Revisiting Claims for Breach of Implied Warranty of Habitability: Illinois Appellate Court

On February 17, 2017 the Illinois Appellate Court for the First District considered three consolidated appeals brought by a condominium association seeking damages for defects in the design and construction of a condominium building. Sienna Court Condominium Ass’n v. Champion Aluminum Corp., 2017 IL App (1st) 143364. Two of the Sienna Court appeals addressed the […]

Snakebite Victim Waits While Insurance Companies Duke it Out in Court (FL)

The legal machinations involving three insurers duking it out in court over Florida premises liability is overshadowing the suffering of a Florida woman who has undergone various amputation procedures involving her lower extremities following a snakebite on the grounds of her Miami-area condo.    Read the article……………..

4/3 DCA Determines Civil Code Section 5235(c) Only Allows Costs Award To Prevailing HOA If Homeowner Action Is Frivolous (CA)

The Fourth District, Division 3 faced a first impression statutory interpretation of Civil Code section 5235(c), which provides that “[a] prevailing association may recover any costs if the court finds the action to be frivolous, unreasonable, or without foundation,” in Retzloff v. Moulton Parkway Residents’ Association, No. One, Case No. G053164 (4th Dist., Div. 3 […]

Constantly Changing Condominium Laws (IL)

A recent opinion from the Illinois’ First Appellate District, Country Club Estates Condominium Assoc. v. Bayview Loan Servicing, LLC, 2017 IL App (1st) 162459, provides that “prompt” payment of assessments is required to extinguish presale assessments under the Condominium Property Act. This ruling not only puts a new wrinkle on condominium association lien extinguishment, but […]

Fourth DCA Confirms Association Lien Foreclosure Valid Despite Pending Mortgage Foreclosure (FL)

Despite a slowing in the number of Florida mortgage foreclosure cases, many community associations still face situations where a foreclosing lender fails to timely complete its foreclosure resulting in the property sitting abandoned and not contributing financially to the community. As a result, many community associations are faced with a decision of whether to proceed […]

Nevada Supreme Court rulings favor HOAs

The state Supreme Court on Thursday issued two rulings bolstering homeowners associations’ ability to sell houses through foreclosure.  Nevada’s highest court unanimously ruled that a 2014 decision upholding HOAs’ ability to foreclose ahead of mortgage lenders can be retroactively applied to foreclosures that took place before that ruling.  Separately, the seven-member panel also unanimously reversed […]

Headstrong HOA Board Member Puts Himself in Harm’s Way Over Fair Housing Issues

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 […]

Two New District Court Of Appeal Cases – Third Party Purchaser Assessment Liability And Fining Notice Requirement (FL)

If your homeowners’ association has not updated its declaration’s assessment collection provisions, then your association might be giving away its otherwise collectable assessment revenue! The problematic declaration provisions are similar to the following: “The sale or transfer of any Lot pursuant to the foreclosure or deed in lieu of foreclosure shall extinguish the lien of […]

Freedom of Speech is a Hot Topic in Community Associations

Freedom of speech is a hot topic in community associations. Some of these First Amendment disputes concern the freedom of a property owner to display flags, signs or symbols on their property in the face of board opposition. Conflict between association leadership and members over free speech also spreads into cyberspace. One such case recently […]

Developers’ Rights Decisions: Puzzling, Perturbing, and Problematic

Litigation is unpredictable. That’s no surprise to anyone who fights court battles regularly. It is also a theme reflected in three recent court decisions dealing with developer rights.  In the first case, Condominiums at Lilac Lane v. Monument Garden, LLC, the New Hampshire Supreme Court ruled that additions to an existing condominium were not subject […]

California’s Anti-SLAPP Statute: A Potent, Yet Confounding, Weapon

Lawsuits designed to chill the valid exercise of the constitutional right of free speech or the right to petition, denominated as “strategic lawsuits against public participation” (or “SLAPP” suits), have taken on increasing significance over the last several decades. The classic example of a SLAPP suit is one filed by a large business against local […]

Illinois Appellate Court Clarifies Palm Decision Regarding Association Collections

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. Subsequently, Defendant filed a motion to dismiss the complaint. Without disputing that the assessments were due, the Defendant alleged that […]

Court Concludes Rental Restrictions are Reasonable (CA)

Recently, many residential common interest developments have experienced an influx in the number of short-term rentals within their community. This problem is exacerbated by the increased popularity of websites such as Airbnb and HomeAway. Although profitable, short-term rentals have a significant negative impact on community associations, such as increased damage to common area and violations […]

What Should Condominium Associations Do After Cypress Point? (NJ)

It has been several months since the New Jersey Supreme Court decided Cypress Point Condo Ass’n v. Adria Towers, LLC.  The issue in Cypress Point was whether rain water damage caused by a subcontractor’s faulty workmanship constituted “property damage” caused by an “occurrence” to trigger coverage under a condominium developer’s commercial general liability (CGL) insurance […]

NJ App Div Holds Foreclosing Lender Who Simply Winterized and Secured a Condo Is Not a Mortgagee in Possession and Not Responsible for Condo Fees

In a noteworthy decision for New Jersey lenders approved for publication, the New Jersey Appellate Division recently held that a lender who simply winterizes and secures an abandoned property in foreclosure is not deemed a mortgagee in possession subject to condominium association fees. See Woodlands Cmty. Ass’n, Inc. v. Mitchell, 2017 WL 2437036 (N.J. Super. […]

Injunction Against Condo Owner Illustrates Just How Ugly Things Can Get

The old adage “don’t let one bad apple spoil the bunch” definitely applies in community association living. Unfortunately, conflicts between boards of directors and recalcitrant unit owners are par for the course in associations, so it is incumbent on the boards and their property management and legal counsel to deftly contend with every brouhaha that […]

Waiver of Attorney-Client Privilege in Bad Faith Litigation (SC)

The United States District Court has confirmed in a recent decision that in most circumstances, the attorney-client privilege will be waived in bad faith litigation in South Carolina. In Contravest, Inc. v. Mt. Hawley Ins. Co., the district court was asked to determine whether the insurance company in a bad faith action had waived the […]

Colorado Supreme Court gives a boost to builders in construction defects battles

The Colorado Supreme Court gave builders a reason to cheer Monday, ruling that a homeowners association in Centennial was wrong to ignore a requirement that it first get consent from the developer before changing the way disputes over construction defects claims are handled.  The 5-2 ruling in Vallagio at Inverness Residential Condo Association v. Metro. […]

Another Illinois Case Decides When an Asset Purchaser is Responsible for Liabilities as a Mere Continuation of the Seller

In our Risk Management Update of December 23, 2015, we discussed an Illinois case that had to decide when a successor entity purchasing the assets of its predecessor became liable for the debts of the predecessor. (“Mere Continuation” Doctrine Applied to Transfer Liability to Successor Entity). In that case, the issue was whether an intermediary […]

Online Harassment and Risk of Liability Under Fair Housing Laws

My colleagues and I have blogged about the importance of recognizing requests for reasonable accommodations/modifications, carefully and thoughtfully considering them, and properly responding in a timely manner. We like to think our posts on this topic have helped a few association boards make better decisions, but if the case discussed below is any indication, more […]

Fair Housing Act – Emotional Support Animals

A very instructive case was decided last month in a Federal Appeals Court which will demonstrate almost everything not to do with respect to compliance with the Fair Housing Act relative to emotional support animals. This case dealt with a suit brought by two emotionally disabled unit owners in a condominium community that had a […]

Ruling Illustrates Unpredictability of Fair Housing Litigation for Associations

The appellate panel of the First District Court of Appeal was divided in its recent ruling involving a Fair Housing Act discrimination complaint by a wheelchair-bound unit owner against his condominium association. The majority and dissenting opinions in the case highlight the unpredictable nature of FHA litigation for unwary associations.    Read the article………………..

Bank of America seeks declaratory relief regarding foreclosure proceedings on condo

A financial institution is seeking declaratory relief regarding a foreclosure on a San Francisco condo.  Bank of America NA filed a complaint on April 17 in the San Francisco County Superior Court against California Department of Consumer Affairs, Bureau of Real Estate and Dean R. Grafilo seeking declaratory relief.      Read the article…………….

Illinois Supreme Court Clarifies Snow & Ice Removal Act

Decided by the Illinois Supreme Court on December 1, 2016, Murphy-Hylton v. Klein Creek Condominium et al. held that the immunity granted under the Illinois Snow and Ice Removal Act for the negligent removal of naturally accumulated snow and ice does not also provide immunity for injuries caused by ice arising due to circumstances unrelated […]

Anti-SLAPP and HOA Disputes

Colyear v. Rolling Hills Community Association of Rancho Palos Verdes (2017) 9 Cal.App.5th 119 is a recent example of an anti-“SLAPP” motion being a very powerful defense weapon in HOA litigation. The term “SLAPP” means “Strategic Lawsuits Against Public Participation.” SLAPP lawsuits are considered to be “generally meritless suits brought primarily to chill the exercise […]

When a Property Owner Association Approves Plans Then Rescinds Its Approval, Can It Be Held Financially Responsible? (CO)

The Supreme Court of Colorado answered that question in Mac McShane and Cynthia Calvin v. Stirling Ranch Property Owners Association, Inc. (2017 CO 38).  Mac McShane and his wife, Cynthia Calvin (“Owners”) bought property, hoping to build a multi-story home overlooking the Roaring Fork Valley. The Stirling Ranch Property Owners Association (“POA”) approved the Owners’ […]

Appeals court reverses summary judgment against homeowner (FL)

Florida’s 2nd District Court of Appeal has reversed a lower court’s decision to grant summary judgment in favor of a homeowners’ association.  The appeals court ruling follows a July 2016 decision by the 12th Judicial Circuit Court. The circuit court granted the Southfield Subdivision Maintenance and Property Owners’ Association’s motion for summary judgment against homeowner […]

Appeals Court Reverses Big Smoking Verdict Against Co-op (NY)

A year ago, state Supreme Court Judge Arthur Engoron sent shivers through New York City’s co-op community when he ruled that Susan Reinhard, a shareholder at the Connaught Tower co-op at 300 East 54 Street, was entitled to $120,000 in back maintenance, interest, and attorney’s fees after she claimed secondhand smoke had permeated her apartment […]

Florida Supreme Court May Decide Fate of Liens Recorded After Foreclosure Judgments

Real estate investors, municipalities, and community associations may gain some clarity about post-judgment liens if the Florida Supreme Court decides to hear Ober v. Town of Lauderdale By-the-Sea, Case No.: 4D14-4597 (Fla. 4th DCA, January 25, 2017). The case has garnered interest from municipalities, creditors and the real estate sector regarding the enforceability of liens […]

Failure to Hold Formal HOA Board Votes Dooms Two Charlotte HOAs (NC)

There are times in the practice of homeowners’ association law when courts make rulings with which we as attorneys disagree but where an underlying principle or best practice is affirmed. A prime example is the N.C. Court of Appeals’ opinion of November 1, 2016 in the case of Willowmere Community Association Inc. and Nottingham Owner’s […]

Insurance Coverage for Property Damage Caused by Defective Workmanship

One of the principal points of contention between insurers and insureds is whether defective construction work is, or can be, an occurrence, thereby triggering coverage.  The New Jersey Supreme Court has joined a growing number of jurisdictions holding that commercial general liability (CGL) insurance policies may provide insurance coverage to insured general contractors when property […]