Koehler v. Prinz, Case No. C095229 (3d Dist. Sept. 25, 2023) (unpublished) is a case which shows that attorneys need to be careful when they receive a fee award which belongs to them, discussing the fee award with the client and then agreeing on an offset for contingency fees already received. Read the article………………………………
Real property – Parking easement – Condominium (MA)
Where two plaintiffs have requested a declaration that their parking easement may be used for two automobiles, that request should be denied because the intent of the master deed was to permit single-automobile use in each parking space. Read the article……………………………..
You Can’t Have Legal Malpractice Without Legal Damages (IL)
On May 1, 2023, the Illinois Appellate Court, First District, affirmed the trial court’s holding granting summary judgment to a condominium association’s former attorney Michael C. Kim (“Kim”). In support of its decision, the Court held that Hemingway House Condominium Association (“HHCA”) failed to prove injury or damages to support a cause of action. Read the […]
RPAPL 2001 Does Not Serve As Time-Bar to Condominium Board Requesting That Unit Owner Remove Structures From Outdoor Space )NY_
……a recent case filed by a condominium unit owner that touches on concerns related to the use of outdoor space associated with a cooperative or condominium apartment, such as who actually owns the space and if costs associated with the use of outdoor space can be charged. Read the article………………………..
Timeshare Tax Shenanigans End With Large Penalties
When I saw the Ninth Circuit decision in the case of James Tarpey, something about it was familiar. It turns out that the opinion by Judge McKeown upholding a penalty of over $8 million dollars was the finale of a story I picked up on October 1, 2016 with Lawyer Subject To Injunction Defends Timeshare […]
Court Rules Email Exchanges Without Board Action Are Not Board Meetings (CA)
The Court of Appeals for the Fourth Appellate District just held that an email discussion among board members regarding items of association business did not violate the Open Meeting Act, because such email exchanges are not considered “board meetings” as that term is defined in Civil Code section 4090(a). Read the article………………………..
Washington Court of Appeals Upholds Condo Declaration’s Exculpatory Clause
The Washington Court of Appeals recently ruled in an unpublished opinion that a condominium’s declaration exculpated the condominium association from any liability arising out of an owner’s claim that the association neglected to maintain a common element. Read the article………………………..
/1 DCA Reverses As A Matter Of Law Adverse Fee Awards Against Homeowners Not Prevailing On Common Interest Development Open Meeting Act (OMA) Violations
Fees Are Not Awardable To Prevailing HOAs Under OMA Violations; Costs Were Not Proper Because Homeowners’ Action Was Not Frivolous, Unreasonable, Or Without Foundation. Read the article………………………..
Couple forced from condominium taking fight to court (AZ)
Jie Cao and Haining “Frazer” Xia did not want to leave their home. But after an investment company bought the majority of the units in the couple’s condominium complex and voted to sell the unwilling remaining residents’ units to themselves, Cao and Xia were forced out. Read the article………………………..
Homeowner Associations, Prevailing Party: HOA’s $139,977 Attorney’s Fees Award, Made After Homeowners Dismissed Their Lawsuit (CA)
In Matus v. Freedom West Homes Corp., Case No. A165736 (1st Dist., Div. 2 Aug. 21, 2023) (unpublished), a group of homeowner plaintiffs filed a lawsuit against HOA, which was ordered into arbitration. Plaintiffs dismissed their court case without prejudice 15 months later, with the record reflecting they had not initiated arbitration but were thinking […]
Condo Unit Owners have to Pay Their Common Charges
The Supreme Court in Richmond County threw out a condo unit owner’s defenses to a nonpayment case seeking a money judgment for common charge arrears. The Court found that the affirmative defenses by the investor condo owner were boilerplate and couldn’t withstand summary judgment. Read the article………………………..
Civil suit calls Lake Buchanan POA invalid (TX)
The property owners’ association for Donall Estates on Burnet County Road 104 on Lake Buchanan is embroiled in a civil lawsuit that could negatively affect its deed restriction powers. Read the article………………………..
Homeowner Files Cert Petition Over Whether an HOA Assessment Qualifies as a “Credit Transaction” under the FCRA
The U.S. Supreme Court has been asked to decide whether a homeowner association (HOA) assessment constitutes a “credit transaction” under the Fair Credit Reporting Act (FCRA), which would open up an inquiry to the fundamental scope of one of the FCRA’s most important permissible purposes. Read the article………………………..
Related Claim Provision Bars Coverage for Discrimination Claims Asserted Over a Six-Year Period (IL)
Applying Illinois law, the First District Appellate Court of Illinois has held that a related wrongful acts provision barred coverage for a series of “claims” made over the course of six years because the claims—as the insured conceded—arose out of the same claim. Steadfast Ins. Co. v. State Parkway Condo. Ass’n, 2023 WL 4105252 (Il. […]
Trump Org’s sweet deal in Turtle Bay approved by judge (NY)
Apartment owners at Trump World Tower who opposed leasing the Trump Organization’s commercial unit there suffered a loss in court Friday. A Manhattan judge ruled that the sponsor of the Turtle Bay building, a company affiliated with the Trump Organization, can renovate the 2,500-square-foot space it owns and bill the $1.75 million construction cost to […]
Four years later, Grandview bluff collapse lawsuit heads slowly to trial (CA)
Four years after a multi-ton chunk of sandstone toppled onto Grandview Beach and killed three women, a family’s wrongful death lawsuit has survived multiple attempts to have the case dismissed and continues its slow march toward trial. Read the article………………………..
Court Upholds Law Requiring Registration of Short-Term Apartment Rentals (NY)
In a ruling sure to thrill co-op and condo boards, Judge Arlene Bluth of New York State Supreme Court has rejected Airbnb’s attempt to overturn Local Law 18, which requires short-term rental hosts to register their units with the city before they can get paid. With the failure of Airbnb’s last-ditch legal ploy, Crain’s reports, […]
Court says man can keep ‘emotional support emu’ in suburbia (VA)
A Virginia man was allowed to keep his emotional support emu after the trial judge found that the exotic bird was a “companion animal” rather than “livestock” under the municipal and state codes. Read the article………………………..
Contract; de jure homeowners’ association: Where a majority of homeowners in a townhouse community purported to amend the declaration (MD)
Where a majority of homeowners in a townhouse community purported to amend the declaration to retroactively approve prior alterations to units, but the authority to amend the declaration applied only to a homeowners’ association, and there was no homeowners’ association, the purported amendment was unenforceable. Read the article………………………..
Four years later, Grandview bluff collapse lawsuit heads slowly to trial (CA)
Four years after a multi-ton chunk of sandstone toppled onto Grandview Beach and killed three women, a family’s wrongful death lawsuit has survived multiple attempts to have the case dismissed and continues its slow march toward trial. Read the article………………………..
HOA dispute turns into major legal battle (FL)
There are many benefits associated with living in a community with a governing body. This group oversees the maintenance of common areas and protects the property values of residents. However, there are times when an HOA can overstep its bounds or take steps that result in a conflict with residents. Recently, a dispute between a […]
Reconsidering The “Open And Obvious” Doctrine: Implications Of The Michigan Supreme Court’s Landmark Decision
In a significant ruling that affects property owners throughout the state, including Michigan’s community associations, the Michigan Supreme Court substantially altered premises liability law. On July 28, 2023, the Court ruled in the cases of Kandil-Elsayed v. F & E Oil, Inc. and Pinsky v. Kroger, overturning the long-established “open and obvious” doctrine. Read the […]
Roofing Contractor in $3.7M Stalemate with Suburban NYC Condo Complex
A 157-unit condominium complex in Westchester County, NY, is fighting with the roofing contractor firm hired for a reroof of its 15 buildings in the hamlet of Hartsdale, located in Greenburgh, a commuter suburb of New York City, at a cost of $3.7 million. Read the article………………………..
Michigan Court of Appeals Holds that Short-Term Rentals Violate Residential Use Restrictions
Since 2004, the Michigan Court of Appeals has repeatedly determined that short-term rentals within Michigan communities that are subject to residential, business, and commercial restrictions are prohibited because they are commercial activities that are inconsistent with residential use Read the article………………………..
Court Steps in to Force Recalled HOA Board to Step Down (CA)
The Court of Appeals recently ruled in Lake Lindero Homeowners Association, Inc. v. Barone that Corporations Code section 7616 may be used to validate a recall election removing the former board of an homeowners association (“HOA”), in addition to validating the election of a new HOA board. Read the article………………………..
Is a Michigan Condo or HOA Liable for Criminal Acts of Third-Parties?
Whether there is an increase in violent crime or an increase in reporting and coverage of crime, it seems that our lives are constantly being inundated and interrupted with reports of violent activities. Your home is your castle, your safe space. But imagine the worst-case scenario where a crime occurs and that sense of safety […]
Insurer Springs a Leak in Its Pursuit of Subrogation (MD)
In Nationwide Prop & Cas. Ins. Co. v. Fireline Corp., No. 1:20-cv-00684, 2023 U.S. Dist. LEXIS 104241, the United States District Court for the District of Maryland (District Court) considered whether the events giving rise to the plaintiff’s claims fell within the scope of a previously formed agreement, thereby rendering the plaintiff’s claims subject to […]
Ocean Dune Crossover Access Expanded From Residences in Toms River Following Court Decision (NJ)
Oceanfront residents in Toms River’s Normandy Beach section who sued over the right to place a dune cross-over outside their home scored a victory, with a Superior Court judge ruling in recent weeks that their homeowners’ associations cannot stop them from doing so. Read the article………………………..
Are you covered?? (AZ)
Insurance policies can be convoluted and confusing. Diligently reviewing your community association’s insurance policy to ensure that coverage (1) meets the minimum requirements imposed by the Governing Documents and/or applicable Arizona law (specifically as to Condominiums); and (2) meets the Board’s expectations, is vital. Read the article………………………..
Residents succeed in challenge of gate blocking vehicular access to beach easement (FL)
The condominium property contains an easement leading to the beach—an easement for public beach access that had been established as the result of a 1998 court settlement agreement related to the subject property, together with provisions for five public parking spaces for beach access. Read the article………………………..
Judge sides with Gahanna in neighborhood association lawsuit over commercial construction (OH)
A judge in Franklin County dismissed a lawsuit filed by a neighborhood association against the city of Gahanna, which accused its city attorney of brokering a secret deal on a private construction project abutting the subdivision. Read the article………………………..
Strict Compliance vs. Substantial Compliance – Not Knowing the Difference Can Cost You! (FL)
The Florida statues governing community associations often provide timeframes for notice to owners before the association can proceed with action, including passage of special assessments, adoption of fines and collections. While some statutory sections allow for “substantial compliance” with the statutory requirements, associations should be aware that the statutory timeframes require “strict compliance.” This means […]
Texas Appeals Court to Consider Short Term Rental Ban by A Galveston Homeowners Association
A Texas appeals court will consider a case that mixes a centuries-old debate over property rights, the fairly newfound boom of the short-term rental (STR) industry, and the third rail of homeowners associations (HOA). Read the article………………………..
Brunswick court favors HOA in lawsuit filed by property owner (NC)
…..after years of paying HOA dues on a lot he can’t build a home on, Gaglione sought to recoup some of those fees and sued the Ocean Ridge Master Association, the development’s HOA, for $9,538, which is the total dues paid since 2017. Read the article………………………..
Middlesex judge, jury render first known decisions on Japanese knotweed
Japanese knotweed is such a well-known menace in the United Kingdom that, if the invasive species is on your property and you try to get homeowner’s insurance, you’ll be turned away. But in America, the plant is just beginning to creep into the public’s consciousness — and the courts. Read the article………………………..
Insurer wins homeowners association ruling (WY)
A federal appeals court on Friday affirmed a lower court ruling in favor of the insurer in litigation filed by a homeowners association, ruling the association had filed its lawsuit too late, and had not established its bad faith claim. Read the article………………………..
Wrongful death suit brought against landscaping, residential companies results in total $425K settlement (PA)
Landscaping services and retail management companies has settled a lawsuit brought by a Delaware County man, who alleged negligence on its part and others led to his mother suffering a fall and injuries that led to her death, for a total of $425,000. Read the article………………………..
Appeal was not from final order (VA)
Where the general district court issued an order that the debt asserted in a warrant in debt was due, this was not a final order that could be appealed. Read the article………………………..
Delayed Decisions On Accommodation Requests Lead To Trouble
A recent federal court decision in U.S. v. The Dorchester Owners Association, No. 20-1396 (E.D. Penn. Jan. 25, 2023), is instructive as to how boards of directors can put their associations at risk when they fail to make timely final decisions on accommodation requests or impose unreasonable conditions in granting those requests. In this case, […]
Reach for the Sky! — Civil Liability and Insurance Cost and Coverage Implications of Shootings and Other Violent Criminal Acts in Common Areas (CO)
How concerned should Colorado common interest communities be about civil liability arising from third-party criminal acts committed on the Common Elements? Until recently, a common answer may have been something like: Not terribly concerned at all, especially in communities where individual owners share fractional, undivided interests in the Common Elements. Read the article………………………..
Florida Appellate Court Rules in HOA Case
Florida’s Second District Court of Appeal recently reversed an order which granted the Villages of Bloomingdale Homeowners Association’s (the Association) motion to reform its declaration to encompass residential properties that were constructed and sold after the declaration was recorded and which properties were not originally encumbered by the declaration. Hogg v. Villages of Bloomingdale I […]
Significant Court of Appeals Decisions Impact Association Authority (VA)
Two recent decisions from the Court of Appeals of Virginia underscore the need to closely review an association’s governing documents for recorded covenants, either monetary or nonmonetary, that association boards wish to enforce. In particular, the Court of Appeals has now addressed boards spending associations’ assessments on services unrelated to common areas (or presumptively common […]
Illinois Court Rules in Favor of Association in Eviction Action Even Though Board was Not Properly Elected
Recently, the First District Court of Appeals discussed a situation where a unit owner claimed that an eviction action filed by her condominium association was not proper because the members of the association’s board of managers were not properly elected, and as such, the budget setting the amount of assessments was not properly passed. The […]
Texas Court of Appeals Upholds Rental Time Period Restriction Amendment
A recent opinion from the Texas Court of Appeals, Angelwylde HOA, Inc., v. Fournier, No. 03-21-00269-CV (Tex. App. Mar. 17, 2023), held that a 12-month minimum rental restriction, which was adopted in accordance with the amendment provision in the CC&Rs is valid and enforceable. While the case law is not binding upon Arizona community associations, […]
Judge denies preliminary injunction in vacation rental lawsuit (NV)
A preliminary injunction was denied against a Lake ridge homeowner who was renting his property for less than the 60 days. District Judge Tod Young said that the requirement of irreparable harm for a preliminary injunction was not met by the Lakeridge General Improvement District. Read the article………………………..
Supreme Court rules in favor of 94-year-old woman who got nothing when county took her condo
A unanimous Supreme Court on Thursday gave a 94-year-old Minneapolis woman a new chance to recoup some money after the county kept the entire $40,000 when it sold her condominium over a small unpaid tax bill. Read the article………………………..
Michigan Court Rules That Deck Installed in Violation of HOA Restrictions Must Be Removed
Don’t sweat the small stuff. While it may be a good tip for reducing stress in your life, it is almost certainly not a good tip when it comes to following the governing documents for your condo or HOA. In fact, ensuring that all of the rules are followed—yes, all the small things—may in fact […]
Appellate Division Affirms: Binding Dispute Resolution Provisions in Standard AIA Construction Contracts Are Enforceable (NJ)
In a recent unpublished opinion, the New Jersey Appellate Division held that an agreement to arbitrate set forth in the binding dispute resolution provision in a standard form American Institute of Architects (AIA) construction contract between a condominium association and contractor was enforceable. Read the article………………………..