A couple of years ago we saw the Florida state legislature add teeth to Florida’s condo and HOA laws governing theft, fraud, abuse and conflicts of interest. Recently, the Department of Business and Professional Regulation, the state agency that governs community associations, followed suit by implementing harsher civil disciplinary guidelines for condominium association infractions. Read […]
Appeals panel: Lawsuit vs condo association wasn’t frivolous; plaintiff shouldn’t owe $111K legal fee sanctions
A state appeals panel reversed a Cook County judge’s dismissal of a lawsuit in which a man claimed his condo board retaliated against him for lodging complaints. On March 29, a three-justice panel of the Illinois First District Appellate Court ruled on an appeal of Cook County Judge Kathleen Pantle’s decision. Justice Joy Cunningham wrote […]
No Need to Establish Notice Where Condo Association Caused Danger, Appeals Court Says (NJ)
In a case where a combination of dog urine and condominium stairs lacking a slip-resistant surface is alleged to have led to serious injury, a New Jersey appeals court has reopened a slip-and-fall suit after finding that dismissal based on defendant’s lack of notice of a hazardous condition was erroneous. Read the article…………………
Virginia passes bill for homeowners to make HOA fees more transparent
Virginia Governor Ralph Northam signed a bill this week that would give homeowners more transparency regarding different fees. The bill requires Homeowners’ Associations boards to make annual budgets available to homeowners prior to the new fiscal year. Read the article…………………….
Win for free speech in condo associations as appellate court reverses case dismissal (IL)
A unit owner’s lawsuit against a Gold Coast condominium association he says retaliated against him for expressing opinions about how it was managed will be allowed to move forward. The Appellate Court of Illinois has reversed a dismissal of the complaint, saying the unit owner, Brian Connolly, did “sufficiently plead” violations by the association of […]
Illinois Appellate Court Rejects Federal Insurance Coverage Analysis, Finds Duty to Defend Against Construction Defect Allegations
On March 29, 2019, the Illinois Appellate Court issued an opinion clarifying when a duty to defend against construction defect allegations exists under a subcontractor’s commercial general liability (CGL) policy. The decision reflects a broader shift in how courts have interpreted claims of faulty workmanship under CGL policies. Read the article………………….
Lawyer Xydakis, client sanctioned more than $1M for frivolous Wilmette condo association lawsuits (IL)
A Cook County judge has ordered more than $1 million in sanctions and penalties against a lawyer and his client in connection with a litany of legal actions against a Wilmette condo association. Marshall Spiegel sued the 1618 Sheridan Road Condominium Association though his attorney, John Xydakis. On Feb. 8, 2018, Judge Margaret Ann Brennan […]
Association Election ‘Shenanigans’ Lead to Contentious, Costly Litigation
A case in which a trial court concluded may have involved some association election “shenanigans” is going back to the trial court for further proceedings after the Fifth District Court of Appeal reversed the lower court’s order mandating binding arbitration. Read the article……………………….
Bank of America’s reading of HOA lien law was right on the money – 9th Circuit
A federal appeals court on Wednesday struck down a ruling that Bank of America’s $290,000 mortgage on a Nevada residence had been wiped out by a homeowners’ association foreclosure to recover less than $2,000 in unpaid dues. Read the article……………………
Court Bars Fire Insurer’s Subrogation Claim Against Condominium Tenant as Implied Co-Insured Under Lease and CC&Rs (CA)
In Western Heritage Ins. Co. v. Frances Todd, Inc. (No. A152428, filed 3/4/19, ord. pub. 4/2/19), a California appeals court held that a condominium association’s fire insurer was barred from suing a tenant in subrogation for fire damage under the rule that an insurer cannot subrogate against its own insured. The lease and the association […]
Is Your Association Missing Out on a Utilities Sales Tax Exemption? (FL)
Some associations are unaware that they could be entitled to an exemption for the sales tax related to a major expense – utilities for common areas serving exclusively residential properties, including condominiums and homes in a homeowners’ association. However, nonresidential uses are not exempt. Read the article……………………….
How To Calculate Real Estate Valuation Damages In A Construction Defect Action
When determining whether to pursue a construction defect action, few property owners consider the question: “how will my damages be calculated?”. While understandable, failure to properly address this question can prevent owners from recovering the full extent of their damages. This blog post discusses issues that should be considered when calculating the impact of a […]
HOA violates the Fair Housing Act by denying a service animal in the clubhouse
In Sanzaro v Ardiente Homeowners Association, et. al., Docket No. 2:11-CV0-1143-RFB-CWH, 2019 WL 1049380 (D Nev, March 5, 2019), a federal court imposed a judgment of $350,000 in compensatory damages, $285,000 in punitive damages and awarded the plaintiffs attorney’s fees and costs against their homeowners association. Based upon the facts of the case, the court […]
Lakewood community unlocks gate for Orthodox Jews after Sabbath complaint (NJ)
An Orthodox Jewish man has struck a deal with his homeowners’ association to unlock a pedestrian gate key to Jewish observances at the 55-and-over community in Lakewood, ending a dispute that served as another cultural flash point in the fast-growing township. Read the article………………….
Condo and Co-Op Conversion: Not Out of Time, Not Out of Luck (NY)
Many cooperatives and condominiums have overlooked, for decades, potent statutory rights enabling them to recapture building amenities currently under long-term, unfavorable leases with their developers. Because those rights were first promulgated during the 1980s’ cooperative and condominium conversion boom, they are often discounted as stale or forgotten altogether. But recent litigation may offer new hope […]
2019 Legislative Primer Part I – Busy Year for Legislation Impacting Community Associations (FL)
The number of pending bills this year affecting community associations in some way or another is substantial. Multiple bills regarding vacation rentals reveal the battle lines in Tallahassee between local governments, communities, and the hotel lobbyists versus the vacation rental companies. Senate Bill 1196 and House Bill 1129 are considered community-association friendly bills that impose […]
$19,233 In Attorney’s Fees And $815 In Litigation Costs To HOA Obtaining Injunction To Require Access To Condo Unit To Make Repairs Affirmed (CA)
In Durant Towers Owners Assn. v. Winchester, Case No. B288966 (2d Dist., Div. 8 March 29, 2019) (unpublished), HOA sued defendant condo owner to obtain access to her unit in order to determine if water leakage from her unit was causing damage to a unit below. After ignoring efforts for voluntarily cooperating, HOA sued under […]
Trial Court Properly Denied Fee Recovery To Prevailing Defendants Under Davis-Stirling Act Or Civil Code Section 1717 And Properly Struck The Costs Memorandum (CA)
In the fee area, you must have a solid fee entitlement basis and you usually have to apportion costs where there are several prevailing defendants rather than claim total costs without an appropriate allocation. Schuchmacher v. McDermott, Case No. B288130 (2d Dist., Div. 3 March 28, 2019) (unpublished) is a case where prevailing defendants obtained […]
Updated Lien Priority Law Benefits Condominium and Homeowners Associations in New Jersey
On March 25, 2019, the New Jersey Legislature passed legislation that will enhance the lien priority for condominium associations and, for the first time, give the same lien priority to homeowners associations. If this legislation is signed by Governor Murphy, both condominium and homeowners associations will enjoy a limited priority over all other liens (except […]
New Jersey Legislature Passes Important Foreclosure Reforms for Community Associations
For years, organizations that work with community associations, along with association residents, have lobbied for reforms to the foreclosure system in New Jersey. As of this writing, two bills currently sit on Governor Murphy’s desk which, when signed, will make small strides towards easing the burden felt by community associations when saddled with numerous properties […]
Florida condo association laws have growing pains
The 2017 bill providing website guidelines for condominium associations with more than 150 units (which does not contain timeshares) is going through some growing pains. The new law amended Section 718.111 of the Florida Statute and raises issues boards must consider as they strive for compliance. Read the article……………………
HOA responsibilities for homeowners being sexually harassed by other homeowners (CA)
Homeowner associations are notorious for issuing notices for the smallest infractions, so why are they silent when it comes to sexual harassment? The California Department of Fair Employment and Housing (“DFEH”) receives and investigates fair housing complaints based on numerous protected statuses. In 2017, a total of 212 claims were filed that alleged sex or […]
Architectural Variances Binding Future Owners (CA)
Asked – We are thinking about granting a variance to the Covenants of our Homeowner’s Association. The question is: would the Variance, if granted, apply to the next landowner (i.e., does the grant of a variance run with the land)? Read the Q&A…………………..
HUD Demonstrates Continued Commitment to Aggressive Enforcement of the Fair Housing Act
Fifty years after the passage of the Fair Housing Act, the United States Department of Housing and Urban Development (HUD) continues to demonstrate a strong commitment to Fair Housing, both through the support of private enforcement and through its own public enforcement. HUD recently announced that 80 non-profit organizations committed to fair housing will receive […]
Do Co-op and Condo Boards Have to Reveal Their Plans? (NY)
What is a board’s responsibility to advise a condominium unit-owner about planned work in the building, particularly if that work will have an impact on the unit-owner? That issue was considered in 345 East 50th Street LLC vs. The Board of Managers of M at Beekman Condominium. Read the article…………………..
Condominium Foreclosures and the Banking Industry (CT)
Many times, our clients will rely on the foreclosure process when unit owners are not paying their common charges. On occasion the unit owners will have a mortgage on their unit. When this is the case, the Association has to list the mortgage in its foreclosure action to ensure that the Bank has notice of […]
Virginia passes bill for homeowners to make HOA fees more transparent
Virginia Governor Ralph Northam signed a bill this week that would give homeowners more transparency regarding different fees. The bill requires Homeowners’ Associations boards to make annual budgets available to homeowners prior to the new fiscal year. Read the article……………………..
What Every Condominium Association Needs to Know About Security Deposits(FL)
………disputes relating to security deposits collected by our condominium associations from tenants who rent from individual unit owners. It is standard procedure for many associations, if the authority to do so appears in their declaration or bylaws, to require a security deposit from a prospective tenant. This is separate and apart from any other deposit(s) […]
The Million Dollar Flower Pot Fiasco
No matter how innocent or small the violation, never underestimate the possibility of it blowing up and costing both the association and owner far more money than it ever should have. Case in point: Avignon Villa Homes and Mr. Jim Hildebrand. This dispute involves a Kansas community where an owner decided to fight for his […]
Court clears way for completion of Bartonville water tower (TX)
The actual verdict against CTWSC, however, was not based on any water-related issues, adjacent property devaluation, or even aesthetics. It was based on CTWSC’s failure to comply with the Covenants, Conditions and Restrictions (CCRs) of Saddlebrook Estates HOA. “The HOA violation wasn’t brought up until 2014,” said Hanson in November 2015. He contended that, as […]
Don’t Screw Up Your Architectural Committee and Approval Process (NC)
In a decision issued today (March 19, 2019), the North Carolina Court of Appeals examined the issue of proper architectural committees and their decisions. Makar vs. Mimosa Bay Homeowners Association is an “unpublished” opinion from the NC Court of Appeals. That means that the decision is not controlling legal authority and should not be cited […]
New Jersey Court Ruling Addresses Enforceability of Waiver of Subrogation Provisions in Homeowners Association Documents
A continuing issue in the relationship between community associations and their constituent property owners has been the allocation of responsibility for damages to the residences as a result of a casualty originating in the common elements or common property. It is commonplace for homeowner association documents to provide that the homeowner’s insurance policy must contain […]
Parking and Storage Litigation Resolved in Favor of Condominium Association
The Washington Court of Appeals recently ruled in favor of a condominium association in an unpublished opinion concerning the ownership of parking spaces and storage areas. An owner came to believe that certain parking spaces and storage areas were appurtenant to his units. Read the article…………………..
No Abuse of Discretion In Awarding Prevailing Plaintiff $114,990.75 In Lawsuit Against Homeowners Association (CA)
The Broadway Hollywood is a 10-story historical building on the corner of Hollywood and Vine. It was constructed in 1927 and originally used as a store. However, the building was abandoned in 1987 and remained vacant for 18 years – until it was revitalized and converted from an obsolete building to modern use. Today the […]
Homeowner Plaintiffs In A Common Interest Development Dispute Over Assessment Liens Must Pay Prevailing Party Defendants $125,796.50 In Attorney Fees (CA)
The Davis-Stirling Act (Civ. Code section 4000 et seq.) governs the creation and operation of common interest developments, and requires such developments to be managed by a homeowners association, which homeowners are generally mandated to join. In Bertoli v. Dennis, Case No. A150924 (1st Dist., Div. 5 March 5, 2019) (unpublished), a Board of Governors […]
Former property owner not owed relief in fraud case against homeowners’ association (TX)
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 […]
Fire Sprinklers now being required for older high rise condos (FL)
Legislation is set to be heard by a Senate committee next week that would require older high rise condominiums in Florida to have sprinkler systems by January 2023. The measure says the multi-family buildings, mostly built in the 1960s and 80s, need to have sprinkler systems in each condo unit, or at to at least […]
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 […]
Florida’s Department of Business and Professional Regulation Issues New Guidelines for Community Associations – Stricter Disciplinary Civil Penalties of Noncompliance Now In Effect
Board members and property managers of condominium communities need to be aware that the State of Florida’s Department of Business and Professional Regulation issued revisions to rules pertaining to violations and penalties, 61B-21, Condominium Resolution Guidelines for Unit Owner Controlled Associations, which went into effect December 5, 2018. Read the article………………….
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…………………..
Make Sure to Contact Your Community Association Attorney When…
Serving on the board of directors of a community association, whether it is a condominium or homeowners association or a co-op, comes with a lot of responsibility. Part of being a successful leader is identifying potentially problematic situations and knowing when to ask for professional help. Read the article…………………..
Acceptance of Private Flood Insurance – Final Rule
Federal banking agencies issued a final rule, effective July 1, 2019, implementing the requirement in the Biggert-Waters Flood Insurance Reform Act (the “Act”) for the acceptance of private flood insurance on covered properties. The final rule largely mimics the proposal (which we addressed previously here), but with a few interesting revisions and additional details. Read […]
Fannie and Freddie Litigation Guidelines a Minefield for Condo Boards
When deciding whether to lend money to potential buyers or to unit-owners who want to refinance their mortgage in a condominium, lenders follow guidelines issued by federally backed Fannie Mae and Freddie Mac, which buy mortgages from lenders. Those guidelines were updated last year, and they contain a minefield of pitfalls for condo boards. One […]
Optional Condo Terminations (FL)
In part one of this blog post, we covered the basics of condo terminations, dived into how they work, and promised that in part two we’d cover recent legal changes for terminations, which include restrictions on terminations, stricter voting requirements, and other changes. Read the article…………………
Condo concerns voiced during Halsey Beshears confirmation hearing (FL)
Department of Business and Professional Regulation (DBPR) Secretary Halsey Beshears’ confirmation process has encountered some conflict. During a Senate committee hearing Wednesday, state Sen. José Javier Rodriguez, a Miami Democrat, voted against Beshears, a Republican former House member from Monticello. Rodriguez, explaining the vote, cited inaction on problems surrounding condominium complaints. 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………………………