Usually when someone invokes her right to counsel, she usually has in mind the Sixth Amendment of the U.S. Constitution (or perhaps Article I, § 15 of the California Constitution). Thus, I was surprised to see a case in which the plaintiff argued that it had a First Amendment right to counsel. Read […]
Another Difficult Condominium Resident
In a recent post, we blogged about an owner who had engaged in inappropriate and abusive behaviour. In another recently-reported case, Wentworth Condo Corp. No. 34 v. Brendan Taylor and Samantha Jones, we see another condominium resident engaging in confrontational, harassing, threatening and aggressive behaviour against other residents and a contractor retained by the Corporation. […]
Polo Golf and Country Club Homeowners Association, Inc v. Rhymer et al (and Forsyth County, et al)
POLO GOLF AND COUNTRY CLUB HOMEOWNERS ASSOCIATION, INC. V. RHYMER ET AL. (S13A1635) POLO GOLF AND COUNTRY CLUB HOMEOWNERS ASSOCIATION, INC. V. FORSYTH COUNTY ET AL. In related appeals, the Supreme Court of Georgia has ruled against a homeowners association in one case and against Forsyth County in the other involving disputesover who is responsible for repairing […]
Huntington Continental Town House Association, Inc. v. The JM Trust
This case presents an issue on which this court has found little published authority: whether a homeowner’s association must accept and apply partial payments that reduce delinquent assessments owed but not any other amounts due, such as late fees, interest, and attorney’s fees and costs. We conclude the DavisStirling Common Interest Development Act (the Act) […]
Florida Supreme Court Rejects Restriction on Availability of Condominium Association Receiverships
The Florida Supreme Court recently considered in Granada Lakes Villas Condominium Ass’n, Inc. v. Metro-Dade Investments Co., 38 Fla. L. Weekly S777 (Fla. 2013), the question of what circumstances permit a Florida court to appoint a receiver for a condominium association Read more……..
HOA Had Standing to Sue Developer on Behalf of Members (CA)
The Court of Appeal for this district yesterday ruled that a homeowner’s association has standing to bring causes of actions against developers on its own behalf and as a representative of its constituent homeowners. Read more……
Raintree of Albermarle Homeowners Ass’n Inc. v. Jones case brief
Raintree of Albermarle Homeowners Ass’n Inc. v. Jones case brief summary 413 S.E.2d 340 (1992) CASE SYNOPSIS Plaintiff homeowners association brought an action to enforce a restrictive covenant against defendant resident. The Circuit Court of Albemarle County (Virginia) granted partial relief but refused to grant an injunction prohibiting the resident from parking a wrecker in […]
Evergreen Highlands Assoc. v. West case brief
73 P.3d 1 (2003) CASE SYNOPSIS Respondent property owner sued petitioner homeowner association challenging the validity of an amendment to the modification clause of the association’s covenants. The association counterclaimed and sought damages from the property owner for breach of an implied contract. The Colorado Court of Appeals reversed the trial court’s judgment, which ruled […]
Condominium Association Handicap Parking Lawsuit (IL)
In a recent Illinois court case, a renter sued a community association claiming that the unavailability of handicap-accessible parking violated the Fair Housing Act (“FHA”). The property consisted of a 40-story building with 342 parking spaces, seven of which were handicap accessible. However, the association sold the handicapped-accessible parking spaces to non-disabled persons and the […]
Homeowners Association/Arbitration: Duo Unpublished Decisions Out Of 2/6 DCA Are Interesting
This one involved a 15-year feud about a hot water heater. (We are not kidding.) In essence, there were some mediation settlement agreements reached between the homeowners and housing co-op about the water heater in one housing coop unit, with homeowners accepting $50,000 in settlement at one point under a mediation settlement agreement. Read […]
Seaview Ass’n of Fire Island, N.Y., Inc. v. Williams case brief
CASE SYNOPSIS Defendant property owners sought review of the judgment from the Appellate Division of the Supreme Court in the First Judicial Department (New York), which affirmed the judgment of the trial court in finding in favor of plaintiff homeowners association in their action to recover assessments for the years 1976 through 1984. Other defendant […]
Panorama Village Homeowners Association v. Golden Rule Roofing, Inc. case brief
Panorama Village Homeowners Ass’n v. Golden Rule Roofing, Inc. case brief summary 10 P.3d 417 (2000) CASE SYNOPSIS Appellant roofing company sought review of a judgment from the Superior Court of King County (Washington), which awarded respondent homeowners association a portion of the cost of replacing roofs installed by appellant, in respondent’s suit alleging breach […]
Evict thy neighbour: B.C. Court of Appeal upholds forced sale order under the Strata Property Act
The British Columbia Court of Appeal recently upheld an unprecedented order for the immediate sale of a condominium unit following the “outrageous behaviour” of the unit’s owner and her son towards their neighbours. The decision in The Owners Strata Plan LMS 2768 v Jordison1 gives strata councils an enhanced enforcement mechanism by permitting them to […]
Parking Rights and Common Area / Common Element: Can the Association (or Declarant) Do That?!
You serve on your condominium or property owners’ association’s board of directors and have been receiving complaints about unauthorized cars and space shortages in the community’s parking lot. The Board would like to designate specific parking spaces for use by designated units so that each unit has a certain number of parking spaces available to […]
Condominium’s Leasing Restriction Ruled Invalid by Washington Court
The Washington Court of Appeals recently issued an unpublished opinion addressing a condominium association’s attempt to restrict leasing of units. In this case, the condominium’s original declaration stated that no more than 25% of the units could be leased at any one time. Read more……..
Court Upholds Use of HOA Election Rules for Director Qualifications
Provisions setting forth the qualifications for serving on a homeowners association (“HOA”) Board of Directors are typically found in the HOA’s Bylaws. At the time when these provisions were originally drafted, they may have been insufficient to establish a set of specific qualifications designed to avoid operational issues and potential conflicts of interest. Therefore, HOAs […]
Washington HOA Prevails in Litigation over Pipe Maintenance
A recent unpublished opinion by the Washington Court of Appeals involved a dispute between the Crystal Ridge Homeowners Association and the City of Bothell over responsibility for a buried interceptor pipe. Read more……
Insurer Agreeing To Indemnify/Defend For Damages Does Not Have To Defend Insured Against Third Party Seeking Only Injunctive Relief
Acting Presiding Justice Rylaarsdam, in San Miguel Community Assn. v. State Farm General Ins. Co., Case No. G047738 (4th Dist., Div. 3 Oct. 1, 2013) (unpublished) on behalf of a 3-0 panel, framed the issue in this case and answered it as follows: Read more……
Homeowners Associations Increasingly Seen as “Quasi-Governmental” Entities by California Courts
If you are a homeowner, there is a good chance you have had experience with a homeowners association (HOA) and its basic functions. In some states, including California, HOAs can foreclose on a member’s home for failure to pay assessments, subject to the limitations in Cal. Civ. Code § 1367.4. Read more…..
Florida courts’ application of the “new” economic loss rule since Tiara Condominium Ass’n, Inc. v. Marsh & McLennan, Cos., Inc.
The Florida Supreme Court’s March 7, 2013 decision in Tiara Condominium Ass’n, Inc. v. Marsh & McLennan, Cos., Inc., 110 So. 3d 399 (Fla. 2013), limited application of the economic loss rule [a judicially created doctrine that sets forth the circumstances under which a tort claim is prohibited if the only damages suffered are economic losses] to […]
Issue Created By Language Used In Deed Restrictions (FL)
The Heleskis began building a structure on their property without notifying or getting approval from the HOA. The structure is 24 feet by 24 feet and is separate from the Heleskis’ main house. The Heleskis’ neighbors complained to the HOA that the structure was in violation of the neighborhood’s deed restrictions. Read more…….
Second District Reversed Order Denying Motion To Compel Arbitration (FL)
Pulte Home Corp. sought review of an order denying its renewed motion to compel arbitration of an action brought by Bay at Cypress Creek Homeowners’ Association (“HOA”) for alleged building code violations under Florida Statute §553.84. The Second District reversed the order under review on the authority of Pulte Home Corp. v. Vermillion Homeowners Ass’n, […]
Landmark development ruling could save condo owners millions
A Denver district judge has saved a group of condominium owners at Landmark from having to pay into a tax district they not only never agreed to be in, but also never knew existed until they got a tax bill to help pay for a nearby development that wouldn’t benefit them. Read more…..
Refusal to enforce smoking ban (ME)
Plaintiff, an owner of a condominium unit, filed a complaint, individually and derivatively on behalf of the condominium association (Association), against the Association and four members of its board of directors (Board), claiming that Defendants had refused effectively to enforce the condominium’s smoking ban. The business and consumer docket dismissed the counts of the complaint […]
Illinois Supreme Court Grants Leave to Appeal Controversial Condominium Decision
May a condominium owner refuse to pay monthly and/or special assessments, in whole or in part, on the grounds that the condominium board had failed to maintain and repair the common elements of the condominium property? In the vast majority of jurisdictions around the country, the answer is simple: No. Last summer, in what the […]
Purchasers of Condominiums in San Diego’s Mixed Use Hard Rock Hotel May Not Sue for Securities Violations
The Court of Appeal recently came down with a decision regarding a lawsuit filed by several condominium owners who bought units in the Hard Rock Hotel San Diego, a mixed-use development with 420 condominium units. The Court of Appeal’s decision indicates that when these owners bought their units, they not only entered into purchase agreements, […]
A Rose by Any Other Name (Arbitration)
Most of the leading law school textbooks explain arbitration by describing a case where a party suffers a loss and there is a dispute between the insurance company and the insured. The insured typically places a high value on the subject of the loss, while the insurance company places a lower value. A third party […]
Changing rights and obligations for construction defects in community associations in New Jersey
The rights and obligations of both developers and community associations have been expanded by the reported decision of the Appellate Division of the Superior Court of New Jersey in Belmont Condominium Association, Inc. v. Geibel, et al., which was decided on July 9, 2013. Read More……
A second-hand lesson in dealing with a smoking neighbor
Second-hand tobacco smoke is not in and of itself a nuisance. That is now the law in Maryland based on a case just handed down by the Maryland Court of Special Appeals. Read More……
Davis-Stirling: Foreclosure Notice Requirements are Strictly Construed
The Sixth Appellate District holds that the pre-foreclosure notice requirements of the Davis-Stirling Common Interest Development Act must be strictly construed to create a valid lien. Only valid liens may be recorded and subsequently foreclosed by the association. The case is Diamond v. Superior Court (Casa Del Valle Homeowners Association). The notice and procedural requirements […]
Florida Supreme Court: Law protecting builder went too far
The Supreme Court says Gov. Rick Scott and the Legislature went too far when it tried to settle a legal dispute on behalf of a developer being sued by a homeowners association. The ruling Thursday said a bill Scott signed into law last year can’t be retroactively applied to the dispute between Lakeview Reserve Homeowners Association […]
Appeals Court Ensures Equal Access During Elections
A California appellate court recently overruled a trial court decision that allowed a homeowners association board to advocate a point of view in an election to amend the association’s governing documents. Wittenberg v. Beachwalk Homeowners Association, which the court certified for publication on June 26, 2013, addressed whether the Davis-Stirling Act provisions that expressly apply […]
Appellate Court Reverses Foreclosure Judgment for Lack of Proper Notice to Unit Owners by Association
A decision earlier this month by the Third District Court of Appeal serves as a good lesson to community associations and their attorneys about the importance of working closely with their process servers to ensure that all of the statutory requirements for service or “constructive service” on unit owners in foreclosure actions are met. Read […]
Homeowner Has No Right to Lawyer at Association Meeting—CA Court of Appeal
A property owner’s right to attend a meeting of a homeowner’s association does not necessarily include the right to send a lawyer to represent the owner at the meeting, the Fourth District Court of Appeal has ruled. Div. One yesterday certified for publication its May 22 opinion, upholding a San Diego Superior Court judge’s order […]
Fear the Next Hurricane More Than Florida Supreme Court’s Ruling on Tiara
The Florida Supreme Court’s ruling on a beachfront condominium association’s lawsuit against its insurance agency generated the kind of initial reaction among insurers matched only when a weather announcer says that Florida is within the cone of probability. Read More……
Court Invalidates Restriction on Dues Increases in Association’s Bylaws
In late 2011, the board of directors of the Sudden Valley Community Association approved a budget that increased the membership dues by thirty percent. A short time later, a newly elected board of directors rescinded that dues increase because a provision in the Association’s bylaws required dues increases to be approved by at least sixty […]
View Protection At California Condo and Homeowner Associations: It’s Complicated
Many owners buy units, lots or homes at community associations that have views and are later shocked to learn that the view they cherish, the view that caused them to buy that home, is not guaranteed. The question that has been posed is whether or not property owners are entitled to an unobstructed view. Read […]
Wheelchair Ramp Dispute Tossed: Not Ripe Until Denied
Dan and Debbie Scoggins wanted the best for their son Jacob. After their requests to their Homeowner’s Association for permission to build a wheelchair ramp at the front door of their home and for permission for Jacob to ride an ATV within the housing subdivision went unanswered, they filed suit under the Fair Housing Amendments […]
Scoggins v. Lee’s Crossing Homeowners Assoc. (Virginia)
Plaintiffs and their son appealed the district court’s summary judgment holding that they were not entitled under the Fair Housing Amendments Act of 1988, 42 U.S.C. 3601-3631, to an accommodation and a modification that they requested from the HOA. Read More……
Fourth DCA Rules Insurance Companies Not Required to Provide Coverage for all Portions of Condominium Property
Recently, the Fourth District Court of Appeal in the case of Citizens Property Insurance Corp. v. River Manor Condominium Association, Inc., ruled that an insurer is not required to provide an association with coverage for “all portions of the condominium property located outside the units” and “all portions of the condominium property for which the […]
Court Says HOA Can Issue Speeding Tickets; What’s Next, Undercover Ops?
The Illinois Supreme Court held in January that an HOA’s hired security officer could stop and issue a valid speeding ticket againsta home owner. Here, we explain the court’s decision in Poris v. Lake Holiday Property Owners Association and whether the court’s reasoning would likely be upheld in other states. Read More……
New Jersey Condominiums are Able to Limit Certain Liability Claims
On March 20, 2013, the Superior Court of New Jersey ruled in Irma Sanchez v. The Villages Association that the burden of proving the validity of a community association’s bylaws limiting its liability in personal injury cases rests with the injured plaintiff. It is beneficial for community associations, their boards, professional managers and unit owners […]
The Emperor’s New Economic Loss Rule
For years, litigating breach of contract cases in Florida meant having to struggle with the array of cases dealing with the Economic Loss Rule. In its simplest form, the Economic Loss Rule is a judicially created principle that prohibits tort damages in a breach of contract action where the damages are limited to an “economic […]
The Big Bad HOA: Not Actually So Big and Definitely Not So “Bad”
We see many news articles about a big, bad homeowners’ association interfering with Harry Homeowner’s “right” to live peacefully in his neighborhood. Whether it is demanding the removal of a flag pole that is too tall or forcing an owner to paint a faded mailbox, the stories we read often leave us asking the question: […]
State Supreme Court holds key to condo assessment case
When Lisa Carlson stopped paying her condominium assessments nearly four years ago, she never expected that her legal battle over a leaky roof, bulging drywall and cracked ceilings would wind up before the state Supreme Court. An appeals court paved the way, ruling that Carlson, of Highland Park, could use her condo board’s alleged failure […]
Authority To Enter Into Contract Is Issue For Courts, Not Arbitrators
The Third Circuit just issued a decision that tries to divine the dividing line between challenges to the formation of contracts containing arbitration clauses (which are presumptively for courts), and challenges to the validity of contracts containing arbitration clauses (which are presumptively for arbitrators, if the challenge is to the contract as a whole). It […]
Applying the Business Judgment Rule: Individual Tort Liability for Co-op & Condo Boards
Recently, the Appellate Division First Department, in Fletcher v. Dakota, Inc., involving a shareholder in The Dakota, a historic luxury co-op on the Upper West Side, held that the business judgment rule does not protect individual condo and co-op board members from personal tort liability where a board acting in its corporate capacity has acted […]
Third DCA Opinion Deals Significant Blow to Condo Associations That Foreclose on Units in Advance of Banks
For the past several years we have written many articles in this blog encouraging condominium associations to aggressively move their foreclosure cases forward in order to take ownership of those units whose owners are delinquent in advance of the banks’ foreclosures. RealtyTrac’s data shows that it takes an average of 2.5 years for bank foreclosures […]
Turning up the Heat on Residential Design Professionals
California’s 1st District Court of Appeal recently ruled that “design professionals” may be liable under both common law and Senate Bill No. 800 (“SB 800”) to third party purchasers for construction defects. Read More……
Third District Appellate Opinion May Affect Collection Strategies
In its recent opinion in the case of Aventura Management, LLC vs. Spiaggia Ocean Condominium Association, Inc., the Third District Court of Appeal may have significantly impacted the collection strategies implemented by many condominium and homeowner associations in Florida. The case involved a condominium association’s efforts to recover full payment of past-due assessments and related […]