Kiekel v. Four Colonies Homes Association

162 P.3d 57 (2007)

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Nature of the Case

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Facts

D is a Kansas not-for-profit corporation comprised of the property lot owners in the Four Colonies subdivision. D was created in 1971 as a 'condominium-type 'planned unit development.'' Individual lot owners were subject to property use restrictions pursuant to Four Colonies' Declaration of Covenants, Conditions, and Restrictions (Declaration). The Declaration includes a provision that allows it to be amended by an instrument signed by not less than 75% of the lot owners. The Bylaws can be amended by a majority vote of lot owners at a meeting. From the time of the subdivision’s creation, owners rented their properties. Ps were non-occupying owners of eight units, which they rented. Other owners complained about the tenants and the failure of P to maintain their units. The owners amended the bylaws to prohibit currently rented property being rented after any change in ownership of that property following the adoption of the By-Laws amendment; a prohibition against any property not rented as of the adoption of the By-Laws amendment from being thereafter rented; a requirement that all lease agreements be submitted to the Association's Board for approval every twelve months; a grant of authority to the Association to terminate any lease and evict any tenant in the event a property owner fails to comply with the requirements set forth in the By-Laws amendment; and a provision that the Association be entitled to recover all costs and attorney fees in terminating any lease and evicting any tenant pursuant to the terms set forth in the By-Laws amendment. Only 372 of the 681 lot owners attended the meeting. The bylaw amendment was approved with 191 for and 181 against the amendment. P filed a petition for declaratory judgment, arguing the bylaw amendment was void because it conflicted with the Declaration. D sought an injunction to prevent Ps from renting their units and to require Ps to sell the units to occupying owners. The court denied Ps’ claim and D’s request for an injunction. Everyone appealed.