August 25, 2010

Plant Containers Represent Unappreciated Fire Hazard

Earlier this year, a condominium in Calgary, Canada was destroyed by the combustible combination of a cigarette and potting soil. A person smoking outside the building apparently put a cigarette “out” in the dirt of a nearby planter. The planter contained two flammable ingredients: dry peat moss and fertilizer. The result was a massive fire and 250 people homeless.

Condominium boards should warn residents that potted plants and planters can pose a potential fire hazard. It is a good policy to either encourage or require residents to use ashtrays when they smoke on decks or porches and when they smoke in common areas. The association’s attorney and property manager can help identify the sources of association authority in this area and any limitations on that authority.

August 20, 2010

Owners Use Political Process to Challenge Stricter Covenant Enforcement Policy

Parking restrictions can lead to intense disputes between boards and owners. For example, home owners in a West Lafayette, Indiana subdivision are currently battling their board of directors over a covenant amendment banning street parking. The amendment was enacted in 2003, but it was not strictly enforced until November of 2009. Some owners complained that they were no longer able to host gatherings as a result of the new enforcement policy. The board responded to the outcry by starting a pilot program that allows owners to pay a refundable deposit for up to five street parking permits in advance of an event. The protesting owners were not satisfied with that solution, and they are now attempting to call a special meeting and replace the board members.

As a general rule, community association boards may begin enforcing existing covenants more strictly as long as all owners are notified of the change and are equally subject to the new policy. However, boards should also consider the reaction of the owners to abrupt changes in the standards governing their property. Giving owners an opportunity to state their concerns in advance and modifying the enforcement policy to address those concerns will reduce the odds of a major conflict.

The various political remedies described in every association’s governing documents (such as the ability to amend the governing documents, override board-adopted rules, and recall board members) often represent the best options for owners that want to challenge a strict enforcement policy. Mediation and some types of arbitration can also be effective ways to resolve such disputes. On the other hand, legal action is too slow, expensive, and uncertain for many owners to consider it a viable option, and litigation has the added drawback of greatly reducing the potential for dialogue and compromise.

August 11, 2010

New EPA Rule Regarding Lead Paint Will Affect Repair Work on Older Buildings

Lead-based paint, which has been shown to be the cause of serious health problems, was unfortunately common in buildings constructed before 1978. Under the Environmental Protection Agency’s Renovation, Repair, and Painting ("RRP") Rule, contractors and painters are currently required to follow specified lead safety work practices and to provide lead safety information to owners and tenants before they start renovation, repair, or painting work on pre-1978 residential housing and child-occupied facilities. On October 1, 2010, the Environmental Protection Agency ("EPA") will also begin enforcing a new portion of the RRP Rule that requires contractors and painters to obtain lead paint safety certification before working on pre-1978 buildings covered by the rule. To become certified, contractors and painters must attend a training course provided or approved by the EPA that provides instruction on how to work safely with lead-based paint.

Owners of rental housing and maintenance workers in multi-family housing (including condominiums) must follow the requirements of the RRP Rule. However, this rule does not apply to owners working on their own property (without tenants), and it also does not apply to “minor” maintenance or repair activities.

Associations and individual owners with pre-1978 homes or condominiums must be careful when hiring contractors and painters. They should ask what specific lead safety work practices will be used, and (after October 1st) ask to see the contractor’s or painter’s EPA certificate. For more information about lead paint safety, read the EPA’s information pamphlet (Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools). For further information about the requirements of the RRP Rule, visit the EPA’s Renovation, Repair and Painting website or contact your association’s attorney.

August 3, 2010

Civil Rights and Nuisance Claims Result in Massive Judgments Against Homeowners Association

In June, a Boston jury awarded Scott J. Hyman and Donald and Julie Prescott judgments with a combined value of over $2.5 million against their homeowners association. The owners' successful legal claims were based on nuisance and infringement of civil rights. This case serves as a reminder of the robust legal remedies (including those contained in the Civil Rights Act and the Fair Housing Act) available to address misconduct by and in community associations.

Mr. Hyman, who is Jewish, was told by members of the homeowners association’s board of directors that his kind was not welcome in the community. He was denied the right to vote on association matters. Someone smeared excrement over his living room. Shortly after an association member mentioned that “someone is going to burn him out”, Mr. Hyman's primary residence (located elsewhere) was destroyed by fire. The Prescotts stood up for him and were similarly victimized. Mr. Hyman and the Prescotts had swastikas painted on their garages and were photographed hundreds of times. This pattern of harassment persisted for two years.

Condominium and homeowners association boards can subject their associations and their members to civil liability through both action and inaction. Boards should be careful to avoid taking actions that are inconsistent with applicable statutes, their association's governing documents, or a legal duty owed to another person. Boards should also give due consideration to owner complaints and known information and take action when they have a legal duty to do so. The association’s attorney can help the board evaluate how to respond to problems as they arise.