United States: The Battle At Bluff Point

Originally published in Habitat Magazine, April 2017

What happens in a community when homeowners do not follow restrictive covenants? The court reviewed just that question in Bluff Point Townhouse Owners Association v. Kapsokefalos.

Lisa Kapsokefalos and her husband own a townhouse in the Bluff Point community in Plattsburgh, New York. The homeowners pay membership dues to Bluff Point, which provides services for the benefit of residents. There was a long history of litigation between the parties, with the Kapsokefaloses refusing to pay monthly dues. There were two prior actions against the couple as a result of their failure to comply with certain restrictive covenants and pay dues. The second of these two actions ended with a decision and order issued on January 6, 2014, awarding the association judgment for the relief requested in the complaint. Specifically, the Kapsokefaloses were directed to pay the monthly dues outstanding from August 2007 to December 2013.

The defendants complied, but eventually, after another personal dispute with the board, they stopped paying monthly dues and eventually owed $2,900 for those dues outstanding from January 2014 to June 2016.

In June 2016, Kapsokefalos painted a sign on the garage door of her townhouse that declared: "Property Rights Matter!!!" According to a neighbor, the sign was written in large letters, and appeared to have been spray-painted to give the appearance of graffiti. In addition, Kapsokefalos painted with red paint the trim around the garage, her front door, and the second-story windows of her townhouse. But red violated the color scheme previously approved by Bluff Point.

Bluff Point sought a preliminary injunction as a result of the painting of the garage sign and the trim to non-conforming colors. It also demanded that the Kapsokefaloses be required to cut back or trim overgrown vegetation in the front and rear of the unit.

The decision discussed here deals primarily with Bluff Point's request for a preliminary injunction. An injunction is an equitable remedy, and because it is interim – i.e., requested at the beginning of the action rather than at the end – there is a heightened burden on the one demanding the relief. Thus, the court explained that, in order to obtain a preliminary injunction, Bluff Point would have to show that it is likely to succeed on the merits of its claims for permanent injunctive relief; that there will be irreparable harm to Bluff Point if the injunction is not granted; and that the equities of the situation balance in Bluff Point's favor.

The court first noted that, because of prior litigation between the parties, Bluff Point would probably succeed on the merits of its claims, meeting the first element for a preliminary injunction. However, the court explained, whether Bluff Point established irreparable harm and a balancing of the equities differed on each item it sought to enjoin.

The court took each of the issues separately. It concluded that the painting of a graffiti-like sign on the garage door was unsightly and could affect surrounding property values. The Kapsokefaloses, however, submitted proof that Lisa had painted over the sign. The court stated that, given her history, "it is not inconceivable that [she] might repeat the conduct." It thus ordered that during the litigation, Kapsokefalos would not be permitted to paint or letter the exterior of the premises.

As to the trim paint, the court acknowledged that the color was non-conforming. However, the court looked specifically to the "irreparable harm" prong of the preliminary injunction test. It concluded that the paint color did not, in and of itself, rise to the level of harm that would warrant the grant of a preliminary injunction. Presumably, the court did not believe that the non-conforming color would affect property values or otherwise negatively affect other members of the community. Although it did not order that Lisa Kapsokefalos repaint, the court did direct that she could not further paint the exterior of the townhouse with a color not approved by Bluff Point.

The last issue addressed by the court was the vegetation in the front and back of the Kapsokefaloses' house. The photographs submitted did not, in the court's view, create a condition that was so unsightly or dangerous so as to establish the irreparable harm required to allow the court to grant a preliminary injunction. This was, in part, because there can be no finding of irreparable harm if money damages are available to resolve the matter. Accordingly, the court noted, to the extent Bluff Point had the right to maintain the lawns, it could trim the vegetation and then seek monetary damages separately.

The Takeaway

It appears from the decision reported here, and from other cases concerning these parties both at the lower court and the appellate level, that the two sides continue to litigate in part because of a personal incident. Where there are personal disputes in an association setting, it is important that the parties try to keep them in perspective. Homeowners should not take action merely to flout the rules, nor should a board implement rules solely directed at an owner as a result of a personal animus. Condominiums, cooperatives, and homeowners associations require people to live together and comply with the rules, which are presumably implemented for the benefit of all owners. While the motion discussed here was a "preliminary injunction," we suspect that, if the matter proceeds to conclusion, Bluff Point would probably receive the injunctive relief it seeks, assuming the rules were promulgated in accordance with Bluff Point's governing documents. This is because it has long been the law that when one buys into a community such as a cooperative, condominium, or homeowners association, one submits to the governance of that community.

For Plaintiff: Niles & Bracy
For Defendant: The Clements Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions