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)

Two of the three lot owners in a subdivision had a dispute over a driveway easement and boat slips.  Lot 2 was contracted to be sold first and it included a driveway easement on Lot 1 and Slip A (the one with the boat lift).  When Lot 2 was deeded, however, Slip C was on the deed (no boat lift).  Lot 2 used Slip A, but when Lot 1 was later sold, that deed stated Slip A.  Despite what was on the deeds, after Lot 1 was sold its owner used Slip C, as he was apparently aware of the error on the Lot 2 deed.  Later a dispute broke out over whether the driveway easement was simply for ingress or egress or included the right of Lot 2 to park vehicles on the driveway.  This resulted in Lot 1 filing suit for the court to determine the extent of the driveway easement and who owned which boat slip.
Continue Reading Driveway Easement and Boat Slips – Expensive Fighting

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

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

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

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

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

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

Facts

Plaintiff, O’Donnell, bought his condo in 2012 and sold it in 2019.  Beginning in 2013, O’Donnell missed various assessment payments.  In late 2013 the association filed a lien, and in 2018 the association commenced a foreclosure action.  To bring the lawsuit to an end, O’Donnell sold his unit.  The sale allowed O’Donnell to pay off the claimed past due assessments and attorney fees.  At the time of sale, he paid $23,342 to the association and $22,234.94 to the attorneys which brought the case to an end.  Plaintiff then filed suit against the association’s law firm alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) by filing a foreclosure suit without legal authority.  Specifically, O’Donnell alleged the law firm failed to satisfy several of the prerequisites to proceed with a foreclosure suit against him.  Both parties moved for summary judgment.
Continue Reading Attorney Fees – FDCPA Violation – Failure to Follow Association Document Procedures

Mental health issues can impact community associations in a myriad of ways.  Often Associations become the “reluctant care provider” (owners have no family/next of kin, or the family “dumped” the owner in the Association rather than in a care facility).  This can be true of older residents (“aging-in-place”) as well of younger residents.  The COVID pandemic, and the corresponding year of lockdowns, has added extra stress and increased isolation, exacerbating existing mental health conditions.  This has led to an increase of emotional distress, substance abuse, and suicides.

Because community associations are communities, issues that arise with one resident can interfere with another resident’s use and enjoyment of their property.  Mental health issues don’t always stay “contained” within the affected owner’s property – noise, shouting, threats, trespassing, damage to property, physical violence – all can interfere with other residents’ quiet enjoyment of their property.  While these issues can manifest themselves as harassment and hostilities, they can also lead to dangerous situations.  [To read more on dealing with harassment and hostile environment, click HERE.]

While it is not the Association’s responsibility to determine if someone has a mental disability, it is the Association’s responsibility to help ensure that all residents live harmoniously. 
Continue Reading Tackling Mental Health and Aging Issues in Your Community Association