One of the most common questions we receive from Community Association clients is how do we preserve our lien for and recover delinquent assessments? The frustrating reality is that some owners in Community Associations fail to pay their assessments in a timely manner. These delinquencies can create serious financial issues within the community. There are […]
Mountain Law: Colorado court of appeals clarifies aspects of amending restrictive covenants (CO)
Recent Colorado court decisions clarify aspects of amending the declaration of restrictive covenants in common interest communities (CICs). CICs, which include most condominiums and covenant-controlled subdivisions, are generally governed by a comprehensive statute known as the Colorado Common Interest Community Ownership Act (CCIOA) that went in effect in 1992. Vis-à-vis CICs created before 1992 (so-called […]
Appeals court rules Capella Park HOA must accommodate disabled residents (TX)
The Court of Appeals for the 5th District of Texas has reversed a trial court’s decision that was in favor of a homeowners’ association (HOA) trying to enforce its restrictive covenants against a home for disabled residents. The decision, filed Nov. 30, found that Willie E. Walls III and Melody Hanson, the operators of My […]
New Year, New Laws for California Community Associations/CIDs-2018
Recent legal Developments affect community association interests in a variety of ways. In 2017, the California Court of Appeal decided several cases concerning such issues as title to common area and board member liability. These cases may be instructive to board members and managers. Meanwhile, on the legislative front, new and pending laws affect association […]
Michigan Senate Bill 663: Michigan cracks down on fake emotional support pets
On November 28, 2017, Senator Peter MacGregor introduced Senate Bill 663, which would criminalize a fake request for an emotional support pet or service animal. Requests for emotional support pets and service animals continue to increase under the Federal Fair Housing Act and the Michigan Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq. […]
Accounting changes will likely be an added expense (IL)
As I noted in the Nov. 18 column, new Section 1-45(h)(i) of the Common Interest Community Association Act and new Section 18.10 of the Illinois Condominium Property Act provide that: “An association subject to this Act that consists of 100 or more units shall use generally accepted accounting principles (“GAAP”) in fulfilling any accounting obligation […]
Nevada High Court Rules That Homeowners Association Can Pursue New Purchaser Claims Under Original Chapter 40 Rules
The Nevada Supreme Court has found that homeowner associations have standing to pursue “representative” claims on behalf of any new purchasers who bought their units after the association had already initiated its lawsuit. In High Noon at Arlington Ranch HOA v. The Eighth Judicial District Court of the State of Nevada (2017) 133 Nev., Adv. […]
Court rules in favor of MI Condo Association related to amendment of bylaws, compliance with parliamentary procedure and director compensation related to website
Vidolich v Saline Northview Condominium Association, unpublished opinion of the Court of Appeals, issued December 5, 2017 (Docket No. No. 334579), involved a lengthy battle between Vidolich, a co-owner in the Northview Condominium, and the Saline Northview Condominium Association (the “Association”). Vidolich was a member of the Association’s board until he resigned over a procedural […]
Orange County homeowners association accuses developer, contractor of negligence (FL)
An Orange County homeowners association is suing a developer and contractor, alleging breach of implied warranty, negligence and vicarious liability. Lake Burden Townhome Association Inc. filed a complaint Nov. 16 in Orange County Circuit Court against KB Home Orlando LLC, LBK Development LLC, Burden Townhome Partners Inc. et al., alleging they failed to exercise reasonable […]
Litigation With City Results in Municipal Ordinance Favoring Association (WI)
A Wisconsin condominium association was built as many condominium projects are — with privately owned roads. The difference with this development is that it was part of a larger development plan — one that forced it to share its private thoroughfares with neighboring associations and an apartment complex. Read the article……………..
Michigan Court of Appeals affirms Short-Term Rental Ban in Restrictive Covenant
As we previously discussed on September 21, 2017, in Michigan Court of Appeals Rules in Favor of HOA on Short-Term Rental Ban, the Michigan Courts have held that short-term rentals, the Michigan courts have consistently held that that short-term rentals violate “residential use” and “non-commercial use” restrictions contained in restrictive covenants. On November 30, 2017, […]
Court Rules No Mulligans for Golf Course Investors (FL)
The struggles of the golf industry in the past decade are well chronicled, particularly in Florida where a large number of courses, built as amenities for or in conjunction with surrounding residential communities, has been negatively impacted by the economic downturn, playing habits, and perhaps an over saturation of the market. Couple those external factors […]
New York Public Library’s fight with Fifth Ave condo owners over renovation fee is shelved (NY)
The New York Public Library’s battle with the well-heeled residents of a Fifth Ave. condo building now belongs in the history section. The NYPL filed suit in August, alleging the board of the Fifth Avenue Tower was impeding exterior renovations to the Mid-Manhattan branch and seeking to force the library to pay a $15,000 per […]
Discriminatory Housing Practices by Third Parties
Many of our clients have asked us to provide guidance with regard to 24 CRF 100.700, a new rule promulgated by the United States Department of Housing and Urban Development (“HUD”) pursuant to its authority under the Fair Housing Act (the “Act”). As set forth more fully below, 24 CRF 100.700 arguably imposes additional obligations […]
Defending Unit Owner Lawsuits in Community Associations: A Step by Step Process
While being named as a defendant in a lawsuit is never ideal, community associations have a number of defense tactics available to prepare for the possibility of litigation. These defense measures may enable an association to avoid costly litigation and defer additional liability when faced with an action filed by an owner or resident in […]
Connecticut appellate court sides with law firm in battle over legal fees
The Connecticut Appellate Court has upheld a lower court’s ruling in favor of Monroe-based law firm Beck & Beck LLC that had filed a lawsuit against James T. Costello to recover unpaid legal fees. According to the opinion issued Nov. 21, Beck & Beck initially filed a complaint in small claims court against Costello to […]
Treasure Island condo tenant blames owners for flooding, injuries (FL)
A New Hampshire woman is suing the owners of a Treasure Island, Florida, condominium, alleging negligence led to flooding and injuries. Deborah Rowles filed a complaint Nov. 8 in the Pinellas Circuit Court against Sunsational Beach Rentals LLC, Surf Beach Resort Condominium Association Inc. et al.,, alleging they failed to use due care to maintain […]
Michigan court rules #Condo #Association’s insurance policy may cover water damage resulting from construction defects
In Walters Beach Condominium Association v Home-Owners Insurance Company, unpublished opinion of the Court of Appeals, issued November 16, 2017 (Docket No. 335172), the Michigan Court of Appeals held that water damage caused by construction defects may be covered under a condominium association’s insurance policy. At issue was a rain storm caused water damage to […]
South Africa: GatedEstates: A victory against ‘arrogant’ draconian rules
Property tycoon Niemesh Singh is prepared to fight the Mount Edgecombe Country Club Estate in the highest court should they appeal against a landmark high court judgment against gated estates. On Friday, Singh successfully contested the “draconian rules”, including restrictions placed on the movement of domestic workers at the swish estate, in court this week. […]
HOA Homefront: What Sacramento did for (or is it to?) HOAs in 2017 (Part 2) (CA)
Last week’s column addressed three bills recently passed into law by Gov. Jerry Brown and the California Assembly: Senate bill 2, Assembly bill 534 and AB 1412. Today’s column will tackle three other significant bills, SB 407, AB 634, and AB 690, which also were approved and take effect in 2018. SB 407 created Civil […]
Wait. This Is Arbitration? I Thought It Was Mediation
……I imagine this may have been similar to what the defendant in Marano v. The Hills Highlands Master Association, Inc. said when it received an unfavorable arbitration award. “Did you say binding arbitration? No. We were participating in non-binding mediation. Not arbitration.” Things worked out for Vincent Gambini in the movie, they did not work […]
Board Recoups Big Legal Costs After Evicting Smoker (NY)
Some co-op and condo boards are penny wise pound foolish. And then there’s the board at an 80-unit co-op in Wheatley Heights, Long Island, which decided to spare no expense when it set out to evict a shareholder who repeatedly flouted the co-op’s smoking ban. It was a gamble that came with no guarantees and […]
Form Said ‘Mediation,’ But It Was Arbitration, Court Rules
An attempt to overturn an arbitration award based on one side’s claim that it believed it was engaged in mediation, not binding arbitration—an “unusual circumstance,” as the court put it—has failed. “With the exception of the retired judge’s mistake in having the parties execute a document memorializing the terms of a ‘civil mediation,’ there is […]
Michigan COA rules that Condo Association’s Insurance Policy may cover water damage resulting from construction defects
In Walters Beach Condominium Association v Home-Owners Insurance Company, unpublished opinion of the Court of Appeals, issued November 16, 2017 (Docket No. 335172), the Michigan Court of Appeals held that water damage caused by construction defects may be covered under a condominium association’s insurance policy. At issue was a rain storm caused water damage to […]
HOA Homefront: What Sacramento did for (or is it to?) HOAs in 2017 (Part 2)
Last week’s column addressed three bills recently passed into law by Gov. Jerry Brown and the California Assembly: Senate bill 2, Assembly bill 534 and AB 1412. Today’s column will tackle three other significant bills, SB 407, AB 634, and AB 690, which also were approved and take effect in 2018. SB 407 created Civil […]
Homeowner Association Not Bound by Buyers’ Arbitration Agreement With Builder
Claims by a homeowner association against a developer are not subject to arbitration agreements between the developer and individual homeowners, where the claims are pressed on the association’s own behalf, a New Jersey appeals court ruled Thursday in a published decision. The appeals court set aside an order by a Superior Court judge compelling arbitration […]
What’s New in Washington, D.C.
The news continues to keep us up-to-date on what’s happening here in Washington, D.C.; including scandals, Tweets, and the latest contention between the Democrats and Republicans. The one popular issue making headlines that directly impacts the community association housing model is Tax Reform. Key issues like proposed changes to the mortgage interest deduction, the local […]
Miami Beach Commercial Condominium Unit Owners Embroiled in Legal Battles
Now, Tequila Chicas and the owners of some of the units, including those occupied by the Mexican restaurant, have sued the condominium association and the owners of other units, some of whom sit on the condo board. The plaintiffs allege the defendants have conspired to force a fire sale of the building to gain ownership […]
Tigger mailbox must go, Pa. court rules
Everybody loves Tigger, right? After all, as Tigger himself says, “The wonderful thing about Tiggers is Tiggers are wonderful things!” Well, Tigger, that bouncy striped friend of Winnie-the-Pooh, has no friend in the Laurel Oaks Homeowners Association in Bucks County. When Jonathan and Abbey Weber installed a Tigger-shaped mailbox in that development, the association board […]
HOA Homefront: What Sacramento did for HOAs in 2017 – Part 1
The California Legislature was quite active this year in creating laws affecting homeowners associations, as six bills take effect in 2018. This column will address three and next week’s column will address the other three. Read the article……………..
Nevada’s Clarification Regarding a HOA’s Representational Standing
On September 27, 2017, the Nevada Supreme Court issued a decision clarifying the prior version of NRS 116.3102(1)(d)1, under which numerous construction defect cases are pending in Nevada. NRS 116.3102(1)(d), at the time the Complaint was filed, allowed homeowners associations to pursue construction defect claims on behalf of their members. In High Noon2, the Nevada […]
Sandestin Resort Lawsuit Settled (FL)
For years, Sandestin Investments and it’s founder have been battling back and forth with the Homeowner’s Association at the popular resort. However, one of the battles may soon be over. The ongoing dispute between the Sandestin Homeowners Association and Sandestin Investments with founder Tom Becnel, went before the Walton County Commission Tuesday, to get their […]
Trustees of Cambridge Point Condominium Trust v. Cambridge Point, LLC (MA)
In Trustees of Cambridge Point Condominium Trust v. Cambridge Point, LLC, No. MICV-2014-03136, 2016 WL 9753783 (Mass. Super. Nov. 18, 2016), appeal argued, SJC No. 2017-P-0113 (Mass. 2017), the trustees (“Trustees”) of the Cambridge Point Condominium (“Condominium”) Trust filed an action against the developers that built the Condominium, Cambridge Point, LLC and others (collectively, the […]
Washington Appellate Court: Condominium Bylaws Amendment Is Invalid
A recent Washington unpublished opinion concerned the amendment of a condominium association’s bylaws. The condominium’s declaration stated that amending the bylaws required the approval of a majority of the unit owners. The bylaws were amended in 2015 without the approval of a majority of the unit owners, and an owner challenged the validity of that […]
Cuomo Signs Bill Requiring HOAs To Open Books To Members (NY)
Gov. Andrew Cuomo signed a bill Oct. 23 that would if effect open the books of the state’s homeowners associations to its members. Senate bill S6648, and its Assembly version A3037B, relates to the not-for-profit corporation law. It amends the law by adding the right of a member of a homeowners association to review its […]
Santa Monica attorney to be reproved for unauthorized practice of law in Arizona
Santa Monica attorney Cynthia Ann Futter has been recommended for private reproval with public disclosure by the California State Bar following her 2015 discipline before the Arizona State Bar for unauthorized practice of law in that state, according to a recent filing. Futter, during the Arizona proceedings, admitted to violating rules before that state’s bar […]
What’s The Plural Of Condominium?
Wednesday’s post was entitled “Condominiums And The California Corporate Securities Law“. Today’s post concerns whether I used the proper plural form of “condominium”. “Condominium” is derived from the Latin words, cum and dominium. Cum means with or together and dominium means right of ownership. Dominium is a neuter noun in the Latin Second Declension, meaning […]
Community Associations Fighting Back Against ‘Zombie’ Homes (FL)
Zombies are fictional undead beings created from the reanimation of a human corpse popular in movies and on television. Unfortunately, many community associations are now finding themselves dealing with “zombie” homes. A zombie home is created by a lender which begins but does not complete a foreclosure combined with an owner walking away from the […]
And Your Association Thought Foreclosure Was Bad? The Consequences of Tax Sales & Tax Deeds For Community Associations (FL)
It is a scenario familiar to every association: an owner falls behind on his or her assessments and doesn’t get current, and the association initiates the lien recordation and foreclosure process. However, before the association can foreclose its lien and move the property to foreclosure sale, the mortgagee of the property files suit to foreclose […]
Michigan Court of Appeals rules that modular home violates restrictive covenants
In Thiel v Goyings, unpublished opinion of the Court of Appeals, issued August 8, 2017 (Docket No. 333000), the Michigan Court of Appeals held that the construction of a partially prefabricated home violated the restrictive covenants in the Timber Ridge Bay Subdivision. Specifically at issue were restrictive covenants that provided as follows: Read the […]
Florida Takes First Step in Curbing Frivolous ADA Lawsuits by Allowing ADA Qualified Expert Reporting
The Americans with Disabilities Act (“ADA”) was enacted by Congress in 1990 to protect individuals with disabilities from discrimination in access to employment, governmental services and programs, public accommodations, transportation, and telecommunications. As stated in the law, the ADA is “an Act to establish a clear and comprehensive prohibition of discrimination on the basis of […]
Is your Resale Certificate up-to-date? (VA)
If there is one thing we seem to be able to count on from the Virginia General Assembly, its frequent amendments to the statutes regarding association resale certificates and 2017 was no exception. Under the “News You Can Use” section of this site, Jeanne Lauer explained the new legislation regarding “For Sale” signs in condominium […]
New Jersey Court: Continuous Trigger Ends When Nature of Damage Is Known
Last week, the New Jersey Appellate Division issued a decision that may have a significant impact on insurance coverage for progressive property damage claims in the state. In Air Master & Cooling, Inc. v. Selective Ins. Co. of Am., No. A-5415-15T3, 2017 WL 4507547 (N.J. Super. Ct. App. Div. Oct. 10, 2017), the court first […]
Condo board’s crusade against Savanna principals struck down by state’s top court (NY)
New York State’s highest court shot down a Williamsburg condominium board’s effort to directly sue the principals of Savanna Real Estate, in a move that further enforces the protections created by limited liability companies. Read the article…………….
Unit Fire Increases Association Insurance Premiums
What happens when a fire caused within a condominium unit destroys that unit, some common area, and damages other units? It becomes an expensive situation for the association. Even though insurance should pay for all of the damages, the association’s insurance premiums going forward could increase dramatically. This is exactly what happened to a small […]
Insurance Carriers Exclude Color Matching Requirements from Policies
The summer of 2017 saw a number of severe storms in the Midwest, with resulting insurance claims. As policyholders have made those claims, some have been surprised to see new provisions in their insurance contracts. Things are not always black and white in insurance policies, especially when it comes to the impact of a Minnesota […]
The Limits Of Exclusive Use Rights In Condominium Common Areas (MA)
It’s not unusual for condominium documents to set aside parts of the development’s common area for the exclusive use of particular units. This device allows the developer to offer a degree of privacy in decks, driveways, garages, attics, and similar spaces that are affiliated with, but outside of, a unit. But how exclusive is an […]
Court Confirms Condo Board Member’s ‘Unfettered’ Rights to Access Books, Records (NY)
As litigants and lawyers have discovered the efficacy of enforcing statutory and common-law books-and-records access rights through summary proceedings, this trend has spread not only to the residential cooperative corporation context but also to an even more popular form of communal living in New York: condominiums. Read the article…………….
Resolving Condominium Construction Defect Claims in Wash. DC
Newly constructed and newly converted condominiums in Washington DC (District of Columbia) often contain concealed or “latent” construction defects. Left undetected and unrepaired, defects in the construction of a condominium can cause extensive damage over time, requiring associations to assess their members substantial repair costs that could have been avoided by making timely developer warranty […]