Here's an Alabama case where a homeowner encroaches on the common area by building some steps to a lake. The HOA tells him to "cease and desist." He files suit against the HOA in which he argues that the HOA was improperly formed since it never filed incorporation papers as required by the CC&Rs, and a board was formed by a group without the required quorum and with a board membership that violated the CC&Rs. Based on this, the trial court agreed and decided in favor of the homeowner. Victory? NOT!!!
The appeals court held, that as a result of their error as filed by the homeowner in the suit, the HOA immediately properly filed incorporation papers and was "bona fide" to enforce the CC&Rs. Given this major position, all the rest fell by the wayside and the homeowner lost. The argument that all the dues that he had paid the HOA under the CC&Rs was therefore not binding was not supported by the appeals courts, holding that the homeowner did not contest the issue when he made his payments. Therefore, by his payments, he was agreeing to be bound by the unincorporated and improperly formed association. BAM!! YOU LOSE!
Willow Lake v. Juliano, No. 2081099, (Ala Civ. App, Aug. 27, 2010).
An aside on legal dicta
For the leagle-eagles, this opinion contained the question of whether "ramblings" or views by a court were to be taken as binding opinion. These statements are called "dicta" (if not made by a judge they are called "ipse dixit"). Surprisingly, not necessarily. (Dicta are judicial opinions expressed by the judges on points that do not necessarily arise in the case. The part of a judicial opinion which is merely a judge's editorializing and does not directly address the specifics of the case at bar; extraneous material which is merely informative or explanatory.) The court stated,
Thus, our reversal of the judgment in regard to the incorporation issue renders the findings of the trial court on the ownership issue to be gratis dictum. . . . An opinion given in Court' . . ., `if not necessary to the judgment given of record, . . . is no judicial opinion, no more than a 'gratis dictum.' . . . gratis dictum is of no legal force and effect, . .
.
.
Too many times HOA/CAI lawyers make public statements based on dicta, which mislead the public and can be challenged.
No comments:
Post a Comment