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Bixeman v. Hunter's Run Homeowners Ass'n of St. John, Inc.

Court of Appeals of Indiana

June 11, 2015

Michael R. Bixeman and Doreen Bixeman, Appellants/Plaintiffs/Cross-Appellees,
v.
Hunter's Run Homeowners Association of St. John, Inc., Appellee/Defendant/Cross-Appellant

Appeal from the Lake Superior Court; The Honorable Diane Kavadias Schneider, Judge; 45D11-1305-PL-43.

ATTORNEYS FOR APPELLANTS: Edward P. Grimmer, Daniel A. Gohdes, Edward P. Grimmer, P.C., Crown Point, Indiana.

ATTORNEY FOR APPELLEE: Kevin E. Steele, Burke Costanza & Carberry, LLP, Valparaiso, Indiana.

May, Judge. Robb, J., and Mathias, J., concur.

OPINION

May, Judge.

[¶1] Michael R. Bixeman and Doreen Bixeman (" Bixemans" ) appeal the court's declaration as moot their allegation of slander of title by Hunter's Run Homeowners Association of St. John, Inc. (" Hunter's Run" ). Hunter's Run cross-appeals the court's determination the sanction Hunter's Run imposed against Bixemans was invalid.

[¶2] We affirm in part, reverse in part, and remand.

Facts and Procedural History

[¶3] Bixemans own a residence in the Hunter's Run Subdivision that is encumbered by a Declaration of Covenants, Conditions, Restrictions and Easements (" Declaration" ). Article XI, Section 8 of the Declaration requires owners who wish to rent their residence to others to provide leases in writing and to rent the residence for at least six months initially and for not less than thirty days thereafter. Section 6 of the Rules and Regulations[1] states owners must provide a copy of the lease to Hunter's Run at least fifteen days prior to the effective date of the lease. It also provides the lease must contain a clause that obligates the prospective tenant to acknowledge receipt of the Declaration.

[¶4] In 2012, Bixemans moved to Iowa. On October 7, 2012, Bixemans rented their residence to another party, effective October 1, 2012. Bixemans did not provide the lease to Hunter's Run fifteen days prior to its effective date, and the lease did not contain a clause requiring the tenants' acknowledgement of receipt of the Declaration.

[¶5] The Declaration Article XII, in pertinent part, states:

The Board of Directors shall not impose a Special Assessment as a sanction, suspend the right to vote, or infringe upon any other rights of an Owner or Occupant for any such violations unless and until the following procedure is followed:
1. Demand. Written demand to cease and desist from an alleged violation shall be served upon the alleged violator specifying: (a) the alleged violation; (b) the action required to abate the violation; and (c) a time period, not less than ten (10) days, during which the violation may be abated without further action.
2. Notice. If the violation continues past the period allowed in the demand for abatement without sanction, the Association shall serve the violator with written notice of the hearing. The notice shall contain: (a) the nature of the alleged violation; (b) the time and place of the hearing, which time shall not be less than ten (10) days from the giving of the notice; (c) and invitation to attend the hearing and ...

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