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Lydia has extensive experience advising Wisconsin condominium association boards of directors on the myriad issues facing them, including declaration and bylaw amendments; assessment collection and foreclosure; rule-making, voting and governance issues; and HUD and fair housing issues.

Many condominium and homeowners associations (HOAs) have an architectural control committee (ACC).  Oftentimes, the Board of Directors assumes the role of the ACC rather than having a separate committee.  Where the governing documents give the Board/ACC discretion over proposed architectural/exterior changes within the association, what are the limits to that discretionary power?

Facts

In a recent court of appeals case from the fall of 2021, intervening homeowners who were neighbors to a home subject to years-long litigation with the HOA appealed a trial court’s dismissal of their attempt to intervene.  These homeowners were disgruntled because they did not like the settlement that was ultimately reached between their neighboring homeowners and the HOA.
Continue Reading Architectural Control and your Community Association—Limits on the Discretion of the Board

Did you know that homeowners have the right to request reasonable modifications to the common area if they are disabled and the proposed modification helps them use and enjoy the property as it is meant to be?  The federal Fair Housing Act provides as much, and protects disabled condominium and HOA owners who may require such modifications.  How should a Board handle these requests to modify the common area?  A recent case out of the Sixth Circuit provides some guidance.
Continue Reading Reasonable Modifications and the Fair Housing Act—Knowing the Law Can Help Your Association Proactively Avoid Lawsuits

Does your Association have rules that target children?  Does your Association have rules that apply differently to children and adult residents within the community?  The following case is a cautionary tale for Condominium Associations and HOAs—repeal those rules now, or potentially face a losing battle pursuant to federal law.

Facts

In a federal district court case from early 2020, a homeowner brought suit against his HOA alleging that the Association’s rules with respect to use of the tennis courts, the pool, and clubhouse were discriminatory.  The tennis court rules stated that adults had court privileges over children after 3:00 PM on weekdays and any time on weekends and holidays.  The pool rules stated that residents 14 through 18 years of age were limited to one pool guest per person, while adult residents were permitted to have up to 6 pool guests at a time.  The clubhouse rules stated that it was reserved for adult use only during summer months while the pool was open.  The homeowner claimed that these three rules discriminated against families with children (also known as “familial status”), which is prohibited by the federal Fair Housing Act (FHA).
Continue Reading Rules that Target Children Really Target Your Association (for Discrimination Lawsuits)

Declarant/Developers of Community Associations love to reserve themselves rights within the Declaration that extend far beyond their Declarant control powers.  This is nothing new.  But when a Homeowners Association puts it foot down, who will end up on top?  It depends on how all the sections in the Declaration read together, and as this case shows, ambiguity does not favor the Declarant.

Facts

In a 2019 case, a court had to interpret the Declaration governing an HOA (subdivision) and determine who was right.  The Developer, after turning over control to the homeowners, sold the final lot to a buyer with a planned home that did not fit the specifications of the Declaration.
Continue Reading Post-Turnover Declarant Rights? Think Again…This One has a Happy Ending for the HOA

Developers of condominium communities and HOAs often reserve access easement rights within the Declaration/Deed Restrictions for the subdivision, especially when the Developer owns yet-undeveloped neighboring property. But what happens if the Developer forgets to reserve such easement rights specifically within the Declaration or Deed Restrictions? A recent case explores this dilemma, and at least in this case, the HOA owners come out on top.

Facts

In a 2019 case, some lot owners within a subdivision, which had been advertised as a private, gated community, sued the Developer for trying to enforce an access easement he had for the main road within their subdivision. The Developer claimed he needed access to that main road in order to develop the neighboring lots behind the gated community.  The Developer also believed he could grant access to the owners of the neighboring lots through the gated community. 
Continue Reading HOAs Unite! Developer’s Easement Rights are Not Never-Ending

As Condominium and HOA attorneys, we often receive questions from our clients dealing with all the issues that can get in the way of conducting a successful annual meeting. Most often, it is the issue of not being able to achieve a quorum of owners in attendance—which stymies the Association’s ability to hold Board member elections, approve the budget, and take other important actions to further the HOA’s business for the coming year.  So what happens if an Association’s Bylaws calls for annual board elections, but the Association does not hold elections for a number of years?  Is there a Board? Does the Board have any authority? A recent case addressed these issues, and the court’s findings might surprise you.
Continue Reading If Your Association Fails to Hold Board Elections at an Annual Meeting, Do You Still Have a Board? The Answer May Surprise You…

Even the best and most established real estate developers can face hard times, especially in the aftermath of recession and economic downturn, as we experienced a few short years ago. Many condominium and subdivision developments found themselves half completed, both in terms of units and homes built, and common area improvements (like streets and curbs) left undone.  Where a new developer comes in to build upon the remaining lots, what responsibilities does he take on?  As related in a recent 2019 case, the answer may be found in the original development agreements with the municipality.
Continue Reading Did Your Developer Go Bankrupt and Leave your Association Holding the Bag? Your Remedy May Lie Within the Developer Agreement

The Board of Directors always has the power to make and amend Rules and Regulations on its own, without owner approval…right? Wrong.  The Board’s rule-making power and authority completely depends upon what authority is given by the Declaration and Bylaws, and as we know, all associations’ Declarations and Bylaws are different!  This is true in Wisconsin and in many other States.  Knowing what is in your governing documents will keep you out of troubling lawsuits.
Continue Reading Know What is in Your Documents—The Board Might Not Have the Authority You Think it Does…