Bixeman v. Hunter's Run Homeowners Association (IN)

Summary: Homeowner association did not follow the process outlined in the Declaration regarding requirements to impose sanctions against homeowners, thus the sanctions were invalid.


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Bixeman v. Hunter's Run Homeowners Association of St. John, Inc., 36 N.E.3d 1074 (Ind. Ct. App. 2015).


Facts: The Bixemans own a residence in the Hunter’s Run Subdivision which is encumbered by a Declaration of Covenants, Conditions, Restrictions and Easements. Article XI, Section 6 of the Declaration requires owners to provide a copy of the lease to Hunter’s Run at least fifteen days prior to the effective date of the lease and it also contains a clause that requires the prospective tenant to acknowledge receipt of the Declaration.

In 2012, the Bixemans moved to Iowa. On October 7, 2012, the Bixemans rented their residence to another party, effective October 1, 2012. The Bixemans did not provide the lease to Hunter’s Run fifteen days prior to the effective date of the lease, nor did the lease contain a clause that required the tenants to acknowledge receipt of the Declaration.

Article XII of the Declaration contains the procedure for the homeowners association to follow in order to impose a sanction, suspend the right to vote, or infringe upon any other rights of an owner. The procedure is three parts; 1) Demand, 2) Notice, and 3) Hearing. Contained in the Notice procedure is a requirement that the homeowners association shall not schedule a hearing less than ten days from the giving of notice to an alleged violator.

On October 22, 2012 Hunter’s Run notified the Bixemans of their alleged violation, with the hearing scheduled seven days later on October 29, 2012. The Bixemans were unable to travel from Iowa and Hunter’s Run would not allow them to appear by telephone. Hunter’s Run made no decision at the hearing and requested the Bixemans to submit any evidence in writing. Hunter’s Run did not receive a response it considered adequate and imposed a $250.00 sanction on the Bixemans. The Bixemans did not pay, and on February 18, 2013 they were notified of a $2,525.000 lien that Hunter’s Run recorded against the property.

The Bixemans sued for release of the lien, with Hunter’s Run counter-suing to enforce and foreclose the lien. The Bixemans also filed for a partial motion for summary judgement requesting that the court find that the invalid lien slandered their title, which made their home unmarketable and incurred attorney costs.

The trial court entered summary judgement, ordering the Bixemans to pay the $250.00 sanction and ordering Hunter’s Run to release the invalid lien. The trial court declared that since the lien was invalid, the allegation for slander of title is moot. The Bixemans filed a motion to correct error, and the trial court declared the sanction invalid and reversed the order the Bixemans pay it.


Holding: Affirmed in part, reversed in part, and remanded. The trial court did not err when it declared the sanction invalid. Hunter’s Run did not follow the procedures agreed to in the Declaration. The Declaration is viewed as an express contract, and notice given only seven days before the hearing is a violation of the process which requires at least ten days between notice and a hearing. Hunter’s Run argument that their “substantial compliance” should absolve it of following the process outlined in the Declaration fails. Relying on Gibson v. Neu, 867 N.E.2d 188, 195 (Ind. Ct. App. 2007), which states that substantial compliance is satisfied only if “performance of a nonessential condition is lacking.” The court declined to hold that the ten day requirement was a “nonessential condition.”

The slander of title action is reversed and remanded to determine whether the Bixemans were damaged by the slander of title and the damages from that slander (as well as attorney fees). An essential element of a slander of title action is proving “false statements were made, with malice, and that the plaintiff sustained pecuniary loss as a necessary and proximate consequence of the slanderous statements.” Display Fixtures Co., a Div. of Stein Indus. v. R. L. Hatcher, Inc., 438 N.E.2d 26, 30 (Ind. Ct. App. 1982). A malicious statement is a statement made “with knowledge of its falsity or with reckless disregard for whether it is false.” Holland v. Steele, 961 N.E.2d 516, 525 (Ind. Ct. App. 2012).

The court found malice when Hunter’s Run refused to release the lien after the Bixeman’s attorney notified Hunter’s Run that the lien was invalid. Since Hunter’s Run maliciously placed a lien on Bixemans’ property, which the Bixemans allege caused them pecuniary loss, Hunter’s Run committed slander of title.

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By: ATG Underwriting Department | Posted on: Tue, 05/10/2016 - 3:42pm