Notable HOA lawsuits (September 2019)

By Deborah Goonan, Independent American Communities


From construction defects to wrongful death claims to Fifth Amendment “takings” lawsuits, this month’s post highlights HOA lawsuits that run the gamut.


Texas homeowners stuck with malfunctioning HOA septic system

Imagine building your dream home, expecting to be connected to a public waste water system, only to find out the developer built an on-site sewage facility (OSSF) instead.

And, according to a lawsuit filed by residents against their developer, the OSSF isn’t operating properly, causing health and environmental hazards. To fix the problems and replace dead trees in the septic field will cost the HOA millions, with costs passed along to homeowners.

No wonder Villas at Timberwood Homeowners Association is suing its developer, Chesmar Homes, and related affiliates.


Residents suing developer, home builder over ‘sewage nightmare’ in far north Bexar County
Lawsuit claims fraud, negligence, deceptive trade practices
By Dillon Collier – Investigative Reporter, Josh Saunders – Photojournalist
Posted: 9:25 PM, September 17, 2019Updated: 3:31 AM, September 18, 2019

FL court cracks down on condo association for “transfer fee” overcharges

A class-action lawsuit win by Plaintiffs Joshua and Allison Kobasky against The Plaza 851 Brickell Condominium Association, could be a game changer.

The court ruled that Plaza condo association must repay hundreds of residents who paid transfer fees in excess of $100, the maximum fee allowed by state law.

The Miami Herald previously exposed the widespread practice of fee overcharges by condo associations throughout the city.

Obviously, the Kobasky class-action win opens the door for other condo residents to file similar lawsuits against condo associations that took advantage of a housing shortage to overcharge buyers and tenants for application and move-in fees.

No doubt, the condo/HOA industry will immediately start lobbying for raising the statutory limit above its current cap of $100.

Condo boards ‘fatten coffers’ with illegal fees. Residents just won a class-action settlement
SEPTEMBER 17, 2019 05:00 AM, UPDATED SEPTEMBER 20, 2019 03:12 PM

Image courtesy of (3D illustration by Quince Media)

Condo owners sue City of Duluth on “takings” claim (MN)

Steven Bystedt and Carrie Lee Heikkila are joint owners of a downtown condo adjacent to the 11-story building owned by Maurices clothing store. The couple purchased their unit prior to construction of the private-public mixed use building and its parking garage.

Up until 2014, the owners enjoyed views of Lake Superior from their windows. After the joint development project — between Maurices and the City  — was complete, Bystedt and Heikkila not only lost their beautiful views. They also had to endure the constant rumble of cars entering and exiting the parking garage, and headlights flashing in their windows.

Blinds now cover their large picture windows, and residents cannot escape the din of parking garage traffic and the neighboring building’s air handlers.

Not surprisingly, the owners now seek compensation for the reduced market value of their condo.

The pair originally sued both Maurices and the city of Duluth. But Tenth Judicial District Judge Suzanne Bollman threw out the complaint against Maurices, because, she explained, a private corporation isn’t government. Therefore, it can’t be sued for “taking” private property for public use.

The lawsuit against the city of Duluth still stands. And it certainly appears the condo owners have a valid case.


Duluth condo-owners sue the city for ruining their view (MN)
Tuesday, September 10, 2019 by Hannah Jones | City Pages

Blaine County sues HOA over public access rights to Big Wood River (ID)

Here’s another example of conflicts that result when local governments allow developers to build communities directly adjacent to public parks and attractions.

Flying Heart Ranch is a planned community on the Big Wood River. The Boise HOA is supposed to allow public access to the river, by way of Aspen Lakes Drive. But some homeowners complain that when visitors park near the river access point, they litter  or enter upon private property to forage for mushrooms.

Their solution? To put up “No Parking” signs and tow vehicles that don’t belong to Flying Heart Ranch residents.

That’s not cool with Blaine County officials. Commissioners say they have a duty to protect the public’s right to access the river, granted by an easement on Flying Heart Ranch property.

After getting nowhere on the issue with the HOA board, the county voted to sue the Association, to force them to allow public access to Big Wood River.


Blaine County Moves Forward With Lawsuit Against HOA (ID)
By RACHEL COHEN • AUG 7, 2019 | Updated post 9/23/19

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After violent in-home invasion, widow files wrongful death lawsuit against her HOAs (LA)

Many private communities are surrounded by a barrier — either a wall or a fence — with gated access to enter. Homeowners and tenants often choose such communities for the perceived added security.

But what if the HOA doesn’t maintain its multiple-layer security system?

Alyssa Kidd’s husband, Sgt. Joshua Kidd, 30, was fatally wounded when two criminals entered their garage. In the months prior to that incident, the community had a history of car break-ins and burglaries.

Kidd’s widow recently filed a wrongful death lawsuit against the two nested owners’ associations in her community.

The legal complaint states that criminals had entered the Greenacres Place subdivision in Bossier, numerous times, by cutting through the subdivision’s perimeter fence.

The new lawsuit also alleges that GreenAcres Place Homeowners Association and Carriage Quarters Condominium Association, and their insurance companies, knew about breaches with the community’s security fence for “some time,” but the HOAs took no action to correct the problem.

This isn’t the first homeowner lawsuit against an HOA for failing to provide adequate security.

A family in North Las Vegas sued their HOA after their daughter was shot and killed by known gang members in their community. An HOA in Tennessee faces a lawsuit brought by the parents of 4 shooting victims at a birthday party in the community’s clubhouse. And the mother of a murder victim in a Florida condominium sued the association for failing to protect the safety of its residents.

All very tragic situations, which remind housing consumers that gated communities are not necessarily more secure than non-gated communities.


Slain airman’s wife files wrongful death lawsuit against HOA’s (LA)
Vickie Welborn | KTBS 3 On Your Side
Sep 13, 2019

Judge allows Texas homeowners’ group more time to build case against developers of their HOA-governed community (TX)

La Bota Ranch has been under developer control for 25 years, and, according to the lawsuit, that control can continue for another 40 years. Homeowners complain that the family who owns and developed their subdivision continues to raise HOA fees, while reducing maintenance services and neglecting the amenities.

Because the developer has failed to turn over financial records as requested by the Plaintiffs, the court has decided to give legal counsel more time to gather evidence to make their case.

For more details, see previous post about La Bota Ranch on IAC.


More time granted for residents in La Bota Ranch suit
By Lisa Dreher, / Laredo Morning Times
Published 5:00 pm CDT, Friday, September 6, 2019


Georgia family files racial discrimination complaint against their HOA

A Hispanic family from Georgia filed a Fair Housing complaint against Pointe West HOA of Oakwood. The homeowners (Martin Moreira and wife Zulema) allege that the HOA’s Architectural Committee repeatedly denied them approval to add a back yard retaining wall and play equipment.

The Moreiras say the HOA allowed other homeowners to install similar equipment and retaining walls, and allege that they were harassed and treated differently by the HOA because of their race and religious background.

Martin Moreira’s family immigrated from Cuba. His wife, Zulema, is from Argentina.

The homeowners filed their complaint after the HOA ordered them to cease construction of their backyard getaway, then imposed fines and filed a lien against the Moreira’s property.


HOA Dispute Over Backyard Playset, Other Amenities Snowballs Into Federal Lawsuit
A dispute over the installation of a backyard playset, spa pool, barbecue and other amenities in a Georgia community has escalated into a federal lawsuit alleging violations of the Fair Housing Act due to discriminatory housing practices.
Daily Business Review
By Laura Manning-Hudson | August 30, 2019 at 09:20 AM

Residents’ dispute with HOA brings liens, fines and charges of unfair treatment
Joshua Silavent | Gainesville Times
Updated: May 4, 2019, 5:32 p.m.


Judge: Homeowners must replace their “wood look” roof shingles with real wood

After a long 6-year legal battle, a judge rules in favor of the homeowners’ association.

Several homeowners involved in this lawsuit installed synthetic wood-look rubber roof shingles, but Blackburne Creek HOA restrictive covenants require real wood shingles.

Synthetic roof shingles look just like wood, and they’re more durable. But, according to Alberta Court of Queen’s Bench Justice Michael Kraus, the rules are the rules.

Now each of the homeowners must pay for a new wood shingle roof, plus their share of legal fees.


Homeowners ordered to replace roofs after failing to follow neighbourhood rules
Matthew Black, CTV News Edmonton
Published Tuesday, September 3, 2019 5:36PM MDT
Last Updated Friday, September 6, 2019 9:14AM MDT

Public Library fights back against HOA fines over Little Free Library (DE)

After months of attempts to settle its dispute with Five Points HOA, Lewes Public Library is suing the Association, asking the court to reverse $6,000 in fines imposed by Five Points. The HOA objects to Lewe’s Little Free Library, which it place on a land parcel donated by the HOA several years ago.

The HOA maintains the structure was added without approval from its Architectural Committee. (See previous IAC posts for details.)

But the real reason for the dispute goes deeper. Five Points HOA wants its land back, saying they only donated the parcel under the condition that a new library would be built on the site.

Now that the new public library has been built elsewhere, the HOA objects to Lewes Library’s small construction project.

The Library’s lawsuit says, according to deed restrictions, its Little Free Library ensures it can continue to own the parcel. And it wants the court to weigh in on the dispute, and order the HOA to back off.


Lewes Public Library files suit against Five Points over land dispute
Taylor Goebel, Salisbury Daily TimesPublished 9:00 a.m. ET Sept. 4, 2019

We the people Constitution
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Court rules POA’s attempts to get around CC&Rs are unconstitutional (MS)

The planned community of Diamondhead incorporated as a city more than a decade ago. But the property owners association continued to live on.

However, Diamonhead’s covenants and restrictions are set to expire in 2020. When that happens, the POA will begin to lose its authority to collect mandatory assessments and fees from homeowners in several phases of the community.

Desperate to hang onto its power, the POA filed a legal action, asking the court to allow the POA to make it easier to amend its governing documents.  The POA proposed lowering the percentage of members to approve changes.

However, a Mississippi Court recently ruled the change was unconstitutional. The outcome was not unexpected.

Critics of the current POA board say the lawsuit was a waste of money, and that the Association’s time would have been better spent seeking viable alternatives to fund its amenities beginning in 2020. ♦


DHCC&POA Violated Members’ Constitutional Rights – Chancellor Carter Bise

Excerpt of Judge Bise’s opinion:

“Alternatively, the court further finds that because substantive rights would be affected as to all 4,759 lots, because the owners purchased these lots based upon actual or implied knowledge of and reliance upon these restrictive covenants and the 85 percent super majority to protect their properties, to act without due process notice to these owners would be to unconstitutionally deprive them of their substantive and procedural due process right of access to the judicial system to protect valuable property rights such as the arbitrary decision to change the 85 percent super majority to a 60 percent majority of those who appear. For these reasons, the request for declaratory relief is denied.”  – Chancellor Carter Bise

Build A Real City

DHCC&POA Picks Up Legal Bill For Board Members’ Suit


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