Buyer Beware
Facts

This case involved a dispute between the owner/operator of a golf course and the owners of adjacent property in a residential community.  Originally all the land was owned by one entity, that then sold lots overlooking the golf course at a premium.  The deed for the property in the residential community described the property by reference to the lot and the recorded subdivision plat that included a map of the subdivision depicting a golf course.  The plat map was recorded with the county.  The developer later transferred the golf course to another entity.  The purchaser, CE, was losing money on the golf course and proposed to develop the land.  The adjacent property owners sued.  The property owners and CE filed cross motions for summary judgment. Continue Reading Implied Easements – Can You Prohibit a Neighboring Property Owner from Changing the Use of its Property?

Dog
Facts

The Spagenskis (“the Homeowners”) lived in a community in San Diego County with their German shepherd Kato.  The community was governed by Sunset Greens Homeowners Association (the “Association”) in accordance with a declaration of covenants, conditions, and restrictions (“CC&R’s”). From February 2019 to May 2019, Kato attacked three dogs in the community.  In the first incident, Kato injured a resident and her dog, and after the incident, Kato was placed in home quarantine by the Humane Society.  The Association ordered the Spagenskis to comply with the CC&R’s to ensure that Kato would be kept under control.  Three months later, Kato attacked two other dogs and other residents in the community.  One of the injured dogs died while undergoing surgery.  The Humane Society, once again, placed Kato in-home quarantine for another 10 days.  Following the second incident, the Association directed the Spagenskis to remove Kato from the community and filed suit, seeking injunctive relief for breaching the CC&R’s and nuisance clause. Continue Reading Association’s Vested Discretion in Declaring an Aggressive Dog a Nuisance

In a 2020 survey by The Foundation of Community Association Research, 80% of respondents encountered unexpected and unplanned-for infrastructure issues in the last three years.  Join Reserve Advisors and our Dan Miske as they discuss aging infrastructure, the role of the reserve study, and when to consider an independent structural analysis. They will review the liabilities of the Board and share practical steps your Association should consider taking.
Date: December 17, 2021
Time: 10:00 AM Central Time (US and Canada)
Click HERE to Register
Dog
Facts

In 2015, Unit Owner’s dog, Maggie, was an 11-year old golden retriever.  Maggie bit another dog living at the Association and had previously “displayed aggressive behavior or injured another dog” at the Association.  After the latest bite, the Association issued a notice of violation that Maggie had to be removed from the Association.  The Unit Owner complied.  But, in April 2016, 11 months later, the Unit Owner snuck Maggie back into his unit.  The Unit Owner alleged that the return of Maggie “significantly” improved his depression for which he claimed the need of an emotional support animal.  In 2017 the Association sent the Unit Owner another notice to remove Maggie or face eviction.  Unit Owner sued claiming the Association refused to accommodate his disability in violation of the Fair Housing Act (“FHA”).

Suit 1

At trial the jury found (yes it went all the way to a jury so this was not cheap):

  1. The removal of Maggie made the residence unavailable to the Unit Owner;
  2. The Unit Owner was disabled under the FHA;
  3. The Association would not have taken adverse action against the Unit Owner but for Maggie; and
  4. Maggie alleviated one or more of the symptoms of the Unit Owner’s disability.

However, the jury also found that Maggie “posed a direct threat to the health or safety of other individuals and no reasonable accommodation would have eliminated or acceptably minimized the risk Maggie posed.”   As a result, the jury found in favor of the Association. Continue Reading Emotional Support Animals – If It’s Aggressive, It’s Not Reasonable

Handicap Sign
Facts

In May of 2016 the Association implemented a rule that allowed owners to bring furniture to the pool area for their use “but they must remove these items daily when they leave the pool area.”  Unit Owner claimed he needed a reasonable accommodation to leave his orthopedic lounge chair at the pool for medical reasons.  The Association initially allowed the chair to be left at the pool, but also requested further clarification of the request, specifically seeking: 1) a doctor’s recommendation that the chair was medically necessary for the owner’s physical disability, 2) confirmation that the chair he was using was in fact an orthopedic lounge chair, and 3) the weight of the chair.  The unit owner submitted three doctor letters:

  • Doctor 1 stated the Unit Owner’s “disability required the “use of an appropriate chair to accommodate his disability.”
  • Doctor 2 stated that he recommended that the Unit Owner “use an orthopedic lounge chair for his neck and back issues and also that he not lift ‘equipment or materials over 15 pounds.’”
  • Doctor 3 stated that the Unit Owner’s “anti-gravity chair helps his prostate condition.”

The Association took the position that the doctor letters did not clearly address the Unit Owner’s situation or the need for a certain type of chair, and then rescinded the initial accommodation.  The Association did state that it would reconsider the matter if the Unit Owner submitted all requested documents. Continue Reading Residents are Not Owed Preferred Accommodations for Disability

Room For Rent

Facts

Association Board adopted a resolution that unit owners in the Association who self-rented but did not join the rental pool would need to pay 20% of their rental income to the Association because the self-renters “did not contribute financially for the extra expense of their leasing activity or for the beneficial services provided by the rental pool.”  The resolution also 1) disallowed future self-rentals; and 2) grandfathered in the current self-renters.

The Suit

Claims

The Association sued the self-renters seeking a declaration that its resolution disallowing future self-rentals and imposing a rental fee was enforceable.  The self-renters counterclaimed alleging: a) breach of contract; b) injunctive relief; c) that the resolution was arbitrary and unenforceable; and d) that the Association was improperly allocating certain fees on the self-renters. Continue Reading Fees for Self-Renters Who Don’t Enter the Rental Pool are Legal

Association Academy.210917 2

Thank you to all who attended our virtual Association Academy on September 17 – If it Weren’t for the People, Association Living Would be Perfect.  No need to worry if you missed it, we recorded it for you, and you can access at any time.

To access the recording click HERE. We outline some frequently encountered legal challenges and issues that can prove time-consuming and costly when mishandled.

Money House

The Garrett’s purchased their property in the HOA in 2001.  The CCR’s required an owner to obtain the approval of the architectural control committee (“ACC”) before doing any construction on the property.  The Garrett’s submitted plans to build a pool in their backyard, but the original plans were rejected by the ACC because the plans “were too vague and because professional plans are required for such a large project.”  The Garrett’s then resubmitted professional plans for the pool only which the ACC approved.  When the Garret’s built the pool, the pool equipment was on the common element and they built far more than just a pool.  The Board sent the Garrett’s a cease-and-desist letter, and after an executive session advised the Garrett’s to move the pool equipment within their property and return the common element to its original condition (they had lowered the height of a fence).  Although Mr. [Brett] Garrett attempted to engage a board member in a conversation, the board member advised that “he would not meet with the Garretts … [and that he] would discuss the matter only in the company of the board at a proper meeting.”  In reality, the Garret’s project “had blossomed into a complete backyard renovation with retaining walls, stairs, a drainage system, patio pavers, and planter beds,” none of which were part of the approved plan. Continue Reading Building in HOA Common Area – MUCH More Costly Than Owner Thought (Because of Association Attorney Fees)

Boxing

Two of the three lot owners in a subdivision had a dispute over a driveway easement and boat slips.  Lot 2 was contracted to be sold first and it included a driveway easement on Lot 1 and Slip A (the one with the boat lift).  When Lot 2 was deeded, however, Slip C was on the deed (no boat lift).  Lot 2 used Slip A, but when Lot 1 was later sold, that deed stated Slip A.  Despite what was on the deeds, after Lot 1 was sold its owner used Slip C, as he was apparently aware of the error on the Lot 2 deed.  Later a dispute broke out over whether the driveway easement was simply for ingress or egress or included the right of Lot 2 to park vehicles on the driveway.  This resulted in Lot 1 filing suit for the court to determine the extent of the driveway easement and who owned which boat slip. Continue Reading Driveway Easement and Boat Slips – Expensive Fighting

Private Access

2021 Senate Bill 283 is being proposed to create Section 710.20 of the Wisconsin Statute relating to the maintenance and repair of private roads with access easements.  Essentially the bill, if passed into law, would require all persons that have a right to use a private road or driveway to contribute to the maintenance and repair costs.  If the parties have a written agreement as to how the costs should be shared, that written document would control.  In the absence of a written document, or the written document does not address the costs, the costs would be shared based on the amount and intensity of each person’s actual use.  Continue Reading Wisconsin 2021 Senate Bill 283 – Maintenance and Repair of Private Roads