TARIQ (RAAEFIA), ET AL. VS. WORTHINGTON GLEN COUNCIL OF CO-OWNERS, INC.
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RENDERED: JULY 22, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001610-MR
RAAEFIA TARIQ; SHAFIA TARIQ;
AFIA TARIQ; and HUSSAIN TARIQ
v.
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 09-CI-008316
WORTHINGTON GLEN COUNCIL
OF CO-OWNERS, INC.
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: COMBS AND LAMBERT, JUDGES; SHAKE,1 SENIOR JUDGE.
COMBS, JUDGE:
Raaefia, Afia, Shafia, and Hussain Tariq appeal the
judgment of the Jefferson Circuit Court which held that they violated provisions of
the Bylaws of Worthington Glen Condominiums. The trial court granted
1
Senior Judge Ann O’Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Worthington Glen’s requests for injunctive relief and for attorneys’ fees. After our
review, we vacate the judgment.
The Tariqs are siblings (three sisters and a brother) who purchased a
condominium at Worthington Glen in February 2009. The three sisters planned to
live in the condominium while attending the University of Louisville. However,
after the purchase, they decided to continue residing with their parents. In April
2009, the Tariqs’ father executed a six-month lease with a tenant.
Upon learning of the lease, Worthington Glen informed the Tariqs that the
lease violated Worthington Glen’s Bylaws. The pertinent provision is a 2006
amendment which prohibits the leasing of units except in very narrowly defined
situations. None of the exceptions applies to the Tariqs and their tenant. The
Tariqs’ attorney advised them that the amendment had been improperly
implemented. Therefore, based on advice of counsel, they did not terminate the
lease.
In response, Worthington Glen filed a lawsuit in Jefferson Circuit Court
seeking injunctive relief and attorneys’ fees. The court conducted a bench trial in
July 2010. It rendered its findings on July 30, 2010, awarding the relief sought by
Worthington Glen. This appeal follows.
Although the Tariqs present several arguments, we believe that one is
dispositive. The Tariqs contend that the trial court erred in determining that the
amendment to the Bylaws was both proper and controlling. We agree.
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Kentucky Rule[s] of Civil Procedure (CR) 52.01 directs that in the case of a
bench trial, an appellate court may not disturb the trial court’s findings of fact
unless they were clearly erroneous. Clear error is not committed as long as factual
findings are supported by substantial evidence. God’s Center Found. Inc. v.
Lexington Fayette Urban County Gov’t, 125 S.W.3d 295, 300 (Ky. App. 2002).
“The test of substantiality of evidence is whether when taken alone or in the light
of all the evidence[,] it has sufficient probative value to induce conviction in the
minds of reasonable men.” Williams v. Cumberland Valley Nat. Bank, 569 S.W.2d
711, 714 (Ky. App. 1978) (quoting Kentucky State Racing Comm. v. Fuller, 481
S.W.2d 298, 308 (Ky. 1972)).
In 2006, the Worthington Glen Council of Co-Owners created an
amendment to its Bylaws prohibiting owners from leasing their units except under
very narrow, specific circumstances. There is no dispute that the Tariqs do not fall
within any of the exceptions. The amendment recites that it was implemented
“pursuant to Article XI Section 5 of the Bylaws” and that it was approved by 51%
of the co-owners.
We first note that the trial court found that the amendment had been properly
enacted without reference to supporting evidence, explanation, or elaboration. We
have closely examined Worthington Glen’s Master Deed (also referred to as the
Declaration) and its Bylaws. As Worthington Glen correctly observes, Article 12,
Section 7 of the Master Deed directs that “[a]ll leases are subject to all provisions
of the Declaration, the Bylaws and the Rules and Regulations.” Worthington Glen
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is also correct in noting that Article 11, Section 5 of the Bylaws allows for
amendment of the Bylaws by the consent of 51% of the owners.
However, this provision is in conflict with Article 17, Section 2(f)(ii)(K) of
the Master Deed, which requires that amendments relating to leasing must be
approved by 67% of the owners and 51% of mortgage holders.
The Tariqs cite Article 17, Section 3 as follows:
Article 17 shall be construed as far as possible to
supplement the other articles of the Declaration. If
there is a conflict between another article or the
Bylaws or any other document, this Article 17
shall control, even if an earlier article states that
the earlier article shall control in case of conflict.
Additionally, Article 11 of the Bylaws concedes that in case of conflict with the
Master Deed, the Master Deed controls. Therefore, the trial court lacked the
requisite quantum of substantial evidence to conclude that an amendment enacted
with approval of only 51% of unit owners was proper. 2
We have scoured Kentucky case law for precedent, but this case appears to
be one of first impression in the Commonwealth. However, several other
jurisdictions have rejected amendments to bylaws that were made without the
proper percentage of owner approval. See Lake Arrowhead Chalets Timeshare
Owners Ass’n v. Lake Arrowhead Chalets Owners Ass’n, 59 Cal. Rptr.2d 875 (Cal.
Ct. App. 1996); Tower House Condominium, Inc. v. Millman, 410 So.2d 926 (Fla.
Dist. Ct. App. 1981); Kaplan v. Boudreaux, 573 N.E.2d 495 (Mass. 1991); Bd. of
2
It is noteworthy that Worthington Glen’s property manager testified that in spite of her
recommendation to amend the Master Deed, the Board nonetheless elected to amend the Bylaws
with only 51% approval because of the difficulty entailed in obtaining owner participation.
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Managers of Village View Condominium v. Forman, 78 A.D.3d 627 (N.Y. App.
Div. 2010).
Because the amendment to the Bylaws is invalid, Worthington Glen has
failed to state a cause of action against the Tariqs. All other arguments alleging
trial error are, therefore, moot.
We vacate the order of the Jefferson Circuit Court and remand for an order
dismissing this lawsuit.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard V. Hornung
Louisville, Kentucky
Dennis J. Stilger
Louisville, Kentucky
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