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Condominiums & Homeowners Associations

Condo owner may be liable for wrongful death of neighbor when he rented his unit to his brother knowing he was a dangerous sex offender

A court has held that a landlord may be liable for wrongful death of a neighboring condo owner if he rents his unit to his brother, knowing he is a sex offender who often stops using needed medication and is capable of violent outburst when he did not use his medication, fails to warn the neighbors of his presence, and the landlord's brother kills a neighboring owner.  Steele v. Kings Way Condominium Trust, 2018 Mass. Super. LEXIS 103 (Mass. Super. Ct. 2018).

Owners must continue to pay homeowners association fees to maintain private roads even after all other covenants terminate

A Massachusetts court has held that owners in a homeowners association that have access to shared private roads must continue to pay fees to the association to maintain those roads even after all other covenants terminate. Meadowview Heights Homeowners Ass’n...

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Courts debate whether short term rentals (like Airnbnb) violate restrictive covenants limiting property to “residential uses”

Some courts hold that short term rentals (such as Airbnb rentals) violate covenants that restrict the property to “residential use,” finding short-terms rentals to be closer to hotel use and thus commercial in nature. ...

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Retroactive restraints on leasing in homeowners associations

The courts continue to divide over the question of whether it is fair to allow homeowners associations to impose retroactive restraints on leasing on existing owners who purchased with no notice of the restriction. While most states allow this, a few do not, and the Restatement (Third) of Property (Servitudes) §6.10(2), §6.10 cmt. g, takes the position that such major changes in property rights can only be accomplished prospectively unless there is a unanimous vote to alter those rights.

The Idaho Supreme Court recently adopted what appears to be the majority...

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Legal consequences of the distinction between affirmative easements and restrictive covenants

Massachusetts statutes regulate the enforceability of "covenants" by limiting the circumstances in which they can be enforced, defining when they can be enforced by damages only and not injunctive relief, and subjecting enforcement to a 6 year statute of limitations. Mass. Gen. Laws ch. 184 §23A, §30. 

In a recent application of those statutes, the Massachusetts Appeals Court ruled in BP Watertown Retail,...

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Retroactive restraint on short term leasing by homeowners association upheld by Idaho Supreme Court

When a homeowner's association voted to amend the declaration of covenants, conditions, and restrictions to prohibit short term leasing of units (rentals for less than six months), one of the townhouse owners sued to declare the retroactive restraint on alienation invalid. However, the Idaho Supreme Court found the retroactive restraint to be valid; it neither constituted an unreasonable restraint on alienation or exceeded the scope of the powers of the association to amend the declaration retroactively....

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New Jersey Supreme Court confirms state constitution's grant of free speech rights to enable a coop owner to disseminate written information to co-owners

While the US Constitution's free speech provisions in the first amendment apply only to state action, both California and New Jersey have interpreted their state constitutions to grant individuals free speech rights in some cases in relation to private parties. In both states, citizens have the right to distribute leaflets in shopping centers. In Dublirer v. 2000 Linwood Avenue Owners, Inc., 2014 WL 6777311 (N.J. 2014), a resident wanted to run for a seat on the Board...

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Contractual power to modify condo declaration held to be complete defense to claim of deceptive conduct under state consumer protection law

The Seventh Circuit found no deceptive conduct within the meaning of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) when a condo developer substantially changed the governing documents after the condo sales. Goldberg v. 401 North Wabash Venture LLC, 2014 WL 2579939 (7th Cir. 2014). The case concerned Trump Tower in Chicago which contains hundreds of residential condominium units and hundreds of hotel condominium units as well as substantial retail space and other...

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