Assessments (or dues) provide the lifeblood for condominium associations so that they can provide necessary services to the unit owners within the association, including the maintenance of common areas such as roads, sidewalks, parking areas, utilities, and elevators. In most condominium associations, the only source of revenue to pay for common elements are these assessments, […]
Can a Developer Retain the Right to Veto a Declaration Amendment After Turnover of the Association? (FL)
Surprisingly, the answer is yes. In the recent case of First Equitable Realty III, Ltd. vs. Grandview Palace Condominium Association, Inc., 329 So. 3d 167 (Fla. 3rd DCA October 6, 2021) before the Third District Court of Appeals, the Court held valid and enforceable a developer-recorded amendment to the condominium declaration, which granted the developer […]
Baca Grande incorporation sidelined by district court (CO)
The Baca Grande Property Owners Association (POA) was formed in 1972 and encompasses over 14,000 acres of land in Saguache County that the citizens group is proposing to incorporate. The Baca, as it is known locally, is divided into 4,550 privately owned lots with 3,500 owners. Read the article………………………..
Reviving Unenforced Restrictions (FL)
The previous boards failed to enforce the provisions of the Declaration, bylaws, and/or rules and regulations of the community and now whenever the manager tells someone that they are in violation, the response is that the Association allowed this to occur for many years without enforcement. All is not lost. Read the article………………………..
Bankruptcy Court Upholds Condominium Lien Foreclosure (MA)
It has long been commonplace for mortgagors to attack all aspects of a bank’s mortgage foreclosure sale in order to invalidate the foreclosure sale and retain the mortgaged property. There have been far fewer such attacks on the validity of a statutory condominium lien foreclosure, and no prior Massachusetts case has determined when the unit […]
Timely Notification Key to Insurance Coverage: Condo Denied Coverage for Delayed Damage Report (WA)
This is the case of Franssen Condominium Association of Apartment Owners v. Country Mutual Insurance Co. et al., in the U.S. District Court for the Western District of Washington. Read the article………………………..
Are Motorhomes Considered Trailers in HOAs? (MI)
Full disclosure, my parents owned a motorhome and would load my sister and me in the motorhome every summer for week- and month-long trips. I have some great memories from these tips, but I also remember the motorhome sitting on our driveway on the rare occasions we were home. I’m sure that some of the […]
U.S. Supreme Court to weigh legality of Hennepin County keeping revenue from seized properties (MN)
The U.S. Supreme Court has agreed to take up the case of a Minneapolis woman in her 90s whose condo was seized by Hennepin County because she didn’t pay her property taxes. The 2015 seizure of Geraldine Tyler’s condo isn’t in question. Nor is the fact that she owed the county some $15,000 in back […]
Appellate Ruling Shows Potential Pitfalls of Fining, Enforcement Missteps by Community Associations (FL)
A recent ruling by Florida’s Second District Court of Appeal demonstrates the potential legal liabilities and costs for associations that fail to meet the mandated prerequisites for the imposition of fines as well as suspensions from community amenities or board seats. Read the article………………………..
Burlington Insurance Co. Denies Coverage for $5 Million Condo Water Damage (NJ)
This is the case of Rialto-Capitol Condominium Association Inc. v. The Burlington Insurance Co. et al., in the U.S. District Court for the District of New Jersey. The Burlington Insurance Co. (TBIC) is fighting back against a $5 million lawsuit filed by the Rialto-Capitol Condominium Association, arguing that they should not be held responsible for […]
Condo Column: Case law update (NH)
Here are some recent cases that I thought might be of interest. In Civic Association of Surrey Park v. Riegel, a case out of Delaware from Nov. 30, 2022, Surrey Park fined the Riegels who had built a shed without first obtaining association approval. Read the article………………………..
2022 Illinois Community Association Case Law Summaries
Several changes in 2022 Illinois case law have impacted the management of condominium, homeowner (HOA), and townhome community associations. Read the article………………………..
Court rules in favor of Edgewater in Walton County customary use case (FL)
Walton County Circuit Court Judge David W. Green has ruled in favor of the Edgewater Beach Owners Association, barring Walton County from continuing to pursue a right by the public to recreational customary use of the beach on the privately-owned Edgewater Beach Condominium property. Read the article………………………..
Orangecrest Country Cmty. Ass’n v. Burns (CA)
Homeowner Burns submitted an architectural request for various improvements to her property, one of which was the construction of six-foot high stucco walls in her front yard. The association’s architectural guidelines restrict owners from constructing walls or fences in their front yards. The association sent Burns a letter approving her proposed improvements with the following […]
Artus v. Gramercy Towers Condominium Assn. (CA)
Homeowner Dr. Artus and the association were warring parties. This was the fourth lawsuit between them, this one regarding the association’s election rules and sale/leasing guidelines. Artus alleged five causes of action in her complaint against the association. Multiple claims were disposed of in different ways, including that the association fixed issues raised by Artus […]
LANCASTER NEIGHBORHOOD ASSOCIATION, INC. v. LANCASTER TOWNHOMES ASSOCIATION, INC. (MD)
This is an appeal from the dismissal of a complaint for declaratory judgment and injunctive relief by the Circuit Court for Charles County. In September 2019, Appellee, Lancaster Townhomes Association, Inc., (“LTA”) constructed a fence within its community without seeking prior approval from the Westlake Village Planning and Design Review Board (“PDRB”). An adjacent community, […]
Legal Construction Column: Direct Action Statute (NJ)
In July 2022, the Supreme Court of New Jersey issued an opinion, Crystal Point Condominium Association, Inc. v. Kinsale Insurance Co., which considered whether (1) a condominium association that had obtained default judgments against a structural engineering firm and a construction inspection company resulting from construction defects, could assert claims against those judgment debtors’ insurance […]
Second Department says HOA Board Pet Restriction has to be a Declaration Amendment (NY)
The appeals court which governs over Brooklyn, Staten Island and Long Island, just issued a decision holding that the Meadowbrook Pointe Homeowners Association, Inc.’s rule that dogs greater than 25 pounds can’t be on the association premises, was unenforcible and should have been done by an amendment to the HOA’s Declaration. That would have required […]
Boston Condominium Association Prevails on Summary Judgment Based on Business Judgment Rule Concerning Insurance Shortfall (MA)
A recent summary judgment decision issued by the Suffolk Superior Court has endorsed the employment of the business judgment rule in assessing the decisions of a condominium association concerning the amount of insurance maintained. In Joseph Cimino v. Lynn Ornstedt et al., Suffolk Superior Court Civil Action No. 1984CV01991, the Court allowed the condominium association’s […]
Court Rules Co-Owner Violated Condo Bylaws by Failing to Remove Holiday Decorations (MI)
Well, it’s that time of year again. Time for the holiday decorations to come out of their various hiding places to be strung across the roof, wound up and around trees, and blown up (by fans) in the front yard. That’s right, it’s time for everyone in the neighborhood to put up their holiday decorations […]
NJ Appellate Division Holds That HOA Declaration Trumps Prior Recorded Mortgage in Certain Instances
The New Jersey Appellate Division, in a published opinion, recently held that in certain instances, a recorded homeowners’ declaration of covenants can trump a prior mortgage. See Fulton Bank of N.J. v. Casa Eleganza, LLC, 473 N.J. Super. 387 (App. Div. 2022). In Casa Eleganza, Plaintiff Fulton Bank of New Jersey (“Plaintiff”) acquired title via […]
Without Reservations: Fourth Circuit Affirms That Vague Reservation of Rights Waived Insurers’ Coverage Arguments (SC)
The Fourth Circuit recently affirmed insurance coverage for a South Carolina policyholder based on the “axiomatic principle” that an insurer which fails to fully and fairly articulate its potential coverage defenses in a reservation of rights letter loses the right to contest coverage on those grounds. Read the article………………………..
Washington Court of Appeals Issues Opinion Concerning Water Trespass
The Washington Court of Appeals recently issued an opinion concerning water trespass. A homeowners association and one of its owners sued a golf club and alleged that it artificially collected and discharged surface water into their property in a manner different than the natural flow of such water. Read the article………………………..
KM Ranch Property Denied Access Through Whitefish Subdivision (MT)
Following nearly two years of litigation and contentious meetings with the county, a judge has finalized a ruling over access to a property off of KM Ranch Road. After a contested hearing in October, Flathead County District Judge Amy Eddy denied a petition by GBSB Holdings, LLC, that requested public access to an 80-acre property […]
Beware of Procedural Pitfalls in HOA Foreclosures
Most community associations already know the Planned Community Act allows them to place a lien on a delinquent homeowner’s property and foreclose on that interest. Read the article………………………..
Regulating Holiday Displays
Regulating holiday displays can be a tricky topic and association boards of directors are well advised to keep certain things in mind when dealing with it. With the holiday season upon us now is a great time to brush up on some important principles when it comes to adopting and enforcing rules regulating the display […]
Idaho Supreme Court orders HOA to reinstate parking on small lot
A lawsuit that went all the way to the Idaho Supreme Court over a small parking lot spanning two mayoral administrations in the city of Eagle is now resolved, but the city will now use a long-planned park project to satisfy the court’s order instead of forcing the losing homeowner’s association to rebuild the original […]
Condo HOA Wants Insurer to Pay $11.5M in Hidden Storm Damage Suit (WA)
This Thursday, the Seattle-area condo association filed a lawsuit against Philadelphia Indemnity Insurance Co. and at least 10 other insurers, accusing them of refusing coverage for approximately $11.5 million in hidden water damage. Read the article………………………..
Florida Appellate Court Enforces Rules on Mediated Settlement Agreements
In November, the Second DCA refused to enforce a mediated settlement agreement that, although signed by the attorneys for both parties to the agreement, was not signed by either of their clients—Parkland Condo. Ass’n v. Henderson, ___ So. 3d ___, 2022 WL 16954010 (Fla. 2d DCA Nov. 16, 2022). Read the article………………………..
Illinois Condominium Act: Supreme Court Refuses to Acknowledge New Private Right of Action for Sellers
Reversing the decisions of the Circuit and Appellate courts, the Illinois Supreme Court entered an opinion holding that section 22.1 of the Illinois Condominium Act does not imply a private right of action in favor of condominium-unit sellers. Read the article………………………..
Idaho Supreme Court orders HOA to reinstate parking on small lot. City of Eagle opts for spaces in long-planned city park instead
A lawsuit that went all the way to the Idaho Supreme Court over a small parking lot spanning two mayoral administrations in the City of Eagle is now resolved, but the city will now use a long-planned park project to satisfy the court’s order instead of forcing the losing homeowner’s association to rebuild the original […]
Contracting Around the Constitution?
The Goldwater Institute filed a brief in the Arizona Supreme Court last week urging the justices to review a case in which lower courts declared a law unconstitutional—and then said it could be enforced anyway. At issue was a contract in which the parties agreed to be bound by that law before it was declared […]
Yes, Owners of a Restricted Lot Can Be Fined for THEIR TENANT’S Violations of Covenants! (NC)
With the appreciating residential real estate market, rental homes are becoming an increasingly common feature in residential neighborhoods subject to restrictive covenants. Restrictive covenants will typically have a few main types of provisions that lot owners opt into when purchasing their restricted lots—architectural standards, obligations to pay assessments to a homeowners’ association, provisions outlining the […]
‘Wrongful Acts’ Includes Both Negligent and Intentional Acts (IL)
The United States District Court for the Northern District of Illinois, applying Illinois law, has held that an insurer had a duty to defend an insured condominium association and its board members against an underlying lawsuit because the association’s board members allegedly committed “Wrongful Acts” under the directors and officers coverage part of a business […]
Associations Cannot Ban Sex Offenders from Community (PA)
Many condominium and homeowners’ associations worry about people who are registered as sex offenders under the Sexual Offender Registration and Notification Act (SORNA), usually referred to as “Megan’s Law.” Many associations I work with have considered a range of ideas, from not allowing Megan’s Law registrants to use the community pool all the way to […]
HOAs Suing as Representative of Owners are Bound by Arbitration Provisions in Owner Sale Agreements and Deeds (FL)
Earlier this year, we published an article titled Covenants to Arbitrate Construction Defect Disputes Within a Deed Run With the Land Obligating Subsequent Parcel Owners wherein the Florida Supreme Court held that an arbitration covenant contained in a developer’s original deed also bound subsequent owners. The same principle applies to homeowners’ associations suing as representative […]
Condo Column: The fairness of it all (NH)
There’s a fairly well known adage in the law that notes, “You can’t murder your parents and then ask the court for pity as an orphan.” The New Hampshire Supreme Court recently issued an opinion in line with this adage in which it affirmed a superior court decision where the presiding judge upheld fines levied […]
Federal Judge Orders Deposition of Attorney in Insurance Bad Faith Case (WA)
In the case of Water’s Edge Condominium Owners Association v. Affiliated FM Insurance Company, in the U.S. District Court of Seattle Washington, Judge James L. Robart, made a precedent-setting ruling by granting Plaintiff’s 69 Motion to Compel. Read the article………………………..
Florida, Statutory Immunity
The Third District Court of Appeal of Florida, on October 19, 2022, in Bal Harbour Tower Condominium Association, Inc. v. Bellorin, determined that an employee of a valet service could not maintain a negligence lawsuit against a condominium association for injuries sustained while working on the condominium premises. The court, relying on Florida statute 440.10(1)(b)—which […]
CAI Scores Amicus Win in North Carolina Foreclosure Case
The Supreme Court of North Carolina unanimously determined that a condominium has the power of sale for foreclosure for nonpayment of an assessment given the plain language of the North Carolina Condominium Act of 1985 and the condominium association’s declaration. The court reversed the decision of the North Carolina Court of Appeals and remanded the […]
Obligation to Pay HOA Dues Survives Even the Strangest Circumstances
As community association attorneys, we hear all sorts of reasons from homeowners to explain why they haven’t paid their assessments. These usually include legitimate explanations such as illnesses like COVID, job loss, or other hardships. Some homeowners are more creative. One owner recently told our office that the presence of “entities” in the home was […]
Citizen Suit Enforcement/Clean Water Act: Federal District Court Addresses Alleged Violation by Wetland Biofilter Stormwater Treatment System (WA)
A United States District Court (W.D. Washington) (“Court”) addressed in an October 31st Order a Clean Water Act citizen suit action seeking an injunction to remedy alleged illegal discharge of pollutants into a lake and its abutting wetlands. See Bang v. Lacamas Shores Homeowners Association, 2022 WL 16553016. Read the article………………………..
New NC Supreme Court Case: Applicability of Condominium Act Foreclosure Rights to Pre-1986 Condominiums
A decision last week (November 4) by the NC Supreme Court provides helpful authority to older condominiums not only in the context of foreclosures, but in the larger context of relying on the retroactive portions of the NC Condominium Act (Chapter 47C). Read the article………………………..
No Certificate of Occupancy? No Problem! (NY)
…..column discussing how in many ways, shareholders in a residential cooperative corporation, who are issued a proprietary lease or occupancy agreement to permit them to reside within their apartments, are very similar to ordinary residential tenants. However, a recent case by the Appellate Division, Second Department, has reinforced one important distinction between a residential rental […]
Minnesota Supreme Court asks: What’s an action?
A homeowners’ association in the Minneapolis suburb of Brooklyn Park served its insurance company with a summons and complaint in 2019, on the last possible day to commence a suit seeking coverage for damage done by a 2017 hail storm. The insurance company, Hiscox Insurance, responded with an answer shortly afterward, but the association did […]
Delco man opposes landscaper’s desire for summary judgment, says negligence led to mother’s death (PA)
A Delaware County man who alleged negligence on the part of a landscaping services company and others led to his mother suffering a fall on the property that caused injuries whose repairs later led to her death is opposing a summary judgment motion from that same landscaping company. Read the article………………………..
Virginia Supreme Court denies hearing condo owners’ appeal challenging expansion of VB senior living community
The Virginia Supreme Court has denied hearing an appeal from condo owners attempting to halt the expansion of a retirement community in Virginia Beach. In a statement issued Tuesday, the Court stated that “there is no reversible error” regarding the previous judgment regarding the Westminster-Canterbury on Chesapeake Bay. Read the article………………………..
Here’s What Happened When Lawyers For A Condo Association Tried To Collect Their Fees (HI)
A Honolulu law firm could have to pay almost half a million dollars to a condo owner after a federal jury found the firm violated debt collection laws when it sought legal fees totaling almost $50,000 in a dispute involving the condo owner’s dog. Read the article………………………..
“When I Die and Go to Hell, I Want to See the Entire [Court of Appeal] Panel There to Greet Me!” (FL)
From Rosen v. Tiffany of Bal Harbour Condominium Ass’n, Inc., decided yesterday by the Florida Court of Appeal, in an opinion by Judge Monica ordo, joined by Chief Justice Ivan Fernandez and Justice Edwin A. Scales, III: Read the article………………………..