analyzing whether a declaration of covenants, conditions, and restrictions and homeowners' association's bylaws were contracts of adhesion
How later courts described this case
- analyzing whether a declaration of covenants, conditions, and restrictions and homeowners' association's bylaws were contracts of adhesion
- “A contract is ambiguous when it is fairly susceptible to two different constructions, so that reasonable intelligent [people], on reading the contract, would honestly differ as to its meaning.” (citation omitted)
Written by the judges who cited it.
The opinion
RAPP, J., dissenting:
¶ 1 I dissent. Simply stated, Homeowners were members of HOA. The duty of HOA was to maintain, for the common good of each member, the common areas of the Association.
¶ 2 Homeowners purchased property within the Oaks subdivision that bordered a common area and contained, as part of this common area, a free-flowing creek. Creeks and streams are known to cause accretion and deletion of property adjacent to them. 1
¶3 The trial court here found that HOA had a duty to maintain and repair the common area, but not to install erosion control of the creek bordering and contained in the common area. Knowing that deletion is in any free-flowing stream, HOA had a duty to guard against and be proactive in the maintenance of the stream banks. HOA was put on notice that all was not stable when the creek caused a tree to topple into the water due to undercutting its support. This warning affected not one single lot owner, but all within that creek area’s common boundary.
*1049 ¶ 4 I would hold that HOA violated HOA covenants and bylaws under the guise that failure to prevent erosion would, by some stretch of logic, benefit only Homeowners and not other lot owners, ignoring that water finding an easier path will do so and affect others. HOA performed, at best, a diminished action by keeping the streambed clear and ignoring the erosion at its own peril.
¶ 5 Accordingly, I would reverse and remand.
. This area of law is so well known that citations are not necessary.