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Real Estate & Property Law

: a View from the property line

Baked Alaskans

By William G. Gammon

Forgive the play on words in the title, but this article originates from an Alaska Supreme Court case and highlights the notion that Associations shouldn't necessarily interfere in "neighbor v. neighbor" disputes, nor do they have the duty to do so under the deed restrictions in most cases.

The Court in this case held that there is no actionable claim against the Association for "insufficient vigilance."

Actually, and for the very reasons outlined in this case study, the deed restrictions for a community oftentimes include an "anti-waiver" provision for Associations to invoke so that the Association isn't forced to litigate every single nuisance-like occurrence or event reported by disgruntled homeowners. Sometimes these incidents are between neighbors who may have a beef with one another -- and not the Association -- but will do anything to drag the Association into their personal vendettas as the "hired muscle" to bend the offending neighbor to their will or punish them.

Speaking from personal experience, Association involvement in arguments that can be more appropriately characterized as neighborly disputes only ends in needless (and escalating) legal fees for the Association (which affects ALL the members when it comes time to planning for annual budgets and possible assessment increases) and hurt feelings by one or more of the warring parties.

In the Alaska case, the homeowner had a series of complaints against the Association and her neighbors for various items of conduct including: failure to repair a leaky roof, failure to sand the unit's porch, failure to remove snow from the unit's porch and driveway, installing a fence to prohibit parking in the courtyard, verbal harassment and assault by neighbors, theft of the homeowner's plants, mail and mailbox tampering, vandalism of the homeowner's vehicle by the residents, and intentional infliction of emotional stress. Conversely, the Association also held legitimate claims against the homeowner for violative conduct against the deed restrictions including parking a vehicle in the Condominium's courtyard and walking a dog without a leash.

At trial, the Court ruled that the homeowner had no actionable claim against the Association for "insufficient vigilance" in enforcing the deed restrictions, but instead should have sued her fellow condominium owners to whom she attributed the offensive conduct against her. The Association was also successful on its claims against the homeowner for the violations of the deed restrictions. On appeal, the Alaska Supreme Court sided with the Association, ultimately, because the evidence tendered by the homeowner was deficient and the Trial Court had not abused its discretion when issuing its ruling(s) based on that evidence and the lack of an actionable claim against the Association.

*To read the full saga of the "Baked Alaskan (neighbors)", see Gilbert v. Simonka, Nos. S-11470, S-11841, 1282, Alas. Supreme Ct., July 25, 2007.

Full post as published by a View from the property line on April 21, 2009 (boomark / email).

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