We routinely get calls from owners facing impacts to their property or business as a result of construction of a public project or changes in adjacent public streets. For example, the city or county may close a road, create a cul-de-sac, turn a two-way street into a one-way street, close a driveway, relocate an off-ramp, […]
Are Political Rallies and Signs Legal in Your Community Association?
During an election year, it’s not unusual for community associations to grapple with issues related to the legality of displaying political signs. Yet, these are unusual times. The nation is experiencing a time of increased interest in political activism. Not long ago a video of dueling protesters at a political rally in a Florida community […]
Free Speech or Covenant Violation? (CO)
Many times, Homeowners express their passions and interests in the form of signs and/or flags on their property. However, HOAs are sometimes asked to restrict signs and flags that are controversial or politically charged. Legally, some signs and flags cannot be prohibited under Colorado law, although HOAs are given discretion to restrict the number, size, […]
Puerto Rico Gov Signs New Condominium Act
Gov. Wanda Vázquez Garced signed Act 129-2020, which establishes the Puerto Rico Condominium Act to update the rules that govern coexistence in these structures, effectively abolishing Act 104-1958, as amended. Read the article……………………………….
After sale of their condo, unit owners sue board, saying it took low offer (IL)
Millions of dollars were lost when a condo board in Streeterville approved a sale last year but ignored a better offer, according to a lawsuit filed in Cook County Circuit Court. Read the article……………………………….
New law impacts 55+ communities (FL)
Q: I heard there is a new law that impacts the registration process for “55+” communities. What are the details? Read the Q&A……………………………….
Blaine County wins Flying Heart Ranch lawsuit (ID)
A judge has ruled that the public has the right to park alongside a road in a subdivision north of Hailey in order to access the Big Wood River, marking the latest development in a longstanding dispute between Blaine County and the Flying Heart Ranch homeowners’ association. Read the article…………………………
A Way for Co-op and Condo Boards to Avoid Costly Litigation (NY)
Lawsuits from cooperative shareholders and condominium unit-owners opposing their boards’ conduct have become commonplace. When confronted with such challenges to their authority, boards may, of course, defend their position on the merits, or they may seek legal vindication under the Business Judgment Rule. However, pitched legal battles of this nature tend to plunge a residential […]
Settlement: Idaho company blocked from gouging $100k in Florence repairs from Hampstead residents (NC)
Two years after Hurricane Florence caused widespread flooding across the Cape Fear region, the state’s attorney general has blocked an attempt by an out-of-state water remediation company to collect nearly $100,000 from a group of Hampstead condominium owners for flood damage repairs. Read the article…………………………….
Defamation Claim can be a Weapon for Condos with Bad Owners (NY)
Owners are not allowed to defame board members and a defamation claim is a way condos can address bad owners. There have been a lot of articles about the limits on condominiums addressing bad owners and how they are more difficult to address than bad shareholders in cooperatives. This is true, but there are ways […]
Defamation Claim can be a Weapon for Condos with Bad Owners (NY)
Owners are not allowed to defame board members and a defamation claim is a way condos can address bad owners. There have been a lot of articles about the limits on condominiums addressing bad owners and how they are more difficult to address than bad shareholders in cooperatives. This is true, but there are ways […]
Insurance Subrogation Case Impacts Condominium Associations
In May, the Supreme Court of Virginia ruled that an insurer did not waive its subrogation rights (the process by which an insurance company collects money from the party at fault) against tenants of a unit owner in a condominium insurance policy. The insurance company can pursue a claim for damages against the tenant even […]
Application of the Business Judgment Rule to Community Association Board of Directors (FL)
The board of directors of community associations are responsible for making important decisions affecting the community and its members. As a result, disputes sometimes arise between the association and its members. In the event the dispute evolves into a lawsuit, the business judgment rule will protect directors from personal liability so long as they did […]
MN Supreme Court affirms, reverses parts of ruling over White Bear Lake water issues
A recent ruling by the Minnesota Supreme Court affirmed in part and reversed in part a lower court’s decision regarding the ongoing legal battle over White Bear Lake and the role the Department of Natural Resources had in its fluctuating water levels. Read the article………………………..
Rule Interpretation Conundrums (FL)
A recent Monroe County court case illustrates the importance of well drafted rules. In Biza Corp. d/b/a Galway Mobile Home Park v. Jarome Kaczmarek (FlWSUPP 2710BIZ2), the plaintiff mobile home park filed an action to evict Mr. Kacmarek (“Defendant”) from his lot in Galway Mobile Park for his violations of the park rules. The action […]
Mid-Year State Legislative Action Committee Update: Part III
During the COVID-19 pandemic, CAI’s legislative action committees (LACs) volunteered hundreds of hours reviewing bills, drafting testimony, working with lobbyists, meeting with legislators and other decision-makers, and testifying for and against bills. Here is the third part of our series focusing on legislative issues impacting the community association housing model. Read the article……………………………
Appeals Court Favors Commercial Wharf Condo Owners Avoiding Chapter 91 License (MA)
The Commercial Wharf East Condominium Association (CWECA) received a favorable ruling from the Massachusetts Appeals Court on July 31, 2020 in its fight against the State Department of Environmental Protection’s (DEP). The court affirmed a Superior Court ruling that the DEP’s determination process was flawed regarding the need for a Chapter 91 license at Commercial […]
Appellate Panel Reverses Attorney Fees Award Involving Pembroke Pines Condo (FL)
An affiliate of real estate mortgagee Beltway Capital LLC that had acquired a Century Village unit in foreclosure had been awarded attorney fees in the lower court but the appellate panel reversed the decision. Read the article……………………………..
New Appellate Case May Impact Townhome Exterior Repairs (NC)
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 […]