US / Pride Flags

Many of you may have seen the June 7, 2021, Milwaukee Sentinel story about a Milwaukee area home that was flying two flags: one the US flag and the second a Pride flag.  According to the story, the owners were told to take down the Pride flag because the association only allowed the US flag.  The residents, one of whom was a board member, “decided to adhere to the rules and take the flag down” but then installed “a bright display of rainbow-colored Pride lights to highlight the house.”  The story tells us that the residents had no intent to become adversarial, that they “don’t feel targeted or attacked in [their] community” but rather to illustrate with humor ways to get around rules.

The Problem for the Board
  1. The story does not say if the association was a condominium or an HOA, but either way the Board may well be tasked with monitoring the exterior appearance of the homes. That is certainly true for condominium associations (See 703.13 Wis. Stat.), and is often included in HOA covenants;
  2. The association documents may well have prohibited all flags at one time, but if the association were a condominium, then as of 2003, they must allow the displaying of the United States flag. (See, 703.105(1) Wis. Stat.).  This law may well explain the sole exception to the no flag rule being the US flag.
  3. Although apparently not the situation in this case, many rules come into existence after some person abuses a situation. For example, if there were not a rule and someone put up 1,000 flags should that be OK with everyone?  If you were the neighbor and wanted to sell your house, don’t you think that MIGHT affect the value of your house?  Don’t you think you would be asking the association board to do something, so that your neighbor’s actions don’t affect the value of your property
Solutions
  1. Have the people unhappy with the rule run for the board and amend the rule. Of course this comes with it the duty to do, without compensation 99% of the time, all of the work of being a board member.
  2. Petition the Board and your neighbors to change the rule.
  3. Sell your house and move to a different association or a home that is not part of an association.
  4. Follow the rules in terms of both the letter of the rule and its spirit. Or,
  5. Use your energy to help improve the association, which may well include changing the rule to whatever it is that you are willing to help enforce.
LESSONS:
  1. Finding injustices or perceived injustices is easy.
  2. Finding solutions, that a majority can agree upon, is hard.
  3. Finding common ground that everyone can support is even harder, but to get there you have to be part of the solution and seeking input and true understanding of all of the various sides.

I hope we all can work harder to be part of the solutions to the problems we see.

To learn more on political displays in Wisconsin condominiums, read our blog, The Balance in Display of Patriotism and Political Support Under Wisconsin Condominium Law.

Thank you to all who attended our virtual Association Academy on May 26 – Condo and HOA Zoning, Cyber Crimes, Fine Collection, and Emotional Support Animals.  No need to worry if you missed it, we recorded it for you, and you can access at any time.

To view the recording click HERE as we review fine collection, common zoning regulations and practices, the importance of cyber insurance, and recent updates from the Department of Housing and Urban Development on emotional support animals.

Asphalt Road
Facts

Plaintiffs are property owners in what were originally three separate planned communities known as Mystic Lands.  Defendants are the developer/declarant and its sole shareholder, Shinitzky.  In October of 2006 the Plaintiff and his wife entered into a contract with declarant to purchase Lot 28 in Mystic Ridge.  The Property Information Sheet stated “the streets throughout Mystic Ridge are private and shall be maintained by the … Association.  The initial capital expense for the streets, including the asphalt, shall be bourne (sic) by the Developer.”  Shinitzky said this statement represented the intention of the Developer and that other similar representations meant “asphalt paved roads.”  However the deed described the lot by reference to the plat which stated “ALL INTERIOR ROADS ARE 14’ GRAVEL.”  Developer did pave some of the roads in Mystic Ridge as the development progressed, but in 2013, for the first time, Shinitzky stated in a Property Disclosure Statement that the roads “would be gravel.” Continue Reading Developers/Declarants Breached Contract by Failing to Pave Roads

Documents
Facts

In 2016, a Master Association adopted seven amendments to its declaration.  The amendments addressed the Master Association’s authority to approve proposed uses of certain buildings, increased assessments on them, and imposed additional restrictions on those buildings’ tenants.  In response, the building’s prior owner (“Building Owner”) filed suit against the Master Association and eight individual directors and officers, seeking six forms of relief: (1) a declaratory judgment concerning the legality of the amendments; (2) damages for tortious interference with a business relationship; (3) damages for breach of fiduciary duty; (4) an accounting; (5) a temporary injunction; and (6) a permanent injunction. Continue Reading Amendments to Condominium Documents MUST be Reasonable to be Valid

Priority
Facts

A unit owner stopped paying assessments.  The condominium association properly recorded and perfected a lien against the unit for those assessments.  Under the applicable Oregon statute, the condo association lien is prior to all other liens, except tax liens and a first mortgage or deed of trust.  An exception exists, such that the condominium association can gain priority over the first mortgage if (among other things) “the association gives the first lienholder formal notice of the unpaid assessments, and the lienholder ‘has not initiated judicial action to foreclose the mortgage * * * prior to the expiration of 90 days following the notice[.]’”  In this case, five days after the association recorded its lien, the bank filed a judicial foreclosure action against the unit, but did not name the association as party, and therefore the foreclosure suit would not have terminated the lien rights of the association.  To correct this issue, the bank filed an amended complaint naming the association as a party.  Five months later the trial court issued a dismissal of the claim against the association, without prejudice, for failure to prosecute.  Five months after that the association sent the bank notice of the unit owner’s default on assessments.  The bank took no action in the next 90 days to reinstate the dismissal or file a new action against the association. Continue Reading Lien Priority Statutes and Why They Make Sense

Pencil Eraser
Facts

The property was subject to a discriminatory restrictive covenant recorded in 1953 that stated: “No race or nationality other than the white race shall use or occupy any building on any lot, except that this covenant shall not prevent occupancy by domestic servants of a different race or nationality employed by an owner or tenant.”  In 2017 Plaintiffs obtained the property by deed referencing that the deed was subject to covenants.  Plaintiff then filed suit to “have the discriminatory restrictive covenant declared void and to ‘strike that same subsection from public record and eliminating it from the title of the property.’”  Continue Reading Covenants that Discriminate on Race – ARE STILL A PROBLEM

Association Academy.210526 2

Please join Husch Blackwell’s Condominium & HOA Law Team for this informative seminar. We’ll review fine collection, common zoning regulations and practices, the importance of cyber insurance, and recent updates from the Department of Housing and Urban Development on emotional support animals. Continue Reading Association Academy: Condo and HOA: Zoning, Cyber Crimes, Fine Collection, and Emotional Support Animals

My good friend Jim Slaughter, a CCAL attorney from North Carolina, just posted the following on his blog (I have condensed simply to show what other states are doing).  You can read his entire blog HERE.

North Carolina Democratic Governor Roy Cooper announced Executive Order No. 204 (“Further Easing of Restrictions on Business and Gatherings”) which took effect on March 26, 2021.  While the order was 27 pages long, here a couple of the items that Jim highlighted from the order:

“Indoor or outdoor pools. Indoor and outdoor pool facilities must do all of the following: Continue Reading Pools and Fitness Centers are Starting to Open Around the Country

Defect
Facts

Plaintiff, Brooktree Village Homeowners Association, Inc. (“Association”), filed suit “on behalf of itself and on behalf of its members” in May 2017 against the second developer, Brooktree Village, LLC (“Developer”).  Developer had acquired the remaining undeveloped portions of the development, other than the common areas.  “A construction company affiliated with Developer, Rivers Development, Inc. (“Builder”), completed construction of the development.  Developer sold all the newly constructed townhomes to individual homeowners.”  The Association sought damages for the cost of repairs.  The claims asserted by the Association were breach of implied warranty, negligence, and negligence per se. Continue Reading Developers/Declarants are Liable for Implied Warranties to Association for Construction Defects

Documents
Facts

Defendant, Castletown Corner Owner’s Association, Inc. (“Association”), had a duty to maintain a lift station.  Specifically, the declaration imposed an obligation on the Association to pay “all Maintenance Costs in connection with” improvements constructed at the Association.  Maintenance costs are then defined as “all of the costs necessary to maintain the … sewers, utility strips, and other facilities … and to keep such facilities operational and in good condition, including, but not limited to, the cost of all upkeep, maintenance, repair, replacement … for the continuous operation of such facilities.”  Plaintiff, owner of one of the commercial units, sued the Association for failing to properly maintain the lift station after an incident where the sanitary lift station malfunctioned and flooded the building with human sewage, which allegedly caused Plaintiff’s tenant to terminate its lease. Continue Reading Language in Declaration Makes Association Strictly Liable