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.

Hawaii Condo Law Blog:
- What is a comfort animal?
- Comfort animals, Part II

Housing Discrimination and Companion Animals

Fido Seeks Full Membership in the Family: Dismantling the Property Classification of Companion Animals by Statute

Prindable v. Association of Apartment Owners of 2987 Kalakaua ,United States, 304 F.Supp.2d 1245 (2003)

Auburn Woods I Homeowners Ass'n v. Fair Employment and Housing Com'n

Bronk v. Ineichen

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.

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.

[Full Opinion]

The Colorado Supreme Court last month quietly let stand a Court of Appeals decision that homeowner associations cannot be forced into arbitration by builders and general contractors. It's a huge victory for homeowner associations in Colorado, said Christopher Rhody, the attorney representing the Eagle Ridge Condominium Association in a lawsuit over construction defects.

There are an estimated 16,000 HOAs in Colorado, according to the Rocky Mountain chapter of the Community Associations Institute, an HOA trade group.

"This is an important victory for homeowners and homeowner associations," said Rhody, a partner with the law firm McKenzie, Rhody & Hearn. "What it does is allow them to have their day in court."

Rhody said Metropolitan Builders Inc., which constructed the 60-condominium project in the Grant Ranch subdivision in the southwest metro area, put binding arbitration language into the initial HOA bylaws before ground was broken. Those rules said any disputes between the builder and the HOA had to be resolved in binding arbitration.

But in 2002, when the HOA believed the condominiums had a variety of construction defects, the association voted to do away with the binding arbitration language, Rhody said. The contractor, however, argued the bylaws couldn't be changed without its permission, Rhody said.

"The association wanted to tell their story to a jury," Rhody said. "A jury of 12 is often a fairer form to hear their side than in front of a single arbitrator, who is usually chosen by the builder."

In addition, he argued it is "inherently unfair for builders to shield themselves from liability for shoddy construction before the houses are even built." He said the Court of Appeals' decision, which the Supreme Court let stand, "holds home builders responsible for their actions."

Alleged problems at Eagle Ridge were related to soil movement and water intrusion, Rhody said. Similar cases have resulted in settlements of more than $1 million, he said.

An executive at Metropolitan Homes couldn't be reached, and its law firm didn't return calls.

Roger Reinhardt, executive director of the Home Builders Association of Metropolitan Denver, on Monday said that while he isn't familiar with the facts of the Eagle Ridge case, in general he thinks arbitration is a better method for solving disputes than going to trial.

"This flies in the face of what responsible business people do," Reinhardt said. "Developers and builders try to provide for equitable relief for all sides. Binding arbitration is a logical, reasonable, economical and expeditious way of resolving disputes."

Rhody said that while he's won every battle so far, the case isn't over.

"We're back in district court where it all started," he said.

[Opinion] Word doc

Rejecting a personal injury plaintiff's claim that unit owners exercise control over common elements, simply due to their ownership interest, the Court held that

"The failure of the Legislature to provide for liability in the absence of control by condominium unit owners over the maintenance and repair of the common elements precludes the courts from imposing responsibility by implication,".

The plaintiff owns two condominium units in Wellingwood Estates. She challenged several late fees assessed against her, and argued that the defendant had also overcharged her for a special assessment. The trial court awarded her damages equal to the late fees and the excess special assessment, plus attorney’s fees. The court ordered that the individual members of the defendant’s board of directors be responsible for payment of the attorney’s fees, and that the defendant be prohibited from assessing its members for the cost of its own attorney’s fees.

The Supreme Court reversed the lower court's decision regarding the responsibility for the payment of attorney fees because the individual directors were not party to the action. The court upheld all of decisions of the lower court.

[Full Opinion]

The justices agreed to decide a pair of Michigan cases, involving a shopping-center developer and a condominium builder, that will test whether the government's use of the 1972 Clean Water Act represented a permissible exercise of Congress' authority to regulate interstate commerce.

The high court will consider whether federal regulators have gone too far by restricting development of wetlands that are not adjacent to navigable waters such as rivers or lakes.

Property-rights advocates have argued that the clean-water act covered only wetlands that physically abut traditional navigable waters. Environmentalists said the law applied to wetlands that may not have a direct connection to such waters.

The Justice Department told the Supreme Court the federal government has the power to regulate the wetlands at issue.

It said the government has had long-standing authority to protect the quality of traditional navigable waters by regulating upstream pollutant discharges, and that the law covered a wetland when there is a "hydrological connection" to nearby navigable waters, even if they do not directly abut.

In one case, a Michigan man, John Rapanos, was convicted of violating the clean-water law for filling his wetlands near Midland with sand to develop the land for a shopping center. He did not have the required permit.

The other case involved four individuals who sought to fill a wetland in Macomb County, Michigan, to build a condominium complex. The federal government denied their request for a permit under the clean-water law.

The justices will hear arguments in the two cases early next year, with a decision expected by the end of June.

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]

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.

Read entire article

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

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.

Full opinion

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.

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."

Full Opinion

.....examples suggest the important ritual and symbolic role played by the mezuzah, an object containing a scroll with words from the Torah which Jews are man-dated to place on the out-side doorpost of their homes and on interior locations. It’s a popularly observed ritual among Jews.

But if the president and board members of the Shore-line Towers Condominium Association at 6301 North Sheridan Road in Chicago have their way, no Jewish residents there will be permitted to affix a mezuzah to their apartment doorposts. Jewish condo residents, upset at being prohibited from observing a fundamental Jewish practice, have been protesting that ban for over a year. They have involved local Jewish religious and legal groups and complained to city and state bodies. Last month there was an emotional confrontation over the issue at a shiva in the building; both sides have retained legal counsel. Howard S. Dakoff, a lawyer involved in the case, has called the condo board’s actions “tantamount to anti-Semitism.”

Yet the condo board and its president — while declining to explain its actions— remains determined to forbid the mezuzah from the hallways of the building.

To see the full article