Today (August 4, 2020), the NC Court of Appeals issued an opinion that could impact townhome exterior repairs. The case is Shearon Farms Townhome Owners Ass’n II, Inc. v. Shearon Farms Dev., LLC. Shearon is a “published” case, which means the holding is binding on other parties with similar facts. Read the article……………………………….
Law Change for “55 and Over” Communities (FL)
Q: We heard a rumor that our “55+ Park” is no longer required to register with the state. Is this true? Read the Q&A………………………………
Westchester co-ops must say when they reject an applicant. Soon they may have to say why (NY)
Co-ops have to notify Westchester County when they reject would-be buyers, but they don’t have to say why. That could change under a proposed amendment to Westchester’s fledgling co-op disclosure law, which went into effect in December 2018. Read the article…………………………….
Ruling reached in Eskaton appeal involving homeowner’s association (CA)
An appellate ruling has been reached on a case involving Eskaton Village Grass Valley and homeowners, reversing part of a previously reached judgment and sending several aspects of the case back to a trial court. Read the article…………………………………..
Appeals Court Sinks Lakefront Dwellers’ Demand That HOA Foot $1.9M Repair Bill (GA)
Sixteen lakefront homeowners in Alpharetta’s Glen Abbey subdivision are trying to shift responsibility for more than $1.9 million in repairs to the lake and dam to their 535-member HOA. Read the article – subscription required……………………………………
Mid-Year State Legislative Action Committee Update: Part II
During the COVID-19 pandemic, CAI’s legislative action committees (LAC) volunteered hundreds of collective hours to review bills, draft testimony, work with lobbyists, meet with legislators and other decision-makers, and testify for and against bills. Here is the second part of a series focusing on legislative issues impacting the community association housing model. Read the […]
Prevailing Party: Trial Court Properly Exercised Its Discretion In Finding Dismissed Civil Harassment Defendant Was Not Prevailing Party And Not Entitled To Attorney Fees (CA)
Plaintiff in Steele v. Holcomb, Case No. G057931 (4th Dist., Div. 3 July 27, 2020) (unpublished), who served on the board of directors for a residential homeowners association, filed a petition for a civil harassment restraining order against a resident for violent and harassing conduct she alleged he displayed concerning maintenance issues at his residence. […]
Shelborne South Beach unit owners lose appeal contesting $30M in assessments (FL)
A pair of investors who bought condo-hotel units in the Shelborne South Beach suffered a significant setback in their quest to reverse a three-year-old court ruling that deemed $30 million in special assessments legal and necessary. Read the article………………………………
How Can the Community Association Collect From Insurance Policies Insuring the Sponsor, General Contractor, Subcontractors, and Design Professionals?
Liability insurance policies insuring sponsors, general contractors, subcontractors, and design professionals are confusing and loaded with complex terminology that make them difficult to understand. Yet, it is these policies that hold the key to the ability of a community association to recover damages from design and construction deficiencies. Rather than making your eyes glaze over […]
Clipper Mill developer Larry Jennings files $25 million lawsuit against residents who testified against his projects
Developer Larry Jennings has filed a $25 million lawsuit against residents in the Clipper Mill community for challenging his redevelopment plans, saying the residents have cost him “millions of dollars” by raising questions that have prevented him from moving ahead with construction. In a 37-page complaint filed in Baltimore Circuit Court, attorneys hired by Jennings […]
Mid-Year State Legislative Action Committee Update: Part I
Most state legislative sessions have formally adjourned as the COVID-19 pandemic continues to dominate 2020. However, state legislatures are experiencing an unprecedented number of special sessions. CAI’s legislative action committee (LAC) volunteers and lobbyists continue to demonstrate their strength in protecting CAI members from legislation that would have a negative impact on their communities while […]
Be Wary of MRTA (FL)
A little-known law, which can present big problems for planned residential and commercial subdivisions, has undergone a number of recent changes intended to make it more manageable and less impactful on the associations which oversee or manage planned residential and commercial subdivisions. Read the article………………………………..
9th Cir. Holds Quiet Title Claims By GSEs Subject to 6-Year HERA Statute of Limitations
The U.S. Court of Appeals for the Ninth Circuit recently held that, under the federal Housing and Economic Recovery Act (HERA) statute of limitations provisions, a quiet title action brought by Freddie Mac or Fannie Mae is a “contract” claim with a six-year statute of limitations, and not a “tort” claim subject to a three-year […]
Governor Polis Signs Senate Bill 20-211 (CO)
In late June, SB 20-211 was approved, limiting creditors, including owner associations, from taking extraordinary actions to recover assessment delinquencies. Specifically, associations are prohibited from garnishing wages, levying bank accounts or otherwise executing on a court judgment. The Act is intended to provide some relief to individuals who have been financially impacted by the COVID […]
Supreme Court reverses appeals decision in lake level lawsuit (MN)
The state’s highest court affirmed a portion of the Court of Appeals decision regarding the lake level lawsuit and reversed a portion. Then they sent it back to the three-judge appeals panel. In a decision issued July 15, the Minnesota Supreme Court said plaintiffs in the case against the Department of Natural Resources (DNR) brought […]
Did you know that Owner Bankruptcy Filings Do Not Discharge Association Assessments or Pre-Petition Liens?
During these challenging economic times, many owners are failing to pay assessments and may even threaten to file, or actually file for bankruptcy protection. Many associations mistakenly believe that unit assessments are fully discharged when an owner files for bankruptcy protection. Pursuant to Section 523 (a) (16) of the U.S. Bankruptcy Code (cited as 11 […]
Updated NC Condominium Act (47C)
The NC General Assembly in 2020 has made a number of changes to the North Carolina Condominium Act (NCGS 47C). All of the updated statutes have been signed by the Governor and are now in effect. Read the article………………………………
Washington Court of Appeals Affirms Dismissal of Defamation Claims
A small group of homeowners expressed very negative views about another homeowner in their neighborhood on social media. For example, they asserted that she was a “problem board member,” “insane,” and “a plague.” She sued them for defamation. The Washington Court of Appeals recently affirmed the summary dismissal of her lawsuit. Read the article……………………………
2020 Florida Session: Legislative Update
With the legislative session closed and the deadline expired for Governor DeSantis to veto Florida House or Senate bills, we now know the laws that will affect community associations. Below is a summary of some of these new laws impacting Florida community associations. Our forthcoming Legislative Guidebook will contain a more in-depth analysis along with […]
Will new law open the floodgates of condo development in Nebraska?
I’m only posting this link because for the past few years the developer lobby in numerous states has pushed, often successfully, to significantly reduce the ability of associations to sue condominium developers for construction defects. The bill in Nebraska, if enacted, would make it almost impossible. It would give developers the right to build crap […]
Legislative Update on Emotional Support Animals (FL)
On June 23, 2020, Governor DeSantis approved Senate Bill 1084, which made certain changes to Florida’s existing housing laws as they pertain to emotional support animals (“ESA”). The new legislation, which went into effect on July 1, 2020, aims to penalize: (i) individuals who falsify and/or provide fraudulent information in order to obtain documentation supporting […]
Community Association Not Liable for its Receiver’s Actions (FL)
Whether a tenant who prevailed in an eviction lawsuit was able to recover his attorneys fees from the community association which governed a condominium that was the subject of the receivership, the court appointed Successor Receiver for The Horizons West Property Owners Association, Inc. was at issue in the Circuit Court case of Orbe v. […]
Short-term Rental Case Impacting Community Associations
In February, the Court of Appeals of Kentucky ruled that using a property for a short-term rental didn’t classify as residential use and violated a restriction limiting the property’s use to a private summer residence. The homeowners in the case (The Hoffman Revocable Trust v. Marshall) purchased a home in a community association, which had […]
Bad Faith Expert Testimony in Coverage Litigation
Most lawyers trying bad faith cases want to introduce expert testimony to support their claims or defenses. Under Daubert, however, “bad faith” expert testimony is not always admitted. This article addresses when this type of testimony will be admitted and when it will be limited or excluded. Read the article……………………………..
Maryland Court of Appeals Recognizes a Cause of Action for Breach of Fiduciary Duty
In a newly issued opinion, the Court of Appeals of Maryland has clarified existing law and expressly recognized an independent cause of action for breach of fiduciary duty. In William H. Plank, II, et al. v. James P. Cherneski, et al., Misc. No. 3, September Term, 2019. the Court observed that whether Maryland recognizes an […]
9th Cir. Holds Conditional Offer Not Sufficient to Satisfy Nevada Superpriority HOA Lien
The U.S. Court of Appeals for the Ninth Circuit recently held that a conditional offer from a lender was not a valid tender to satisfy the superpriority portion of an HOA lien……A condominium owner fell behind on the assessments she owed her homeowners association (“HOA”) and filed a Chapter 7 bankruptcy on Feb. 29, 2012. […]
Mold – Have to Act Quick and Tee Up Your Condo’s or Coop’s Defense (NY)
Water damage + mold growth = lawsuit for damages. Condominiums and cooperatives have to deal with water damage all the time. When it happens, even when action is taken immediately to mediate, there may be mold growth that will eventually rear its ugly head. Where there is mold, you’ll probably find a plaintiff and an […]
Daycare, the New Normal in Associations (CO)
On July 8, 2020, Senate Bill 20-126 was adopted. SB 20-126 amends CCIOA at C.R.S. §38-33.3-106.5 to require licensed daycare centers to be allowed in all Colorado associations (with the exception of communities qualified as housing for older persons under the Housing for Older Persons Act of 1995), regardless of whether or not daycare centers […]
Court grants $3k/mo License Fee, Attorneys’ Fees, Etc. for Neighbor Access (NY)
The 40 W. 20th St. Condominium has to sue to gain access to their neighbor’s property for an exterior project and the neighbor got $3,000 per month license fee, attorneys’ fees and other protections from the court. Best course is negotiating access agreements while negotiating the construction contract so there are no delays or unexpected […]
Residents Secretly Recorded at High-End Miami Condo Tower: Lawsuit (FL)
A fired concierge at Miami’s high-end Palm Bay Tower condominium claims he was a victim of retaliation after reporting video and audio recordings were made in the building with secret cameras. Christian Miranda sued Palm Bay Towers Condominium Association Inc. and KW Property Management LLC, which oversees day-to-day building operations, under the state whistleblower and […]
Florida Legislature Eliminates State Registration and Reporting Requirements for 55+ Communities
If your community claims to be “housing for older persons” under federal and state law, then effective July 1, 2020, the Florida Legislature has eliminated from Florida’s “Fair Housing Act” (§760.29(2)), the requirement for your community to register with the Florida Commission on Human Relations. In addition, community associations that qualify as “housing for older […]
Court Finds This Triptych Sufficient To Establish A Director’s Breach Of Fiduciary Duty (CA)
Yesterday’s post discussed one aspect of the Court of Appeal’s holding in Coley v. Eskaton, 2020 Cal. App. LEXIS 629. The case involved a homeowner’s lawsuit against two directors of the homeowner’s association and their employers. Among other things, the plaintiff alleged that the directors approved assessments that benefited their employers in violation of the […]
New Colorado law requires homeowner associations to allow home daycares
Gov. Jared Polis signed a bill into law on Wednesday that aims to make it easier for home daycares to open in neighborhoods with homeowner’s associations. The bill prohibits homeowner associations from banning these daycares, something supporters say has stifled many would-be childcare centers in the past. Read the article…………………………….
Director Found To Have Breached His Fiduciary Duty By Sharing Corporation’s Privileged Information With His Personal Attorney (CA)
A homeowner in a common interest development sued the homeowner association and two of its directors and the directors employers. The directors’ were employed by two related companies engaged in the development and support of common interest developments. The homeowner association’s attorneys advised the association during the course of the litigation. One of the directors […]
Finally! Florida Passes Emotional Support Animal Law
Finally, the Florida legislature passed a bill regulating the out of control problem of Emotional Support Animals in Florida’s community associations. SB 1084 was signed into law by Governor DeSantis on July 1, 2020, and takes effect immediately. The new law provides for the following Read the article…………………………
Loveland woman scores major win in homeowners association foreclosure case (CO)
Martha Hummel was handed a major victory on Monday as a district court judge overturned the default judgment that allowed her homeowners association to foreclose on her Loveland home in 2019. The ruling came as a relief for the 70-year-old, who learned in August that she was being evicted from her house because of unpaid […]
2020 Amendments to the Florida Statutes Affecting Community Associations
Each year the Florida Legislature proposes amendments to various sections of the Florida Statutes, and some of those proposed amendments involve community association governance. Florida Governor DeSantis recently signed several proposed bills into law that took effect on July 1, 2020, and some of which address Florida’s community associations options for regulating issues involving emotional […]
Fourth Circuit Joins Sister Circuits to Broaden the Scope of the FDCPA’s Statute of Limitations
One of the first lines of defense when defending allegations of a statutory violation is the statute of limitations. As a complete bar to a plaintiff’s claims, the statute of limitations is one of the most powerful tools in a defense litigator’s pocket. Recently, the Fourth Circuit joined the Sixth, Eighth, and Tenth Circuits in […]
Emotional support dog didn’t have priority over tenant with allergies, state supreme court says
The Iowa Supreme Court ruled Tuesday that a no-pets building in Iowa City, Iowa, should not have allowed a new tenant to have an emotional support dog after an objection by another tenant with severe allergies. The court ruled 4-3 for tenant Karen Cohen in her lawsuit for breach of her lease’s no-pets provision and […]
Real Estate and Community Association Legislative Update: Tracking New Legislation (FL)
HB 469: Statute of Frauds. Signed into law on June 27, 2020 and effective July 1, 2020, this bill amends Florida’s Statute of Frauds to specify that subscribing witnesses are not required on a lease for real property. SB 1084: Emotional Support Animals. Read the article………………………….
Gov. Cooper signs bills into law (NC)
North Carolina Gov. Roy Cooper on Tuesday signed 12 bills into law………inc. Condominium Association Changes Read the bill (PDF)……………………………
9th Circuit Gives Freddie Mac gets six years to sue over foreclosure of HOA superpriority lien
The Federal Home Loan Mortgage Corp. has six years to establish that its liens survive foreclosure of state-law “superpriority” liens for unpaid homeowners association dues, a federal appeals court held Thursday. Read the article……………………………..
NC Community Association Legislative Update – June 24, 2020
Like most everything else in 2020, this year’s legislative session has not been typical. This is the second legislative year of the 2019-2020 Session. Normally, some of the bills that survived “crossover” in 2019 would be tweaked and considered, but new significant legislation is not all that common in the second year of a session. Due […]
DeSantis signs bill defining term ’emotional support animal,’ prohibiting discrimination (FL)
Governor Ron DeSantis signed a bill Tuesday that will define the terms “emotional support animal” and “housing provider.” SB 1084 will prohibit discrimination in housing being provided to someone who needs a support animal as well as prohibits health care practitioners from “providing information regarding a person’s need for an emotional support animal without having […]
When can an Association foreclose against an Owner? (AZ)
The Laveen Meadows Homeowners Association (“Association”) filed a foreclosure lawsuit against a homeowner for unpaid assessments and other amounts. The homeowner did not respond to the lawsuit so the Association applied for a default judgment. The defendant then remitted payment for $5,000, which covered the entire balance of unpaid assessments. The defendant argued that this […]
Ruling Proves Community Associations Need to Revise Own Governing Documents (FL)
A ruling in May by Florida’s Third District Court of Appeal added to the growing string of decisions in recent years illustrating how an old and outdated provision in HOA and condominium association declarations is preventing some communities from collecting what they would be owed under the current state law from purchasers in foreclosure actions. […]
Broward Woman Accidentally Run Over by Boyfriend Gets $1 Million Presuit Settlement From Condo Association (FL)
A South Florida woman whose boyfriend accidentally drove his car into her in a dark apartment complex parking lot has obtained a $1 million settlement without having to file suit. Alexander Perkins of Perkins Law Offices in Miami represents Laura Canaveral, who was taking out the trash one evening in 2017 at the Westview Condominium […]
$742K Verdict After Stairwell Banister Collapsed (CT)
The plaintiff was walking up a staircase in a common area of her building. Reportedly, the stairwell’s banister had broken nearly three years earlier, and had been duct-taped together by another tenant. While the plaintiff was ascending the stairs, the taped-together stairwell banister collapsed beneath her weight. She fell backward down the staircase, and sustained […]