Meadowbrook Condominium Ass'n v. South Burlington Realty Corp., 565 A.2d 238 (1989)

Citation: Meadowbrook Condominium Ass'n v. South Burlington Realty Corp., 565 A.2d 238 (1989)
Parent Document: Meadowbrook Condominium Ass'n v. South Burlington Realty Corp., 565 A.2d 238 (1989)
Jurisdiction: Vermont (state)
Effective Date: 1989-06-23
Original Source: https://www.courtlistener.com/opinion/1561260/meadowbrook-condominium-assn-v-... ↗

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In Jablonsky, the Supreme Court of North Dakota considered a situation remarkably similar to the instant case. There, a condominium association brought suit against the project’s developer, alleging that a retaining wall located behind the residential units had failed. The trial court found for the plaintiffs on theories of negligence and implied warranty, but it apportioned the damages and denied recovery to those owners who had purchased their units with notice of the defective retaining wall. On cross-appeal, the high court rejected plaintiffs’ argument that the apportionment was erroneous. Jablonsky, 377 N.W.2d at 569-70. In response to plaintiffs’ contention that, as cotenants, each of them would have had a right to maintain an action for the entire amount of the damage, the court merely observed that: “ ‘It is ... permissible for a single cotenant to sue for his fraction of the damages inflicted on his fraction of ownership in a case where the other cotenants have consented to the wrongful action by the outsider, thereby barring themselves from sharing in any recovery.’ ” Id. at 569-70 (quoting 4A Powell, supra, § 606, at 625-27) (emphasis in original). In sum, Jablonsky stands for two, closely related propositions: (1) a single cotenant has no right to recover the entire amount of damages relating to the cotenancy, and (2) apportionment of damages is therefore proper where fewer than all of the condominium unit owners are entitled to recover against a particular defendant for damages to the common area.

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