A condominium complex in Florida will have to face a class action lawsuit after publicizing the names of every tenant who was behind on payments. The Fifth District Court of Appeal on June 12 ruled against Salt Springs Resort Association, which posted a list of more than 100 names and the amounts they owed on […]
Updated report includes new state law on solar installations on homes (VA)
A new Virginia law is expanding the rights of some homeowners who want to install and use solar energy. This year, the General Assembly passed Senate Bill 504, which says HOAs can impose so-called “reasonable restrictions” on the installation of rooftop solar, and the legislation says restrictions are considered unreasonable if they increase the cost of […]
Be Reasonable, It’s Good Business Judgment (FL)
A recent decision by Florida’s Fourth District Court of Appeals (“4th DCA”) highlights the deference courts in Florida give community association boards of directors when they make informed, reasonable decisions with respect to enforcing restrictions in their governing documents. In Miller v. Homeland Prop. Owners Ass’n, Inc., 284 So. 3d 534 (Fla. 4th DCA 2019), […]
San Juan Island HOA Dispute Results in Epic Appellate Court Opinion (WA)
Twenty homeowners in a San Juan Island development spent the better part of a decade fighting (both literally and figuratively) over the meaning of a set of restrictive covenants governing the use of their land and a waterfront parcel, the boundaries between their lots and a waterfront parcel, the erection of a spite fence, and […]
NY Residential Cooperative Corporations and Condominium Associations — Left Out of Protections under Governor Cuomo’s E. O. 202.38 and the Real Estate Entity Guidance But Must Prepare Business Safety Plans
On June 6, NY Governor Andrew Cuomo issued Executive Order No. 202.38 which provides commercial building owners and retail store owners and managers with immunity during the covered period, from claims of violation of the covenant of quiet enjoyment and frustration of purpose if they deny admittance to individuals who refuse to participate in discretionary […]
Virginia Allows Condominium Association’s Insurer to Subrogate Against a Condominium Tenant
In Erie Insurance Exchange v. Alba, Rec. No. 190389, 2020 Va. LEXIS 53, the Supreme Court of Virginia considered whether the trial court erred in finding that a condominium association’s property insurance provider waived its right of subrogation against a tenant of an individual unit owner. The Supreme Court reversed the lower court’s decision, holding […]
Implied Coinsured? Subrogation Actions Against Condominium Tenants (VA)
When considering a claim’s subrogation potential, insurance carriers are often confronted with contractual waivers of subrogation that potentially bar the claim. One of the most common waivers carriers face are those involving property damage claims in condominium buildings. In a recent decision, the Virginia Supreme Court held that in the absence of specific language otherwise, […]
Colorado’s Consumer Protection Act Claims in Construction Defect Actions
Over the past twenty (20) years, plaintiff attorneys in Colorado have routinely asserted Colorado Consumer Protection Act (“CCPA”) claims in addition to the “standard” construction defect claims that are the foundation of CD lawsuits. This article sets forth the elements a plaintiff must establish under Colorado law to prevail on a CCPA claim and, in […]
Parque Towers developer faces lawsuit seeking class action over allegedly mismarketed condos (FL)
For the 10th time this year, condo buyers at Parque Towers in Sunny Isles Beach are suing the developer over allegations of selling units that were smaller than allegedly advertised. Read the article……………………………
Memorandum of Association Assessment Lien (VA)
HOAs and condominiums continually chase after their members for unpaid assessments imposed for maintenance of common areas and amenities. Normally, a creditor who wants to go after a defaulting “customer’s” property or assets needs to sue them for a judgment if they want to record a lien in the land records. Association boards grew tired […]
9th Circuit Finds HOA Foreclosure Cannot Extinguish FHFA Interest (NV)
The Ninth Circuit relied on the Housing and Economic Recovery Act of 2008 (HERA) in ruling that Fannie Mae’s financial interest in a loan purchased in 2003 could not be extinguished by a foreclosure sale initiated by the property’s neighborhood HOA. This ruling is the most recent case in a number of cases over the […]
New Regulations for Common Interest Communities Concerning Elections and Board Meetings (NJ)
The New Jersey Department of Community Affairs, Division of Codes and Standards (DCA) published new regulations under the Planned Real Estate Development Full Disclosure Act (PREDFDA) on May 18, 2020. These new regulations are intended to serve as an update to the Radburn Election Law (P.L. 2017, Ch. 106) and will have a significant effect […]
Summary of New Virginia Legislation Impacting Community Associations in 2020
The Virginia General Assembly passed hundreds of bills during the 2020 legislative session. For those who lead, live in, or associate with community associations, many of these changes could impact the day to day operations of how individuals and these associations interact. Below is a summary of some of the General Assembly’s more significant recent […]
Unit Owner Insurance Deductible Responsibility Increased to $10,000 (MD)
Legislation enacted during the 2020 session of the Maryland General Assembly increases the amount for which an individual unit owner is responsible where the cause of damage to any portion of the condominium originates in their unit. Under Section 11-114 of the Maryland Condominium Act, condominium master policies must cover property damage to all of […]
Condominium Act Amendment Requires Adopted Annual Budgets To Be Distributed To Unit Owners (MD)
An amendment to Section 11-109.2 of the Maryland Condominium Act passed during the 2020 session of the Maryland General Assembly requires that the budget adopted at an annual meeting be distributed to each unit owner no more than 30 days after the meeting at which the budget was adopted. Read the article………………………………..
Amendment To The Condominium Act Establishes 60-Day Period For Holders of Mortgages And Deeds Of Trust To Object To Amendments (MD)
An amendment to Section 11-103 of the Maryland Condominium Act, adopted by the General Assembly during 2020 legislative session, clarifies the procedures for obtaining the consent of the holders of mortgages and deeds of trust to amendments to the condominium’s declaration, where such consent it required under a condominium’s governing documents. Read the article………………………….
Restrictions in Community Documents Will Be Strictly Construed by Courts (FL)
A community association’s declaration of covenants governs the duties and responsibilities between an association and its owners. When interpreting the text of such documents, courts will apply a rule of strict construction that requires a court to apply any unclear or ambiguous language in the manner most favorable to the owner. Strict construction has a […]
Appellate Division Affirms Annulment of License Agreement to Affix Private Dock to Property Owner’s Association Community Docks (NY)
The Lattingtown Harbor Property Owner’s Association, Inc., (“POA”) entered into a license agreement, dated November 29, 2017, with another member, Peter Tully, granting an exclusive right to affix private docks to the POA’s community dock in exchange for a license fee and services provided to the POA by Tully’s construction company. Another member of the […]
Change in Law Authorizing New Procedures for Amending Governing Documents (MN)
On May 13, 2020, the Minnesota legislature unanimously voted to amend Minn. Stat. 515B.2-118 to authorize new procedures that communities can use when amending governing documents. Specifically, (1) an association can obtain ‘deemed’ approval to amendments from owners who do not vote or do not respond to a request for consent, and (2) where approval […]
Virginia 2020 Legislative Update for Common Interest Communities
The Virginia General Assembly approved a number of bills during its 2020 legislative session. Several of the bills, directly or indirectly, impact common interest communities. The Governor of Virginia signed the following bills into law in March, which will take effect on July 1, 2020. We have outlined the legislative action taken by the Virginia […]
California Wildfire Disasters: The Interpretation and Implementation of Our New Insurance Laws
On a Thursday morning, I received the call that no daughter ever wants to receive. It was from my mom and her car was surrounded by fire. At the same time that I was taking my mom’s call, my dad and stepmom were sending me videos of several fires on the opposite side of town […]
Homeowner’s Association Denied Tax Exempt Status
A homeowner’s association doesn’t qualify for tax-exempt status because it’s operated primarily to benefit the owners of condominium units and not to benefit the social welfare, the Internal Revenue Service said… Read the pertinent IRS section…………………………
Insider Real Estate and Community Association Law Update (FL)
When Hurricane Wilma hit South Florida in October 2005 it caused damage to roofs at Kings Creek Condominium which damage was not immediately evident. In November 2008 Kings Creek notified it insurer, Citizens, of the loss, claiming that it was covered under an insurance policy for the named perils of wind and hail. The claim […]
The Rule of Judicial Deference: Protecting HOA Decisions Based on Reasonable Investigation and Made in Good Faith
Volunteer officers and directors of a common interest development (“HOA”) are required to make decisions which often have significant legal and financial implications for the HOA and its membership. Because they are unpaid volunteers, officers and directors are afforded certain protections against personal liability similar to those afforded to directors and officers of other types […]
9th Cir. Rules in Favor of Mortgagee Defendants in Nevada HOA Case
The U.S. Court of Appeals for the Ninth Circuit recently ruled in favor of the Federal Housing Finance Agency (FHFA), Fannie Mae, and the mortgage loan servicer in a title dispute arising from a homeowners’ association (HOA) lien foreclosure. Read the article……………………………
Change in Law Authorizing New Procedures for Amending Governing Documents (MN)
On May 13, 2020, the Minnesota legislature unanimously voted to amend Minn. Stat. 515B.2-118 to authorize new procedures that communities can use when amending governing documents. Specifically, (1) an association can obtain ‘deemed’ approval to amendments from owners who do not vote or do not respond to a request for consent, and (2) where approval […]
New 2020 Utah HOA Laws
Two bills were passed this year in Utah changing parts of the Condominium Ownership Act and the Community Association Act. The new laws that were passed by the two bills go into effect today, May 12, 2020. Read the article………………………………
Class-Action Lawsuit Seeks Coverage for Income Lost in Pandemic (NY)
The looming battle over lost-income insurance claims during the coronavirus pandemic has migrated from the New York State Legislature to a courtroom in Chicago, the Real Deal reports. A Las Vegas-based company called Vegas Image has filed a class-action lawsuit in federal court in Chicago, arguing that its lost-income insurance policy, also known as business income […]
Washington Court Holds Association Liable for Following Cost Allocations in Declaration
The Washington Court of Appeals recently issued an opinion that may invalidate the cost or voting allocations of many existing condominiums. In Mohandessi v. Urban Venture LLC, the court ruled that the common expense allocations in the declaration for the 2200 Westlake condominium in Seattle violated the Washington Condominium Act and that two homeowners could […]
Can An Association Limit Your Right to Bear Arms? (MI)
Can an association restrict an individual’s right to bear arms? The answer, though nuanced, is likely in the affirmative. An association’s board has wide authority under the governing documents to restrict everything from paint color to holiday decorations, as long as the action is reasonable. See, e.g., Allnutt v High Court of Foresters, 62 Mich […]
6th Circuit holds condo company and law firm did not act as debt collectors in non-judicial foreclosure
On May 4, the U.S. Court of Appeals for the Sixth Circuit held that a condominium management company, condominium association, and its law firm (collectively, “defendants”) acted as “security-interest enforcers” and not debt collectors and therefore, did not violate the FDCPA. According to the opinion, the homeowners lost their condominium to a non-judicial foreclosure after […]
Eagle Lake injunction dissolved (PA)
As a result of a hearing held Friday morning, an injunction to close the Eagle Lake Community Association has been dissolved. In a release to community members, the Board of Directors and management said the community is open to all owners. Read the article…………………………
Occupancy Restrictions and the FHA (FL)
Many Associations’ Declarations contain occupancy restrictions relating to the number of bedrooms in a home or unit. The standard provision reads two person per bedroom are permitted in a unit or home. However, does this occupancy restriction violates the federal and/or Florida Fair Housing Acts (“FHA”)? The short answer is, it depends. Read […]
Management Not a Debt Collector
The Bateses lost their condominium through a nonjudicial foreclosure. They claim the condo complex’s management company and its law firm violated the Fair Debt Collection Practices Act, which generally defines “debt collectors” to cover parties who operate a “business the principal purpose of which is the collection of any debts” or who “regularly collect[] or […]
Skanska and Seattle Condo Developer Seek To Resolve Costly Tangle Of Disputes (WA)
Skanska and a condominium developer in Seattle are trying to settle a multifaceted dispute over costs and payments that has simmered for a year and boiled over into a lien filed Jan. 31 by the contractor for $34 million, or about 20% of the contract value. The developer contested most of the lien in state […]
Does an Insurer Have a Duty to Defend a Claim Immediately Upon Receipt of a Florida Chapter 558 Construction Defect Notice?
Construction projects are fragile and issues often arise when the project in practice doesn’t match the project in planning. Resolving these issues has become more standardized with the enactment of Florida Statutes Chapter 558, but the chapter may create as much litigation for insurance companies as it hopes to alleviate. Insurance companies play a large […]
Washington Court of Appeals Prevents Covenant Enforcement Due to Delay
The Washington Court of Appeals recently decided in an unpublished opinion that the legal doctrine of laches prevented an owner of real property from obtaining relief based on a claim that the owner of neighboring property violated covenants governing both properties. Read the article………………………
Court Rules in Favor of Allowing Island Neighborhood to Rebuild 67 Units Destroyed in Sandy (NJ)
The summer of 2020 will be unlike any other, but for one group of residents in the Brick Township portion of the barrier island, it will represent one more year closer to getting back home. The bulk of Camp Osborn, the oceanfront neighborhood of small homes south of the Ocean Club condominiums on Route 35, […]
2020 Community Association Legislative Update – Part II (FL)
At the time of our last Legislative Update article, the Florida Legislature was working on several bills that would significantly impact community associations on a wide range of issues. However, as the 2020 legislative session closed amid the emerging coronavirus pandemic, most of the bills geared specifically toward community associations failed to receive approval, including […]
Pre-Suit Requirements for Community Association Disputes (FL)
Many lawsuits pertaining to community associations involve unit owners who disagree with the actions of their Community Association’s Board of Directors. In the recent case Iezzi Family Limited P’Ship v. Edgewater Beach Owners Ass’n, Inc., 254 So.3d 584 (Fla. 1st DCA 2018), the First District Court of Appeals held that in certain derivative lawsuits brought […]
How Quickly Must HOAs Bring Suit Against Homeowners for Violations of the Governing Documents? (CA)
Asked– Is the Board of Directors required to bring legal action, within a certain timeframe, against a homeowner, who is violating the association’s governing documents? Read the article……………………………
Icon Brickell condo association settles class action suit alleging it charged illegal fees (FL)
Anyone who rented or bought a unit at Icon Brickell’s Tower 1 since June 27, 2013 could soon collect up to $360 from the building’s condo association. On Tuesday, Miami-Dade Circuit Judge Jennifer Bailey is scheduled to rule on a final settlement agreement in a class action lawsuit against the Icon Brickell Condominium No. 1 […]
Stay Out of My Tiki Hut! Court of Appeals Explores Extent of Access Easements in Recent Case (NC)
The North Carolina Court of Appeals issued an entertaining decision in Sea Watch at Kure Beach Homeowners’ Association v. Fiorentino in November 2019. In this case, a developer of a seaside residential community had reserved an access easement across a homeowner’s lot, Lot 6, for other residents to access the beach. Read the article……………………………..
New Architectural Review Decision from the Court of Appeals: Martin v. The Landfall Council of Associations, Inc. (NC)
The NC Court of Appeals issued a new architectural review committee decision this morning, April 21, 2020, in Martin v. The Landfall Council of Associations, Inc. The case is an “unpublished” opinion from the NC Court of Appeals, which means the decision is not controlling legal authority and should not be cited in other cases. […]
Case Law Update: Assessments are Consumer Debts Under the Florida Consumer Collection Practices Act
In a recent case, Kelly v. Duggan, 282 So.3d 969 (Fla. 1st D.C.A. 2019), out of Florida’s First District Court of Appeals looked at whether condominium association assessments qualify as “consumer debts” under the Florida Consumer Collection Practices Act (FCCPA). Read the article……………………………
New Nevada Decisions Confirm Additional Ways to Satisfy HOA Superpriority Liens
The Nevada Supreme Court again turned its attention to superpriority liens in the first quarter of 2020, issuing two opinions dealing with tenders, i.e. attempts or offers to pay. These decisions outline additional ways that the superpriority portion of an HOA’s lien can be satisfied, offering hope to lenders embroiled in litigation over the continuing […]
Statute of Limitations for Construction Disputes (UT)
Construction Defects can financially cripple community associations. The cost to repair leaky and sinking buildings is not budgeted for when the community is created, is not planned for in reserve analyses, and is not anticipated by homeowners at the time of purchase. Purchasers legitimately expect the residences are well constructed in a manner that “can […]
April 2020, Insider Real Estate and Community Association Law Update
An investor purchased a home in the Viera East Golf Course Community at a foreclosure auction and objected to assessments made against the home. The Association contended that its lien survived the foreclosure and that the investor was responsible for past due assessments, as well as penalties incurred by the previous owner. The investor eventually […]
Homeowners Association Operator Ruled Not Tax-Exempt
The operator of a homeowners association doesn’t qualify for tax-exempt status because it doesn’t benefit the general welfare but instead furthers the interests of its members, the Internal Revenue Service said Read the PDF from IRS………………………………..
Washington Legislature Approves New Law Regarding Low-Water Landscaping
The Washington Legislature recently approved a new law regulating the ability of community associations and their governing documents to restrict low-water landscaping practices. The law first states that an association’s governing documents may not prohibit the installation of drought resistant landscaping or wildfire ignition resistant landscaping. Read the article…………………………….