Facts

Montana Developer of three condominium-hotels at Big Sky Ski Resort sold units subject to Declarations that required “all unit owners to use [Developer], or an agent designated by [Developer], as their exclusive rental agents,” when renting out their condominiums.  The Declarations also provided that “Unit owners may decline to renew the rental management contract with [Developer] after three years, but only if 75% of unit owners vote to end the contract with [Developer].”  Of course, Developer also owned all of the commercial units, which constituted 22% of the voting units, and several residential units, practically making it impossible for 75% of the unit owners to do anything that the Developer didn’t want.

Continue Reading Claims for When Developers Have TOO Much Control of Association

Facts

Developer recorded a Declaration in 2001 for the 260 Jamie Lane Condominium Association (“Association”) consisting of nine units in what seemed to be one building, with an allocation of the percentage interests based on the square feet of each unit.  Like most Declarations, it provided that “[e]ach Unit Owner shall pay his proportionate share of the Common Expenses … in the same ratio as his percentage of ownership…” with corresponding lien rights if the payment was not made.  The Developer sold five of the units in 2001 upon apparently completing a building within the Association.  The Developer filed an amendment to the Declaration and Plat which stated that the building where the five sold units were, was complete and describing “the proposed units for a different building to be constructed on Lot 1.”  The Developer continued to own the four uncompleted units.  The Association at some point began assessing the Developer for the four unbuilt units, and when the Developer refused to pay, the Association placed a lien on the unbuilt units. 

Continue Reading Developer Liable for Assessments on Unconstructed Units

Facts

Marshall Spiegel, the Unit Owner, had been in constant litigation with his Association for over 20 years regarding various matters surrounding the operation and maintenance of the common areas.  One of these lawsuits sought to establish set dates in which the community pool was to remain open, among other things. Spiegel and Association agreed to resolve the dispute by entering into a settlement agreement which established set dates that the pool was to remain open and it was further agreed that “[Spiegel is] not to post any documents relating to the 1618 Sheridan Road building on the windows of his unit, [or]… immediately adjacent to any windows of his unit … with the intent that such documents be readable to passersby.”

After the settlement had been reached in 2000, Spiegel continued to post 1618 Sheridan Road-related signs on a mannequin located in close proximity to the window of his ground-level unit, including two in 2014, two in 2018, and then at least twice a month beginning in April 2020 and lasting until June 2020. In June of 2020, Spiegel filed a petition to enforce the settlement agreement because the community pool was not open during the agreed upon dates (due to the on-going COVID-19 pandemic). The Association counter petitioned to enforce the portion of the settlement agreement precluding Spiegel from posting signs relating to 1618 Sheridan Road.
Continue Reading Can you Agree to Waive your First Amendment Rights?

Issue

Does a homebuilder need Association approval of its plans?  NO, unless the condominium documents require it.

Facts

The plaintiff was the builder, Canyon Custom Home Builders (“Builder”).  The defendant was Somerset Condominium Association, Inc. (“Association”).  The Builder wanted to construct on eight vacant lots/units.  The entire Association consisted of 37 units.  Although some units could have single family homes on them, the Builder lots/units were designated for multi-family buildings.  Under the condominium documents the Board was empowered to take various actions, including “to create certain rules for the ‘maintenance, conservation and beautification’ of the Condominium property and the health, comfort, safety, and general welfare’ of the Condominium property’s occupants.”  In 1997 the Association approved an Architectural Control Committee (“ACC”), with the minutes of the meeting reflecting an intent to amend the declaration.  The Board did not amend the declaration to reflect the ACC’s adoption.  In 2012 the Association amended the ACC Guidelines.  The Builder, because the declaration had not been amended, argued it could build whatever was not expressly prohibited by the declaration.  The Association argued that the Builder was seeking to construct multi-family buildings and the 2012 Guidelines are entitled “Guidelines For Single Family Homes and Lake Front Condominium Remodeling and New Construction.”  Builder was not looking to build either single family homes or lake front condominiums.
Continue Reading Architectural Control Through Rulemaking Authority is Proper IF YOUR DOCUMENTS ARE PROPERLY WRITTEN

Facts

The defendant, Lennar Homes developed Martinique at Oasis, a residential community located in Homestead, Florida comprised of 241 homes.  Lennar Homes sold each of the homes in the community to individual homeowners.  Each of the purchase agreements between Lennar Homes and the homeowners contained an arbitration provision, which required the parties to submit any dispute arising out of the sale of the property, including any alleged property damage, to arbitration.  About five years after the first homes were sold, the plaintiff, the Homeowners Association, began noticing potential construction defects in the stucco, stone cladding, and decorative shapes on the exterior of the buildings.  The Association sued Lennar Homes in Florida trial court on behalf of all unit owners in Martinique at Oasis, alleging the issues were caused by defective construction.
Continue Reading Homeowner’s Associations Suing on Behalf of Homeowners Must Abide by Arbitration Provisions

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