When mistakes are made in co-op and condo board elections, the whole process can be tainted and litigation can result. That’s what happened in the case of Roberts v. WVH Housing Corp. WVH, a New York City cooperative, has a seven-member board, and at the 2021 election four positions were open. Read the article………………………..
US Supreme Court set to decide whether to hear Lake Michigan beach-ownership case (IN)
The U.S. Supreme Court may decide next week whether to hear an appeal filed by three lake-adjacent property owners in the town of Porter who have been unsuccessful in their attempts to claim ownership of a private beach on Lake Michigan. Read the article………………………..
Insurer’s Reservation of Rights May Increase Your Association’s Liability Costs (MA)
When faced with a significant liability claim, or even a small one, condo association boards have to decide whether to fight or settle it, typically in both cases, relying on insurance to cover the costs. A recent decision by a federal District Court in Massachusetts (Berkley National Insurance Company v. Granite Telecommunications) has made that […]
Temporary fencing approved for debated Rio Del Mar patio walkway (CA)
After months of back and forth, a Santa Cruz Superior Court judge finalized his ruling this month in favor of securing Rio Del Mar private owners’ rights to a beachside walkway. Read the article………………………..
Landscaper wants summary judgment, in case where woman’s fall and treatment led to her death (PA)
Gary L. Essaf Jr. (individually and as administrator of the Estate of Kathleen Essaf, deceased) of Broomall first filed suit in the Delaware County Court of Common Pleas on Feb. 4, 2021 versus Danella Realty and Management Company, Inc. and Hilltop Condominium Association II, both of Blue Bell. Read the article………………………..
Unpublished California Appellate Decision (Fourth District, Third Division)
Plaintiffs Michael Mojtahedi and Mojdeh Mojtahedi along with defendant Greg Carpenter are homeowners in Laguna Sands, a condominium complex in Laguna Beach, California. Plaintiff Mojdeh Mojtahedi and defendant concurrently served on the homeowners association’s board of directors. Plaintiffs sued defendant, the homeowners association, and other individual board members for breach of written contract, enforcement of […]
A Cautionary Tale for Associations: A Condominium Association Bears a Duty to Exercise Reasonable Care for the Resident’s Safety in the Common Areas (MA)
The recent Massachusetts Superior Court decision in Field, et al. v. Highbridge Concierge, Inc., et al., 1784 CV 02486-B (Mass. Super. Ct. July 5, 2022) (Roach, J.), defines the standard of care that condominium trusts owe to unit owners and others lawfully within the common areas. Read the article………………………..
Kansas Association Votes to Amend HOA Voting Procedures
The Board of Directors of Forest Lakes Master Association sought to amend the HOA voting procedures set forth in the Association’s Declaration. The Board requested all members vote in person or by proxy at the meeting they called to consider the amendment. With concern that they would not get full participation, the Board also announced […]
The NC Court of Appeals Lays an Egg: Bryan v. Kittinger
The NC Court of Appeals, in a published opinion (i.e., the opinion is binding precedent), got egg on its face in the case of Bryan v. Kittinger. The Court begins its opinion by citing a New York case: “The issue is, what is chicken?” Read the article………………………..
CORONADO CAYS HOMEOWNERS ASSOCIATION, Plaintiff and Respondent, v. CITY OF CORONADO, Defendant and Appellant. (CA)
City of Coronado (the City) appeals a judgment in which the court determined the City, rather than Coronado Cays Homeowners Association (the Association),[1] is responsible for maintaining a berm that laterally supports bulkheads located on property within the Coronado Cays subdivision. The bulkheads are adjacent to and act as a retaining wall for a waterway […]
Split 7th Circuit allows racial housing-discrimination claims to proceed against individuals but not Kokomo HOA (IN)
A Black couple subjected to racist harassment from their neighbors may proceed to jury with their racial housing discrimination claims, a split 7th Circuit Court of Appeals has ruled. A dissenting judge, however, argued that a nexus between discriminatory treatment and an adverse housing action was lacking in their claims. Read the article………………………..
Due Process is Critical to the Violation Process (IL)
Consistent with prior rulings, Illinois courts have shown a fondness to expand a condominium board’s duties in ensuring “due process” in violation hearings. In Board of Directors of Winnitt Park Condominium Association v. Bourdage, the court refused to uphold a fine imposed at a violation hearing that was held at a time when the board […]
Security Issues for Associations (MA)
A recent Massachusetts Superior Court decision (Field, et. al. v. Highbridge Concierge, Inc., et. al.) has rattled windows in the condominium world, describing, in large capital letters, the security obligations of condominium associations and association managers. Read the article………………………..
Do I have standing to bring a declaratory judgment action? (OH)
In this case the Eleventh Appellate District affirmed in part and reversed in part a trial court’s decision granting judgment to a Home Owner’s Association on its complaint for damages. Regarding a claim for interim road contribution fees, the court found the plain language of a temporary easement did not permit recovery of such fees. […]
NJ Supreme Court Ruling Addresses Enforceability of Arbitration Clauses in Construction Defect Disputes Involving Direct Claims Against a Judgment Debtor’s Insurer
The Supreme Court of New Jersey recently ruled that a condominium association may bring a direct action to recover damages based upon construction defect claims against an insolvent judgment debtor’s insurer. The Court further held, however, that a mandatory arbitration provision in the underlying insurance policy will be applicable to such claims. The case is […]
Condominium Documents That Require Co-Owners to Use a Developer’s Rental Management in Condo Hotel May Violate The Sherman Antitrust Act (MI)
As a condominium attorney, I have always been fascinated with condominium hotels, and wrote one of my first published articles on condominium hotels in 2012. Condominium hotels can often be a great investment, as they provide a place for co-owners to vacation and rent their units for a portion of the year to earn supplemental […]
Issues In Apartment Buildings When There is No Mending Wall (NY)
……case law around a myriad of noise complaints in apartment buildings and how and how boards and cooperative owners can make sense of a 2022 Ruling in O’Hara v. Board of Directors of the Park Avenue and Seventy-Seventh Street Corp., 206 A.D.3d 476 (1st Dep’t 2022). Read the article………………………..
Court Affirms Homeowners Association’s Decision to Grant Fence Variance (WA)
The Washington Court of Appeals ruled earlier this month that a homeowners association committee properly exercised its authority under real estate covenants to grant owners a variance for a cedar fence. Read the article………………………..
3 Court Cases That Shaped the Way Your Association Pursues Condo Debt Collection
Condominiums (and to a certain extent HOAs) are “creatures of statute.” Every year, in almost every state, new laws and new court cases can change the dynamic of how a community association can collect delinquent assessments. This article will cover some examples of the more significant cases to impact condo debt collection coast to coast. […]
Slips and Falls by Co-owners on the Common Elements of Condominiums: Who, If Anyone, Is Liable? (MI)
On February 1, 2022, in Janini v London Townhouses Condo Ass’n,[1] the Michigan Court of Appeals (“COA”) held that a co-owner of a condominium unit could not bring a premises liability action for a slip and fall that occurred on the common elements of the condominium because he was not a licensee or invitee, but […]
State Land Court Lets Homeowners Repudiate Racist Covenants in Deeds (MA)
State Rep. John Barrett III could not get state law changed to allow homeowners to strike racist language from their deeds. But he came pretty close, and the effort shed light on a problem that those homeowners can address, free of charge, in the documents that define their real property. “As the Land Court put […]
“Direct Action Statute” Can Permit Judgment Claimants to Collect from Debtors’ Insurance Policies (NJ)
In Crystal Point, the Condominium Association obtained two default judgments for construction defect claims against a structural engineer and its companion construction inspection entity. The default judgment defendants could not be located and efforts to execute upon the default judgments were returned uncollectible. Read the article………………………..
Collection lawyers avoid lending laws in Maryland; Dissenter decries loophole
A law firm in the business of collecting homeowner association and condominium dues isn’t a “lender” under the Maryland Consumer Loan Law, the state’s highest court ruled, answering a central question in a class action in federal court by delinquent property owners. Read the article………………………..
Seven Lakes West Property Owners Prevail in Suit Against Association (NC)
Only dues-paying members of Seven Lakes West are entitled to vote in association elections, Moore County Superior Court Judge James Webb has ruled. The decision comes a year after a group of 10 property owners sued the association over what they claimed were election irregularities and improper votes cast. Read the article………………………..
Can a Voluntary Homeowners Association Enforce Restrictive Covenants? (MI)
Most homeowners associations require that owners within the subdivision be members of the association. While these types of homeowner associations are the norm, they are not the only type of homeowners associations in existence. A voluntary homeowners association is just that, an HOA where membership is voluntary. But as a voluntary homeowners association, some members […]
State of Arizona, Foothills Reserve HOA $18M eminent domain judgment
The state of Arizona was ordered to pay $18 million to Foothills Reserve homeowners association (HOA) homeowners in a judgment resolving eminent domain claims. Read the article………………………..
Despite Surfside settlement, legal battles may not be over. Who could face lawsuits? (FL)
Although a $1 billion class-action settlement resolving the Surfside condominium tower’s collapse was approved with much fanfare in June, the legal battles may not be over. There are potentially dozens of other individual lawsuits that might still be pursued more than a year after the tragedy — with some former condo owners the potential targets. […]
Court rules in favor of Somerville condo conversion rules following property owner lawsuit (MA)
The Middlesex Superior Court upheld the city of Somerville’s condo conversion rules last week, after a group of a property owners filed a lawsuit challenging the 2019 ordinance. Somerville had already established condo conversion rules and a review board back in the 1980s, but updated the ordinance in 2019. Read the article………………………..
Z Capital loses attempt to assess Carillon condo owners in Miami Beach nearly $8M (FL)
Z Capital Group lost its attempt to levy a $7.7 million assessment on condominium unit owners at the Carillon Miami Wellness Resort. The outcome is the latest in the drawn out and still-ongoing legal battle, pitting the associations for the North, South and Central towers against Z Capital’s affiliate, Carillon Hotel. Read the article………………………..
Ruling Shows Pitfalls of Associations Enacting Changes Without Required Votes (FL)
It focuses on a recent ruling by Florida’s Fifth District Court of Appeal that illustrates the potential consequences of associations that undergo alterations to their amenities and enact rule changes without the required vote and approval of their unit owners. Read the article………………………..
Community Associations: Self-Help or Injunctive Relief (FL)
Based on a recent opinion from the Second District Court of Appeals, Community Associations should consider self-help/abatement rights to cure violations before filing a lawsuit for injunctive relief. Read the article………………………..
Washington Court of Appeals Rejects Owner’s Assessment Exemption Claim
An owner in a condominium association recently refused to pay assessments on his unit and argued that he was exempt from doing so due to the association’s mismanagement of common funds. Read the article………………………..
New Unpublished Opinion – ORANGECREST COUNTRY COMMUNITY ASSOCIATION v. BURNS (CA)
Defendant Sandra Burns sought approval to build a wall across her front yard, and when her homeowners association said no, she built it anyway. After multiple attempts to get her to stop construction (and later to mediate the issue) failed, the association sued Burns, seeking a permanent injunction requiring her to remove the wall. Read […]
Eleventh Circuit Reiterates Availability of Postjudgment Rule 11 Sanctions (FL)
The case of Huggins v. Lueder, Larkin & Hunter, LLC, Nos. No. 20-12957, 20-12959, 20-12961, 20-14320, 20-14318, 20-14319, — F. 4th —- 2022 WL 2679024 (11th Cir. July 12, 2022), was a consolidated matter that originated when the law firm Lueder, Larkin & Hunter (“Lueder”) represented a homeowners association seeking to collect delinquent fees from […]
Heath v. Bear Island Homeowners Association, Inc. 76 So.3d 39 (Fla. 4th DCA 2011)
The importance of how language is drafted in covenants is at the heart of THIS CASE. Heath, a resident of Bear Island and as such a party to the Declaration of Covenants and Restrictions (“Declaration”), filed a lawsuit for injunction against the association and one of its directors. Read the article………………………..
New Appellate Decision Related to Application of Insurance Proceeds in Older Condominiums (NC)
Earlier this week, the North Carolina Court of Appeals issued a decision in Grooms Property Management v. Muirfield Condominium Association. The case dealt with interpreting and applying insurance provisions in the declaration of an older condominium governed by the NC Unit Ownership Act, and determining the association’s obligation to purchase insurance and the application of […]
Co-Owner’s Complaint of Neighbor’s Smoking in a Condominium Rejected by the Federal Courts (MI)
The Federal Appeals panel affirmed an opinion by the U.S. District Court for the Eastern District of Michigan over the granting of Summary Judgment in a condominium case that has broad ramifications. The Plaintiff claimed her Defendant next door neighbor was aggravating her preexisting asthma condition due to the frequent smell of smoke emanating from […]
Condo’s claims against insurer must be arbitrated: State high court (NJ)
The New Jersey Supreme Court partially overturned a state appeals court on Monday and held that a condominium can pursue claims against an insurer of allegedly insolvent policyholders, but they must be arbitrated. Read the article………………………..
Covenants to Arbitrate Construction Defect Disputes Within a Deed Run With the Land Obligating Subsequent Parcel Owners (FL)
In the case of Hayslip v. U.S. Home Corporation, — So. 3d —, Case No. SC19-1371 (Fla. Jan. 22, 2022), the Florida Supreme Court held that an arbitration covenant contained in a developer’s original deed also bound subsequent owners. Read the article………………………..
Law Firm Can Seek Sanctions for Frivolous Filings After Judgment (GA)
A Georgia federal court misread Eleventh Circuit’s recent precedents when it dismissed a law firm’s postjudgment motions seeking sanctions for frivolous filings in a dispute over fair debt collection practices, the appeals court ruled Tuesday. Read the article…………………….
Michigan HOA Awarded Legal Fees For Restriction Enforcement
Winning one appeal is hard; winning two appeals in the same case is harder. When the experienced Michigan condominium association lawyers at Makower Abbate Guerra Wegner Vollmer helped their HOA client win for the second time in Copperfield Villas v Tuer, No 356494 (Mich Ct App June 23, 2022), they affirmed what it means to […]
Case Law Breakdown: The Interested Director in Maryland
The opinion issued by the Maryland Court of Special Appeals recently in the case of Cherington Condominium v. Kenney delved into issues relating to the Business Judgment Rule. Read the article…………………..
In Contested Golf Course Redevelopment, Court Rules HOA Isn’t Guaranteed Open Space (NC)
The N.C. Court of Appeals issued a ruling Tuesday with mixed results for both parties entangled in litigation surrounding the proposed redevelopment of a portion of The Cape’s former golf course into townhouses. Read the article…………………………..
Condo Column: When a home is not a home (NH)
I ran across a case recently that I thought might be of interest. Most residential associations are just that, places where structures are to be used for residential units. But rarely is there a fight over what exactly “residential” means. Read the article………………………….
Fair Housing Act: Personal Grill in Condo Was Not a Reasonable Accommodation
The Fair Housing Amendments Act (FHAA) require condominium associations to make reasonable accommodations to disabled co-owners under certain circumstances. However, condominium associations should keep in mind that co-owners are not entitled to every accommodation that is requested. Rather, co-owners are only entitled to accommodations that are necessary to ameliorate the effects of a disability as […]
Transition not substantial completion starts the clock: New Jersey amends statute of limitations for homeowner and condominium association construction defect cases
In?2017, the New Jersey Supreme Court, in Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisade, LLC, et al., held that the statute of limitations for construction defect claims brought by a condominium association begins to run upon “substantial completion” of the structure. Read the article………………………….
Condo can’t evict Morgan Stanley manager from penthouse: Judge (NY)
The strange, years-long tale of a luxe Chelsea apartment sold at a steep discount as a result of a foreign financial scandal may have finally come to a close. Read the entire article……………………………….
Courts Uphold Condo’s Demand for $1 Million Bond in Licensing Agreement (NY)
New York is a city where thousands of buildings must, by law, undergo costly facade repairs every five years. It’s a city where new buildings are constantly being shoe-horned into vacant lots, and where old buildings are constantly being razed so new ones can be put up. As a result, it’s a city where neighbors […]
Automatic Architectural Approval
Governing Documents commonly include a provision that the Board and/or Architectural Committee have a certain number of days to render a decision on an architectural application (e.g. 45 days from the date that the application is received), and failure to render a decision within that timeframe results in the application being considered approved. Read the entire […]
Public access: Court rules in favor of Rio Del Mar homeowners (CA)
A civil court judge has ruled in favor of Rio Del Mar waterfront property owners who say government officials were wrong in opening their patios as a public walkway in 2018. Read the entire article……………………………….