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Association is Meadowlark 'Lemon'
by Ron Davis
How much control does a shopping center developer have over owners of properties within the center’s confines? That’s a question that has apparently perplexed the courts in Kansas in a recent case involving a Topeka shopping center. But the center’s developers in that case have now moved a big step forward in resolving the control issue in their favor.
The shopping center is Hunter’s Ridge, which its developers—Meadowlark Square, L.L.C.—built with the goal of selling individual units to various retailers. To retain control over the property, the developers established a Hunter’s Ridge board of trustees empowered by a declaration that required unit purchasers to conform to certain standards. That declaration also enabled the trustees to collect assessments from each unit owner and “sue, levy and attach in their names as trustees and to settle, compromise and dismiss claims as they deem appropriate.”
Later, however, the developers amended the declaration to create an owners’ association at the shopping center. That amendment attempted to dissolve the board of trustees and allow the owners’ association to assume all the board’s rights and duties.
The powers of the owners’ association were soon tested when one of the unit owners began renovating his property without first getting association approval. Moreover, he refused to pay maintenance assessments to the association.
In response, the developers resurrected their board of trustees, which, along with the owners’ association, sued the unit owner. But a Kansas court found that the owners’ association was not valid because the declaration did not specifically authorize an amendment to establish such an association.
The developers and the owners’ association appealed.
A Kansas appellate court agreed that the owners’ association does not legally exist because it was not authorized by the declaration. But the court also decided that the individual members of the board of trustees maintained their control status and could sue the unit owner. Plus, the judge decided that Meadowlark Square, as developer and “declarant” had never surrendered its right to enforce the specific restrictions contained in the declaration.
The courts now must decide if the declaration can deny a unit owner the right to renovate his property without the consent of the developers. (Meadowlark Square, L.L.C. v. Ridge Auto Center, 74 P.3d 594)
Decision: August 2003
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