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September 26, 2005
Ohio Appeals Court: Siding Violates Condo Restrictions, Reverses Trial Court Ruling
Connolly Constr. Co. v. Yoder, 2005-Ohio-4624
Shortly after they purchased their lot, the Yoders submitted their building plans for approval to the Committee. The Committee reviewed the plans and objected to certain details. In particular, the Yoders wished to use a material on three walls of their garage known as “board and batten” siding, which is applied vertically, rather than horizontally. The Committee disapproved of this request for a number of reasons: the siding would be applied vertically, the material on the side of the house would not be the same as the exterior finish on the front, and although board and batten siding had been approved in limited instances for the trim on porches and entryways, it was not approved for siding.
Believing the Committee’s decision to be arbitrary, the Yoders sent a letter to Philip Connolly, the owner of Connolly Construction Company and a member of the Committee, on August 30, 2002, requesting an explanation of the decision and stating their intent to proceed with construction utilizing the board and batten siding as indicated in the building plans. Although Connolly did not respond in writing to the Yoders’ letter, he testified at trial that he had a conversation with Roger Yoder explaining the prohibition. In addition, Connolly sent a letter, dated September 3, 2002, to the Yoders’ builder advising him, “[b]oard and batten is not approved as a siding option. Please select another option for garage.”
Construction began on the Yoders’ home and, as they had indicated, the Yoders installed the board and batten siding on three walls of their garage. On November 5, 2002, Mr. Connolly sent a letter to the Yoders stating that the Committee had become aware of the installation, had previously notified the Yoders that such siding was not acceptable, stated that they were in violation of the covenants, and asked the Yoders to correct the problem as soon as possible.
When the siding had not been corrected, Connolly filed a Complaint for Declaratory Judgment and Injunctive Relief against the Yoders on March 17, 2003. Connolly sought both declaratory judgment on its right to enter the Yoders’ property and replace the materials in violation of the covenants at the cost of the Yoders and an injunction to stop the Yoders from continuing the violation of the covenants.
On April 11, 2003, the Yoders filed an answer and a counterclaim. The Yoders subsequently voluntarily dismissed their counterclaim. A bench trial was held on July 26, 2004. At the close of Connolly’s case-in-chief, which consisted of the testimony of Philip Connolly, owner of Connolly Construction Co. and Committee member, the Yoders moved for a directed verdict. The trial court found that reasonable minds could come to but one conclusion based upon the evidence presented and that conclusion was adverse to Connolly. Accordingly, the trial court granted the Yoders’ motion for directed verdict. Subsequently, on a motion for attorney fees, the trial court determined that both parties acted reasonably in pursuing the instant action and awarded the Yoders $1.00 in attorney fees.
The Court of Appeals overturned the Trial Court decision, stating that the Yoders had notice of the Guidelines, notice of the decision denying the use of board and batten and that the notices were timely. The covenants and Guidelines were enforceableand were done so reasonably. [Full opinion]
Posted by joewest at 10:44 AM
September 20, 2005
Equitable Estoppel May Revive Northridge Earthquake Claims
Doheny Park Terrace Homeowners Association, Inc. v. Truck Insurance Exchange, B174036.
A suit against an insurer for not paying a claim related to the Northridge earthquake may be timely under the doctrine of equitable estoppel, even if not filed within either the contractual limitations period or the one-year period for revival of such claims adopted by the Legislature, the Court of Appeal for this district ruled yesterday.
Div. Three, overturning a contrary ruling by Los Angeles Superior Court Judge Carl West, reinstated a suit by the Doheny Park Terrance Homeowner’s Association against Truck Insurance Exchange.
The suit grew out of claims submitted by the association, representing owners of 21 condominium units in Beverly Hills, following the earthquake on Jan. 17, 1994. Truck concluded that the property sustained nearly $36,500, which was less than the applicable deductible, so the claim was denied.
Nine Years Later
The association took no action until nine years later, when, according to its complaint, it was advised by an expert that the earthquake damage was more extensive than Truck had determined. In April 2003, the association sued for breach of contract, bad faith, fraud, and unfair competition, although the last cause of action was voluntarily dismissed.
The association said that as a lay organization, it necessarily relied on Truck’s investigation and assessment of the damage.
Posted by joewest at 4:50 PM
September 14, 2005
Homeowner goes down with his deck
130 Cal. App. 4th 559; 30 Cal. Rptr. 3d 15; 2005 Cal. App. LEXIS 984; 2005 Cal. Daily Op. Service 5236; 2005 Daily Journal DAR 7142
Paul Nielsen, owner of Lot 64 in the Woodridge Escondido subdivision, wanted to build a 17-by-21-foot deck with a hot tub adjacent to his home in Escondido, north of San Diego.
The codes, covenants and restrictions (CC&R) required that any structures be approved by the board of directors of the homeowners association or by the architectural committee. And indeed, Mr. Nielsen obtained approval from the architectural committee.
CC&Rs
The Woodridge Escondido CC&Rs, in addition to requiring prior approval of structures, gives each lot owner the use of a 5-foot side-yard easement, but prohibits the lot owner from installing "any permanent structure other then irrigation systems" in the side-yard easement area.
A deck and hot tub
Notwithstanding the restriction against "permanent structures," the Woodridge Escondido Architectural Committee approved Nielsen's deck and hot tub in the 5-foot side-yard easement area, and remarkably, even beyond the 5-foot area - into adjoining Lot 63.
Of course, the owner of Lot 63 objected, claiming the deck and hot tub should not have been built in the 5-foot easement area, and worse yet, should not have been built beyond the 5-foot area into Lot 63.
The association board of directors concluded that the architectural committee had erroneously approved the construction of the deck and hot tub.
Duh. The board ordered both removed, offering to pay Nielsen the removal cost.
Nielsen removed the portion of the deck that went beyond his 5-foot easement, and sued the association claiming, appropriately, that the architectural committee had approved the deck, and further contending the deck was not a "permanent structure."
The court rules
Ultimately, the matter proceeded to the court of appeal. Nielsen argued it would be a hardship to remove the deck and hot tub. The court disagreed. The court then found the deck and hot tub to be a "permanent structure" precluded by the CC&R's.
Even I could have told you that.
Nielsen argued there should be a "balancing of equities," such that the hardship of removing the deck and hot tub should be balanced with the minor inconvenience to the owner of Lot 63.
Indeed, there are "balancing of equities" boundary line encroachment cases, but the court found them inapplicable because the association had no legal authority to approve any permanent structure other then an irrigation system in the 5-foot side-yard easement.
In the end, Nielsen lost and the deck and hot tub were removed.
But that's not all. Nielsen paid the association's attorneys fees as prevailing party. This case should not have been litigated.
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Jim Porter is an attorney with Porter • Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the governor's appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. www.portersimon.com
Posted by joewest at 9:36 AM
September 6, 2005
Michigan: Did Board 'Abandon' Parking Area?
CHRISTINE JAKUBOWSKI and JAMES YATES, v MEADOWFIELD CONDOMINIUM ASSOCIATION, ANN EDWARDS, JACKIE MCINTYRE, TERRY POTOK, EVELYN LATKA, and JAN ROSCZEWSKI, LC No. 2003-049960-CZ No. 253169
The Michigan Court of Appeals, in an unpublished decsion, upheld the ruling of a lower court in this case. Plaintiff Jakubowski is the owner of a unit in the Meadowfield Condominium development (“Meadowfield”), and plaintiff Yates resided with Jakubowski. According to plaintiffs, there was an unassigned general common element, i.e., a parking area, east of plaintiff’s unit. Plaintiffs used this parking area for a number of years. In August 2001, plaintiffs received a letter stating that a “no parking” sign was being erected. Plaintiffs, however, continued parking in this area. Eventually, the concrete parking area was removed, and the Meadowfield Board (“Board”) placed boulders in the area to obstruct parking. Plaintiffs filed a complaint for declaratory and injunctive relief.
The trial court concluded that the property in question was not abandoned and dismissed plaintiffs’ complaint. On appeal, plaintiff Jakubowski contends that the trial court erred in granting defendants’ motion for summary disposition. Specifically, plaintiff argues that condominium documents support her claim that the Board abandoned the parking area.
The resolution of this case depends on the construction and interpretation of the Master Deed, which provides that the Condominium Owners Association cannot, without approval of two-thirds of the owners, “seek to abandon, partition, subdivide, encumber, sell or transfer the common elements.” Neither the Master Deed nor the bylaws define the term “abandon.” The trial court relied on Hough v Brown, 104 Mich 109, 112-113; 62 NW 143 (1895), where the Supreme Court defined “abandonment” as “a relinquishment or surrender of rights or property by one person to another; a giving up; a total desertion.” Under this definition, the Board’s action, i.e., converting the parking space into a “grassy” area, did not constitute abandonment because the Board did not relinquish or give up its right or interest in this section of property. Rather, the Board merely changed the character of the property. Plaintiff, however, argues that her right to this property was relinquished when the parking area was destroyed and eliminated. The Michigan Condominium Act provides that the owner of a condominium unit, while he or she may have a fee simple interest, does not have an exclusive interest in the condominium property. MCL 559.101 et seq. Plaintiff did not have an exclusive interest in the parking space. Rather, plaintiff had the right to use the parking space in a manner consistent with the project and in a manner that would not interfere with or impair the rights of any other co-owner. Plaintiff had the same right to this area following the Board’s action of converting the parking space to a “grassy” area, which is the right to use this new area in a manner that would not interfere with or impair the rights of any other co owner. Therefore, we find that the Board’s action did not cause plaintiff’s right in this property to be relinquished. Thus, the trial court did not err in concluding that the property in question was not abandoned.
Posted by joewest at 5:21 PM
Ohio Courts and Mold
Polk v. Landings of Walden Condominium Assn., 2005-Ohio-4042
The facts pertinent to this appeal are as follows: Appellants purchased their condominium in 1989, and obtained homeowner’s insurance from appellee Lumbermens in 1990. According to appellant Herbert Polk’s deposition, between 1990 to 1997, appellants experienced persistent water intrusion problems in their unit, including leaks around the sliding doors and roof leaks around the chimney. Appellants reported these leaks to the Landings for repair.
In August 1996, Bob and Dorothy Harold (“the Harolds”), appellants’ neighbors, filed a complaint against the Landings alleging that their unit was water/mold-damaged as a result of the Landings’s failure to adequately repair the roof of their condominium.
In August 1997, at the request of the Landings, Philip R. Morey, director of microbiology and vice president of Air Quality Sciences-Building Consulting, Inc., tested the Harolds’ and appellants’ units, as well as two other units, for toxic mold. Dr. Morey testified in his deposition that he found a high level of penicilliumaspergillus and an elevated level of stachybotrys, two toxigenic molds, in appellants’ condominium. Dr. Morey recommended fixing the moisture problem in appellants’ unit, removing the fungal growth found in the basement storage room, and retesting. Dr. Morey indicated that the mold was discoverable on the date of inspection and opined that the occupants of the dwelling would have been able to see the visible mold.
In February 1998, appellant Herbert Polk stated that two representatives of the Landings, William Hauserman and Byron Krantz, came to their unit, told appellants that there was some moisture in the lower level storage room, and that they should get a dehumidifier. Both Hauserman and Krantz testified in their depositions that they specifically instructed appellants that mold was present in their unit. Hauserman and Krantz told appellants to clean the mold with bleach and to place a plastic sheet over the mold to prevent spreading. However, appellants denied that they were ever told about the presence of mold during the February 1998 meeting,
but stated that they were instructed to purchase a dehumidifier to remedy the moisture problem, which they did.
In October 1998, the Landings replaced the roof on appellants’ unit. Appellant Herbert Polk indicated that approximately two to three years before the roof was replaced, he noticed and treated about two to three times an accumulation of mildew on the outer surface of the ceiling in appellant Marilyn Polk’s office on the north side of the stairwell heading up to the third floor of the condominium.
In November 1998, Dr. Morey prepared a written report of his findings regarding appellants’ and the Harolds’ units. In January 1999, appellee Lumbermens policy period expired. In March 1999, appellants obtained insurance coverage with appellee Cincinnati. In May 1999, appellants reported water leaks around their sliding door and ultimately the gutters, flashing, and siding were replaced.
In February 2000, the Landings settled the Harolds’ lawsuit. The Harolds ran an advertisement in the local newspaper which stated that their unit was infected with toxic mold. Appellants requested Dr. Morey’s 1997 written report at that time in February 2000. Appellants again reported water from the top of their sliding door, and rotted wood was replaced in addition to repairs to the siding, flashing, and gutters.
On February 14, 2000, Nyzen Consulting (“Nyzen”) performed an inspection of appellants’ unit. On or after February 14, 2000, appellant Herbert Polk spoke with a representative from Nyzen who informed him that black mold was found in appellants’ basement. On March 27, 2000, appellants were mailed copies of Dr. Morey’s and Nyzen’s reports. In April 2000, after appellants received copies of the reports, they never returned to their condominium from their winter residence in Florida. Also, in April 2000, appellants gave notice of a water/mold claim to appellee Lumbermens and appellee Cincinnati.
In January 2001, appellants sustained a plumbing break in the second floor bathroom. According to the depositions of appellant Herbert Polk and John Telesz, a forensic engineer hired by appellants to inspect their condominium, the leak lasted for approximately four and a half days before being discovered and leaked about 62,000 to 63,000 gallons of water into appellants’ unit which caused extensive damage. Telesz testified in his deposition that he was not an expert in mold. Telesz opined that the sources of past or present moisture incursion in appellants’ unit consisted of leaks in the breezeway roof, the main roof around the chimney, around the sliding glass doors, and in the lower level shower as well as moisture infiltration through the main roof.
Pursuant to the trial court’s July 30, 2004 “Stipulation of Dismissal and Judgment Entry,” appellants settled and dismissed all claims against the Landings and Aurora; settled and dismissed all contractual claims for scheduled personal property against appellee Cincinnati and appellee Lumbermens; and settled and dismissed all claims for bad faith, lack of good faith and/or all other extra contractual claims against appellee Cincinnati and appellee Lumbermens. The trial court stated that by virtue of the foregoing settlements, all of the trial court’s prior rulings on summary judgment shall become final and appealable. It is from that judgment that appellants filed a timely notice of appeal and make the following assignments of error:
[1.] The trial court erred in finding the mold exclusions contained in the carriers’ policies precluded coverage for the water damage done to [appellants’] dwelling and unscheduled personal property and for their claim for loss of use.
[2.] The trial court erred in determining the issue of efficient proximate cause as a matter of law.
[3.] The trial court erred in holding that [appellants’] claim against
[appellee] Lumbermens for the water intrusion damages was not timely filed.
Trial Court's ruling was upheld on appeal Full Opinion
answer on June 6, 2001.
Posted by joewest at 11:46 AM
Connecticut Court: Rule clarification or amendment?
THOMAS P. WELDY ET AL. v. NORTHBROOK CONDOMINIUM ASSOCIATION, INC., ET AL.(AC 25465)
On June 27, 2003, the board, by letter, informed the condominium’s owners and residents of ‘‘new regulations to the pet rules.’’ The board cited the previously quoted language from subsection 9 (e) of the declaration and stated that the word ‘‘leash’’ was not defined. It further noted ‘‘instances where pets have caused injury to other pets’’ and the board’s ‘‘opinion [that] leashes that exceed twenty feet in length do not permit owners to control their dogs sufficiently to ensure the safety of other pets and/or unit owners.’’ According to the letter, the board, therefore, had adopted an ‘‘additional clarification pertaining to pets.’’ The ‘‘clarification’’ provided in relevant part that ‘‘[l]eashes or comparable restraints for dogs, cats or household pets shall not exceed 20 feet in length.’’
The plaintiffs own a nine and one-half year old black Labrador retriever. Prior to June 27, 2003, the plaintiffs played ball and Frisbee with and otherwise exercised their dog in a common area behind their unit. To do so, they used a leash that was seventy-five feet in length. On July 28, 2003, the plaintiffs filed this action, seeking to enjoin the defendants from enforcing the purported clarification and requesting a finding that the clarification was made without legal authority, is illegal and is of no force or effect. After the plaintiffs’ motion for a temporary injunction was denied, both parties filed motions for summary judgment. After a hearing, the court, in a memorandum of decision dated May 4, 2004, granted the defendants’ motion and denied the plaintiffs’ motion. The court agreed with the defendants that the twenty foot leash requirement constituted a clarification of an existing rule in the declaration rather than an amendment to the rules and, therefore, that the board had not exceeded its authority. It considered the board’s action to have been taken properly pursuant to subsection 9 (l) of the declaration, insofar as it ‘‘implement[ed] the intent contained in [subsection 9 (e)] that animals be ‘restrained animals.’ ’’ This appeal followed.
The Appeals Court reversed citing "We further are not persuaded that the defendants’ characterization of the board rule as a ‘‘clarification’’ of an ambiguous provision is apt. They did not implicate leash length or result from any owner confusion over the meaning of the term ‘‘leash.’’ As such, the board’s rationale that the rule change was a clarifying response to the incidents is questionable. Moreover, we believe that the meaning of the term ‘‘leash’’ is commonly understood and, further, that it is equally well known that leashes exist in varying lengths. The board rule did not clarify the meaning of ‘‘leash,’’ but instead specified a particular subset of leashes as acceptable. We conclude that the board did not clarify an ambiguous declaration provision, but rather amended an unambiguous provision."
Posted by joewest at 11:26 AM