A Maryland Court recently ruled on the extent of powers a Condominium Board had in dealing with a unit owner who was delinquent in assessments (Elvation Towne Condominium Regime II, Inc. v. Rose, 162 A.3d 1027). The Association at issue adopted a policy by which delinquent unit owners would be deprived of their right to enjoy certain common elements – namely the pool and parking of the Association. When they suspended those rights for the delinquent unit owner, the unit owner filed suit alleging the policy was unlawful, since the Association’s declaration did not provide for the Board to withhold common element use rights. Continue Reading Delinquent Owners – Withholding Access to Common Elements
In a recent case out of North Carolina, Rash v. Waterway Landing Homeowners Association, Inc. 801 S.E.2d 375 (2017), a unit owner in a condominium complex sued the Association for negligence after she slipped and fell on a moldy wooden walkway in the complex after a night of rain. The unit owner stated that she had no knowledge that it had rained or of the slippery condition of the walkway when it was wet. She also admitted that she did not look down at the walkway as she was walking. As the unit owner admitted that she did not look down at the walkway, the trial court found she did not exercise reasonable/ordinary care or a “common sense duty” and was contributory negligent, granting summary judgment in favor of the Association.
The appellate court reversed, ruling that there was a “genuine issue of material fact as to whether the [unit owner] exercised ordinary care to protect herself from injury.” Continue Reading Negligence and the Association
A Court in Arizona recently provided one more reason for your association to have a fine schedule and late fee policy (Turtle Rock III Homeowners’ Association v. Fisher, 2017 WL4837821 and 2017 Ariz. App. LEXIS 187). This particular Homeowners’ Association (“HOA”) required their owners to maintain their property in various ways relative to cleanliness and attractiveness, via the HOA’s declaration. The declaration allowed the HOA to assess daily fines if the violations were not corrected. The HOA sent a particular owner 90 separate notices but started fining the owner less than 30 days from the relevant notice. Continue Reading Does Your Association Need a Fine Schedule and Late Fee Policy? Yes!
A Court in Louisiana recently took up the issue of what to award in interest, late fees, attorneys’ fees and costs when a Unit Owner paid the underlying assessments, but refused to pay anything more. (English Turn Property Owners Association v. Contogouris, 228 So.3d 793 (2017)). In this case, a Unit Owner and its Homeowners’ Association (“HOA”) were embroiled in litigation concerning four years of unpaid assessments, along with interest, late fees, attorneys’ fees and costs, the latter being authorized by the Association’s governing documents. The parties agreed to a payoff concerning the regular assessments, and that a trial would decide what other amounts were owed as a result of the Unit Owner’s failure to regularly and timely pay assessments. Continue Reading Delinquent Owner Pays Assessments, But Refuses to Pay Interest, Late Fees or Attorney Fees. NOW WHAT?
In Illinois, a Court recently ruled on a Condominium Association’s attempt to charge back an insurance deductible to one of its members (Gelinas v. Barry Quadrangle Condominium Association, 74 N.E.3d 49 (2017)). This particular association had a fire originate in an owner’s unit resulting in damage to not only the specific unit, but the entire building. The Association made a claim with its insurance company and received reimbursement for the necessary repairs to be made. The Association then held a hearing and levied an assessment against the Unit Owner in whose unit the fire originated. Continue Reading Special Assessing an Insurance Deductible Back to a Unit Owner
In a recent case out of New York (Board of Mgrs. Of 325 Fifth Ave. Condominium v. Continental Residential Holdings LLC, 139 A.D.3rd 472 (2017)) a condominium board signed a broadly worded document, releasing the developer and multiple other developer-related entities and their “heirs, executors, administrators, successor and assigns” from claims associated with the construction and design of balconies and their related structures. The Board then sued some of the developer-related entities and individual members of the entities under “alter ego” and “pierce the veil” theories. Continue Reading Thinking of Signing a Release? Do Your Homework
This issue arises more than one might suspect. Because of association apathy, many committees go unfilled and often even boards don’t have members. The results of this apathy could be much different than you would expect.
Facts. In a 2017 case, the relevant property “was subject to a 1996 restrictive covenant that required the approval by an architectural control committee [‘ACC’] before any building … could be erected.” The ACC consisted of two named persons within the documents, one of which was dead and the other refused to act. The owner of the property filed a declaratory judgment action seeking to have the court declare the covenant unenforceable based on impossibility of performance. Other property owners objected, claiming the covenant could be made enforceable by modification. The documents did not provide a means by which new members could be added to the ACC. Continue Reading What Happens When All Committee Members Resign, Refuse to Act or Move?
A recent case in Colorado (Tyra Summit Condominiums II Association, Inc. v. Clancy, 2017 COA 73) held an Association trying to amend its Declaration to the strict standards for timing and details contained in state statute. The law in question required a Condominium Association attempting to amend its declaration to send out notice of the meeting at least 10 days in advance, along with the general nature of any amendments to the declaration.
In this case, the Association sent out one notice a month prior to the meeting, but only mentioned that an amended declaration was being drafted. Continue Reading Compliance With State Laws is Important
Facts. The documents required the consent of the first floor unit owner if the second floor unit owner wanted to erect a terrace above a first floor unit. When the first floor unit owner refused to give consent, the Board waived the consent requirement and allowed the second floor unit owner to construct a terrace, after determining that it would have no impact on the value of the first floor unit. The first floor unit owner sued to annul the board’s decision. Continue Reading Who Says the Board Can’t Favor Resident Owners?
A unit owner, who is also an attorney, was renting his unit to his mother and believed that the condominium association board, the association, the property manager and the association’s attorney didn’t like him because of his Russian nationality. His mother, who allegedly had asthma and could not tolerate smoking, was upset because her Armenian neighbor would smoke inside her own unit and on her limited common element patio and the smoke would seep through the mother’s open windows. The unit owner demanded that the association board prohibit smoking inside of all of the units. When the board refused, he brought a 200-paragraph lawsuit alleging seven various causes of action, including discrimination, breach of fiduciary duty, and breach of various alleged laws. Continue Reading Smoking and the Unreasonable Unit Owner Attorney