April 2015
In This Issue:
Recent Cases in Community Association Law
Association Pays for Discriminating Against Children
Court Hearing Is No Substitute for Association Hearing Required Before Levying Fines
Association Must Pay Owner’s Legal Fees in Suit Involving Invalid Use Restriction
Private Water Agreement Is a Restrictive Covenant
Association Can Levy Special Fees on Short-Term Renters
Enclosed Terrace Is within Condominium Unit’s Boundaries
Failing to Request a Trial within Required Time Can Make Nonbinding Arbitration Binding
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Recent Cases in Community Association Law

Law Reporter provides a brief review of key court decisions throughout the U.S. each month. These reviews give the reader an idea of the types of legal issues community associations face and how the courts rule on them. Case reviews are for information only and should not be applied to other situations. For further information, full court rulings can usually be found online by copying the case citation into your web browser.

Association Pays for Discriminating Against Children

Secretary v. Greenbrier Village Homeowners’ Association, Inc., FHEO No. 05-12-1124-8 (HUD Office of Hearings & Appeals)

Association Operations: An association charged with violating the Fair Housing Act by discriminating against children agreed to a settlement with the Department of Justice that includes civil penalties and victim payments.

Greenbrier Village Homeowners’ Association, Inc. (association) is the master association over Greenbrier Village, a community of six condominium buildings containing about 462 units in Minnetonka, Minn. In 2010, Elaine Gustafson, who owns a unit in Greenbrier Village, obtained custody of her two minor great-grandchildren, who were about 7 and 9 years old when they came to live in Greenbrier Village.

An association rule in effect since 1998 known as the “children rule” prohibited children from playing in the common areas. In July 2011, the association amended the rules to prohibit riding bicycles, tricycles, scooters, skateboards, skates and rollerblades; playing; picnicking; and sunbathing in the common areas. The new rule was not distributed to residents after it was enacted.

In August 2011, Gustafson received two violation notices citing her for violating the new common area rule. The notices indicated that children were not allowed on Greenbrier Village’s grass or landscaping.

In September 2011, the association’s board of directors rescinded the new common area rule, citing recent changes in discrimination laws. Nonetheless, the association continued to threaten to fine Gustafson about the children’s activities in the common area.

In April 2012, the property manager wrote to Gustafson, asking her to take the comfort of other residents into consideration and have the children observe the Greenbrier rules. The letter stated that, while playing on the grass or the sidewalks is allowed, playing in the landscaping and the trees is not allowed. The manager urged Gustafson to take the children to a park or school off-site to play.

Later that month, the association placed notices on the community bulletin boards that stated, “Kids may not play in the garage, driveway, parking lots, or by the pond. If kids are in the grass, they may not dig, ride bikes, slide down hills, or in any way hinder the growth of the lawn. They cannot play in the trees or planted areas and may not jump off balconies.” The notices also said the sounds of children playing near a building can be disturbing to other residents.

In July 2012, Gustafson filed a discrimination complaint with the U.S. Department of Housing and Urban Development (HUD). HUD’s investigation revealed that, while Gustafson was the only resident threatened with a fine for a rule violation, Greenbrier Village’s management had sent 13 rule violation notices citing the children rule to families with children between 2005 and 2011. No violation notices concerning this rule were sent to households without minor children. HUD found no record of a violation notice being given to an adult for violating the restrictions against using sidewalks or grass or for playing in the courtyards. Further, although adults routinely rode bicycles in the common area, no adult was cited for doing so.

HUD issued a report in September 2013, that found reasonable cause that the association, Gassen Company Inc., the association’s management company (Gassen), and the individual property manager were in violation of the federal Fair Housing Act (act) because they had discriminated against Gustafson’s great-grandchildren by treating them less favorably than other Greenbrier Village residents. The matter was referred to the U.S. Department of Justice, which filed discrimination charges on behalf of HUD’s Secretary against the association, Gassen and the property manager (collectively, the defendants).

Specifically, the defendants were charged with violating the act on the basis of familial status by treating Gustafson and her great-grandchildren less favorably than similarly situated residents without minor children. The defendants had singled out Gustafson and her great-grandchildren for enforcement of the rules restricting access to the common areas and restricting activities at Greenbrier Village. The HUD Secretary alleged that the defendants discriminated against Gustafson and her family “when they made written and verbal statements indicating a preference, limitation, or discrimination based on familial status.”

The act makes it unlawful to discriminate against any person in the terms, conditions or privileges of a dwelling’s sale or rental or in the provision of services or facilities in connection with such dwelling, because of the familial status of that person. “Familial status” refers to an individual under 18 years of age residing with a parent or custodian. It is also unlawful to make, print or publish any statement that indicates any preference, limitation or discrimination based on familial status.

On March 20, 2015, the Department of Justice announced a settlement with the association, Gassen and the property manager. The association agreed to pay $10,000 in civil penalties to the United States and a total of $100,000 in compensation to six families with children who experienced discrimination. In addition, the association will adopt and implement a new anti-discrimination policy, and all board members, the property manager and other staff will undergo training on the act, with a specific emphasis on discrimination based on familial status.

For a full copy of the settlement announcement or the discrimination charge, please visit


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Court Hearing Is No Substitute for Association Hearing Required Before Levying Fines

Congress Street Condominium Association, Inc. v. Anderson, No. AC 35601 (Conn. App. Ct. Mar. 24, 2015)

Association Operations: The Appellate Court of Connecticut held that fines imposed by an association against an owner were improper because the association did not offer the owner a hearing before imposing the fines.

Congress Street Condominium Association, Inc. (association) manages the Congress Street Condominium in Hartford, Conn., where Frederick Anderson owns a unit.

The association alleged that Anderson violated the condominium declaration by replacing a large exterior window in his unit with a door. The association notified Anderson in March 2009 that fines of $12 per day would be imposed for every day the violation continued. Anderson did not pay the fines.

In June 2009, the association filed suit to foreclose its lien for the fines against Anderson’s unit. Anderson argued that the fines violated the declaration and the association’s bylaws because he had not been afforded a hearing. The association filed a motion for summary judgment (judgment without a trial based on undisputed facts).

The trial judge held a hearing on the summary judgment motion in April 2010. The association admitted that it did not conduct a hearing prior to levying the fines, but it characterized the hearing as a mere formality. The association further argued that any alleged harm to Anderson due to the lack of an association hearing was speculative, since Anderson had an opportunity to present his evidence to the judge at the court hearing. The association then requested that the fines be calculated from the court hearing date rather than March 2009.

The trial judge determined that the fines were assessed validly and awarded the association the amount requested. Anderson appealed.

The Connecticut Common Interest Ownership Act (act) provides that an association may “after notice and an opportunity to be heard, levy reasonable fines for violations” of the condominium documents. (Emphasis added). The association’s bylaws state that following notice and a hearing, the board may levy a fine of up to $50 for each day that a violation of the condominium documents continues. The declaration also specifies the procedure for hearings.

The appeals court concluded that providing an owner with an opportunity to be heard was expressly required by the act and the condominium documents. While the appeals court agreed that administrative hearings are intended to be informal and conducted without having to adhere to the formal evidence rules observed by courts, the hearings still must be conducted in a fundamentally fair manner that does not violate due process rules. “A fundamental principle of due process is that each party has the right to receive notice of a hearing, and the opportunity to be heard at a meaningful time and in a meaningful manner.” The appeals court emphasized that due process requires that the parties involved must receive appropriate notice of the hearing; have the right to produce relevant evidence; and have an opportunity to know the facts upon which the association is asked to act, to cross examine witnesses and to offer rebuttal evidence.

The appeals court held that it was improper for the trial court to grant summary judgment to the association after learning that Anderson had not been afforded a hearing. The appeals court reversed the grant of summary judgment and remanded the case to the trial court with instructions for judgment to be rendered in favor of Anderson.

©2015 Community Associations Institute. All rights reserved. Reproduction and redistribution by CAI members or nonmembers are strictly prohibited.

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Association Must Pay Owner’s Legal Fees in Suit Involving Invalid Use Restriction

Marino v. Clary Lakes Homeowners Association, Inc., No. A14A2236 (Ga. Ct. App. Mar. 16, 2015)

Attorneys’ Fees: The Georgia Court of Appeals declared that owners who defended themselves against an association’s attempt to enforce an invalid restriction had prevailed and were entitled to recover their attorneys’ fees.

This case was first reported in the September 2013 issue of Law Reporter.

Joseph and Patricia Marino own a home in the Clary Lakes subdivision in Cobb County, Ga., which is governed by the Clary Lakes Homeowners Association, Inc. (association). For years, the Marinos used their garage for storage and parked their vehicles in the driveway. In 2003, a majority of Clary Lakes homeowners voted to amend the subdivision’s declaration to require all owners to park vehicles within garages to the extent that space was available. The amended declaration also prohibited regular garage storage that rendered garages unavailable for parked vehicles.

In 2009, the association notified the Marinos that they were in violation of the garage parking covenant and began to levy daily fines for the violation, which the Marinos refused to pay. In 2011, the association sued the Marinos to recover the fines levied and to require them to comply with the new restriction. The association also sued the Marinos for breach of settlement agreement, alleging that the parties had already agreed to settle the violation issue. The association further sought to recover its attorney’s fees in pursuing the case. The Marinos filed a counterclaim, arguing that the garage-use restriction was not enforceable and that they were entitled to recover the attorney’s fees incurred in defending the suit.

The trial court ruled in the association’s favor with respect to the declaration amendment, but it denied judgment on the settlement agreement claim. The appeals court held that the amendment had not been validly adopted and remanded the case to the trial court with instructions to enter summary judgment (judgment without a trial based on undisputed facts) in favor of the Marinos regarding the garage restriction and fines. However, the appeals court said it was premature to determine an award for attorneys’ fees since the settlement agreement claim remained pending before the trial court.

Once the case went back to the trial court, the association amended its remaining pending claim to request both damages and injunctive relief (court order prohibiting or commanding certain action) for the Marinos' alleged breach of a settlement agreement.  However, in April 2014, the association dismissed its settlement agreement claim. The Marinos sought to be declared the prevailing party and awarded attorney’s fees. The declaration provides: “In the event of litigation, the losing party shall pay the litigation expenses, including the reasonable attorney’s fees actually incurred, of the prevailing party.”

The Marinos also sought attorney’s fees under a state statute which allows the trial court to award fees if it finds that an attorney or a party brought or defended a case, “that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct.” The statute defines “lacked substantial justification” as meaning “substantially frivolous, substantially groundless, or substantially vexatious.”

The Marinos argued that the association’s decision to continue litigating its claim for breach of the settlement agreement in light of the appeals court’s ruling in the first appeal lacked substantial justification. They further urged that the association’s amendment of its claims to seek damages as well as injunctive relief was done for the purposes of delay and harassment.

The trial court determined that the claim for breach of the settlement agreement was not adjudicated on the merits since the association dismissed the claim. Accordingly, the trial court held that neither party had prevailed or was entitled to an attorneys’ fee award. The Marinos appealed once again.

The Georgia Supreme Court has held that “a plaintiff prevails when actual relief on the merits materially alters the legal relationship between the parties by modifying the defendant’s behavior in any way that directly benefits the plaintiff.” However, “defendants prevail by not having any relief imposed against them.”

In the second appeal, the court held that the Marinos were the prevailing party as to the association’s claims based on the use restriction when summary judgment was awarded to the Marinos on those claims. When the association voluntarily dismissed the remaining claim, the Marinos were still in the position of being the prevailing party in the litigation because they prevailed on all claims that were adjudicated.

However, the appeals court disagreed with the Marinos that the association’s behavior warranted the imposition of attorneys’ fees. Under the statute, attorneys’ fees are warranted only in exceptional cases, and the appeals court did not find the association’s decision to amend its claims when the case went back to the trial court to constitute such an exceptional case.

The appeals court reversed the trial court’s ruling as to attorneys’ fees and remanded the case to the trial court for further proceedings to determine the exact amount of attorneys’ fees to be awarded.

Editor’s Note: The appeals court did not address whether a party can be deemed the “prevailing party” if it prevails on most claims but loses one or more claims on the merits.

©2015 Community Associations Institute. All rights reserved. Reproduction and redistribution by CAI members or nonmembers are strictly prohibited.

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Private Water Agreement Is a Restrictive Covenant

Double Branches Association, Inc. v. Jones, No. A14A2069 (Ga. Ct. App. Mar. 12, 2015)

Documents: The Georgia Court of Appeals held that because a private water agreement prohibited wells within the subdivision, it constituted a covenant restricting land to certain uses.

Municipal water service is not available for the Double Branches Subdivision in Greene County, Ga. Accordingly, when the subdivision was developed in 1991, Double Branches Association, Inc. (association) entered into a water services agreement (agreement) with Andrew Jones d/b/a Jones Water Systems (Jones), a private water supplier (water company), to provide water to the subdivision homes.

The agreement was recorded in the land records as an encumbrance on the subdivision and provided that the agreement would “become an appurtenance to and run with the land described…and inure to the benefit of the successors in title.” Under the agreement, the water company agreed to construct two wells and infrastructure to provide water to the subdivision and to operate the water system until a municipality or public utility made water available.

The agreement allowed the water company to charge each owner for water consumption. However, the rate could not exceed the highest rate charged by any municipality within 50 miles. The agreement also included a restriction against private wells in the subdivision.

Double Branches Water, LLC, acquired Jones’ interest and an assignment in the agreement. In 2012, Double Branches Water informed lot owners that the monthly minimum rate would increase to $45; that a monthly testing fee of $2.50 would be added; and setup fees, late fees and reconnection fees would be increased.

The association filed suit against Jones and Double Branches Water (collectively, the water company) for breach of the agreement, alleging that the fees charged exceeded the maximum amount allowed under the agreement. The water company filed a motion for summary judgment (judgment without a trial based on undisputed facts) and a petition for declaratory judgment (judicial determination of the parties’ legal rights).

The trial court determined that the agreement constituted a covenant running with the land that no longer was enforceable. Accordingly, the trial court granted the water company’s petition for declaratory judgment. The association appealed.

The association argued that the statute did not apply to the agreement. The statute provides that covenants restricting land to certain uses cannot run for more than 20 years in areas where zoning laws have been adopted. The association argued that the agreement did not constitute a restrictive covenant.

The appeals court agreed with the trial court that the statute applied and the agreement had expired. “A restrictive covenant is a negative covenant that limits permissible uses of land.” The statute applies both to use restrictions and to building restrictions that appear in restrictive covenants.

Although the agreement did not state that owners must use their property for a particular purpose, the appeals court found the agreement did restrict the method by which the owners must obtain water, which is necessary for the use and enjoyment of the property. The agreement also contained a restriction against private wells, which effectively prohibits owners from obtaining water from any other sources until a public utility becomes available. The appeals court held that these restrictions amounted to a restrictive covenant affecting property use.

The agreement expired under the statute’s 20-year limitation when the owners failed to renew the agreement as permitted by the statute. Accordingly, the trial court’s grant of declaratory judgment to the water company was affirmed.

©2015 Community Associations Institute. All rights reserved. Reproduction and redistribution by CAI members or nonmembers are strictly prohibited.

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Association Can Levy Special Fees on Short-Term Renters

Watts v. Oak Shores Community Association, No. B240337 (Cal. Ct. App. Mar. 2, 2015)

Powers of the Association: The California Court of Appeal upheld an association’s imposition of fees on short-term renters where the fees were less than the costs to the association caused by short-term renters.

Oak Shores Community Association (association) governs Oak Shores, an 851-lot subdivision in San Luis Obispo County, Calif. Homes have been constructed on 660 lots, but only about 20 percent of the homes are occupied by full-time residents. The remaining 80 percent are owned by part-time residents or absentee owners. About 66 of the absentee owners rent their homes to short-term vacationers.

The association adopted new rules that imposed fees on short-term renters and limited an owner’s ability to rent his or her home. Lynda Burlison and Ken and Joyce Watts (collectively, the plaintiffs) are absentee owners who use their homes for short-term vacation rentals and filed suit against the association challenging the new rules. The association, alleging the Watts owed $4,888.87 in unpaid assessments and Burlison owed $2,355.06, counter-sued the plaintiffs for unpaid fees and fines and to require the plaintiffs to comply with the rules.

The challenged rules included the following statements: “a rule restricting owners from renting out their homes more than once in any seven-day period; an annual fee of $325 imposed on owners who rent their homes; a rule limiting the number of automobiles, boats and other watercraft that renters are allowed to bring into Oak Shores; a mandatory garbage collection fee; boat and watercraft fees; building permit fees; and property transfer fees.”

The association presented evidence that renters cause more problems than owners or their guests. The problems generally related to parking, unfamiliarity with rules, noise and abuse of the subdivision amenities. The association characterized the problem with renters as being worse than with owners’ guests because the owner is typically present with the guest, whereas the owner is never present with a renter. Therefore, the renters required greater supervision and cost the association more in administrative expenses. The amount of $325 for the annual rental fee resulted from a 2007 study that determined each rental cost the association $898.59 per year.

The association charged short-term renters and guests a $25 daily fee, or $125 per week, to bring watercraft into the community. It also limited short-term renters and guests to one boat or two personal watercraft. By contrast, owners and long-term renters are not subject to such fees, and they are not limited in the number of watercraft they can bring in.

The association presented evidence that renters comprise only 8 percent of the people coming in the gate, but they bring in 37 percent of the boats. Thus, since the renters’ use was greater than the owners’ use, they generated more maintenance costs for the docks, roads and parking lot. The association’s costs to enforce codes among renters were similarly higher than for owners.

The association restricts parking in the lower marina lot to owners on weekends and holidays during the summer months. During this time, renters can park in another nearby lot.

The association contracts with a private trash collector and passes the costs on to owners of developed lots without differentiating between full-time and part-time residences because it’s too difficult to determine which is which.

California law prohibits an association from imposing an assessment or fee that exceeds the amount necessary to defray actual costs. The association’s accountant testified that the association’s costs resulting from renters far exceeded the income produced by the renters’ fees.

The trial court found the association’s rules to be reasonable and in compliance with the subdivision’s governing documents and the law; it also found the association was the prevailing party in its efforts to enforce the governing documents both as to the plaintiffs’ complaint and the association’s cross-complaint. The association was awarded $1,180,646 in attorney’s fees for defending the complaint and another $27,730 in fees for prosecuting the cross-complaint. The plaintiffs appealed.

The appeals court found that the declaration gave the association broad powers to adopt rules for Oak Shores, and there was nothing in the governing documents that prohibited the association from adopting renters’ fees.

The appeals court was unrelenting in its support for the association, stating:

That short-term renters cost the association more than long-term renters or permanent residents is not only supported by the evidence but experience and common sense places the matter beyond debate. Short-term renters use the common facilities more intensely; they take more staff time in giving directions and information and enforcing the rules; and they are less careful in using the common facilities because they are not concerned with the long-term consequences of abuse.

The appeals court rejected the plaintiffs’ plea that the association’s costs related to renters should be borne by all owners, stating that the board may reasonably decide that all owners should not be required to subsidize the plaintiffs’ rental businesses.

The plaintiffs argued the association should be required to conduct time and motion studies to more accurately calculate the costs for renters. The appeals court found that the law did not require an exact correlation between the fee charged and the costs for which it is levied; in some cases, it may be impossible to determine an exact cost. The appeals court held that the statute requires nothing more than a reasonable good faith estimate of the fee necessary to defray the association’s costs. The appeals court further found that test was satisfied in this case.

The plaintiffs further contended the attorney’s fee award was excessive and not authorized by the statutes, which provide that the prevailing party may be awarded reasonable attorney’s fees in any action to enforce the governing documents. The plaintiffs argued the action did not involve a challenge to the validity of the governing documents.

The appeals court held that the plaintiffs’ suit clearly fell within the ambit of the statute because it did challenge the right of the association to enforce the governing documents by enacting and attempting to collect fees pursuant to those documents. The appeals court further noted that the plaintiffs’ argument ignored the fact that they initiated the litigation and vigorously litigated the case, thus requiring the association to expend large sums to defend the action. The plaintiffs could have avoided the high attorney’s fees had they declined to “bring the instant unmeritorious action and by paying the Association the few thousand dollars it was properly demanding.”

The trial court’s judgment was affirmed.

©2015 Community Associations Institute. All rights reserved. Reproduction and redistribution by CAI members or nonmembers are strictly prohibited.

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Enclosed Terrace Is within Condominium Unit’s Boundaries

Ly v. Nguyen, No. 01-14-00077-CV (Tex. App. Mar. 19, 2015)

Powers of the Association: The Texas Court of Appeals upheld a ruling that an enclosed terrace was within a condominium unit’s boundaries and that the association owed no duty of care to the unit’s visitors with respect to potential hazards on the terrace.

The Saint Joseph Village Condominium, located in Harris County, Texas, is managed by the Saint Joseph Village Condominium Association (association). Hoa Thi Tran lived in Unit 315, a ground-floor unit that had a fenced-in terrace on the front. The adjacent unit, Unit 313, also had a fenced-in terrace, and a dividing fence separated the two terraces.

In June 2006, Nga Ly brought her two daughters, Ashley and Tiffany, both aged two, to Unit 315 for Tran to babysit. Tran later left the home and put her 19-year-old son, David Nguyen, in charge of the children. A fire broke out in the area between the two terraces. Nguyen left the home with his siblings, but he did not take Ashley, Tiffany or another child, four-year-old Ethan Nguyen, with him. The three young children were left alone in the home and died of smoke inhalation. Firefighters soon arrived but were unable to save the children.

The fire department’s investigation revealed that the fire may have been caused by children playing with matches. The investigation also revealed that items stored on the terraces served as fuel for the fire. A refrigerator, a freezer and seats from a van were stored on the terrace of Unit 313, and the terrace of Unit 315 contained a scooter and a motorcycle. The fire investigator reported that the fire likely would have burned itself out and not spread to the units had these items not been stored on the terraces.

Ly sued Tran, Nguyen, the association and the owners of Unit 313. The trial court granted Ly summary judgment against Tran, awarding Ly $7.5 million in damages from Tran. Default judgment was entered against Nguyen (judgment entered against a party who failed to defend against a claim). Ly’s negligence claims against the association and the owners of Unit 313 proceeded to trial.

Ly asserted that the items stored on the terraces violated the association’s rules and were a direct cause of her daughters’ deaths. The association claimed the terraces were considered privately owned property that was part of the units. As such, the association argued it had no control over the terraces and owed no duty of care to residents or visitors.

The trial court agreed that the terraces were not common areas and that the association did not breach any duty to the girls. The trial court rendered judgment in favor of the association and the owners of Unit 313. Ly appealed.

Ly asserted the terraces were limited common elements subject to the association’s control. The condominium declaration provided that each owner was entitled to exclusive ownership and possession of his or her unit. The declaration further identified the unit’s boundaries as “the interior surfaces of the perimeter walls, floors, ceiling, and the exterior surfaces of balconies and terraces.” (Emphasis added). Based on this, the appeals court determined the unit’s boundary extended to the outer surfaces of the fenced-in terrace.

Ly further argued that this interpretation conflicts with the association’s rules, which required each owner to keep his or her unit and “any balcony or terrace to which he has sole access, in [a] good state of preservation and cleanliness.” She asserted the rule clearly treats the unit as separate from the terrace.

The appeals court, however, found the phrase “to which he has sole access” precluded the terrace from being considered a limited common element. The declaration defines “limited common element” as the common elements reserved for the use of a certain number of units to the exclusion of the other units. The appeals court determined this definition contemplated that limited common elements were used by more than one unit.

Finally, Ly argued that the rules gave the association the authority to regulate how terraces were used. The appeals court agreed that the rule implied that the association had some control over certain aspects, such as decorating, of privately held property. However, the rule did not provide the association with the requisite control over the terraces that would create a duty of care owed by the association to visitors to the unit.

The trial court’s judgment was affirmed.

©2015 Community Associations Institute. All rights reserved. Reproduction and redistribution by CAI members or nonmembers are strictly prohibited.

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Failing to Request a Trial within Required Time Can Make Nonbinding Arbitration Binding

Alexander v. Quail Pointe II Condominium, No. 5D13-3756 (Fla. Dist. Ct. App. Mar. 6, 2015)

State and Local Legislation and Regulations: The Florida Court of Appeal upheld the confirmation of a nonbinding arbitration award in favor of an association in which the opposing owner did not request a trial within the required time, even though the court order referring the case to arbitration did not comply with the required form and did not inform the owner of the applicable deadline.

Quail Pointe II Condominium Association (association) manages the Quail Pointe II Condominium in St. Johns County, Fla. In 2007, C.V. Alexander, Jr., who owned a unit in the condominium, sued the association for negligent repair and maintenance of the common elements and other claims. The association joined various repairmen and materials suppliers to the suit, and the litigation became protracted. Mediation had been unsuccessful.

As the parties were preparing for the April 2013 trial, the association asked to postpone it. The trial judge, on his own volition, referred the matter to nonbinding arbitration. The parties jointly submitted to the judge an agreed-upon, proposed scheduling order for nonbinding arbitration (agreed order). The agreed order identified the arbitrator, set the date, time and location for the arbitration and outlined detailed procedures regarding deadlines and evidence. The court signed the order and made it an official court order.

The arbitration was conducted according to the agreed order, and the arbitrator issued a written opinion indicating that the arbitration had been conducted in accordance with Chapter 44, Florida statues, and that denied all of Alexander’s claims.

Twenty-six days after the arbitration decision had been served on the parties, the association filed a motion with the court for judgment confirming the arbitration award. Alexander filed a motion for trial the same day.

The association argued that Florida Rules of Civil Procedure and Florida Statutes required confirmation because the time to request a trial had expired. Alexander argued that the association had no right to confirmation because the agreed order did not use the correct form for referring cases to nonbinding arbitration or contain mandatory language required by the Seventh Judicial Circuit. Therefore, Alexander argued the law cited by the association did not apply. Alexander also argued that his lawyer missed the deadline for requesting a trial because he was unfamiliar with nonbinding arbitration procedures and deadlines, which constituted excusable neglect.

The trial court found no excusable neglect for Alexander’s failure to meet the deadline for requesting a trial and granted the association’s motion to confirm the arbitration award. Alexander appealed.

Florida Statutes and Rules of Civil Procedure allow a party that is dissatisfied with the arbitrator’s decision to request a trial within 20 days after the arbitrator’s written decision is served. The appeals court stated that, despite the fact that the arbitration is called “nonbinding,” arbitration can become binding by default if a request for trial is not made within the required time.

The appeals court acknowledged that some scholars have called Florida’s nonbinding arbitration process a minefield “[f]raught with intricate rules and sometimes harsh ramifications.” The appeals court also recognized that the agreed order did not comply with the mandatory form, which goes to great lengths to inform the parties of their rights and the deadline for requesting a trial.

However, since the parties agreed on and presented the order to the judge, the appeals court determined they—not the judge—were responsible for failing to use the required form.

The appeals court held that, “[u]nder the doctrine of invited error, a party cannot successfully complain [on appeal] of error for which he is himself responsible, or of rulings that he has invited the court to make.”

The appeals court further held that an attorney’s confusion or lack of knowledge of deadlines and rules does not constitute excusable neglect. Accordingly, the trial court’s confirmation of the arbitration award in the association’s favor was upheld.

©2015 Community Associations Institute. All rights reserved. Reproduction and redistribution by CAI members or nonmembers are strictly prohibited.

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