HOA, condo & co-op case law and litigation highlights (Jan. 2020)

By Deborah Goonan, Independent American Communities

This month: Civil Rights, Fair Housing HOA lawsuits in California and Colorado; prevailing party attorney fees; unelected HOA board


Two homeowners file Civil Rights complaints, but only one homeowner wins

Case #1: HOA removes mezuzah from door post

In December (2019), California Department of Fair Employment and Housing (DFEH) announced a settlement between a condominium owner, the Treo @ Kettner Homeowners Association, and its management company, Action Property Management, Inc.

The owner filed her complaint in June 2019, alleging housing discrimination and violation of Unruh Civil Rights Act.

According to the complaint, beginning in June 2018, the HOA and management company notified the owner that the covenants and restrictions for the 326-unit housing complex would not allow the display of a mezuzah on her door post.

The homeowner explained that the mezuzah is to be displayed at the front entry of the home for observant Jews. But when she refused to take down the mezuzah, someone from the HOA physically removed it in July 2018.

The Treo board members erroneously believed their CC&Rs should overrule fair housing and civil rights laws at the federal and state levels.

The parties participated in DFEH Mediation to resolve the homeowner’s complaint. The HOA will pay $40,000 in damages, attorney’s fees and costs. The HOA also agrees to amend its CC&Rs to allow display of religious objects on the door post or door frame.

In July 2019, Governor Newsom signed new legislation, SB 652, which requires HOAs to allow display of small religious objects, such as mezuzahs, on the door frame or door post.


DFEH Settles Religious Discrimination Case Against San Diego County Homeowners Association
HOA to change its CC&Rs and pay $40,000 after mezuzah removed from homeowner’s doorframe


Case #2: HOA requires garage inspection before issuing on-street parking permits

In 2011, David Merritt, a former HOA board member, and his wife, Salma, sued their Sunnyvale HOA, Classics at Fair Oaks (Classics), as well as three of its board members, Chetak Gandhi, Wayne Brown, and Ying-Chi Lee.

The dispute centered on CC&Rs involving parking restrictions at the Classics. The HOA’s parking policy requires residents to pay for an obtain a permit for each vehicle parked on the street vs. in the garage of each residence.

Merritts had a 2-car garage, but only parked one car inside it. The Merritts explain they can only park one care in the garage, because Salma is disabled, and needs additional space to enter and exit the vehicle when it is parked inside the garage.

CC&Rs for the Classics also give the HOA the authority to inspect a resident’s garage prior to issuing a permit for on-street parking. In order to issue a parking permit, HOA rules require two vehicles to be parked in a 2-car garage. The Merritts argued that allowing the HOA to inspect their garage was a violation of privacy and their civil rights.

By not allowing them to park freely on the street in front of their house, the Merritts also claimed the HOA was violating the Americans with Disabilities Act.

(Apparently, the Merritts did not file a Fair Housing claim against the HOA. Assuming the owners could document Salma’s disability, a Fair Housing claims might have been more appropriate.)

The lower and appellate courts both ruled in favor of the Association, citing Merritt as a vexatious litigant. Because the HOA prevailed on this long-running lawsuit, the Merritts were ultimately ordered to pay $220,000 to the HOA for its reasonable attorney’s fees.


Homeowner Associations, Section 1717: $220,000 Fee Award To HOA Under CC&Rs Fees Clause Was Proper
California Attorney’s Fees | December 24, 2019

Merritt v. Gandhi, Case No. H043615 (6th Dist. Dec. 20, 2019) (unpublished)


HOA must pay $50,000 for denying resident’s assistance animal

U.S. attorney’s office, District of Colorado, ordered the Creekside Condominium Homeowner’s Association to pay $50,000 to homeowner Jason Neilson and his partner Kirsten Swick.

Aspen’s Creekside is a no-dog condominium community.

However, Kirsten Swick has an emotional support animal, as recommended by her physician and mental health provider. The dog helps alleviate Swick’s symptoms of depression and anxiety.

Even after Neilson and Swick provided adequate medical documentation, Creekside HOA refused to make a fair housing accommodation for Swick’s dog, forcing her to live elsewhere for several months.

It’s another example of an HOA’s ignorance and of, or refusal to acknowledge, mental illness as an invisible disability.

When a resident can document a need for a support or service animal, the HOA will almost always lose a Fair Housing lawsuit.


Aspen couple to get $50K after dog housing lawsuit
By THE SENTINEL-January 10, 2020

Snowmass Village HOA illegally banned a resident’s service dog, is ordered to pay victim $50,000
By KIERAN NICHOLSON | knicholson@denverpost.com | The Denver Post
PUBLISHED: January 9, 2020 at 9:53 pm | UPDATED: January 12, 2020 at 1:19 pm


As prevailing parties, former condo owners entitled to reimbursement of attorney fees

Two condo owners disputed their HOA’s lawsuit against them, seeking to collect unpaid assessments. While the matter was still pending in court, the owners sold their condo and moved out. The HOA’s suit was dismissed a year later for lack of prosecution.

The former condo owners filed a claim to recover their attorney’s fees. The Circuit court denied their claim, on the grounds that the owners had already sold their property.

But the Appellate court reversed the denial and remanded the case to the lower court to award reasonable attorney fees.

Appellants were represented by Lourdes E. Ferrer of the Ferrer Law Group, PLLC, Weston, and Michael T. Ross of the Law Office of Michael T. Ross, P.A., Hollywood.


Tison v. Clairmont Condo. F Ass’n


Owners cannot escape legal fees in HOA lawsuit started by unelected board

Property owner Gregory Ferguson was sued by Channel View East Condominium Association in 2005, for his failure to complete construction of his home within 12 months. (Construction commenced in 2003.)

The developer-controlled association board members continued to serve, and failed to hold an annual meeting of members, to begin electing one or more representatives to the the condo board.

No one in the condo association challenged the developer-appointed board to demand an election.

The HOA fined Ferguson, who eventually owed more than $137,000 to the condo association. When Channel View East filed for foreclosure, Ferguson argued that he had no obligation to pay fines and fees, since the condo board was invalidly held over by the developer, who never held an election per the bylaws.

The trial court agreed with Ferguson. The HOA appealed.

In an unpublished opinion, the Appellate Court reversed the trial court’s ruling, arguing that Michigan statute gives the board the authority to carry on the corporation’s business until a new board is elected.

Put another way, if an election is not strictly required, any group of board members previously elected or appointed can continue to reign over the community, and wreak havoc  unchecked, until a sufficient number of owners care enough to push for an election?

That seems to leave plenty of room for self-ordained HOA dictators to abuse the trust of its members.


Directors Serve Until Someone Else is Elected
August 14, 2019 By Meisner Law Group

Channel View East Condominium Association v. Ferguson

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