December 2017
In This Issue:
Recent Cases in Community Association Law
Individual Condominium Owners Have Right to Vote on Master Association Bylaws
Attempt to Clarify Restriction Causes More Confusion
Associationís Verbal Denial of Construction Request is Proper
Ground Lease Development Restrictions Limit Later Development
Common Development Plan Did Not Bind Undeveloped Property
Association Amends Declaration Validly; Eliminates Mandatory Club Membership
Developerís Easement Terminated by Association
Associationís Suit Against Owner Unrelated to Ownerís Protests
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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 illustrations 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. In addition, the College of Community Association Lawyers prepares a case law update annually. Summaries of these cases along with their references, case numbers, dates, and other data are available online.


Individual Condominium Owners Have Right to Vote on Master Association Bylaws

Leo v. Diana Court Owners Association, No. 49574-1-II (Wash. Ct. App. Oct. 24, 2017)

Assessments: The Court of Appeals of Washington held that a master association’s bylaws had to be approved by a majority of the condominium association members since the bylaws provided for the condominium’s administration.


Vista Village Recreation and Maintenance Association (master association) managed five condominiums in the Vista Village community in Thurston County, Wash. Each condominium also had its own condominium association.

Donald Leo owned a unit in the Diana Court Condominium, which was governed by Diana Court Owners Association (DCOA). The Diana Court declaration of covenants, conditions and restrictions (declaration) required all Diana Court owners to be members of both the master association and DCOA. The declaration also obligated each owner to pay assessments to the master association according to the master association’s bylaws.

In 2015, amendments to the master association’s bylaws (amended bylaws) were approved by the boards of each condominium association except DCOA. The amended bylaws assigned carports to the units as limited common area and specified that each owner must maintain and repair, at the owner’s expense, the limited common areas serving the unit. The master association then sought to repair the gutters on Leo’s carport and to charge him for the repair costs.

Leo sued the master association and DCOA, asserting that the master association was not authorized to charge him for limited common area repairs. Leo argued that the amended bylaws were invalid because they were not approved by the Diana Court owners. The trial court entered judgment in favor of the master association and DCOA. Leo appealed.

The declaration provided that bylaws for the administration of Diana Court and DCOA were to be adopted by a majority of the Diana Court owners. The appeals court determined that the master association’s bylaws explicitly administered Diana Court. The master association and DCOA argued that the owner voting provision did not apply to the master association’s bylaws since the declaration specifically provided that owners were subject to the master association’s bylaws in addition to DCOA’s governing documents.

The appeals court disagreed, finding that the two provisions had to be read together. It concluded that the master association’s bylaws that administered Diana Court had to be adopted by a majority of its owners to be binding against them. Accordingly, the amended bylaws were invalid with respect to Diana Court.

Leo also argued that the trial court erred in determining that the master association was authorized to assess limited common area repair costs only on the owners benefited by the limited common area. Since Diana Court was established in 1975, it was subject to the Washington Horizontal Property Regimes Act (HPRA), which governs condominiums created before July 1990. However, some provisions of the Washington Condominium Act (WCA), governing newer condominiums, also apply to older condominiums.

HPRA provides that condominium common expenses are to be charged against the owners in accordance with their respective percentage interests in the common areas. WCA states that, to the extent required by the declaration, any common expenses benefitting fewer than all units must be assessed exclusively against the units benefitted.

While the amended bylaws authorized the master association to impose assessments against individual owners for limited common area maintenance and repairs, the declaration did not provide for limited common area assessments. Therefore, the appeals court held that HPRA’s general rule governed how limited common area expenses were to be charged against the owners. It found the trial court erred in denying summary judgment to Leo on the assessment issue.

Accordingly, the appeals court vacated the trial court’s judgment in favor of the master association and DCOA, awarded Leo attorneys’ fees as the prevailing party, and remanded the case for further proceedings.

©2017 Community Associations Institute. All rights reserved. Reproduction and redistribution in any form is strictly prohibited.

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Attempt to Clarify Restriction Causes More Confusion

Buysse v. Jones, No. COA17-419 (N.C. Ct. App. Nov. 21, 2017)

Covenants Enforcement: The Court of Appeals of North Carolina held that the original developer’s intent should guide the interpretation of ambiguous building restrictions.


The Gimghoul Neighborhood in Chapel Hill, N.C., was developed in 1923. The subdivision plat showed a setback line and noted that the building line was 40 feet from Gimghoul Road. However, the plat did not indicate the road’s width or a specific right-of-way. The original lot deeds restricted erecting buildings “nearer any street than the building line” located 40 feet from Gimghoul Road’s northern boundary.

In 1926, Mr. and Mrs. Sterling Stoudemire purchased Lot 7. In 1950, there was an effort to modify the original deed restrictions by a separate set of covenants. One of the proposed changes would have changed the setback provision to prohibit buildings “nearer any street than the building line” shown on the plat, but in no case less than 40 feet from the front lot line. However, the 1950 covenants were neither signed by the lot owners nor recorded.

In the 1980s, the Gimghoul Homeowners Association (association) sought to modify the original deed restrictions by a declaration of covenants, conditions, and restrictions (declaration). The declaration prohibited erecting buildings nearer than 40 feet from the street. The declaration stated that its intent was to preserve the original deed restrictions’ purpose in conjunction with the 1950 proposed amendments. The declaration was signed by a majority of the lot owners, including the Stoudemires, and recorded.

Adam and Susan Jones purchased Lot 7 in 2006. In 2013, the Joneses submitted plans to the city for a front porch addition. In 2014, the Historic District Commission issued a certificate of appropriateness. The Chapel Hill Planning Department also issued a zoning compliance permit and a building permit.

However, the association repeatedly warned the Joneses that the porch would violate the 40-foot setback requirement and offered to assist with remedying the problem. Undeterred, the Joneses began construction. The porch extended to 33 feet from their property line, which was about 43 feet from the Gimghoul Road’s pavement edge and 83 feet from Gimghoul Road’s northern boundary.

In August 2014, lot owners Bob Buysse, Joan Guilkey, and Mike Miles (collectively, plaintiffs) sued the Joneses for violating the setback requirement. Finding that the porch encroached into a 40-foot setback from the southern edge of Gimghoul Road’s right-of-way, the trial court ordered that the porch be removed. The Joneses appealed.

Although one of the declaration’s stated purposes was to remove ambiguities in the original deed restrictions, the appeals court found the declaration actually created more ambiguity by using the generic term “street” without defining it. The appeals court determined that “street” could be interpreted to either include or exclude sidewalks.

When interpreting an ambiguous word, the appeals court stated that all surrounding circumstances may be considered, including those existing when the document was drafted. Therefore, the appeals court examined the original plat and deed restrictions for the original developer’s intent.

Although the original plat showed a setback line, it could not be precisely located since the plat showed no defined boundaries for Gimghoul Road. However, the appeals court determined that the deed restrictions clearly and unambiguously stated that the setback line was to be measured 40 feet from Gimghoul Road’s northern boundary.

The trial court should not have attempted to resolve the inconsistencies among the deed restrictions, the 1923 plat, the 1950 proposed changes, and the 1984 declaration. Rather, where the original developer’s intent was clear, the trial court was obligated to interpret the restrictions narrowly and in accordance with that original intent.

Therefore, the trial court erred in determining that the setback line should be measured from the southern side of Gimghoul Road. Since the evidence clearly showed that the porch was located more than 40 feet from Gimghoul Road’s northern boundary, the appeals court reversed the trial court’s judgment and remanded the case for judgment to be entered in the Jones’ favor.

©2017 Community Associations Institute. All rights reserved. Reproduction and redistribution in any form is strictly prohibited.

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Associationís Verbal Denial of Construction Request is Proper

Forest Hills Improvement Association, Inc. v. Flaim, No. 09-15-00478-CV (Tex. App. Nov. 9, 2017)

Covenants Enforcement: The Texas Court of Appeals held that an association’s verbal denial of an architectural request was sufficient because the restrictions did not require a written response, and the association’s failure to enforce one restriction did not waive its right to enforce all restrictions.


Forest Hills Improvement Association, Inc. (association) governed the Forest Hills Subdivision in Jasper County, Tex. Richard Flaim owned a lot in the subdivision.

The subdivision deed restrictions required that all new construction be approved by the association. If the association did not disapprove the plans within 30 days of submission, the owner could begin construction in accordance with the deed restrictions.

The deed restrictions also provided that no building could be located within 10 feet of the rear lot line. The restrictions specifically allowed the association to grant variances to the setback requirement, but did not specify other variances.

In 2001, Flaim obtained association approval to install a concrete parking pad about two feet from his rear lot line. Some years later, Flaim sought permission to construct a carport over the parking pad. He first approached Eddie Bass, who was a board member as well as a general contractor. Bass said he could not build the carport because it would violate the setback restriction.

Flaim submitted four written requests to the association between August 2011 and May 2013. The association verbally denied each request; but, in May 2013, the association’s lawyer informed Flaim in writing the request was denied. In June 2013, Flaim constructed the carport anyway.

The following month, the association sued Flaim, seeking a declaratory judgment (judgment without a trial based on undisputed facts) that Flaim violated the setback requirement and an order to remove the carport. The trial court concluded that the association had waived the approval requirement by failing to respond to Flaim’s repeated requests, thus allowing Flaim to construct the carport in accordance with the plans submitted.

The trial court also determined that the association had waived its enforcement rights by selectively enforcing the deed restrictions, particularly violations by board members. The association appealed.

The appeals court disagreed with the trial court’s conclusion because the deed restrictions did not specifically require the association to respond to plan submissions in writing. The appeals court declined to read more into the deed restrictions than the actual text, and it concluded that the deed restrictions allowed the association to give a verbal response.

Since Flaim admitted that the association verbally responded, there was no evidence to support the trial court’s conclusion that the association failed to respond. The appeals court further found that, even if the association had never responded to Flaim’s request, the carport could not be authorized by default. The deed restrictions specifically provided that, if the association failed to respond within 30 days, construction could proceed in accordance with the restrictions. Since the carport violated the explicit setback requirement, it was not in accordance with the restrictions.

To prove waiver of a deed restriction, a violation must be so substantial that the average person would reasonably conclude that the restriction had been abandoned. Factors to consider in analyzing waiver include the quantity and severity of the violations, prior enforcement actions, and whether it is still possible to realize to a substantial degree the restriction’s intended benefit.

Flaim had shown that other deed restrictions had never been enforced, such as Bass violating the prohibition on commercial operations by conducting business out of his home. However, there was no evidence that the association had failed to enforce the setback violation. In fact, the association had pursued setback violations against other owners. The appeals court found the other violations were distinct and separate from the setback requirement. As such, the appeals court held that the association did not waive its right to enforce the setback requirement.

The appeals court reversed the trial court’s judgment. The case was remanded with instructions for the trial court to enter declaratory judgment in the association’s favor, to grant an appropriate remedy to the association, and to consider the association’s claim for attorney’s fees.

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Ground Lease Development Restrictions Limit Later Development

The Waterview Towers Condominium Association, Inc. v. City of West Palm Beach, No. 4D16-2858 (Fla. Dist. Ct. App. Nov. 1, 2017)

Development Rights: The Florida District Court of Appeal held that leasehold condominium unit owners could enforce development restrictions in the ground lease since the lease was part of the condominium governing documents.


In 1968, West Palm Beach Marina, Inc. (Marina) entered into a 99-year ground lease for a waterfront parcel with the City of West Palm Beach, Fla. (city). The city and the Marina agreed that the entire parcel would be converted to a leasehold condominium and submitted to the Florida Condominium Act (act).

The property was divided into a residential unit (R1) and two commercial units (C1 and C2). The lease provided that the commercial portion would include a marina with related facilities, surface parking, and a commercial building not exceeding four stories. The lease further provided that the parcel’s development must retain the waterfront character specified in a site plan approved by the city. The site plan approved by the city specified that a building not exceeding four stories or 20,000 square feet could be built on C2.

A declaration of condominium (declaration) established the condominium regime, and The Waterview Towers Condominium Association, Inc. (association) was organized to govern it. R1 was developed as a residential tower containing 132 units, and C1 was developed as a marina. C2 was not developed initially, but the declaration specified that a commercial building not exceeding 75 feet high could be built on C2. C2 was located between the residential tower and the waterfront.

In 2007, Leisure Resorts, LLC (Leisure Resorts) purchased the leasehold rights in C1 and C2. In 2009, the city and Leisure Resorts entered into a development agreement approving plans for a parking garage and hotel on C2. In the development agreement, the city expressly waived its right to enforce the lease’s view restrictions.

Leisure Resorts assigned its interests in C2 to Palm Harbor Hotel, LLC (Hotel). In 2013, the Hotel applied for rezoning of C2 to permit an eight-story hotel with an attached three-story parking garage. The city approved the rezoning.

The association and two residential unit owners (collectively, plaintiffs) sued the city and the Hotel (collectively, defendants), seeking a determination that the association and the unit owners had the right to enforce the lease’s development restrictions on C2.

The trial court held that only the city had the right to enforce the lease restrictions, and the city could waive those restrictions. The trial court further held that the plaintiffs could enforce only the declaration’s restrictions, and they had no approval rights over commercial unit development. The plaintiffs appealed.

The appeals court held that the defendants were bound by the declaration because both the city and the Hotel’s predecessor agreed in the lease that the entire property would be a leasehold condominium submitted to the act. The appeals court disagreed with the defendants’ assertion that the residential unit owners lacked standing to enforce the declaration against the commercial unit owners. In some cases, the declaration distinguished between residential and  commercial unit owners, but not in the remedies section. The declaration clearly provided that the association or any unit owner could bring an action to enforce a condominium document violation, which specifically included the lease.

The appeals court further held that the residential unit owners could enforce the lease provisions as part of the lease’s general building scheme that contemplated a mixed-use development where all unit owners would benefit from the presence of the marina, the view, and the unique waterfront character.

The lease could also be enforced by the residential unit owners because its restrictions were imposed for the benefit of all owners. Since the lease imposed the restrictions on the entire parcel, every unit was burdened and benefitted by the restrictions. Moreover, the act provided that an association may institute a suit on behalf of all owners concerning matters of common interest to most or all owners. As such, the trial court erred in ruling that C2’s development was not limited to one four-story building containing a maximum of 20,000 square feet.

The plaintiffs argued that only one commercial building could be built on C2, while the defendants asserted that a commercial building and a separate parking facility could be located on C2. The appeals court found that the condominium documents did not limit the type of parking. The lease referred to surface parking, while the declaration referred to a parking facility. Finding the parking restriction ambiguous, the appeals court held that restriction could not be interpreted to limit the parking in C2 only to surface parking.

Accordingly, the trial court’s judgment was reversed, and the case was remanded for further proceedings.

©2017 Community Associations Institute. All rights reserved. Reproduction and redistribution in any form is strictly prohibited.

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Common Development Plan Did Not Bind Undeveloped Property

Lutzak v. Phoenix American Development Partners, L.P., No. M2015-02117-COA-R3-CV (Tenn. Ct. App. Oct. 18, 2017)

Development Rights: The Tennessee Court of Appeals held that a deed to undeveloped property referencing the declaration was insufficient to subject the property to the declaration’s terms since the declaration specified not only the property it encumbered but also the sole method for subjecting additional property to the declaration.


Saturn I Land Partners (Saturn) contracted to sell Tract 4.0, a 168-acre parcel, in Williamson County, Tenn. The purchaser filed a master development plan with the county to create the Spring Hill Place subdivision including 376 residential lots in 13 sections.

Spring Hill Place Land Partners Limited Partnership (Spring Hill Partners) assumed the purchase contract and recorded a declaration of covenants, conditions, and restrictions for Spring Hill Place (declaration). It purchased Tract 4.0 from Saturn in phases. Each deed from Saturn to Spring Hill Partners specified that the conveyance was subject to the declaration. As Spring Hill Partners developed each phase, it recorded a plat noting that the lots were subject to the declaration.

Spring Hill Partners defaulted on its development loan, and the bank began foreclosure proceedings. At that point, Spring Hill Partners owned 43 platted lots and 62 acres of undeveloped, unplatted land.

In May 2010, the Dianne Elizabeth Lutzak Family Revocable Trust (Trust) agreed to buy the defaulted loan to stop the foreclosure proceedings. Spring Hill Partners agreed to submit the remaining platted lots to the declaration and to convey the unplatted land to the Trust. The deed to the Trust did not reference the declaration. Spring Hill Partners retained a right of first refusal to repurchase the unplatted land for five years.

In January 2014, the Trust applied to the county for approval of a subdivision on unplatted land. Spring Hill Partners and owners in the Spring Hill Place subdivision objected to the proposed restrictive covenants for the new subdivision because they differed from those in the declaration.

Dianne Lutzak, as trustee of the Trust, filed suit against Spring Hill Partners and Spring Hill Place Homeowners’ Association, Inc. (collectively, the defendants), seeking a ruling that the declaration did not apply to the unplatted land. In 2015, Spring Hill Partners assigned its rights to Phoenix American Development Partners L.P., which was substituted for Spring Hill Partners in the case.

The trial court rejected the defendants’ argument that the title documents to the unplatted land subjected it to the declaration. It also refused to impose restrictive covenants on the unplatted land based on the common development plan doctrine, finding that the doctrine did not apply because Spring Hill Partners expressly retained the right to deviate from the plan by adding or removing property in the Spring Hill subdivision. The defendants appealed.

The appeals court stated that Saturn’s intent, as the original grantor, must be determined from the words of the deeds as a whole and from the surrounding circumstances. The three deeds conveying Tract 4.0 from Saturn to Spring Hill Partners specified that the conveyance was subject to the declaration.

However, the appeals court stated that to interpret the deeds as subjecting the unplatted land to the declaration would ignore the declaration’s clear terms. The declaration specified that the property it encumbered was described more particularly on Exhibit A, and additional property could be submitted to the declaration’s terms by recording a supplemental declaration.

The unplatted land was not included in either the original declaration exhibit or a supplemental declaration. The appeals court determined that the declaration specified, not only the property encumbered by it, but also the sole method for subjecting more property to it. Thus, the unplatted land was not subject to the declaration by its express terms.

Restrictive covenants on land use may be implied under the common development plan doctrine. When a developer sells land with restrictions designed to implement a common development plan, it implies to purchasers that all land in the plan will also be subject to the restrictive covenants. If a common plan has been established, and some lots are sold with restrictions and some without, equity will impose the restrictions on the unrestricted lots to protect purchasers who reasonably relied on the developer’s representations.

The appeals court found that the Spring Hill owners did not reasonably rely on representations by Spring Hill Partners that the unplatted land would be submitted to the declaration. In the declaration, Spring Hill Partners reserved the right to amend the master plan, and it did so numerous times over the years. The common development plan doctrine has no application when the developer has expressly retained the right to deviate from the plan.

Accordingly, the trial court’s judgment was affirmed.

©2017 Community Associations Institute. All rights reserved. Reproduction and redistribution in any form is strictly prohibited.

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Association Amends Declaration Validly; Eliminates Mandatory Club Membership

Silver Beach Towners Property Owners Association, Inc. v. Silver Beach Investments of Destin, L.C., No. 1D16-4555 (Fla. Dist. Ct. App. Oct. 18, 2017)

Documents: The Florida District Court of Appeal held that mandatory membership in an off-site, for-profit private club did not constitute a unit appurtenance under the Florida Condominium Act.


Silver Beach Towers Property Owners Association, Inc. was the master association governing two condominiums in Destin, Fla. Each condominium had its own condominium association. The two condominium associations were the master association’s members; individual unit owners were only members of their respective condominium associations.

The declaration of condominium (declaration) obligated each owner to be a member of The Club at Silver Shells, Inc. (club), a non-equity club located about one mile from the condominium. The master association collected club dues and other fees from the owners and paid them to the club. The club had the right to change the dues and fees without notice.

In 2008, Silver Beach Investments of Destin, L.C. (developer) turned over control of the master association to the two condominium associations. In accordance with the declaration, each condominium association appointed one director to the master association’s board.

In May 2010, a declaration amendment eliminating the mandatory club membership was adopted by the unanimous agreement of both master association directors. In May 2012, the developer and the club filed suit against the master association and both condominium associations, seeking to recover club dues and fees under the original declaration.

The trial court ruled that the declaration amendment was invalid because the declaration specified that club memberships were appurtenances to the units (rights belonging to the units and used for their benefit). The Florida Condominium Act (act) provides that material changes to unit appurtenances must be approved by all unit owners. Since there was no unanimous approval by the individual owners, the trial court ruled in the favor of the developer and the club. The associations appealed.

The appeals court found that the trial court misapplied the law. The appeals court determined that merely stating that club membership was appurtenant to each unit was insufficient to make it a legal appurtenance. The appeals court also was not sympathetic to the club arrangement. The declaration obligated each owner to be a member of an off-site, for-profit club in which neither the owners nor the associations had any ownership or management rights.

The club was not exclusively for the owners; it could offer memberships to third-parties. The club could terminate an owner’s club membership without cause or recourse. The club property and facilities did not constitute common elements or condominium property under the act. Finding that the club was not owned, controlled, or even affected by the owners or the associations, the appeals court held that the club memberships were not unit appurtenances within the act’s meaning.

Further, the appeals court held that, even if the club memberships were unit appurtenances, the act’s approval requirements still did not invalidate the amendment. The act provides that unanimous owner approval is required to modify unit appurtenances unless otherwise provided in the original declaration. The appeals court found that the declaration provided otherwise.

The declaration stated it could be amended with the approval of master association members holding two-thirds of the master association votes. The developer’s consent was only required prior to turnover. There was no evidence that the two master association directors were not authorized to cast the votes of their respective condominium associations. Thus, the amendment was validly adopted.

Accordingly, the trial court’s judgment was reversed. The case was remanded for the trial court to determine the dues owed to the club prior to the declaration amendment’s effective date.

©2017 Community Associations Institute. All rights reserved. Reproduction and redistribution in any form is strictly prohibited.

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Developerís Easement Terminated by Association

Majestic Oaks Homeowners Association, Inc. v. Majestic Oaks Farms, Inc., No. 2016-SC-00213-DG (Ky. Sep. 28, 2017)

Documents: The Supreme Court of Kentucky held that an association could amend its declaration to remove the developer’s easement since the developer’s consent was not required for an amendment.


Majestic Oaks Homeowners Association, Inc. (association) governed Majestic Oaks Equestrian Estates in Shelby County, Ken. The declaration of covenants, conditions, and restrictions (declaration) gave Majestic Oaks Farms, Inc. (developer) an easement to use the community’s private roads as long as the developer owned a lot or a portion of the property subject to the declaration.

The declaration indicated that the initial property was intended to be part of a larger development, and it gave the developer the right to subject additional property to the declaration. By 2000, the developer had expanded the community to include three phases. The phase three plat identified adjacent property intended for future development of phases four and five. By 2006, the developer had sold all property subject to the declaration except phase four, which it still owned.

The association proposed a declaration amendment to remove the developer’s access easement. The declaration provided that it could be amended by a vote of 67 percent of the association’s members. The amendment passed, and the association sued the developer to stop its continued use of the terminated easement.

Both sides moved for summary judgment (judgment without a trial based on undisputed facts). The trial court ruled in the developer’s favor, and the association appealed.

Since the easement was contractually created by the declaration, the contract also defined the parties’ rights as well as the extent of the easement. As the declaration’s drafter (or the party responsible for its drafting), the developer’s retained rights were confined to the precise language it chose in establishing the easement.

The declaration clearly provided that “these covenants and restrictions” could be cancelled, altered, or amended by 67 percent of the association’s members, but the developer retained the sole right to appoint the architectural approval committee until the last lot was sold. Since the developer no longer owned property subject to the declaration, it was not an association member and had no voting rights.

However, the developer argued that the amendment authority was confined to the declaration’s restrictions, which did not include easements. The appeals court disagreed since the amendment authority specifically referenced covenants and restrictions. Looking to Black’s Law Dictionary, the appeals court determined that a covenant is an agreement that property will be used in a certain way. Since an easement allows property to be used for a certain purpose, the appeals court concluded that an easement constituted a covenant.

Further, the amendment language specified that the developer retained the sole right to appoint the architectural approval committee until the last lot was sold. The appeals court determined that, if the developer had intended to limit the amendment process only to restrictions, it would not have addressed the developer’s rights in the same sentence.

While the appeals court did not find the amendment language ambiguous, it stated that ambiguity would be construed against the developer, as the declaration’s drafter. As such, the association clearly had the authority to amend the declaration to remove the developer’s easement rights.

The summary judgment grant in the developer’s favor was reversed, and the case was remanded with instructions that summary judgment be entered in the association’s favor.

©2017 Community Associations Institute. All rights reserved. Reproduction and redistribution in any form is strictly prohibited.

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Associationís Suit Against Owner Unrelated to Ownerís Protests

Presidio Community Association v. Dulgerian, No. G053995 (Cal. Ct. App. Nov. 13, 2017)

State and Local Legislation and Regulations: The Court of Appeal of California held that an owner’s preventing the association’s landscaper from completing a project the owner opposed was not free speech protected by California’s anti-SLAPP statute.


Presidio Community Association (association) governed the Presidio community in Orange County, Cal. Greg Dulgerian and Melanie Belger owned homes in the community.

Each home’s front yard was planted with grass that was maintained by the association. The association considered replacing the grass with drought-resistant plants to save money on water during droughts and to qualify for rebates from the local water district. Greg Dulgerian’s wife and Belger strongly opposed the proposal and protested to the association’s board and manager through emails, letters, and appearances at board meetings. Nevertheless, the association proceeded with the project.

When the landscape contractors arrived to undertake the work, Mrs. Dulgerian and Belger ordered the contractors off their properties. Belger also threatened to call the police.

The association completed the grass replacement project except Dulgerian’s and Belger’s front yards. It then sued Dulgerian and Belger (collectively, the owners) for declaratory judgment (judicial determination of the parties’ legal rights), nuisance, and an injunction to prevent the owners from interfering with the landscapers. The association alleged that it would replace grass only in nonprivate yard areas, which were under the association’s control.

The owners moved to dismiss the case under California’s anti-SLAPP (strategic lawsuit against public participation) statute. The owners asserted that the association was suing them for protesting the project, which they claimed was speech protected by the anti-SLAPP statute. The trial court denied the motion, finding that the conduct alleged in the association’s complaint was not protected conduct. The owners appealed.

The anti-SLAPP statute’s purpose is to address lawsuits intended to stymie the rights of free speech and to petition for grievances to be rectified. The anti-SLAPP statute applies when the lawsuit arises from a protected activity. The chief consideration is whether the lawsuit is based on the defendant’s protected free speech or petitioning activity.

The owners asserted that the association’s claims arose from two kinds of protected activity:  public statements made regarding an issue of public interest and conduct in furtherance of the right of free speech. The defendant’s action must itself have been an act in furtherance of the right of free speech. The fact that the lawsuit was filed after the owners exercised their right of free speech does not automatically mean the complaint arose from that activity.

The appeals court determined that the association’s lawsuit was not based on the owners’ protests about the grass replacement project. Rather, it was based on the owners’ interference with the association’s landscapers. In fact, none of the association’s allegations dealt with free speech.

The appeals court stated, although the lawsuit involved the grass replacement project, that alone did not convert the owners’ protests into the basis for liability. The owners were free to continue to protest the project through emails and statements at board meetings. The injunction sought by the association would not impinge on those free speech rights; it would only affect the owners’ abilities to obstruct the landscapers’ work.

The appeals court pointed out that, if the owners had never protested the project but still blocked the landscapers’ work, the association’s complaint would be unchanged. So, it was clear the lawsuit did not involve activity protected by the anti-SLAPP statute.

The trial court’s order was affirmed, and the association was awarded its appellate costs.

©2017 Community Associations Institute. All rights reserved. Reproduction and redistribution in any form is strictly prohibited.

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