As many of you know, on July 30, 2020, Governor Evers of Wisconsin issued Executive Order #82 declaring a public health emergency to combat COVID-19, and Emergency Order #1 requiring individuals, with certain exceptions, to wear face coverings if:

  1. “The individual is indoors or in an enclosed space, other than at a private residence; and
  2. Another person or persons who are not members of individual’s household or living unit are present in the same room or enclosed space.”

Neither order defines “private residence” and the statutes are of very limited help on whether the common element and/or limited common element of a condominium association is part of a unit owners “private residence.”  The manner of condominium ownership does very little to clarify the issue, since the common elements are owned by the various unit owners.  Hence, each unit owner has a real property ownership interest in the common element.  Continue Reading Must Wisconsin Condominium Residents Wear a Face Covering (Mask) in Indoor Common Element

Facts

Plaintiff, Linder (“Tenant”), entered into a lease in October 2016.  Tenant agreed in the lease not to bring dogs, or other animals on the premises.  Five months later Tenant asked the Landlord if she could have an emotional support animal.  She gave one of the internet letters to support her need for the animal.  The letter said the Tenant was disabled but did not identify the disability or identify any limitations or symptoms of the disability.  Upon receiving the request, Landlord asked the Tenant to consent to his sending the medical provider a letter that asked:

  1. The nature of the mental or physical impairment that is disabling, including a reference to the DSM 5 description of the condition;
  2. A statement of what major life activity this disability interferes with;
  3. Whether the medical provider interviewed the patient;
  4. A statement that the medical provider conducted an examination of the patient appropriate for the diagnosis of the mental impairment in question under the professional guidelines applicable to a Licensed Clinical Social worker and as described in the DSM 5;
  5. That the medical provider photocopy his or her license and send it to Landlord;
  6. Whether a physical exam was conducted of the patient; and
  7. How many sessions the medical provider had with the patient;

The Landlord asked the Tenant to sign the consent letter.  Tenant did not provide the additional information nor sign the consent form.  “As a result, Landlord took no action on Tenant’s request.” Tenant brought a cat in anyway in August of 2017.  The Landlord fined and later evicted the Tenant.  Tenant then filed a complaint against the Landlord for “discrimination on the basis of disability and handicap…” Continue Reading FINALLY, a Helpful Emotional Support Animal Case

Facts

Plaintiffs were two owners (Maples and Brown) at Compass Harbor Village Condominium Association in Maine (the “Association”) who had purchased their respective units sometime in 2007.  The Declarant was an LLC that held more than 50% of the votes (15 of the 24 units) and therefore controlled the board.  For many years the Association common areas were not property maintained in many ways.  In addition, the Association failed to hold meetings, take votes on Association matters, maintain banking or other records and refused to provide financial information to the owners.  The Declarant’s position was that “because it holds a majority of the voting power in the Association and therefore any dispute between it and any of the unit owners would ultimately be decided in its favor.”  Plaintiffs claimed to have lost about $53,000 in value in each of their units because of the actions of the Declarant. Continue Reading Failing to Maintain and Properly Collect Assessments is a Breach of Fiduciary Duties

Facts

Plaintiff, Harmony Haus and a resident, sued Defendant, Parkstone Property Owners Association (“Association”) under the Fair Housing Act (“FHA”) seeking an injunction and attorney fees for violation of the Civil Rights Act.  Association counter sued alleging breaches of deed restrictions.  Plaintiff is a sober living residence for individuals recovering from alcoholism and drug addiction.  Plaintiff residents come directly from an inpatient treatment center.  Association argued Plaintiff was violating its “single family residential use,” its noise and nuisance provisions and its unsightly vehicle provision.  The board of the Association can enforce any violation with a fine.  Plaintiff’s seek exceptions to the Declaration under the FHA by requesting reasonable accommodation, with the specific accommodation to allow 12 residents and 8 cars to be parked on the street.  The Association contends the 8 cars is unsafe and that 12 residents would create an imposition on community resources.  Plaintiff claims the need for 12 residents to reach “critical mass” for its phasing recovery system, so more established residents can mentor newer ones. Continue Reading Can a Group Home be Built in a Single Family Association under the FHA – YES

Facts

Plaintiffs live in Ashbrooke Property Owners Association (“Association”) and missed their annual assessment payments of $115 for three straight years.  The Association hired Defendant, Equity Experts, to collect the past due amounts.  Under the Declaration the past due assessments accrued interest at the rate of 18% per annum, plus the Association could charge a late fee and the Owner was “liable to the Association for all costs and attorney’s fees…”  Equity Experts added fees for their constant contact package and their Pre-Foreclosure package in the amount of $750 and $1,495 respectively.  In December of 2013, Defendant advised Plaintiffs that their balance was $3,199.60, but that if they did not pay within 10 days the balance may be at least $6,644.60.  Plaintiffs filed suit seeking class certification because the interest rate charged exceeded the amount allowed under Georgia law and because the demands were in excess of sums allows under the Association documents. Continue Reading Class Action Status Granted to Association Homeowners Alleging FDCPA Violations

Record retention is a tricky subject.  Keep too much or for too long and opposing counsel in litigation will have all the documents they may need to prove that your association’s actions were discriminatory or amounted to selective enforcement, at least compared to its old records.  Keep to little or for too short of time and in your deposition or trial testimony you will be forced to admit that records that should have been kept were “not kept in the course of regularly conducted business-activity.”  Judges do not look kindly on that answer.  There are many other pitfalls as well, including some basic misconceptions: Continue Reading HOA and Condominium Record Retention – What you NEED to Know!!

Summary

The Court of Appeals of Washington held that a lot owner was barred from claiming ownership of a strip of land after representing that the land was part of the adjacent lot, building a fence along the supposed boundary, allowing the adjacent lot owner to maintain and landscape up to the fence, abandoning the land, and causing the adjacent lot owner to rely on that representation. Continue Reading This Land Is My Land, this Land is Your Land – Owner Loses Ownership of Land After Denying It Was Part of His Lot

Does your homeowners association have a written collection policy?  What duties does the property manager and/or Board have under the policy?  Learn what role the property manager and/or the Board of Directors should have in the assessment collection process.

Want to learn more about Wisconsin condominium and HOA law from experienced condo and HOA attorneys? Read all about condo and HOA law at Association Alert and click here to learn more about lawyer Daniel J. Miske.

The law does NOT require a Board to extend additional time to owners to pay assessments just because of the COVID 19 pandemic.  While such policies may show a concern for members of a community, probably without realizing it, those policies may also have significant adverse effects on the Association, especially in 2020.  What you need to know in less than one minute.

Want to learn more about Wisconsin condominium and HOA law from experienced condo and HOA attorneys? Read all about condo and HOA law at Association Alert and click here to learn more about lawyer Daniel J. Miske.

The law does NOT require a Board to extend additional time to owners to pay assessments just because of the COVID 19 pandemic.  While such policies may show a concern for members of a community, probably without realizing it, those policies may also have significant adverse effects on the Association, especially in 2020.  What you need to know in less than one minute.

Want to learn more about Wisconsin condominium and HOA law from experienced condo and HOA attorneys? Read all about condo and HOA law at Association Alert and click here to learn more about lawyer Daniel J. Miske.