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

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)

I recently read an article on the difference between condominium and homeowner association officers and directors by an attorney out of Ohio, Jennifer B. Cusimano of Kaman & Cusimano, LLC.  It was well written, clarified a subject that is often confused, and inspired me to do my best to explain the difference to our readers.

In simple terms, directors are elected by the owners, officers are NOT.  Officers are elected by the Board of Directors annually. 
Continue Reading What is the Difference Between Community Association Directors and Officers?

Facts

The dispute in this case centered on what rights owners of lots that did not have frontage on a lake (“Non-Lake Lot Owners”) had to place a dock in the lake based on the restrictive rights for their homeowner’s association (“HOA”) which were recorded in 1922.  The HOA consisted of 146 lots.  All Non-Lake Lots were granted a perpetual easement over and across seven lakefront outlots for their use and enjoyment, including access to the lake.  Some of the Non-Lake Lot Owners construed this broadly enough that they installed a dock and used one of the outlots for activities unrelated to the water (picnics and such).  Plaintiff, a “Lake Lot Owner”, had a letter sent to the Non-Lake Lot Owner Defendants demanding that they stop using the outlot and remove the dock.  The parties disagreed.  Plaintiff sued.
Continue Reading HOAs & Riparian Rights-Can I Put a Dock Here?

Facts

Diane Steele owned a home in the Diamond Farm development, which was managed by the Association. While in accordance with the Association’s declaration of covenants, conditions and restrictions, the Association must obtain at least two-thirds of the members’ total votes to increase annual assessments, assessment increases in 2007, 2011, and 2014 did not receive the requisite two-thirds vote for approval. Consequently, Steele ceased making payments. The Association brought suit seeking unpaid assessments and attorney’s fees. Steele’s defense was that she did not owe dues for the amounts of increases imposed without the supermajority required under the Declaration of Covenants.
Continue Reading Can Homeowners Sue an Association for Increasing Assessments Where the Association Did Not Receive the Requisite Votes Required?

Summary

Even where homeowners characterize their claims against an Association as civil rights violations, the claims involved in the parties’ rights under the declaration, and the declaration’s attorney’s fees provisions applied.

Facts

In 2011, David Merritt, a former HOA board member, and his wife, Salma, sued their Sunnyvale HOA, Classics at Fair Oaks (Classics), as well as three of its board members. The dispute centered on the Association’s covenants, conditions, and restrictions (“CC&Rs”) involving parking restrictions at the Classics. The HOA’s parking policy requires residents to pay for and obtain a permit for each vehicle parked on the street versus in the garage of each residence. The Merritts had a two-car garage, but only parked one car inside it. They argued that they can only park one car in the garage, because Salma is disabled, and needs additional space to enter and exit the vehicle when it is parked inside the garage.
Continue Reading Owners Pay High Price of Litigation Against Association

Summary

If your Association excessively fines an owner, expect a court to find a way to penalize the association.

The Facts

In 2004 Mr. and Mrs. Mills (“Mills”) bought a home in the subdivision called Galyn Manor.  In 2007 Galyn Manor began fining Mills for a commercial work vehicle parked in their driveway in violation of the association rules.  Galyn Manor advised Mills that the fines would be $50 for each day that the commercial vehicle was parked on their property.  By the end of 2007, the fines amounted to $645.  In January of 2008, the association hired the Andrews Law Firm (“Law Firm”) to collect the fines.  Between 2008 and May of 2015 many demands for payment were made, and many payments were made.
Continue Reading Excessive Fines Cause Courts to Find Liability – A Lesson in Fair Debt Collection Practices

Summary

Not following ALL of the required procedures when preparing amendments to your association governing documents can be VERY expensive.  Take the time, money and effort to do it right.

The Facts

In 2015 the board for Forest Lakes Master Association distributed notice that it would be holding a vote to amend its voting procedure at its annual meeting.  The board and property manager alleged that they had received the required votes for the amendment.  Because of some interesting counting techniques, the number of votes in favor of the amendment kept rising.  One owner, Johnson, emailed the board and stated that he believed the board failed to follow proper voting procedures and that the amendment did not pass.  After counting the votes, Johnson confirmed his belief that the board had violated the voting procedures in their documents.  Johnson demanded that the Board find the voting procedure void.  When the board refused Johnson filed suit.  Both parties moved for summary judgment and the association also asked for attorney fees.
Continue Reading Improper Association Governing Document Amendments – How Expensive is it When You Do it Wrong? VERY

Summary

If smoking is otherwise allowed in your association, you do not need to ban it as a reasonable accommodation for a person with asthma.

The Facts

Phyllis Davis suffers from asthma but lives in a condominium complex that allows residents to smoke in their units.  Davis claimed that the smoke from a neighboring unit aggravated her asthma.  Davis is a cancer survivor with “a history of asthma and multiple chemical sensitivity disorder.”  When the association didn’t ban smoking in her building she sued alleging that the association had discriminated against her by not granting her reasonable accommodation request to ban smoking in her building thereby violating the Fair Housing Act because of her disability.  Davis also alleged a nuisance claim under the bylaws.
Continue Reading Must Your Association Ban Smoking as a Reasonable Accommodation? NO