Michigan condominium associations and co-owners should be aware that the boundaries of condominium units are not necessarily fixed and may be changed provided that certain requirements are satisfied under the Michigan Condominium Act, MCL 559.101, et seq. By way of example, a single co-owner may purchase adjoining condominium units in a traditional attached condominium and […]
Manager Licensing Continues for at Least One More Year (CO)
The long awaited passage of HB19-1212 occurred late Friday evening, May 3, 2019, as the session wound down. The final version of HB 19-1212 recreated the manager licensing program for one year. In addition to the one year extension, a stakeholder committee was formed to make recommendations for future revisions to the law. The stakeholders, […]
Dallas developer prevails in power struggle at Possum Kingdom Lake resort
The Dallas developer of an upscale golfing community on the shores of Possum Kingdom Lake was cleared Friday of wrongdoing and won’t have to pay millions of dollars in damages to resort property owners who claimed they were harmed by a slew of alleged misdeeds spread over 20-plus years. Read the article………………………
Governor Murphy Signs Important Foreclosure Reforms for Community Associations (NJ)
On March 28, we wrote about two important bills adopted by the New Jersey Legislature which aimed to lessen the burden felt by community associations with respect to properties in foreclosure. We can now report that those bills have been signed into law by Governor Murphy. As outlined in our earlier Alert, New Jersey quickly […]
Tenant alleges condo’s negligence led to theft of personal items (TX)
A tenant is suing a Houston condo association, alleging personal items were stolen from his unit. Jason Dell’Ario filed a complaint April 30 in Harris County District Court against O’Donnell/Snider Construction LLC, M. Strategic Partners Inc., and Inwood Manor Condominium Association, alleging negligence and liability. Read the article………………….
Common Sense Rules Regarding Children at Play May Violate Federal Fair Housing Law
It is getting warmer out (slowly) and your association may be reviewing your recreation and pool rules, especially those regarding children, to get ready for the summer season. In the summer there are children out of school playing around and about the complex, and everyone swimming in the pool. Be careful in making rules specifically […]
9th Circuit Holds Nevada HOA Super Lien Statute is Constitutional and Not Preempted by FHA Mortgage Insurance Program
The U.S. Court of Appeals for the Ninth Circuit recently held that Nevada’s homeowner’s association (HOA) super lien statute is constitutional, overruling its previous decision given new Nevada Supreme Court precedent rejecting the Ninth Circuit’s interpretation of the statute. Further, the Ninth Circuit held that this statue was not preempted by FHA Mortgage Insurance Program. […]
Plaintiffs in White Bear Lake level case to petition Supreme Court (MN)
Plaintiffs in the lawsuit filed against the Department of Natural Resources (DNR) intend to petition the Minnesota Supreme Court to hear the case. It’s the last step in a long, drawn-out process through the court system that started six years ago when the White Bear Lake Restoration Association (WBLRA) blamed historic low lake levels on […]
Pool Rules & Discrimination
A federal court has struck down, another restrictive pool use rule. On April 22, the Third Circuit Court of Appeals held that the A Country Place Condominiums in New Jersey violated the Fair Housing Act by implementing pool rules for male and female only swim times. By adopting a sex-segregated swim schedule, A Country Place […]
5 Tips for Keeping Your Association Compliant with the Illinois Biometric Privacy Act
Following the Illinois Supreme Court’s January 25th, 2019 Decision in Rosenbach v. Six Flags Entertainment Corporation, condominium, townhome, and homeowner’s associations utilizing biometric-based technology (that is, employee timeclocks and other technology requiring a person to provide a retina scan, fingerprint, voiceprint, hand-scan or face-scan) can find themselves facing severe statutory penalties for failing to comply […]
Your Community and the Law
If your community has a dreadful legal problem, one thing that doesn’t work is to not get real about the worst potential outcomes for your community. It doesn’t work to prevaricate, to use euphemisms, and to tiptoe around the subject because of the belief you’d be “negative” if you speak directly about the horrible things […]
Springs discrimination? HOAs can avoid proposed dwelling law, others can’t (CO)
Outlying neighborhoods that are organized as state-registered HOAs (Homeowners Associations) will be able to stay R1-single-family if City Council adopts an ADU law for Colorado Springs, but older neighborhoods closer to downtown will be forced to change to de facto R2-two-family zoning whether they want to or not. This will in effect create two unequal […]
Insider Real Estate and Community Association Law Update April, 2019 (FL)
After entry of a final foreclosure judgment and foreclosure sale which did not satisfy the amounts owed pursuant to a promissory note and mortgage, the judgment creditor instituted a deficiency action seeking damages, interest, costs and attorneys fees. The deficiency action was filed less than five years after entry of the final judgment but more […]
Condo owners, firefighters at odds over sprinkler requirements (FL)
The final week of the legislative session could finally bring an end to a long-running battle over condo fire sprinklers. In the 1990s, Florida law was changed to require all new high-rises in the state be outfitted with fire sprinkler systems. A decade or so later, existing hotels and timeshare complexes over 75 feet tall […]
1618 Sheridan Rd. Condominium Association v. Marshall Spiegel (IL)
In a collection of orders entered at the end of March 2019, Cook County Circuit Court Judge Margaret Ann Brennan ruled on several motions for sanctions, ultimately awarding over $1 million in sanctions against a single unit owner and his attorney. In so doing, Judge Brennan shone a spotlight on an all-too familiar phenomenon in […]
Judge reverses White Bear Lake water levels case ruling (MN)
The Minnesota Court of Appeals has overturned a victory for White Bear Lake residents in their lawsuit against the Minnesota Department of Natural Resources over the lake’s water level and the conservation of groundwater. Read the article………………….
Lakewood Condo Pool Sex Segregation Discriminatory, Court Rules (NJ)
Swimming pool use times that are segregated by sex at a Lakewood condominium complex have been ruled discriminatory by a federal appeals court. In a ruling issued Monday, the U.S. Court of Appeals for the Third District ruled unanimously in overturning a lower court’s summary judgment that a schedule of segregated pool use times at […]
2019 Legislative Primer Part II – Busy Year for Legislation Impacting Community Associations (FL)
Tension and excitement continue to build as we watch this year’s legislative session unfold. One of the pending bills that affects condominiums, cooperatives and homeowners associations HB 1075. The bill is over 100 pages so we cannot address all aspects of it in this article, but let’s look at some of the highlights. The bill […]
Can an Association Be Held Liable for Discriminatory Conduct of Residents? (FL)
On a daily basis we read about acts of hatred and discrimination occurring in our society. As residential communities are microcosms of the society at large, associations, too, are increasingly faced with determining how to deal with such issues. Legal precedent has established that associations may be held liable for discriminatory acts committed by its […]
Court rules that the Michigan Condominium Act permits bylaws to allow for an Association to recover attorney’s fees for defending a lawsuit (MI)
In Stadler v Fontainebleau Condominiums Association, unpublished opinion of the Court of Appeals, issued April 11, 2019 (Docket No. 343303), the Michigan Court of Appeals held that the plain language of the condominium bylaws permitted the condominium association to recover attorney’s fees and costs for successfully defending a co-owner’s lawsuit. The court further held that […]
Court of Appeals Upholds Condominium Association’s Collection Action (WA)
The Washington Court of Appeals recently ruled in favor of a condominium association in an assessment collection dispute. The Court affirmed the association’s power to levy regular and special assessments for common expenses and its perfected lien on the unit. Read the article…………………
Court rules Wausau Underwriters Insurance owes duty to defend in construction defect lawsuit (CA)
A federal court has granted an insurance company’s motion for partial summary judgment in a case involving one of its insureds which is facing allegations of manufacturing defective plumbing products for a condominium construction project. According to the March 29 order of the U.S. District Southern District of California written by Judge M. James Lorenz, […]
Court of Appeals Affirms Public Policy in Favor of Adult Care Facilities (MI)
Just about every set of bylaws has them – restrictions on “commercial” activity and the requirement that a home/unit be used only for “residential” purposes. However, litigation regularly erupts over whether certain activities are commercial or residential in nature. With regard to adult foster care facilities and whether they constitute commercial or residential activity in […]
Co-op Board Bitten After Denying Request for a Service Dog (NY)
Enforcing a no-animals policy, it turns out, is no simple matter. In recent years, a growing number of co-op shareholders and condo unit-owners have asserted their right to have a service or support animal in their apartment as an accommodation for a physical and/or mental disability – even in buildings that prohibit animals. When the […]
Greenwood HOA fight goes back to trial court for damages hearing (IN)
A long-running fight over homeowner association fees and how they were assessed in a Greenwood housing development will return to a trial court to determine damages the HOA is entitled to from a developer and homebuilder that paid no assessments for several years. The Indiana Court of Appeals on Thursday affirmed a Johnson Superior Court […]
Stricter Disciplinary Penalties for Florida Community Associations Now in Effect
A couple of years ago we saw the Florida state legislature add teeth to Florida’s condo and HOA laws governing theft, fraud, abuse and conflicts of interest. Recently, the Department of Business and Professional Regulation, the state agency that governs community associations, followed suit by implementing harsher civil disciplinary guidelines for condominium association infractions. Read […]
Appeals panel: Lawsuit vs condo association wasn’t frivolous; plaintiff shouldn’t owe $111K legal fee sanctions
A state appeals panel reversed a Cook County judge’s dismissal of a lawsuit in which a man claimed his condo board retaliated against him for lodging complaints. On March 29, a three-justice panel of the Illinois First District Appellate Court ruled on an appeal of Cook County Judge Kathleen Pantle’s decision. Justice Joy Cunningham wrote […]
No Need to Establish Notice Where Condo Association Caused Danger, Appeals Court Says (NJ)
In a case where a combination of dog urine and condominium stairs lacking a slip-resistant surface is alleged to have led to serious injury, a New Jersey appeals court has reopened a slip-and-fall suit after finding that dismissal based on defendant’s lack of notice of a hazardous condition was erroneous. Read the article…………………
Virginia passes bill for homeowners to make HOA fees more transparent
Virginia Governor Ralph Northam signed a bill this week that would give homeowners more transparency regarding different fees. The bill requires Homeowners’ Associations boards to make annual budgets available to homeowners prior to the new fiscal year. Read the article…………………….
Win for free speech in condo associations as appellate court reverses case dismissal (IL)
A unit owner’s lawsuit against a Gold Coast condominium association he says retaliated against him for expressing opinions about how it was managed will be allowed to move forward. The Appellate Court of Illinois has reversed a dismissal of the complaint, saying the unit owner, Brian Connolly, did “sufficiently plead” violations by the association of […]
Illinois Appellate Court Rejects Federal Insurance Coverage Analysis, Finds Duty to Defend Against Construction Defect Allegations
On March 29, 2019, the Illinois Appellate Court issued an opinion clarifying when a duty to defend against construction defect allegations exists under a subcontractor’s commercial general liability (CGL) policy. The decision reflects a broader shift in how courts have interpreted claims of faulty workmanship under CGL policies. Read the article………………….
Lawyer Xydakis, client sanctioned more than $1M for frivolous Wilmette condo association lawsuits (IL)
A Cook County judge has ordered more than $1 million in sanctions and penalties against a lawyer and his client in connection with a litany of legal actions against a Wilmette condo association. Marshall Spiegel sued the 1618 Sheridan Road Condominium Association though his attorney, John Xydakis. On Feb. 8, 2018, Judge Margaret Ann Brennan […]
Association Election ‘Shenanigans’ Lead to Contentious, Costly Litigation
A case in which a trial court concluded may have involved some association election “shenanigans” is going back to the trial court for further proceedings after the Fifth District Court of Appeal reversed the lower court’s order mandating binding arbitration. Read the article……………………….
Bank of America’s reading of HOA lien law was right on the money – 9th Circuit
A federal appeals court on Wednesday struck down a ruling that Bank of America’s $290,000 mortgage on a Nevada residence had been wiped out by a homeowners’ association foreclosure to recover less than $2,000 in unpaid dues. Read the article……………………
Court Bars Fire Insurer’s Subrogation Claim Against Condominium Tenant as Implied Co-Insured Under Lease and CC&Rs (CA)
In Western Heritage Ins. Co. v. Frances Todd, Inc. (No. A152428, filed 3/4/19, ord. pub. 4/2/19), a California appeals court held that a condominium association’s fire insurer was barred from suing a tenant in subrogation for fire damage under the rule that an insurer cannot subrogate against its own insured. The lease and the association […]
Is Your Association Missing Out on a Utilities Sales Tax Exemption? (FL)
Some associations are unaware that they could be entitled to an exemption for the sales tax related to a major expense – utilities for common areas serving exclusively residential properties, including condominiums and homes in a homeowners’ association. However, nonresidential uses are not exempt. Read the article……………………….
How To Calculate Real Estate Valuation Damages In A Construction Defect Action
When determining whether to pursue a construction defect action, few property owners consider the question: “how will my damages be calculated?”. While understandable, failure to properly address this question can prevent owners from recovering the full extent of their damages. This blog post discusses issues that should be considered when calculating the impact of a […]
HOA violates the Fair Housing Act by denying a service animal in the clubhouse
In Sanzaro v Ardiente Homeowners Association, et. al., Docket No. 2:11-CV0-1143-RFB-CWH, 2019 WL 1049380 (D Nev, March 5, 2019), a federal court imposed a judgment of $350,000 in compensatory damages, $285,000 in punitive damages and awarded the plaintiffs attorney’s fees and costs against their homeowners association. Based upon the facts of the case, the court […]
Lakewood community unlocks gate for Orthodox Jews after Sabbath complaint (NJ)
An Orthodox Jewish man has struck a deal with his homeowners’ association to unlock a pedestrian gate key to Jewish observances at the 55-and-over community in Lakewood, ending a dispute that served as another cultural flash point in the fast-growing township. Read the article………………….
Condo and Co-Op Conversion: Not Out of Time, Not Out of Luck (NY)
Many cooperatives and condominiums have overlooked, for decades, potent statutory rights enabling them to recapture building amenities currently under long-term, unfavorable leases with their developers. Because those rights were first promulgated during the 1980s’ cooperative and condominium conversion boom, they are often discounted as stale or forgotten altogether. But recent litigation may offer new hope […]
2019 Legislative Primer Part I – Busy Year for Legislation Impacting Community Associations (FL)
The number of pending bills this year affecting community associations in some way or another is substantial. Multiple bills regarding vacation rentals reveal the battle lines in Tallahassee between local governments, communities, and the hotel lobbyists versus the vacation rental companies. Senate Bill 1196 and House Bill 1129 are considered community-association friendly bills that impose […]
$19,233 In Attorney’s Fees And $815 In Litigation Costs To HOA Obtaining Injunction To Require Access To Condo Unit To Make Repairs Affirmed (CA)
In Durant Towers Owners Assn. v. Winchester, Case No. B288966 (2d Dist., Div. 8 March 29, 2019) (unpublished), HOA sued defendant condo owner to obtain access to her unit in order to determine if water leakage from her unit was causing damage to a unit below. After ignoring efforts for voluntarily cooperating, HOA sued under […]
Trial Court Properly Denied Fee Recovery To Prevailing Defendants Under Davis-Stirling Act Or Civil Code Section 1717 And Properly Struck The Costs Memorandum (CA)
In the fee area, you must have a solid fee entitlement basis and you usually have to apportion costs where there are several prevailing defendants rather than claim total costs without an appropriate allocation. Schuchmacher v. McDermott, Case No. B288130 (2d Dist., Div. 3 March 28, 2019) (unpublished) is a case where prevailing defendants obtained […]
Updated Lien Priority Law Benefits Condominium and Homeowners Associations in New Jersey
On March 25, 2019, the New Jersey Legislature passed legislation that will enhance the lien priority for condominium associations and, for the first time, give the same lien priority to homeowners associations. If this legislation is signed by Governor Murphy, both condominium and homeowners associations will enjoy a limited priority over all other liens (except […]
New Jersey Legislature Passes Important Foreclosure Reforms for Community Associations
For years, organizations that work with community associations, along with association residents, have lobbied for reforms to the foreclosure system in New Jersey. As of this writing, two bills currently sit on Governor Murphy’s desk which, when signed, will make small strides towards easing the burden felt by community associations when saddled with numerous properties […]
Florida condo association laws have growing pains
The 2017 bill providing website guidelines for condominium associations with more than 150 units (which does not contain timeshares) is going through some growing pains. The new law amended Section 718.111 of the Florida Statute and raises issues boards must consider as they strive for compliance. Read the article……………………
HOA responsibilities for homeowners being sexually harassed by other homeowners (CA)
Homeowner associations are notorious for issuing notices for the smallest infractions, so why are they silent when it comes to sexual harassment? The California Department of Fair Employment and Housing (“DFEH”) receives and investigates fair housing complaints based on numerous protected statuses. In 2017, a total of 212 claims were filed that alleged sex or […]
Architectural Variances Binding Future Owners (CA)
Asked – We are thinking about granting a variance to the Covenants of our Homeowner’s Association. The question is: would the Variance, if granted, apply to the next landowner (i.e., does the grant of a variance run with the land)? Read the Q&A…………………..
HUD Demonstrates Continued Commitment to Aggressive Enforcement of the Fair Housing Act
Fifty years after the passage of the Fair Housing Act, the United States Department of Housing and Urban Development (HUD) continues to demonstrate a strong commitment to Fair Housing, both through the support of private enforcement and through its own public enforcement. HUD recently announced that 80 non-profit organizations committed to fair housing will receive […]
Do Co-op and Condo Boards Have to Reveal Their Plans? (NY)
What is a board’s responsibility to advise a condominium unit-owner about planned work in the building, particularly if that work will have an impact on the unit-owner? That issue was considered in 345 East 50th Street LLC vs. The Board of Managers of M at Beekman Condominium. Read the article…………………..