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.
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With the Spring 2020 Presidential Primary and election for various state court judges looming on the horizon, many of Wisconsin’s condominium associations are proactively deciding on how to delicately navigate and employ rules regarding unit owner rights with respect to displaying American flags and political campaign signs. Naturally, the close-quarters of condominium living presents a different set of circumstances unlike single family homeowners who are free to scatter an unlimited amount of political signs and flags about their property with impunity. The very concept of a condominium is grounded in shared space and shared cost; and while one unit owner’s patriotism or unwavering support for a particular political candidate may be viewed as noble, another unit owner may view the same support as distasteful or even offensive.
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Problem

What do you do if you want a detached garage but your documents don’t allow it?

Facts

Plaintiffs sought to enjoin the construction of a detached garage in their association on the grounds that it was specifically prohibited by the declaration. However, the declaration provided a procedure for review of any proposed structure that would otherwise violate the declaration. That process required submission and approval in writing from the Trustee (think Architectural Control Committee or “ACC”). However, the Association had not had any ACC in place for approximately nine years.
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Summary

An insurance company can’t sue a condominium tenant in subrogation, even if they were negligent in starting a fire.

The Facts

The Declaration required the association to “obtain and maintain a … policy of all risk property insurance” for the association.  The Declaration also required the policy to name as insureds the unit owners and their bank mortgage holders (Mortgagees) and that “any insurance maintained by the association shall contain [a] ‘waiver of subrogation’ as to the Units and Mortgagees.”  Finally, the Declaration also prohibited the owners from obtaining fire insurance and required all occupants and tenants to comply with the Declaration.

One of the unit owners leased its commercial unit to the tenants (Defendant). The lease did not specify who would carry fire insurance. 
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Facts

When you are headed down the wrong path – TURN BACK.  This applies to owners and associations when they act on their belief of what their documents say, but then learn that their understanding may be wrong.  Often parties who make a mistake, or learn that they might have made a mistake, refuse to reevaluate their situation and at least allow turning back to be an option.  Such appears to have been what happened in the recent case of Fritz v. Lake Carroll Property Owners Association, Inc., (2019 unreported case out of Illinois) where the association passed a rule that required inspection and pumping of the owners privately owned septic system every four years and that if an owner failed to follow the rule they would be fined $250 and $25 per day. 
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Frequently we are asked about either inconsistent association documents or advised that although our documents say X we have always done Y so won’t our past precedent control? The answer is NO.  Your documents control.  You must follow what your documents say, unless there is something in them that is illegal or against public policy. This same point is continually stressed by the courts around the country.
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