The U.S. Court of Appeals for the Ninth Circuit recently reversed an award of summary judgment in favor of a defendant debt collector against claims that it violated the federal Fair Debt Collection Practices Act (FDCPA) by attempting to collect a debt that was discharged in bankruptcy and no longer owed. Read the article…………………………………
Court Holds Early termination of Manager causes Condo Association to Breach Property Management Contract (MI)
In Vista Property Group, LLC v Schulte, unpublished per curiam opinion of the Court of Appeals, issued September 17, 2020 (Docket No. 347471), the Michigan Court of Appeals vacated a no-cause judgment in favor of a condominium association and remanded the case back to the Kent County Circuit Court for entry of judgment in favor […]
What Constitutes a Product under the Economic Loss Rule (FL)
The Economic Loss Rule limits a defendant’s tort liability for defective products to injuries caused to persons or damage caused to property other than the defective product itself. The Economic Loss Rule has been used to exclude tort liability for damages to the constructed product. Read the article…………………………………
Injunction Petition Against Ornery Condo Resident Sends Important Message (FL)
The initial incident that led to the petition for the injunction, which was granted by the circuit court but eventually overturned on appeal, took place at a Broward County condominium in December 2018. That was when Patrick Gagnon, a member of the community’s board of directors, was accosted by prior board member Joseph Cash. A […]
Lawsuits Against HOAs are Generally a Protected Activity (CA)
Under California law, a Strategic Lawsuit Against Public Participation (“SLAPP”) is a lawsuit brought against a defendant as a form of punishment for engaging in protected activities. When such lawsuits are filed, the defendant may bring an “anti-SLAPP” motion to strike the plaintiff’s suit. In order to prevail on such a motion, the moving party […]
Florida Courts Clarify Role of Appraisal in Coverage Claim Disputes
For first party property claims, lengthy and costly litigation is not always the only mechanism for resolving a dispute. Most homeowner’s policies include detailed terms and conditions for parties to undergo appraisal when there is a dispute over the amount of loss. Read the article………………………………….
When Neighbors Tangle, Co-op Boards Can’t Look Away (NY)
A recent court case serves as a warning that co-op boards cannot sit back when there’s a dispute between shareholders. In the case Donahue Francis v. Kings Park Manor Inc., Corrine Downing and Raymond Endres, the facts are disturbing yet hardly rare. Kings Park Manor is a rental apartment complex on Long Island where Donahue […]
WA Court of Appeals: Tennis Court Removal Vote Complied With CC&Rs
Most of the owners in the Pickle Point neighborhood of Bellevue, Washington voted to remove a tennis court in the neighborhood’s common area. An owner in the neighborhood then filed a lawsuit challenging the validity of that vote Read the article………………………..
The Long Arm of the Business Judgment Rule at a Queens Condo (NY)
The Village Mall at Hillcrest Condominium, a pair of 15-story towers built in Kew Gardens Hills, Queens, in the 1970s, bills itself as a place “Where Neighbors Become Friends.” But a recent court case shows that it’s also a place where friends can become enemies – thanks to the ironclad protections and long life of […]
$260,625 Attorney’s Fees Award To HOA and Two Homeowners Prevailing On CC&R Short-Term Vacation Rental Dispute Affirmed (CA)
Lastavich v. Nob Hills Homeowners Assn., Case No. D075466 (4th Dist., Div. 1 Dec. 2, 2020) (unpublished) is an illustration of how this panned out in a real case. There, plaintiff homeowner lost a short-term vacation rental dispute as far as how the CC&Rs read and what they prohibited. Read the article…………………………………..
Condo Board Members Protected by Qualified Privilege in Co-Owner’s Defamation Claim (MI)
In Square Lake Hills Assn v Garland, unpublished opinion of the Court of Appeals, Docket No. 350403, issued November, 12, 2020, the Michigan Court of Appeals upheld a ruling of the Oakland County Circuit Court that dismissed a defamation claim brought by a co-owner against a condominium association, individual board members and the management company […]
MI Court Rules that Dangerous Dog Must Be Removed from Condominium
In Parkview at Orion Commons Condominium Association v Rouhan, the Oakland Circuit Court held that a dog who bit a neighboring co-owner is a dangerous animal that must be removed from the condominium premises. The Court determined, on the basis of the parties’ briefs and without oral argument, that the dog was dangerous, and granted […]
Washington Court of Appeals: Business Judgment Rule Only Protects Directors
The Washington Court of Appeals recently decided in a published opinion that the business judgment rule protects the directors of a condominium or homeowners association from personal liability but does not immunize the association itself. Read the article…………………………………
Condo Owner’s Claims Seeking to Hold Developer Liable Survive Motion to Dismiss (MA)
In Hershey v. Mount Vernon Partners, LLC, Judge Green faced dueling motions to dismiss in a dispute arising from the purchase of an “ultra-luxury” condominium in Beacon Hill. Judge Green granted Brett Hershey’s motion, in part, dismissing counterclaims for interference with business relations and violation of the Massachusetts Wiretap Act Read the article……………………………
New Appellate Case Raises Issues For Mixed Use Developments in Florida
A recent decision by the Third District Court of Appeals has engendered uncertainty about the manner of creating mixed used developments containing a residential condominium component in Florida. The case of IconBrickell Condominium No. Three Association v. New Media Consulting, LLC, decided October 7, 2020 involved an appeal from summary judgment granted to an owner […]
Condo Owners Win Lawsuit Over Construction Defects (NY)
Buyers of recently built condominiums with construction defects – by no means an exclusive club in New York City – have reason to rejoice. In a new ruling, the Appellate Division of the State Supreme Court has clarified a 2013 ruling, paving the way for condo boards to seek compensation from sponsors and investors for […]
Dead Tree Lawsuit Against HOA Arborist Dismissed
Contemporary land development policies would not work well without trees. Lot owners use trees for shade, ornamentation, and to screening. Subdivisions, especially cluster developments, often include common areas where trees or shrubs provide dense visual screening of the development. Vegetation can be more attractive and taller than fences. When a tree dies, it transforms from […]
James Cawlo. v. Rose Hill Reserve Homeowners Association, Inc. et al. (Fallen tree) (VA)
New Fairfax Circuit Court opinion in a case where a landowner sued the HOAs tree inspector for failing to determine that a tree in their backyard was dead (the tree fell and hit someone after inspection) Read the opinion (PDF)………………………………….
Circuit Court Upholds Rule Requiring Residents to Sign Assumption of Risk Form As a Condition to Using Certain Common Areas During the Pandemic (VA)
A Charlottesville Circuit Court held that a rule promulgated by a Virginia property owners’ association requiring residents to sign an assumption of the risk form prior to using certain common areas was reasonable. See Norman v. Foxchase Owners’ Assoc., Inc., Case No. CL20-1481 (Albemarle Cnty., Oct. 30, 2020). From what can be gleaned from a […]
This Case Went to the Dogs, Then to Court (NY)
They might be man’s best friend, but what happens when dogs attack the residents of a condominium community? In Board of Managers of Fishkill Woods Condominium v. Gottlieb, the State Supreme Court’s Appellate Division considered that issue, but also the important issues of whether the condominium board had the right to impose fines, and whether […]
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 Rules in Favor of Brooklyn Condo Board: Business Judgment Rule Protected Board, Say Attorneys (NY)
Read the article……………………………
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 […]
Association Publication of Deadbeat List & Third-Party Purchaser Assessment Liability (FL)
Two New Cases Board Members and Managers Need to Know About – CASE No. 1: On June 12, 2020, the Florida’s Fifth District Court of Appeal (“5th DCA”) entered its opinion in Latheresa Williams, On Behalf Of Herself And All Others Similarly Situated v. Salt Springs Resort Association, Inc., and Bosshardt Property Management, LLC., Case […]
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 […]
Appeals court rules for Indianapolis in dispute over trouble condo’s receivership (IN)
Court orders in favor of the city of Indianapolis in the latest of long-running disputes over a dilapidated condominium development on the city’s northeast side were upheld on appeal Tuesday, including an order that the condo corporation and members pay half of a receiver’s fees. The litigation is the third appeal involving the Towne & […]
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 […]
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 […]
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 […]
Does the Pollution Exclusion Bar Coverage for Injuries Arising out of Viruses and Bacteria? (FL)
Applying Florida law, a federal district court in the Southern District of Florida held in 2009 that the insurer did not have a duty to defend against a claim for injury resulting from a virus. In First Specialty Insurance Corp. v. GRS Management Associates, Inc.,2 First Specialty Insurance Corporation brought a lawsuit against a residential […]
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 Extensive Short-term Rentals Violated Residential Use Restrictions (MI)
In Cherry Home Association v. Keith Barker, et. al., the Leelanau County Circuit Court held that several lot owners violated residential use restrictions by engaging in extensive online short-term rentals. After holding one of the first zoom bench trials in the history of the Leelanau County, on August 26, 2020 the trial court determined that […]
Tax Court partially reverses tax board’s dismissal of HOAs’ common area claims (IN)
A final decision by the Indiana Board of Tax Review that dismissed claims from three homeowners associations was partially reversed by the Indiana Tax Court in a Monday decision. Read the article……………………………..
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 […]
Insurer May Not Intervene In Insured’s Construction Defect Trial To Seek Allocation of Damages
Bolt Factory Lofts Owners Ass’n v. Auto-Owners Ins. Co., 2019 COA 121 (Colo. App. 2019), cert. granted en banc, Auto-Owners Ins. Co. v. Bolt Factory Lofts Owners Ass’n, 2020 Colo. LEXIS 250 (March 16, 2020)[1], involved a construction defects case in which the Association sued six contractors for alleged construction defects at one of its […]
Settlement: Idaho company blocked from gouging $100k in Florence repairs from Hampstead residents (NC)
Two years after Hurricane Florence caused widespread flooding across the Cape Fear region, the state’s attorney general has blocked an attempt by an out-of-state water remediation company to collect nearly $100,000 from a group of Hampstead condominium owners for flood damage repairs. Read the article…………………………….