Condominium associations regularly represent all of their unit owners as a consolidated class of litigants in cases challenging their local county ad valorem property tax appraisal assessments. However, a vital segment of the representation that associations provide their owners in such actions may soon be coming to an end as a result of a recent […]
Policyholder accuses State Farm and Firstline insurance companies of not covering losses to Brookhaven property (PA)
A policyholder whose apartment suffered physical loss and damages claims that a pair of major insurance companies have failed and refused to provide her the coverage that was due her in this situation, under those same policies. Miesja Cubito of Brookhaven filed suit in the Philadelphia County Court of Common Pleas on May 22 versus […]
Condo association allowed to challenge PTSD claims in elevator flap with wife of bankruptcy lawyer Geraci: Appeals judges (IL)
A federal appeals court said a lower court judge was correct in ruling against the wife of prominent Chicago area bankruptcy lawyer Peter Francis Geraci in her dispute with her condominium building over elevator access, saying a judge and jury didn’t break any rules in allowing the condo association to contest her claims to being […]
Liam Daly and Brandee Daly v. Gulick Group, Inc., CL-2018-214 Demurrer; Letter Opinion (VA)
A real estate purchaser may unilaterally rescind a purchase contract within three days of receiving a property owners’ association disclosure packet under Virginia Code § 55-509.4(A), (C). The relevant issue that the instant Demurrer raises is whether a real estate purchaser may unilaterally rescind a purchase contract more than three days after receiving an incomplete […]
Association Assessments Must Be Paid: Florida Depends on It
In the recent decision of First Equitable Realty III v. Grandview Palace Condominium Association, Florida’s Third District Court of Appeal ruled that the trial court erred in decreasing the amount of interest awarded to the association in a collection case due to “equitable considerations” and reiterated that equity does not afford defenses to delinquent unit […]
Can a Court Reduce the Interest Due the Association for Unpaid Assessments? (FL)
As a unit owner in a condominium association, you are obligated to pay assessments to the Association for the common expenses incurred to operate and maintain the Association property. When a unit owner fails to pay the assessments, the Association may sue to collect the amount due. Florida statute provides the unpaid assessments shall bear […]
Dispute over cost of windstorm damage leads HOA to file suit against Philadelphia Insurance (MO)
A homeowners association in Missouri is suing its insurer in a dispute over the cost of property damage. In a lawsuit filed May 9 in the Circuit Court of St. Louis County, Carlyle Townhome Association accuses Philadelphia Indemnity Insurance Company of failing to participate in the appraisal of property damage and breach of contract following […]
Allocation, Homeowner Associations: Judge Presiding Trial Did Not Abuse His Discretion By Failing To Apportion Fee Work Between Contract and Noncontract Claims Where Work On These Claims Was Inextricably Intertwined
We repeatedly have demonstrated in posts how homeowner association disputes can be a pricey proposition, depending on which side prevailed (or, for that matter, where no side has been found to prevail). Over the years in posting in the HOA areas, we see substantial six-figure and even seven-figure awards of fees/costs. That happened in Majestic […]
We can’t boot ‘boorish, sexist’ director off homeowners association board, Pa. court says
Although his behavior might be “deplorable,” a Commonwealth Court panel has refused to remove a director accused of making “boorish, insulting and sexist” comments to female colleagues on a homeowners association. It is not the court system’s role to intervene in such matters, Senior Judge James Gardner Colins concluded in the state court’s opinion. That […]
New Appellate Case: “Must Our Condo Association Buy Flood Insurance?” (NC)
What insurance must be purchased by an association can usually be determined by reading the governing documents and relevant NC statutes (and consulting an experienced community association insurance professional!). The NC Condominium Act details what insurance must be purchased by a condominium association created on or after October 1, 1986 (other statutes provide for insurance […]
Cloverplace Condos suit settles during appeal (FL)
Citizens Property Insurance Corp. has settled a lawsuit against it over sinkhole damage in Pinellas County’s Cloverplace condominium community. The settlement, disclosed after a public records request, came Monday — a little more than a month after the state’s insurer of last resort was hit with what the Tampa Bay Times called “one of the […]
2/4 DCA Reinstates Homeowner’s Breach Of Fiduciary/Quiet Title Claims And Allows Further Amendment Of Slander Of Title Claim, Which Causes Attorney’s Fees Award To HOA As Prevailing Party To Go POOF!
In Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes, Case Nos. B278198/B279671 (2d Dist., Div. 4 Apr. 23, 2018) (unpublished), homeowner sued HOA for breach of fiduciary duty, slander of title, and quiet title arising from a tree trimming dispute between neighbors. (Boy, oh boy, tree disputes are very common in HOA cases.) […]
Washington D.C. Appellate Court Holds Foreclosing Condominium Association Might Not Have Super-Priority if It Forecloses on More Than Six Months of Dues
The District of Columbia Court of Appeals recently reversed a lower court’s decision granting summary judgment to a condominium association and held that the association’s foreclosure of a “super-priority” condominium lien may not have extinguished an otherwise first-priority mortgage on the property. See U.S. Bank Nat’l Ass’n v. Green Parks, LLC, No. 16-cv-842 (D.C. Mar. […]
Appellate Division Ruling in Construction Defect Case Highlights Importance of Timely Expert Testimony and Adherence to Discovery Schedules (NJ)
A recent decision by the Superior Court of New Jersey Appellate Division underscores the fact that in construction defect litigation, where general contractors, project managers, architects and engineers are the primary defendants, it is imperative that qualified experts be retained and properly utilized by the parties in a timely manner. The failure of a party […]
Homeowners Association Land Use Approval Process Is Protected Activity Under Anti-SLAPP Statute (CA)
The California Court of Appeal for the Fourth District has determined that the actions of a homeowners association undertaken in accordance with its land use approval process are protected activities in furtherance of free speech under California’s anti-SLAPP statute. Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Association, 19 Cal. App. 5th 399 (2018) […]
Kolker reversed in Millstadt homeowners association dispute (IL)
Fifth District appellate judges reversed St. Clair County Associate Judge Chris Kolker for ruling that a homeowners association can’t charge dues and assessments because it doesn’t exist. They reversed summary judgment that Kolker entered in 2016, in a dispute from The Briars subdivision in Millstadt. Fifth District Justice Melissa Chapman found many mistakes in Kolker’s […]
Naugatuck Woman Secures $250,000 Settlement After Fall on Ice (CT)
A 55-year-old Naugatuck woman, who injured her left ankle, back and neck when she fell on ice and snow in a condominium complex, has settled her case for $250,000. Natalia Dubrovinskaya was taking out the garbage for her boyfriend, who lived at the Hidden Brook condominiums in Naugatuck, when she slipped and fell, according to […]
Condo Owes $7.5 Million for Man’s Fall Getting in Hot Tub (FL)
A resident of a St. Petersburg condominium was awarded more than $7.5 million by a jury for injuries he suffered in a fall in a hot tub. In 2008, Ehab Mina, 44, was about to enter the hot tub when he was startled to see it was partially drained, causing him to slip. He injured […]
Trial Court Correctly Denied Plaintiff’s Negligence-Based Fee Recovery Against HOA Based On Gravamen Of The Claim—Negligence, Not CC&R Enforcement (CA)
This next case should illustrate how both trial and appellate jurists try to get to the nub of a dispute—with the ultimate decision on the nature of the claim being very decisive on whether there is fee entitlement. Martini v. Bel Azure Homeowners Assn., Case No. D072288 (4th Dist., Div. 1 Apr. 12, 2018) (unpublished) […]
Court Holds That Condominiums May File Bankruptcy
Recently, the Bankruptcy Appellate Panel for the First Circuit (which includes Puerto Rico) decided that a condominium association is a “person” eligible to file bankruptcy. While the court did not permit the bankruptcy to go forward due to fraud, the decision is significant for condominium associations that are saddled with debt. The court’s reasoning follows: […]
HOA Homefront: Bad news for beachfront HOAs regarding vacation rentals (CA)
While short-term rentals present an opportunity for homeowners to make a profit on their home when not in use, such rentals also present many potential problems for both the municipality and the association. Weekender occupants are more likely to be less courteous and responsible to neighbors. Many will argue short-term rentals are “non-residential” use of […]
Association Collections Policies Clarified by Court Decision (IL)
In Lake Point Tower Condominium Ass’n v. Waller, 2017 IL App (1st) 162072, decided on June 28, 2017, the Association filed a Forcible Entry and Detainer action against Defendant to obtain possession of Defendant’s condominium. At trial, Defendant filed a motion to dismiss the complaint. In the motion, Defendant acknowledged that she owed past-due assessments […]
Attorneys’ Fees Can Be Awarded to CEQA Litigants Hoping to Preserve Their Home Values (CA)
Successful petitioners under CEQA who are motivated to file suit, in part, by their private financial interests are not necessarily ineligible for an award of attorneys’ fees under the public interest fee statute. Heron Bay Homeowners Association v. City of San Leandro, 19 Cal. App. 5th 376 (2018). Read the article…………………
$707,117 Fee Award To HOA Goes Away Upon Reversal Of HOA’s Victory In Judgment (CA)
Cathedral Hill Tower Condominium Assn. v. Garbar, Case No. A144036 (1st Dist., Div. 3 Mar. 27, 2018) (unpublished) was the latest appeal by homeowners against HOA in a decade-spanning action involving claims for nuisance, negligence, and breach of contract by HOA. A jury found in homeowners’ favor and awarded them nuisance personal injury damages of […]
New Decision from the D.C. Court of Appeals Recognizes Additional Defenses to HOA Super-Priority Lien Statute
As we noted in last week’s blog post, the District of Columbia Court of Appeals issued a decision on March 1, 2018, that created a new wave of uncertainty for lenders with loans secured by deeds of trust on condominium units in the District of Columbia. In the Liu decision, the court held that a […]
California Appellate Court Blocks SoCal Homeowners Association’s Short-Term Rental Ban
A California appellate court has found that a Southern California homeowners association’s ban on short-term rentals runs afoul of the state’s coastal access law. In June 2016, the Mandalay Shores Community Association passed a resolution that barred owners of about 1,400 single-family units along the Oxnard coast from renting their dwellings for less than 30 […]
Can Insurance Appraisers Favor and Advocate For The Party That Selected Them? (CO)
This is a question the Colorado Supreme Court is set to resolve after recently granting Owners Insurance Company’s petition for writ of certiorari in Owners Insurance Company v. Dakota Station II Condominium Association, Inc., 2018 WL 948601 (Col. Feb. 20, 2018). The Colorado Court of Appeals answered this question “yes” in the opinion being appealed […]
Mass. SJC Expands Time For Bringing Property Damage Claims Under Chapter 21E
Lawsuits to recover cleanup costs and property damages resulting from environmental contamination can be expensive and time-consuming. Plaintiffs should be sure their claims are timely before embarking on the litigation path. M.G.L. c. 21E (Chapter 21E), the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, contains a statute of limitations provision, Section 11A. […]
Washington D.C. Appellate Court Holds Foreclosure of Condominium Lien Extinguished First Mortgage Despite Condominium Association’s Representations to the Contrary
The District of Columbia Court of Appeals recently held that a condominium’s foreclosure of a “super-priority” condominium lien extinguished an otherwise first-priority mortgage on the property, despite the fact that the association’s notice of sale and deed to the third-party purchaser stated that the sale was “subject to” the mortgage. See Liu v. U.S. Bank […]
Michigan Court rules that association is not required to maintain road to township standards
In McGue v Glenbrook Beach Association, unpublished opinion of the Court of Appeals, issued March 6, 2018 (Docket No. 337785), the Michigan Court of Appeals upheld the trial court’s dismissal of an owner’s claim against a Michigan Summer Resort Owners Association for failing to maintain the roads in the subdivision according to the township ordinance. […]
The Gray Area of Liability When Building Systems Fail (NY)
A pipe bursts. An apartment floods. The resident files a damage claim against the co-op or condo board, contending that the flood was caused by the board’s failure to provide necessary maintenance of building systems. The board should not simply write a check for the damages. Instead, it should check the declaration, offering plan or […]
Get in Line: Association Assessment Lien Priority (FL)
At issue in today’s column is a subject we recently addressed regarding whether an association must record its assessment lien in the public records of the County in which the community is located in order for it to be effective and whether such lien relates back to the initial date of recording of the declaration. […]
Caselaw Update: Supreme Court Reverses Willowmere Decision re HOA’s Lack of Standing (NC)
The North Carolina Supreme Court, in a decision filed on March 2, 2018, REVERSED the Court of Appeals’ decision discussed below. You can read the Supreme Court’s decision here. As we discussed in our blog post below, which we posted on December 14, 2016, we disagreed with the Court of Appeals’ reasoning, and thankfully the […]
The Power of the ARC
As reported recently in the CAI Law Reporter, the end of 2017 saw a number of state courts rule on the powers of architectural review committees (or “ARCs” for short). In CB Investments v. Murphy and Weber v. Board of Directors of Laurel Oaks Association, the Wisconsin Court of Appeals and the Pennsylvania Commonwealth Court, […]
South Carolina Court of Appeals Reiterates Importance of Clear Rental Restrictions
I am often asked by homeowners, property managers, and HOA boards to review restrictive covenants to determine whether their community may restrict leasing in some way. The usual answer is “it depends,” and the South Carolina Court of Appeals made it clear in Community Services Associates, Inc. v. Wall that restrictive covenants must be clear […]
Appeals court remands HOA dispute over limo parking (IN)
A Hamilton County dispute between a local couple and their homeowners association will return to the trial court after the Indiana Court of Appeals determined the trial court’s final order was based on erroneous findings. When Craig and Catherine Severance began operating a commercial limousine business out of their Hamilton County home in the Pleasant […]
HOA Properly Awarded Fees Against Trustee And An Individual Suing As Property’s Successor-In-Interest (CA)
Plaintiff, who sued as a trustee of her deceased father’s trust and individually as successor-in-interest to a condominium property, lost an exclusive garage use dispute against the HOA through a summary judgment motion, which was affirmed on appeal. HOA then was awarded about $76,000 in attorney’s fees as the prevailing party under a CC&R fees […]
SJC Rejects Developer “Poison Pills” that Leave Condo Owners Without Construction Defect Remedies (MA)
The Massachusetts Supreme Judicial Court (SJC) has ruled that condominium developers can’t unreasonably restrict the ability of owners to file suits against them. The court rejected the “poison pill” provisions developers often use to insulate themselves from liability for construction defects, design flaws and other claims condominium owners might pursue against the developers of their […]
Statute of Limitations for Massachusetts Hazardous Waste Property Damages Claims Clarified (And, Possibly, Extended) (MA)
Recently the Massachusetts Supreme Judicial Court found that the statute of limitations for a property damage claim brought by a private party under Chapter 21E did not begin to run until that private party knew that the environmental damage to their property was permanent. As noted in the Court’s opinion, “The plaintiff must have knowledge […]
Delay Causes Loss for HOA in Lawsuit Over House Color (FL)
The approval of the colors which homeowners may use to paint the exterior of their homes is one of the most common architectural review stipulations that homeowners’ associations use to maintain aesthetic standards for their communities. Many HOAs require the prior review and approval of proposed house colors by architectural review committees, which are typically […]
Reasonableness Of Fees: HOA Properly Awarded $31,375 Out Of $91,936 Base Line Lodestar Fee Request (CA)
In Villa Riviera Condominium Assn. v. Berg, Case No. B269191 (2d Dist., Di. 3 Feb. 8, 2018) (unpublished), HOA did win a CC&R assessment battle against homeowner on a summary judgment motion, then seeking a lodestar amount of $91,936 in attorney’s fees, plus “fees on fees.” Homeowner argued that more than half the fees were […]
Eleventh Circuit Enforces “Eight Corners” Rule And Affirms Denial Of Insurer’s Request For Trial On Veracity Of Factual Allegations In Underlying Complaint
The U.S. Eleventh Circuit Court of Appeals, applying Florida law, recently affirmed that an insurer was obligated to defend its insured and not entitled to a jury trial on the veracity of certain factual allegations in the underlying complaint which gave rise to the insurer’s duty to defend. Addison Ins. Co. v. 4000 Island Blvd. […]
Massachusetts Highest Court Clarifies When Claims for Permanent Property Damage Under Chapter 21E Accrue
On Jan. 19, 2018, the Massachusetts Supreme Judicial Court (SJC) issued a decision in Grand Manor Condominium Association v. City of Lowell, 2018 WL 473078, which clarified, and some would say “changed,” when a claim for property damage accrued under G.L. ch. 21E, the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, also […]
Homeowner Associations/Prevailing Party: Homeowner’s Interim Preliminary Injunction Success, Although Ultimately Losing On The Merits, Did Not Make Her Prevailing Party Under Davis-Stirling Fee-Shifting Provision (CA)
In Artus v. Gramercy Towers Condominium Assn., Case No. A147297 (1st Dist., Div. 1 Jan. 24, 2018) (published), plaintiff homeowner sued HOA claiming it illegally failed to enforce cumulative voting standards under governing documents. The trial court granted homeowner a preliminary injunction on two of her three statutory claims, but she eventually lost on the […]
Judgment for Morgan County HOA upheld in drainage dispute (IN)
An exculpatory clause in the covenants of a Morgan County subdivision protects the local homeowners’ association from a complaint for damages filed by three residents, the Indiana Court of Appeals has ruled. As part of the covenants and restrictions of Foxcliff Estates in Martinsville, the HOA was charged with the upkeep of common areas and […]
Bad Facts Make Bad Law – Condo Version (MA)
Condo bylaws that restrict the ability of a condo board to sue the developer came in a for a beating by the Massachusetts Supreme Judicial Court. While refusing to prohibit all restrictive bylaws, the Massachusetts high court roundly criticized the bylaws in question. Deservedly so. The condo bylaw restricted the ability of the condo board […]
Court: Condo owners can’t have their rights to sue developers for shoddy construction waived away in condo docs written by those developers (MA)
The Supreme Judicial Court ruled today that developer-written condo-trust provisions that make it impossible to sue the developer for construction-related problems are illegal. The ruling means that the condo board of the 42-unit Cambridge Point complex at 2440 Massachusetts Ave. in North Cambridge can proceed with a lawsuit against the company that put up the […]
Owners of Lowell condo complex built on top of old dump could collect damages, SJC rules (MA)
Some owners of the Grand Manor condominium in Lowell on Friday got another chance to collect millions of dollars they say the city owes them for allowing their homes to be built on top of a dump the city closed some 60 years ago. In an unanimous ruling, the Supreme Judicial Court concluded the owners […]
Case Alert: A Very Un-Jolly Christmas for One North Carolina Homeowners Association
The North Carolina Court of Appeals delivered a lump of coal to one homeowners association this winter. In McVicker vs. Bogue Sound Yacht Club, Inc., available here, which came out on December 20th, the Court of Appeals ruled that a homeowners association had exceeded its authority when it attempted to collect a construction bond from […]
New Jersey Condominium Act Establishes Association’s Duty To Residents
In a December 29 decision, the New Jersey Appellate Division has held that not only does a condominium association have a statutory duty to maintain the common areas of the condominium, but also that this duty includes the identification and correction of dangerous conditions. Further, this duty extends to residents regardless of whether they are […]