The Texas 14th Court of Appeals ruled against a homeowner March 7 in his allegations of unfair debt collection practices against his homeowners’ association and related entities. Justice Frances Bourliot wrote the opinion, and Chief Justice Kem Frost and Justice Tracy Christopher concurred. Although a trial court ruled in favor of Robert Burton and didn’t […]
Homeowner Associations, Section 1717: One Homeowner Prevailing Over Another In Dispute Over Location Of A Fence Was Entitled To Fee Recovery Under Civil Code Section 1717 (CA)
In Hunkel v. Gerhardt, Case No. H044753 (6th Dist. March 12, 2019) (unpublished), two neighboring homeowners squared off in a dispute over the placement of a fence by one homeowner group. The defendant homeowners claimed that there was no proper board of directors making a decision on the fence dispute, a position ultimately embraced by […]
Finally! Some Push Back on Short Term Rentals (FL)
After a series of rulings adverse to community associations’ and local governments’ efforts to limit or prevent short term rentals, the Third District Court of Appeal in City of Miami v. Airbnb, etc., et al., No. 3D17-1213 (Fla. 3d DCA, December 5, 2018), upheld the City of Miami’s code ordinance preventing short term rentals. Read […]
Declarant Contracts, Including Easements, Can Be Voided (AZ)
Becker Boards Summit, LLC v. Summit at Copper Square Condominium Association – 2018 WL 6695279 ( 2018 Ariz.) Issues: The court in this case addressed two important issues: Can a Developer, before turnover, amend a Declaration to convert Common Element to Limited Common Element for the benefit of a Developer Unit? Can Developer contracts entered […]
Elevators Let You Down?
A recent case offers some insight into the standard expected of condominiums and others when it comes to injuries related to malfunctioning elevators in condos. The claim was brought by a unit owner and her mother against the condominium, manager, security/concierge, and elevator servicing company. The plaintiffs alleged that the mother was visiting her daughter […]
HOA decision given judicial deference (and a special election recommendation) (CA)
Our resort community is loaded with homeowners associations – governed by a law known as the Davis Stirling Act. Being on a homeowner board is often a thankless job, but California courts have made it easier. Read the article…………………..
Courts Will Defer to the Decisions of Boards Based on Good Faith and Regard for the Best Interests of the Community (CA)
In Eith v. Ketelhut, No. B272028 (Cal. Ct. App. Dec. 17, 2018), a homeowners association featuring estate properties where members maintain fruit orchards and vineyards yielding fruit that can be made into wine and offered to the public for sale required the Board of Directors (“Board”) to determine if sale of products made from fruit […]
Condominiums Can Be Subject to Extinguishment Under The Marketable Record Title Act (FL)
An interesting new decision out of Florida’s Second District Court of Appeal addresses whether an Association, whose members are unit owners within a condominium, was entitled to revive its declaration of covenants and restrictions pursuant to the Marketable Record Title Act (MRTA) as it existed in 2016. As we have addressed in previous posts, generally […]
Void But Valid: Good-Faith Purchaser for Value Keeps Title Despite Procedural Defects in Foreclosure Sale (NC)
A divided panel of the North Carolina Court of Appeals holds that a good-faith purchaser for value at a foreclosure sale obtains a valid deed regardless of the amount paid, even where the foreclosure itself is void due to procedural errors. Read the article………………………
The Armor of the Business Judgment Rule Can Be Pierced (NY)
Under most proprietary leases and applicable law, cooperative boards are free to disapprove an application to purchase a unit for any reason or no reason – so long as the board does not act for an unlawful reason, such as discrimination against one of the city’s numerous “protected” classes. Therefore, lawsuits challenging a board’s rejection […]
2018 Case Law and Legislative Updates (IL)
There have been a number of changes in Illinois laws in 2018 that have impacted the management of condominium and common interest community associations. Below is a summary we have compiled in an attempt to keep our clients and the community aware of the implications of these legal updates. Read the article……………………
Recent Washington Court Decision Examines Whether Lien Claim on Condominium Unit Was Frivolous (Subject to Release) or Excessive (Subject to Reduction)
On February 11, 2019, Division One of the Washington Court of Appeals issued an opinion in the case of Woodley v. Style Corp. d/b/a Servpro of Shoreline/Woodinville, No. 77352-6-I (Wash. Ct. App. Feb. 11, 2019). The case highlights the care that should be exercised in filing a lien claim for services furnished to improve a […]
Permitted Breach of Rules by Association Does Not Create Liability for Resulting Accident (FL)
Lack of parking can be an extremely troublesome issue for many South Florida community associations. For HOAs with rules that prohibit on-street parking, the dearth of available spaces for residents and their guests can leave many homeowners feeling stymied and annoyed. Read the article………………………..
Insider Real Estate and Community Association Law Update (FL)
Condominium Association Faces Unit Owner Class Action Pinnacle Condo. Ass’n, Inc. v. Haney, 44 Fla. L. Weekly D203 (Fla. 3d DCA Jan. 9, 2019) After Hurricane Wilma and Hurricane Katrina caused structural damage to the four high-rise towers of the Pinnacle Condominium in 2005, the Condominium Association entered into two contracts to repair the damage. […]
Condo owners lose key remedy for construction problems
A recent Illinois Supreme Court ruling blocks a route condo owners have used for decades to seek financial recovery for defects in construction, attorneys say. In its Dec. 28 opinion on a case between an Evanston condo association and a manufacturer of aluminum windows and doors, the court ruled there is no implied warranty on […]
Recent California Court of Appeal Ruling Limits Anti-SLAPP Protection for Actions by Board of Directors
The recent unpublished opinion of Chemers v. Quail Hill Community Association et al. (2018) shines some light on the oft-misunderstood California Anti-SLAPP statute and its effectiveness as a defense for actions by a homeowners association’s board of directors. The Fourth District California Court of Appeal held that certain actions by the board in a dispute […]
Condo owners win appeal over revising homeowner rules (FL)
A group of condominium owners have won a court appeal after the state’s Department of Economic Opportunity claimed that the association was not entitled to amend or revise its property owners rules. On Jan. 25, the U.S. District Court of Appeal of Florida, Second District granted a reversal of a lower court ruling that found […]
Malicious Prosecution – Can It Result From Filing A Lis Pendens? (SC)
Those of us with any significant history of practice in South Carolina have made an allegation or defended against an allegation of slander of title. Such allegations, and actions for slander of title, were significantly limited, however, with the advent of Pond Place Partners.[1] There, the South Carolina Court of Appeals found the filing of […]
Michigan Court upholds condo association fines for unauthorized wind turbine and generator
In Oak Valley Estates Homeowners Association v Georgetta Livingstone, Unpublished Opinion of the Michigan Court of Appeals, Docket No. 338292 (January 22, 2019), the Michigan Court of Appeals upheld a monetary judgment in favor of a condominium association, for fines and attorney’s fees and costs, after granting an injunction requiring that a co-owner remove solar […]
Creating Conditions That Lead To A Horrific Accident Does Not Always Create Legal Liability (FL)
From a recent Fourth District Court of Appeal case, Seminole Lakes Homeowner’s Association, Inc. v. Esnard, decided December 19, 2018, we once again learn that application of prior case law sometimes creates strange and convoluted results. Just because an association negligently creates obvious conditions for an accident to occur does not necessarily mean the association […]
Law Firm Not a ‘Debt Collector’ Under FDCPA, says Fifth Circuit
A law firm not specializing in debt collection activity is not a “debt collector” under the Fair Debt Collection Practices Act because it was not “regularly” engaged in debt collection, according to the U.S. Court of Appeals for the Fifth Circuit. The case is Reyes v. Steeg Law. Plaintiff Nicole Reyes filed a class action […]
Court Strikes Down HOA’s Rule Banning Personal Trainer From Fitness Center (FL)
Is a personal trainer in a fitness center like a call girl sitting at a clubhouse bar? This comparison was drawn by the trial court in its decision to grant summary judgment in favor of a homeowner’s association as to whether a personal trainer is an invitee or a licensee. Read the article………………….
January, 2019: Insider Real Estate and Community Association Update
After they were hit in a rear-end car accident inside the Seminole Lakes Community, two plaintiffs sued the Seminole Lakes Homeowners Association claiming that it negligently allowed parking on both sides of the streets, in violation of rules in the governing documents. The case proceeded to trial and a jury returned a verdict in favor […]
Illinois Supreme Court Reverses 35 Years of Precedent Regarding Homeowners’ Implied Warranty of Habitability
On Dec. 28, 2018, the Illinois Supreme Court held that subcontractors that do not contract directly with a homeowner cannot be held liable to the homeowner for breach of the implied warranty of habitability. The decision in Sienna Court Condominium Association v. Champion Aluminum Corporation (2810 IL 122022) expressly overrules 35 years of precedent from […]
Judge makes recommendations about motions in Hunters Run condo association case (FL)
A judge in the U.S. District Court for the Southern District of Florida recently recommended granting parts of motions filed in litigation between a real estate agency and two property owner associations over condominium properties in the Palm Beach County community of Hunters Run. In his 43-page report and recommendation issued Dec. 22, U.S. District […]
Florida Federal Court Finds Insurer Must Defend Contractor in Defective Condo Construction Suit
The United States District Court for the Middle District of Florida recently granted summary judgment in favor of developer, KB Homes, ruling that Southern Owners Insurance Co. must defend KB Homes under various Commercial General Liability policies. Read the article……………..
Federal Court Enjoins NYC Law Aimed at Airbnb, Homeaway Short Term Renting
In a 52-page decision, District Judge Paul A. Engelmayer of the Southern District of New York put a kibosh on New York City’s short-term rental regulation that was set to go into effect on February 2, 2019. NYC has been trying to figure out an efficient way to enforce its short-term rental restrictions and this […]
Subcontactors can’t be sued directly by homeowners for building defects: IL Supreme Court
The Illinois Supreme Court has reversed Cook County and appellate court rulings in a lawsuit over allegedly defective condominium buildings in Evanston, saying condo unit owners cannot sue subcontractors who built the condos, because there were no contracts between the two groups. Read the article…………………
Homeowners Associations Ruled Jointly Obligated to Maintain Pond (WA)
After examining the relevant plats and agreements, the Washington Court of Appeals ruled last month that two homeowners associations are jointly obligated to maintain a stormwater drainage pond. Read the article………………….
Court Decision Touches on Condominium Airspace Property Rights (FL)
In property law, owning land includes owning the earth under the surface and air above the surface. Florida’s First District Court of Appeals recently addressed airspace condominium parcel rights in Sterling Breeze Owners’ Ass’n, Inc. v. New Sterling Resorts, LLC, Case No. 1D17-1553 (September 5, 2018). Read the article………………….
Coop and Condo Right to Seek Legal Fee Reimbursement at Risk (NY)
The New York Appellate Court that oversees the Manhattan and the Bronx Supreme Courts issued a unanimous decision at the beginning of November, 2018, which will significantly impact the right of cooperatives, and likely condominiums, that try to seek the reimbursement of legal fees from defaulting shareholders or owners. In Krodel v. Amalgamated Dwellings, the […]
Appeals court upholds lower court decision in dispute over Heron’s Landing condos (FL)
A Florida appeals court has affirmed the decision of a lower court in a dispute over the condition of condominium units in Jacksonville. “Appellant contends that the trial court erroneously admitted extrapolation evidence and erred in failing to grant its motion for a directed verdict,” the First District Court of Appeals in the State of […]
Homebuyers’ Implied Warranty of Habitability Suit Against Subcontractors Is Frozen out by Illinois Supreme Court
Overruling 35 years of precedent, the Illinois Supreme Court has held that buyers of newly constructed homes cannot sue subcontractors for breach of the implied warranty of habitability. Sienna Court Condominium Association v. Champion Aluminum Corporation, 2018 IL 122022 (December 28, 2018). Read the article…………………..
Judge makes recommendations about motions in Hunters Run condo association case (FL)
A judge in the U.S. District Court for the Southern District of Florida recently recommended granting parts of motions filed in litigation between a real estate agency and two property owner associations over condominium properties in the Palm Beach County community of Hunters Run. Read the article…………………..
Boards Sometimes Need a Do Over (NY)
New York Courts sometimes take hard positions on lawyers which can significantly impact their condo, coop and other board clients. Clients sometimes need a “do over” and if they wait too long, they may be trapped in the attorney-client relationship with fees spiraling out of control. Seeking independent advice early on can give boards the […]
Associations have to Assert Affirmative Defenses or They’ll be Waived (NY)
It is critical that defense counsel review all affirmative defenses with their clients to assure there aren’t any affirmative defenses available. If you don’t raise the affirmative defense in the first responsive pleading (i.e., the answer to the complaint or motion to dismiss the complaint) then the affirmative defense will be waived as a matter […]
Case Law: Artus v. Gramercy Towers Condominium Association (CA)
The Association sought to amend its bylaws to eliminate cumulative voting. The Association’s Board distributed the secret ballots and sent a two-page letter soliciting membership support for the proposed amendment and providing the Board’s rationale for the amendment. The Association also posted neutral notices in the elevators urging members to vote. At the time, the […]
Does The Business Judgment Rule Extend To A Board Interpretations? (CA)
The California Supreme Court has adopted a rule of deference to most decisions made by community association boards: “Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, […]
1st District affirms dismissal of suit and sanctions against man over towing of car (TX)
The Court of Appeals for the 1st District of Texas has affirmed a Harris County Civil Court ruling that dismissed an appeal over the towing of a car. According to the opinion issued Dec. 4, the Appeals Court disagreed with Ali Yazdchi that the Harris County Civil Court at Law No. 2 erred when it […]
Trial Judge Did Not Error In Reducing Homeowner Fees To Prevailing Defendant By Over $100,000 (CA)
In Eith v. Ketelhut, Case No. B272028 (2d Dist., Div. 6 Dec. 17, 2018) (partially published; fees discussion unpublished), many homeowners got involved in a dispute which hinged on whether a HOA Board of Directors properly made a decision on the proper characterization of a defendant homeowners’ operation of a vineyard for purposes of violating […]
My Master Association is a Condominium Association… Maybe? (FL)
Even though you own a condominium, is it possible one of the associations governing your condominium unit thought to be a condominium association for decades is actually a homeowners association? Yes, it is. Many owners in the State of Florida own condominium units under the jurisdiction of two community associations. The first, a smaller condominium […]
Limited Vacancy: Florida Appeals Court Rules in Favor of the City of Miami’s Airbnb Rental Ban
Florida’s Third District Court of Appeal handed down a win for local governments on Wednesday when the Court reversed a previous Circuit Court injunction that barred the City of Miami from enforcing a ban on short-term rentals in residential areas of the City. Read the article………………….
Suit Against Association for Emotional Support Animal Denial Sends Message to Fla. Condos, HOAs
Emotional support animals have been in the news quite a bit during the last couple of years. There have been reports of airline passengers boarding with a peacock, hamster, pig, a duck wearing a diaper and a squirrel. As a result, companies have started to change their policies, and the public’s attitudes and perceptions toward […]
Insurer Prohibited from Bringing Separate Contribution Action in Subrogation to Rights of Suspended Insured (CA)
In Travelers Property Casualty Co. of Amer. v. Engel Insulation, Inc. (No. C085753, filed 11/30/18), a California appeals court held that an insurer may not file its own action to assert claims solely as a subrogee of a suspended corporation, where the corporation could not otherwise assert the claims on its own behalf. In Engel, […]
President’s Direction did not Survive Motion to Show Authority
You are hired by an organization to investigate claims against certain parties, and the organization’s president later directs you to file a lawsuit on those claims. Do you have authority to file suit? Maybe not, a recent case reveals. The Board of Directors of Candle Meadows Homeowners Association voted to retain a lawyer to investigate […]
Counsel Declarations Sufficed To Justify $425,000 Fee Award In HOA’s Favor (CA)
The fee substantiation requirement in California state courts is much less than in federal courts. Federal courts favor submission of detailed timesheets, while attorney declarations and the trial judge’s perception of the work can indeed support fee recovery in California state courts. Read the article……………….
225,000 Fee Recovery In Favor Of HOA And Against Losing Condo Owner Affirmed On Appeal (CA)
We have done many posts showing how HOAs or owners can be subject to substantial fee exposure for losing HOA-owner disputes. Seahaus La Jolla Owners Assn. v. Witt, Case No. D071229 (4th Dist., Div. 1 Nov. 27, 2018) (unpublished) illustrates how this can happen, with the non-prevailing condo owner hit with $225,000 in fees in […]
Ex-Board Member of Homeowner’s Association Sues for Improper Removal; Awarded a Proper Removal (DE)
In Beck v. Greim c/o Bombay Woods Maintenance Corp., the Delaware Chancery Court issued a Master’s Report making recommendations regarding a dispute between a homeowner, who had served as a director and officer of the homeowner’s association, and the homeowner’s association and its president, concerning alleged violations of Delaware General Corporation Laws and the association’s […]
Pennsylvania Man Not Entitled to Attorneys’ Fees in Homeowners Association Declaration Amendment Lawsuit
The Commonwealth Court of Pennsylvania ruled this month that a man from Pittsburgh is not entitled to recover attorneys’ fees and court costs from litigation he won against his homeowners association. Matthew Serota filed suit against the London-Towne Homeowners Association in 2015 after the association amended its Declaration of Covenants, Conditions and Restrictions (the “Declaration”) […]
Unsafe Balconies, Water Leaks, Other Flaws Claimed at Luxury Sunny Isles Beach Condo (FL)
Sunny Isles Beach’s luxury Regalia condominium, where each unit takes up an entire floor and has floor-to-ceiling glass walls, needs $30 million in repairs due to construction and design defects, an attorney for residents said. Problems include safety hazards like using the wrong or no screws for balcony railings and putting electrical grills meant only […]