Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Feather Trace Homeowners Association, Inc. v. Luster

Court of Appeals of Indiana

September 24, 2019

Feather Trace Homeowners Association, Inc., Appellant-Plaintiff,
v.
Donald R. Luster, Appellee-Defendant

          Attorney for Appellant David E. Jacuk Tanner Law Group Indianapolis, Indiana

          Appeal from the Marion Small Claims Court The Honorable John A. Kitley, Judge Trial Court Cause No. 49K09-1807-SC-741

          BAKER, JUDGE.

         [¶1] Donald Luster is a homeowner in the Feather Trace neighborhood. He refused to pay his annual assessment to the Feather Trace Homeowners Association (HOA) after the HOA stopped maintaining the public areas in the neighborhood. The HOA sued Luster for the unpaid assessment plus costs and attorney fees, and the trial court entered judgment in favor of Luster. The HOA appeals, arguing that the trial court erred as a matter of law. We agree. Therefore, we reverse and remand with instructions to enter judgment in favor of the HOA and to calculate the amount owed by Luster.

         Facts

         [¶2] In August 2002, Luster and his wife purchased a home in the Feather Trace neighborhood. Their deed was subject to Feather Trace's covenants, conditions, and restrictions, including a requirement that they pay annual fees of $200 to cover maintenance, repairs, and ordinary operating expenses of the HOA. If owners fail to pay the assessment, the HOA has a continuing lien on their property for the unpaid assessment, late fees, collections costs, and attorney fees.

         [¶3] The Feather Trace neighborhood is comprised of fifty-two residences; it also includes a pond. At some point, Luster noticed that the neighborhood was not being maintained properly. Specifically, he raises the following shortcomings (and provided photos as proof of his allegations):

• The roads in the neighborhood were not maintained properly. Specifically, there were holes on the street and sidewalks.
• The pond was not being maintained. Specifically, there was "scum" and "filth" on and around the pond, causing it to stink. Tr. p. 28. Luster stated that all year long, "all you smell is the stink coming from this pond." Id. Luster offered photos showing many dead fish in and around the pond and he testified that there were about 200 or 300 fish that were killed. The pond was not aerated with a fountain, nor was the water treated by an aquatic services company. At some point in the past, the pond tested positive for E. coli bacteria.
• The drainage holes around the pond, which are approximately three feet across, did not have grates. As a result, children frequently crawled inside the holes.
• The common areas were not being maintained. Specifically, they were not being mowed, edged, or mulched. The areas around the pond were eroding to such an extent that it was impossible to walk in those areas without "end[ing] up in the pond." Id. at 25.
• There was only one streetlight in the neighborhood.
• Homeowners were not properly maintaining their own properties. For example, some homeowners were letting weeds overgrow their fences.
• It is not permitted to have people renting the homes in the neighborhood, but multiple units housed, or ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.