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Dispute over expensive repairs to some units
If a small number of condominium units are damaged in a storm, you
would think that the condo corporation would pay to repair the affected
units out of the common purse but there are times when the majority of
owners, the ones who's units were not damaged, don't agree.
Neighbors call for Association to make repairs at Fenwick condominium complex
By Evan Koslof
Updated: 21 July 2016
is located off of Route 54, near Fenwick Island. (Photo: WBOC)
FENWICK ISLAND, Del. - It's been almost four years since Superstorm
Sandy rocked parts of Delmarva, and yet the debate over fixing some
damaged homes continues in one part of Sussex County. A group of 12
neighbors in the Mallard Lakes community, located off of Route 54, near
Fenwick Island have sued the Mallard Lakes Condominium Association,
for their lack of action in raising their homes.
On Wednesday morning, a Sussex County Chancery Court judge heard oral
arguments on some procedural motions. The case could go to trial in the
next year if the parties do not come to an agreement.
The conflict all began in 2012, when four condominium units, with 24
homes, were damaged during Superstorm Sandy. The 12 neighbors said that
the condo association made repairs, but did so in a way that did not
make the homes compliant with Sussex County Code. The condos need to be
lifted in order to be in compliance, but the debate is over who should
front the cost.
Richard Heubeck, one of the 12 neighbors, said that it should be the
association's responsibility to raise the homes on their dime.
"We are basically right below or right at the flood plane for the units
here," he said. "And every time there is a Nor'easter that's
forecasted, our biggest concern is are we going to get flooded again."
Lawyers for the Condo Association submitted an answer brief
in response to the filed lawsuit. Attorney Chad Toms said that the
bylaws for Mallard Lakes clearly dictate that the responsibility to
repair damage from natural disasters lie on the homeowner, and not the
"They live in a community," Toms said. "Where we must abide by the
In October 2015, the association held a vote among all 477 condominiums
tenants, asking neighbors if they would support the community absorbing
the costs for raising the homes. By an overwhelming majority, the
voters said no.
Richard Heubeck's condo in the Mallard Lakes development in Selbyville.
Richard' condo has subfloor damage from Sandy, the 2012 storm, that
never got repaired right. (Photo: Jason Minto/ The News Journal)
Neighbor Lorraine Johnson, another plaintiff, said that
homeowners should only be responsible for the repairs within the home.
She said that the condo association should be responsible for exterior
repairs, such as lifting up the home.
"Bring our homes up to code," she said. "To have them elevated, and
have them clean and livable, and safe."
Judge won't put gag order on Sandy-damaged condo owners
The News Journal
22 July 2016
A bitter disagreement over Superstorm Sandy damage to a set of
Selbyville-area condo buildings won't be tamped down by a court-imposed
gag order, a Court of Chancery judge has ruled.
Vice Chancellor Sam Glasscock III ruled against the condominium
association at Mallard Lakes, which had asked the court to stop some
unit owners from speaking publicly about a dispute–and lawsuit–over
whether Sandy-damaged structures have to be elevated and who will pay
if they must be.
seeking to cause turmoil and tension in the
The unhappy unit owners, the condo association said in court filings,
were "seeking to cause turmoil and tension in the community by driving
down property values and making operation of the association more
expensive." The association had asked the court to prevent the
plaintiffs in the lawsuit from raising the subject in HOA meetings and
Sussex County Council sessions, too.
But the owners, who've banded together as the Mallard Lakes Sandy
Interest Group, say the condo association and real estate agents
listing properties in damaged buildings have tried to paper over the
fact that the affected units still lack occupancy permits because their
post-Sandy repairs weren't completed. The condo association, the group
says, must act to fix the damage and spread the cost among the
development's 277 units, not just the handful of units in the affected
bought a condominium they cannot legally occupy
In at least two cases, the group says in a court filing, "condominium
units have been sold to unsuspecting owners who factually bought a
condominium they cannot legally occupy... Rather than help resolve the
situation, the association has tried to silence the petitioners,
ignored the problems, or given false information."
STORY: A Sandy headache that won't go away
Glasscock's ruling this week, denying a preliminary injunction sought
by the condo association, is far from the last word in the overall
lawsuit. The disgruntled owners filed suit in October 2015, three years
after Sandy soaked the Delaware coast. In the storm, four 6-unit
buildings saw close to a foot of water intrude on their ground floors.
Because Mallard Lakes had filed three claims with the National Flood
Insurance Program in the past even before it submitted a claim for the
Sandy damage, the federally-run NFIP insisted the affected buildings
had to be raised — in some cases, only by about 4 inches — to qualify
for occupancy certificates. Since then, the condo unit owners and the
association haven't been able to agree on how the cost of that building
elevation should be divvied up.
"The association doesn't oppose the elevation of those buildings," said
Chad Toms, an attorney representing the Mallard Lakes condo
association. "The problem is, these owners want the entire community to
pay for it. Our governing documents say these owners should pay for it.
It's a stark contrast. There were solutions, but these particular
plaintiffs and the litigation choices they've made have foreclosed
STORY: FEMA spurns Mallard Lakes Sandy grant bid
The upset owners, meanwhile, say they're glad Glasscock declined to
force their silence in public about the dispute.
"Mallard Lakes board members have chosen to spend everyone's condo dues
on legal fees such as this indefensible attempt to stifle our
constitutional right to free speech," Melissa Golden, a Pennsylvania
resident who owns one of the damaged condos. "Mallard Lakes HOA's time
and resources should be dedicated to resolving the very serious issues
of Sandy victims who have no certificates of occupancy."
The costs of
rising the units
The attorney for the condo corporation responds
that only the members who own the affected units in those four
buildings are financially responsible for the cost of elevating their
Instead of spreading out the estimated price tag among 477 units, it
should be divided among the 24 units.
If all units were to contribute, all owners would need to pay a $4,000 per
unit special assessment. If only 24 units must bear the cost, each unit
owner would have to come up with $79,500 which is approximately 40% of
the value of their homes.
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