to commence a mechanic’s lien proceeding for improvements made to a condominium. Read the article……………………….
Developer Can Use Working Fund Contributions to Offset its Financial Obligations to a Homeowner Association (FL)
It is common practice for developers to collect working fund contributions or initial contributions upon the sale of homes in communities operated by homeowner associations. The amount of working fund contributions or initial contributions can be either a specific dollar amount or an amount equal to 2-3 months of association assessments. In a recent opinion, […]
Can a Homeowner’s Association That Allows the Violation of a Restrictive Covenant be Liable in Tort? (FL)
The issue of whether a homeowner’s association that permits a violation of its restrictive covenants is liable in damages in tort was addressed by the Fourth District Court of Appeals in the recent case of Seminole Lakes HOA v. Esnard, Case No 4D18-15 (Florida 4th DCA Dec. 19, 2018). In this case, the association was […]
Pro se litigant’s bid to elude HOA fees after tax sale fails on appeal (IN)
A man who bought Morgan County properties at a tax sale that were subject to a homeowners association failed to convince the Indiana Court of Appeals on Tuesday that he was wrongly ordered to pay delinquent association dues. Read the article……………………….
Say What?
In terminating a third party vendor, a board of directors must be careful in disseminating information concerning the basis for its decision – especially if the decision was due to poor performance or contractual violations by the vendor. Read the article………………………
Georgia Courts Strike a Blow to HOAs
Recently, the Georgia Court of Appeals rendered a decision that will negatively impact many homeowners associations that have not yet adopted the Georgia Property Owners Association Act. Read the PDF………………………………..
Reversal: Small claims courts cannot order mediation, ADR (IN)
Parties cannot be ordered to participate in alternative dispute resolution in small claims proceedings, the Indiana Court of Appeals ruled Thursday, reinstating a dog-bite case that a judge had dismissed after litigants refused to participate in court-ordered mediation. Read the article………………………..
Plaintiff Owner/Developer’s Award Of $1,673,691 In Damages and Entire Fee Request Upheld On Appeal (CA)
In Millennium-Diamond Road Partners v. Diamond Bar etc., Case No. B285539 (2nd Dist., Div. 3 Sept. 24, 2019) (unpublished), Owner/Developer Millennium sued HOA when it revoked Millennium’s access to undeveloped parcels of land Millennium had purchased for the purpose of developing residential properties. The undeveloped parcels of land were landlocked and adjacent to a guard-gated […]
Appellate Court Rules on Ambiguous Architectural Restrictions (CA)
The California Court of Appeal recently ruled on the case of Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, which involved a view protection dispute between neighbors. The Plaintiff Homeowners sued the Defendant Homeowners and alleged that Defendants’ remodeling violated several provisions of the HOA’s CC&Rs. Read the article…………………….
Reversal: Homeowner cannot withhold HOA fees in protest (IN)
An Indianapolis resident who refused to pay his homeowner association fees due to the deteriorating conditions of the neighborhood couldn’t convince the Indiana Court of Appeals that he shouldn’t have to pay. In Feather Trace Homeowners Association, Inc. v. Donald R. Luster, 19A-SC-300, Donald Luster objected to paying his homeowner association fees because of the […]
Fourth Court of Appeals denies motion to withhold finances (TX)
The La Bota homeowners Association was ordered by District Judge Joe Lopez to release all financial information including expenses regarding association fees. However, the association fought that ruling by filing an appeal with the Fourth Court of Appeals. Read the article……………………….
Homeowner Suits Against Community Associations
The relationship between a homeowner and their community association has been increasingly defined in litigation in recent years, due to the rapid growth of common interest communities and the issues being presented to the courts. The community association is usually an incorporated entity operating under corporate nonprofit status. The community association was created by the […]
US District Court Rules that Prior Recorded Condominium Lien takes Priority Over Federal Tax Lien to the Extent of the Amount Stated in the Lien Notice (MI)
In Yarmouth Commons Ass’n v Norwood, et al., 299 F. Supp.3d 862 (E.D. Mich., 2017), the United States District Court held that a prior recorded condominium lien had priority over a federal tax lien but only to the extent of the amount stated in the lien notice. Read the article………………………..
Who’s on First? Condominium Unit Owner Joint and Several Liability for Delinquent Assessments After Foreclosure (FL)
The First District Court of Appeal decision in Coastal Creek Condominium Association, Inc. v Fla Trust Services, LLC, Case No. 1D18-1457 (Fla. 1st DCA, July 16, 2019) addressed whether a current condominium unit owner is jointly and severally liable for delinquent assessments accruing during the ownership of a remote owner. Having found that the joint […]
HOA Dispute Over Backyard Playset, Other Amenities Snowballs Into Federal Lawsuit
As was chronicled in a recent article in the Gainesville Times newspaper, Martin Moreira and his wife Zulema filed suit against the Pointe West Homeowner’s Association after their plans for a backyard makeover were nixed by the association. They filed the discrimination complaint in federal court in April after the HOA had issued fines and […]
Association Document Handling – Avoids Court Sanctions But Leaves Serious Concerns (NY)
The cooperative at 118 East 60th Street in Manhattan got lucky. Its books and records including alteration records were maintained at its management firm’s office – Matthew Adam Properties. When sued, the cooperative and management was demanded to turn over alteration records but was unable to do so because of water damage at management’s office. […]
6th Circuit: Collection fee authorized under contractual agreement did not violate FDCPA
On August 21, the U.S. Court of Appeals for the 6th Circuit affirmed a district court’s determination that a collection fee charged by a debt collector seeking to recover past due homeowner’s association fees was expressly authorized by a contractual agreement and did not violate the FDCPA. Read the article…………………………
Recent HOA Case a Good Reminder in North Carolina & South Carolina
At Black, Slaughter & Black we keep track of legal trends and recent case law that impacts our HOA and condo clients. Although it is a case out of Virginia, the decision in Sainani v. Belmont Glen Homeowners Association, Inc. highlights three important themes that HOAs in North Carolina and South Carolina should be aware […]
Richardson v. Huntington Pacific Beach House Condominium Assoc. (CA)
This case arises out of a dispute between the homeowners association of a beachfront condominium complex and three owners of six units in that complex. Condominium owners Dan Richardson, Andrea Richardson, and Judith Carter (collectively Respondents) sought injunctive relief in the form of an order directing the Board of Directors of the Huntington Pacific Beach […]
Defendant Condo Owner Voluntarily Dismissed From Suit Against HOA And Condo Owner By Other Condo Owners Before Trial Improperly Denied Fee Recovery Under Both Davis-Stirling Act And Code Of Civil Procedure Section 1032(a)(4) (CA)
Fee entitlement and prevailing party determinations often are matters of law, as they were here where the pleadings and facts made a reversal of a fee denial – something which was directed by our local Santa Ana appellate court in Richardson v. Stevenson, Case No. G056112 (4th Dist., Div. 3 Aug. 26, 2019) (unpublished). Read […]
1980 — still crankin’ out the hits…and the case law! (FL)
Do you remember the 80’s? I sure do, Blondie sang Call Me and The Empire Strikes Back came out and we learned that Darth Vader was Luke’s father (still unbelievable nearly 40 years later)! More importantly, the First District Court of Appeal remembers the 80’s and recently referred to a decision it handed down in […]
Holiday Lights and your HOA (VA)
The Virginia Supreme Court has issued another ruling specifying the limitations of homeowners associations to enact guidelines, rules, and regulations that exceed the scope of their authority. Read the article……………………..
Supreme Court of Virginia Opinions: Sainani v. Belmont Glen Homeowners Association
The trial court in this case erred in awarding a monetary judgment, injunctive relief, as well as attorney fees and costs to a homeowners association in an action against lot owners for violations of the HOA’s guidelines governing the use of holiday decorations. The HOA’s seasonal lighting guidelines were not enforceable under the HOA’s declaration […]
Section 230 Protects HOA for Publishing Meeting Minutes–Eagle Ridge Townhouse Ass’n v. Snapp (IL)
The dispute involves Galena Territory, a community governed by a property owner’s association (GTA) with several subdivisions also managed by HOAs. Homeowners in those subdivisions are members of both their subdivision HOA and the GTA. One of the subdivision HOAs had a president who allegedly engaged in self-dealing to the tune of about $600k. Read […]
Ruling Stresses Importance of In-Camera Hearings for Attorney-Client Privilege Claims (FL)
A Florida appeals court has granted a temporary reprieve to a Coral Gables lawyer battling a subpoena under the assertion of attorney-client privilege. The Third District Court of Appeal ruled Wednesday that Miami-Dade Circuit Judge Barbara Areces erred in ordering attorney Alba Varela to appear for a deposition, and denying the litigator’s motion for protective […]
Supreme Court affirms ruling in HHHunt-Henrico Wyndham road dispute (VA)
The state’s highest court has weighed in on a years-long dispute between Henrico County and one of its biggest residential developers. The Supreme Court of Virginia issued an opinion Thursday affirming a lower court’s ruling that the county was within its rights when it eliminated a stretch of road that HHHunt had intended to use […]
Appeals panel nixes insurer’s bid to fix only hail-damaged parts of condo building, not siding on all four walls (IL)
A Texas-based insurance company is on the hook for all four walls of buildings owned by a west suburban Naperville condominium association, not just portions of walls that were damaged in a 2014 storm, a federal court has affirmed. A U.S. Seventh Circuit Court of Appeals three-judge panel sided with the Windridge of Naperville Condominium […]
Just. Follow. The. Rules.
We might add to the above definition a picture of the defendant in Fox Pointe Association v. Ryal, where summary disposition in favor of the plaintiff condominium association was recently confirmed by the Michigan Court of Appeals. Instead of taking the easy path of making a few changes to the front door as required by […]
Directors Serve Until Someone Else is Elected
Occasionally, we work with boards of directors that have not held an election for some time, usually because nobody else has ever expressed an interest in running as a candidate. A recent decision from the Michigan Court of Appeals makes clear that the board’s decisions are not invalidated just because elections have not been held. […]
A Condominium Association Victory in the Ongoing Fight for a Prior Owner’s Assessments (FL)
A recent case, Coastal Creek Condominium Association, Inc. v. FLA Trust Services LLC has upped the ante in the fight to collect outstanding assessments owed by previous owners pursuant to Section 718.116(1)(a), Florida Statute. In Coastal Creek, the Florida First District Court of Appeal adopted a different interpretation of a Florida statute than the Florida […]
Insider Real Estate and Community Association Law Update (FL)
After its board of directors unanimously voted to sell a beachfront condominium, the association entered into a purchase and sale agreement with a real estate investor. The agreement required the association to use its best efforts to obtain consent from all 106 unit owners. While the association was attempting to obtain the consents, the real […]
Defendant Pipe Supplier In Condo Construction Defect Suit Properly Denied HOA Section 998 Offer Of $325,000 As Too Token Given $22.7 Million Costs Of Repair For Defendant’s Scope Of Work (CA)
In Acqua Vista Homeowners Assn. v. MWI, Inc., Case No. D073666 (4th Dist., Div. 1 Aug. 9, 2019) (unpublished), plaintiff homeowners association sued developer defendants as well as pipe supplier defendant MWI in a construction defect suit under the Right to Repair Act (Civ. Code, § 895 et seq.). MWI made a pre-trial CCP § […]
Court Affirms Condo Board’s Decision as Valid Exercise of Business Judgment (WA)
A condominium association’s board agreed to allow a unit owner to install a heat pump on the condition that he sign a document to protect the association. The unit owner argued in a lawsuit that this breached the board’s duty to exercise ordinary and reasonable care. The board responded that the business judgment rule protected […]
Insurer must pay to replace all siding on hail-damaged condos (IL)
A Tokio Marine Group unit must pay to replace all the siding on a condominium association’s buildings, in a case where there was no longer a match available for the structures’ undamaged siding, says a federal appeals court in affirming a lower court’s ruling. Read the article………………………..
When Does a Condo Owner’s Lien Liability End? (FL)
The First DCA rendered an opinion this month wherein it certified conflict with the Third DCA over a condominium unit owner’s liability for association assessments and liens pursuant to § 718.116(1)(a), Fla. Stat., which pertains to a. Coastal Creek Condo. Ass’n, Inc. v. Fla Tr. Services LLC, 1D18-1457, 2019 WL 3114229, at *1 (Fla. 1st […]
Association Not Responsible for Resident’s Slip and Fall Accident on Common Areas (NJ)
One of the questions I am asked most frequently from condominium and homeowner Association boards (and managers) is whether the Association is liable for injuries that occur on the common elements? The answer that I always give is that an Association is only liable for an accident on the common areas if they knew of […]
Enforce or not to Enforce? A Community Associations’ Liability in Tort Cases (FL)
The Fourth District Court of Appeals recently addressed an association’s liability for failure to enforce no-street parking restrictions in Seminole Lakes HOA, Inc. v. Esnard, Case No. 4D18-15 (Fla. 4th DCA December 19, 2018). The case arose out of a car accident between Esnard and another driver which occurred inside the Seminole Lakes community. Read […]
How a short-term rental dispute in Indio landed in the California Supreme Court
In 2016, homeowners in Indio’s Orchard community were weighing an election-year decision. Should they — or shouldn’t they — restrict short-term rentals in their neighborhood? At the time, vacation rentals had become a contentious issue throughout the Coachella Valley, and The Orchard was no different. For years, opposing factions within the 93-unit community had disagreed […]