In a 2017 New York case, a dispute arose over what authority the Association had to perform landscaping maintenance on an individual homeowner’s lot (Minkin v. Board of Directors of Cortlandt Ridge Homeowners’ Association, Inc., 149 A. D.3d 723 (2017)). When the owner refused to pay the assessment for the landscaping services, the Board started assessing fines. The owner sued the Board. The New York Supreme Court (the lowest level court in New York) decided that the Board did have the authority to perform the landscaping services on the front lawn and the homeowner was required pay the assessment as well as the fines. Unfortunately for the Association, there was also a larger issue dealing with the work performed and assessed on the side and rear of the house. The problem was that the Board and managing agent could not provide backup or evidence for exactly what work was done in each area, and accordingly, the assessments and fines were not upheld in those areas.
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Can the Association’s Documents be Contradictory and Still Enforceable?
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?
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Delinquent Owners – Withholding Access to Common Elements
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.
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Does Your Association Need a Fine Schedule and Late Fee Policy? Yes!
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.
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Collecting Large Fines
An association in southeast Wisconsin consists of plots of land upon which the various unit owners can park a mobile home or trailer. Under the association documents, unit owners cannot be in the trailer more than 60 days between October and April or a $10,000 monthly fine will be assessed. A unit owner owed more than $13,000 in fines in addition to unpaid monthly assessments. When the unit owner continued to refuse to pay, the association started foreclosure on its lien.
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Can I Use the Prohibition on “Commercial Activity” to Preclude Short Term Rentals?
Those of us involved in condominium management, whether as board members, officers, property managers or attorneys, know that VRBO and AirBnB have changed the way units are rented. Short term rentals are viewed by many associations as a problem that should be solved. Specifically, these associations and managers would prefer that short rentals (most often defined as less than six months or one year, but I have seen it defined as less than 30 days) be prohibited. The problem is getting enough people to agree on the various issues:
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You Can’t Do That
This is an all too common phrase uttered by members of associations. It is most uttered when the Board is enforcing its condominium documents, including its rules. The chant increases in volume when the violating owner is able to find some other violation of some other rule that they believe the Board is not enforcing. Frequently it has this ring to it: “this is discrimination.” For many reasons that argument fails to hold water. However, courts do listen to owners who can show that an association is only enforcing or selectively enforcing its rules.
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Bored – Then Run for the Board
Associations often struggle to get sufficient members to fill their Board. The common perception is that it is too much work. It’s not, but there is work involved. However, if you are organized and willing to share some of your time, you will quickly learn that many of the issues repeat themselves. If your association has a manager, then your real job is to manage the manager. If you don’t have a property manager, then the owners define your job as EVERYTHING. We have put together this list of the issues that commonly arise so that you can see that you won’t be bored: assessments, banks, contractors, dogs, electricity, fires and feelings, gas, heat, ice, jokesters, kites, leaves, mail, nails, pools, quality issues, roofs, streets, trouble, upset people, voting, water, extra stuff left by the garbage, your neighbor, zoo animals allowed by the FHA as emotion support animals – so essentially the entire alphabet.
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Fining for Tenant Violations? You Might be Doing it Wrong.
You might think that when a tenant breaks a rule, that you can simply fine him like you would fine an owner-occupant. Or, you might think that you can just notify and fine the owner/landlord for his tenant’s violation, since he’ll ultimately be responsible for the fine anyway, right? These assumptions are intuitive; however, anyone who has been around condominiums and HOAs long enough can tell you that the laws governing them are not always intuitive. In fact, sometimes it seems like the legislators threw common sense right out the window!
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