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December 22, 2005
Attorney's Letter to ARC Petitioner (also an attorney) Is Not Libel
Christopher P. Ruiz v. Harbor View Community Association (CA Superior Court No. 04CC07385) Full opinion PDF
Plaintiffs’ house was on one of over 523 lots in a development governed by HVCA, a nonprofit mutual benefit corporation. HVCA was formed in 1968 to provide “community services and recreational facilities for the general use, benefit and welfare of the owners . . . of residential lots situated within” that development. Among its purposes was “[t]o examine and approve plans and specifications for dwelling houses and other structures and improvements to be erected within . . . [the development] or the modification, and/or alteration thereon and/or additions thereto.” HVCA’s board of directors (the Board) is vested with the exercise of its corporate powers and with control over HVCA’s business and affairs.
Plaintiffs’ house was, as were the others in the Harbor View development, subject to a declaration of covenants, conditions and restrictions (CC&R’s) recorded on September 30, 1968 and thereafter amended several times. The CC&R’s established architectural controls over the development enforced by an architectural committee appointed by the Board. Under the CC&R’s, “[n]o building, fence, wall or other structure shall be commenced, erected or maintained . . . , nor shall any exterior addition to or change or alteration therein, including exterior colors, trim, windows, roofing, patio covers and antennas, be made until the plans and specifications showing the nature, kind, shape, height, materials and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Architectural Committee.”
Plaintiffs complaint alleges nine causes of action against HVCA and seeks, among other things, a declaration that the denial of their conceptual plans was “improper, unequitable [sic], unreasonable, arbitrary and in bad faith” and that HVCA is barred or estopped from enforcing the architectural guidelines. The sixth cause of action, brought only by Ruiz, seeks damages for libel and alleges the July 11 letter and the October 15 letter are libelous on their face. On September 2, 2004, HVCA filed its anti-SLAPP motion. Although directed particularly to the sixth cause of action, the motion moved to strike all “such causes of action pleaded against defendant arising out of acts by defendant in furtherance of its right of petition or free speech . . . in connection with a public issue.”
The trial court denied the anti-SLAPP motion on the ground HVCA “failed to meet its burden of making a prima facie showing that the two letters which form the basis for plaintiffs’ [sic] libel claim are covered by CCP[section] 425.16.” HVCA appealed.
On appeal, the Superior Court held that both letters were protected under the anti-SLAPP statute and the second letter was not defamatory.
Posted by joewest at 5:14 PM
December 16, 2005
Companion Pets
Pets are the second "P" in the list of association problems (Parking, Pets and People). Recently, "companion pets" have been in the news as people who have legitimate needs and people who just want to skirt rules have challenged association "No Pet" rules. Richard Ekimoto, in his Hawaii Condo Law blog, began the discussion of this issue, and we've picked it up with some additional research. Following is a listing of articles and cases regarding "companion pets":
Hawaii Condo Law Blog:
- What is a comfort animal?
- Comfort animals, Part II
Housing Discrimination and Companion Animals
Auburn Woods I Homeowners Ass'n v. Fair Employment and Housing Com'n
Housing Authority of the City of New London v. Tarrant
In re Kenna Homes Cooperative Corporation
Janush v. Charities Housing Development Corp
Majors v. Housing Authority of the County of DeKalb Georgia
Nason v. Stone Hill Realty Association
Whittier Terrace Associates v. Hampshire
Right To Emotional Support Animals In "No Pet" Housing
Joyce Grad v. Royalwood Cooperative Apartments and Schostak Brothers & Co.
One cooperative-two cases:
From the Michigan Bar Animal Law Newsletter -
"In the Winter 2005 issue, we reported on the case of Michigan Dep’t of Civil Rights ex rel Emmick v Royalwood Cooperative Apartments, Inc, Mich Dep’t Civil Rights No. 268485 (2004). In Emmick, the Michigan Department of Civil Rights obtained an award in favor of a co-op owner in a dispute over her companion animal. Th e defendant appealed to Oakland Circuit Court, where Judge Fred Mester confi rmed the award of $45,000 in damages but reduced the attorney’s fees to $38,730. The defendant filed a claim of appeal to the Michigan Court of Appeals, but it was dismissed for procedural reasons. Royalwood then filed a delayed application for leave to appeal. At the same time however, it moved for reconsideration of Judge Mester’s ruling. At press time, the motion for reconsideration had not been decided. In a very similar case against the same defendant, United States v Royalwood Cooperative Apartments,(ED Mich, docket no. 2:03-cf-73034-ADT), another former Royalwood owner prevailed in a jury trial in the United States District Court for the Eastern District of Michigan. Joyce Grad asked for a waiver of the co-op’s “no pets” policy so she could get a dog, to help alleviate the severe depression she suffered as a result of bipolar disorder. She provided letters from a psychologist and a psychiatrist, but the co-op board denied her request. Grad moved to a more expensive apartment. At the suggestion of the Michigan Protection & Advocacy Service, she filed a complaint under the Fair Housing Act, alleging that the co-op failed to make a “reasonable accommodation” of her disability. The complaint also named the property management company, Schostak Brothers and Company, and the property manager, Richard Cail. The defendants moved the case to federal district court. In order for the plaintiff in a disability discrimination case to prevail, she must establish a “handicap” or “disability,” defined as a physical or mental impairment that “substantially limits” a “major life activity.” 42 USC § 3602 (h)(1). Grad argued that she was disabled because her depression interfered with her ability to sleep and work, both of which had been defined as “major life activities.”(1) After a six-day trial before Judge Anna Diggs Taylor, the jury found in favor of the plaintiff and awarded her $14,209 in actual damages and $300,000 in punitive damages. Judith E. Levy, of the United States Attorney’s office in Detroit, represented the plaintiff . After the verdict, she moved for a permanent injunction that would require Royalwood to modify its rules to accommodate requests for service or “emotional support” animals; to send the co-op board and the property manager to a training program on housing and disability laws; and to permit Grad to visit other residents at Royalwood with her dog. Grad also requested attorney fees in a separate motion. The post-trial motions are scheduled for hearing in June. After judgment is entered, Royalwood is expected to appeal to the United States Court of Appeals for the Sixth Circuit.
(1)See, e.g., Pack v Kmart Corp, 166 F3d 1300(CA 10, 1999) (sleep); Miller v Wells Dairy, Inc 252 FSupp2d 799 (ND Iowa, 2003)(work) (construing Americans with Disabilities Act, 42 USC 12102(1)(A)).
We'll post more as it arrives.
Posted by joewest at 1:37 PM
December 6, 2005
NJ: Capital Contribution on unit sales violates NJ Condo Act
MICHEVE, L.L.C. v. WYNDHAM PLACE AT FREEHOLD CONDOMINIUM ASSOCIATION a1014-04
The question presented by this appeal is whether a condominium association may impose a non-refundable capital contribution fee whenever there is a transfer of title to a condominium unit. We conclude that such an imposition violates the provisions of the Condominium Act, N.J.S.A. 46:8B-1 to -38, which require the common expenses for maintenance of a condominium's common elements to be charged to all unit owners.
Defendant is a condominium association subject to the provisions of the Condominium Act. Those provisions include N.J.S.A. 46:8B-17, which requires a condominium association's "common expenses" to be "charged to unit owners according to the percentage of their respective undivided interests in the common elements."
In April 2002, defendant's Board of Directors adopted a resolution which provides that "[u]pon acquisition of title to a unit, the unit owner shall pay to the Association a one time non-refundable working capital contribution of $750." The same resolution also requires payment of "a one time processing fee of $125.00" upon acquisition of title to any condominium unit.
In March 2003, plaintiff acquired title to one of the units within defendant's condominium complex by a sheriff's deed. In June 2003, plaintiff resold the unit to a third party. At closing, defendant required plaintiff to pay various charges, including both the $750 non-refundable working capital contribution and the $125 processing fee established by the April 2002 resolution.
Plaintiff subsequently brought this action seeking recovery of the $750 capital contribution. Plaintiff brought the case before the trial court by motion for summary judgment. The court concluded that the $750 capital contribution, assessed only on new purchasers of condominium units, violated the Condominium Act and defendant's master deed and by-laws. Accordingly, the court entered judgment requiring defendant to refund this assessment to plaintiff.
Posted by joewest at 5:32 PM