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

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

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

Summary

Your Association should ensure that the language and definitions in governing documents reflect the intentions of the Association.  If they don’t, amend them, don’t just pretend they say something they don’t say

Facts

Sunburst Farms East (the “Association”) is a residential community consisting of four sections with individual lots (Sections 2, 3, 4, and 7).  Each Section had its own deed restrictions embodied in their own Declaration of Covenants, Conditions and Restrictions (“CC&Rs”).  Every property owner in each Section automatically became a member of the Association, which was created to provide water to its members.  Under the CC&Rs the Association could impose assessments on its members, even if they didn’t use the services.  Over time, a majority of the owners in Sections 3, 4 and 7 voted to amend their CC&Rs to revoke mandatory payment obligations, and Section 7 also voted to revoke automatic membership.

Obviously, this created differences between the various Sections, since they now had different rules.  In 2007, all four Sections attempted to amend the existing CC&R’s and stated in the document that all four Sections seek to amend their CC&R’s and the prior CC&R’s are superseded.  After an election, the CC&R’s were recorded because they had been allegedly approved by a majority of property owners in each Section.  In response to a suit brought by owners, the Association filed a suit seeking a declaration that the 2007 CC&R’s were valid.  During the suit, the owners learned that the CC&R’s had not in fact been approved by a majority of the owners in Section 7.  Therefore, these owners argued the 2007 CC&R’s were invalid.
Continue Reading The Language Used in Documents, Amendments and Motions Matters

Summary

The Court of Appeals of Washington held that a lot owner was barred from claiming ownership of a strip of land after representing that the land was part of the adjacent lot, building a fence along the supposed boundary, allowing the adjacent lot owner to maintain and landscape up to the fence, abandoning the land, and causing the adjacent lot owner to rely on that representation.
Continue Reading This Land Is My Land, this Land is Your Land – Owner Loses Ownership of Land After Denying It Was Part of His Lot

Problem

What do you do if you want a detached garage but your documents don’t allow it?

Facts

Plaintiffs sought to enjoin the construction of a detached garage in their association on the grounds that it was specifically prohibited by the declaration. However, the declaration provided a procedure for review of any proposed structure that would otherwise violate the declaration. That process required submission and approval in writing from the Trustee (think Architectural Control Committee or “ACC”). However, the Association had not had any ACC in place for approximately nine years.
Continue Reading Architectural Control Committee – Why It’s Needed!!!

Facts

When you are headed down the wrong path – TURN BACK.  This applies to owners and associations when they act on their belief of what their documents say, but then learn that their understanding may be wrong.  Often parties who make a mistake, or learn that they might have made a mistake, refuse to reevaluate their situation and at least allow turning back to be an option.  Such appears to have been what happened in the recent case of Fritz v. Lake Carroll Property Owners Association, Inc., (2019 unreported case out of Illinois) where the association passed a rule that required inspection and pumping of the owners privately owned septic system every four years and that if an owner failed to follow the rule they would be fined $250 and $25 per day. 
Continue Reading Wisconsin Condominium and Homeowner Association Owners Need to Follow their Rules Even When they Are Not Recorded.

Castilian Hills Homeowners Association v. Chaffins, (Wash. Ct. App. Oct. 22, 2018)

The Facts

Homeowner bought home in 2004. In 2016, the homeowner failed to pay his $147 assessment.  The homeowners association (“HOA”) assessed a $20 late fee. The homeowner still did not pay, despite the normal language in the HOA governing documents about interest, the right to lien and reasonable attorney fees. After more notices, the HOA filed a lien for $525.52 and then a complaint against the homeowner seeking the $525, plus interest and attorney fees.   The homeowner argued to the court that the HOA was “required by statute to provide notice and an opportunity to be heard” prior to filing a foreclosable lien.
Continue Reading How to Turn $147 into $10,000 – the WRONG Way