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Committee Activity 2016

December 2016

Sanchez v. Cobblestone Homeowners Association of Clayton, Inc. (North Carolina)  

Defendant-Appellant Cobblestone Homeowners Association of Clayton, Inc. ("Cobblestone") intends to appeal five (5) companion cases with substantially similar facts to the North Carolina Supreme Court.   At some point in early 2014, Cobblestone's former legal counsel discovered that a prior error in Cobblestone's legal documents resulted in a number of homes within Cobblestone being excluded from Cobblestone membership. On or about 30 July 2 014, former counsel for Cobblestone prepared and sent a letter to approximately twenty-six (26) homes in Cobblestone, including all of the Plaintiffs-Appellees in the Companion Cases, which informed the owners of the mistake, and stated that the owners were not subject to the applicable declaration.

It appears undisputed that prior to the 30 July 2014 letter, all of the Plaintiff-Appellees thought they were members of Cobblestone, had access to the amenities whether actually used, and had the use of the property management company for communication and community concerns, among other things. Generally, all of the Plaintiffs-Appellees paid quarterly assessments as they became due and payable since the purchase of their respective homes roughly between 2001 and 2004. Cobblestone ceased invoicing Plaintiffs-Appellees for quarterly assessments following the 30 July 2014 letter.

The 30 July 2014 letter led Plaintiffs-Appellees to file separate small claims complaints seeking a refund for all assessments ever paid to Cobblestone by Plaintiffs-Appellees.  The Small Claims Actions resulted in judgments against Cobblestone for all prior assessments paid by Plaintiffs-Appellees. Cobblestone appealed the Small Claims Actions to Johnston County District Court.  Generally, the Plaintiffs-Appellees testified that they consciously availed themselves of multiple benefits and services within Cobblestone from the time of purchasing their respective homes until the 30 July 2014 letter. Plaintiffs-Appellees testified that they used the amenities on occasion; complained about community concerns to the property manager; attended and voted in community elections; and otherwise believed they were members of Cobblestone and obligated to pay assessments.

The Johnston County District Court awarded judgment again in favor of Plaintiffs-Appellees for the assessments paid, concluding that no contract ever existed between Cobblestone and Plaintiffs-Appellees; that Plaintiffs-Appellees unjustly enriched Cobblestone by payment of assessments; and that Plaintiffs-Appellees were entitled to a refund of all assessments paid (the "District Court Judgments"). The District Court Judgments, like the results in the Small Claims Actions, resulted in money judgments roughly in the amount of $4,000.00 for each of the Plaintiffs-Appellees.

The North Carolina Court of Appeals, in a 2-1 decision, affirmed the trial court judgments against Cobblestone. Judge Dillon, dissenting, concluded otherwise. Based upon Judge Dillon's dissent, Cobblestone has a right of appeal to the North Carolina Supreme Court on at least the following issues:



The impact of an unfavorable decision at the North Carolina Supreme Court would be potentially devastating to community associations, not only in North Carolina, but throughout the United States. First of all, an opinion affirming the North Carolina Court of Appeals would be contrary to long-standing North Carolina law on the issue of implied contracts and the obligation to pay assessments where there is no clear express legal obligation to do so. North Carolina case law has found contracts implied in fact existed between the homeowners associations and owners where the owners received benefits and services to their properties and were on notice that those benefits were being incurred. Established North Carolina case law has also concluded that the homeowners, not the homeowners' association, would be unjustly enriched if no such implied contract existed. Additionally, Reidy v. Whitehart Ass'n, Inc., held that where a party accepts a benefit or transaction, and then later attempts to take a position contrary or inconsistent therewith, the party is estopped from doing so. In other words, if the homeowners acknowledged or recognized the validity of the homeowners' association, the homeowners would be estopped from taking a different position later.

Importantly, an unfavorable opinion in the Cobblestone matter would contradict the nationwide majority view that upholds the establishment of an implied contract in circumstances directly on point with the facts in the Cobblestone case now on appeal. As stated succinctly by the Supreme Court of Colorado, "When faced with this issue, a substantial number of states have arrived at the conclusion that homeowner associations have the implied power to levy dues or assessments even in the absence of express authority." Evergreen Highlands Ass'n v. West, 73 P.3d 1, 7 (Colo. 2003).

Amicus Brief
Prior Ruling: Court of Appeal Opinion 
Brief Authors: Adam M. Beaudoin, Esq. and Alexander C. Dale, Esq.
CAI Amicus Brief Review Committee: Robert Diamond, Esq., Chair of Amicus Committee, Stephen M. Marcus, Esq. (MA), Jennifer Jacobsen, Esq. (CA) 

November 2016

Goudelock v. Sixty-01 (Washington State)  

The issue at stake is whether an owner of real property within a community association, who files a bankruptcy petition under Chapter 13 of the Bankruptcy Code, may discharge all past and future assessments that accrue during ownership. When an owner files a Chapter 7 bankruptcy petition there is a specific statute that precludes from discharge all post-petition assessments. 11 U.S.C. § 523(a)(16). The Bankruptcy Code, however, is silent as to whether post-petition assessments are discharged under other bankruptcy chapters.

There is a split of authority throughout the United States as to whether owners who file a
Chapter 13 bankruptcy are liable for ongoing assessments. The Ninth Circuit is arguably the
most influential since it is the largest in terms of geography and population. As such, the
outcome of this case threatens the livelihood of community associations throughout the country from being able to collect assessments once they file a Chapter 13 bankruptcy.

If the Ninth Circuit holds against community associations, it will create a heightened duty of record keeping that few boards or management companies will be able to maintain. Specifically, if an owner is relieved of all personal liability to pay assessments after filing a Chapter 13 bankruptcy, the association must keep a record of that bankruptcy and never attempt to collect a future debt for unpaid assessments from the owner personally – even if the owner was not delinquent at the time he/she filed bankruptcy and even if the bankruptcy was filed decades ago.

The lower bankruptcy court and district court both agreed the owner must pay the ongoing assessments notwithstanding a discharge under Chapter 13. In this case, the Amicus Review Committee recommends that the amicus brief squarely address the issue of Ms. Goudelock's surrender of the property and the fact that the association never objected to the bankruptcy plan.  These are difficult facts that distinguish this case from In re Foster, the case that the bankruptcy court relied on.  There are two Ninth Circuit Bankruptcy Appellate Panel ("BAP") decisions that hold the same. BAP decisions, however, are not binding on any other court. As such, the outcome of this decision will be seminal for community associations.

Amicus Bri ef
Prior Ruling: order affirming bankruptcy court opinion
Brief Author: Brian R. Fellner, Esq.
CAI Amicus Brief Review Committee: Robert Diamond, Esq., Chair of Amicus Committee, Gary Kessler, Esq. (CA), Jennifer Loheac, Esq. (GA), Henry Goodman, Esq. (MA), James L. Strichartz, Esq. (WA)

Callawassie Island Members Club, Inc. v. Ronnie D. Dennis and Jeanette Dennis (South Carolina)

We have received a request for an amicus brief to be filed in the South Carolina Supreme Court case Callawassie Island Members Club, Inc. v. Ronnie D. Dennis and Jeanette Dennis. 

Callawassie Island is a residential community of five hundred homes and two hundred undeveloped lots.  The community is governed by a property owners association, the Callawassie Island Property Owners Association, Inc. (CIPOA), and its common amenities are operated and maintained by a second entity, the Callawassie Island Members Club, Inc. (CIMC). Since 2001, The CIPOA declaration has required that lot owners belong to CIMC, as membership dues paid by lot owners to CIMC is the sole course of funds to operate and maintain the community's amenities.

Mr. and Mrs. Dennis are lot owners and members of both CIPOA and CIMC. Prior to August of 2011, the Dennis' submitted a resignation from CIMC, but remain owners of their home in Callawassie Island. On August 10, 2011, CIMC filed suit for breach of contract against the Dennis' to recover delinquent dues, fees and assessments. The Dennis' argued that they had a statutory right to resign from CIMC and that the effect of doing so was to relieve them from further obligations to pay dues to CIMC.  CIMC filed a motion for and were awarded summary judgment against the Dennis', the trial court finding that they remained obliged to pay dues until their membership in the Club was issued to a new member.

The Dennis' filed an appeal of the trial court's final order to the South Carolina Court of Appeals. This court issued an opinion that directed the case be returned to the trial court because the Court of Appeals found there were ambiguities in the CIMC governing documents. The Court of Appeals also found that the South Carolina Not-for-Profit Corporations Act permitted members of such corporations to resign and that resignation relieved the resigning member from the obligation to continue to pay dues, despite the language of the relevant statutory section that specifically provides that a member who resigns remains liable for obligations undertaken before resignation.

CIMC's writ of error is asking the Supreme Court to reverse the Court of Appeals' reversal of the trial court's summary judgment finding and to reverse the Court of Appeals' finding that a member who resigns from a South Carolina not-for-profit corporation is no longer obliged to honor commitments made while a member of the corporation.

Most community associations in South Carolina are organized as not-for-profit corporations and have two organizations- one corporation operates/manages aspects of the community and the other maintains the amenities. If the Court of Appeal's statutory interpretation of the Not-For-Profit Corporations Act is held to correct, then, at a minimum South Carolina community associations will be unable to maintain the common amenities and may be without the funding necessary to operate at all. The impact would be devastating to the associations, value of the homes, and budgets of local government which would be forced to assume responsibilities now provided by community associations.  A plain reading of the relevant statute and the official comments to the statute make clear that members for not-for-profit corporations must honor commitments they made before resigning their memberships. 

Amicus Brief

Status: Order: Petition for Rehearing Denied​​

Prior Rulings: South Carolina Supreme Court Opinion, Trial Court Opinion, Court of Appeals Opinion

Brief Author: J. Thomas Mikell, Esq.

CAI Amicus Brief Review Committee: Robert Diamond, Esq., Chair of Amicus Committee, David Mercer, Esq. (VA), Karyn Branco, Esq. (NJ)

August 2016

Condominiums at Lilac Lane Unit Owners’ Association v. Monument Gardens, LLC (New Hampshire) 

The primary issue presented in this case is whether the 5-year time limit for completion of phased condominiums established by the New Hampshire Condominium Act can be subverted and avoided by a declarant, simply by failing to use, recognize and/or refer to the statutory "phasing" terms in the condominium declaration. The secondary issue presented in this case is whether units in a phased condominium (built during the 5-year time limit) can spring into existence by the issuance of a certificate of occupancy as opposed to a "phasing" amendment to the Declaration, as required by the New Hampshire Condominium Act. 

Lilac Lane Condominium’s declaration does not use the words or terms "convertible land condominium" and contains no reference to any statutorily required provisions for a convertible land condominium. However, the Condominium is clearly a phased condominium despite the lack of reference to and use of the statutory terms. It meets the definition of a "convertible land condominium” under the New Hampshire Condominium Act, as all of the land was submitted to the condominium on March 3, 2010 and is described as common area. 

The Declaration further states that the Condominium shall contain a maximum of up to 120 condominium units in 5 buildings (numbered 12, 13, 14, 15 and 16-each containing 24 units). The Declaration identifies by number all 120 units and the plats and plans identify the location of all 5 buildings and 120 units, even though at the time the Declaration was recorded, the entire condominium consisted of a single building (Building 12) containing 24 units. 

The Declaration provides that units will exist or spring into existence when a certificate of occupancy is issued for each unit, as a way of circumventing the amendment requirement. A separate document called a Memorandum of Understanding recognizing a "phasing plan" for the condominium was recorded by the Declarant subsequent to the creation of the Condominium in connection with a sale of the development rights to a successor declarant. The Declaration contains absolutely no reference to phasing otherwise. 

Building 13 was completed in June 2013, raising the number of units in the Condominium to 48. No Amendment to the Declaration was recorded recognizing or adding Building 13 or the 24 units contained therein. Building 14 was completed in July 2014 raising the theoretical total of units to 72. No Amendment to the Declaration was recorded recognizing Buildings 13 and 14 and the units contained therein. There is no document in the registry of deeds stating when Building 13 and 14 and units became a part of the Condominium. 

The Declarant has not sold any units in Buildings 13 and 14. All units in buildings 13 and 14 are rented by the successor Declarant to third parties. It is unclear why he has not sold any units in Buildings 13 and 14. It is possible that he has not been able to get a title policy due to lack of statutory compliance. The successor declarant has not yet begun construction on buildings 15 and 16. The original 24 unit owners in Building 12 are unable to sell or refinance their units because of the large amount of declarant owned inventory and rentals in Buildings 13 and 14. 

The Condominium Association filed a lawsuit in the New Hampshire Superior Court in 2015 seeking a Court Declaration that: (1) this is a convertible land condominium, since it is clearly a phased condominium and meets the definition of a "convertible land" condominium under the New Hampshire Condominium Act, as it purports to create additional units on common area land over time, (2) that development rights or convertible land rights for proposed buildings 15 and 16 have expired by virtue of the fact that the parties are beyond the 5 year time limit for the exercise of convertible land rights contained in the New Hampshire Condominium Act, and (3) that since the Declarant did not properly reserve and comply with statutory formalities under the New Hampshire Condominium Act for a convertible land condominium, i.e. that he did not record an amendment adding buildings 13 and 14 and all purported units contained therein to the condominium prior to the expiration of the 5 year time frame, the units in contained in Buildings 15 and 16 are not lawfully created condominium units. 

The parties filed cross-motions for summary judgment. The court ruled against the Condominium. The court held that because the Condominium Declaration makes no reference to and fails to use the term "convertible land" that it is not a convertible land condominium and therefore is not subject to any of the statutory requirements for a convertible land condominiums, including phasing amendments for adding subsequent phases and is not subject to the statutory 5 year time limit for addition of the subsequent phases. 

Essentially, the Trial Court ruled that the Declarant has unfettered discretion and can employ any methodology to create additional units and it allows the creation of additional phases of the Condominium that are unlimited in time. The decision is inconsistent with the "convertible land" provisions and requirements of the New Hampshire Condominium Act and the Legislature's specific imposition of a time limit for phased condominiums, as well as the method and means for creating additional units. 

Further, the decisions creates a loophole in the New Hampshire Condominium Act, as it recognizes a new category or hybrid type of common law phased condominium in New Hampshire that allows declarants to avoid all of the statutory requirements for the creation of phased condominiums, including the 5 year time limit established for the completion of such developments. The Trial Court's Decision also creates uncertainty as a matter of title to the legal existence of condominium units. While the New Hampshire Act is not based on the Uniform Act, this interpretation could have far-reaching implications in States that utilize similar provisions and contain statutory time limits and other strict requirements for phased condominiums. 

Amicus Brief
Prior Rulings: Supreme Court DecisionSuperior Court Decision
CAI Amicus Brief AuthorGary Daddario, Esq. 

June 2016 

Georg Lingenbrink, Trustee of the Petra Krismer Living Trust v. Del Rayo Estates Homeowners Association (California) 

Del Rayo Estates Homeowners Association, the defendant in this case, is a nonprofit mutual benefit corporation that manages a common interest development in Rancho Santa Fe, California. Georg Lingenbrink, the Plaintiff, claimed to be the Trustee of the Petra Krismer Living Trust, which owns a residence in Del Rayo Estates and is a member of the HOA. The Plaintiff has owned or controlled the property since 1991. 

This case arises out of Mr. Lingenbrink’s repeated demand that the HOA force another homeowner, Mr. Douglas Pardee, Sr., to trim and/or remove certain trees from his property because he contended those trees interfered with the view from his property in violation of the HOA’s Amended Declaration of Covenants, Conditions and Restrictions (“CC&Rs”). Mr. Pardee owns a home on property across the street and to the west of the Krismer residence and is also a member of the Del Rayo Homeowners Association. Seven different Board members repeatedly investigated Mr. Lingenbrink’s contentions over a period of fourteen years and ultimately came to the same conclusion that Mr. Pardee’s trees did not interfere with Mr. Lingenbrink’s view, and therefore there was no violation of the CC&Rs to be remedied. 

Plaintiff sued the HOA because he disagreed with the HOA’s decision. Mr. Lingenbrink is entitled to enforce the CC&Rs against other members. Rather than bring an action against Mr. Pardee, however, Mr. Lingenbrink has taken the position that the HOA must force Mr. Pardee to trim or remove his trees. The HOA has declined to do so, however, because it has found – on multiple occasions after fully investigating the matter each time – that Mr. Pardee’s trees do not violate the CC&Rs. 

After a four-day bench trial, and inspection of the view by the Judge, the Superior Court held that the trees interfere with the westerly view, and ordered the HOA to take action to require Mr. Pardee to trim 

or remove the allegedly offending trees. The issue in this case is important because enforcement of architectural issues is subjective, and the court should defer to the Board of Directors, as long as the Board complies with the Business Judgment Rule. 

Amicus Brief
Prior Rulings: Superior Court Decision 
CAI Amicus Brief Author Robert M. DeNichilo, Esq. 
CAI Amicus Brief Review Committee: Robert Diamond, Esq. (VA), Chair of Amicus Committee, Gary Kessler (CA) Mary M. Howell, Esq. (CA) Richard S. Ekimoto, Esq. (HI).  

April 2016

W. Lowell Starling and Nancy Starling v. Lake Meade Property Owners Association, Inc. (Pennsylvania)

The parties to this case are Lake Meade, a planned community in Adams County, Pennsylvania, and Mr. and Mrs. Starlings, who own 2 lots in the community.  The Starling's lots are located at the tip of a peninsula that is served by Custer Drive, an Association road.  In 1968, the original Declarant, Lake Meade, Inc. conveyed all roads in the community, along with 35 common area parcels, to the Association. 

The dispute in this case centers on the ownership and use of the cul de sac at the end of Custer Drive.  Upon constructing their home, the Starlings began seeing unit owners and nonmembers parking their vehicles in the cul-de-sac, leading to complaints made to Lake Meade Property Owners Association (LMPOA).  In April 2010, the Starlings filed suit in the Court of Common Pleas and claimed that they owned a portion of the cul de sac and claimed a trespass against LMPOA. In their amended Complaint the Starlings sought to define the boundaries of one of their lots and confirm that the cul-de-sac could only be used for vehicle traffic and not for parking or recreation. LMPOA moved for partial summary judgment on the ownership issue, arguing that it had fee simple title to Custer Drive, the cul-de-sac.  The Starlings claimed that the roads and cul-de-sac were merely easements.  On January 15, 2013, the trial court granted LMPOA's motion on all counts other than a nuisance claim.

In September 2014, the Starlings allowed for the entry of a consent order and appealed to the Superior Court of Pennsylvania.  The Superior Court reversed and remanded the case, holding the developer could not convey fee simple ownership in a road and cul de sac to LMPOA and LMPOA homeowners did not enjoy the right to use the road and cul de sac for anything other than ingress and egress.  The Pennsylvania Supreme Court granted the petition for allowance of appeal and certified three issues on appeal, however, CAI's amicus brief is limited to the issue of whether the Superior Court erred as a matter of law in holding that a fee simple owner of a private road who grants an easement over that road extinguishes fee simple ownership of the road.

The primary reason for the amicus brief in this case is to correct the Superior Court's misunderstanding of the nature of the Association's ownership of the common facilities and the impact of the use easements granted to unit owners in the planned community. In every community with private roads, the developer ultimately conveys fee simple absolute title to all of the common facilities to the community association, including the roads. That common facility conveyance was done correctly in Lake Meade, but the Superior Court did not reach that same conclusion. 

Amicus Brief
CAI Amicus Brief Authors:  Nicholas Charles Haros, Esq. and Gregory D. Malaska, Esq.
Prior Rulings: Pennsylvania Supreme Court Decision, Superior Court Decision, Trial Court Decision
CAI Amicus Brief Review Committee: Robert Diamond, Esq., Chair of Amicus Committee, Steven L. Sugarman, Esq. (PA), Gary Daddario, Esq. (NH), Thomas C. Schild, Esq. (MD)
March 2016

La Paloma Property Owners, et al. adv. Catalina Foothills Un ified School Dist. #16 (Arizona)

The plaintiff (La Paloma Property Owners Associations, Inc. ("LPPOA")) is petitioning the Arizona Supreme Court to review the Arizona Court of Appeals holding that a school district may exercise the power of eminent domain to acquire a private road by which vehicles may enter a school campus.  LPPOA is the master association of a master-planned development in Pima County, Arizona and is located adjacent to the defendant's, Catalina Foothills Unified School District No. 16 ("CFSD"), school campus.

CFSD condemned Campo Abierto, a private subdivision street owned by the plaintiffs to acquire an access easement.  Under Arizona law a school district can only acquire land, in fee simple, to use as buildings and grounds. Even though CFSD was only using about one-third of its total parcel, it convinced the court it was necessary to acquire this additional area, in fee simple, as part of its buildings and grounds.

LPPOA raised a number of legal issues, including the issue of necessity required for condemnation; whether or not it truly was buildings and grounds, as opposed to an access way; whether or not the acquisition was in fee simple when CFSD agreed it was subject to the access and utility rights of others; and, whether or not the conveyance of this easement, after title vests, could be an offset to damages which have already accrued. The Arizona Court of Appeals concluded the subdivision road now was "buildings and grounds," CFSD was acquiring Campo Abierto in fee title, and the later conveyance of an access easement was an offset in the calculation of just compensation.

The appellate decision establishes an inappropriate precedent that could be abused by other districts having the power of condemnation.  First, the idea that a school district can condemn a private subdivision street and change its character from association-owned to being owned in fee by a school district has a resounding effect. Not only could the school district remove the entry statement amenities or other landscaping, but by redesigning the entryway to the school, lessen the quality of the access way for association members.  Additionally, school districts are usually exempt from homeowner association dues, maintenance fees, or other expenses, the access way could decline in quality, not just in appearance, but also in safety, to a degree below the standards required by the association. Finally, once a road is owned by a school district, it becomes the school district's buildings and grounds, additional problems arise. A homeowner returning from shopping, with alcohol or tobacco in the vehicle, is technically committing a misdemeanor entering school property with prohibited items. It was not contemplated by the legislature that school districts would own access ways, used primarily by others, as their means of ingress and egress to homes.

Amicus Brief
CAI Amicus Brief Author: Scott B. Carpenter, Esq.
Prior Rulings: Court of Appeals Decision, Lower Court Decision
CAI Amicus Brief Review Committee:
Robert Diamond, Esq., Chair of Amicus Committee, James Strichartz, Esq. (WA), Jennifer Jacobsen, Esq. (CA), Tom Moriarty, Esq. (MA), Lori Poole, Esq. (CA)

January 2016

Cypress Point Condominium Association v. Adria Towers, LLC (New Jersey)

The Cypress Point Condominium Association v. Adria Towers, LLC, et al. is a construction defect
case that was filed by the Cypress Point Condominium Association following transition of control of the common elements from the Sponsor to the independent unit owners. The case involves typical water intrusion claims that caused damage to common elements and unit interiors. The insurance carriers for the Sponsor filed a declaratory judgment seeking a determination that the commercial general liability insurance policies they issued to the Sponsor did not cover the claims of defective workmanship made against the Sponsor and the subcontractors it hired.

The trial court granted the insurance carriers' motion for summary judgment, finding that the alleged property damage to the condominium did not meet the requirement of an "occurrence" in order to trigger coverage under the Sponsor's commercial general liability insurance policy. The Appellate Division disagreed and reversed the trial court's ruling, finding that under the language of the Sponsor's insurance policy, the defective work by the Sponsor's subcontractors that caused damage to parts of the building other than their specific work, amounted to an occurrence under the Sponsor's policies. This was the first time an appellate court in New Jersey held that defective workmanship by a general contractor's subcontractors that causes damage to the building in question meets the definition of an "occurrence" under commercial general liability insurance policies issued after 1986.

The New Jersey Supreme Court granted certification. The issue to be heard by the Court is framed as follows: In this dispute regarding insurance coverage under a general contractor's commercial general liability policy, do these damages constitute "property damage" and an "occurrence" where subcontractors' defective work caused consequential damages to the common areas of a condominium complex and to the unit owners' property?"

The outcome of the Cypress Point appeal has the potential to significantly impact all condominium associations in New Jersey who have common elements with construction defects. If the carriers win the day, there will be no insurance proceeds available to condominium associations for funds to repair the defects.

Amicus Brief
Prior Ruling: Appellate Division
Status: Supreme Court Ruling for CAI’s Position
Amicus Review Committee: Bob Diamond, Esq. (VA), Jennifer Loheac, Esq. (NJ), David Ramsey, Esq. (NJ)
Brief Author: Gene Markin, Esq.