The Washington Court of Appeals recently decided in an unpublished opinion that the legal doctrine of laches prevented an owner of real property from obtaining relief based on a claim that the owner of neighboring property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, […]
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 […]
MICHIGAN COURT OF APPEALS AFFIRMS SHORT-TERM RENTAL BAN IN RESTRICTIVE COVENANT
As we previously discussed on September 21, 2017, in Michigan Court of Appeals Rules in Favor of HOA on Short-Term Rental Ban, Michigan courts have consistently held that short-term rentals violate “residential use” and “non-commercial use” restrictions contained in restrictive covenants. On November 30, 2017, in Eager v Peasley, et. al., published opinion of the […]
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decision this morning, April 21, 2020, in Martin v. The Landfall Council of Associations, Inc. The case is an “unpublished” opinion from the NC Court of Appeals, which means the decision is not controlling legal authority and should not be cited in other cases. […]
Condominium Found To Have No Liability Coverage When Association Member Sues Association Which Contains Certain Exclusions
A recent case decision, Mt. Hawley Insurance Company v. Aquasol Condominium Association, Inc.,1 should have all association board members, condominium property managers, and condominium general counsel asking their insurance agents what will happen if their own association members sue the association. A recent case says there is no coverage for the cost to defend the […]
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 […]
What’s a Coop, Condo or HOA Board to do when it can’t get its Records from Outgoing Management? (NY)
When coop, condo or HOA boards rely on management to keep their books and records, getting outgoing management to turn them over to new management can be difficult. Some states like Florida have enacted laws covering transitions, but many states like New York do not have such specific laws yet. Reputable property managers handle transitions […]
Validity of Debts May Be Disputed by Oral Communication: Third Circuit Rejects Requirement of a Writing to Dispute Consumer Debt Under the Fair Debt Collections Practices Act
On March 30, 2020, the U.S. Court of Appeals Third Circuit issued an important decision in the case of Riccio v. Sentry Credit, Inc., approving oral communication as a method to dispute the validity of a debt. This decision overruled Graziano v. Harrison 950 F.2d 107 (3d Cir. 1991), a long-standing case requiring a writing […]
Court rules Site Condominium Unit was rebuilt in accordance with Master Deed (MI)
In DeCaminada v Hammond, unpublished opinion of the Court of Appeals, issued February 18, 2020 (Docket No. 345847), the Michigan Court of Appeals ruled that the co-owners of a site condominium unit who constructed a larger home, after losing their home in a fire, had constructed the home “substantially” in accordance with the master deed. […]
Fair Debt Collection Practices Act — debt qualification (IL)
Where a demand for attorney fees that arose from plaintiff’s actions as a board member of a condominium association did not qualify as a debt under the Fair Debt Collection Practices Act. Read the article………………………………
Conflicts of Interest will be Problematic for Board Members unless Handled Properly (NY)
Back in 2015, a condo board president’s toilet repeatedly leaked into the apartment below. It was determined that the condominium’s pipes to the toilet were improperly pitched. That was eventually fixed in 2015. But, it also was determined that the seal around the base of the board president’s toilet at the floor was damaged. It […]
Appeals court dismisses case over water-damaged condominium for lack of jurisdiction (TX)
An appeals court ruled a case involving a water-damaged condominium should be dismissed for lack of jurisdiction. Justice Jerry Zimmerer wrote that the court found that case lacked jurisdiction because the lower court lacked subject-matter jurisdiction and, because of that, the only thing the appeals court could do was vacate the lower court’s judgment and […]
New Case Holds that Post-Petition HOA/Condo Assessments That Become Due After A Homeowner Has Filed For Chapter 13 Bankruptcy Are Also Dischargeable – Ouch!
As many of you likely know, when a homeowner files a Chapter 7 bankruptcy, they may be able to “discharge” their obligation to pay the pre-bankruptcy petition debts including the assessments they owe their community association. And you likely know that when an owner files a Chapter 13 bankruptcy, they are looking for a way […]
2019 Florida Community Association Case Law Year in Review
Based on a seemingly low media profile many people wrongfully assumed Florida’s court system had little or no impact on their community association in 2019. Although lacking in “name plate” cases the following case law decided in 2019 will have a meaningful impact on Florida’s condominium and homeowner associations : Read the article……………………………
7th Cir. Rejects Plaintiff’s FDCPA Arguments Regarding ‘Consumer’ Debt
The U.S. Court of Appeals for the Seventh Circuit affirmed entry of judgment on the pleadings against a former condominium association board director’s claim that the association’s attorneys’ request for fees in a separate state court action filed by the association against the former director violated the federal Fair Debt Collection Practices Act (FDCPA). In […]
When a Condominium Falls Down (NC)
Eventually, gravity and time will prevail over concrete, steel, wood, and glass. The risks associated with that life span are captured well in transactions related to single-family homes and commercial structures, where investors, lenders, buyers, and tenants attribute value to improvements based on their remaining service life. In the multi-owner regime of a condominium, however, […]
Homeowner Associations: $390,668 Fee Award To HOA Affirmed When Appellate Court Affirmed HOA Interpretation Of Palm Tree View CC&Rs And Accompanying Policies (CA)
Over the years, because a lot of us live in common interest developments, we are used to seeing homeowner association fights with homeowners, many occurring based on view restriction or tree limitations—generating plenty of disputes by both sides. In the next case, HOA prevailed and, with it, garnered a substantial attorney’s fees award under the […]
Maryland Court of Appeals Bars Confessed Judgment Clauses in Consumer Contracts
A recent decision from the Maryland Court of Appeals provided somewhat surprising new guidance on the permissibility of confessed judgment clauses in consumer contracts. In Goshen Run Homeowners Association, Inc. v. Cisneros, the Court concluded that Maryland’s Consumer Protection Act (the “Maryland CPA”) prohibits all confessed judgment clauses in all consumer contracts. Read the article………………………….
Davis vs. Echo Valley Condominium Association: Guidance for Associations on Reasonable Accommodations and Nuisance Actions (MI)
The decline of smokers and smoking within one’s home in recent decades has led many co-owners in attached units to expect a relatively smoke-free living environment. However, the legalization of marijuana, first for medical purposes and now recreational use, has increased the number of complaints that associations must deal with involving unwanted odors. Read the […]
Maryland court of appeals: state consumer protection act covers HOA collections
On January 27, the Court of Appeals of Maryland affirmed the dismissal of a homeowners association’s (HOA) confessed judgment complaint against a consumer, and stated that the HOA could not file an amended complaint. According to the opinion, the consumer owned a home that is part of an HOA, which makes annual assessments to cover […]
Michigan Court of Appeals Holds That HOA Cannot Revoke Approvals for Docks
In Haan v Lake Doster Lake Association, unpublished opinion of the Court of Appeals, issued January 16, 2020 (Docket No. 345282), the Michigan Court of Appeals held in a 2-1 decision that an Allegan county homeowners association could not revoke approvals granted to owners to install docks. Read the article……………………………….
Compulsive Vulture, Alligator Feeder Settles for $53K with HOA (FL)
Readers of this blog may recall my recent article about a resident of the Ibis Golf and Country Club community in Palm Beach County who was creating an incredibly dangerous and destructive situation by feeding extraordinary amounts of food to vultures, alligators and other wildlife behind her home. On Wednesday, Jan. 15, the homeowner agreed […]
Maryland court of appeals: Law firm’s collection activities do not necessarily qualify for “professional services” exemption
On January 28, the Court of Appeals of Maryland held that not all services provided by a law firm or a lawyer fall within the “professional services” exemption under the Maryland Consumer Protection Act (CPA). In this case, a homeowners association (HOA) retained a law firm to collect delinquent HOA assessments, fines, penalties, and attorney’s […]
Davis vs. Echo Valley Condominium Association: Guidance for Associations on Reasonable Accommodations and Nuisance Actions
The decline of smokers and smoking within one’s home in recent decades has led many co-owners in attached units to expect a relatively smoke-free living environment. However, the legalization of marijuana, first for medical purposes and now recreational use, has increased the number of complaints that associations must deal with involving unwanted odors. Read the […]
Trafalgar Stump Dump: Arkansas Pollution Control and Ecology Commission Addresses Bella Vista Property Owners Association, Inc.’s Request for Hearing to Set Aside Consent Administrative Order (AR)
The Arkansas Pollution Control and Ecology Commission (“Commission”) addressed at its January 24th meeting a request by the Bella Vista Property Owners Association (“POA”) that it conduct an adjudicatory hearing to review the Consent Administrative Order (“CAO”) issued by the Arkansas Department of Energy and Environment – Division of Environmental Quality (“DEQ”) in the matter […]
Michigan Court of Appeals holds that HOA cannot revoke approvals for docks
In Haan v Lake Doster Lake Association, unpublished opinion of the Court of Appeals, issued January 16, 2020 (Docket No. 345282), the Michigan Court of Appeals held in a 2-1 decision that an Allegan county homeowners association could not revoke approvals granted to owners to install docks. The majority opinion relied on the terms of […]
Beware the Heavy Hand: HOA board members and property managers can be personally liable for damages
Recently, a Federal District Court in Nevada made clear that homeowners associations, their boards of directors, and their management companies should ensure that their actions and omissions are reasonable, even when dealing with residents that may not be acting in good faith. This article summarizes a case where an HOA initially prevailed in the face […]
6th Circuit Affirms Dismissal of Plaintiff’s FDCPA Suit over Law Firm Debt Collection Letters
The Sixth Circuit Court of Appeals affirmed the dismissal of a plaintiff’s complaint after it found that the plaintiff, who alleged violations of the FDCPA by a law firm that sent him two debt collection letters, showed no injury-in-fact traceable to the defendant’s challenged conduct, and therefore lacked standing to sue. Read the article………………………
Insider Real Estate and Community Association Law Update (FL)
A member in a private aviation community consisting of fifty private residences paid a private pilot to fly him and several co-workers out of the community’s airport several times per week. The community’s board of directors called a meeting to review the member’s status in light of those flights, which it contended constituted use of […]
Error In Lower Court’s Narrow Interpretation Of Civil Code Section 5975(c) Led To Reversal Of Attorney Fees Denial To Prevailing Defendants (CAA)
In Alexander v. Singletary, Case No. D075943 (4th Dist., Div. 1 January 21, 2020) (unpublished), one of five homeowners in a common interest development unsuccessfully sought judicial declaration that the governing documents were unenforceable as to him, and for partition from the development. Read the article…………………….
WA Courts Rule that HOA Members Must Be Present in Person to Vote on Amendments
The Washington Court of Appeals recently held in an unpublished opinion that a requirement in a homeowners association’s bylaws that owners be “present” in order to vote on amendments to that document means that they must be present in person. Read the article…………………………..
Bella Vista POA sues past board for stump dump (AR)
Current members of the Bella Vista Property Owners Association, POA, are suing former board members for money spent putting out the Trafalgar Road fire. Last month, attorney Jason Wales filed a lawsuit for Amie and Michael Armstrong at the Benton County Circuit Court against 47 former board members. Read the article………………………….
Minn. Supreme Court hears arguments in White Bear Lake levels case
The Minnesota Supreme Court heard oral arguments on Monday in the case involving water levels on White Bear Lake. Homeowners and others concerned about the lake sued the Minnesota Department of Natural Resources in 2012, claiming the agency mismanaged groundwater pumping and caused the lake’s levels to reach historically low levels. Read the article………………………….
Limitation on HOA Tort Liability for Failure to Uphold Maintenance Obligations (CA)
One of the primary purposes for which a homeowners’ association (“HOA”) is formed is to maintain and repair the HOA’s common areas, as well as any other areas designated within the HOA’s recorded Declaration of Covenants, Conditions and Restrictions (“CC&Rs”) (i.e., HOA Maintenance Areas). Faithfully executing the maintenance obligations under the CC&Rs is important to […]
Michigan Court of Appeals rules that Developer lost right to construct units on common element land
In Cove Creek Condo Ass’n v Vistal Land & Home Dev, LLC, __ Mich App __; __ NW2d __(2019), issued December 19, 2019 (Docket No. 342372), the Michigan Court of Appeals issued a published opinion establishing binding legal precedent and much needed guidance on the interpretation and application of MCL 559.167. In Cove Creek, supra, […]
South Carolina Supreme Court’s Quiet Erosion of Insurers’ Attorney-Client Privilege Rights
One decision that flew under the radar in 2019 continues the recent trend of courts to dispense, under among other things the previously discussed “at-issue” waiver doctrine, with insurers’ fundamental rights to confidentiality with respect to legal advice. In the June 2019 decision In re Mt. Hawley Insurance Co., No. 2018-001170 (S.C. June 12, 2019), […]
Homeowner Associations, Section 1717: $220,000 Fee Award To HOA Under CC&Rs Fees Clause Was Proper (CA)
HOA and HOA directors were awarded $220,000 in attorney’s fees against an unsuccessful plaintiff bringing a suit to challenge HOA’s policies and CC&Rs about parking and the permitting process, as well as enforcement thereof. Read the article………………………….
Religious Discrimination Fair Housing Case Settles for $40,000 (CA)
Just this week, the California Department of Fair Employment and Housing (DFEH) announced that it settled a housing discrimination case involving a condominium owner who alleged her homeowners association and management company violated the law by refusing to permit the resident to display a mezuzah (a small religious object placed on the door of many […]
Legal Update: Parth – Trial Court Decision (CA)
In 2016, the Court of Appeal released its opinion in Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal. App. 4th 268, causing much discussion in the common interest development industry. The Court of Appeal reversed the trial court’s grant of summary judgment in favor of defendant Erna Parth, finding that there […]
Resolving Satellite Dish Location Disputes: Sastin 2, LLC V Hemingway Association, Inc.
Homeowner associations often seek to exercise architectural control over exterior structures within their communities which impact community aesthetics. For some issues, however, an association’s concern over the form of a structure potentially impacts its function creating a conflict between the interest of the association and the interest of the owner seeking to install the structure. […]
New Appellate Case: Is Your Architectural Process Fair and Reasonable? (NC)
In a decision issued today (December 17, 2019), the North Carolina Court of Appeals examined the authority of an association to review and deny submitted architectural plans. This is the second architectural committee decision from the Court of Appeals this year. Read the article………………………….
Sidewalk Shed Trespass Claims Dismissed against Condo (NY)
In New York City, sidewalk sheds are typical. In many instances, buildings have to install them to perform facade work. If dangerous exterior conditions exist, a sidewalk shed might have to be installed on an emergency basis. That’s exactly what happened at the Icon Building located at 306 West 48th Street back in 2017. Read […]
Simply Unenforceable: HOA Covenants and How They Can Go Too Far
Covenants and restrictions form the foundation of a homeowners’ association. By establishing standards for what homeowners must do, and must refrain from doing, they set the tone for the community. Well-planned covenants can protect property values, promote safety and aesthetic appeal, and generally improve a neighborhood’s quality of life. But if they’re ill-conceived, covenants and […]
Condo manager defeats lawsuit over stone that fell on boy (MD)
The Maryland Court of Special Appeals has affirmed a lower court’s ruling of summary judgment for Summit Management Inc. in negligence case over a child’s injuries. Read the article………………………..
Court gives Wiggle Room for Condo Declaration and Bylaw Amendments Done Incorrectly (NY)
Amending condominium declaration and bylaws can be difficult; particularly if boards are not guided properly. The original bylaws when the condo was conceived by the sponsor may be outdated, incorrect or need to be changed for a myriad of other reasons. If the board doesn’t do it correctly, the condo could get caught up in […]
Insider Real Estate and Community Association Law Update (FL)
The Grand is a mixed-use condominium that has been the subject of a number of important appellate decisions involving Florida condominium law including United Grand Condo. Owners, Inc. v. Grand Condo. Ass’n, 929 So. 2d 24 (Fla. 3d DCA 2006), Grand Condo. Ass’n v. Cohn, 970 So. 2d 365 (Fla. 3d DCA 2007), and Cohn […]