Heron Bay Homeowners Assn. v. City of San Leandro (Halus Power Systems), Case No. A143985 (1st Dist., Div. 4 Jan. 12, 2018) (published) is a situation where an HOA did win a CEQA biological issue “on a close call” because there was some financial incentive by HOA as far as diminished property values from the […]
Navigating Safe Harbors and HOAs in Florida
The Florida Fourth District Court of Appeals (Fourth DCA) recently affirmed the extension of safe harbor protection provided to homeowner’s associations under §720.3085(2)(c), Florida Statute, to a nonmortgagee/non-mortgage holder. The statute addresses property assessments imposed by Florida homeowners’ associations. Under the pertinent provisions of this statute, if the associations’ governing documents allow for assessments, a […]
Appeals Court Hands Down a Win for Florida HOA (FL)
Victorville West Limited Partnership (“Victorville”) purchased the Inverrary Golf Course and Clubhouse within the Inverrary community in Lauderhill, Florida, in 2006. Victorville acquired the property subject to a restrictive covenant that became the subject of a lawsuit that the Fourth DCA recently ruled could not be canceled because it remained a substantial benefit to the […]
No Lien Required for Condominium Association to Collect Surplus Tax Deed Sale Proceeds (FL)
Condominium associations’ rights to collection unpaid assessments received a boost from the Fourth District Court of Appeals. In Calendar v. Stonebridge Gardens Section III Cd’m Ass’n, Inc., Case No. 4d 16-3393 (Fla. 4th DCA, December 13, 2017), the Applet Court tackled the issue of whether a claim of lien or judgment needs to first be […]
MI CT OF APP Dismisses Condo Bylaw Enforcement Case After Lawsuit Approval Deemed Improper
As previously discussed in HB 4446 allows Michigan Condominium Associations to enforce restrictions and defend lawsuits, it is not uncommon for developers to insert anti-lawsuit provisions into condominium documents that later have drastic consequences for Michigan condominium associations. In Sawgrass Ridge Condominium Association v Louis J Alarie, et. al., unpublished opinion of the Court of […]
Judge rejects True Life’s plan for Ahwatukee Lakes Golf Course (AZ)
A state Superior Court judge on Tuesday rejected The True Life Companies’ plan for houses and other amenities on the defunct Ahwatukee Lakes Golf Course. Judge John R. Hannah Jr. also ordered True Life to pay the attorney fees of the two residents who sued to have the course restored and further directed their attorney […]
Washington Condo Associations Do Not Have Lien Priority Over Existing HOAs
The Washington Court of Appeals affirmed last month that a condominium association’s lien for assessments was not entitled to statutory priority over similar assessments made pursuant to the covenants of an existing homeowners association within which the condominium was organized. Read the article………………….
Fourth DCA Invalidates HOA’s Fine for Failing to Provide Proper Notice (FL)
The authority to levy fines is a widely used tool by community associations for rules enforcement. However, if the process is not strictly followed, it can result invalidation of the fine and potential exposure to liability for expensive legal fees. The procedure for fining a homeowner is mandated by Florida statutes (Fl. Stat. 718.303(3) for […]
When A Declared Condominium Appurtenance To Unit Ownership Is Not So Connected After All – A Study In The Misapplication Of Section 718.110(4), Florida Statutes
Ownership of a condominium unit, includes “appurtenances”, meaning rights which are attached to the unit and pass with the unit upon its sale. A plain English definition of the term means “connected to”. Typical examples of an appurtenance include common elements to which one or more unit owners have an exclusive use right such as […]
Hudson County Court Distinguishes Controversial Palisades Decision
On December 7, 2017, a Hudson County Superior Court Judge, in the matter of Grandview II at Riverwalk Port Imperial Condominium Association, Inc. v. K. Hovnanian at Port Imperial Urban Renewal III, LLC, et al, Docket No. HUD-L-2839-14 (“Grandview II”), denied summary judgment to an architect retained by the developer who argued that the statute […]
In re Villas at Highland Park Homeowners Assoc. v. Villas at Highland Park, LLC (CO)
In a construction-defect matter filed by a homeowners’ association (HOA) against several developers, an attorney for the HOA previously represented one of the developers. The developers moved to disqualify that attorney under Rules 1.9 and 1.10 of the Colorado Rules of Professional Conduct. The trial court denied the motion, without what the Colorado Supreme Court […]
Case Law Update: Nottingham Village Condo Ass’n v. Pensom: Litigation Evaluation Meetings (MI)
In some condominium governing documents, there are provisions that require a co-owner vote before the association can file a lawsuit. These provisions range from the rather mundane to extremely onerous. In Nottingham Village Condominium Association v. Pensom, unpublished per curiam opinion of the Michigan Court of Appeals, No. 333311, Dated December 12, 2017, the Michigan […]
Appeals court rules Capella Park HOA must accommodate disabled residents (TX)
The Court of Appeals for the 5th District of Texas has reversed a trial court’s decision that was in favor of a homeowners’ association (HOA) trying to enforce its restrictive covenants against a home for disabled residents. The decision, filed Nov. 30, found that Willie E. Walls III and Melody Hanson, the operators of My […]
Nevada High Court Rules That Homeowners Association Can Pursue New Purchaser Claims Under Original Chapter 40 Rules
The Nevada Supreme Court has found that homeowner associations have standing to pursue “representative” claims on behalf of any new purchasers who bought their units after the association had already initiated its lawsuit. In High Noon at Arlington Ranch HOA v. The Eighth Judicial District Court of the State of Nevada (2017) 133 Nev., Adv. […]
Court Rules No Mulligans for Golf Course Investors (FL)
The struggles of the golf industry in the past decade are well chronicled, particularly in Florida where a large number of courses, built as amenities for or in conjunction with surrounding residential communities, has been negatively impacted by the economic downturn, playing habits, and perhaps an over saturation of the market. Couple those external factors […]
Connecticut appellate court sides with law firm in battle over legal fees
The Connecticut Appellate Court has upheld a lower court’s ruling in favor of Monroe-based law firm Beck & Beck LLC that had filed a lawsuit against James T. Costello to recover unpaid legal fees. According to the opinion issued Nov. 21, Beck & Beck initially filed a complaint in small claims court against Costello to […]
Treasure Island condo tenant blames owners for flooding, injuries (FL)
A New Hampshire woman is suing the owners of a Treasure Island, Florida, condominium, alleging negligence led to flooding and injuries. Deborah Rowles filed a complaint Nov. 8 in the Pinellas Circuit Court against Sunsational Beach Rentals LLC, Surf Beach Resort Condominium Association Inc. et al.,, alleging they failed to use due care to maintain […]
Michigan court rules #Condo #Association’s insurance policy may cover water damage resulting from construction defects
In Walters Beach Condominium Association v Home-Owners Insurance Company, unpublished opinion of the Court of Appeals, issued November 16, 2017 (Docket No. 335172), the Michigan Court of Appeals held that water damage caused by construction defects may be covered under a condominium association’s insurance policy. At issue was a rain storm caused water damage to […]
Wait. This Is Arbitration? I Thought It Was Mediation
……I imagine this may have been similar to what the defendant in Marano v. The Hills Highlands Master Association, Inc. said when it received an unfavorable arbitration award. “Did you say binding arbitration? No. We were participating in non-binding mediation. Not arbitration.” Things worked out for Vincent Gambini in the movie, they did not work […]
Board Recoups Big Legal Costs After Evicting Smoker (NY)
Some co-op and condo boards are penny wise pound foolish. And then there’s the board at an 80-unit co-op in Wheatley Heights, Long Island, which decided to spare no expense when it set out to evict a shareholder who repeatedly flouted the co-op’s smoking ban. It was a gamble that came with no guarantees and […]
Form Said ‘Mediation,’ But It Was Arbitration, Court Rules
An attempt to overturn an arbitration award based on one side’s claim that it believed it was engaged in mediation, not binding arbitration—an “unusual circumstance,” as the court put it—has failed. “With the exception of the retired judge’s mistake in having the parties execute a document memorializing the terms of a ‘civil mediation,’ there is […]
Michigan COA rules that Condo Association’s Insurance Policy may cover water damage resulting from construction defects
In Walters Beach Condominium Association v Home-Owners Insurance Company, unpublished opinion of the Court of Appeals, issued November 16, 2017 (Docket No. 335172), the Michigan Court of Appeals held that water damage caused by construction defects may be covered under a condominium association’s insurance policy. At issue was a rain storm caused water damage to […]
Homeowner Association Not Bound by Buyers’ Arbitration Agreement With Builder
Claims by a homeowner association against a developer are not subject to arbitration agreements between the developer and individual homeowners, where the claims are pressed on the association’s own behalf, a New Jersey appeals court ruled Thursday in a published decision. The appeals court set aside an order by a Superior Court judge compelling arbitration […]
Nevada’s Clarification Regarding a HOA’s Representational Standing
On September 27, 2017, the Nevada Supreme Court issued a decision clarifying the prior version of NRS 116.3102(1)(d)1, under which numerous construction defect cases are pending in Nevada. NRS 116.3102(1)(d), at the time the Complaint was filed, allowed homeowners associations to pursue construction defect claims on behalf of their members. In High Noon2, the Nevada […]
Trustees of Cambridge Point Condominium Trust v. Cambridge Point, LLC (MA)
In Trustees of Cambridge Point Condominium Trust v. Cambridge Point, LLC, No. MICV-2014-03136, 2016 WL 9753783 (Mass. Super. Nov. 18, 2016), appeal argued, SJC No. 2017-P-0113 (Mass. 2017), the trustees (“Trustees”) of the Cambridge Point Condominium (“Condominium”) Trust filed an action against the developers that built the Condominium, Cambridge Point, LLC and others (collectively, the […]
Washington Appellate Court: Condominium Bylaws Amendment Is Invalid
A recent Washington unpublished opinion concerned the amendment of a condominium association’s bylaws. The condominium’s declaration stated that amending the bylaws required the approval of a majority of the unit owners. The bylaws were amended in 2015 without the approval of a majority of the unit owners, and an owner challenged the validity of that […]
And Your Association Thought Foreclosure Was Bad? The Consequences of Tax Sales & Tax Deeds For Community Associations (FL)
It is a scenario familiar to every association: an owner falls behind on his or her assessments and doesn’t get current, and the association initiates the lien recordation and foreclosure process. However, before the association can foreclose its lien and move the property to foreclosure sale, the mortgagee of the property files suit to foreclose […]
New Jersey Court: Continuous Trigger Ends When Nature of Damage Is Known
Last week, the New Jersey Appellate Division issued a decision that may have a significant impact on insurance coverage for progressive property damage claims in the state. In Air Master & Cooling, Inc. v. Selective Ins. Co. of Am., No. A-5415-15T3, 2017 WL 4507547 (N.J. Super. Ct. App. Div. Oct. 10, 2017), the court first […]
Unit Fire Increases Association Insurance Premiums
What happens when a fire caused within a condominium unit destroys that unit, some common area, and damages other units? It becomes an expensive situation for the association. Even though insurance should pay for all of the damages, the association’s insurance premiums going forward could increase dramatically. This is exactly what happened to a small […]
Insurance Carriers Exclude Color Matching Requirements from Policies
The summer of 2017 saw a number of severe storms in the Midwest, with resulting insurance claims. As policyholders have made those claims, some have been surprised to see new provisions in their insurance contracts. Things are not always black and white in insurance policies, especially when it comes to the impact of a Minnesota […]
The Limits Of Exclusive Use Rights In Condominium Common Areas (MA)
It’s not unusual for condominium documents to set aside parts of the development’s common area for the exclusive use of particular units. This device allows the developer to offer a degree of privacy in decks, driveways, garages, attics, and similar spaces that are affiliated with, but outside of, a unit. But how exclusive is an […]
Court Confirms Condo Board Member’s ‘Unfettered’ Rights to Access Books, Records (NY)
As litigants and lawyers have discovered the efficacy of enforcing statutory and common-law books-and-records access rights through summary proceedings, this trend has spread not only to the residential cooperative corporation context but also to an even more popular form of communal living in New York: condominiums. Read the article…………….
Restrictive Covenants: The Impact on Washington Condo Owners
In 2017, the Washington Supreme Court issued a significant decision related to restrictive covenants affecting condominium units. It reaffirmed the importance of timely challenging of an amendment to condominium covenants, in particular for a restrictive covenant imposing a rental cap restriction. However, the Supreme Court also left unanswered some questions regarding the percentage approval necessary […]
The Critical Importance Of Properly Serving A Construction Lien Claim (NJ)
So, you properly file your construction lien claim within the time allowed by the New Jersey Construction Lien Law (“CLL”), and then timely send out a copy of the lien by certified and ordinary mail to the address of the condominium building where you performed your work. All set, right? Not so fast, according to […]
We’ve Got a Problem: Statute of Limitations on Long-Term Notes (FL)
A Florida Supreme Court justice Thursday issued a nearly five-page opinion to point out “the latest symptom of a more serious problem”—a misunderstanding over when the clock starts in foreclosure litigation with multiple defaults and suits. The confusion centers on whether the date of each missed payment carries any legal significance when calculating lenders’ deadline […]
Did the New Jersey Supreme Court Reduce the Time for a Common Interest Community to Assert Construction Defect Claims?
On September 14, 2017 the New Jersey Supreme Court issued a long anticipated decision in the matter of The Palisades at Fort Lee Condominium Association, Inc., v. 100 Old Palisade, LLC (“Palisades”). The decision may have an immediate impact on recently constructed condominiums, or those to be constructed in the future, that have construction deficiencies. […]
Nevada Supreme Court Rules HOA Super-Priority Liens Can Be Revived after Release
Homeowners’ associations have a more robust tool for forcing mortgage lenders to pay delinquent assessments following a September 14 decision by the Nevada Supreme Court. Nevada HOAs have enjoyed a super-priority lien under NRS 116.3116 for nine months of unpaid assessments preceding institution of foreclosure proceedings, in addition to certain charges for maintenance and nuisance […]
Wisconsin appellate court denies insurance coverage to a contractor because work was performed on a building that had synthetic stucco
A slew of lawsuits has plagued the construction industry regarding the use of exterior insulation and finish systems, also known as EIFS or synthetic stucco. Insurance companies were historically required to pay money towards those claims under standard commercial general liability policies. As they did in response to lawsuits involving asbestos and environmental contamination, insurance […]
Colorado Supreme Court Hears Oral Arguments in Case That Could Pose Threat to Metropolitan Districts
On September 20, 2017, the Colorado Supreme Court heard oral arguments in UMB Bank v. Landmark Towers Association, 2016SC455. The case was brought by the homeowner’s association of a condominium development regarding a TABOR election that took place several years ago. The purpose of the election was to form a metropolitan district that could issue […]
Judge rejects attempts to end Ramapo Mountain Lakes lawsuit (NJ)
A Superior Court judge rejected attempts Thursday to put an end to a controversial dues lawsuit that has roiled a former summer resort community in Oakland since the beginning of the year. Judge Christine Farrington denied a motion by Ramapo Mountain Lakes, Inc., or RML, for a summary judgment that would have ordered 1,645 property […]
Case Alert: Emailed Notices of Foreclosure Under In Re Ackah (NC)
In re Ackah: Must Planned Communities Now Serve Notices of Foreclosure Hearing Via Email? The North Carolina Court of Appeals issued an opinion on September 5, 2017, that appears to add an additional requirement for foreclosure trustees regarding the due diligence necessary to properly serve the homeowner in an HOA foreclosure proceeding. Read the article…………….
New Jersey Supreme Court Clarifies Statute of Limitations in Construction Defect Cases
In The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisade, LLC, ___ N.J. ___ (2017), the plaintiff was the Condominium Association that brought suit based upon defects in the condominium building after the Association took over control from the Sponsor and after the Association obtained its own engineering report. Summary judgment on […]
Trial Court’s Refusal To Award HOA-Affiliated Individual Defendant Fees, As Against Voluntarily Dismissing Plaintiffs, Under Statutory Fee-Shifting Provision Reversed On Appeal
In Durack v. Wang, Case No. B276086 (2d Dist., Div. 7 Sept. 25, 2017) (unpublished), homeowners sued the HOA and several individual defendants for negligence and breach of fiduciary duty (among other claims), but referencing the CC&Rs in some portions of the operative complaint. Plaintiffs reached a settlement with all defendants except one HOA-affiliated individual […]
Faulty Foreclosure Service Results in Lienholder Having to Pay Property Owner (NC)
When a lienholder starts a foreclosure, it usually is focused on getting money into its pocket. Yet a recent opinion from the North Carolina Court of Appeals (In re: Ackah – Sept. 5, 2017) should provide a warning to all lienholders – make sure you get proper service in the foreclosure or you may end […]
Standing to Sue While Sitting on the Board
Standing is a party’s right to make a legal claim in Court. When the judge comes out to sit on the bench, she will read the cases and the parties or their attorneys come forward as called. “Standing” is the right to seek a legal remedy as shown by the facts alleged. Judges ordinarily decide […]
HOA Not Entitled To Fees Where Gist Of Successor Homeowner’s Suit Was Fraud Based (CA)
In Mims v. Park Hill on Pepper Avenue Community Association, Case No. E065990 (4th Dist., Div. 2 Sept. 13, 2017) (unpublished), successor homeowner initially sued HOA on various fraud-based claims based on the failure to provide her notice that the property was within the HOA and subject to HOA fees, Read the article……………..
Board Changes Its Mind – and Winds Up in Court (NY)
What happens when a co-op board approves an alteration project and then changes its mind? What usually happens is a lawsuit. Consider the case of Salvatore Moltisanti. In 2012, Moltisanti purchased an apartment in the four-building 1,672-unit Co-op Village on Manhattan’s Lower East Side. Many of the apartments had enclosed balconies, and Moltisanti wanted one […]
5th Cir. Holds Threat of Lawsuit to Collect Partially Time-Barred Debt Did Not Violate FDCPA (TX)
In a split decision, the U.S. Court of Appeals for the Fifth Circuit recently decided that attorneys representing a condominium association did not violate the federal Fair Debt Collection Practices Act by threatening non-judicial foreclosure on debt that was partially but not fully time barred. The plaintiffs owned a condominium in Houston, Texas. They sued […]
Must communities retrofit for handicap accommodation
The question often arises as to whether condominium, cooperative and homeowners’ associations need to install wheelchair ramps, elevator or swimming pool lifts or redo common area bathrooms to accommodate handicap persons. The general answer is that associations may have to waive certain rules to reasonably accommodate the handicap, such as allowing emotional support or service […]
Court case supports collection of unpaid fees (IL)
My Aug. 26 column “teased” that I would address in a future column the circumstances under which the purchaser of a foreclosure condominium at a judicial sale may be responsible for all unpaid sums due from the prior, foreclosed owner. The Illinois appellate court has issued another opinion on this issue, and I’ll address it […]