in that case entered judgment in favor of thef


association


for unpaid homeowner fees. Deptula was first sued by the association in 1992 for unpaid assessments. The instant litigation was filed in 2012 and took eightk


(8) years to


resolve when the appeal was decided in 2020. That means that Deptula continued to be delinquent in his financial obligations on and off forf


over twenty-eight (28) years.


Litigation involving associations and owners of propertyf within an association can not only last a long time as evidenced above, but they can also involve disputes between neighbors that simply stem from unreasonable conduct. This is not unique to Illinois. In Leisure Village Association v. Kulick5


, the association, located in California,


first filed a complaint against an owner in 2013 alleging that the owner interfered with the association’s contractual relations with its insurers, which rose to the level of beingf a nuisance. After a jury trial in 2016, the association was awarded $86,429.20 in compensatory damages and punitive damages in the amount of $284,660,f


$5,000 in damages, plus attorney’s fees which they were not pleased about), but did they really win? While the case did not include the association as a party, we can assume the neighbors were complaining to the board and allowing their hostility to bleed into the association.


42020 VT 88


52018 WL 459355 62015 WL 1619097


There are also the cases that exemplify a power play among the owners. In Kalway v. Calabria Ranch HOA, Ltd., the association consisted of fivef


(5) lots, with the largest which was


later reduced by the trial court to $43,214.60. The facts in the case included the defendant owner threatening legal action for claims resulting from election fraud, malicious prosecution, defamation, extortion, terrorism, and other statutory violations. This resulted in the defendant owner demanding from each board member, individually, $10 million (yes that amount is correct!). With each demand, the association had to tender each claim to its carrier, even though the allegations lacked merit. This resulted in the association being rendered uninsurable. It also resulted in a five (5) year battle with the unit owner.


InNithiananthan v. Toirac, et al.6, owners within the association security


neighbors’ landscaping, and


located in Ohio filed suit against their neighbors complaining about the neighbors’ use of lights,f cameras, encroachment of thef


the neighbors’ alleged abusive behavior. Problems between the neighbors began as soon as the Nithiananthans moved in. The Nithiananthans wanted to install a fence and learned that the Toirac’s landscaping was actually located on their property, and they also learned that the Nithiananthans driveway needed to be moved to respect the true division of thef


properties. Both parties did what they agreed to do,


but after the Toiracs new landscaping was planted and began to grow, they refused to care for the overgrowth. During theChristmas season, theToirac’s decorative lights were vandalized, and an image of malef


genitalia was


spray painted on their garage. Their suspicion that this was done by the Nithiananthans was never substantiated. Thereafter, the police were called about the Nithiananthans approximately eleven (11) times when they were accused of engagingf


lot owned by Plaintiff. Like most declarations, the owners could vote to amend the declaration. The declaration required a majority of the owners, which, based on the size and vote allocation, amounted to four votes to approve any such amendment. In 2018, the owners proposed amendments that changed and added definitions, created new restrictions, and adopted new enforcement provisions against the violating owners. The new restrictions limited the owners’ ability to subdivide lots, restricted the size of thef


buildings, and restricted the number of livestockf


allowed on each lot. When the amendments were proposed, the other owners did all without the consent or knowledge of the Plaintiff. The Plaintiff, of course,f


sought to invalidate


the amendments and she did win. However, she won not because her neighbors went behind her back, but because the amendment included restrictions on the use of the land that was not foreseeable.


The above cases highlight some of the disputes, which embroil the association and/or itsr litigation, which can easily last for yearsr


residents in (or decades),


cost significant amounts in attorneys’ fees, and create strife within a community. Unfortunately, these sorts of cases, which were previously the rarity, are becoming more and more common. In most situations, the facts in the reported appellate court decisions are tame compared to the cases tried (or currently pending) in the trial courts. They are also likely tamer thanr before your association.r


the ones Yet, they serve as a reminder


that litigation should focus on the law andw matters that associations truly have control and authority over. While associations cannot control what a third party asserts against it in a lawsuit, it can help to curb litigation that centers around issues beyond enforcement.


in nefarious behavior, allowing their dog to


defecate on Toirac’s lawn, and causing other damage and vandalism. The Toiracs installed security cameras that the Nithiananthans blocked with landscaping. So, the Toiracs just moved one of the cameras to point directly into the bedroom of the Nithiananthans’ daughter. TheToiracs also installed lighting which was pointed towardsthe Nithiananthans’ home. All of thisf


led to the Nithiananthans


filing a lawsuit and the Toiracs countersuing. The court ruled in favor of the Nithiananthans (only awarding them


38 | COMMON INTEREST® • Fall 2023 • A Publication of CAI-Illinois Chapter


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