*1 Vallandingham tective recited sufficient facts magistrate’s supported finding cause,
probable and issuance of the warrant. supported probable
Those facts cause de- appellant
termination that was in fact the
person brought develop- in the film who
ing, where the and that he lived affidavit said
that he lived. There was no error. reasons, foregoing judgment
For the Court is affirmed. Kenton Circuit
STEPHENS, C.J., BAKER,
GRAVES, KING, LAMBERT, STUMBO WINTERSHEIMER, JJ., concur. ASSOCIATION,
PLAZA CONDOMINIUM Schneider, P.S.C., Ziegler &
INC. (Deceased), Ap- Brandt
Successor T.J.
pellants,
v. CORPORATION,
WELLINGTON
Appellee.
No. 95-SC-211-DG.
Supreme Kentucky.
April 1996.
52 Wellington Corpora- appellee, the
tion, creating a master deed a 51- recorded project unit condominium known as River- County, Kentucky. At side Plaza Kenton time, appellee incorporat- or about the same entity Plaza ed an known as Condominium Association, Inc., litiga- appears which in this appellants. tion as The condominium associ- provid- co-owners as ation was the council of 381.810(4) in the and ed for statutes. KRS The initial board of directors KRS 381.870. developer two of consisted of the lawyers. by-laws adopted by The the initial voting granted enhanced board of directors rights developer appellee so that was given during unit five votes for each unsold years other had the first three while owners only per unit. The one vote condominium voting right during effect of this enhanced years give develop- the first three was to the autonomy, although it is contended er virtual challenged nor that such control was neither exercised. by-laws and the of the
The master deed
developer, ap
provided that the
association
herein,
required
pay only
would be
pellee
expenses. This circumstance
pro
25% of
rata
inception
project,
the
prevailed from the
Baker,
Elliston, Zie-
Joseph L.
Sharon S.
ap
July
until December of 1991 when
Schneider, P.S.C., Covington,
Ap-
for
gler &
require ap
pellants
by-laws to
amended the
pellants.
monthly
pellee
pay
assess
100% of
Woltermann,
“Brook”
James G.
John S.
disparity
ment. Based on the
between
Adams,
Stepner,
Brooking,
Brooking,
Wol-
payments
by appellee and
all other
made
Florence,
Dusing,
Appellee.
termann &
owners, appellant sought recov
condominium
$67,000 plus
ery
approximate sum of
of the
LAMBERT, Justice.
litigation
interest from the commencement
attorney’s fees.
por
upon to construe
We are called
Act,
Property
the Horizontal
Law
tions of
Initially,
must review KRS 381.870.
we
seq.,
381.805,
et
particular
and in
KRS
provides that
This statute
contributions
prescribes
contribute in
are bound to
co-owners
[a]ll
toward common ex
required of co-owners
percentage of com-
with their
accordance
Appellants contend
penses, KRS 381.870.
expenses
of ad-
interest
toward
mon
appellee,
develop
unlawful for
that was
maintenance, repairs
and of
ministration
er,
grant
a 75% reduction from its
itself
general
of the
replacement reserves
expenses, thus
pro
share of common
rata
case,
elements, and,
common
Appel
increasing
to other owners.
the cost
elements
of the limited common
insists that
the reduction but
lee concedes
any
expenses
other
regime, and toward
permits
departure from strict
the statute
the master deed
lawfully assessed under
pro
and further contends
rata division
by the council of co-owners.
and/or
expense payment
the event its reduced
adjust-
provides “for
the claim Id. The
unlawful,
statute also
to have been
determined
contri-
co-owners for
by the council of
ments
is barred
laches.
assert
expenses
for which co-owners
proportioned upon a
of Most of
butions
consideration
area,
are
and occu-
number of
bound to contribute
fixed
a combination of floor
are
generating
little
such
occupants,
public
pancy
and ac-
has
to do with
demand on
utilities
Thus,
rule.
pro
is the
cessibility to
Id.
rata distribution
limited common elements.”
costs.
however,
expenses,
limited
For a
class
of this
courts
Commonwealth
*3
occupancy is
to costs and the statute
relevant
spoken
not
have
heretofore
to the
adjustment to
this
a
reflect
permits
limited
statute.
Monarch v.
construction of this
Cf.
remand,
evidence
Upon
the
circumstance.
Co-Owners,
Lodge Condominium Council of
statutory
light
in
of the
be considered
shall
Inc.,
(1985)
Ky.App., 684 S.W.2d
319-20
reduction,
any,
appropriate
an
if
factors and
(holding
specific
that a co-owner could seek
granted appellee.
performance against the council of co-owners
condominium).
complete repairs
In
to
to a
Appeals, appellants’
In the
of
view, however,
unduly
the
not
our
statute is
respect
statutory
to
con
contentions with
complex.
overriding
all
principle
The
is that
essentially accepted.
were
Howev
struction
co-owners, by
owner
whatever means their
er,
had
court determined that
that
arose,
according
ship
are to contribute
to the
by virtue of unreason
guilty of laches
been
percentage
departure
of their interest. A
disadvantage
appellee.
delay to
of
able
the
percentage
permit
from such
contribution is
to
the
that failure
contest
The court believed
upon
statutory
of the
fac
ted
consideration
July
developer’s
treatment from
of
favorable
tors,
an
not
her
escape
but
owner
his or
litigation
of
1986 until commencement
this
the expenses
share of
waiver. One seek
enough
was
to bar the claim.
adjustment
upon
statutory
ing an
based
the
parties intensely debate whether there
The
obligated
factors is
to
the rea
demonstrate
and,
so,
delay
an unreasonable
if wheth-
was
sought.
sonableness of the reduction
justified by
appellee.
the actions
er it was
of
begins
proposition
the
that all
statute
with
Appeals
court
of
found
The trial
and Court
pro
any
owners shall contribute
rata and
justification
delay
for the
no reasonable
seeking
depart
owner
the
to
therefrom bears
say they
wrong
point.
on
we cannot
were
that
demonstrating
of
burden
entitlement
to
However, necessary
plea
to a successful
of
reduction.
prejudice
is the
element of
laches
additional
foregoing
applied
the
case
When
in the
delay. The
court
as a result of the
trial
bar,
granted
at
the
reduction
the devel-
75%
if
prejudice by concluding that
found such
oper cannot be harmonized with the statute.
timely
developer
given more
the
had been
scheme,
statutory
In view of the
it is virtual-
claim,
“simply
would have
notice
ly inconceivable that such a
re-
substantial
recouped
by increasing
that
the sale
cost
justified.
duction
one owner could be
price for each of the individual condominium
Appeals recognized
of
as fol-
The Court
dis-
units.” The Court of
did not
lows:
agree.
say,
Needless to
the
in the mas-
agree
point
the
On this
we cannot
with
of
ter deed itself for favorable treatment
is no reason to believe
courts below. There
developer’s unoccupied
the
units did not
any
appellee sold
of
condominium
that
comply
with this statute.
It also does
bear.
for less than the market would
units
adjustment
appear
the
that the
made
general,
market
forces determine
council,
made,
actually propor-
when
was
prop-
property
real
and the owner of
price of
upon
tioned
a consideration of the statuto-
recoup
costs
erty
ability
has no
to
additional
factors,
ry
in
the fact
particularly
view of
by “adding
price.”
to the
simply
it on
sale
only
belonging to the
that
vacant units
any cost
could
are confident that
We
developer
given
assessment
were
favorable
trial
added on. The
have been added on was
treatment.
finding
developer “simply
that
court’s
adjusted
upwardly
purchase
Wellington
have
Plaza Condominium Assoc. v.
would
93-CA-001049-MR,
price
units to offset
Corp., Ky.App.,
93-CA-
condominium
1995).
(Feb.
001216-MR,
clearly
expense”
erroneous. To
slip op. at 3-4
additional
Appeals accepted
extent
the Court of
case should be remanded for additional evi-
view, it, too,
dence,
Thereafter,
was in error.
parties
if the
so desire.
findings
trial
court should render new
Appellants’
money
claim is for
dam
making
fact and conclusions of law. In
such
ages
yet
and no statute of limitations has
fact,
findings of
the court shall consider the
such,
delay
present
run. As
case
principles
regard
as set forth herein with
to
consequence
is not
appel-
of such
as to harm
appellee
construction
If
of KRS 381.870.
lees to the extent that this claim should not
is able to show its
entitlement
relief based
necessary
engage
be heard.
It is not
in
factors,
statutory
may grant
on the
the court
an extensive
review the doctrine of laches.
Otherwise,
adjustment.
a reasonable
as we
say
It is sufficient to
that this doctrine serves
herein, pro
have said
rata contribution is the
party
bar claims
circumstances where a
rule
applied.
which should be
engages
delay
preju
unreasonable
*4
dice of
rendering
inequitable
others
to
litigation,
At the commencement of this
party
previous
allow that
a
reverse
course
appellants obtained an assessment
lien
Mussman, Ky.,
of action. See Kendall v.
247 against
four units which were still owned
(1952).
502,
expi
S.W.2d
503-04
Prior to the
appellee.
agreement
An
was reached be-
however,
ration
period,
of the limitation
one
parties
granted mortgage
tween the
a
claiming
delay
a bar based on
must also show upon
upon
one unit and the lien was released
prejudice.
proposition
This
was well articu
court, holding
three. The
the other
trial
that
McCann,
195,
Ky.
lated in Denison v.
303
payments
to no
from
were entitled
248,
(1946), quoting City
197 S.W.2d
249
of
statute,
appellee under the
or because of the
101,
Gillispie,
Ky.
Paducah v.
273
115
laches,
doctrine of
ordered release of the
574,
(1938),
S.W.2d
575
as follows:
mortgage. Appellants now insist that
this
laxness;
general
‘Laches’ in its
definition is
was error.
delay
asserting
right.
an
in
unreasonable
a
terms,
By
maturity
the date of
legal significance,
merely
In its
it is not
mortgage
September
was the earlier of
delay,
delay
injury
but
that results in
or
unappeala-
or “the date of the final and
disadvantage
party.
a
works
the adverse
judgment” in
It
ble
this action.
is obvious
Thus there are two elements to be consid-
yet
that neither occasion has
arrived and our
delay
ered. As to what is unreasonable
is
that
this cause must be re-
determination
question always dependent
a
on the facts
requires
versed and remanded
that we like-
particular
case.
the result-
Where
mortgage upon
wise reinstate the
the condo-
ing
great,
disadvantage
harm or
a rela-
agreement which
minium unit. The
resulted
period
delay may
tive
of
constitute a
brief
fully negotiated by
mortgage
in
lien was
period
defense while a similar
under other
parties
they agreed
it should be
may
equi-
circumstances
not. What is the
appellants.
in
This
construed
favor of
ty
controlling question.
of the ease is the
decision in
Link Handle Co. v.
Court’s
O.P.
chancery
Courts of
will not become active
(1968),
Wright, Ky.,
holds
ceedings herewith. consistent GRAVES, KING,
STEPHENS, C.J., and
LAMBERT, STUMBO, JJ., concur.
WINTERSHEIMER, J., dissents opinion. separate WHITTAKER, Acting Director L. Robert BAKER, J., sitting. Fund, Appellant, Special WINTERSHEIMER, Justice, dissenting. v. major- respectfully I must dissent from the Helmers; Jeffrey LANE; J. Allan John
ity opinion the Court of because Docks, Inc.; Coal and Work- Owensboro properly the decision the circuit affirmed Board, Compensation Appellees. ers’ solely based on the doctrine of laches court No. 95-SC-63-WC. delay bringing of the Association in *5 significantly prejudice so action as to Supreme Kentucky. Court to do opposing party. Laches is a failure April 1996. something or to which should have been done right enforce at a time. original
The Association has abandoned its regard
argument Appeals the Court
to laches and now seems claim that apply not at all
doctrine does because money legal claim
action includes a for a
judgment equitable as well as foreclosure
under the terms of KRS 381.883. stated, legali- Appeals
theAs Court of ques-
ty highly of the discount is
tionable, comply and it with governing condominium-property re-
statutes
gimes. Certainly sympathy be en- some can Association,
gendered for the the under- issue,
lying legality Wellington’s that is the
scheme, However, may merit criticism. case, condo- property
kind of horizontal as a owners, dispute governed
minium between is be that all
by contract law. It must assumed original agreement com-
parties to the were consenting. The mani-
petent and claim of addition, injustice unconvincing.
fest as problems preservation with
this case has delay.
aswell responsibility to re- of this courts, the other not to the decisions of
view Consequently, on bal-
discover new facts.
ance, say I cannot Court of deciding the error in
committed reversible circuit laches or
ease on basis of