From a recent Fourth District Court of Appeal case, Seminole Lakes Homeowner’s Association, Inc. v. Esnard, decided December 19, 2018, we once again learn that application of prior case law sometimes creates strange and convoluted results. Just because an association negligently creates obvious conditions for an accident to occur does not necessarily mean the association […]
Managers as Trial Witnesses
Community managers frequently ask about their role in a trial. They also want to know how to best prepare and present themselves in the unfamiliar setting of a court room. The purpose of this article is to provide some guidance on these topics. If I were to distill the answer to these questions down to […]
New Disclosure Requirements Managers Need to Know (CO)
As a community association manager you may start to see selling owners requesting additional documents as part of their upcoming closing on their unit. This is because the Colorado Real Estate Commission approved a new Contract to Buy and Sell Real Estate (Residential) effective January 1, 2019 (“Buy Sell Contract”). The new Buy Sell Contract […]
Law Firm Not a ‘Debt Collector’ Under FDCPA, says Fifth Circuit
A law firm not specializing in debt collection activity is not a “debt collector” under the Fair Debt Collection Practices Act because it was not “regularly” engaged in debt collection, according to the U.S. Court of Appeals for the Fifth Circuit. The case is Reyes v. Steeg Law. Plaintiff Nicole Reyes filed a class action […]
Fed. judge flushes homeowner association’s lawsuit over toilet wipes (NY)
A federal judge has dismissed for lack of standing a proposed nationwide class action lawsuit on behalf of homeowners claiming a range of companies falsely advertised their toilet wipes as “flushable.” U.S. District Judge Joseph Bianco in Central Islip, New York in an order on Monday said the homeowners had failed to allege any imminent […]
Woodlands floor collapse victims pursue legal action during recovery (SC)
The Greenville resident and University of South Carolina junior was on fall break and visiting friends in Clemson. She decided to join them at a party for Clemson’s Homecoming weekend. The next morning, that party had become national news. The floor at the clubhouse of the Woodlands condo complex, where the party was hosted, fell […]
Condo Terminations – What Are They and How Do They Work? (FL)
The Miami Herald published an article last year – “Real Estate Developers Ran Out of Waterfront Property. Now They Might Want to Buy Yours” – and the title says it all. This complicated process is called condominium termination. It’s difficult for real estate investors to find vacant waterfront development sites in Miami and Miami Beach. […]
New HOA law in effect in South Carolina
A new Homeowners Association law is now in effect throughout South Carolina. The law, first introduced in March 2017 and passed in May 2018, requires HOAs to be more transparent and gives neighbors a new way to report problems with their HOA. Some of the new requirements for HOA’s include documenting meetings and putting any […]
AB 2912 Fraud and Embezzlement//Fidelity Bonds & Financial Review (CA)
It is no secret that community associations are often targets for embezzlement. But they are not alone. Newspaper articles tell us that it happens to various types of businesses and organizations, even attorneys and lawyer/bar organizations. Fraud and embezzlement seems more likely to occur when no one is watching those that control the checkbooks. And […]
Strict labor laws and aging buildings put condo associations at risk (NY)
Condo associations in New York can have a tough go of it when it comes to strict labor laws that put the onus on them if a worker gets injured on their property, among other risks that are especially heightened in older buildings. Read the article……………………….
Tools to Help Co-ops and Condos Comply With City Regs (NY)
Complying with New York City’s rules and regulations has always been a big part of a property manager’s job. But now, as regulations proliferate at a dizzying rate, many property management companies have staffs dedicated to compliance, and those staffs frequently rely on computer software and the backing of compliance companies. The added cost, according […]
California Legislature Fixes the Law on Member Notice & Notice of Rule Changes-Amends Civil Code §4040 and Civil Code §4360
Through SB 261, the California Legislature fixed some issues with prior legislation and took a step closer to efficiency. This bill became effective in January 1st and amends the following existing sections of the civil code as stated: Read the article…………………..
Court Strikes Down HOA’s Rule Banning Personal Trainer From Fitness Center (FL)
Is a personal trainer in a fitness center like a call girl sitting at a clubhouse bar? This comparison was drawn by the trial court in its decision to grant summary judgment in favor of a homeowner’s association as to whether a personal trainer is an invitee or a licensee. Read the article………………….
HOA Obtaining Preliminary Injunction To Aid Fumigation Of Separate Units Was Prevailing Party Entitled To Fee Recovery (CA)
Although we do not know the amount of fees awarded below, the homeowners in Windham at Carmel Mountain Ranch Assn. v. Lacher, Case No. D071799 (4th Dist., Div. 1 Jan. 16, 2019) (unpublished) obviously were dismayed when the lower court awarded HOA fees after the trial judge issued a preliminary injunction in favor of the […]
New Boston Ordinance Regarding Electric Vehicle Charging Stations (MA)
As one of the final acts of the 2017/2018 Massachusetts legislation session, the House and Senate passed and the Governor signed a City of Boston Home Rule Petition relative to electric vehicle charging stations at condominiums and other community associations in Boston. It is important to note that this bill only pertains to the City […]
January, 2019: Insider Real Estate and Community Association Update
After they were hit in a rear-end car accident inside the Seminole Lakes Community, two plaintiffs sued the Seminole Lakes Homeowners Association claiming that it negligently allowed parking on both sides of the streets, in violation of rules in the governing documents. The case proceeded to trial and a jury returned a verdict in favor […]
Community Associations’ Liability for Sexual Harassment Under HUD’s Hostile Environment Rules
In the summer of 2013, Kayla West began looking for a house to rent in Georgia. She came across a rental home owned by DJ Mortgage, LLC, and contacted Gene Andrews, DJ Mortgage, LLC’s property and leasing manager. Ms. West entered into a lease agreement for the rental property, and between August 2013 and October […]
Illinois Supreme Court Reverses 35 Years of Precedent Regarding Homeowners’ Implied Warranty of Habitability
On Dec. 28, 2018, the Illinois Supreme Court held that subcontractors that do not contract directly with a homeowner cannot be held liable to the homeowner for breach of the implied warranty of habitability. The decision in Sienna Court Condominium Association v. Champion Aluminum Corporation (2810 IL 122022) expressly overrules 35 years of precedent from […]
Is Your First Conflict-of-Interest Report Past Due? (NY)
One big thing. In an effort to snuff out conflicts of interest on co-op and condo boards, the state Legislature passed a new law requiring annual reporting of all contracts in which a board member has a financial interest. The law went into effect on January 1, 2018, and board’s first annual report was due […]
Super-Priority Issues Linger in D.C.
With the issuance of its decision in Chase Plaza Condominium Ass’n v. JP Morgan Chase Bank, N.A., 98 A.3d 166, (D.C. 2014), the Court of Appeals for the District of Columbia upended the established manner in which condominium liens have been handled in the District. In Chase Plaza, the court interpreted D.C. Code §42-1901 and […]
Avoiding Defense of Selective Enforcement (FL)
A common defense raised by owners who find themselves on the wrong side of a covenant enforcement action is to allege an association’s failure to enforce the covenant at issue against all violators and instead only selectively enforcing it. The defense of selective enforcement is based upon a case decided by the Supreme Court of […]
Failure to Comply With Cooling Tower Regs Lands a Co-op in Court (NY)
Members of co-op and condo boards never tire of complaining about unfunded mandates imposed by the city government. One of the most unloved is Local Law 77, which was passed in response to a deadly outbreak of Legionnaires’ disease in the Bronx in 2015. It imposed some of the nation’s toughest standards on the maintenance […]
Judge makes recommendations about motions in Hunters Run condo association case (FL)
A judge in the U.S. District Court for the Southern District of Florida recently recommended granting parts of motions filed in litigation between a real estate agency and two property owner associations over condominium properties in the Palm Beach County community of Hunters Run. In his 43-page report and recommendation issued Dec. 22, U.S. District […]
Judge rejects motions to dismiss Unicorp’s move to end Colony condo association (FL)
A Circuit Court judge on Thursday rejected motions from several Colony Beach & Tennis Resort unit owners to dismiss a legal proceeding by Unicorp Colony Units LLC to dissolve the former resort’s condominium association. Read the article……………….
Board Members, Property Managers: Be Aware of New Community Association Guidelines (FL)
Board members and property managers of condominium communities need to be aware that the state of Florida’s Department of Business and Professional Regulation issued revisions to rules pertaining to violations and penalties, 61B-21, Condominium Resolution Guidelines for Unit Owner Controlled Associations, which went into effect Dec. 5, 2018. Read the article…………………….
Coop and Condo Right to Seek Legal Fee Reimbursement may have new life (NY)
As we previously reported, the New York Appellate Court that oversees the Manhattan and the Bronx Supreme Courts issued a unanimous decision at the beginning of November, 2018, which may significantly impact the right of cooperatives, and likely condominiums, that try to seek the reimbursement of legal fees from defaulting shareholders or owners. In Krodel […]
Indemnification Provisions and the “Vouching In” Rule – – The Most Dangerous Contractual Provision You Probably Don’t Know About
If you have been in the business world for any reasonably length of time, or if you have leased property or entered into a contract for construction or remodeling, you have probably been a party to a contract that contains an indemnification provision. Read the article…………………
Impact of the Government Shutdown on Community Associations
The partial government shutdown impacts several federal agencies and programs important to community associations. Homeowners and buyers, board members, community managers, attorneys, and other business partners may notice delays in condominium loan certification, flood insurance policy changes, drone licensing approvals, and more. Read the article………………….
Florida Federal Court Finds Insurer Must Defend Contractor in Defective Condo Construction Suit
The United States District Court for the Middle District of Florida recently granted summary judgment in favor of developer, KB Homes, ruling that Southern Owners Insurance Co. must defend KB Homes under various Commercial General Liability policies. Read the article……………..
Amendment to the Marketable Record Title Act puts Michigan restrictive covenants at risk
On December 31, 2018, SB 671 was enacted into law, via 2018 PA 572, in order to amend the Michigan Marketable Record Title Act. SB 671 was a lame duck bill that may have drastic consequences for Michigan condominiums and homeowners’ associations in the future. Based on the amendment to the Michigan Marketable Record Title […]
Federal Court Enjoins NYC Law Aimed at Airbnb, Homeaway Short Term Renting
In a 52-page decision, District Judge Paul A. Engelmayer of the Southern District of New York put a kibosh on New York City’s short-term rental regulation that was set to go into effect on February 2, 2019. NYC has been trying to figure out an efficient way to enforce its short-term rental restrictions and this […]
Subcontactors can’t be sued directly by homeowners for building defects: IL Supreme Court
The Illinois Supreme Court has reversed Cook County and appellate court rulings in a lawsuit over allegedly defective condominium buildings in Evanston, saying condo unit owners cannot sue subcontractors who built the condos, because there were no contracts between the two groups. Read the article…………………
New HOA law in effect in South Carolina
A new Homeowners Association law is now in effect throughout South Carolina. The law, first introduced in March 2017 and passed in May 2018, requires HOAs to be more transparent and gives neighbors a new way to report problems with their HOA. Some of the new requirements for HOA’s include documenting meetings and putting any […]
Homeowners Associations Ruled Jointly Obligated to Maintain Pond (WA)
After examining the relevant plats and agreements, the Washington Court of Appeals ruled last month that two homeowners associations are jointly obligated to maintain a stormwater drainage pond. Read the article………………….
Court Decision Touches on Condominium Airspace Property Rights (FL)
In property law, owning land includes owning the earth under the surface and air above the surface. Florida’s First District Court of Appeals recently addressed airspace condominium parcel rights in Sterling Breeze Owners’ Ass’n, Inc. v. New Sterling Resorts, LLC, Case No. 1D17-1553 (September 5, 2018). Read the article………………….
Coop and Condo Right to Seek Legal Fee Reimbursement at Risk (NY)
The New York Appellate Court that oversees the Manhattan and the Bronx Supreme Courts issued a unanimous decision at the beginning of November, 2018, which will significantly impact the right of cooperatives, and likely condominiums, that try to seek the reimbursement of legal fees from defaulting shareholders or owners. In Krodel v. Amalgamated Dwellings, the […]
Appeals court upholds lower court decision in dispute over Heron’s Landing condos (FL)
A Florida appeals court has affirmed the decision of a lower court in a dispute over the condition of condominium units in Jacksonville. “Appellant contends that the trial court erroneously admitted extrapolation evidence and erred in failing to grant its motion for a directed verdict,” the First District Court of Appeals in the State of […]
Homebuyers’ Implied Warranty of Habitability Suit Against Subcontractors Is Frozen out by Illinois Supreme Court
Overruling 35 years of precedent, the Illinois Supreme Court has held that buyers of newly constructed homes cannot sue subcontractors for breach of the implied warranty of habitability. Sienna Court Condominium Association v. Champion Aluminum Corporation, 2018 IL 122022 (December 28, 2018). Read the article…………………..
HUD Resolves Disability Discrimination Case Complaint Against Condominium Association in New Jersey
Last week, the U.S. Department of Housing & Urban Development (HUD) issued a press release to announce it resolved a disability discrimination case in November 2018 filed against a New Jersey age 55 and over condominium association involving claims that the condo association violated the Fair Housing Act (FHA) by refusing to sell a couple […]
Judge makes recommendations about motions in Hunters Run condo association case (FL)
A judge in the U.S. District Court for the Southern District of Florida recently recommended granting parts of motions filed in litigation between a real estate agency and two property owner associations over condominium properties in the Palm Beach County community of Hunters Run. Read the article…………………..
NYC Issues Violations to Condos and Coops because of Illegal Short Term Rentals
Here are 3 violations issued by NYC to the Farragut Gardens Condominium at 538 East 86th Street in Brooklyn, because of short term rental violations. In that condo, just 1 unit was short term renting. The NYC Office of Special Enforcement is issuing violations to condominiums and cooperatives because of short term rentals. Indeed, NYC […]
Major changes coming to SC HOA laws in January!
There have been multiple attempts by the South Carolina Legislature over the years to enact laws concerning planned communities and homeowners’ associations (“HOAs”). Unlike North Carolina, until recently South Carolina had no laws for planned communities other than one pertaining to horizontal properties (condominiums). This year, legislation dealing with planned communities was finally adopted by […]
The Maryland HOA Implied Common Area Warranty
In Maryland there is an implied warranty on the construction of the common areas within a homeowners association (‘HOA”) community. The warranty is codified at Section 11B-110 of the Maryland Homeowners Association Act (“MD HOA Act”), and provides that “there shall be an implied warranty to the homeowners association” that the improvements to the common […]
The Rhode Island Condominium Act And Unit Owner Unanimity: Intra-Condominium Litigation Waiting To Happen
Both Condominium board members and unit owners should be mindful of limitations placed on them via the Rhode Island Condominium Act through requirements that unanimous unit owner approval be obtained before a condominium’s declaration is amended in specific circumstances. A condominium’s “declaration” is the document recorded in a municipality’s land evidence records in order to […]
Does The Business Judgment Rule Extend To A Board Interpretations? (CA)
The California Supreme Court has adopted a rule of deference to most decisions made by community association boards: “Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, […]
Condo association accused of numerous misdeeds; attorney says behavior is the norm (FL)
A condominium improvement association is being sued by numerous residents for breach of contract and breach of fiduciary duties. According to NWF Daily News, the Holiday Isle Improvement Association in Destin was sued Dec. 4 after allegedly committing breach of contract, among other allegations. The lawsuit states that since 2016 the group has not had […]
1st District affirms dismissal of suit and sanctions against man over towing of car (TX)
The Court of Appeals for the 1st District of Texas has affirmed a Harris County Civil Court ruling that dismissed an appeal over the towing of a car. According to the opinion issued Dec. 4, the Appeals Court disagreed with Ali Yazdchi that the Harris County Civil Court at Law No. 2 erred when it […]
Trial Judge Did Not Error In Reducing Homeowner Fees To Prevailing Defendant By Over $100,000 (CA)
In Eith v. Ketelhut, Case No. B272028 (2d Dist., Div. 6 Dec. 17, 2018) (partially published; fees discussion unpublished), many homeowners got involved in a dispute which hinged on whether a HOA Board of Directors properly made a decision on the proper characterization of a defendant homeowners’ operation of a vineyard for purposes of violating […]
Independent Contractors vs. Employees (CA)
In the recent case of Dynamex Operations West, Inc. v. Superior Court, the California Supreme Court set forth a new test that employers should utilize to determine whether their workers are appropriately classified as independent contractors or employees. (Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. 5th 903.) The new test will likely […]
Attorney-Client Privilege Is Valuable and Frighteningly Easy to Lose
Condominium board members are often encouraged to be open, honest, and transparent in their communications with the condominium community. However, because of their leadership position, board members often possess confidential information, the disclosure of which may have significant legal and financial implications for the community associations they represent. Confidential information protected by attorney-client privilege is […]