Fiduciary Duty

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Eith v. Ketelhut, — Cal.Reptr.3d — (2018)

The Facts

Homeowner bought home in 2003.  In 2005 they planted a vineyard consisting of 600 plants on around .4 acres after obtaining approval of the Board’s Architectural Committee to their landscape plan that included the grape vines.  The CC&R’s (Covenants Conditions and Restrictions) specifically prohibited that “No lot shall be used for any purpose (including any business or commercial activity) other than for a residence of one family…”  The first wine harvest was in 2008 and the owner began selling the wine in 2009.  In a good year he would produce 720 bottles of wine.  Neighbors objected and when the Board did nothing, they filed suit seeking declaratory and injunctive relief claiming that the Board breached its fiduciary duty and to prohibit the owner from operating their business.  At trial the owner admitted that “the sale of wine is a business,” that the vineyard “operates like a business” and that “this was a hobby.”  The owner also testified that he filed IRS Schedule C for the vineyard, which is entitled “Profit or Loss of Business (Sole Proprietor).”  Under the IRS rules you would not file Schedule C if the business was only a hobby.   
Continue Reading When is a Business NOT a Business?

Facts: The facts in the case of Forrest v. The Ville St. John Owners’ Association, Inc., No. 2018-CA-0175 (La. Ct. App. Nov. 7, 2018) are straightforward.  In March of 2016 there was a fire.  It damaged common element and the Forrest unit.  The Association had two insurance policies: one for Property and one for Community Association Management Liability Coverage.  The Property policy was issued by Lloyd’s of London. Lloyd’s paid on its policy, for both the common element and unit damages, but the funds were insufficient to repair the common elements and the unit.  So the Association repaired the common elements.

Trial Court: The unit owner, Forrest, filed suit against the Association alleging breach of fiduciary duty and various other claims under state law. 
Continue Reading Insurance is NOT all the Same-Another Case Proving Why You Need an Insurance Committee

Smoking

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

lawsuit

It is well known that Association Board members (directors) have fiduciary duties to their unit owners and associations. It is almost as commonly known that the officers have the same fiduciary duties.  Yet associations, directors and officers are often sued for failing to meet their duties. Unfortunately, directors and officers often contribute to their risk by doing things that enhance the likelihood of suit. For fun I thought I would write this post from that standpoint.
Continue Reading 12 Things My Board and I Do When We Want to Be Sued

Fiduciary Duty

A fiduciary duty creates an obligation to act for another’s benefit. A board of director’s fiduciary duty is to the association and its members.  So what are the core duties of an association director?  Individual loyalty, good faith and fair dealing in conducting the association’s business, care, and obedience to follow and enforce the association’s documents.
Continue Reading Fiduciary Duties 101 – Limiting the Liability of the Board