Owners are not allowed to defame board members and a defamation claim is a way condos can address bad owners. There have been a lot of articles about the limits on condominiums addressing bad owners and how they are more difficult to address than bad shareholders in cooperatives. This is true, but there are ways […]
Insurance Subrogation Case Impacts Condominium Associations
In May, the Supreme Court of Virginia ruled that an insurer did not waive its subrogation rights (the process by which an insurance company collects money from the party at fault) against tenants of a unit owner in a condominium insurance policy. The insurance company can pursue a claim for damages against the tenant even […]
Application of the Business Judgment Rule to Community Association Board of Directors (FL)
The board of directors of community associations are responsible for making important decisions affecting the community and its members. As a result, disputes sometimes arise between the association and its members. In the event the dispute evolves into a lawsuit, the business judgment rule will protect directors from personal liability so long as they did […]
Rule Interpretation Conundrums (FL)
A recent Monroe County court case illustrates the importance of well drafted rules. In Biza Corp. d/b/a Galway Mobile Home Park v. Jarome Kaczmarek (FlWSUPP 2710BIZ2), the plaintiff mobile home park filed an action to evict Mr. Kacmarek (“Defendant”) from his lot in Galway Mobile Park for his violations of the park rules. The action […]
Appellate Panel Reverses Attorney Fees Award Involving Pembroke Pines Condo (FL)
An affiliate of real estate mortgagee Beltway Capital LLC that had acquired a Century Village unit in foreclosure had been awarded attorney fees in the lower court but the appellate panel reversed the decision. Read the article……………………………..
New Appellate Case May Impact Townhome Exterior Repairs (NC)
Today (August 4, 2020), the NC Court of Appeals issued an opinion that could impact townhome exterior repairs. The case is Shearon Farms Townhome Owners Ass’n II, Inc. v. Shearon Farms Dev., LLC. Shearon is a “published” case, which means the holding is binding on other parties with similar facts. Read the article……………………………….
Ruling reached in Eskaton appeal involving homeowner’s association (CA)
An appellate ruling has been reached on a case involving Eskaton Village Grass Valley and homeowners, reversing part of a previously reached judgment and sending several aspects of the case back to a trial court. Read the article…………………………………..
Prevailing Party: Trial Court Properly Exercised Its Discretion In Finding Dismissed Civil Harassment Defendant Was Not Prevailing Party And Not Entitled To Attorney Fees (CA)
Plaintiff in Steele v. Holcomb, Case No. G057931 (4th Dist., Div. 3 July 27, 2020) (unpublished), who served on the board of directors for a residential homeowners association, filed a petition for a civil harassment restraining order against a resident for violent and harassing conduct she alleged he displayed concerning maintenance issues at his residence. […]
Shelborne South Beach unit owners lose appeal contesting $30M in assessments (FL)
A pair of investors who bought condo-hotel units in the Shelborne South Beach suffered a significant setback in their quest to reverse a three-year-old court ruling that deemed $30 million in special assessments legal and necessary. Read the article………………………………
9th Cir. Holds Quiet Title Claims By GSEs Subject to 6-Year HERA Statute of Limitations
The U.S. Court of Appeals for the Ninth Circuit recently held that, under the federal Housing and Economic Recovery Act (HERA) statute of limitations provisions, a quiet title action brought by Freddie Mac or Fannie Mae is a “contract” claim with a six-year statute of limitations, and not a “tort” claim subject to a three-year […]
Supreme Court reverses appeals decision in lake level lawsuit (MN)
The state’s highest court affirmed a portion of the Court of Appeals decision regarding the lake level lawsuit and reversed a portion. Then they sent it back to the three-judge appeals panel. In a decision issued July 15, the Minnesota Supreme Court said plaintiffs in the case against the Department of Natural Resources (DNR) brought […]
Did you know that Owner Bankruptcy Filings Do Not Discharge Association Assessments or Pre-Petition Liens?
During these challenging economic times, many owners are failing to pay assessments and may even threaten to file, or actually file for bankruptcy protection. Many associations mistakenly believe that unit assessments are fully discharged when an owner files for bankruptcy protection. Pursuant to Section 523 (a) (16) of the U.S. Bankruptcy Code (cited as 11 […]
Washington Court of Appeals Affirms Dismissal of Defamation Claims
A small group of homeowners expressed very negative views about another homeowner in their neighborhood on social media. For example, they asserted that she was a “problem board member,” “insane,” and “a plague.” She sued them for defamation. The Washington Court of Appeals recently affirmed the summary dismissal of her lawsuit. Read the article……………………………
Community Association Not Liable for its Receiver’s Actions (FL)
Whether a tenant who prevailed in an eviction lawsuit was able to recover his attorneys fees from the community association which governed a condominium that was the subject of the receivership, the court appointed Successor Receiver for The Horizons West Property Owners Association, Inc. was at issue in the Circuit Court case of Orbe v. […]
Short-term Rental Case Impacting Community Associations
In February, the Court of Appeals of Kentucky ruled that using a property for a short-term rental didn’t classify as residential use and violated a restriction limiting the property’s use to a private summer residence. The homeowners in the case (The Hoffman Revocable Trust v. Marshall) purchased a home in a community association, which had […]
Bad Faith Expert Testimony in Coverage Litigation
Most lawyers trying bad faith cases want to introduce expert testimony to support their claims or defenses. Under Daubert, however, “bad faith” expert testimony is not always admitted. This article addresses when this type of testimony will be admitted and when it will be limited or excluded. Read the article……………………………..
Maryland Court of Appeals Recognizes a Cause of Action for Breach of Fiduciary Duty
In a newly issued opinion, the Court of Appeals of Maryland has clarified existing law and expressly recognized an independent cause of action for breach of fiduciary duty. In William H. Plank, II, et al. v. James P. Cherneski, et al., Misc. No. 3, September Term, 2019. the Court observed that whether Maryland recognizes an […]
9th Cir. Holds Conditional Offer Not Sufficient to Satisfy Nevada Superpriority HOA Lien
The U.S. Court of Appeals for the Ninth Circuit recently held that a conditional offer from a lender was not a valid tender to satisfy the superpriority portion of an HOA lien……A condominium owner fell behind on the assessments she owed her homeowners association (“HOA”) and filed a Chapter 7 bankruptcy on Feb. 29, 2012. […]
Mold – Have to Act Quick and Tee Up Your Condo’s or Coop’s Defense (NY)
Water damage + mold growth = lawsuit for damages. Condominiums and cooperatives have to deal with water damage all the time. When it happens, even when action is taken immediately to mediate, there may be mold growth that will eventually rear its ugly head. Where there is mold, you’ll probably find a plaintiff and an […]
Court grants $3k/mo License Fee, Attorneys’ Fees, Etc. for Neighbor Access (NY)
The 40 W. 20th St. Condominium has to sue to gain access to their neighbor’s property for an exterior project and the neighbor got $3,000 per month license fee, attorneys’ fees and other protections from the court. Best course is negotiating access agreements while negotiating the construction contract so there are no delays or unexpected […]
Court Finds This Triptych Sufficient To Establish A Director’s Breach Of Fiduciary Duty (CA)
Yesterday’s post discussed one aspect of the Court of Appeal’s holding in Coley v. Eskaton, 2020 Cal. App. LEXIS 629. The case involved a homeowner’s lawsuit against two directors of the homeowner’s association and their employers. Among other things, the plaintiff alleged that the directors approved assessments that benefited their employers in violation of the […]
Director Found To Have Breached His Fiduciary Duty By Sharing Corporation’s Privileged Information With His Personal Attorney (CA)
A homeowner in a common interest development sued the homeowner association and two of its directors and the directors employers. The directors’ were employed by two related companies engaged in the development and support of common interest developments. The homeowner association’s attorneys advised the association during the course of the litigation. One of the directors […]
Loveland woman scores major win in homeowners association foreclosure case (CO)
Martha Hummel was handed a major victory on Monday as a district court judge overturned the default judgment that allowed her homeowners association to foreclose on her Loveland home in 2019. The ruling came as a relief for the 70-year-old, who learned in August that she was being evicted from her house because of unpaid […]
Fourth Circuit Joins Sister Circuits to Broaden the Scope of the FDCPA’s Statute of Limitations
One of the first lines of defense when defending allegations of a statutory violation is the statute of limitations. As a complete bar to a plaintiff’s claims, the statute of limitations is one of the most powerful tools in a defense litigator’s pocket. Recently, the Fourth Circuit joined the Sixth, Eighth, and Tenth Circuits in […]
Emotional support dog didn’t have priority over tenant with allergies, state supreme court says
The Iowa Supreme Court ruled Tuesday that a no-pets building in Iowa City, Iowa, should not have allowed a new tenant to have an emotional support dog after an objection by another tenant with severe allergies. The court ruled 4-3 for tenant Karen Cohen in her lawsuit for breach of her lease’s no-pets provision and […]
9th Circuit Gives Freddie Mac gets six years to sue over foreclosure of HOA superpriority lien
The Federal Home Loan Mortgage Corp. has six years to establish that its liens survive foreclosure of state-law “superpriority” liens for unpaid homeowners association dues, a federal appeals court held Thursday. Read the article……………………………..
When can an Association foreclose against an Owner? (AZ)
The Laveen Meadows Homeowners Association (“Association”) filed a foreclosure lawsuit against a homeowner for unpaid assessments and other amounts. The homeowner did not respond to the lawsuit so the Association applied for a default judgment. The defendant then remitted payment for $5,000, which covered the entire balance of unpaid assessments. The defendant argued that this […]
Ruling Proves Community Associations Need to Revise Own Governing Documents (FL)
A ruling in May by Florida’s Third District Court of Appeal added to the growing string of decisions in recent years illustrating how an old and outdated provision in HOA and condominium association declarations is preventing some communities from collecting what they would be owed under the current state law from purchasers in foreclosure actions. […]
Broward Woman Accidentally Run Over by Boyfriend Gets $1 Million Presuit Settlement From Condo Association (FL)
A South Florida woman whose boyfriend accidentally drove his car into her in a dark apartment complex parking lot has obtained a $1 million settlement without having to file suit. Alexander Perkins of Perkins Law Offices in Miami represents Laura Canaveral, who was taking out the trash one evening in 2017 at the Westview Condominium […]
$742K Verdict After Stairwell Banister Collapsed (CT)
The plaintiff was walking up a staircase in a common area of her building. Reportedly, the stairwell’s banister had broken nearly three years earlier, and had been duct-taped together by another tenant. While the plaintiff was ascending the stairs, the taped-together stairwell banister collapsed beneath her weight. She fell backward down the staircase, and sustained […]
Real estate — condominium fees (IL)
Where a condominium buyer is liable for attorney fees incurred by the condominium association arising out of default by the previous unit owner, they remain liable for their share of the total fees incurred even if the majority of the fee was not paid by the association. Read the article……………………………….
‘Deadbeat list’ gets condo complex in trouble as class action gets OK from Fla. court
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 […]
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 […]
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, […]
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 […]
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 […]
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 […]
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……………………………
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 […]
Keep Your Bedsheets Off My Property – Restricting the Location of Clotheslines (FL)
While electronic communications are becoming much more prevalent with many offices moving to digital files, mailed notices are still a necessity. A present dispute concerning a homeowner’s installation of a clothes drying line is a reminder that 1) clotheslines are protected by Florida’s Renewable Resources Act and 2) the lack of specifics and guidelines governing […]
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…………………………
Keep Your Bedsheets Off My Property – Restricting the Location of Clotheslines (FL)
While electronic communications are becoming much more prevalent with many offices moving to digital files, mailed notices are still a necessity. A present dispute concerning a homeowner’s installation of a clothes drying line is a reminder that 1) clotheslines are protected by Florida’s Renewable Resources Act and 2) the lack of specifics and guidelines governing […]
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 […]
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, […]