The First DCA rendered an opinion this month wherein it certified conflict with the Third DCA over a condominium unit owner’s liability for association assessments and liens pursuant to § 718.116(1)(a), Fla. Stat., which pertains to a. Coastal Creek Condo. Ass’n, Inc. v. Fla Tr. Services LLC, 1D18-1457, 2019 WL 3114229, at *1 (Fla. 1st […]
Association Not Responsible for Resident’s Slip and Fall Accident on Common Areas (NJ)
One of the questions I am asked most frequently from condominium and homeowner Association boards (and managers) is whether the Association is liable for injuries that occur on the common elements? The answer that I always give is that an Association is only liable for an accident on the common areas if they knew of […]
Enforce or not to Enforce? A Community Associations’ Liability in Tort Cases (FL)
The Fourth District Court of Appeals recently addressed an association’s liability for failure to enforce no-street parking restrictions in Seminole Lakes HOA, Inc. v. Esnard, Case No. 4D18-15 (Fla. 4th DCA December 19, 2018). The case arose out of a car accident between Esnard and another driver which occurred inside the Seminole Lakes community. Read […]
How a short-term rental dispute in Indio landed in the California Supreme Court
In 2016, homeowners in Indio’s Orchard community were weighing an election-year decision. Should they — or shouldn’t they — restrict short-term rentals in their neighborhood? At the time, vacation rentals had become a contentious issue throughout the Coachella Valley, and The Orchard was no different. For years, opposing factions within the 93-unit community had disagreed […]
Unit Owner Litigation (IL)
It is a widely held concept that the US is a “litigious society.” Therefore, it is unsurprising that litigation by Unit n range from allegations of breach of fiduciary claims to property damage claims or personal injury claims to allegations of negligence. Regardless of whether or not Unit Owner claims are meritless, association boards find […]
Michigan Court of Appeals held that a co-owner was responsible for the pre-existing bylaw violations (MI)
In Fox Pointe Association v Ryal, unpublished opinion of the Court of Appeals, issued July 23, 2019 (Docket No. 344232), the Michigan Court of Appeals held that a co-owner was responsible for the pre-existing bylaw violations of a prior co-owner after purchasing a condominium unit. The court also held that the condominium association did not […]
Appeals Court Holds that Unit Owner Does Not Have Express Easement or Easement by Necessity to Gain Access To Fire Escape
Last week, the Massachusetts Appeals Court issued a decision in Chamberlain v. Badaoui, 2019 WL 3334700 (“Chamberlain”) reversing the lower court’s judgments, holding that a condominium master deed does not contain an express easement permitting a unit owner to gain access to a fire escape through another owner’s unit, nor did the unit owner have […]
Headstrong HOA Board Member Puts Himself in Harm’s Way Over Fair Housing Issues (DC)
In a recent case decided by the D.C. Court of Appeals, the court heard a matter involving the intersection between community association governance and fair housing law. In this case, Wilfred Welsh, a board member of the Chaplin Woods Homeowners Association (the “HOA”), sued fellow HOA members Beverly McNeil and Alvin Elliott (the “McNeils”), claiming […]
Another Fair Housing Case for Community Associations to Swim Around (FL)
The Federal Fair Housing Act, 42 U.S.C. 3601 prohibits housing providers from discriminating on the basis of race, color, national origin, religion, sex, marital status and disability. Most states, including Florida, have their own anti-discrimination laws, such as the Florida Fair Housing Act. In Florida, community associations are bound by both the Federal and Florida […]
Mold/Damage Claim: California Appellate Court Addresses Causation Question
A California Court of Appeal (“Court”) addressed in a July 2nd opinion an issue associated with a damage claim involving mold/water intrusion. See Longmire v. 1022 10th Street, Inc., Court of Appeal of California, B288063. The Court reviewed a jury’s finding of whether a defendant was a substantial factor in the damages allegedly caused by […]
Michigan Court of Appeals rules that the failure to hold annual meetings does not deprive a nonprofit corporation’s board of directors of authority to act on behalf of the corporation
On July 2, 2019, the Michigan Court of Appeals issued an Opinion in the matter of Channel View East Condominium Association, Inc v Gregory V Ferguson, unpublished per curiam opinion of the Court of Appeals, issued July 2, 2019 (Docket No. 344149). The issue presented to the Court in Channel View was whether a condominium […]
Residential Use vs Non-Residential Use in Michigan Condominiums
In Michigan, many condominium documents contain a limitation that a Unit may be used for “residential purposes” only. Historically, an owner or the developer of a parcel of property could impose reasonable building, use, and occupancy restrictions on a parcel of property subject to public policy limitations. Kaczynski v. Lindahl, 5 Mich App 377; 146 […]
Colorado Supreme Court: Appraisers May Not Advocate for Party Retaining Them
On June 24, 2019, the Colorado Supreme Court issued its opinion in Owners Ins. Co. v. Dakota Station II Condominium Assoc., Inc., Case No. 17SC583, 2019 WL 2571645 (Colo. June 24, 2019), holding that when parties invoke an appraisal clause in an insurance policy, the appraisers must be unbiased, disinterested, and unswayed by personal interests […]
Homeowners Were Not Catalysts For Easement Agreement Assumption, Because They Wanted A More Expansive Amendment (CA)
In Lemley v. Aliso Homeowners Assn., Inc., Case No. B288789 (2d Dist., Div. 3 July 3, 2019; posted July 5, 2019) (unpublished), HOA and homeowners got entangled in an easement agreement dispute in which homeowners wanted specific performance/declaratory relief to enforce an amendment to the agreement, while HOA defended on the principal grounds of mootness […]
Associations are Only Required to Make Reasonable Accommodations, Not All Accommodations
This is a post about reasonable accommodations that does not involve an emotional support animal. I cannot remember the last time I did not write about dogs. Recently, the Pennsylvania Federal Courts ruled that an Association does not need to provide the exact accommodation requested, if the Association offers accommodations that achieve the same function. […]
Court of Appeal Upholds Pre-Litigation Arbitration Clause (CA)
We recently blogged about the importance of the the plain language of an association’s Declaration when following pre-litigation requirements to a construction defect claim. On March 18, 2019, the California Court of Appeal ruled that trial courts should not deny a homeowner of his right to submit a case to arbitration pursuant to the CC&Rs […]
U.S. Supreme Court Holds Debt Collection Firms that Solely Practice Non-Judicial Foreclosure Exempt from FDCPA*
It is no secret that homeowners’ associations (“HOA”) are run and managed through the funds of monthly HOA assessments (“Fees”), and more often than not, HOA’s hire and retain debt collection firms to collect on past due Fees from delinquent members of the community. Sometimes, this leads HOA’s to lose large amounts of money in […]
Condo owner wins appeal against security guard service (TX)
A condominium owner won his appeal of a Harris County trial court’s decision to dismiss his negligence claim against a security guard service. The Texas First District Court of Appeals on June 6 reversed the Harris County District Court’s order dismissing Smith Protective Services Inc. from Igor Galperin’s lawsuit. Read the article………………………
Michigan Court rules that Homeowners Association did not violate Fair Housing Act in refusing fence for emotional support and service dogs
In Fox Bay Civic Assn, Inc v Creswell, unpublished opinion of the Court of Appeals, issued May 30, 2019 (Docket No. 343384), the Michigan Court of Appeals held that a homeowners association could enforce its deed restrictions banning fences and that a disabled owner could not erect a fence in order to keep her emotional […]
Do We Finally Have an Answer to the Age Old Question: Is the Association liable for damages to a unit when the roof leaks? (maybe…)
The facts in this LA case, Sands v Walnut Gardens Condominium Association, are simple. Pipes on the common area roof leaked causing water damage to the owner’s unit. According to the manager’s trial testimony the Association performed no preventative maintenance even though it would have been desirable; he said the roof and pipe had not […]
Recent New Jersey case addresses various issues of importance to the insurance industry
New Jersey Insurance law attorney Jared Stolz explains the Four Seasons at North Caldwell Condominium Ass’n case, a decision from the Superior Court of New Jersey, arising from allegedly defective construction. Read the article…………………………
Homeowner Prevailing In Unlawful Foreclosure Of Condo Unit Case Was Entitled To $434,000 In Damages And $720,000 In Attorney’s Fees (CA)
Yikes! Talk about a change in fortune based on a prior appeal. Homeowner finally won, obtaining damages and substantial attorney’s fees for hanging in there to the end. In Multani v. Castle Green Homeowners Assn., Case No. B278397 (2d Dist., Div. 7 May 28, 2019) (unpublished), HOA earlier won a summary judgment and $90,000 in […]
Association Hazard Insurance Policies Benefit not only the Association but also all Condo Owners (their tenants) and Mortgagees
Both Commercial and Residential Condominium CC&Rs frequently contain insurance language requiring the Association to obtain hazard (fire) insurance and prohibiting Owners from obtaining such coverage. Condominium Owners on the other hand are limited to obtaining liability insurance. Similar language was found in the CC&Rs of the condominium association in Western Heritage Insurance Company v. Frances […]
Fair Housing & Religious Accommodation: Curto v. A Country Place Condominium Association, Inc.
Sometimes, a community association tries to accommodate religious preferences and ends up discriminating on another basis. That is what happened in Curto v A Country Place Condominium Association, Inc., according to the U.S. Court of Appeals for the Third Circuit in a New Jersey condominium case handed down yesterday. In this case, the condominium had […]
Washington Court of Appeals Affirms Covenant Enforcement Jurisdiction
The Washington Court of Appeals recently ruled in an unpublished opinion that a superior court had jurisdiction over a covenant enforcement lawsuit by a community association against a set of its owners. Read the article………………………..
Premises Liability for Failure to Enforce (FL)
There are two recent cases of which community association boards should be particularly aware of. Both cases involved residents who were injured by third parties but who filed suit against their association claiming that the association was also partly responsible for their damages because of their failure to enforce the rules and restrictions in the […]
Insurance company loses effort to remand case involving coverage of Boca Raton condo president (FL)
An insurance company’s move to send back to state court a coverage dispute with a Boca Raton condo association has been denied by a West Palm Beach federal judge. According to the May 9 court filing in the U.S. District Court for the Southern District of Florida, plaintiff, American Mutual Insurance Company (Amica) asked the […]
Court Reverses Itself on Liability for Racial Discrimination (NY)
In a mystifying reversal, the U.S. Court of Appeals for the Second Circuit has “withdrawn” its recent decision decreeing that landlords – including co-op and condo boards – face liability under the Fair Housing Act if they fail to address racial discrimination between residents. One attorney described that decision as a “big deal,” with as-yet […]
Maryland Bankruptcy Court Determines Priority of Homeowner Association Fees versus Mortgage Lender’s Deed of Trust
In 2017, the Maryland Court of Appeals in the case of Select Portfolio Servicing, Inc. v. Saddlebrook West Utility Company, 455 Md. 313 (2017) (“Saddlebrook”) held that a provision in a recorded declaration by a utility that purported to create a lien to secure payment of an annual assessment to cover the construction of water […]
Law Review: Take care when refusing entry of service animal (NV)
I have written in earlier columns about the importance of honoring a request made by a disabled person for a guide dog, signal dog or service dog. Apparently, a certain homeowner association did not get the message. A new Nevada case, Sanzaro v. Ardiente Homeowners Association, underscores the point. Read the article……………………..
Recent California Court of Appeals Ruling Demonstrates Broad Reach of Ban on Nuisances
The Court of Appeals recently rendered an unpublished opinion in Harbour Island Condominium Owners Association, Inc. v. Alexander (2019), which provides some clarity regarding a tenant’s right to attend board meetings and the ban on noxious activities within the community. Read the article……………………
9th Circuit Holds Nevada HOA Super Lien Statute is Constitutional and Not Preempted by FHA Mortgage Insurance Program
The U.S. Court of Appeals for the Ninth Circuit recently held that Nevada’s homeowner’s association (HOA) super lien statute is constitutional, overruling its previous decision given new Nevada Supreme Court precedent rejecting the Ninth Circuit’s interpretation of the statute. Further, the Ninth Circuit held that this statue was not preempted by FHA Mortgage Insurance Program. […]
Plaintiffs in White Bear Lake level case to petition Supreme Court (MN)
Plaintiffs in the lawsuit filed against the Department of Natural Resources (DNR) intend to petition the Minnesota Supreme Court to hear the case. It’s the last step in a long, drawn-out process through the court system that started six years ago when the White Bear Lake Restoration Association (WBLRA) blamed historic low lake levels on […]
Pool Rules & Discrimination
A federal court has struck down, another restrictive pool use rule. On April 22, the Third Circuit Court of Appeals held that the A Country Place Condominiums in New Jersey violated the Fair Housing Act by implementing pool rules for male and female only swim times. By adopting a sex-segregated swim schedule, A Country Place […]
Insider Real Estate and Community Association Law Update April, 2019 (FL)
After entry of a final foreclosure judgment and foreclosure sale which did not satisfy the amounts owed pursuant to a promissory note and mortgage, the judgment creditor instituted a deficiency action seeking damages, interest, costs and attorneys fees. The deficiency action was filed less than five years after entry of the final judgment but more […]
1618 Sheridan Rd. Condominium Association v. Marshall Spiegel (IL)
In a collection of orders entered at the end of March 2019, Cook County Circuit Court Judge Margaret Ann Brennan ruled on several motions for sanctions, ultimately awarding over $1 million in sanctions against a single unit owner and his attorney. In so doing, Judge Brennan shone a spotlight on an all-too familiar phenomenon in […]
Court rules that the Michigan Condominium Act permits bylaws to allow for an Association to recover attorney’s fees for defending a lawsuit (MI)
In Stadler v Fontainebleau Condominiums Association, unpublished opinion of the Court of Appeals, issued April 11, 2019 (Docket No. 343303), the Michigan Court of Appeals held that the plain language of the condominium bylaws permitted the condominium association to recover attorney’s fees and costs for successfully defending a co-owner’s lawsuit. The court further held that […]
Court of Appeals Upholds Condominium Association’s Collection Action (WA)
The Washington Court of Appeals recently ruled in favor of a condominium association in an assessment collection dispute. The Court affirmed the association’s power to levy regular and special assessments for common expenses and its perfected lien on the unit. Read the article…………………
Court rules Wausau Underwriters Insurance owes duty to defend in construction defect lawsuit (CA)
A federal court has granted an insurance company’s motion for partial summary judgment in a case involving one of its insureds which is facing allegations of manufacturing defective plumbing products for a condominium construction project. According to the March 29 order of the U.S. District Southern District of California written by Judge M. James Lorenz, […]
Court of Appeals Affirms Public Policy in Favor of Adult Care Facilities (MI)
Just about every set of bylaws has them – restrictions on “commercial” activity and the requirement that a home/unit be used only for “residential” purposes. However, litigation regularly erupts over whether certain activities are commercial or residential in nature. With regard to adult foster care facilities and whether they constitute commercial or residential activity in […]
Co-op Board Bitten After Denying Request for a Service Dog (NY)
Enforcing a no-animals policy, it turns out, is no simple matter. In recent years, a growing number of co-op shareholders and condo unit-owners have asserted their right to have a service or support animal in their apartment as an accommodation for a physical and/or mental disability – even in buildings that prohibit animals. When the […]
Greenwood HOA fight goes back to trial court for damages hearing (IN)
A long-running fight over homeowner association fees and how they were assessed in a Greenwood housing development will return to a trial court to determine damages the HOA is entitled to from a developer and homebuilder that paid no assessments for several years. The Indiana Court of Appeals on Thursday affirmed a Johnson Superior Court […]
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…………………
ARBITRATOR DISMISSES $5 MILLION CONSTRUCTION DEFECT CLAIM FOR HOMEOWNER ASSOCIATION’S FAILURE TO COMPLY (CA)
There is an increasing trend by Developers, in an effort to avoid responsibility for construction defects, to insert provisions in the original Association governing documents which they draft that make it exceedingly difficult to pursue such claims against them. The significant harm of these ‘poison pill’ provisions was highlighted in the recent California Appellate Court […]
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 […]
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……………………….
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 […]
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 […]