Facts

Developer subjected property to the condominium act in Massachusetts in 2008.  By the terms of the deed, it included all the “land and improvements at the property…”  There were to be six wings and up to 109 units built over a period of seven years.  When the deed was recorded, 33 units had already been constructed.  The additional wings were shown on the plans and noted on the master deed as “presently constitute common areas and … may be completed as additional phases.”  The declaration contained a reservation of developer rights that provided the developer seven years to “substantially complete the additional phases” and that a failure to complete them would constitute a waiver of development rights. The day before the developer rights were to expire, the developer recorded a series of documents to expand its ownership rights and extend the development rights an additional seven years.  Sixteen days after the documents were recorded the association filed suit.  The association sought declaratory relief that the developer’s rights had expired and that the developers attempts to extend those rights was invalid.  The developer answered and counter-claimed that it was in the right.
Continue Reading Expiration of Developer Rights – What Happens to the Land where Units were Not Constructed

Facts

Owner sought records from a Michigan association (the “Association:”).  The Association refused to produce records presumably on the grounds that the requests were long, difficult to follow and failed to state a proper purpose.  The requests, clarified in the complaint, consisted of the following:

  1. Bills or invoices showing the cost of past litigation;
  2. Records relating to orders for wrist bands for access to the pool;
  3. Work orders or invoices for light bulb replacements in Owner’s building;
  4. Board minutes from April 2019 until September 2019;
  5. Records relating to when Owner’s checks from approximately June 2019 through September 2019 were received by the Association and posted to Owner’s account;
  6. Board minutes for 2018; and
  7. Financial statements for 2017 and 2018.

The Association largely ignored the Owner’s requests, which led to the Owner suing the Association.
Continue Reading Record Requests – Even if Lengthy and Difficult to Follow, They Need to Be Produced if Sought for a Proper Purpose

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

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

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

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)

Attorney Daniel Miske was recently quoted in a Community Association Management Insider Article, “‘Continuous Operation’ Language Declaration Requires Association to Keep Lift Working“:

Lessons for Community Associations

Associations would be wise to review their governing documents to determine whether the documents impose similar strict obligations.

“If the declaration and bylaws put a duty

Please join Husch Blackwell’s Condominium & HOA Law Team on September 17, 2021 as we outline some frequently encountered legal challenges and issues that can prove time-consuming and costly when mishandled.

Topics

  • Condominium legal document review
  • Collections from a debtor’s perspective
  • Handling disruptive unit owners and residents
  • Arbitration
  • Hoarders and foreclosures
  • Rentals and smoking
  • Construction issues]


Continue Reading Association Academy: If it Weren’t for the People, Association Living Would be Perfect

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.
Continue Reading Seeing Injustice is Easy – Solving Problems is HARD

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