We're Moving

Over the next little while, I intend to relocate the hosting of this blog to wordpress -- it will allow more options and features in posting, and I think I can make it look a bit better.  So, if you want to keep up, you might want to change your favorites and resubscribe at utahcondolaw.wordpress.com

Amending CC & Rs and Bylaws -- National and Local Presentations

The National Business Institute has asked me to present a national teleconference on the subject of amending community association (HOAs, Homeowner Associations, Home Owner Associations, condominiums, PUDs, Planned Unit Developments -- whatever you want to call them) governing documents.

The course will be held on May 17, 2010; I'm going to be looking into whether NBI will let me have a few guests in our training center, so that I'm not talking into a telephone.  I'm also looking into the possibility of a video recording for future access.

Meanwhile, over the next several days I will be working on the course materials, so if there are any sample materials that you want me to include, let me know and I'll try to include some.

The Essentials of Community Management

Last weekend, The Utah Chapter of the Community Associations Institute sponsored its "Essentials of Community Management" course. Several active members of the industry taught about the fundamentals of homeowner association and condominium management. Here are some pictures of some of the presenters. (Not pictured: Derek Petersen).

Thanks to Beat Koszinowski and the Buckner Group for hosting us.

Wasatch County v. Okelberry, Round 2 of __?

You may recall this post from two years ago, where I reported on a trilogy of cases which dealt with the public dedication of private roadways; in the opinions, the Utah Supreme Court held that "An overt act that   is intended by a property owner to interrupt the use of a road as a public thoroughfare, and is reasonably calculated to do so, constitutes an interruption sufficient to restart the required ten-year period under the Dedication Statute."

The Okelberrys and Wasatch County were the parties to one of those three cases, and when the Supreme Court issued its opinion, it sent them back to the trial court for further proceedings, in light of its clarification.  The Okelberrys sought a new hearing or trial to present evidence on their intent; the trial court denied that request and reviewed prior pleadings, new memoranda and heard new arguments.  The trial court found that there were gates on the roads, and that the gates were intermittently locked.  The court stated that Ray Okelberry had testified that he locked the gates but "he did not testify that he intended to keep the public from accessing the roads at this time.


The appellate court reviewed this history, and ultimately sent the case back, once again, to the trial court to "give the parties an opportunity to present evidence related to the Okelberrys' intent to interrupt public use and identify with more specificity whether and when the gates were closed and locked and the intent of those actions."

I think we can anticipate another appeal in a couple of years, at which time the court will review the credibility of Okelberrys' almost certain testimony that the locks were indeed put there to stop people, (rather than exceptionally intelligent Wasatch County livestock with opposable hooves), and Wasatch County's contention that that testimony is not credible.  Hopefully, when presented with that evidence, the appellate courts will allow this case to be finally resolved.

South Ridge HOA v. Brown -- What's a "Short-Term" Rental?

In an opinion issued about a month ago, the Utah Court of Appeals decided that "a weekly rental is clearly similar to nightly rentals and timeshares, when considering those terms together."

The case arose from language contained in the South Ridge Homeowners' Association's Declaration of Covenants, Conditions and Restrictions (C, C & Rs) that provided, in relevant part, "No timeshare, nightly rental or similar use will be allowed on any single family lot."  The court thus considered its task to be to determine "whether Brown's weekly rentals were uses similar to a nightly rental or timeshare."  The court concluded that "a weekly rental is clearly similar to nightly rentals and timeshares, when considering those terms together."  In coming to this conclusion, the court focused on the fact that the "common thread" of these short duration rentals is that "people will be coming and going for short periods of time."

The court ultimately ruled in favor of the association, and surprisingly affirmed the lower court's broad injunction, despite the fact that the court found "the breadth of the trial court's injunction more troubling..."  Under the injunction, Ms. Brown was to notify the association of the identity of her visitors and the duration of their visits.  The association's counsel argued that the requirement of notification was only to apply to those guests who were not accompanied by Ms. Brown, but that was not in the order.  The dissent agreed with the majority's interpretation of the C, C & Rs, but would have limited the injunction to prospectively prohibit the disputed short-term rentals, without a requirement of advance disclosure of occupancies.

I'm not certain whether I disagree with the court's ultimate conclusion in this case, although I'm a bit disappointed as to how they got there.  First of all, in order to interpret the contract as a matter of law, they had to find the contract to be unambiguous.  I'm troubled that they quickly disregarded the provisions which allowed an owner to "rent or lease said owner's residential building from time to time." Brown's counsel asserted, and it was apparently not challenged, that the rentals happened "occasionally" and "fewer than six" times a year.   Thus it appears uncontested that the frequency of the rentals was not in violation of the covenants, leaving only their duration of possible violation.  In that regard, the court relied upon the "timeshare" language to expand the prohibition of "nightly" rentals.

What the court appears to have disregarded is that a "timeshare" is a particular type of ownership, and not directly related to rental periods, or even really related to a rental of a unit by its owner.  Timeshares are specifically defined and regulated by an entire chapter of the Utah Code, (Utah Code Ann 57-19), and that a timeshare unit is intended primarily to be owned among a wide variety (presumably 52) groups of owners, whereas Ms. Brown's rentals were occurring at about 10% of that frequency.  I think it's a stretch, at best, to conclude "as a matter of law," that the uses are similar.  The  conflict between the "time to time" language and the "nightly" prohibition seems to have created an ambiguity which, under traditional jurisprudential rules, must be determined by a jury.  See, e.g. Rubey v. Wood, 15 Utah 2d 312     (1964).    

News on Reverse Foreclosures

My Twitterpal Melissa Garcia, (@ColoradoHOAGal) pointed me to this article in the Miami Herald, which  explains the mechanics of a typical reverse foreclosure.  Reverse foreclosures are being pursued by community associations throughout the country, as associations find themselves stuck with units on which the owners will not pay and on which the lenders will not foreclose.  The problem arises everywhere, but particularly in those states with higher foreclosure rates.

A condominium or homeowners association (HOA) that forecloses a unit upon which there is a senior lien will not be able to take title, but will be able to get access to the unit, and presumably put some pressure on the lender to step up to its obligations.  The law is still developing in this area, so watch for new developments as some cases are decided.

The article also quotes another frequent blogger and twitterer, Donna Berger, (@CondoandHOALaw); Donna wisely recommends that associations rent the units after taking them from the banks.

The Essentials of Community Management

I'm in Natick, MA., preparing to teach the CAI course on The Essentials of Community Association Management tomorrow and Friday.  I don't teach this course as often as some others, but every time that I do teach it, I am impressed as to what a good overview of the industry that it provides.  I've taught board members, attorneys and many managers in the course, and I think it provides knowledge at all levels.  If you haven't taken the course, you should consider it.  It is also available as a home-study course, if you're not inclined to take the time to learn from one of CAI's distinguished national faculty members.

Truth in Advertising of "Utah HOA Attorneys".

There's a new website out there that purports to be a listing of HOA attorneys in Utah.  There's one firm listed on the site, and the listed lawyer (who won't be identified) is identified as a "thoroughly [sic] attorney."   Since I'd never seen the site before, I thought I'd give it the benefit of the doubt, and suggest Hobbs & Olson for a listing, but I clearly indicated in my email that I was not interested in paying for a listing.  5 minutes later, after 9 p.m., I received a response which stated: "we are a paid only service, we do not give space away for free..."

So, if you want to find a "thoroughly [sic] attorney," who is paying to be the listed HOA attorney, you might want to find that other site by Googling it.  I'm not going to list it here, because that would be assisting that site's credibility, and I don't think that a website that purports to list "the best hoa attornies [sic] in Utah," but that is a "paid only service" deserves any credibility.

Stacking Up

There's been lots of community association news in Utah over the past several weeks, and not a lot of time to write about it.  The Utah appellate courts have handed down several cases dealing directly with community associations and homeowners, and several other cases with tangential, but significant impacts on the industry.  I'll blog about those in the next several days.

The other news deals, rather surprisingly, with progress in various community association projects.  First, a new project in the Sugarhouse area is opening soon; the controversial Urbana on Eleventh "condominium tower" will have 29 "pet-friendly" units.  Neighbors fear parking and crime issues, but many local businesses are hoping for increased commerce.  Units will range from slightly under 200k and up to slightly over 500k.

Meanwhile, progress on the City Creek project is continuing, with a good portion of the food court having its grand opening today.  That event gave rise to some new publicity and a status update on all of the buildings, nicely shown on this diagram.  Units in the Richards Court condominiums will commence in just a few months, with units in the taller Regent and City Creek Tower 1 project being available in mid-2011.  (Interestingly, the developer has little available information on the "Tower 1;" the provided link is to a skyscraper page.  That page is worth a look, since it has some photographic history of the construction, and nerdy photos, rendering and videos.

And lastly, the City Creek Project has gotten some more publicity from the New York Times, which has an interesting outsiders take on the church/state and economic issues associated with the development.  One interesting tidbit in the NY Times article notes that although the church will likely allow alcohol in some of the development, they will sell the underlying property to accommodate that while "keep[ing] the church from being in the liquor business or from benefiting from liquor sales."   (Regular readers of this blog will recall that the New York Times has written on the City Creek project in the past.

Utah Condo Sales Are Up -- Way Up!

The Salt Lake Board of Realtors issued its fourth quarter 2009 Housing Market Report, and it appears that the Utah housing market, and particularly the condominium market may be on the mend.

Single family sales were up 36 percent compared to the same quarter of the previous year; condominium sales were up even more.  544 condominiums sold during the quarter in Salt Lake County, which was a 42 percent increase over the corresponding 2009 quarter.  

The year-end figures for 2009 were also up over the numbers for 2008.  2008 was the third year of a three year downturn in sales, thus suggesting that 2008 may have been the bottom.

Here's a link to the Salt Lake Board of Realtors' press release and here's a link to a spreadsheet of the statistics.

That's a Pretty Big Loan...

The New York Times is reporting today about a rather major default; the debtors defaulted on $3 billion worth of notes last week.  The 5.4 billion dollar deal which defaulted had involved 110 buildings and 11,227 apartments in what was the most expensive real estate deal of its kind in American history.


Wonder if anyone will try to step in and convert the to condominiums or cooperatives?  Hah!

CCAL Law Conference -- Financing Availability

Over the past several years, many changes have taken place in real estate financing; one of the less publicized areas of change deals with the availability of financing for community associations.  Lenders and underwriters are changing the way they review and approve those associations that can get federal mortgages.

The panelists for today’s town hall meeting on mortgage financing eligibility include DeLynn Conley, Senior Risk Manager, Project Standards, Fannie Mae; Loura K. Sanchez, Esq., CCAL, Stephen M. Marcus, Esq., CCAL; and George E. Nowack, Esq., CCAL.

FHA Loans

FHA loans are now 30% of the market.  On February 1, spot loans will no longer exist.  Previously, questionnaires would be distributed, and largely ignored.   However, starting on February 1, associations will need to be approved, and those approvals will be expensive to obtain.

There are 3 mortgagee letters that have been issued.  Mortgagee letter 46b provides two methods for approval; currently, all applications are being sought through the FHA.

There are many documentary requirements on applying for certification.  An attorney’s opinion is not required by FHA, but is left to the lender or developer.  The developer or lender may, in turn require a letter.  That opinion will require, in theory, that an association complies with “all applicable laws and regulations…” 

Rights of first refusal will be allowed, if not discriminatory.

FHA may have an advantage with respect to pre-sale requirements; in connection with FHA, it will be at 30% through the end of 2010.

FHA used to limit its involvement in a project to 10%; that will be increased to 50% through 2010.  Thereafter, it will decrease to 30%.

FHA appears to have removed legal document requirements, other than a transition limitation.

FHA will be reviewing budgets, and an inclusion of deductible funding for insurance deductibles.

FNMA

FMAC will follow FNMA and FMAC requirements; FNMA will require 10% reserve funding and deductible coverages for insurance.

Insurance Requirements

FNMA requirements now require insurance to cover 100% replacement cost, including replacement of the Units.  This can be a guaranteed replacement cost policy, or a policy with a replacement cost policy with an agreed value endorsement to cover any coinsurance gap.

Under the new rules, a borrower becomes involved in connection with betterments and improvements.  If the association policy doesn’t cover betterments and improvements, there will be a gap.

Bare Walls – the association’s policy will cover only replacement of the drywall or plaster, and none of the fixtures or improvements.

Single Entity – the most typical coverage, according to Nowack.

All-In  -- the association’s policy will cover and replace all contents of the unit, including the improvements and betterments.

If the association does not cover with all-in coverage, the owner must obtain a “walls in” policy.  (Which would be a standard HO-6 policy.)  The policy must cover, at a minimum, 20% of the appraised value of the Unit.  A major problem with this, of course, is that the value of a Unit may well include intangibles such as a view.

Another new insurance requirement is fidelity coverage; the association needs to have a minimum of three months of aggregate assessments, and an amount equal to all of the association’s reserves.

What Next?

Steven Marcus is suggesting that associations be proactive prior to February 1 to obtain certifications; Project Approvals out of Philadelphia is one possible source.

Associations involved in litigation, and associations with special assessments in place, will be reviewed on a case-by-case basis.

CCAL Law Conference -- The Unauthorized Practice of Law

Yesterday afternoon, I attended a session on the unauthorized practice of law in community associations, with an emphasis on managers’ conduct.  The hypotheticals were fairly predictable; sales contracts by realtors, interpretation of governing documents and the biggie – managers preparing and filing liens.  Richard Ekimoto pointed out that the unauthorized practice of law constitutes a civil and criminal offense in all 50 states.

Now, the focus has shifted to the aiding and abetting of the unauthorized practice of law – the first question, does an attorney aid and abet by preparing a “standard form” for managers’ use?  This isn’t an issue for me, in light of my declination of representation of management companies, but I have no doubt that my forms are being used as “forms” (and modified) by managers and associations alike. 

Richard Ekimoto is telling about having been informed that a management company that he once worked with who admitted to having had a binder full of opinion letters from his firm and others, for review and use by managers within the office.   Needless to say, there are some real problems with that, the least of which is the obvious breach of the attorney/client privilege associated with that conduct.

The audience is suggesting there’s a trend for managers to get more aggressive in their marketing of legal services.  An Arizona manager who apparently asked a question at last year’s seminar is posting materials suggesting that he “spoke at the College of Community Association Lawyer’s seminar.”

Now there’s a backlash from managers who assert that they’re constantly put into an untenable position of being asked to answer legal questions, but told not to call counsel for the answers.  Fortunately, the moderator brought that discussion to a halt before you (and others) heard about it (and the ensuing brawl) on the evening news…

A couple of other points quickly presented as the seminar draws to a close:

·      The presence of counsel at a meeting will, if appropriately handled, allow for the protection of candid discussions under the cloak of the attorney-client privilege.

·      An association board that relies upon the advice of an appropriate professional will be protected by the business judgment rule, regardless of the wisdom or advisability of the ultimate decision.  The business judgment rule focuses on the procedure associated with decision making rather than the substance of the decision.

CCAL Seminar -- Collecting Assessments

Terry A. Kessler, Esq.; Michael S. Karpoff, Esq. and David C. Swedelson, Esq. are the speakers for this session.

A topic being addressed for the third time in this session is assessment recovery; once again, attorneys here are stating that they’re seeing clients take their collections to other firms and other resources (such as collection agencies).

Needless to say, everyone is reminiscing about the good old days, when less than 1% of the matters were going to sale; now it’s probably 20%.  In California, they’re starting to see some of the units get picked up at the sale.

Terry Kessler is an advocate of judicial foreclosure from New Jersey.  Judicial foreclosures were taking 6 to 9 months; now it’s taking from 8 to 12 months, and sometimes up to two years, to finish the judicial process.

Ms. Kessler also advocates the pursuit of rent from tenants where possible, even where the lender is foreclosing its lien.  In Utah, specific statutory provisions facilitate the association’s ability to demand rent from tenants.  Hence if your association has rental units, the occupancy of a unit should be considered as an aspect of the collection plan.

CCAL Seminar -- Insurance Audit

Joel W. Meskin, Esq., CIRMS presented a session today on auditing associations’ policies.  In actuality, the discussion related more to a review of policies, but he covered many good points in the allotted hour.

Joel’s hypothetical began with a failure to provide timely notice of a potential claim and a resultant declination of reimbursement for initial defense case.

Joel reminded in a session yesterday, and again in his session today that associations should NOT distribute a list of delinquent unit owners.  He frequently sees claims arising from those lists. 

Joel recommends that all associations have reserve studies, and asserts that these reserve studies may be one of the most important risk management tools to an association.

Joel notes the difference between imbedded D & O policies and stand-alone policies.  Several companies provide D & O coverage as an automatic endorsement; the imbedded policies generally, if not always, provide lesser coverages.

Many, if not most Directors and Officers (D & O) claims are not monetary claims; the imbedded coverages may exclude many of these types of claims.   Imbedded policies also limit the class of those included within the category of insureds.

Respecting fidelity bond coverages, Joel is recommending the greater of:

1.     the maximum funds that will be in the custody of the association or its management agent at any time the bond is in force;

2.     any amount required by the association’s bylaws;

3.     any amount required by statute; or

4.     three months of assessments/fees plus current reserve funds as required by the lenders.

Crime coverage is a separate coverage from fidelity coverage, and covers theft and related losses resulting from acts of third parties.

Attorneys often represent their clients without giving notice to the carrier, and then the policy period passes.  That will result in the loss of coverage.

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.