Homeowner's request for reasonable accomodation results in big pay off!

Attorney Owner Wins Condo Association Wastebasket War, Uses $201K Check to Pay Off Mortgage

October 4, 2011 by David C. Swedelson

   

Blog posting by David C. Swedelson, Condo lawyer and HOA attorney; Senior Partner SwedelsonGottlieb

Amazing story out of Florida involving an attorney/owner of a condominium who asked her condo association to place a trash receptacle in the mail room so she could have a convenient place to dispose of her junk mail. When her association declined the request because of a concern about having to maintain that trash receptacle (as owners may put more than junk mail in the trash), the owner decided that she would just dump her mail on the floor. This is a true story; you can’t make this stuff up.

News reports indicate that the association sued the attorney-owner for breach of the governing documents because what she was doing was allegedly a nuisance. And almost all (I would say all, but I suspect there may be a California condo association or HOA that does not have one) California community associations have a prohibition on nuisances, generally defined as something that interferes with another owner or resident's “quiet enjoyment” of their condo or home. Often CC&Rs will provide that any violation is a nuisance.

As the ABA Journal reports, the “nuisance provision contained in many condominium association governing documents can be a tempting basis for litigation. But it backfired for one Florida condominium association that tried to utilize it to force an attorney owner out of her home. Also follow this link to an article on this case by Jean Winters on the Condos and HOAs page of the South Florida Sun-Sentinel.

“A protracted legal battle began eight years ago with a dispute over whether or not Alca Condominium Association, Inc. in Miami would grant owner Nancy Wear's request to put a wastebasket near her mailbox so she could throw away junk mail on the spot. When the association refused, she began tossing mail on the floor . . . The battle escalated, and the association sought to have Wear declared a nuisance in arbitration so she could be evicted. A seasoned trial attorney, [Wear] successfully pursued the matter in state court and won a jury verdict. That was overturned, but last year an appeals court reinstated it and in June Wear was awarded attorney's fees. She used the $201,347 check she received from the association's insurance carrier to pay off her mortgage, an apparent signal that she intends to stay in her condo long-term. . .”

"This was a hard lesson for Alca Condominium Association," writes Winters. "Unfortunately, associations sometimes use vague or nuisance covenants to sue uncooperative owners – owners who ask questions, commit minor 'violations' or otherwise annoy the board. Associations that take legal action on issues that could be easily resolved should consider all the possible repercussions of beginning wars that can backfire in a big way."

What is the lesson here? Maybe litigation is not always the best option for resolving a dispute with an owner. Hard to believe that this dispute could not have been mediated to a settlement. And just maybe a recycling bin in the mailroom would have been a good idea for both the Florida association and the environment as well. But sometimes a homeowner will be so difficult that the association has no choice but to sue. And sometimes the result is not what the association and its board or attorneys expected. Be careful out there.

Have a dispute with one of your owners that is boiling over and heading to court? Want options for dealing with your homeowner problem(s)? Have questions or comments? Contact David Swedelson via email: dcs@sghoalaw.com. David Swedelson is a condo attorney, an HOA lawyer. He has dealt with many difficult owner issues over the past 25+ years as a California community association attorney.