Unreasonable results from the lack of reasonableness standard in the Louisiana Condominium Act.
Peter owns condominium unit 301 at the Dapper Department Store Condominiums in downtown New Orleans. He loves that he can lock his door and leave without having to worry about maintaining a yard, as well as the short walk to work which saves him significant money on gas. Although there are over 200 units in the building, Dapper Department Store Condominiums is generally a peaceful place to live because several years ago the condominium association enacted a "Quiet Hours" rule where residents are not to make unreasonable noises between the hours of 10:00 p.m. and 9:00 a.m. the following morning, seven days a week.
Unfortunately, the unit directly above him (unit 401) is leased to an undergraduate at a local university who loves to party on weeknights. Peter has sent twelve letters to the condominium association, the tenant, and the unit owner complaining of unreasonable noises and other disturbances coming from unit 401, but to no avail. Because the tenant clearly does not care and the unit owner is absent, Peter filed suit against the Dapper Department Store Condominium Association, asserting that the association's failure to enforce the condominium rules it enacted was having an adverse effect on the use and enjoyment of his unit.
Much to Peter's dismay, the court granted the Association's exception of no cause of action, holding that he failed to state a claim against the Dapper Department Store Condominium Association. In its holding the court stated that, under the Louisiana Condominium Act, (1) a condominium association has no duty to enforce the rules or regulations it enacts. Therefore, absent an express provision in the condominium documents (2) imposing on a condominium association a duty to enforce its rules, a condominium association has no legal obligation to do so. The Dapper Department Store Condominiums have no such provision in their condominium documents; therefore, the Association has no duty to enforce its rules.
While the holding in the above hypothetical may seem unreasonable, it is how the Louisiana Fourth Circuit Court of Appeal ruled on this issue. (3)
More generally, when Louisiana courts determine whether a condominium association or a unit owner has a particular power or duty, (4) they strictly interpret the powers and duties of condominium associations and unit owners under the Louisiana Condominium Act (the "LCA") and a condominium association's condominium documents. Powers and duties of condominium associations and unit owners must be specifically enumerated either in the LCA or the condominium documents for them to be enforceable. (5) Louisiana courts do not recognize non-enumerated, but reasonable and necessary powers or duties.
Strict interpretation serves as both a shield and a sword for condominium associations and unit owners and does not appear to work in either party's favor. Unless powers are expressly given to a condominium association, its hands are tied. (6) Similarly, a unit owner cannot compel a condominium association to act unless the condominium association has an express duty. (7) If a unit owner seeks to have a condominium rule enforced and the condominium association has not given itself an express duty to enforce its own rules as in the hypothetical above, the unit owner may have to bring the action against the offending unit owner individually. This example illustrates a host of other problems. What if the person violating the condominium rule is a lessee and the unit owner is absent? Will the unit owner really care or have any money with which to pay a judgment? What about the animosity a lack of a duty to enforce brings when a unit owner must bring an action against his neighbor with whom he may share a wall? These are unsavory issues that real-world unit owners would have to face.
Finally, as a matter of policy, strict interpretation hinders one of the inherent, fundamental principals of Louisiana property law--the ability of a property owner to peaceably use and enjoy his immovable property. (8) The practical result of strict interpretation of the LCA and condominium documents is often severe, with detrimental effects on either the ability of a unit owner to use and enjoy his or her property, or the ability of a condominium association to maintain the use and enjoyment of common facilities for other unit owners. This result is unacceptable.
This comment argues that the Louisiana Condominium Act should be amended. (9) Condominium associations should be allowed to exercise powers that are not enumerated in either the Louisiana Condominium Act or the association's condominium documents. Additionally, unit owners should be allowed to impose on condominium associations non-enumerated duties.
The test to determine whether a valid and enforceable implied power or duty exists should be an evaluation of whether it is reasonable and necessary, and not arbitrary or capricious. For an implied power or duty to be deemed reasonable and necessary, the power or duty should bear some relationship to the use and enjoyment of the common elements or individual units by the unit owners. (10) Ensuring that this relationship exists will protect unit owners from tyrannical condominium associations, and condominium associations from self-serving unit owners. Additionally, implied powers exercised by condominium associations should be presumed valid. This presumption is necessary to ensure stability in the condominium association and discourage frivolous lawsuits against the association, the cost of which would eventually be borne by the individual unit owners.
Employing this reasonableness standard will work for the benefit of both condominium associations and unit owners. It will promote flexibility in compelling action and enforcing the powers and duties of both unit owners and condominium associations. As a result, unit owners will be able to better use and enjoy their property, and condominium associations will be able to provide a higher quality of life. Furthermore, uniformity in the context of homeowners associations and condominiums is a logical means to modernize property law. (12) Louisiana already employs a reasonableness standard in evaluating the powers and duties of homeowner's associations. (13) It is from the Louisiana Homeowners Association Act and case law under this act that that the proposed reasonableness standard is in part adopted. Additionally, California and Florida already use the proposed reasonableness standard in evaluating whether condominium restrictions are valid and enforceable. (14) Therefore, Louisiana would not be unique in employing this reasonableness standard under the LCA.
Part I of this comment provides a brief history of the Louisiana Condominium Act, definitions for certain condominium law terms, an overview of the legal perception of condominium associations as distinct private governments (15) whose constitutions are their bylaws and declarations, (16) and an overview of pertinent provisions of the LCA. Part II provides an overview and case analysis of the reasonableness standard used under the Louisiana Homeowners Association Act, and a discussion of the reasonableness standards from condominium regimes in California, Florida, Texas, and the U.S. Virgin Islands. Part III analyzes Louisiana case law illustrating strict interpretation by Louisiana courts of the LCA and condominium documents, and discusses possible alternative outcomes in those cases had the reasonableness standard advocated for in this comment been applied. Using a reasonableness standard may not change the outcome of every case discussed; however, this illustrates that using this standard is pragmatic and not radical. Part III concludes with a brief analysis of a narrow circumstance where Louisiana courts do not strictly interpret the LCA or condominium documents: where a condominium association is negligent. Discussing this type of case demonstrates that amending the Louisiana Condominium act to include a reasonableness standard is necessary because the type of conduct needed to successfully bring a negligence action is much more egregious than what is found in most disputes between unit owners and condominium associations.
I. A BRIEF HISTORY OF THE LOUISIANA CONDOMINIUM ACT; DEFINITIONS; CONDOMINIUM ASSOCIATIONS AS MINIATURE PRIVATE GOVERNMENTS; AND AN OVERVIEW OF PERTINENT PROVISIONS IN THE LOUISIANA CONDOMINIUM ACT
A. THE HISTORY OF THE LOUISIANA CONDOMINIUM ACT
The Louisiana Condominium Act was enacted in its present form in 1979, (17) and Louisiana condominiums are generally creatures of this statute; (18) however, the concept of condominium ownership has been present in Civilian jurisprudence for over 200 years. The first basic expression of condominium ownership appeared in the Code Napoleon of 1804. (19) Additionally, Louisiana implicitly recognized ownership of individual apartments under the Civil Code of 1870. (20) However, Louisiana did not enact a statutory scheme adopting the condominium system of property until 1962. (21) In the two decades that followed, this first statutory scheme was repealed and new laws were adopted until the present statutory scheme, the Louisiana Condominium Act, was enacted in 1979. (22) Because condominiums exist today in Louisiana namely because of the Louisiana Condominium Act, laws affecting condominium regimes should be made a part of that act.
Understanding the dynamics of condominium law and the Louisiana Condominium Act requires an understanding of basic terms used throughout the LCA and this comment:
* "Condominium" is defined by the LCA as "the property regime under which portions of immovable property are subject to individual ownership and the remainder thereof is owned in indivision by such unit owners." (23)
* "Condominium declaration" is the instrument that subjects immovable property to the Louisiana Condominium Act. (24) Consistent with the Louisiana public records doctrine, recordation of the declaration is necessary for it to be effective against third parties. (25)
* "Condominium property" refers to "all interests in land, improvements thereon, and all servitudes and rights attaching to the condominium." (26)
* "Unit" is the "part of the condominium property subject to individual ownership.... A unit includes such accessory rights and obligation as are stipulated m the condominium declaration." (27)
* "Common element" means the part of the condominium property that is not a part of the individual units. (28)
* "Limited common element" refers to common elements reserved in the condominium declaration for the exclusive use of a certain unit(s). (29)
* "Condominium association" refers to "a corporation, or unincorporated association, owned by or composed of the unit owners and through which the unit owners manage and regulate the condominium." (30)
* "Articles of incorporation" denotes the documents creating the condominium association. (31)
C. CONDOMINIUM ASSOCIATIONS AS MINIATURE PRIVATE GOVERNMENTS
Readers of this comment may note that much of the terminology used regarding interpretation of the LCA and condominium documents--e.g., strict interpretation, express or implied power, etc.--is also prevalent in constitutional law. This is not by accident or mere convenience. Legal scholars and courts view condominium associations and homeowner associations as "miniature private governments." (32) In Louisiana and in other jurisdictions, the constitution of these governments is the association's bylaws and declaration. (33) However, condominium associations are not subject to the same constitutional and statutory restrictions that burden public governments. (34) Instead, courts outside Louisiana typically use a reasonableness standard to balance the interests of the condominium association and unit owners. (35) For example, reasonableness standards have been used in various capacities in California and Florida for sixteen and thirty-four years, respectively. (36) Therefore, a reasonableness test is a well-established test to adopt.
I). AN OVERVIEW OF PERTINENT PROVISIONS IN THE LOUISIANA CONDOMINIUM ACT
There are several features that a condominium declaration must have:
* A statement submitting the immovable property to a condominium regime and the name to which the condominium is to be identified;
* A legal description of the land;
* Identification of the units, a description of the boundaries of each unit, and shares or percentages of the common elements which are component parts of each unit;
* The proportions or percentages and the manner of sharing common expenses and owning common surplus;
* The proportionate voting rights of unit owners in the association; The method by which the condominium declaration is to be amended;
* A plat survey of the land;
* The method for reapportionment among unit owners of the percentage of ownership;
* Plans of the proposed or existing improvements;
* The reconstruction or repair of all or part of the condominium property after casualty and the disposition of casualty insurance proceeds among owners of destroyed or damaged units or the owners of destroyed common elements;
* The name of the association and the type of legal entity it is organized as; and
* The procedure for collecting assessed expenses from unit owners. (37)
The Louisiana Condominium Act also offers suggested provisions for condominium declarations. (38) These include clauses pertaining to withdrawing damaged or destroyed units from the condominium regime, reallocation of the percentage interest in the common elements after the withdrawal of unit(s), the purpose(s) for which the condominium property and units are intended, procedures by which the condominium owner may convey his unit to the association, and limitations upon conveyance, sale, leasing, ownership, and occupancy of units. (39)
The Louisiana Condominium Act provides minimal rules for the use of individual units; significant discretion is given to the declaring condominium association. (40) Indeed, the law only states that the bylaws govern the administration and operation of the condominium and may include provisions deemed necessary or desirable. (41) Such provisions may include "[t]he method of adopting and amending administrative rules and regulations concerning the details of the operation and use of the condominium property." (42) However, there is no test--either statutory or developed in case law--to determine whether an administrative rule or regulation adopted pursuant to an association's bylaws is permissible or reasonable. The proposed standard would change this.
Additionally, the powers given to the unit owners' association are strictly permissive. (43) Condominium owner's associations may exercise any of the following powers, however, they are not legally obligated to do so:
* Adopt and amend bylaws, rules, and regulations;
* Adopt and amend budgets and make and collect assessments for common expenses from the unit owners;
* Hire and terminate employees, agents, and independent contractors of the association; participate in litigation or administrative proceedings;
* Make contracts and incur liabilities;
* Improve the common elements;
* Acquire, encumber, and convey property in its own name;
* Impose and receive payments for the use, rental, or operation of the common elements which are not limited;
* Impose late charges on assessments;
* Levy reasonable fines for violations of the bylaws, rules, and regulations of the association;
* Impose reasonable charges for the preparation and recordation of amendments to the declaration or statements of unpaid assessments;
* Provide for indemnification of its officers and executive board and maintain officer's liability insurance;
* Exercise all other powers that may be exercised in Louisiana by legal entities of the same type as the association; and
* Exercise any other powers necessary and proper for the governance and operation of the association. (44)
Finally, although "exercise any other powers necessary and proper for the governance and operation of the association" seems to indicate that condominium associations could exercise powers not enumerated in the LCA or a condominium's documents but are nonetheless reasonable and necessary, it does not appear that courts have ever interpreted this clause in that manner. Because this clause has been part of the Louisiana Condominium Act since 1979, (45) and, given the numerous cases brought under the LCA where the opportunity to interpret this clause in that manner has existed, (46) it appears that courts are not willing to give this clause that effect.
II. REASONABLENESS STANDARDS UNDER THE LOUISIANA HOMEOWNERS ASSOCIATION ACT AND IN OTHER JURISDICTIONS
A. AN OVERVIEW OF THE LOUISIANA HOMEOWNERS ASSOCIATION ACT
The law governing homeowners associations, as opposed to condominium associations, tends to be more flexible and already incorporates a reasonableness standard. (47) A discussion of the case law interpreting the reasonableness of the powers and duties of homeowners associations first requires a general survey of the statutory law. Powers sought to be exercised by homeowners associations and duties sought to be enforced by homeowners against homeowners associations pertain to the law of building restrictions. (48) Building restrictions, as defined by the Civil Code, "are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements." (49) In order for the building restriction to be enforceable, there must be a general plan that is both feasible and capable of being preserved. (50) Additionally, "[b]uilding restrictions may be established only by juridical act executed by the owner of an immovable or by all the owners of the affected immovables." (51) This is a similar process to that used under the LCA. (52) The act must be recorded in the public records either as a separate document that each deed refers to by reference, or the restrictions must be included with each deed. (53) Additionally, building restrictions may impose affirmative duties on homeowners "that are reasonable and necessary for the maintenance of the general plan." (54) Importantly, the Homeowners Association Act departs from the Civil Code's rule of construction favoring unrestricted use, (55) instead setting forth that "[t]he existence, validity, or extent of a building restriction affecting any association property shall be liberally construed to give effect to its purpose and intent." (56)
B. CASE LAW UNDER THE LOUISIANA HOMEOWNERS ASSOCIATION ACT: WHAT IS REASONABLE?
Unlike condominium associations, a power of a Louisiana homeowners association need not be express for it to be reasonable. In Bordelon v. Homeowners Association of Lake Ramsey, Inc., owners of a lot in a subdivision brought an action against the homeowners association. (57) The court was asked to decide whether the construction and operation of a security gate violated the association's budding restrictions. (58)
The homeowners argued that under the building restriction established by the developer of the subdivision, each lot owner enjoyed "a right and easement of enjoyment in and to the Common Areas which shall be appurtenant to and shall pass with the title to every lot." (59) The lot owners argued that there was no express provision giving the homeowners association the power to restrict access to the subdivision streets. (60) Instead, they argued that pursuant to the building restriction, such power would have to come from an amendment to the subdivision restrictions with written consent of eighty percent of the lot owners. (61)
The court disagreed. The court cited the homeowners association's power under the building restriction to maintain and administer the common areas of the subdivision, of which the streets in the subdivision were a part. (62) The court stated that the issue was not whether the building restriction gave the homeowners association specific power to install a security gate, but rather whether the installation and operation of the security gate was a reasonable exercise of its power to maintain and administer the subdivision streets. (63) The court looked to the evidence presented to the trial court, which indicated that the homeowners association's action was reasonable under this power. (64) Specifically, the unauthorized use of a lake located in the subdivision by nonresidents, acts of theft and vandalism in the subdivision, the use of amenities at all hours of the day and night, and the deterioration of the streets by overloaded vehicles which the lot owners were required to maintain all indicated that the construction and operation of the gate was reasonable. (65)
A reasonableness standard is also used in evaluating the enforcement of valid building restrictions. (66) Russell Dornier placed a for-sale by owner sign on his lot advertizing that his home was for sale. (67) The sign was purchased through the homeowners association when he originally constructed the home. (68) The building restrictions stated that "no real estate signs shall be permitted anywhere within the Property except those provided by the Association." (69)
The administrator of the association testified regarding the placement of signs in the subdivision. She stated that the homeowners association required that the property owner purchase a sign to be placed on their property during the construction phase. (70) During this phase, the sign was to list the owner, builder, architect, and subcontractors, and was to remain on the property during the construction process and removed immediately upon occupancy. (71) During the construction phase, if the home was being built as a speculative investment the builder/developer was permitted to display a for-sale sign. (72) However, once the home was sold and occupied, the new owners could not display a for-sale sign--even if the home was vacant at the time it was for sale. (73) When the court questioned the association president as to how the occupancy benchmark furthered the total plan of the development of the subdivision, he stated that ultimately it was one less sign in the development and that it is part of the plan to eventually have all signage removed. (74)
The appellate court affirmed the trial court's decision that the association's enforcement of the building restriction was not reasonable. (75) Specifically, the trial and appellate courts took issue with the occupancy benchmark, the effect of which prevented homeowners whose homes had been occupied from displaying signage to advertise their homes for sale in the same manner as a builder of an unoccupied home. (76) The court stated that the homeowners association failed to prove that this benchmark benefitted the total plan. (77)
Finally, just because a building restriction uses a reasonableness standard does not mean that the standard will be too ambiguous or vague. Rather, a reasonableness standard is beneficial because no association--condominium or homeowner--can conceive of every issue it will need a power to address. For example, Hidden Hills Community, Inc. had a set of restrictions and affirmative duties, including that the lots must be kept "reasonably neat and clean." (78) Frank Rogers owned a lot and lived in the subdivision. (79) He painted his home light pastel with multi-colored rings around his trees and bushes. (80) Rogers also hung bones from trees and painted stripes on his sidewalk and a checkerboard pattern on the bottom of his house. (81) Eventually he hung more items from his trees, and placed toilets, a cash register, televisions, ladders, non-functional satellite dishes, and cow skulls in his yard. (82)
The court found that the term "reasonably neat and clean" was not ambiguous. (83) Further, the court noted that "it would be virtually impossible to draft a set of covenants that would consider all conceivable offending uses of property, notwithstanding the fact that no one would have dreamed up this instant offending use of property." (84) Although perhaps an extreme example, Hidden Hills illustrates the underlying problem with the strict interpretation of the Louisiana Condominium Act and condominium documents--not every situation for which there may need to be a corresponding power or duty can be determined in advance.
C. REASONABLENESS STANDARDS UNDER OTHER JURISDICTIONS' CONDOMINIUM REGIMES
Reasonableness standards from California, Florida, Texas, and the U.S. Virgin Islands are discussed in this section. This is not intended to be an exhaustive list of jurisdictions that use reasonableness standards. Rather, a discussion of these standards will demonstrate how the LCA can be modified to meet the specific needs of condominiums, using well-established legal doctrines from jurisdictions with extensive condominium ownership.
In California, a reasonableness standard of review of condominium documents is imposed by statute. (85) The California statute, in pertinent part, states:
The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development* Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both. (86)
This standard was applied in the California Supreme Court case of Nahrstedt v. Lakeside Village Condominium Ass'n. (87) The court held that a restriction in a condominium declaration is presumptively enforceable unless the challenging party proves that that the restriction is unreasonable. (88) The court noted three specific instances in which a restriction would be deemed unreasonable: where "it violates public policy; it bears no rational relationship to the protection, preservation, operation or purpose of the affected land; or it otherwise imposes burdens on the affected land that are so disproportionate to the restriction's beneficial effects that the restriction should not be enforced." (89) A presumption of validity was found necessary to achieve stability and predictability essential to condominium living situations, discourage lawsuits, and give the association confidence to enforce restrictions without repetitive, expensive litigation. (90)
Florida uses reasonableness standards in several capacities. Like California, Florida recognizes a reasonableness standard in reviewing condominium rules adopted by a condominium association; however, the standard was developed in case law and is not imposed by statute. (91) Condominium associations are permitted to adopt reasonable rules; however, they may not "adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners." (92)
In promulgating this rule, the Florida court noted the unique living situation inherent to condominiums. "Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization," (93) and the owners "must give up a certain degree of freedom of choice which [they] might otherwise enjoy in separate, privately owned property." (94)
Additionally, Florida case law states that condominium associations may regulate the use of common elements so long as the regulation is reasonable, not violative of any constitutional restrictions, and does not violate any specific statutory limitation or limitation in the condominium documents. (95) Lastly, Florida's condominium statute uses a reasonableness standard with the right to enforce a restriction on peaceable assembly in common areas. (96)
Texas employs a reasonableness standard in evaluating whether a condominium association is properly maintaining association property. In Pooser v. Lovett Square Townhomes Owners' Ass'n, the unit owners failed to pay their condominium fees for four years. (97) The unit owner claimed that the condominium association failed to properly maintain the common areas, and therefore he did not have a duty to pay his condominium fees. (98) The court held that the standard used in evaluating the association's conduct in dealing with maintenance issues was one of reasonableness, and that the association met this standard. (99) The court noted that "[t]he Association was vested with considerable discretion in exerting managerial and administrative responsibilities," and that there was "no evidence that the Association's actions were either arbitrary or capricious." (100)
4. THE U.S. VIRGIN ISLANDS
The Virgin Islands uses a similar reasonableness standard to that of Texas. (101) In Towers Condominium Ass'n v. Lawrence, the defendant unit owners failed to pay their condominium assessments, claiming that the Association breached its duty to maintain the buildings, facilities, and common areas. (102) As a matter of policy, the Association had adopted a procedure of disconnecting the water supply to delinquent unit owners; however, nothing in the condominium documents gave the condominium association this express power. (103) In response to the unit owners' failure to pay their assessments, the association filed liens on the units for indebtedness, cut off the water supply to the units, and filed actions against the unit owners. (104) The court held that such action was reasonable to enforce the bylaws and declaration, although the bylaws and declaration did not explicitly authorize the association to disconnect unit owners' water. (105)
III. LOUISIANA CASE LAW
A. STRICT INTERPRETATION AS A LIMITATION ON THE POWERS OF CONDOMINIUM ASSOCIATIONS
1. WESTERN V. CHARDONNAY VILLAGE CONDOMINIUM ASS'N
The beginning of the end of reasonable but non-enumerated powers and duties under the Louisiana Condominium Act was Western v. Chardonnay Village Condominium Ass'n. (106) George Western was the owner of a condominium unit in Chardonnay Village Condominiums in Kenner, Louisiana. (107) For three years Mr. Western did not pay the assessments on his condominium. (108) As a result, the condominium association turned off the water to his unit which was provided through the condominium association. (109)
Chardonnay Village's condominium declaration provided that, pursuant to the Louisiana Condominium Act, it had the power to file a lien for unpaid assessments, levy penalties for delinquent assessments, or "file a suit at law or 'other competent proceeding.'" (110) Chardonnay Village's condominium declaration also provided that "failure to comply with any of its terms shall subject the defaulting owner to a legal proceeding for relief, including but not limited to an action for damages, injunctive relief, or foreclosure of a lien." (111) The articles of incorporation of Chardonnay Village's condominium association also stated that the condominium association had the power "to enforce, by legal means, the provisions of the Condominium Act, the Condominium Declaration, these Articles, the Bylaws of the Association, and regulations for the use of Condominium Property." (112) However, there was not an explicit provision giving the association the power to turn off water to a condominium unit in the event that a unit owner did not pay his assessments. (113)
At the time of this case in the late 1980s, whether this action was within the power of the Chardonnay Village Condominium Association was a case of first impression for Louisiana courts. (114) Chardonnay Village urged the court to adopt Florida's rule on condominium policies, to the effect that the only limitation on the establishment of Condominium policies is that they be reasonable. (115) Instead, the court found that unless the action taken by a condominium association was specifically authorized by either the Louisiana Condominium Act or a condominium association's condominium documents, the power of a condominium association to enforce the provisions of its condominium documents by a general clause giving the association the power to enforce such provisions "by legal means" meant, by legal proceedings--not "legal means" as opposed to "illegal means." (116) The court found that if the condominium association sought to take action that it was not expressly authorized to take, then it had to do so by legal proceeding or by amending its declaration or bylaws to provide for such action. (117)
The effect of Western was to limit the powers available to condominium associations to those specifically enumerated in the Louisiana Condominium Act or a condominium association's condominium documents. The failure to specifically enumerate a power ties the hands of the condominium association until it can bring a legal proceeding to enforce a non-enumerated power, or amend the condominium documents so as to have such power. In the case of the condominium association in Western, amending the condominium declaration required a vote of at least sixty-seven percent of the unit owners. (118) Additionally, under Louisiana law, amending the bylaws requires "a majority vote of the directors or voting members present or represented at any regular or special meeting." (119) This process is much more arduous than simply being able to act in a reasonable manner.
The principle of Western--requiring express authorization either in the condominium documents or the revised statutes--is still followed today. (120) However, in 1988 the Louisiana legislature responded to Western by amending the Louisiana Condominium Act. (121) This amendment, which is still in force today, explicitly states that a unit owners' association has the power to interrupt services provided by the association when the unit owner fails to pay for them. (122)
Adopting the proposed rule would have led to the outcome sought by the condominium association in Western. The condominium association would have been permitted to shut off the water to the unit owner who failed to pay his assessments as a legal means for enforcing its rules and regulations, without that power being explicitly given to the association. That is, the court likely would have found that this power was reasonable and related to the use and enjoyment of the common elements or individual units by the unit owners. Because the condominium association provided water to the unit owner, the continued use of that water without paying the association essentially shifted the cost to all of the other unit owners. It is doubtful that a court would hold in favor of a delinquent unit owner under these facts. Ultimately, although the Louisiana Condominium Act was amended to permit such action as a matter of law, the general principle from Western of strict interpretation of the Louisiana Condominium Act and of condominium documents would have been completely changed.
2. REGENCY PARK TOWNHOME CONDOMINIUM ASS'N V. ROCHE
In the late 1990s two condominium associations, Regency Park Townhome Condominium Association and the Federal Fibre Mills Condominium Association, sought a severe enforcement power against unit owners who failed to pay their assessments--eviction. Both associations argued that the power to evict was derived from the Louisiana Condominium Act. (123) Specifically, the condominium association plaintiffs argued that the Louisiana Condominium Act conferred upon them the right and power to evict unit owners in breach of their obligations in the same way that a lessor may evict a lessee. (124) As the court summarized:
In other words, plaintiffs insist that for the purpose of dealing with delinquent or recalcitrant unit owners, this statute has elevated condominium associations to the level of owners and has reduced unit owners to the level of mere occupants who can be summarily deprived of the possession of property which they own. (125)
The court stated that following the law as written would lead to absurd consequences and create a new hybrid form of ownership for condominium owners that would violate the principals of the Louisiana Civil Code. (126) However, the court noted that by rejecting the condominium associations' interpretation of the Louisiana Condominium Act, the court was not denying the associations a remedy. (127) Instead, the court strictly interpreted the Louisiana Condominium Act by pointing out remedies for their problem specifically enumerated m the LCA. (128) Namely, the associations could see a privilege on the units for unpaid assessments, and that services provided by the association (e.g., water or trash) could be interrupted. (129)
It is doubtful that the outcome of this case would have changed if the reasonableness standard advocated here had been employed. The court in Regency Park eloquently pointed out that holding in favor of the associations would have violated basic principals of ownership and interpretation of laws found in the Louisiana Civil Code. (130) Even had the reasonableness standard advocated herein been used and the associations' evictions were presumed valid, the eviction of a condominium unit owner by a condominium association for failure to pay condominium assessments surely would be deemed arbitrary and capricious and not related to the use and enjoyment of the common elements or individual units by unit owners.
In this case, the court was strictly interpreting the Louisiana Condominium Act to point out other remedies already available to the associations. For example, they could file a lien on the unit to protect their financial interest, or they could cut off utilities--if any--that were provided by the association. (131) If water was one of those utilities, cutting it off would have the practical effect of making the unit uninhabitable without the associations physically intruding upon the unit owners' rights to use and enjoy their property.
3. GLORIOSO V, MARINER'S COVE TOWNHOUSES ASS'N, INC.
Most recently, a Louisiana court has held that for a condominium association to enforce its right to make assessments on unit owners, the activities for which the fees were normally incurred must continue to occur. (132) In Glorioso, the unit owner owed past-due condominium fees, interest, and attorneys fees from 2003-2005 totaling $5,633.00. (133) However, the court suspended the assessment until the association was again actively providing services on the property that it would normally provide. (134) The condominium association argued that the trial court erred in suspending the judgment against the unit owner because there was no activity by the condominium association on the property. (135) Specifically, the association argued that it still had the fight to establish reserves for capital improvements, and that although the activities for which the fees were normally imposed (e.g., picking up garbage and mowing grass) were not occurring, other "'non-visible' activities were occurring, necessitating the need to continue to collect association fees." (136) The court of appeal disagreed with the condominium association and affirmed the trial court's ruling. (137) It is important to point out, however, that the inactivity of the condominium association in Glorioso was compounded by the condominium complex being uninhabitable due to damage by Hurricane Katrina. (138) While the court did not explicitly say that this was a factor, it could very well have been a mitigating circumstance that influenced its decision.
Applying the reasonableness standard to this case probably would have yielded the same result where judgment was rendered for the association. However, the suspension of that judgment until the association was active on the property may have changed. It would seem reasonable and necessary that even after a natural disaster like Hurricane Katrina, which rendered Mariner's Cove uninhabitable, that condominium associations would seek to collect assessments. The collection of assessments would certainly aid in their effort to make the development habitable, even if in the meantime they were not providing their normal services. However, this line of reasoning is mitigated by the facts of the case; the association's board elected not to rebuild but instead sell the property to a developer. (139) Nevertheless, if the developer was going to rehabilitate the condominium complex, and the assessments were going to be provided to a new association once the developer had finished, then continued assessment and collection would still seem reasonable and necessary to put the new association on the surest financial footing possible. It is also doubtful that the association's continuous collection of assessments would be deemed arbitrary and capricious and not related to the use and enjoyment of the common elements or individual units by the unit owners. As the association argued, they needed the funds, even if for "non-visible" purposes, and the unit owners would eventually benefit from their collection of assessments. (140)
B. LIMITATIONS ON THE ABILITY OF UNIT OWNERS TO IMPOSE DUTIES ON CONDOMINIUM ASSOCIATIONS
The preceding cases illustrate how the Louisiana Condominium Act limits the power of condominium associations. The following cases demonstrate how the Louisiana Condominium Act limits unit owners' rights to impose duties on condominium associations.
1. HARRIS V. FEDERAL FIBRE MILLS CONDOMINIUM ASS'N
Ms. Harris was the owner and resident of a condominium unit in the Federal Fibre Mills building located in New Orleans, Louisiana. (141) Ms. Padwa owned the unit directly below Ms. Harris's and leased her unit to a tenant. (142) In just under four months, Ms. Harris "sent seventeen letters to the Board of Directors of [Fibre Mills] complaining of unreasonable noises and other disturbances" coming from Ms. Padwa's unit that "interfered with the use and enjoyment of her unit." (143) Then, "[d]issatisfied with the response to her complaints, she filed suit against [Fibre Mills.]" (144) The court found that Fibre Mills's condominium declaration only conferred upon the association "the right to enforce its rules, regulations, and restrictions," (145) but the association had no duty to enforce its own rules, regulations, or restrictions under either its declaration or under the Louisiana Condominium Act. (146) The practical implication of the court's holding is that absent an express provision in the condominium documents imposing upon the condominium association a duty to enforce condominium rules and regulations, an aggrieved unit owner's only remedy is to sue the offending neighbor under article 667 of the Louisiana Civil Code or some other source of law. (147)
Harris is a case that could very well have been decided differently had the reasonableness standard been applied. If the court in Harris had been asked simply whether it was reasonable and necessary for the association to enforce its own rules, regulations, and restrictions, although it had no explicit duty to do so, it is likely that the court would have said it was. Further, the court likely would have said that the duty of a condominium association to enforce its own rules is directly related to the use and enjoyment of the common elements and individual units by unit owners. Indeed, failing to enforce its own rules, even failing to consistently enforce its own rules, could be deemed arbitrary and capricious. Exactly how the presumption in favor of the condominium association would apply is debatable. The condominium association would probably argue that its decision not to enforce its own rules should be presumed to be a valid. However, the unit owner in Harris surely would have been able to overcome this presumption.
2. ROACH V. KAMATH
A different, but related, situation was presented in the case of Roach v. Kamath. (148) The Roaches were the owners of a condominium that was part of the defendant Riverside Court Condominium Association. (149) Mr. Kamath was the owner of a condominium unit located immediately above the Roach's unit. (150) The Roaches began to notice water damage in their condominium that was caused by water coming from Mr. Kamath's condominium. (151) The water was allegedly a result of the poor maintenance of the common plumbing system by the condominium association and the poor maintenance by Mr. Kamath of his individual unit. (152)
The Roaches brought suit for property damages against the condominium association and the other unit owner. (153) They argued that the Louisiana Condominium Act created an absolute liability for the condominium association to repair the unit owner's unit regardless of the source of any fault. (154) Conversely, the condominium association argued that they were responsible only for maintenance, repairs, and replacement of common elements, and the unit owners are responsible for the maintenance, repair, and replacement of their individual unit--including when the damage to the individual unit was caused by common elements. (155)
In making its determination, the court looked to the condominium association's declaration. (156) Riverside's condominium declaration provided that maintenance, repairs, and replacements of a unit were the responsibility of the unit owner. (157) Maintenance, repairs, and replacements of the common elements were the responsibility of the condominium association. (158) The condominium declaration gave the condominium board the option to provide such services to individual units. (160) Additionally, prior to the damage to the plaintiff's unit occurring, the condominium units voted specifically on whether interior repairs to units for damage caused by common elements would be the responsibility of the condominium association. (160) The association specifically voted that it would not. (161) Finding nothing in the Louisiana Condominium Act requiring a condominium association to make interior repairs to units for damages caused by common elements, and that the Riverside condominium association declaration specifically denied such responsibility, the court held that the condominium association was not responsible for damages caused to an individual unit by common elements that were part of its responsibility to maintain.
Roach provides an interesting situation in which to apply the reasonableness standard. The holding on its face--that a condominium association has no duty to make repairs to a unit for damages caused by common elements for which it had a duty to maintain--seems completely unreasonable. The common elements are the responsibility of the association; therefore, if damage is caused by the poor maintenance of those elements, even if the damage is done to an individual unit, the repairs should logically be the responsibility of the association. A court would likely find that a duty to pay for damages caused by things for which the association was responsible is directly related to the use and enjoyment of the common elements or individual units by unit owners; the negation of this duty would surely be viewed as detrimental to unit owners.
Additionally, although the court does not mention it, this holding seems to provide an exception to article 2315 of the Louisiana Civil Code. Article 2315 provides that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." (163) In holding in favor of the association, the court relied heavily on the fact that the association units voted on whether or not the association should have a duty to make repairs to individual units for damages caused by common elements that were the responsibility of the association. (164) Had this vote not occurred, then it would seem to be reasonable and necessary for the association to have a duty to make repairs to an individual unit caused by the poor maintenance of common elements for which it was responsible. However, where as in this case the individual units voted against such specific responsibility--for whatever unmentioned reason that may have been--it is dubious as to whether a court would circumvent the will of the unit owners.
Ultimately, the purpose of the reasonableness standard is to permit action when condominium documents are silent, and under the facts of this case, the condominium declaration spoke specifically to the situation at hand. Had the condominium documents been silent, however, then it would seem completely reasonable for a court to impose a duty on the condominium association to make repairs to an individual unit for damages caused by common elements that were its responsibility to maintain.
C. A NARROW EXCEPTION WHEN COURTS DO NOT STRICTLY INTERPRET THE LOUISIANA CONDOMINIUM ACT OR CONDOMINIUM DOCUMENTS: WHERE A CONDOMINIUM ASSOCIATION FAILS TO ACT WITH REASONABLE CARE
Bonita King and Gary Harman owned a condominium in the Casa Grande Condominium building on St. Charles Avenue in New Orleans. (165) As a result of Hurricane Katrina, their unit suffered damage. (166) While King and Harman maintained insurance on their condominium, their insurance contained "another insurance clause" which made their policy an excess policy of the condominium association's insurance. (167) Casa Grande Condominium Association had an insurance policy that was supposed to have a limit of $2,471,000.00; however, their agent erroneously obtained a policy for only $247,100.00. (168) An effect of this error was that the association's policy limits were prevented from being exhausted, which in turn made the plaintiffs' excess policy ineffective. (169) Ultimately, the plaintiffs received a check for $257.29 from the association's policy. (170) Meanwhile, their losses and incurred expenses in connection with the losses totaled $57,636.54. (171) In its holding, the court affirmed Harris in that nothing under the Louisiana Condominium Act requires a condominium association "to enforce rules and regulations to protect unit owners from disturbances created by other unit owners and/or their lessees, tenants, or occupants." (172) However, the court held that nothing in the Louisiana Condominium Act eliminates the duty to act with reasonable care. (173) The court found for the unit owner, awarding them $47,872.70. (174)
Ultimately, King retreats neither from Harris nor Roach. However, King does show that at least with respect to negligence claims by unit owners against condominium associations, courts will not strictly interpret duties of condominium associations under the Louisiana Condominium Act or the condominium association's condominium documents.
The Louisiana Condominium Act should be amended. Condominium associations should be allowed to exercise powers that are not enumerated in either the Louisiana Condominium Act or the association's condominium documents. Additionally, unit owners should be allowed to impose on condominium associations non-enumerated duties. The test to determine whether the power or duty is valid should be an evaluation of whether it is reasonable and necessary, and not arbitrary or capricious. For an implied power or duty to be deemed reasonable and necessary, the power or duty should bear some relationship to the use and enjoyment of the common elements or individual units by the unit owners. (175) Ensuring that this relationship exists will act as a check and balance for unit owners and condominium associations. Additionally, non-enumerated powers exercised by condominium associations should be presumed valid. This presumption is necessary to ensure stability in the condominium association and discourage frivolous, expensive lawsuits. (176)
The reasonableness standard urged for in this comment would benefit unit owners and condominium associations alike. It would permit condominium associations to act for the benefit of the association and unit owners without going through the hassle of amending their bylaws and declarations to specifically authorize such action to be taken. Additionally, it would permit unit owners to force associations to act, and minimize the defense of "It's not our job!" Consistent with one of the fundamental policies of Louisiana property law, this standard would also permit unit owners to better use and enjoy their property and assist associations in providing a higher standard of living. As ownership of condominiums continues to increase, Louisiana is sure to see additional litigation between unit owners and associations. A lack of a reasonableness standard will only increase litigation in the long term, as it is impossible to contemplate and address in advance every situation for which a specific power or duty is necessary.
Finally, enacting such a standard is not without precedent and will make Louisiana property law more uniform. The Louisiana Homeowners Association Act employs a reasonableness standard. (177) Additionally, other jurisdictions with extensive condominium ownership such as California, Florida, Texas, and the U.S. Virgin Islands employ reasonableness standards in various capacities. (178) Therefore, Louisiana would simply be improving its laws and not radically changing them.
(1.) LA. REV. STAT. ANN. [section][section] 9:1121.101-:1 124.115 (2010).
(2.) For the purposes of this comment, "condominium documents" refers to a condominium's condominium declaration, articles of incorporation, bylaws, rules, and regulations. See infra Part I.B for detailed definitions of pertinent condominium terms used in this comment.
(3.) Harris v. Fed. Fibre Mills Condo. Ass'n, 02-1715 (La. App. 4 Cir. 3/19/03); 843 So. 2d 457.
(4.) "Power" is defined as "The ability to act or not act.... The legal right or authorization to act or not act; a person's or organization's ability to alter, by an act of will, the rights, duties, liabilities, or other legal relations either of that person or of another." BLACK'S LAW DICTIONARY 1207 (8th ed. 2004). "Duty" is defined as "A legal obligation that is owed or due to another and that needs to be satisfied; an obligation for which somebody else has a corresponding right." Id. at 543.
(5.) Because the powers and duties imposed as a matter of law under the LCA are minimal, the powers and duties of the condominium association and unit owners are heavily dependent upon the condominium documents. See LA. REV. STAT. ANN. [section] 9:1123.106 (2010); Peter S. Title, 2 LA. PRAC. REAL EST. [section] 19:9 (2d ed. 2009). See also discussion infra Part II.A (discussing the duties imposed as a matter of law under the Louisiana Condominium Act).
(6.) See infra notes 104-41 and accompanying text.
(7.) See infra notes 142-65 and accompanying text.
(8.) See LA. CIV. CODE ANN. art. 477 (2010); C. AUBREY & C. RAU, DROIT CIVIL FRANCAIS 169-79 (La. State Law Inst. trans., West Pub. Co. 1966).
(9.) An amendment to the Louisiana Condominium Act is necessary to change the law. Article 783 of the Louisiana Civil Code provides that "[d]oubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable." However, this same article provides that a provision in the Louisiana Condominium Act supersedes this article in the event of a conflict of law. Therefore, an amendment to the Louisiana Condominium Act is necessary to avoid conflict with article 783.
(10.) Carl B. Kress, Beyond Nahrstedt: Reviewing Restrictions Governing Life in a Property Owner Association, 42 UCLA L. REV. 837, 861 (1995) (citing Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180, 182 (Fla. Dist. Ct. App. 1975) ("[T]he association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners.")). While the language used in this comment is not the same as the language used in Norman, the principle is the same.
(11.) Kress, supra note 10, at 858.
(12.) Patrick J. Rohan, Preparing Community Associations for the Twenty-First Century: Anticipating the Legal Problems and Possible Solutions, 73 ST. JOHN'S L. REV. 3, 4 (1999).
(13.) See infra notes 58-85.
(14.) See Nahrstedt, 878 P.2d at 1278; Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180, 182 (Fla. Dist. Ct. App. 1975).
(15.) Todd Brower, Communities Within the Community: Consent, Constitutionalism, and Other Failures of Legal Theory in Residential Associations, 7 J. LAND USE & ENVTL L. 203, 204 (1992).
(16.) See LA. REV. SWAT. ANN. [section] 9:1124.115(A) (2010) ("The condominium declaration and bylaws shall have the force of law between the individual unit owners."). See also Title, supra note 5.
(17.) See LA. REV. STAT. ANN [section] 9:1121.101 (2010).
(18.) See id. [section] 9:1121.102 ("[T]his Part shall apply only to property made subject to it by a condominium declaration duly executed and filed for registry.").
(19.) Ennio M. Colon Garcia, The Horizontal Property Regime or Condominium System of Property in Puerto Rico and Louisiana: A Comparative Outlook, 16 REV. JURIDICA U. INTER. P.R. 227, 230 (1982); CODE CIVIL [C. CIV.] art. 664 (Fr. 1804), available at http://www.napoleonseries.org/research/government/eode/book2/c_title04.html ("When the different stories of a house belong to different proprietors....").
(20.) A.N. Yiannopoulos, 2 LA. CIV. L. TREATISE, PROPERTY [section] 143 (4th ed. 2009).
(21.) Garcia, supra note 19, at 233.
(22.) Id. The 1960s and 1970s were periods of revival for Louisiana's civilian tradition, especially in the judiciary. See Kenneth M. Murchison, The Judicial Revival of Louisiana's Civilian Tradition: A Surprising Triumph for the American Influence, 49 LA. L. REV. 1, 5 (Sept. 1988). It is ironic then that during this time, Louisiana would adopt verbatim its first condominium act in 1974 from of all places, Arkansas--a common law jurisdiction. George M. Armstrong, Jr., Louisiana Condominium Law and the Civilian Tradition, 46 LA. L. REV. 65, 70 (September 1985). Although that act was repealed, the present act is still very much a common law product.
(23.) LA. REV. STAT. ANN. [section] 9:1121.103(1) (2010).
(24.) Id. [section] 1121.103(10).
(25.) Id. [section] 1122.101.
(26.) Id. [section] 1121.103(2).
(27.) Id. [section] 1121.103(3).
(28.) Id. [section] 1121.103(5).
(29.) Id. [section] 1121.103(6).
(30.) LA. REV. STAT. ANN. [section] 1121.103(8).
(31.) See id. [section][section] 1123.101, ..102(A)(2).
(32.) Brower, supra note 15, at 204.
(33.) See LA. REV. STAT. ANN. [section] 9:1124.115(A) (2010); Title, supra note 5.
(34.) Harvard Law Review Association, Judicial Review of Condominium Rulemaking, 94 HARV. L. REV. 647 (1981).
(35.) Id. at 658-63; Brower, supra note 15, at 206-07; Nahrstedt v. Lakeside Vill. Condo. Ass'n, 878 P.2d 1275, 1278 (Cal. 1994); Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180, 182 (Fla. Dist. Ct. App. 1975).
(36.) See discussion infra Part II.C.1-2.
(37.) LA. REV. STAT. ANN. [section] 9:1122.105(A) (2010).
(38.) Id. [section] 1122.105(B).
(40.) Garcia, supra note 19, at 268. See generally [section][section] 9:1123.102-.107.
(41.) LA. REV. STAT. ANN. [section] 9:1123.106 (2010).
(43.) Harris v. Fed. Fibre Mills Condo. Ass'n, 02-1715 (La. App. 4 Cir. 3/19/03); 843 So. 2d 457, 462.
(44.) LA. REV. STAT. ANN. [section] 9:1123.102 (2010).
(45.) See id.
(46.) See, e.g., Western v. Chardonnay Vill. Condo. Ass'n, 87-420 (La. App. 5 Cir. 1/11/1988); 519 So. 2d 243, 244.
(47.) See discussion supra Part I.B.
(48.) See LA. CIV. CODE ANN. art. 775 (2010). See also [section][section] 9:1141.1-.9.
(49.) LA. CIV. CODE ANN. art. 775 (2010). See also [section][section] 9:1141.1-.9.
(50.) LA. CIV. CODE ANN. art. 775 (2010).
(51.) LA. CIV. CODE ANN. art. 776 (2010).
(52.) See LA. REV. STAT. ANN. [section] 9:1121.103(11) (describing the declarant of a condominium declaration); [section][section] 9:1123.101-.102 (discussing the organization of a unit owners' association and its powers under the Louisiana Condominium Act).
(53.) LA. CIV. CODE ANN. art. 776 cmt. (c) (2010).
(54.) Id. art. 778.
(55.) Id. art. 783 ("Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable.").
(56.) LA. REV. STAT. ANN. [section] 9:1141.4 (2010). This departure from the general rule is specifically authorized by the Louisiana Civil Code. LA. CIV. CODE ANN. art. 783 (2010) ("The provisions of ... the Louisiana Homeowners Association Act shall supersede any and all provisions of this Title in the event of a conflict.").
(57.) Bordelon v. Homeowners Ass'n of Lake Ramsey, Inc., 04-1115 (La. App. 1 Cir. 5/6/05); 916 So. 2d 179.
(58.) Id. at 184-85.
(61.) Bordelon, 916 So. 2d at 185.
(66.) The Country Club of La. Prop. Owners Ass'n, Inc. v. Dornier, 96-0898 (La. App. 1 Cir. 2/14/97); 691 So. 2d 142, 148.
(67.) Id. at 144.
(70.) Id. at 146.
(71.) Dornier, 691 So. 2d at 146.
(72.) Id. at 145.
(73.) Id. at 146. When asked whether the express language in the building restriction seemed to anticipate that real estate signs could be permitted to be displayed in the subdivision if they were provided by the association and approved by the Architectural Review Committee, the administrator of the homeowners' association stated that the restriction did seem to suggest that, however, the association had never allowed any type of real estate sign to be displayed. Id. The president of the homeowners' association gave similar testimony. He elaborated further, stating that the association would permit homeowners to have open houses, and provide them with "Open House" signs. Id. However, he also testified that no for-sale signs were permitted. Id.
(74.) Id. at 145. (quoting the association president as testifying that "[i]t's one less sign out there in a development which we hope ultimately will have no signs out there.... We're only halfway there, but it is an orderly plan through with all signage will be removed, and this is a part of i[t].").
(75.) Id. at 148.
(78.) Hidden Hills Cmty., Inc. v. Rogers, 03-1447 (La. App. 3 Cir. 3/31/04); 869 So. 2d 984, 985.
(79.) Rogers, 869 So. 2d at 985.
(80.) Id. at 987.
(82.) Id. at 987-88.
(83.) Id. at 989.
(85.) CAL. CIV. CODE [section] 1354(a) (West 2010).
(86.) CAL. CIV. CODE [section] 1354(a) (West 2010).
(87.) Nahrstedt v. Lakeside Vill. Condo. Ass'n, 878 P.2d 1275 (Cal. 1994); Kress, supra note 10, at 844.
(88.) Nahrstedt, 878 P.2d at 1278.
(90.) Id. at 1287-93; Kress, supra note 10, at 858.
(91.) Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180, 182 (Fla. Dist. Ct. App. 1975).
(92.) Id. at 181-82.
(93.) Id. at 182.
(95.) Juno By The Sea N. Condo. Ass'n v. Manfredonia, 397 So. 2d 297, 303 (Fla. Dis. Ct. App. 1981). This principal was affirmed in Neuman v. Grandview at Emerald Hills, Inc., 861 So. 2d 494, 497 (Fla. Dist. Ct. App. 2003). In Neuman, the court held that while a condominium's declaration is its "constitution" and strictly governs the relationships among the condominium units owners and association, the statutory test for rules regarding the operation of the common elements of the condominium is reasonableness. Id. at 496-97.
(96.) FLA. STAT. ANN. [section] 718.123 (West 2009) ("All common elements, common areas, and recreational facilities serving any condominium shall be available to unit owners in the condominium or condominiums served thereby and their invited guests for the use intended for such common elements, common areas, and recreational facilities, subject to the provisions of s. 718.106(4). The entity or entities responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common elements, common areas, and recreational facilities. No entity or entities shall unreasonably restrict any unit owner's right to peaceably assemble or right to invite public officers or candidates for public office to appear and speak in common elements, common areas, and recreational facilities.").
(97.) Pooser v. Lovett Square Townhomes Owners' Ass'n, 702 S.W.2d 226, 230 (Tex. App. 1985).
(98.) Id. at 228. The condominium declaration provided that the Association, through its Board of Managers, had a duty "to keep in good order, condition, and repair all of the general and limited common elements." Id. at 232.
(99.) Id. at 231.
(101.) Compare Pooser v. Lovett Square Townhomes Owners' Ass'n, 702 S.W.2d 226 (Tex. App. 1985), with Towers Condo. Ass'n v. Lawrence, 1995 WL 458279, at *1 (Terr. V.I. 1995).
(102.) Towers Condo. Ass'n v. Lawrence, 1995 WL 458279, at *1 (Terr. V.I. 1995).
(103.) Id. at *4.
(104.) Id. at *1.
(105.) See id. at *4.
(106.) Western v. Chardonnay Vill. Condo. Ass'n, 87-420 (La. App. 5 Cir. 1/11/1988); 519 So. 2d 243, 244.
(110.) Western, 519 So. 2d at 245.
(112.) Id. (emphasis added).
(114.) Id. at 244.
(115.) Id. at 244-45.
(116.) Id. at 245.
(118.) Western, 519 So. 2d at 245 (citing LA. REV. STAT. ANN. [section] 9:1122.119 (2010)).
(119.) Id. (citing LA. REV. STAT. ANN. [section] 12:223 (2010)).
(120.) See Miller v. Charbonnet, 07-0646 (La. App. 4 Cir. 12/5/2007); 972 So. 2d 1237 (holding that where the condominium association failed to comply with the notice provisions of the Louisiana Condominium Act when filing a lien on a unit, the lien was invalid). Separately, but related, in collecting unpaid assessments, a condominium association must seek the unpaid assessments from the owner of the unit at the time the assessments were due. See also Peyton Place Condo. Ass'n., Inc. v. Guastella, 08-365 (La. App. 5 Cir. 5/29/2009); 18 So. 3d 132 (holding that a lien for unpaid condominium fees filed by a condominium association against the condominium unit owner was wrongly filed, as the owner did not become the owner of the unit until after privileges had been filed against it, and the Louisiana Condominium Act provides that such liens for unpaid or accelerated condominium fees can only be filed against the owner of a condominium unit).
(121.) The governor approved the act amending the LCA on July 27, 1988. See 1988 La. Acts 979. Western was decided January 11, 1988. See Western, 519 So. 2d at 243.
(122.) 1988 La. Acts 979; LA. REV. STAT. ANN. [section] 9:1123.102 (2010).
(123.) Regency Park Townhome Condo. Ass'n v. Roche, 98-0045 (La. App. 4 Cir. 6/17/98); 715 So. 2d 600. Specifically, the condominium associations cited LA. REV. STAT. [section] 9:1124.115(A) providing that "[t]he condominium declaration and bylaws shall have the force of law between the individual unit owners. The remedies for breach of any obligation imposed on unit owners or the declarant shall be damages, injunctions, or other such remedies as provided by law," and (C) stating that "[f]or the purposes of this Section, a unit owner shall be considered an occupant of the condominium property and subject to the provisions of Code of Civil Procedure Articles 4701 through 4735 in an action by the association of unit owners." Id. at 600-01.
(124.) Regency Park, 715 So. 2d at 601. The Louisiana Code of Civil Procedure Articles cited in [section] 1142.115(C) provide the procedure for the eviction of tenants and occupants. Specifically, art. 4701 provides the eviction procedure for when a lessee has violated the terms of a lease and the owner wants possession of the premises. LA. CODE CIV. PROC. ANN. art. 4701 (2010). Article 4702 provides the procedure for when the owner of immovable property wants to evict the occupant of the property. LA. CODE CIV. PROC. ANN. art. 4702 (2010).
(125.) Regency Park, 715 So. 2d at 601.
(126.) Id. ("A law shall be applied as written only when it does not lead to absurd consequences. C.C. Art. 9. This is precisely what would be the result were we to agree with plaintiffs' arguments-that by this simple reference to eviction procedures applicable to owners, lessees, tenants and other occupants the legislature intended to create some new, hybrid kind of ownership for condominium unit owners. That new form of ownership would surely be stripped of the right to direct, immediate, and exclusive authority over a thing and right to use and enjoy a thin as provided for in C.C. Art. 477. We are not persuaded that the legislature intended this result. Furthermore, the laws that provide for the taking of one's property by mortgage foreclosure, expropriation, or execution of a judgment stand in sharp contrast with the laws regulating the eviction of tenants and occupants in that the protection of the laws in the former category weighs heavily in favor of the defendants who are the owners while the laws in the latter category favor the plaintiffs who are the owners. In the present case, plaintiffs are advocating that the legislature intended by the passage of this statute to twist the philosophy of ownership in Louisiana with respect to the owners of condominium units so that they are no longer entitled to the respect and protection afforded to all other owners and the condominium associations, which have no ownership rights or attributes with respect to the units are nonetheless given the privileges and protection exclusively granted to owners.").
(127.) Regency Park, 715 So. 2d at 601.
(129.) Id. See also LA. REV. STAT. ANN. [section] 9:1123.115 (2010) (giving condominium associations a privilege on units for unpaid assessments and providing a procedure for preserving this privilege); LA. REV. STAT. ANN. [section] 9:1123.116 (2010) (giving condominium associations a privilege on units for unpaid assessments assessed for the payment of utilities provided on behalf of the condominium association and providing a procedure for preserving this privilege).
(130.) See LA. CIV. CODE ANN. art. 9 (2010) ("When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature."); LA. CIV. CODE ANN. art. 477 (2010) ("Ownership is the fight that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.").
(131.) See LA. REV. STAT. ANN. [section][section] 9:1123.102(11), .115.
(132.) Glorioso v. Mariner's Cove Townhouses Ass'n, Inc., 06-1657 (La. App. 4 Cir. 6/27/07); 961 So. 2d 614.
(133.) Id. at 615.
(135.) Id. at 615-16.
(136.) Id. at 616.
(137.) Id. at 617.
(139.) Glorioso, 961 So. 2d at 617.
(141.) Harris v. Fed. Fibre Mills Condo. Ass'n, 02-1715 (La. App. 4 Cir. 3/19/03); 843 So. 2d 457, 459.
(143.) Id. (emphasis added). Specifically, Ms. Harris claimed that Ms. Padwa's tenant "had played the television and stereo at full volume between 12:00 midnight and 6:00 a.m.; had hosted several loud parties that lasted until 6:00 a.m.; had wailed and screamed on numerous occasions in the early morning hours; and bad banged routinely on the ceiling and pipes...." Id.
(145.) Harris, 843 So. 2d at 461 (emphasis added).
(146.) Id. at 461-62 (citing LA. REV. STAT. ANN. [section][section] 9:1123.102, :1122.105, :1123.106).
(147.) See LA. CIV. CODE ANN. art. 667 (2010). This Code article provides that a person can do with his immovable property what he wants so long as he does not deprive his neighbor of the enjoyment of his own property or cause him damage. However, if a property owner does something on his property which
deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
(148.) Roach v. Kamath, 02-1309 (La. App. 4 Cir. 12/30/02); 837 So. 2d 118.
(149.) Id. at 119.
(150.) Roach, 837 So. 2d at 119.
(152.) Id. This case only deals with claims against the condominium association.
(153.) Id. at 118.
(154.) Id. at 121 (citing LA. REV. SWAT. [section] 9:1123(G), which provides that "[a]ny portion of the condominium damaged or destroyed shall be repaired or replaced promptly by the association....").
(155.) Id. at 122 (citing LA. REV. SWAT. [section] 9:1123.107, which provides that "[t]he association is responsible for maintenance, repair, and replacement of the common elements, and each unit owner is responsible for maintenance, repair and replacement of his unit.").
(156.) Id. ("To place this matter in proper perspective, we must address the Riverside Association's declaration.").
(157.) Id. at 120.
(161.) Id. Specifically, in 1995, the Riverside Board of Directors sent a notice to all homeowners informing that them that by vote of the association, "there will be no more interior repairs (damage caused from common elements) to any unit." Id.
(162.) Roach, 837 So. 2d at 122-23.
(163.) LA. CIV. CODE ANN. art. 2315(A) (2010).
(164.) Roach, 837 So. 2dat 123.
(165.) King v. State Farm lns., 2009 WL 3241602, at *1 (E.D. La. 2009).
(167.) Id. at *2 ("If there is other insurance in the name of your condominium association covering the same property covered in this policy, then this policy will be in excess over the other insurance.").
(171.) Id. at *4.
(172.) Id. at *5.
(174.) Id. at *6. The court determined that certain expenses that the unit owners incurred as a result of the damage to their unit were not caused by the condominium association's negligence; accordingly, the court adjusted the unit owner's costs from $57,636.54 to $47,872.70. Id.
(175.) Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180, 182 (Fla. Dist. Ct. App. 1975) ("[T]he association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners.").
(176.) Kress, supra note 10, at 858.
(177.) See supra Part II.A-B.
(178.) See supra Part II.C.
Tyler J. Douglas, The author is a 2011 candidate for the degree of Juris Doctor at Loyola University New Orleans College of Law. A special thanks is extended to Professor John A. Lovett for acting as his faculty advisor and for his helpful insight into Louisiana property law.
|Printer friendly Cite/link Email Feedback|
|Author:||Douglas, Tyler J.|
|Publication:||Loyola Journal of Public Interest Law|
|Date:||Sep 22, 2010|
|Previous Article:||Mortgage electronic registration systems (MERS), its recent legal battles, and the chance for a peaceful existence.|
|Next Article:||Free exercise and compulsory insurance: the future of mandatory financial responsibility and religious observance.|