December 2012

Robert Dublirer vs. 2000 Linwood Avenue Owners, INC. (New Jersey)

Dublirer vs. 2000 Linwood Avenue Owners, INC once again raises the issue of whether the New Jersey State Constitution free speech clause applies to members' expression in community associations. Unlike Mazdabrook Commons Homeowners Association vs. Khan, 210 N.J. 482 (2012), Dublirer raises the issue of whether door-to-door distribution of campaign fliers and solicitation of votes is protected by the free speech clause.

2000 Linwood is a cooperative. Dublirer is a shareholder/tenant. 2000 Linwood has rules barring all solicitations and distributions of written materials within the building or the posting of signs in common areas without prior approval of the board. Nevertheless, the cooperative has made exceptions by distributing its own notices, including election campaign material. Board members also solicit proxy votes for elections. The Board members had different interpretations of what specifically is allowed and not allowed, but apparently they agreed that a person could solicit proxies for an election but would not be permitted to promote his own or another's candidacy.

Dublirer inquired whether the no-solicitation rule applied to his plan to distribute materials in the furtherance of his plan to run for a position on the board. He was informed the rule applied. Therefore, he submitted a formal request for permission to distribute the materials, which was denied. He then filed suit, seeking declatory and injuctive relief invalidating the no-solicitation rule.

Brief: CAI's Amicus Brief
Prior Ruling: Appellate Court Decision
Status: Amicus Brief Denied
Ruling: Against the Cooperative
CAI Amicus Brief Author: HILL WALLACK LLP 
CAI Amicus Brief Review Committee: Robert Diamond, Esq; Jennifer Loheac, Esq; Stephen Marcus, Esq; Thomas Moriarty, Esq; Ellen Shapiro, Esq.

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September 2012

Drummer Boy Homes Association vs. Carolyn and Randy Britton (Massachusetts)

The Brittons, unit owners in the Drummer Boy Green Condominium II, withheld payment of monthly condominium fees due and owing to protest fines that the Drummer Boy Condominium Association, Inc. had previously assessed.  The Brittons, as of this date, have withheld payment of approximately eight years' worth of monthly assessments.

On July 31, 2007, the Association instituted a collection action against the Brittons to establish and enforce a six-month priority lien for common expenses due and owing.  On January 28, 2008, the Association instituted a second collection action to establish and enforce a six-month priority lien for those common expense due and owing in the six-month period subsequent to the filing of the first collection action   On September 30, 2008, the Association instituted a third collection action to establish and enforce a six-month priority lien for those common expenses due and owing in the six month period subsequent to the filing of the second action.  The Trial Court consolidated these three actions for determination.  As the delinquency continued, the Association filed successive complaints in order to establish successive priority liens for the Britton's continued non-payment of monthly condominium expenses.  Those actions have been stayed. 

The Trial Court entered Judgement for the Association finding common expenses due and owing, and establishing that the Association has a lien for the entire amount of the delinquency, but that only a single, six-month period of that delinquency immediately preceding the filing of the first action has priority over the first mortgage holder.  The Trial Court declined to award the Association attorney's fees incurred in connection with the filing of the second and third collection actions.  The Appellate Division of the District Court affirmed the Decision & Order of the Trial Court.  The parties when appealed the Appellate Division's Decision and Order t the Massachusetts Appeals Court. 

The Appeals Court rejected the Associations argument that by filing successive lawsuits, the law permits it to establish multiple priority liens, ahead of the first mortgage, for multiple six-month periods of unpaid assessments.  The Appeals Court concluded that:  it is up for the Legislature, and not for this court, to decide whether to expand priority status for common expense assessments beyond a single six-month period preceding the filing of an action.

The Appeals Court's decision conflicts with and rejects the more than twenty years of practice and jurisprudence that followed the legislature's adoption of the priority lien provisions in 1992, as reflected in thousands of trial court decisions, and the Appeals Court's decisions significantly undermines the ability of condominium associations to collect unpaid common expense assessments. 

Brief: CAI's Amicus Brief
Prior Ruling: Appellate Court Decision
Status: Supreme Judicial Court Ruling for CAI's Position
CAI Amicus Brief Author: PERKINS & ANCTIL, P.C. 
CAI Amicus Brief Review Committee: Patrick Costello, Esq: Robert Diamond, Esq; Brendan Hunter, Esq; Richard Kennedy, Esq; Russell Robbins, Esq.