Condominiums and Homeowners Associations

Condominium’s policy of segregating pool hours by gender violates fair housing laws

/ Antidiscrimination Law, Condominiums and Homeowners Associations, Fair Housing Act

The Third Circuit held that a condo association that adopted sex-segregated pool hours to accommodate its Orthodox Jewish residents in an “over-55” age-restricted condominum violated the Fair Housing Act both by denying access to the common area based on sex and by giving women only 3.5 hours to swim on weeknights compared to 16.5 hours given to men. Curto v. Country Place Condominium Ass’n, 921 F.3d 405 (3d Cir. 2019). It did not matter that the motive was benign; what mattered was the denial of access to common areas on the basis of sex on unequal “terms, conditions, or privileges of sale or rental of a dwelling,” 42 U.S.C. §3604(b). The Court did not reach the question of whether sex-segregated hours might be lawful if equal time was provided to men and women but a concurring Judge Julio Fuentes did, arguing that any limit on access would be discriminatory.

Short term rental use held not to violate covenant prohibiting “commercial activity”

/ Condominiums and Homeowners Associations, Real Estate Transactions, Servitudes

The courts continue to split on this question with the majority holding use of property for short-term rental (such as vacation rental or Airbnb use) is a residential rather than a commercial use. The Wisconsin Supreme Court has joined the courts that have found short-term home rentals to be consistent with a covenant prohibiting “commercial activity.” Forshee v. Neuschwander, 914 N.W.2d 643 (Wis. 2018). The court noted that “[p]ublic policy of the State of Wisconsin favors the free and unrestricted use of property…Accordingly, restrictions contained in deeds and in zoning ordinances must be strictly construed to favor unencumbered and free use of property. Consequently, in order to be enforceable, deed restrictions that limit the free use of property must be expressed in clear, unambiguous, and peremptory terms.”

Airbnb use held to be consistent with covenant restricting property to residential use

/ Condominiums and Homeowners Associations, Consumer Protection, Servitudes

Courts have divided on the question of whether short-term rentals violate restrictive covenants limiting land to residential purposes. The Texas Supreme Court just joined the majority that hold that use of property for Airbnb and similar short term rentals is residential use consistent with the covenant. Tarr v. Timberwood Park Owners Ass’n, 2018 Tex. LEXIS 442 (Tex 2018). But see Vonderhaar v. Lakeside Place Homeowners Ass’n, 2014 WL 3887913 (Ky. Ct. App. 2014) (finding short-terms rentals to be closer to hotel use and thus commercial in nature).

Condo owner may be liable for wrongful death of neighbor when he rented his unit to his brother knowing he was a dangerous sex offender

/ Antidiscrimination Law, Condominiums and Homeowners Associations, Nuisance

A court has held that a landlord may be liable for wrongful death of a neighboring condo owner if he rents his unit to his brother, knowing he is a sex offender who often stops using needed medication and is capable of violent outburst when he did not use his medication, fails to warn the neighbors of his presence, and the landlord’s brother kills a neighboring owner.  Steele v. Kings Way Condominium Trust, 2018 Mass. Super. LEXIS 103 (Mass. Super. Ct. 2018).

Owners must continue to pay homeowners association fees to maintain private roads even after all other covenants terminate

/ Condominiums and Homeowners Associations, Consumer Protection, Easements, Real Estate Transactions, Servitudes

A Massachusetts court has held that owners in a homeowners association that have access to shared private roads must continue to pay fees to the association to maintain those roads even after all other covenants terminate. Meadowview Heights Homeowners Ass’n, Inc. v. Chosse, 2018 Mass. App. Div. 54, 2018 Mass. App. Div. LEXIS 14 (Mass. Dist. Ct. App. Div. 2018). The court found that the assessments were not covenants subject to a termination clause but were implied obligations to share in the burden of maintaining a common benefit in the private roads that arose as an equitable servitude and implied contract.

Courts debate whether short term rentals (like Airnbnb) violate restrictive covenants limiting property to “residential uses”

/ Condominiums and Homeowners Associations, Real Estate Transactions, Servitudes

Some courts hold that short term rentals (such as Airbnb rentals) violate covenants that restrict the property to “residential use,” finding short-terms rentals to be closer to hotel use and thus commercial in nature. Vonderhaar v. Lakeside Place Homeowners Ass’n, 2014 WL 3887913 (Ky. Ct. App. 2014) Other courts find short term rentals to be compatible with “residential use” and not a violation of such restrictive covenants at all. Wilkinson v. Chiwawa Communities Ass’n, 327 P.3d 614 (Wash. 2014); Santa Monica Beach Property Owners Ass’n v. Acord, 219 So.3d 111 (Fla. Dist. Ct. App. 2017)

Retroactive restraints on leasing in homeowners associations

/ Condominiums and Homeowners Associations, Estates and Future Interests, Leaseholds, Real Estate Transactions, Restraints on Alienation, Servitudes

The courts continue to divide over the question of whether it is fair to allow homeowners associations to impose retroactive restraints on leasing on existing owners who purchased with no notice of the restriction. While most states allow this, a few do not, and the Restatement (Third) of Property (Servitudes) §6.10(2), §6.10 cmt. g, takes the position that such major changes in property rights can only be accomplished prospectively unless there is a unanimous vote to alter those rights. The Idaho Supreme Court recently adopted what appears to be the majority approach, authorizing a homeowners association to retroactively prohibit existing owners from agreeing to short term rentals of less than six months. Adams v. Kimberley One Townhouse Owner’s Ass’n, 352 P.3d 492 (Idaho 2015). In contrast, the Supreme Court of Washington refused to allow retroactive restraints on short term rentals in Wilkinson v. Chiwawa Commties. Ass’n, 327 P.3d 614 (Wash. 2014), requiring unanimous approval for such …

Retroactive restraints on leasing in homeowners associations Read More »

Legal consequences of the distinction between affirmative easements and restrictive covenants

/ Condominiums and Homeowners Associations, Easements, Real Estate Transactions, Servitudes, Trespass

Massachusetts statutes regulate the enforceability of “covenants” by limiting the circumstances in which they can be enforced, defining when they can be enforced by damages only and not injunctive relief, and subjecting enforcement to a 6 year statute of limitations. Mass. Gen. Laws ch. 184 §23A, §30.  In a recent application of those statutes, the Massachusetts Appeals Court ruled in BP Watertown Retail, LLC v. Home Depot U.S.A., Inc., 2016 WL 513955 (Mass. App. Ct. 2016), that these limitations do not apply to affirmative easements; rather they apply only to restrictive covenants. So when an owner of a store in a shopping center engaged in construction in a shared parking area, eliminating several parking spaces, its actions did not merely violate the restrictions on construction in the parking area but interfered with access to the parking area by other easement beneficiaries who had a right to use the parking lot without …

Legal consequences of the distinction between affirmative easements and restrictive covenants Read More »

Retroactive restraint on short term leasing by homeowners association upheld by Idaho Supreme Court

/ Condominiums and Homeowners Associations, Consumer Protection, Leaseholds, Real Estate Transactions, Restraints on Alienation, Servitudes

When a homeowner’s association voted to amend the declaration of covenants, conditions, and restrictions to prohibit short term leasing of units (rentals for less than six months), one of the townhouse owners sued to declare the retroactive restraint on alienation invalid. However, the Idaho Supreme Court found the retroactive restraint to be valid; it neither constituted an unreasonable restraint on alienation or exceeded the scope of the powers of the association to amend the declaration retroactively. Adams v. Kimberley One Townhouse Owner’s Ass’n, 352 P.3d 492 (Idaho 2015). The court held that the amendment to the declaration was merely an interpretation of what it meant to devote the property to single-family residential purposes and thus could not be unduly surprising to the owner. Moreover, the association had the power to amend the covenants and that amendment power subjected the individual owner to retroactive changes in ownership rights. While some courts would …

Retroactive restraint on short term leasing by homeowners association upheld by Idaho Supreme Court Read More »

New Jersey Supreme Court confirms state constitution’s grant of free speech rights to enable a coop owner to disseminate written information to co-owners

/ Condominiums and Homeowners Associations, Consumer Protection, Free Speech, Trespass

While the US Constitution’s free speech provisions in the first amendment apply only to state action, both California and New Jersey have interpreted their state constitutions to grant individuals free speech rights in some cases in relation to private parties. In both states, citizens have the right to distribute leaflets in shopping centers. In Dublirer v. 2000 Linwood Avenue Owners, Inc., 2014 WL 6777311 (N.J. 2014), a resident wanted to run for a seat on the Board of Directors of the coop and sought to distribute materials relevant to his campaign and he was prevented from doing so by the coop board. The Supreme Court of New Jersey held that the coop rule banning soliciting and distributing written materials in the building was unreasonable and a violation of the resident’s state constitutional free speech rights. The ruling reaffirmed and expanded on the rulings in earlier cases that protected free speech rights of owners in common-interest communities …

New Jersey Supreme Court confirms state constitution’s grant of free speech rights to enable a coop owner to disseminate written information to co-owners Read More »

Scroll to Top