A recent New York Court dealt with an issue on leasing (Olszewski v. Cannon Point Association, Inc., 148 A.D.3d 1306 (2017)). The Board adopted rules and regulations that placed restrictions on leasing that contradicted relevant portions of the Association’s Bylaws. The Association then fined the owner for violating these restrictions and the owner sued. The owner won at the circuit court level and the Association appealed. On appeal, the Court again ruled in favor of the owner, upholding the trial court’s decision. Why? Continue Reading Can the Association’s Documents be Contradictory and Still Enforceable?
A Court in Colorado recently dealt with a developer who placed a provision in the declaration of a condominium association prohibiting amendment of the declaration – ever – without the declarant’s written consent, and requiring that all construction defect claims be resolved through arbitration (Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc. (395 P.3d 788)). Continue Reading Developers Sometimes Draft Documents for Their Own Benefit
A Court in Louisiana recently tackled the issue of short-term rentals (New Jax Condominium Association, Inc. v. Vanderbilt New Orleans, LLC, 219 So.3d 471). A Condominium Association adopted an amendment to its bylaws during its annual meeting prohibiting short term rentals. When a Unit Owner continued to engage in short-term rentals, the Association sued and received a permanent injunction, preventing the Unit Owner from continuing to engage in short-term rentals. The Unit Owner appealed, alleging that the amendment to the bylaws was invalid because certain board members had conflicts of interest, and because one board member changed his vote during the voting. Continue Reading Banning Short-Term Rentals
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
A big thank you to all that attended our recent Spring 2018 Association Academy and made the event a success. For those of you who were unable to attend, don’t worry, you can still catch us on YouTube!
We’ve made our Association Academy available for viewing. Click on the links below to learn more.
- Part I: Association Collections and 2018 Law Updates – Do you track the income and expense of each collection matter and know the net recovery? If not, why? And what your Association needs to know about the 2018 condo law changes.
- Part II: The Times They are a-Changin – Demographic shifts and the new problems facing associations. Millennials are moving in. New people – new problems. What your Association needs to be aware of.
- Part III: Document Refresh: Changes You Should Make NOW – Dust off your governing documents! Learn what policies your Association needs now.
As always, if you have questions on any of these topics, do not hesitate to contact the Husch Blackwell LLP Condominium and HOA Law Team.