HOA Law Blog
David C. Swedelson, Esq., CCAL joins Timothy Cline, CRIMS and Tony Menke, CPCU of Cline Insurance to discuss tendering insurance claims for your association, including when you should tender losses to the carrier for various lines of coverage. This is great advice for community association managers and board members alike. It makes a world of difference if you understand your policies, how and when to file insurance claims or put a carrier on notice, and what can happen when you don’t. Catch the podcast here:
SwedelsonGottlieb’s David Swedelson Was a Featured Guest on the HOA Show Podcast
We are often asked how much insurance a condo or coop association should carry. I often respond by saying as much as the association can afford. Here is a great example of a situation involving one of our firms clients (the facts have been altered to maintain confidentiality). A woman was trying to get into a condo association and the parking arm was stuck. She and her entourage were physically trying to get the arm to move when it dropped hitting her in the leg. It hit an artery and she almost died. She suffered some permanent disabilities and then she sued the association.
I recently assisted a large condominium association in dealing with a claim by an owner that she had fallen and injured herself after tripping on a common area walkway. Management looked at the area where this woman claimed to have fallen, and all they could find was a slightly raised area of concrete – a trivial defect. It reminded me of a 2011 Court of Appeal decision in the case of 
It is a common scenario. A homeowner (usually disgruntled or in trouble with their association) either wants their attorney to attend a board meeting with them or in their place. Often, we hear about it after the meeting where the attorney appeared on behalf of their client and intimidated the board. This situation raises three hotly contested issues: (1) Do homeowners have the right to have their attorney present at board meetings? (2) Can homeowners delegate their right to attend board meetings to nonmembers? and (3) Does it make a difference in delegating powers to attend board meetings if the owner of a unit is a natural person or an entity? We have not had a solid answer to these questions. That is, until the Court of Appeal came down with its decision in the case of 
If you live in a condo in North Dakota and are into illegal drugs, be advised that it is OK for the police to bring drug-sniffing dogs into your association’s common area without a warrant, according to the North Dakota Supreme Court (
Consider the following, a somewhat typical scenario: your association has been sued by an owner who claims the board failed to maintain the common area that resulted in water leaking into that homeowner’s unit, causing damage. The board tenders the claim to the association’s insurance carrier. The claim is not resolved, or it may not even be a covered claim under the association’s insurance policy, and the owner files a lawsuit. The lawsuit is tendered to the association’s insurance carrier with a request that the carrier defend the lawsuit and indemnify the association from any damages. The insurance carrier accepts the tender with limited reservations of rights (insurance carriers always reserve rights to deny coverage if it later determines or discovers there is no coverage). 
The Court of Appeal recently came down with a decision regarding a lawsuit filed by several condominium owners who bought units in the Hard Rock Hotel San Diego, a mixed-use development with 420 condominium units. The Court of Appeal’s decision indicates that when these owners bought their units, they not only entered into purchase agreements, they also signed rental management agreements eight to fifteen months later. Does this mean that they get to sue for securities violations? Relating to a condo association? The following is a good definition of “Securities Fraud”.
It is not uncommon for a condo association or HOA to become embroiled in some sort of dispute or litigation as a defendant, having been named in a lawsuit by a disgruntled owner. The lawsuit comes in, and after being evaluated to determine if it is a case that should be defended by the Association’s insurance carrier, it is tendered to the carrier. The fact that the Association has been named in the lawsuit raises several questions: 
A longtime client of the firm was sued by a woman that did not live in the association who claimed that our client had illegally obstructed her view of a lake owned by our client association. After a jury trial on the sole cause of action that was left after we prevailed on a motion for summary adjudication knocking out all of her other frivolous claims, the jury decided that there was no spite fence. This result was not a surprise as the plaintiff was not entitled to her view of the lake, no matter how precious it was to her.
The plaintiff did enjoy a view of the association’s lake. But her view became obstructed several years later when the trees that the association’s developer planted grew up.