This case involved two separate disputes between a condominium owner (Owner) and his homeowners association (Association) over the validity of an amendment purportedly adopted by Association to the provisions concerning pets contained in Associations declaration and the inspection and copying of Association documents requested by Owner.
Dispute No. 1- Re Validity of Amendment of the Pet Provisions in Associations Declaration
Associations recorded master deed, which dated back to 1983, contained language stating that, Household pets will be subject to regulation, restriction, exclusion and special assessment, as may be determined by the Association from time to time. In 2011, Association purportedly adopted an amendment to language contained in the master deed concerning pets. The amendment, which consisted of a 2 page document, entitled Twin Towers Condominium Association Pet Addendum, limited the number of cats and dogs per unit, imposed a 25 pound maximum weight limit on dogs, and prohibited certain breeds of dogs and exotic pets.
Owner challenged the validity of Associations amendment contending that it effectively removed from the board of directors the authority to regulate pets and thus, altered the rights of owners by transforming the board’s rulemaking discretion into a permanent statement of policy regarding pets. Owner further contended that altering the owners rights under the master deed required the consent of 2/3 of the owners, and Association failed to obtain the consent of 2/3 of the owners for the adoption of the amendment. The trial court granted summary judgment in favor of Association and Owner appealed.
The appellate court ruled that, because the evidence showed that the master deed contained language stating that amendments had to be set forth in a writing that was duly acknowledged and recorded by co-owners representing two-thirds or more of the total basic value of the condominium, and the purported 2 page Pet Addendum did not include the personal signatures of the owners supporting the amendment, the amendment was not adopted as required by the plain language of the master deed and was void. Accordingly, the appellate court reversed the trial courts judgment in favor of Association.
Dispute No. 2- Re Inspection and copying of Association documents
Association created a website for owners upon which Associations board posted financial documents, board meeting minutes, the master deed, bylaws and amendments, email communications and announcements for elections and social events, and other pertinent Association documents. Certain documents that were posted on Associations website were protected files that were marked PDF which could be opened by an owner visiting the website, but they could not be copied. All of Associations financial records were marked as protected files.
After Owners request for access to, and copies of, various Association records, Owner filed suit against Association seeking to compel it to deliver the records and copies that he had requested. Owner based his claimed right to inspect and receive copies of the records in question on a Nebraska statute that said, All financial and other records of the association shall be made reasonably available for examination by any unit owner and his or her authorized agents. Association opposed his request for the records on the basis that Association believed Owners request for the records was not made in good faith and for a proper purpose. The trial court sided with Association in ruling that Association had a process to provide owners with financial and other Association records (the website), and had made the information reasonably available for examination by any unit owner and his or her authorized agents. The trial court further found that there was no statutory required for Association to allow copies of its records to be made. Accordingly, the trial court granted judgment in favor of Association and dismissed Owners claims. Owner then appealed the trial courts judgment.
On appeal, Owner argued that the statutory right to review Associations records carried with it, the right to copy such records. The appellate court agreed with the lower courts judgment finding that the plain language of the statute in question required only that Associations records be made reasonably available for examination by any unit owner and his or her authorized agents. The court stated that, Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Thus, the appellate court held that the language of the statute in question did not include the right to make copies of Association records. In affirming the trial courts judgment, the appellate court stated that the statute gave Owner the right to examine Associations records, but not the right to make copies of them.
Nebraska Appellate Court Decision (September 25 2018)
See case decision: Dunbar_v._Twin_Towers_Condo._Ass’n_Inc._26_Neb._App._354_(Neb._App._2018)1