Case Notes by

Michael P. Graff, Principal, Graff Dispute Resolution

First published: Apr 2023
Arbitration Rather Than Litigation

This case can revolutionize condo litigation. The arbitration clause in this case has appeared on commonly copied forms of bylaws for the past 40 years and has not generally been interpreted as it has in this case. Until now, practitioners have been satisfied that if the provisions in traditional condominium documents specifically direct that disputes on the respective provisions be arbitrated, the general arbitration clause had no effect. This is no longer a safe practice. Arbitration may become the new norm. This case has not yet been cited in any reported decision. Nor has a timely notice of appeal been filed within 30 days from the date of entry of the decision.

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First published: Oct 2022
When A Receiver Does the Board’s Job

Boards must accumulate sufficient reserves to finance anticipated and unanticipated repairs to common elements, especially when individual unit owners are suffering ongoing damages. Remember, unit owners do not have the right to repair common elements on their own. Here, the court properly took the matter out of the board’s hands, but the methods employed by the receiver may be less efficient or economical than if the board had acted on its own. On top of this, the board will have to pay the receiver fees and costs associated with the job. Unit owners will not appreciate a board that ignores legitimate complaints from residents, incurs significant legal fees, needs to reimburse fees from affected unit owners, and, on top of everything, pay receiver commissions as well.

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First published: Mar 2022
Bad Behavior

Sometimes the animosity that grows between neighbors takes on a life of its own, and if not nipped in the bud drives them to self-destructive behavior. Where the parties could not act rationally to realize their interests, the judge had to step in and be the grownup, if for no other reason, to prevent abuse of the court’s resources.

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First published: Feb 2022
Getting Off the Board

WHAT YOU NEED TO KNOW As is always the case, it is vital to follow the bylaws, which the Esplanade Board did in exercising its right to remove directors for cause.

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