"Litigation for Years to Come..."

Or at least so promises Comcast, in response to the new Federal Communications Commission Rule mentioned in this blog entry the other day. The new rule was adopted by the F.C.C. unanimously today.

Whether or not the rule does in fact reach the promised litigation levels, it does appear as though the rule will apply to condos, at least based upon the quotes from Verizon and Comcast, as reported by the Associated Press:

"The FCC decision will provide access to new competitive options for residents of these properties and encourages further deployment of broadband networks," Susanne Guyer, Verizon's senior vice president of federal regulatory affairs, said in a statement.

But Comcast said the change is a "blow" to consumers in apartment buildings and condos and could spur litigation for years to come.

"The net result is that many consumers are likely to wind up paying more for services if the FCC's interference in the competitive marketplace stands," Comcast spokeswoman Sena Fitzmaurice said in an e-mailed statement.

I'll look into the new rule, and provide some more information on this blog in the next day or two.

F.C.C. Planning to Act on Exclusive Cable Contracts, at Least in Apartments

The New York Times is reporting that the Federal Communications Commission is about to adopt a rule that would prohibit exclusive cable carrier contracts in apartment buildings. The article, which is available here, is silent as to whether the regulation will alter the enforceability of these contracts in the community association context. A quick search at the F.C.C. web site shed no further information, but I'll look into that and update this posting as soon as I can find out more information.

You Ought to Add This...

Or at least seriously consider adding this, or something similar, to your declaration. The language below was recently upheld by the Georgia Supreme Court, which upheld the provision in protecting an association from a lawsuit filed by an owner.

The Declaration provided, in pertinent part:

From the time that the common area, or any portion thereof, is opened and put into use for the enjoyment of parcel owners, owner [developer] shall be and remain wholly free and clear of any and all liability to, or claims by, all parcel owners, and all persons and entities, of whatever kind or character, whether sounding in contract or tort, deriving from the occurrence of any injury or damage to any person or property on, or in respect of the use and operation of, the common area or any of its improvements, fixtures, and facilities; inasmuch as the control, operation, management, use and enjoyment, of the common area shall be within, under, and subject to the Association – and not owner [developer]. In this respect, it shall be the affirmative duty and responsibility of each parcel owner, and user of the common area facilities to continuously inspect the same for any defects or perils or other unsafe conditions or circumstances, prior to and during such use or enjoyment thereof; and all users of, and visitors to, the common area and its improvements and facilities shall use, enjoy, and visit, the same at their own risk and peril.

The Association successfully defended against a number of challenges to the language, ultimately succeeding in obtaining a dismissal of the Unit Owner's personal injury suit.

Fine...Just Fine...

Inquiries have been flying in over the past few weeks about associations' rights and powers to fine their noncompliant residents. It thus seems appropriate to remind readers, therefore, that the right to impose liens associated with fines is limited by statute.

Utah Code Ann. 57-8-37 applies to condominium associations, and limits fines "for a continuing violation" to $500 per month. The legislation does not define what "a continuing violation" is.

Utah Code Ann. 57-8a-208 applies to other community associations, and does not contain any limitation upon the amount that can be fined.

Both statutes entitle the fined unit owner to have a hearing, if the fine is contested. The hearing rights vary, depending upon the type of association.

So, if you want to fine someone, I'd recommend that you consult competent counsel before you act.

Holding Their Breath While Holding the Bag.

Lenders who financed major condominium projects while the economy was stronger, and prior to the current mortgage crisis, are now reaching the point where their purchasers need to decide whether to complete their purchases, or walk from their (often significant) down payments.

The New York Times reports that one lender, Corus Bankshares, has 92 percent of its developers' accounts receivables in condominiums. The condominium construction boom is peaking this year, with completed condominiums up 45 percent from 2006. Meanwhile, sales have fallen 12 percent. In the last three months, sales in Vegas are down 46 percent.

Right now, I think I'd prefer to have my money on a table than on a down payment.

Here's a link to the article.

Rudy Giuliani's Answer to the Perpetual Pet Problem

According to an article in the New York Times, Mayor Rudy Giuliani used to offer rather candid advice to his callers on his weekly radio show. When called about the problem of owners who refused to clean up after their dogs, the Mayor reportedly responded:

“I get angry about this all the time! When I was a private citizen I would go up to people and tell them they were slobs,” Mr. Giuliani recalled. “I would say: ‘Hey, you’re a real slob. And you’re disrespectful of the rights of other people. Clean up after your dog, damn it!’”

This is neither a political endorsement nor a criticism. I just thought you might find it interesting, and perhaps useful.

Perhaps a reader ought to present this question at the nest YouTube debate.

Landslides in LaJolla, California

The New York Times is featuring the dramatic photo above, taken in LaJolla California earlier today. The photo and the accompanying New York Times article are a reminder of the need for developers and homeowners to be mindful of the risks associated with hillside development. Sliding slopes are, after all, the issue that led to the Yazd v. Woodside Homes litigation.

It Depends Upon How You Phrase It

At last weekend's legal seminar, I reminded my audience that the Fair Housing Act's protections against familial status prohibit discrimination against families with children, and as a result have resulted in fines against associations who require children to wear diapers in the pool.

So, remember that if you require anyone to wear diapers in the pool, your rule must be age neutral. "Those requiring diapers must wear them in the pool" is OK; "Children must wear diapers in the pool" is not.