September 2016
In This Issue:
Recent Cases in Community Association Law
Associationís Declaration Can Create Perfected Lien
Bank Not Liable for Pre-Foreclosure Assessments Due to Ambiguity in Covenants
Association Not Entitled to Defense Costs When Partially Responsible for Incurring Them
Brief Cessation of Covenant Violation Does Not Stop the Limitations Period from Running
Restriction Must Not Be Interpreted in a Manner that Produces Absurd Result
Association Not Obligated to Make Expensive Repair that Majority of Owners Rejected
Presidentís Extreme Behavior Created Liability for Association
Owners Subject to Property Taxes in Two Taxing Districts Where Units and Common Elements Are in Different Taxing Districts
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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.


Associationís Declaration Can Create Perfected Lien

In re: Foster, No. 16-00638-jw (Bankr. D. S.C. June 30, 2016)

Assessments: The U.S. Bankruptcy Court for the District of South Carolina held that a declaration could establish a perfected lien for an association since there was no state law providing a procedure for association liens.


Highland Ridge Homeowners Association, Inc. (association) governed the Highland Ridge subdivision in Horry County, SC. The Highland Ridge declaration of covenants, conditions and restrictions (declaration) was recorded in March 2005. In August 2005, Raymond and Shawna Foster purchased a home in Highland Ridge.

The declaration provided that the association’s annual and special assessments, together with interest, costs and reasonable attorney’s fees, would be a charge and continuing lien on each lot and the lot owner’s personal obligation. The declaration further provided that the association could sue an owner to collect delinquent amounts or foreclose its lien the same way a bank forecloses a mortgage.

In February 2016, the Fosters filed for Chapter 13 bankruptcy relief, and they proposed retaining the lot as part of a reorganization plan. The association filed a proof of claim asserting a secured lien for $1,200 for pre-bankruptcy petition assessments, costs, expenses and post-petition attorney’s fees associated with the bankruptcy matter. The Fosters objected, asserting that the association’s claim was unsecured because it failed to file a lien notice in the county’s real property records.

The bankruptcy court found that, since there was no South Carolina statute specifically providing a procedure for establishing an association lien, the declaration could establish a contractual lien. The declaration created a lien and a procedure for its foreclosure, and it did not require that a lien notice be filed prior to foreclosure.

The Fosters argued that a lien notice in the county records was required to put all parties on notice of the lien. The bankruptcy court disagreed, determining that the declaration recorded in the county records prior to the Fosters’ purchase was adequate notice to them and others of the association’s lien.

Accordingly, the bankruptcy court held that the association had a perfected lien in the amount of $1,200 on the Fosters’ lot.

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Bank Not Liable for Pre-Foreclosure Assessments Due to Ambiguity in Covenants

First National Bank of Dieterich v. Pointe Royale Property Owners’ Association, Inc., No. SD33797 (Mo. Ct. App. June 29, 2016)

Assessments: The Court of Appeals of Missouri declined to impose personal liability on the purchaser of a foreclosed unit for delinquent assessments due prior to foreclosure where the covenants’ lien and liability language was ambiguous.


Pointe Royale Property Owners’ Association, Inc. (association) governed a subdivision in Branson, Mo., containing condominiums as well as single-family homes. The Pointe Royal covenants provided that delinquent assessments bound not only the current owner but also his heirs, devisees, personal representatives and assigns. In addition, the owners’ personal obligation to pay assessments would remain a personal obligation and pass to successors-in-title.

After the covenants were recorded, First National Bank of Dieterich (bank) made loans on eight condominium units secured by mortgages on the units. The owners subsequently became delinquent in paying assessments, and the association filed liens against the units.

The owners also defaulted on their mortgages, so the bank foreclosed and purchased the units at the foreclosure sale. The association refused to release its liens unless the bank paid both the former owners’ delinquent assessments (prior assessments) and the assessments levied after the bank became the owner (new assessments).

Although the bank disputed its liability for prior assessments, it paid both the prior and the new assessments to clear the liens so that it could resell the units. The bank then filed suit against the association to recover the prior assessment amounts and its attorney’s fees.

The trial court determined that, under the Missouri Uniform Condominium Act (act), the foreclosure extinguished the lien for prior assessments. The trial court ordered the association to refund to the bank all prior assessments paid ($15,035) plus one-half of the bank’s legal fees in pursuing the claim ($3,150). The association appealed.

The association argued that it was not subject to the act since it was not an association consisting solely of condominium unit owners and that the covenants’ liability language governed the issue. The association argued that the covenants unambiguously made a property owner jointly and severally liable with the former owner for all unpaid assessments due before the title was transferred. The bank asserted that it was not liable because it was not a successor-in-title.

The term “joint and several liability” was not used in the covenants. Therefore, the bank’s liability for prior assessments depended on whether the bank was a successor-in-title to the delinquent owners. The covenants were recorded in 1986, so the appeals court consulted dictionaries published before that date. However, the appeals court could find no definition of “successor-in-title” in any dictionary, only definitions of the individual words in the phrase. Therefore, the appeals court determined that the phrase must be interpreted in the full context of the covenants.

The phrase was used only once in the covenants, while “successors” and “successors and assigns” were used many times, so the appeals court concluded that “successors-in-title” must indicate a subset of successors. The assessment provisions in the covenants stated that the unit was bound by the lien when it was in the hands of the owner, his or her heirs, devisees, personal representatives or assigns.

The appeals court concluded that, if the assessment burden against the property was limited, it was reasonable to conclude that the personal liability would be more limited. Thus, since the lien was restricted to persons having some relationship with the original owner instead of with the property, the appeals court saw no reason to extend the personal liability to a successor with no personal relationship with the former owner. Moreover, ambiguous language in a restriction must be narrowly construed in favor of the free use of the property. Accordingly, the appeals court declined to expand the personal liability clause as the association urged.

The appeals court did not address the question of whether the act applied since it found that the trial court reached the correct conclusion (the bank was not liable for prior assessments). The trial court’s judgment was affirmed.

©2016 Community Associations Institute. All rights reserved. Reproduction and redistribution in any form is strictly prohibited.

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Association Not Entitled to Defense Costs When Partially Responsible for Incurring Them

City Heights Condominium Association, Inc. v. Bombara, No. A16A0464 (Ga. Ct. App. June 30, 2016)

Assessments; Attorney’s Fees: The Court of Appeals of Georgia held that, where an association sought to specially assess an owner for common expenses caused by the owner’s conduct, the owner’s conduct had to be the sole cause of the expense without any contributing conduct by the association or any other person.


City Heights Condominium Association, Inc. (association) governed the City Heights Condominium in Atlanta, Ga. John and Laura Bombara owned a unit in the condominium.

In 2012, the Bombaras sued the association for claims related to alleged mold in their unit and the surrounding common area. The association counterclaimed, alleging the right to charge the Bombaras a special assessment for its defense costs.

The trial court granted summary judgment (judgment without a trial based on undisputed facts) to the association, and the association filed a motion for attorney’s fees. The trial court granted the association’s motion with respect to one of the Bombaras’ claims after finding that the Bombaras failed to present any competent evidence. However, the trial court denied the motion for the defense costs related to the Bombaras’ remaining claims, finding that there was evidence of mold in the unit. The association appealed.

Consistent with the Georgia Condominium Act, the declaration of condominium provided that common expenses caused by a unit owner’s conduct could be specially assessed against that owner.

The association argued that the Bombaras filed a “meritless action,” which caused the association to incur defense costs (common expenses) and triggered the association’s right to specially assess them. The Bombaras disagreed, arguing that such an interpretation would mean the association could assess its defense costs against an owner, whether it won or lost.

The appeals court held that, in order to levy a special assessment, the unit owner’s conduct must be the sole cause of the common expense with no contributing conduct by the association, a unit owner or other person. The association had already been granted its attorney’s fees related to the one meritless claim. While the remaining claims were unsuccessful, they were, nonetheless, based on the association’s response to and management of various mold and moisture issues.

Thus, the association was partially responsible for incurring its own defense costs and had no right to levy a special assessment against the Bombaras. Accordingly, the appeals court affirmed the trial court’s dismissal of the association’s counterclaim.

©2016 Community Associations Institute. All rights reserved. Reproduction and redistribution in any form is strictly prohibited.

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Brief Cessation of Covenant Violation Does Not Stop the Limitations Period from Running

Reed v. Lake Country Property Owners Association, Inc., No. 02-14-00282-CV (Tex. App. July 7, 2016)

Covenants Enforcement: The Court of Appeals of Texas held that once a covenant violation ceases, the statute of limitations begins anew if the same covenant is violated again; however, if the violation ceases only briefly, it does not stop the limitations period.


Lake Country Property Owners Association, Inc. (association) governed Lake Country Estates in Tarrant County, Tex. Frank and Karen Reed owned a lot in the subdivision.

The Lake Country Estates dedications and restrictions (restrictions) prohibited parking or placing a trailer, house car (a motor vehicle originally designed or permanently altered and equipped for human habitation) or other moveable structure on a lot. The restrictions allowed a recreational camper on the lot so long as it was parked out of sight of the street.

In December 2004, the Reeds purchased a recreational camper and parked it in the driveway. In January 2005, the association’s president informed the Reeds that they were in violation of the restrictions. In February 2005, the Reeds installed a new fence and parked the camper behind the fence. However, the camper could still be seen from the street at some vantage points.

In September 2007, the association informed the Reeds that a re-inspection revealed that they were still violating the restrictions because the camper was still visible. That same month, the Reeds purchased a utility trailer for use in their business and parked it behind the fence beside the camper. The trailer was stolen in July 2012, and the Reeds bought a new trailer a few months later and parked it in the same place beside the camper.

In August 2013, the association filed suit to enforce the trailer and camper restrictions. The association moved for summary judgment (judgment without a trial based on undisputed facts). The trial court granted the motion and permanently barred the Reeds from parking a trailer, house car or other moveable structure on the property and from parking a camper on the property unless out of sight. The trial court awarded attorney’s fees to the association.

The Reeds appealed, asserting that summary judgment was improper because the term “trailer” was ambiguous. If a restrictive covenant is ambiguous, it must be construed strictly against the party seeking enforcement, with all doubts resolved in favor of the free and unrestricted use of the property. However, an unambiguous covenant should be liberally construed to give effect to its purpose and intent.

The appeals court used the dictionary to determine that a trailer was a non-automotive vehicle designed to be hauled, and a moveable structure was something constructed or built that was not fixed and capable of being moved. Therefore, the appeals court found that the restrictions unambiguously prohibited the Reeds from parking their utility trailer on their property.

The Reeds argued that the four-year statute of limitations prohibited the restriction’s enforcement. However, the appeals court found that when a restrictive covenant is initially violated, but the violation ceases, the statute of limitations does not bar future enforcement of the same restrictive covenant.

The Reeds urged that their infrequent, temporary removal of the trailer and camper did not stop and restart the statute of limitations period. They used the trailer multiple times per year, removing it each time for usually one day. The Reeds used the camper four or five times a year for trips ranging from two days to two weeks.

The appeals court held that the statute of limitations had not run on the trailer violation because it was the replacement trailer that was being enforced, not the original trailer. There was a gap of several months after the original trailer was stolen before the new trailer came onto the property in late 2012. The association sued to enforce the violation the following year. Therefore, the association was entitled to summary judgment on the trailer violation.

The appeals court reached a different conclusion with respect to the camper, however, because the camper had been parked on the property fairly continuously since 2004. The appeals court held that the brief periods when the camper was removed were of insufficient length to restart the statute of limitations each time the camper returned. Accordingly, the trial court erred in granting summary judgment to the association on the camper violation.

The trial court’s judgment was affirmed in part and reversed in part, and the case was remanded for further proceedings.

©2016 Community Associations Institute. All rights reserved. Reproduction and redistribution in any form is strictly prohibited.

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Restriction Must Not Be Interpreted in a Manner that Produces Absurd Result

Felix Felicis, LLC v. Riva Ridge Owners Association, No. S-15-0236, 2016 WY 67 (Wyo. June 30, 2016)

Covenants Enforcement: The Supreme Court of Wyoming held that contract principles governed a restriction’s interpretation in the context of the entire document without regard to particular circumstances.


Riva Ridge Owners Association (association) governed a subdivision outside of Jackson, Wyo., comprising seven tracts each containing 40 acres or more. Felix Felicis, LLC, Carol Baker and Mark Stein (collectively, the Baker-Steins) purchased a tract in 2010.

The subdivision’s Declaration of Covenants, Conditions and Restrictions (declaration) required the association site committee’s approval before a home could be built. The declaration sought to preserve the subdivision’s scenic value and natural character by preserving maximum views from each tract. To that end, each owner was allowed to select a location for a four-acre “building envelope” on his or her land, provided it contained the designated “building site.”

Nothing could be built in a building envelope that was visible from another "principle residence site" designated on a map attached to the declaration. However, the map did not specifically indicate the locations of principal residence sites or building sites. Instead, the map showed a small box on each tract labeled “home site.”

The developer’s surveyor determined a building site for each tract that conformed to the county’s regulations and considered the visibility of future development on the other tracts. The surveyor placed a fence post on each track corresponding to the mark on the exhibit map.

The Baker-Steins’ proposed home plans were rejected by the site committee because the home could be seen from a site committee member’s home and another home. The Baker-Steins proposed reducing their home’s height and planting trees to screen it from view. The site committee again denied approval because it did not believe the declaration allowed a visibility problem to be mitigated by planting trees.

The Baker-Steins filed suit against the association and the site committee members (collectively, the defendants), seeking damages and a declaratory judgment (judicial determination of the parties’ legal rights) as to whether the declaration required that their home not be visible from any other home and whether the site committee’s approval was required to plant trees.

The trial court determined that the site committee’s approval was required before planting trees. It also granted summary judgment (judgment without a trial based on undisputed facts) to the defendants because the Baker-Steins could show no provision in the declaration that would allow them to recover damages from the defendants.

After determining that the phrase “principal residence site” was ambiguous, the trial court considered the testimony of the surveyor, the attorney that drafted the declaration and a number of owners. The trial court concluded that the owners bought their lots expecting complete invisibility between the homes, and that such perceived benefit should be protected. As such, the Baker-Steins’ proposed home could not be visible from any other home. The Baker-Steins appealed.

The Baker-Steins argued that the trial court improperly considered the current owners’ belief of what the declaration meant. The defendants asserted that the courts should not interfere with the site committee’s interpretation of the declaration unless that interpretation was unreasonable.

The appeals court held that the reasonableness standard applied only when a court reviewed an association’s discretionary action. In this case, contract principles dictated the declaration’s interpretation, which focused on the words’ meanings in the context of the entire document without reference to particular circumstances.

Since the declaration clearly stated that the principal residence site was identified on the exhibit, the appeals court concluded that the declaration used the terms “principal residence site,” “principal residence building site” and “home site” to mean the same thing.

The defendants urged that “principal residence site” and “principal residence” had the same meaning, but the appeals court disagreed. The two phrases were sometimes used in the same sentence, so they could not have the same meaning without being redundant. Further, the defendants’ interpretation would have no meaning until a home was actually built on the tract. This approach would lead to an absurd result because the principal residence site would become increasingly more limited as additional homes were built. Thus, the first owner to build would have no limit, while the last owner to build would be severely limited.

The declaration clearly provided that the restrictions were established for the benefit of all owners and that no structure was to be visible from any principal residence site. Moreover, the declaration specifically sought to provide maximum privacy, which was not the same as complete privacy. Accordingly, the appeals court held that the declaration required that the Baker-Steins’ proposed home not be visible from the specific area shown on the exhibit for the other tracts.

The appeals court further held that since the declaration contained limitations of liability for directors, officers and committee members acting in good faith, they could be liable if they acted in bad faith. The Baker-Steins alleged the site committee members acted in bad faith in denying their application, so the trial court erred in granting summary judgment to the defendants on that issue. Instead, the claim must be tried to determine whether the defendants acted in bad faith.

Finally, the appeals court agreed that the declaration unambiguously required the site committee’s approval to plant trees. The trial court’s judgment was affirmed in part and reversed in part.

©2016 Community Associations Institute. All rights reserved. Reproduction and redistribution in any form is strictly prohibited.

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Association Not Obligated to Make Expensive Repair that Majority of Owners Rejected

Western Ranch Estates Unit II Homeowners Association v. Montana Twenty-Second Judicial District Court, Carbon County, No. OP 16-0329 (Mont. July 12, 2016)

Powers of the Association: The Supreme Court of Montana held that a subdivision’s governing document must be viewed as a whole for both association obligations as well as limits on the association’s authority.


Western Ranch Estates Unit II Homeowners Association (association) governed a 62-lot subdivision near Roberts, Mont. William Baldi and Teresa Kennedy (plaintiffs) owned three lots in the subdivision.

The subdivision contained four bridges that crossed Rock Creek and its tributaries. In 2011, a flood destroyed one of the four bridges (bridge 4). The plaintiffs generally used bridge 4 to access their lot, but they could still use two of the remaining bridges.

The subdivision’s articles of incorporation and agreement (articles) made the association responsible for subdivision road and bridge maintenance. The articles specifically gave the association the right to “improve and repair the bridges as the need may arise for the benefit of owners of lots.” However, the articles also required that members approve all work—except emergency repairs—at an annual or special association meeting.

The articles further provided that the board of directors could not use association funds for improvements, maintenance or other expenditures costing more than $1,500 without first obtaining the approval of a majority of the association members.

At the 2014 annual meeting, the members voted on whether the association should reconstruct bridge 4. Two-thirds of the members voted against reconstruction. The association raised the issue again at the 2015 annual meeting, this time presenting the estimated replacement costs, which ranged from $268,000 to $495,000. At this meeting, 92 members voted against reconstruction and four voted in favor.

The plaintiffs demanded that the association prepare a plan for replacing bridge 4. The association refused, asserting that the member votes precluded it from replacing the bridge. The plaintiffs sued the association for breach of the articles, seeking an order requiring the association to reconstruct bridge 4 and prohibiting the association from levying further assessments against them. The plaintiffs also sought reimbursement for all past assessments paid.

Both sides filed motions for summary judgment (judgement without a trial based on undisputed facts). The association argued that the member-approval procedures protected the association from cost-prohibitive and unnecessary projects. The plaintiffs asserted that failing to approve the required work resulted in a breach of the articles for which the individual members must be liable.

The trial court granted the plaintiffs’ motion as to the association’s duty to replace bridge 4 and denied the association’s motion. The trial court concluded that the articles clearly obligated the association to maintain and repair the bridges. However, in the absence of an emergency, the nature of the repair and how it would be accomplished must be approved by the members.

The trial court essentially concluded that the members had no choice but to approve the bridge’s repair or replacement. The trial court stated that the mandatory guarantees for repair and replacement precluded the will of the majority from overcoming the minority’s contractual rights. The association appealed.

The appeals court held that the trial court erred in concluding that bridge replacement fell within the “necessary maintenance and upkeep” of bridges that the articles mandated the association provide. The appeals court held that there was a question as to whether replacing bridge 4 was necessary since the plaintiffs still had two other bridges they could use.

The trial court also erred in failing to consider the articles’ clear intent that a majority of the members must approve any work done in the subdivision and certainly any work costing more than $1,500. The appeals court concluded that the articles as a whole did not mandate bridge replacement unless necessary and that a majority of the members must approve any such replacement.

The appeals court reversed the summary judgment in the plaintiffs’ favor and remanded the case with instructions that partial summary judgment be entered in the association’s favor regarding the duty to replace bridge 4.

©2016 Community Associations Institute. All rights reserved. Reproduction and redistribution in any form is strictly prohibited.

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Presidentís Extreme Behavior Created Liability for Association

Boswell v. The Retreat Community Association, No. E064171 (Cal. Ct. App. July 11, 2016)

Risks and Liabilities: The California Court of Appeal found that an association president was exercising free speech on a public issue when he openly maligned a resident, but he and the association could still be sued for intentionally inflicting emotion distress.


The Retreat Community Association (association) governed the Retreat subdivision in Corona, Cal. Carl Schmidt was the association’s president and head of the architectural committee.

In 2011, David and Melina Boswell purchased a home in the Retreat through an installment contract. There was friction between Schmidt and the Boswells almost from the beginning. Schmidt claimed numerous architectural and covenant violations by the Boswells; the board imposed fines and conducted hearings.

Both Schmidt and the Boswells made and distributed emails, verbal comments, and flyers to other association members which each disparaged the other. Schmidt sat outside of the Boswells’ house with a camera or video camera, and the Boswells consequently installed surveillance cameras on the outside of their home. Schmidt ordered a Boswell guest’s car to be towed. The car owner sued the association, and Schmidt produced fraudulent evidence that the guest had not been issued a parking pass.

Boswell created a Facebook page entitled, “What’s Happening in the Retreat?” and posted comments that Schmidt found objectionable. Schmidt blocked the Boswells’ contractor from the Retreat midway through work on the Boswells’ home, which effectively left Boswell’s vehicle stuck in his garage for a while.

Unrelated to the Retreat issues, a class action lawsuit was filed against the Boswells’ company, New Wealth Advisors Club (NWAC). In January 2015, the association received a subpoena from the class action plaintiffs’ attorney, requesting information from the association’s gated entry system. This sparked more communications from Schmidt to the community.

A week later, the association filed suit against the Boswells, NWAC and others, seeking a declaration that the association was not liable for the Boswells’ allegedly fraudulent real estate scheme. It also sought an injunction against the Boswells using their property for illegal purposes and to prevent them from using the Retreat’s trademark on Facebook.

The Boswells countersued the association and Schmidt, alleging 19 claims of intentionally inflicting emotional distress and other claims. The association and Schmidt (collectively, the association) responded by filing an anti-SLAPP (strategic lawsuit against public participation) motion against the Boswells. The association also dismissed its original complaint against the Boswells.

California’s SLAPP statute prohibits a lawsuit against a person arising from the constitutional right of free speech in connection with a public issue, unless the court determines that the plaintiff has shown a probability of prevailing. A probability of prevailing does not mean that the plaintiff will probably prevail. Rather, it means that the complaint is legally sufficient and supported by enough facts that it could prevail.

The trial court denied the association’s anti-SLAPP motion because it determined the Boswells’ claims did not arise out of protected activity. The association appealed.

The appeals court organized the Boswells’ claims into categories for analysis. The first category consisted of what the appeals court called “garden-variety” homeowners association disputes. These included the Boswells’ claims that the association’s rule enforcement efforts against them were groundless and done maliciously or harassingly. The appeals court found that these did not involve any constitutionally-protected activity by the association.

The second category of claims involved Schmidt’s alleged surveillance or “stalking,” including the towing incident, assembling a dossier on the Boswells, and photographing and filming the Boswells. While photography can be a form of free speech, the appeals court found that Schmidt’s surveillance activity did not appear to relate to any public issue.

The third category of claims involved Schmidt’s communications among Retreat residents, letters to local real estate agents and Facebook postings. The overall themes of the communications were that the Boswells did not have the Retreat’s interests at heart because they were renters; the Boswells were harming the Retreat by spreading lies on Facebook, operating a fraudulent business and damaging property values; and the Boswells behaved unethically and in an un-Christian manner.

As a result, some of the Boswells’ neighbors came to believe that the Boswells were a danger to the neighborhood and to children. The appeals court found that these communications did relate to an underlying issue of public interest, particularly since the association had been subpoenaed in litigation involving the Boswells.

Since the Boswells’ allegations arose partly out of protected activity and partly out of unprotected activity, the claims had to be dismissed as a SLAPP suit unless the Boswells showed a probability of prevailing.

The appeals court found Schmidt’s behavior sufficiently extreme and outrageous to constitute intentional infliction of emotional distress. The Boswells had also sufficiently alleged emotional distress damages, including suffering fear and ill health effects requiring medication. They were unable to enjoy their home and their neighborhood for a significant amount of time. Therefore, the Boswells did have a probability of prevailing.

Accordingly, trial court’s judgment was affirmed in part but reversed in part as to other issues.

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Owners Subject to Property Taxes in Two Taxing Districts Where Units and Common Elements Are in Different Taxing Districts

The Top Condominium v. Township of South Orange, No. A-5388-13T3 (N.J. Super. Ct. App. Div. Aug. 5, 2016)

Taxes and Tax Regulation: The Superior Court of New Jersey, Appellate Division, held that a taxing district could assess property taxes against the common elements within its district, but it had to bill the condominium unit owners instead of the association.


The Top Condominium in Essex County, N.J., included a single building containing 93 units plus various common elements spanning two municipalities. The building, a parking area and amenities were located in the Township of Maplewood. A roughly 1.46-acre common element parcel providing access to the building (access parcel) was located in the Village of South Orange.

Maplewood imposed property taxes on the individual units, and the bills were mailed to the unit owners. South Orange imposed property taxes on the access parcel, and its bills were mailed to the condominium association.

The association filed a challenge to South Orange’s 2011 assessment of $318,000 on the access parcel with the Essex County Board of Taxation (tax board). After the tax board confirmed the assessment, the association filed a complaint with the tax court. The association asserted that the access parcel was exempt from taxation because it was a part of the common elements and not separately assessable. The tax court found that there was not enough evidence to conclude that South Orange’s assessment violated the New Jersey Condominium Act (condominium act).

The association filed challenges to South Orange’s 2012 and 2013 assessments of $239,700 on the access parcel. Once again, the tax board upheld the assessments, and the association filed complaints with the tax court.

This time, the association submitted a real estate expert’s report, which concluded that the entire value of all of the condominium’s common elements (both those in Maplewood and in South Orange) was included in the individual unit sales prices and unit tax assessments. Thus, a portion of the taxes paid by the unit owners to Maplewood included taxes for the South Orange property. The report stated that the access parcel should not be separately assessed by South Orange, and to do so would subject the unit owners to double taxation.

The tax court determined that the expert’s opinion did not conclusively prove that the access parcel was being doubly taxed. New Jersey’s tax law specifically provides that when a single tract of land lies in two different taxing districts, each taxing district is to assess the portion that lies within its district unless one taxing district adopts a resolution requesting that the entire tract be assessed by the other taxing district.

Since neither Maplewood nor South Orange had adopted such a resolution, the tax court determined that the portion of the common elements that lay in each district was subject to taxation by that district. The tax court also found that Maplewood had no authority to levy taxes that included the value of the access parcel unless South Orange had adopted a resolution giving Maplewood such authority. However, the Maplewood taxes had not been challenged, so the tax court confined its analysis to South Orange’s taxes.

The condominium act provided that ownership of each unit included an undivided interest in the common elements. It also provided that all property taxes were to be levied against the units, not the common elements. Furthermore, tax liens could be filed against the units only and no other portion of the condominium property.

The tax court concluded that the condominium act did not bar South Orange from taxing the access parcel, but it did bar taxing the association since the association did not own the access parcel. Instead, South Orange had to bill each unit owner based on his or her proportionate ownership of the access parcel. The tax court voided South Orange’s taxes against the association, and South Orange appealed.

South Orange argued that requiring it to bill the individual unit owners created not only significant administrative problems but practically denied it a remedy for nonpayment. South Orange can lien only the property within its jurisdiction, unless the court determined it could lien property in another district. South Orange asserted that its tax lien would be effectively unenforceable if it could not lien the access parcel. The appeals court would not comment on lien rights since the issue had not been raised before or decided by the tax court.

The appeals court reached the same conclusions as the tax court regarding the interplay of the condominium act with the tax law. Accordingly, the tax court’s judgment was affirmed.

©2016 Community Associations Institute. All rights reserved. Reproduction and redistribution in any form is strictly prohibited.

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