HOA, condo, & co-op case law and litigation highlights (Dec. 2018, part 2)

By Deborah Goonan, Independent American Communities

This month: a Vermont court upholds homeowner obligations to pay for common maintenance. Other case law clarifies property and fair housing rights of homeowners.

Owner Responsible For Share Of Costs To Maintain Subdivision Facilities (VT)

by Husch Blackwell LLP

Holding: The Supreme Court of Vermont held that a homeowners association, as assignee from the developer, could charge lot owners for its reasonable costs to maintain the subdivision private roads and water system, including litigation and other overhead costs.

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A homeowner withheld HOA fees, claiming they were unreasonable. the homeowner believed he should not have to pay for maintenance of all the private roads in his community, just the portion of road that he uses. Of course, the Supreme Court disagreed. This case confirms that each member of an HOA is responsible for community-wide maintenance, and that costs cannot be varied according to one’s usage of the common property. The Plaintiff homeowner will also be on the hook for the HOAs legal fees.

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You Can’t Always Get What You Want, But . . . You Get What You Need”: Determining What is “Necessary” Under the Fair Housing Act

Posted on: December 12th, 2018
By: Jake Loken & Bill Buechner

In a case citing The Rolling Stones, Henry Thoreau, and Abraham Lincoln, and listing the ingredients needed to make lemonade, the Third Circuit rejected an elderly woman’s disability discrimination claim under the Fair Housing Act.

In Vorchheimer v. Philadelphian Owners Association, 903 F.3d 100 (3d Cir. 2018), Carol Vorchheimer, an elderly woman, wanted to leave her rolling walker in her condo building’s lobby. Vorchheimer needed the walker to get around her condo and the building, but did not need it when going from the lobby to her car. Vorchheimer wanted to leave the walker in the lobby when she left to go to her car, but was provided four alternatives by the property manager for storing her walker instead of leaving the walker out in the lobby. The alternatives, however, did not satisfy Vorchheimer’s desire to simply leave the walker in the lobby.

In determining what a tenant’s needs are, the Court thoroughly discussed what the word “necessary” means, and then examined doctors’ letters detailing Vorchheimer’s disabilities and medical needs, which were exhibits to her complaint. The Court determined that Vorchheimer’s needs were “use of a rolling walker” and minimal “period[s] of unsupported standing.”

Next, the Court turned to whether the alternatives proposed by the property manager satisfied these needs. The Court found that leaving the walker out in the lobby was Vorchheimer’s want, and not a need, and that the four alternatives posed by the manager satisfied Vorchheimer’s needs of minimal unsupported standing and use of the walker when moving around the building.

For HOAs, this holding means that if a HOA offers reasonable alternatives that meet a tenant’s needs, even though they may not be the tenant’s preferred accommodations, then the existence of these alternatives will make the tenant’s preferred accommodation not “necessary.” The Sixth, Seventh, Tenth, and Eleventh Circuits have all likewise held that a plaintiff is not entitled to his or her preferred accommodation if it is not essential to having equal housing opportunities.

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“You Can’t Always Get What You Want, But . . . You Get What You Need”: Determining What is “Necessary” Under the Fair Housing Act

Sometimes a resident must compromise on a Fair Housing accommodation, especially if the HOA or landlord offers one or more reasonable alternatives to the request of the disabled resident.

Pennsylvania Man Not Entitled to Attorneys’ Fees in Homeowners Association Declaration Amendment Lawsuit

Wednesday, November 28, 2018

The Commonwealth Court of Pennsylvania ruled this month that a man from Pittsburgh is not entitled to recover attorneys’ fees and court costs from litigation he won against his homeowners association. Matthew Serota filed suit against the London-Towne Homeowners Association in 2015 after the association amended its Declaration of Covenants, Conditions and Restrictions (the “Declaration”) to allow only one vote per owner rather than one vote per home.


Pennsylvania law only allows reimbursement of attorney fees for a prevailing party in cases involving court action to collect past due assessments. Since this particular case involved voting rights, not assessments, the homeowner cannot seek attorney fees from the HOA.

(Pixabay.com free image)

Court Addresses HOA Attempt to Restrict Short Term Rentals

by Snell & Wilmer

In a recent case, the Texas Supreme Court addressed an attempt by a homeowners’ association (“HOA”) to restrict short-term rentals based upon recorded Covenants, Conditions, and Restrictions (“CC&Rs”) applicable to a residential subdivision. The property was a single-family home. The homeowner rented the home through websites such as VRBO. The HOA issued notices of violation; the homeowner kept renting; the HOA assessed fines against the property. The property owner then sought a declaration from the court that the CC&Rs did not impose a minimum duration on occupancy or leasing. The trial court agreed with the HOA. The Texas Court of Appeals also agreed with the HOA. The Texas Supreme Court reversed, holding that the CC&Rs, as properly interpreted, did not prohibit short-term rentals. In arriving at its holding, the Texas Supreme Court analyzed the CC&Rs in detail and came to an interpretation different than the trial court and the Court of Appeals.

The lesson from this case is that whether and how an HOA can restrict short-term rentals depends on a number of factors, including the specific language in the applicable CC&Rs. Another common dispute is whether a certain percentage of property owners can amend the CC&Rs to prohibit short-term rentals.


Texas Supreme Court reversed both trials and appeals courts in this case. The court agreed with the Plaintiff homeowner, that the CC&Rs of his HOA did not specifically forbid short-term rentals. Fortunately, the homeowner did not give up (or run out of money) before the Supreme Court appeal.

Wait, You Want An HOA?! Restricting Implied Common-Interest Communities

by Snell & Wilmer


Earlier this summer, the Colorado Supreme Court issued an opinion limiting the application of previous case law that allowed for the establishment of common-interest communities (and their related HOAs) by implication. See McMullin v. Hauer, 420 P.3d 271 (Colo. 2018).

Prior to McMullin, Colorado courts had been increasing the number of factual scenarios implying the creation of common-interest communities under CCIOA. See e.g., Evergreen Highlands Assoc. v. West, 73 P.3d 1 (Colo. 2003) (finding an implied obligation of landowners to fund a pre-existing HOA’s obligations); DeJean v. Grosz, 412 P.3d 733 (Colo. App. 2015) (finding an implied right of a homeowner to found an HOA after the developer filed a declaration expressing an intent to form one but ultimately failed to do so); and Hiwan Homeowners Assoc. v. Knotts, 215 P.3d 1271 (Colo. App. 2009) (finding the existence of an HOA despite no common property existing within the development).

The McMullin opinion highlights the importance of strict compliance with CCIOA to preserve common areas in a development, ensure the ability to fund maintenance of such areas, and avoid future litigation.

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A previous landowner failed to properly create an HOA to own and care for a 17-acre parcel of common land. Although some previous case law allowed for the “implied” creation of an HOA,
Colorado Supreme Court said that no HOA could be created out of thin air. The court cited the several facts: the landowner did not name an HOA, did not clearly define the common property, or create a written covenant mandating payment of HOA fees to maintain the parcel.

Potential MRTA revitalization challenge (FL)

FMG Law Blog Line
Archive for the ‘HOA’ Category
New Florida Law Change Allows Property Owners to Challenge Lapsed Covenants
Posted on: November 30th, 2018

By Melissa Santalone

A recently enacted section of the Florida Statutes allows property owners to seek court intervention to prevent their community associations from revitalizing lapsed covenants and restrictions as to their parcels. Property owners can commence an action for judicial determination that any revitalization of those covenants or restrictions as to the property owners’ parcels would “unconstitutionally deprive” the property owners of rights or property. Fla. Stat. § 712.12(3), enacted in March and effective as of October 1, 2018, is a new section of the Marketable Record Title Act (MRTA) and allows homeowners to bring these actions until October 1, 2019.

Property owners that take advantage of this new right of action can only challenge covenants and restrictions that community associations have allowed to lapse on or before October 1, 2018. If such a property owner is able to obtain a court order or judgment under this section declaring that revitalization of the covenant or restriction would unconstitutionally deprive him or her of rights or property and the covenant or restriction is revived, the covenant or restriction may not alter the rights of the property owner without his or her consent.

This change in the law could result in fascinating litigation in the Florida courts. Under MRTA, community associations’ covenants and restrictions, if not properly preserved or revitalized, are extinguished after 30 years. Therefore, under the new addition to MRTA, it would be possible for a homeowner in a community that has inadvertently let its covenants lapse to go to court and ask that his property not be subject to any community assessments, even if such a covenant imposing them is revived. The end result could leave community associations with fewer resources to manage the same shared property.

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New Florida Law Change Allows Property Owners to Challenge Lapsed Covenants

A Georgia attorney’s interpretation of Florida statute, and its potential for litigation to prevent homeowners from reviving expired Covenants, Conditions, and Restrictions (CC&Rs). The attorney notes that Covenants can also expire in California and parts of Georgia. But note that the perspective of the attorney is to preserve the CC&Rs and the HOA, rather than preserving the rights of property owners to be rid of the CC&Rs and the HOA to enforce them.

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