CCAL Seminar — The Case Law Update

One of the many highlights, and always the best-attended events of the CCAL Law Conference, are the two morning sessions of the Case Law Update, which has been presented for the past several years by the team of Wilbert Washington II, Esq., CCAL and George E. Nowack, Jr., Esq., CCAL.  Their always interesting and humerous presentation is based upon a compilation of leading cases of the preceding year; the cases are compiled and summarized by Donald Dyekman, Esq., CCAL.
Here’s my summary of their commentary on the cases; if and when I get Don’s permission, I’ll add a link to his compilation, which includes even more cases, and some slightly different commentary.
Amendment of Covenants and Bylaws
Apple Valley Gardens Association, Inc. v. MacHutta, 763 N.W. 2d 126 (Wisc., 2009) involved a lease restriction adopted through an association’s bylaws; the court upheld the amendment.  The bylaw amendment had not been recorded..
Riverview Heights Homeowners’ Association & Riverview Heights Homeowners, Inc., v. Rislov, 205 P.3d 1035 (Wyo., 2009) involved a challenge to an amendment that had purportedly been adopted, but had not been memorialized as required – the declaration required attestation in the “form of a deed.”   The court invalidated the amendment based upon the improper attestation..
Nikolai v. Deer Run Owners’ Association, 2009 Ohio App. LEXIS 5525 (Ohio App. 2009) held that the shifting of a roof’s status from common area to limited common area, (in order to shift maintenance responsibility),  constituted a change in the “Units” and thus required unanimity.  
In Platt v. Aspenwood Condominium Association, Inc., 214 P.3d 1060 (Colo. App., 2009), the association developed two lots on the common area, and then contracted with members for the purchase of one of the lots.  The association demanded supermajority consent for the sale, and the court affirmed that action.  The court, however, questioned the association’s good faith.
The association’s letter seeking approval, however, indicated that the sales may have been under contract at too low of a price, and pointed out that the association’s failure to approve the sale would have reduced the assessments for all unit owners.
Raphael v. Silverman, 2009 Fla. App. LEXIS 17689 (Fla. App., 2009) involved an association board’s decision to replace balcony dividers with transparent, rather than opague, dividers.  The Raphaels sued the association and the board members individually.  The plaintiffs’ allegations of self-dealing on behalf of the unit owners were dismissed, in the absence of evidence respecting any particular individual benefit to the board members.
Cohn v. The Grand Condominium Association, Inc., 2009 Fla. App. LEXIS 16833 (Fla. App., 2009) involved a mixed use community.  After the formation of the association, Florida law changed, requiring a majority control by residential owners.  Many years later, that statute was further amended, to make it retroactive.
The commercial owners raised a constitutional argument, that asserted that no law could abridge contractual rights.  The court imposed a balancing test, starting with an implied limitation requiring a substantial impairment.  The court found this to be a substantial impairment on the association’s voting structure, and found for the commercial and retail owners.
Wil Washington calls the Village of Doral Place Association, Inc., v. For Sale by Owner Realty, Inc., 2009 Fla. App. LEXIS 15540 (Fla. App., 2009). , the “Nightmare on Doral Place” suit.  Shortly after the transition, the manager received a tax notice on the property on which the association was owned for $2,593.85, which was not paid; another party bought the property and fenced off the pool.  The tax sale was affirmed; ultimately the association had to buy the property back from the subsequent pool owner.
Comcast of Florida, L.P. v. L’Ambiance Beach Condominium Association, Inc., 17 So. 3d 839 (Fla. App., 2009) involved a dispute as to the continued enforcement of a developer’s contract following transition.  The association succeeded in determining that the developer had properly reserved the right to terminate the contract at the time of transition.
Lake Forest Master Community Association, Inc. v. Orlando Lake Forest Joint Venture, 10 So. 3d 1187 (Fla. App., 2009) was a construction defect case; the developer sought to have the suit dismissed based upon an alleged failure to seek association approval of a lawsuit.  In fact, however, the lawsuit had been approved in a third rescheduled meeting; the developer challenged the propriety of notice for the third rescheduled meeting.  The court noted that the association had properly followed the procedure for the meetings; unfortunately, the association’s minutes of the second meeting failed to note the adjournment of the meeting.  Parol evidence was allowed, and the association’s secretary recalled the adjournment and re-notice.  The developer’s last argument, that the majority vote requirement was a requirement for a majority of all, also failed.
Covenant Enforcement
Musgrove v. Westridge Street Partners I, LLC, 2009 Tex. App. LEXIS 2660 (Tex. App., 2009).   Covenants imposed in the 1940s required single-family homes and greenspace; for many years thereafter, they were ignored.  One of the remaining two lot owners offered to sell his lot to the developer; the developer declined, and the would-be seller sued.  The court noted that no one had sought to sue for fifty years; indeed the court found that the seller was unaware of the covenants until after he sued.  The court found that the restriction had been abandoned.  The unit owner tried to argue that the non-waiver clause precluded this result, but the court held the non-waiver clause to have been abandoned.
Schwartz v. Banbury Woods Homeowners Association, Inc., 675 S.E. 2d 382 (N.C. App., 2009).   This 14-page opinion, according to George Nowack, answers the question of whether a motor home is a camper.  The owners said that their use of the motor home as an extra bedroom, occasional refrigerator and “granny unit” excluded them from the otherwise applicable screening requirement.  
The owner relied upon the motor vehicle code, suggesting that the distinction between a self-propelled vehicle and a camper in the statute was relevant; the court made a historical inquiry and decided that a motor home was, indeed, a camper.
Fox v. Madsen, 12 So. 3d 1261 (Fla. App., 2009) dealt with the statute of limitations in a challenge to a condominium declaration amendment; the court found the applicable statute to be the 5-year statute respecting contracts.
Westgate v. Laumbach, 966 A. 2d 349 (Del., 2009) involved a Quonset hut installed right on the boundary of a lot.   The court took testimony from neighbors; testimony indicated the hut owner was irritable and the structure was a nuisance.  The owner removed the hut, but left the contract.  The court enjoined future misconduct, and the owner argued that he was being subjected to “selective enforcement.”
Lallo v. Szabo, 911 N.E. 2d 788 (Mass. App., 2009) was a two-unit duplex; the upstairs owner wanted to expand into the attic, which was a common area.   The covenants required arbitration in the event of a dispute; the upstairs owner insisted upon arbitration.  The downstairs owner pointed out that the arbitrator would be unable to provide a remedy, hence making the arbitration clause inapplicable.
Abril Meadows Homeowner’s Association v. Castro, 211 P. 3d 64 (Colo. App., 2009) involved an attempt to impose fines upon an owner who modified without consent; the declaration had been recorded without a signature.  The lack of a signature resulted in a remand to the trial court for imposition of appropriate attorneys’ fees.
Covenant Interpretation
Fawn Lake Maintenance Commission v. Aldons Abers, 202 P. 3d 1019 (Wash. App., 2009) involved a discussion between an association president and an owner; the lots were combined with the governmental agency, but there was no agreement with the association.  The association limited access and rights, but continued to impose assessments on two lots.  52 other lot owners, many of whom owned more than one lot, were treated similarly.
Starlight Ridge South Homeowners Association v. Hunter-Bloor, 99 Cal. Rptr. 3d 20 (Cal. App., 2009) involved a property with various concrete channels to deal with erosion.  An owner with a channel in her lot refused to maintain her lot; the declaration language was in conflict, but the more specific provision, dealing with channel maintenance, controlled.  The owner was required to maintain the lot.
In 1230-1250 Twenty-Third Street Condominium Unit Owners Association, Inc. v. Bolandz, 978 A. 2d 1188 (D.C. App., 2009) an owner made an enclosure surrounding his balcony, in part to protect his unit from water damage.  The court found that the unapproved modification was a violation of the covenants, but that the association’s failure to maintain, despite repeated requests, warranted the continuance of the modifications.  The unit owner was awarded $157,000 in attorneys fees.
Fair Housing
Bloch v. Frischolz, 2009 U.S. App. LEXIS 24917 (7th Cir., 2009) is a continuation of a case involving the installation of a mezuzah in a common area.  The court considered whether the enforcement of the rule, however, was neutral.
Overlook Mutual Homes, Inc., v. Spencer, 2009 U.S. Dist. LEXIS 105100 (S.D. Ohio, 2009) is a companion animal case.  The owner sought an accommodation to keep their daughter’s dog “Scooby.”   The court made a distinction between the ADA regulations and HUD regulations dealing with HUD-administered housing.  Scooby was allowed to stay.
Hawn v. Shoreline Towers Phase I Condominium Association, Inc., 2009 U.S. Dist. LEXIS 24846 (N.D. Fla., 2009) was another pet case; the owner returned from vacation with his dog, “Booster.”  The first letter failed to make any mention of the alleged service nature of the dog; the later letter asserted that Booster was necessary for psychological reasons, and that Booster was now “certified.”  The association sought supporting medical information.  Booster’s owner pursued his claim in the applicable agency and prevailed; the matter then went to court.  The owner’s failure to provide the information relieved the association from liability
Stross v. The Gables Condominium Association, 2009 U.S. Dist. LEXIS 52918 (W.D. Wash., 2009) involved a woman with severe disabilities who wanted 12 rather than the otherwise available 4 keys for her various caregivers and emergency responders.  She agreed to consent to a lockbox, to which the board agreed, but only on the condition that she signed numerous documents.  The court restrained the association and gave her the option of selecting either the 12 keys or the lockbox, and affirmatively released her from the obligation to sign any documents in connection with her choice.  

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