The current session is dealing with the perpetual issue of when to report a liability claim. The speaker, Jeanette Dixon Lee-Sam, is reporting that one of the largest reasons for denial is the failure to give timely notice. She reports that her company (AIG) has a staff or lawyers, one of whom will be appointed to seek to resolve the claim, in house.
Ms. Lee-Sam has stated, more conclusively than I have ever heard anyone state, that the notice of a potential claim will not adversely affect coverage or premiums. Her co-presenter, Joel Meskin, generally agreed, although he said that a number of notices may have an adverse effect.
Association lawyers who wish to provide a defense on behalf of their insureds, and insured associations which wish to have their counsel are advised to: 1) carefully consider whether that is, in fact in the association's best interest; 2) articulate, if they do wish to represent the association, how they are specially suited to assist, and 3) be willing to accept the insurer's scheduled rates.
Friday, January 30, 2009
Live Blogging the Law Conference -- Day 2
As posted yesterday, I'm here at the College of Community Associaton Lawyers' Law Conference; while I'm at the various sessions today, I intend to share some of the highlights.
First up this morning is the first session of the two-morning case law update; there are over 50 cases to be covered. I don't intend to summarize all of them, but will note some of the highlights. If there are any particularly interesting cases, I'll follow up with summaries of some of them either here, or on this blog's parent cite, Utahcondolaw.com.
Starting out with some good news; the speakers are reporting that the "Business Judgment Rule" has been repeatedly reaffirmed. The Business Judgment Rule, simply stated, is that the good faith business decisions of a board, if within the authority granted to the board, will not be unduly scrutinized by the courts. The predictions are for more Fair Housing litigation, more Fair Debt Collection Practices Act and more construction defect cases. I think they're predicting that one correctly.
In an Ohio case, Gall v. The Mariemount Windsor Square Condominium Association, the court refused an association's attempt to "correct" an apparently erroneous par value schedule. The lawsuit, which was fought over a change of less than 1%, was brought by an individual who came in third, in an election for two directors.
A California case, Mission Shores Association v. Pheil, involved a California statute which allows a court to reduce the requisite vote for a declaration amendment, wherein 36% of the owners didn't even participate. A similar result was reached in Fourth La Costa Condominium Owners Association v. Seith. Fourth La Costa also dealt with the problem of lender approval. The court affirmed the association's mailing, by certified mail, of letters to lenders, in order to get their "consent".
In the collection realm, a Rhode Island case, Mullowney v. Masopust, rejected a marina condominium's effort to reallocate assessments. Owners in this condominium had a unit that consisted of a locker; ownership of the locker allowed the use of a boat slip. Some owners (presumably also owners of smaller boats), wanted to change the assessments, and base them upon boat size. The court found the efforts to violate the Rhode Island Condominium Act.
In Association Two Condominium Association, Inc. v. Kliger, a Florida Appelate Court rebuked a law firm for refusing to accept a partial payment on assessments. The case serves as a reminder that courts will not be sympathetic to over-reaching associations and their counsel.
A Wyoming case, Dwan v. Indian Springs Ranch Homeowners Association, Inc., involved architectural restrictions; an association which had approved a non-compliant roof pitch later rejected the same pitch on a garage, proposed for the same lot. Based upon the approval to the house, the court reversed the denial on the garage.
Gleneagle Civic Association v. Hardin, another architectural control case, involved an email exchange regarding the proposed construction of a fence. The owners requesting the fence corresponded by email; the ACC chairs responded by email; ultimately the requesting owners attempted to argue that the email rejections of the proposed fence were valid. The Colorado Appelate Court, reviewing all of the circumstances involving email correspondence, affirmed the validity of the email as a "written denial".
A Washington case, Lake v. Woodcreek Homeowners Association, dealt with an owners' conversion of airspace above his garage. The court rejected the conversion of the common area to individual space, without the unanimous consent of the owners, as it altered the owners' percentage interests in the common areas.
In McMahon v. Pleasant Valley West Association, an owner sued the owner of attacking pit bulls, and attempted to sue the association for failure to exercise reasonable control in failing to control the dogs, due to the known dangerous propensities of pit bulls. The court held that the association had no such duty.
First up this morning is the first session of the two-morning case law update; there are over 50 cases to be covered. I don't intend to summarize all of them, but will note some of the highlights. If there are any particularly interesting cases, I'll follow up with summaries of some of them either here, or on this blog's parent cite, Utahcondolaw.com.
Starting out with some good news; the speakers are reporting that the "Business Judgment Rule" has been repeatedly reaffirmed. The Business Judgment Rule, simply stated, is that the good faith business decisions of a board, if within the authority granted to the board, will not be unduly scrutinized by the courts. The predictions are for more Fair Housing litigation, more Fair Debt Collection Practices Act and more construction defect cases. I think they're predicting that one correctly.
In an Ohio case, Gall v. The Mariemount Windsor Square Condominium Association, the court refused an association's attempt to "correct" an apparently erroneous par value schedule. The lawsuit, which was fought over a change of less than 1%, was brought by an individual who came in third, in an election for two directors.
A California case, Mission Shores Association v. Pheil, involved a California statute which allows a court to reduce the requisite vote for a declaration amendment, wherein 36% of the owners didn't even participate. A similar result was reached in Fourth La Costa Condominium Owners Association v. Seith. Fourth La Costa also dealt with the problem of lender approval. The court affirmed the association's mailing, by certified mail, of letters to lenders, in order to get their "consent".
In the collection realm, a Rhode Island case, Mullowney v. Masopust, rejected a marina condominium's effort to reallocate assessments. Owners in this condominium had a unit that consisted of a locker; ownership of the locker allowed the use of a boat slip. Some owners (presumably also owners of smaller boats), wanted to change the assessments, and base them upon boat size. The court found the efforts to violate the Rhode Island Condominium Act.
In Association Two Condominium Association, Inc. v. Kliger, a Florida Appelate Court rebuked a law firm for refusing to accept a partial payment on assessments. The case serves as a reminder that courts will not be sympathetic to over-reaching associations and their counsel.
A Wyoming case, Dwan v. Indian Springs Ranch Homeowners Association, Inc., involved architectural restrictions; an association which had approved a non-compliant roof pitch later rejected the same pitch on a garage, proposed for the same lot. Based upon the approval to the house, the court reversed the denial on the garage.
Gleneagle Civic Association v. Hardin, another architectural control case, involved an email exchange regarding the proposed construction of a fence. The owners requesting the fence corresponded by email; the ACC chairs responded by email; ultimately the requesting owners attempted to argue that the email rejections of the proposed fence were valid. The Colorado Appelate Court, reviewing all of the circumstances involving email correspondence, affirmed the validity of the email as a "written denial".
A Washington case, Lake v. Woodcreek Homeowners Association, dealt with an owners' conversion of airspace above his garage. The court rejected the conversion of the common area to individual space, without the unanimous consent of the owners, as it altered the owners' percentage interests in the common areas.
In McMahon v. Pleasant Valley West Association, an owner sued the owner of attacking pit bulls, and attempted to sue the association for failure to exercise reasonable control in failing to control the dogs, due to the known dangerous propensities of pit bulls. The court held that the association had no such duty.
Thursday, January 29, 2009
"It's the Economy, Stupid"
I’m at the College of Community Association Lawyers’ law conference, and the big subject of the day is – yeah, you guessed it – the economy.
Speakers are covering a number of topics associated with the economy, and its consequences. Numerous suggestions are being made – few things are strikingly new to me, but the speakers’ repeated affirmation of Hobbs & Olson’s collection practices are reassuring. One of the early afternoon speakers suggested that firms should be considering the pursuit of personal judgments – a practice that we’ve been advocating for years. Another speaker suggested that associations should be including a budget line item for bad debt –I’ve only been recommending that for a year.
A big issue of discussion – and one that we are seeing more of – deals with lenders who foreclose and don’t thereafter pay their assessments, and other lenders who, either by virtue of mandated or voluntary policies, are not foreclosing on their units. It seems to be the consensus that those deadbeat lenders should be pursued aggressively. I agree.
Ellen Hirsch De Haan, President of the Foundation for Community Association Research, is suggesting that associations might want to consider relaxing some rules that might otherwise make sense. Do you want to rigidly enforce anti-rent restrictions, if that rental income might help the owner to pay their mortgage and/or their assessments? Are you going to rigidly enforce your single family restrictions if the children who lost their jobs (or the parents who lost their 401(k)) move in?
“Good guys”, who pay their assessments, are being penalized if the association does not pursue their neighbors, because the neighbors end up paying more. For this reason, associations should be actively pursuing their collections equally, but equitably.
And here’s a scary tale from Florida – abandoned homes there are being stripped of appliances, cabinets, copper wiring and everything else of value. In high-end communities, the strippers are apparently watching the public foreclosure records, and visiting the foreclosed, and thus vacant, homes. So, if you are aware of foreclosed and vacant units in your association, keep an eye on them.
Speakers are covering a number of topics associated with the economy, and its consequences. Numerous suggestions are being made – few things are strikingly new to me, but the speakers’ repeated affirmation of Hobbs & Olson’s collection practices are reassuring. One of the early afternoon speakers suggested that firms should be considering the pursuit of personal judgments – a practice that we’ve been advocating for years. Another speaker suggested that associations should be including a budget line item for bad debt –I’ve only been recommending that for a year.
A big issue of discussion – and one that we are seeing more of – deals with lenders who foreclose and don’t thereafter pay their assessments, and other lenders who, either by virtue of mandated or voluntary policies, are not foreclosing on their units. It seems to be the consensus that those deadbeat lenders should be pursued aggressively. I agree.
Ellen Hirsch De Haan, President of the Foundation for Community Association Research, is suggesting that associations might want to consider relaxing some rules that might otherwise make sense. Do you want to rigidly enforce anti-rent restrictions, if that rental income might help the owner to pay their mortgage and/or their assessments? Are you going to rigidly enforce your single family restrictions if the children who lost their jobs (or the parents who lost their 401(k)) move in?
“Good guys”, who pay their assessments, are being penalized if the association does not pursue their neighbors, because the neighbors end up paying more. For this reason, associations should be actively pursuing their collections equally, but equitably.
And here’s a scary tale from Florida – abandoned homes there are being stripped of appliances, cabinets, copper wiring and everything else of value. In high-end communities, the strippers are apparently watching the public foreclosure records, and visiting the foreclosed, and thus vacant, homes. So, if you are aware of foreclosed and vacant units in your association, keep an eye on them.
Tuesday, January 13, 2009
Service Animals, Revisited Again
A recent edition of the New York Times Magazine included a rather lenghty, but interesting and (I thought) balanced article on the controversy surrounding companion animals.
The article addresses a number of service and companion species, including miniature horses, monkeys, goats, parrots, iguanas and ducks. The article addresses the Justice Department's proposed rulemaking respecting the Americans With Disabilities Act. As regular readers know, the ADA does not apply to most community associations. The applicable act in the community association realm is the Fair Housing Act, and it has many similarities, but also significant differences.
Because many courts and most owners don't draw a distinction between the ADA and the FHA, however, and because the issues in the article apply to both Acts, I recommend it to those who are interested in the issues. Please remember, however, that the article deals with the ADA, and the rights and responsibilities of associations and residents under the FHA differ greatly from the rights and responsibilities of providers and customers under the ADA.
Sunday, January 04, 2009
Urbane Urban Turbines
The Blue Sea Development Company is building affordable housing in the Bronx which will receive a portion of its electricity from wind-powered, rooftop turbines. Ten one-kilowatt turbines, which apparently cost about $10,000 each, according to the New York Times article, will provide about half of the building's power, which should reduce the building's common area electricity usage from $18,000 per year to $9,000 per year.
This installation is one of many wind-powered installations underway in New York City, following Mayor Michael Bloomberg's stated support for rooftop wind projects in Manhattan.
Photo Credit: Rob Bennett for The New York Times
Friday, January 02, 2009
USGBC's Great Green Home Guide
The United States Green Building Council has a great web site, full of suggestions for homeowners seeking to save energy, money and to help to save the Earth. Clicking on the logo above should take you there; if not, the site is at www.greenhomeguide.org.
Monday, December 29, 2008
General Growth (Or the Lack Thereof)
Saturday's online Salt Lake Tribune included a reprint of an article from the Wall Street Journal from several weeks ago, regarding the developer [?] of the site that used to be the Cottonwood Mall. It appears that the developer will be giving us more progress in the form of another vacant lot. Perhaps that's better than a vacant mall.
Yet another condominium project being put on hold for a while.
Not exactly cutting edge, but since the Tribune's running this old story, and because I missed it, you may have as well.
Yet another condominium project being put on hold for a while.
Not exactly cutting edge, but since the Tribune's running this old story, and because I missed it, you may have as well.
Monday, December 22, 2008
We're Number One!
The new Census reports are out, and Utah leads the nation in growth.
That's good and bad news, of course. Good news in that it indicates that there will be a continued need for housing; bad news in that there will be a continued need for housing.
Most of the growth, not surprisingly, comes in small packages. 64 percent of the state's growth in the last year comes from "natural increase" -- births minus deaths.
The Governor's Office of Planning and Development has predicted that at current growth rates, there will be no farmland in Davis County be 2020. And more residents mean more roads, more traffic, more pollution, and more consumers of our state's limited water resources.
Needless to say, it's time to support wise land use decisions.
That's good and bad news, of course. Good news in that it indicates that there will be a continued need for housing; bad news in that there will be a continued need for housing.
Most of the growth, not surprisingly, comes in small packages. 64 percent of the state's growth in the last year comes from "natural increase" -- births minus deaths.
The Governor's Office of Planning and Development has predicted that at current growth rates, there will be no farmland in Davis County be 2020. And more residents mean more roads, more traffic, more pollution, and more consumers of our state's limited water resources.
Needless to say, it's time to support wise land use decisions.
Tuesday, December 16, 2008
Upcoming Seminars
On February 19, I'll be teaching a seminar for NBI, Legal Aspects of Condominium Development and Homeowners' Associations. My topics will include:
Karin Hobbs will be presenting with me; her subjects will include:
And, if you're looking to attend a seminar in a warmer climate, I'll be presenting at CAI's Thirtieth Annual Community Law Seminar. That presentation will deal with the greening of communities; the presentation description is:
SMOOTH OPERATION, MANAGEMENT AND CONVERSIONS
1:00 - 2:00, Lincoln W. Hobbs
Understanding the Concept of Initial Consent of Homeowners' Associations
Resolving Conflicts Between Governmental Rules and Association Rules
Maintenance and Improvements
Rights and Obligations of Unit Owners
Meeting Procedures, Voting and Elections
Operation of Association
Management and Control
Setting Up Budgets, Reserves and Special Assessments
Fulfilling Insurance Obligations
Managing Conversions
ETHICAL CONSIDERATIONS
2:00 - 3:00, Lincoln W. Hobbs
Understanding Who Your Client Is
What if Provision of the Governing Documents Conflicts With the Law?
Avoiding Conflicts of Interest
Determining and Collecting Attorneys' Fees
Karin Hobbs will be presenting with me; her subjects will include:
CONFLICT RESOLUTION AND CLAIMS AGAINST DEVELOPERS
3:15 - 4:15, Karin S. Hobbs
Construction Defect Litigation
Association Methods of Enforcing Governing Documents
Enforcement of HOA Rules and Regulations
Owners' vs. Association Conflicts
(collection disputes, use restriction violations, major community association renovations and repairs)
Association and Board of Director's Liability Issues
(business judgment defense, statutory and contractual protections, insurance issues)
Disputes Between Individual Owners
ADR and Other Effective Dispute Resolution Strategies
Litigation Process Overview
And, if you're looking to attend a seminar in a warmer climate, I'll be presenting at CAI's Thirtieth Annual Community Law Seminar. That presentation will deal with the greening of communities; the presentation description is:
Earth, Wind & Fire:
The Environmental Debate & its
Impact on Community Associations
Lincoln W. Hobbs, esq., Amy H. Bray, esq., Loura
Sanchez, esq. and Marvin J. Nodiff, esq.
Higher energy costs, regulation of greenhouse
gases, water usage and changing values
will all start to create conflict with existing
association rules and deed restrictions. As the
most local form of governance, community
associations are uniquely positioned to adapt
to this changing environment; the challenge,
however, is to turn obstacles into opportunities.
This interactive panel discussion will kick
off an ongoing dialogue, tackle hypothetical
situations and engage attendees in seeking
solutions to these emerging challenges.
Sunday, December 14, 2008
More Risks Associated With Smoking
In case you missed it, there was a rather spectacular and very unfortunate fire at the Incline Terrace Condominiums last Friday night; as a result of the fire, 80 residents were displaced, and 39 units were destroyed. Here are some links to stories on the fire: KSL, The Salt Lake Tribune and the Deseret News.
Fortunately, no one was killed or seriously injured in the fire. Unfortunately, a few pets were apparently not rescued, and a number of unit owners (and renters) were without insurance for the contents of their units.
Please, regularly remind your owners and tenants that the contents of their units are not insured by the association's policy. And if you prohibit smoking in the units, you probably ought to prohibit it on the decks, as well. (There is a conflict, in the various news stories, as to whether the association tried to stop the on-deck smoking.)
The photo was taken by Jason Denney, and posted on ksl.com.
Tuesday, December 09, 2008
The Collapse of Communism?
A community in Eagle Mountain is suffering from the business failure of Sundance Homes; according to KSL, the developer abandoned the partially-completed community, leaving the association in a mess.
KSL reported on the story yesterday; the story was not very informative, but the comments certainly were. I learned, for example that community associations are communist.
By this morning, for whatever reason, most of the communism references were gone. (A communist plot? KSL protecting its readership?) Anyway, the comment page still has some rather amusing and enlightening comments.
KSL reported on the story yesterday; the story was not very informative, but the comments certainly were. I learned, for example that community associations are communist.
By this morning, for whatever reason, most of the communism references were gone. (A communist plot? KSL protecting its readership?) Anyway, the comment page still has some rather amusing and enlightening comments.
Sunday, December 07, 2008
As Gas Prices Fall, Trash Prices Fall
Not that there's a direct correlation between those two. Rather it's the tanking economy that leads to less expensive (used) gas tanks and their contents.
Recycling, it appears, may be yet another victim of the economic downturn. As demand for new goods drops, so does the demand for the recycled products that those new goods are replacing, as well as the packaging that they came in.
This New York Times Article details the problem; the bottom line is that municipalities are back to paying for their recycling programs.
Don't let this bad news discourage you and your association from actively recycling, however. Low gas and trash prices should not distract anyone from the need to reduce consumption and increase conservation.
Recycling, it appears, may be yet another victim of the economic downturn. As demand for new goods drops, so does the demand for the recycled products that those new goods are replacing, as well as the packaging that they came in.
This New York Times Article details the problem; the bottom line is that municipalities are back to paying for their recycling programs.
Don't let this bad news discourage you and your association from actively recycling, however. Low gas and trash prices should not distract anyone from the need to reduce consumption and increase conservation.
Saturday, November 29, 2008
Please, Comment...
In response to this new layout feature.
The goal of the new embedded comment box (below) is to make it more inviting for you, my readers, to comment.
So, let me know if it works...
The goal of the new embedded comment box (below) is to make it more inviting for you, my readers, to comment.
So, let me know if it works...
Friday, November 28, 2008
Will Litigate for Food (Again)...
Once again, Hobbs & Olson will be providing credits on bills to our clients who bring in donations for the Utah Food Bank; each non-perishable item will earn a ten dollar credit on existing bills. And this year, in light of the increased need for contributions, we'll credit up to $200.00 (twenty cans).
So, bring in the cans. Bring more than twenty. And if you're not a client, or you're a client without an outstanding balance, bring them in anyway! We'll be accepting contributions in our bin for the remainder of the year...
Wednesday, November 26, 2008
The Argument...
before the Utah Supreme Court on the continued vitality of the Economic Loss Doctrine (which regular readers know that I "love to hate"), will be heard on Tuesday, December 2, at 9 a.m.
Arguments will be at the Utah Supreme Court, 450 South Main, 5th Floor, Salt Lake City, Utah.
The appeal arises from a dispute between the Davencourt at Pilgrim's Landing Townhome Owners Association and the entities involved in the development of the project. The lawsuit involves allegations of serious construction defects; the development entities successfully argued in the trial court that the economic loss doctrine precluded most of the plaintiff's claims.
I won't get to argue to the court, but I'll be in the audience cheering the plaintiffs on. I was allowed to file an amicus curiae (friend of the court) brief on behalf of the Community Associations Institute. A copy of my brief is available here.
I hope to see you there. And remember, although the public is allowed, literal cheering from the courtroom is strongly discouraged.
Arguments will be at the Utah Supreme Court, 450 South Main, 5th Floor, Salt Lake City, Utah.
The appeal arises from a dispute between the Davencourt at Pilgrim's Landing Townhome Owners Association and the entities involved in the development of the project. The lawsuit involves allegations of serious construction defects; the development entities successfully argued in the trial court that the economic loss doctrine precluded most of the plaintiff's claims.
I won't get to argue to the court, but I'll be in the audience cheering the plaintiffs on. I was allowed to file an amicus curiae (friend of the court) brief on behalf of the Community Associations Institute. A copy of my brief is available here.
I hope to see you there. And remember, although the public is allowed, literal cheering from the courtroom is strongly discouraged.
Saturday, November 22, 2008
Upcoming Posts
Regular visitors and subscribers to this blog may have noticed my uncharacteristic silence for the last while; I was more than slightly obsessed with the election, and then had to spend some time trying to catch up.
One of the matters that I have been working on is the Best Practices Manual on Environmental Issues and Sustainability; I also created and co-presented a seminar on "The Art of Creating a Green Mixed Use Project". I promised the attendees that I'd post the Power Point which contains a number of links to great sites; here it is.
Over the next few weeks, as I work on the project, I'll post some of the better ideas and links that I find.
One of the matters that I have been working on is the Best Practices Manual on Environmental Issues and Sustainability; I also created and co-presented a seminar on "The Art of Creating a Green Mixed Use Project". I promised the attendees that I'd post the Power Point which contains a number of links to great sites; here it is.
Over the next few weeks, as I work on the project, I'll post some of the better ideas and links that I find.
Thursday, October 09, 2008
Probably Not Coming to a Condo Near You...
One of the new amenities being used to sell condos in the New York Metropolitan area are wine cellars, located both within the Units themselves, and in what appears to be a limited common storage area.
This article in the New York Times describes the limited common areas:
Designed by Cellarworks, a local company, the $500,000 U-shaped space will provide a mahogany cabinet free of charge to nearly every resident, though larger apartments will get larger cabinets, Mr. Manton said.
Whether you use it to store wine or not, that mahogany cabinet sure puts the classic cubicle with a plywood door and a master lock to shame.
Then again, these condos start at 1.5 million.
Thursday, October 02, 2008
Yes You Can!....
turn your sprinklers off for the year, that is.
According to the Utah State Division of Water Resources, Northern Utah residents can stop watering in October.
You may want to keep an eye on the temperature, because it has been unseasonably hot this Summer, but I think it's still safe to cut your time and frequency way, way back.
Tuesday, September 30, 2008
Mistakes Boards Make...
Is the topic for the Utah Chapter's Managers' Munch this Friday. Two other lawyers (John Morris and Peter Harrison) will be joining me on a panel to discuss what we see as the nine most common mistakes made by association boards.
I'll follow up my comments with postings on this blog, but if you don't want to wait, and/or if you want to see what John and Peter think, you ought to join us. The meetings are at the Cottonwood Club, and the food is usually pretty good. Register here, if you're interested.
I'll follow up my comments with postings on this blog, but if you don't want to wait, and/or if you want to see what John and Peter think, you ought to join us. The meetings are at the Cottonwood Club, and the food is usually pretty good. Register here, if you're interested.
Saturday, September 20, 2008
Garage Condos -- Coming Soon?
A company called Garage Town USA, which has developed garage condominiums in several western states, including Idaho, is reporting that their franchises have been approved in Utah.
I'm going to try to get my hands on a declaration, since I'd be interested to see a declaration that presumably prohibits residential uses, encourages the parking of cars, and encourages business uses. Those conditions obviously exist in commercial condominiums, but they aren't typically marketed to individuals and families.
Thursday, September 18, 2008
Deal, or No Deal?
Probably better to take the deal, according to a study summarized here in the New York Times.
According to the article, "most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer."
One of the more interesting statements in the article was the assertion that lawyers may be inclined to discourage settlement, in light of the potential loss of revenue.
(What?!?!? Who said that!)
According to the article, "most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer."
One of the more interesting statements in the article was the assertion that lawyers may be inclined to discourage settlement, in light of the potential loss of revenue.
(What?!?!? Who said that!)
Monday, September 15, 2008
"Playing With Fire"...
An article that I just wrote with that title, dealing with avoiding lawsuits, has just been published in the September/October issue of Common Ground magazine. Members of CAI can read the article here. Nonmembers of CAI can join here. Or, you can get a subscription to Common Ground here.
Then again, if you'd rather hear about how to avoid lawsuits, you can keep an eye out for courses at our Community Learning Center, where we'll cover this material, and more, over the next several months.
Sunday, September 14, 2008
Mark Your Calendar...
for the Utah Chapter of CAI's 2008 Trade Show.
Hobbs & Olson and utahcondolaw.com are both proud sponsors, and I will be discussing environmental issues, and participating on the legal panel.
Admission is free for chapter members, and there will be prizes!
For more details, visit the
Utah Chapter website.
Hobbs & Olson and utahcondolaw.com are both proud sponsors, and I will be discussing environmental issues, and participating on the legal panel.
Admission is free for chapter members, and there will be prizes!
For more details, visit the
Utah Chapter website.
Friday, August 29, 2008
A Wildlife Community
The National Wildlife Foundation has a program through which communities can create, and then receive recognition as, a certified Community Wildlife Habitat.
Here's how they describe a Community Wildlife Habitat:
Participants in the program must earn a certain number of points, depending upon their size; thereafter, there are required post-certification goals.
Here's how they describe a Community Wildlife Habitat:
A Community Wildlife Habitat is a community that provides habitat for wildlife throughout the community--in individual backyards, on school grounds and in public areas such as parks, community gardens, places of worship and businesses. It is a place where the residents make it a priority to provide habitat for wildlife by providing the four basic elements that all wildlife need: food, water, cover and places to raise young. The community also educates its residents about sustainable gardening practices such as reducing or eliminating chemical fertilizers and pesticides, conserving water, planting native plants, removing invasive plants and composting. It hosts workshops about gardening for wildlife, and holds community events such as stream or trail cleanups to make the community healthier for wildlife and people alike. A Community Wildlife Habitat project creates a place where people, flora and fauna can all flourish.
Participants in the program must earn a certain number of points, depending upon their size; thereafter, there are required post-certification goals.
Tuesday, August 26, 2008
Worms...
We have a tenant in the (aptly named) garden level in our building; the Utah Society for Environmental Education. They're a great group, and they help us in meeting our environmental commitments.
One of the many nice things that they have done for us is bring some worms into the office; they're willing to let their worms work for us, in handling our food waste. Andree' Walker, the USEE wormmaster, has blogged about the worms, and includes an invitation to come meet them, at this page of USEE's blog, greenforkutah.blogspot.com.
Thursday, August 21, 2008
16,500 Sustainable Square Feet
There's apparently a potential trend, at least according to this article in the New York Times, for the very wealthy to "downsize" into condominiums.
Candy Spelling, widow of the television producer Aaron Spelling, is getting rid of some of her possessions, so that she can fit into the 16,500 feet of two floors that she's purchasing in the Century condominium tower.
And her conscience can rest easy as she kicks around that space, because the Century anticipates a LEED Silver Certification, reflecting its green building characteristics.
Candy Spelling, widow of the television producer Aaron Spelling, is getting rid of some of her possessions, so that she can fit into the 16,500 feet of two floors that she's purchasing in the Century condominium tower.
And her conscience can rest easy as she kicks around that space, because the Century anticipates a LEED Silver Certification, reflecting its green building characteristics.
Monday, August 11, 2008
I'm back...
I've been in that condition known as pre-vacation, vacation and post vacation, but I am back and I am invigorated. Look forward to posts on environmentalism and sustainability.
Tuesday, July 01, 2008
Bargaining for Eden
A good friend who is also a phenomenal photographer and writer, Stephen Trimble, is releasing his latest book next week. This book will be of interest to many readers of this blog; it deals with the conflict between the development and preservation of beautiful open spaces. It explores the expansion of Snowbasin ski resort by Earl Holding, one of the richest men in America, and Stephen's simultaneous development of his own smaller parcel of Eden, near Torrey, Utah.
As Stephen puts it:
As a lifelong environmentalist, I still hold my beliefs fiercely. But in telling Earl’s story and in confronting my new identity as a property owner, I’ve found cracks in the armor of my assumptions. I have been startled. I have been horrified.
On some levels, I am Earl—we all are Earl.
A celebratory event in connection with the book release will be held at the Main Branch of the Salt Lake City Library on July 10, at 7:00 p.m. More information on the book can be found at this page.
Thursday, June 26, 2008
Bored?
Apparently, I was.
I found this on the Best Of Craigs List:
three pink plastic lawn flamingos, the momma, the daddy and twoHere's a link, if you are interested
babies. in good shape except the momma has a bullet hole. will
trade for a good dog or weed eater, will also consider any kind
of alcohol as long as it ain't been opened up.
Saturday, June 21, 2008
Know Your Radon Levels?
This site provides info on state-wide radon testing, broken down by zip code.
Everyone should check their own homes for radon, (which is the second leading cause of lung cancer in the United States), but if your community is located in one of the high level areas, you might want to provide a bit of extra encouragement to your residents.
Wednesday, June 18, 2008
Pool Safety, Continued...
And this time, it's about something bigger than a microscopic protozoan.
In December of 2007, President Bush signed the Virginia Graeme Baker Pool and Spa Safety Act. The act requires that public pools and spas(which will include community association pools and spas) must have some type of anti-entrapment device on the drain designed to eliminate the risk of death or injury.
Apparently, drownings associated with pool and spa drains are disurbingly common, and rather easily preventable. A number of devices can be installed to provide safety and compliance with the act.
Compliance with the act is not mandated until December, but why wait? If you haven't had this done, get it done immediately.
In December of 2007, President Bush signed the Virginia Graeme Baker Pool and Spa Safety Act. The act requires that public pools and spas(which will include community association pools and spas) must have some type of anti-entrapment device on the drain designed to eliminate the risk of death or injury.
Apparently, drownings associated with pool and spa drains are disurbingly common, and rather easily preventable. A number of devices can be installed to provide safety and compliance with the act.
Compliance with the act is not mandated until December, but why wait? If you haven't had this done, get it done immediately.
Wednesday, June 11, 2008
Diapers Required; Bikinis Prohibited?
Ya just gotta love living in this state...
Salt Lake County now requires diapers for those under three, and Kanab City (down South, for those of you who may not know your Utah geography) is prohibiting bikinis on all (men and women of all ages, apparently).
It appears, according to the KSL News story on the subject, that the city leaders may backpedal on that one; apparently the Kanab city leaders were so concerned with the health issues that they overlooked the dress codes that they were passing.
And we wonder why we get such great laws in this state...
Monday, June 09, 2008
Salt Lake Valley's Pool Rules
The Salt Lake Valley Health Department has weighed in on the Crypto problem, and they have a slightly different take on the State's rule:
I don't remember reading anything about "under three" in the Utah State rule, but if I operated a public pool in Salt Lake County (Heaven forbid), I wouldn't look any further. I'd post that, and hope to be done with it until Labor Day.
Besides the three year old restriction, doesn't "anyone who lacks control of defecation" sound better than "those who cannot control evacuative bodily functions"?
Er, on second thought, maybe not.
Any child under three years old, any child not toilet trained, and anyone who lacks control of defecation shall wear a water resistant swim diaper and waterproof swimwear. Swim diapers and waterproof swimwear shall have waist and leg openings fitted such that they are in contact with the waist or leg around the entire circumference.
I don't remember reading anything about "under three" in the Utah State rule, but if I operated a public pool in Salt Lake County (Heaven forbid), I wouldn't look any further. I'd post that, and hope to be done with it until Labor Day.
Besides the three year old restriction, doesn't "anyone who lacks control of defecation" sound better than "those who cannot control evacuative bodily functions"?
Er, on second thought, maybe not.
Wednesday, June 04, 2008
Revisiting Signage
Last Fall, in this post regarding appropriate pool signage, I suggested an alternative to the standard "Children Must Wear Diapers" sign.
Recently, as noted in the post immediately below, the Utah State Department of Health has proposed some rules. They use some terminology that may help in the sign drafting.
Why not consider posting a sign that says:
That just might keep everyone out of the pool, and then you can save on chlorine...
Recently, as noted in the post immediately below, the Utah State Department of Health has proposed some rules. They use some terminology that may help in the sign drafting.
Why not consider posting a sign that says:
"Young children and those who cannot control evacuative bodily functions must wear swim diapers or waterproof swimwear"
That just might keep everyone out of the pool, and then you can save on chlorine...
New Proposed Pool Rules
The Utah Department of Health has submitted a proposed rule to try to avoid, or at least minimize the risk of, another Cryptosporidiosis outbreak this summer; a link to their release on the proposed rule is here.
For those of you who just want the quick summary, here it is, according to the Department of Health:
SUMMARY OF THE RULE OR CHANGE: The following additions have been made: 1) a definition of a cleansing shower has been added; 2) a requirement for operators to follow The Centers for Disease Control Fecal Accident Response Recommendations; 3) a requirement prohibiting swimmers from swimming if they have diarrhea, or have had diarrhea within the last two weeks; 4) a requirement for young children and those who cannot control evacuative bodily functions to wear swim diapers or waterproof swimwear; 5) requirements pool operators must follow in response to the Department of Health issuance of Cryptosporidiosis "Watches" and "Warnings"; 6) modifications to the requirement for drain covers that are less than 24 inches by 24 inches to meet the cited ANSI/ASME standard rather than requiring a listing by a laboratory that has tested the drain cover using the ANSI/ASME standard; 7) a requirement to provide soap for patrons in the shower area, in addition to lavatories; and 8)the drain cover requirement is relaxed to allow large drain covers that meet the standard but that have not been independently certified to meet the standard.
Regular readers of this blog, and those who know me, are well aware that I'm a strong advocate of relying upon others for assistance in rulemaking and enforcement; these rules, if adopted, will help associations protect the health of owners and guests while avoiding the risks associated with familial status discrimination under the Fair Housing Act.
Friday, May 09, 2008
Salt Lake Condo Sales are Slowing...
Downtown Salt Lake condo sales are slowing, accordingly to an article in today's Salt Lake Tribune. So far, according to the article, prices are holding, but that could change, based upon the limited demand.
Wednesday, April 16, 2008
A New (And Free!) Best Practices Guide
The press release from CAI says it as well or better than I can, so here's the release:
The Foundation for Community Association Research has published Community Security, a 50-page resource that associations can use to determine their security obligations and decide which products and services can provide an appropriate level of security for their residents. Community Security is the eighth Best Practices report developed by the Foundation.
The new report addresses association security obligations; security services; video surveillance and alarm systems; access control systems for vehicles and pedestrians; automated gate systems, and more. The publication includes two case studies and a checklist for securing communities.
The report can be downloaded for free at www.cairf.org or purchased in hard copy by CAI members for just 12.95 ($22 for nonmembers) through Community Associations Press at http://www.caisecure.net/. The complete collection of eight best practice reports can be purchased by CAI members for $24.95 ($42 for nonmembers).
Other free, downloadable Best Practice reports are:
* Financial Operations
* Governance, Resident Involvement and Conflict Resolution
* Community Harmony/Spirit/Involvement
* Strategic Planning
* Reserve Studies/Management
* Transition (from developer to homeowner control)
* Energy Efficiency
Best Practice reports have been downloaded almost 7,000 times this year alone.
"We develop Best Practice Reports so individual community associations don’t have to start from scratch," says Foundation President Robert Browning, PCAM, RS, of Browning Reserve Group in Sacramento. "Like all of our reports, Community Security was developed by leaders in their areas of expertise. For Community Security, we relied on the knowledge and experience of multiple contributors who share practical information that can save association boards time and unnecessary expense, not to mention missteps."
The Foundation is a nonprofit, research-driven group established in 1975 by Community Associations Institute (CAI). The Foundation supports and conducts research and makes that information available to professionals and volunteers involved in community association governance.
"We help volunteer community leaders and professionals better understand the increasingly sophisticated nature of community association management and
governance," says Executive Director David Jennings, CAE. "Our goal is to provide insight and information to those who work to make communities the best they can be."
The Foundation is supported by voluntary contributions that can be made on membership renewal applications.
CAI is a national organization dedicated to fostering vibrant, effective and harmonious community associations. CAI members include community association volunteer leaders, professional managers, management firms and businesses that provide a variety of products and services to community associations. More information on CAI and its 58 local, regional and state chapters is available at www.caionline.org or by calling toll-free (888) 224-4321.
Friday, March 14, 2008
Some Very Useful Information
Lawyers, board members, association managers and involved unit owners ought to take some time to access and read this "Joint Statement of the Department of Housing and Urban Development and the Department of Justice." The document provides guidance on reasonable accomodations under the Fair Housing Act.
I'll be reading it this weekend, and will post some of the more interesting and helpful portions of the guide over the next few days. (So, if you are not yet a subscriber to this blog, now would be a good time to become one. If you wish to subscribe, enter your email address to the left.)
I'll be reading it this weekend, and will post some of the more interesting and helpful portions of the guide over the next few days. (So, if you are not yet a subscriber to this blog, now would be a good time to become one. If you wish to subscribe, enter your email address to the left.)
Thursday, March 13, 2008
There Ought to be a Rule...
against parking in your neighor's unit.KSL.com has this picture, and a few others, in this
news story; according to KSL's report, the driver said that the car "shot into reverse" when she started the car.
Also according to KSL, neither the driver nor the building were seriously injured.
Wednesday, March 05, 2008
Keeping Your Private Roads Private
On February 12, the Utah Supreme Court released a trilogy of cases dealing with private roadways, and the interpretation of Utah Code Ann. 72-5-104 (the "Dedication Statute"). Under the Dedication Statute, the continuous and uninterrupted use of a private roadway, by the public, will result in a deemed public dedication of the road. If a road is dedicated in this fashion, the public gains a permanent right to travel accross the roadway.
In the opinions, the Court clarified what constitutes an "interruption" that is sufficient to restart the running of the ten-year period. Of most interest to associations is the Town of Leeds v. Prisbey opinion, which found that Ms. George's twenty-four hour roadblocks, which she conducted in 1971, 1978, 1985, 1992 and 1999, had sufficiently interrupted the public use to prevent a public dedication.
The other decisions had different facts, and are not as helpful in providing guidance to associations.
In light of the decisions, it's probably a good idea for associations to have a 24-hour road block of their roads (from public use), at least once every ten years, and keep evidence of the blockages.
The cases are Town of Leeds v. Prisbey, 2008 UT 11, Wasatch County v. Okelberry, 2008 UT 10, and Utah County v. Butler, 2008 UT 12.
In the opinions, the Court clarified what constitutes an "interruption" that is sufficient to restart the running of the ten-year period. Of most interest to associations is the Town of Leeds v. Prisbey opinion, which found that Ms. George's twenty-four hour roadblocks, which she conducted in 1971, 1978, 1985, 1992 and 1999, had sufficiently interrupted the public use to prevent a public dedication.
The other decisions had different facts, and are not as helpful in providing guidance to associations.
In light of the decisions, it's probably a good idea for associations to have a 24-hour road block of their roads (from public use), at least once every ten years, and keep evidence of the blockages.
The cases are Town of Leeds v. Prisbey, 2008 UT 11, Wasatch County v. Okelberry, 2008 UT 10, and Utah County v. Butler, 2008 UT 12.
Saturday, March 01, 2008
Contact Your Legislator re: SB 220
For the past several weeks, I've been trying to protect Utah Community Associations and their owners (past, present and future), from SB 220, a bill pushed by the Utah Home Builders Association, and designed to protect builders from construction defect lawsuits. Here, for your review, is a copy of the letter that I sent to Utah representatives, who will be voting on this legislation on Monday.
If you have not done so yet, I encourage you to email or call your legislator.
Here's a handy page that will help you to find your representative, by address:
Contact Your Representative
Dear Representative:
I am an attorney, practicing primarily community association law. I was the founder of the Utah Chapter of the Community Associations Institute and am a member of CAI’s College of Community Association Lawyers. (The opinions in this letter are my own.)
I have become aware of SB 220, and am very concerned regarding the adverse consequences that it would have, if it passes, upon community associations and those who buy and live in them. I have no doubt that the legislation, if it passes, would deprive most Utah homeowners from having any recourse in the event of defective construction.
I have received a copy of correspondence sent from a local realtor to a representative in support of the bill; I would respectfully request that you consider my responses to the arguments in the letter that you may have received:
"It codifies more than a decade of Utah case law currently in place";
This is not true. The Utah Supreme Court stated several years ago, regarding to the American Towers decision, which this purports to “codify” : “we do not find American Towers Owners Ass'n and SME Industries persuasive authority regarding the current state of the economic loss rule in Wyoming or Utah." (Grynberg v. Questar, 2003 UT 8,¶56, 70 P.3d 1). Several other cases have questioned and limited American Towers. I am certain that it is that clear trend, from Utah’s Supreme Court and Court of Appeals, that is spurring this legislation.
"It reinforces homeowners' rights to bring claims under contract law, allowing current and subsequent homeowners to sue builders for defective construction under the terms of their contract or warranty";
There is no need to “reinforce” a right to sue under contract. This right is clearly established under Utah law, and has been since statehood. This bill does absolutely nothing to create or reinforce any homeowners’ rights.
"It clarifies that homeowners and third parties may bring tort claims when a construction defect causes personal injury or damage to other property";
Again, this right is clear under existing case law. This bill, however, would allow these claims to be pursued only when there is an injury. If a tub falls through the floor and kills or injures someone, there could be a lawsuit. If a tub falls through and lands on the concrete garage in a condo, there will probably be no suit, because there will be no “damage to other property” and no contract between the contractor and the homeowner.
"It strikes a balance between allowing a homeowner to sue for faulty work, while guarding against frivolous lawsuits."
Many, if not most homeowners will not be able to sue because of the absence of a contract. Even where contracts exist, they are almost always drafted by the developer's or contractor's lawyer, and unit owners very seldom seek or obtain legal advice when purchasing their homes.
Furthermore, I have seen no evidence of “frivolous lawsuits”. On the rare occasions that frivolous lawsuits may be filed, the courts can and will respond by awarding attorneys’ fees to the defendants under Utah Code Ann. 78-27-56.
Why is the Utah Association of Realtors supporting SB 220???
"It protects the free market system and the home buyer's right to choice";
This does not, in any way, add any “right to choice”. What does it allow one to choose that they cannot currently choose?
"It helps insure that buyers have choices regarding the design, construction and warranty of their home";
How does this bill even effect, much less help that “choice”? How does an owner’s inability to sue in negligence increase their choices in design?"
It prevents third parties from suing on behalf of homeowners who may not want to be part of a lawsuit";
No one can sue on behalf of another without the other’s consent. A community association can, under current law, (which has been in place for thirty years) bring a suit on behalf of the association, but when that happens, the decision to sue is made by an elected board. No one is being forced, by anyone else, into lawsuits.
"It protects housing affordability by limiting frivolous lawsuits that artificially inflate home construction costs";
I keep hearing this, and I keep asking for any evidence of “frivolous lawsuits”, but I am not seeing any evidence of any frivolous construction defect lawsuits. Furthermore, “housing affordability” necessarily includes the cost of repairs and maintenance. If builders are shielded from liability (by this or any similar bill), the cost of resultant repairs and maintenance will be borne by innocent homeowners.
"And, it gives buyers the option, in line with building code standards, to choose more affordable products for their homes, e.g., a 20-year shingle for a roof, rather than a 50-year on".
Again, home buyers have that option right now. This adds nothing. In fact, under this law, they may get that 20 year roof without being told about it, because there will be no obligation on the builder to meet any standard of care.
"It protects homeowner and home builder insurance availability and affordability".
There is no evidence that this will help availability or affordability of home builder or homeowner insurance. If it has any effect on homeowner insurance, it would almost certainly be negative, as homeowner insurers would lose their right to subrogate against builders.
"It reinforces homeowners' rights to bring claims under contract law, allowing current and subsequent homeowners to sue builders for defective construction under the terms of their contract or warranty";
A repeat of the same arguments above. Those rights exist, and this does not add to them.
"It clarifies that homeowners and third parties may bring tort claims when a construction defect causes personal injury or damage to other property";
See above.
"It strikes a balance between allowing a homeowner to sue for faulty work while guarding against frivolous lawsuits".
There is no balance for the majority of Utahns who don’t have contracts with their contractors, and thus would have no right to sue.
I sincerely thank you for your time and consideration of this important legislation. I respectfully suggest that there is no need for any legislation on the subject, but if there is to be legislation on an issue of this importance, it should be carefully considered and debated. That has not happened with this bill.
Lincoln W. Hobbs
801.519.2555
If you have not done so yet, I encourage you to email or call your legislator.
Here's a handy page that will help you to find your representative, by address:
Contact Your Representative
Dear Representative:
I am an attorney, practicing primarily community association law. I was the founder of the Utah Chapter of the Community Associations Institute and am a member of CAI’s College of Community Association Lawyers. (The opinions in this letter are my own.)
I have become aware of SB 220, and am very concerned regarding the adverse consequences that it would have, if it passes, upon community associations and those who buy and live in them. I have no doubt that the legislation, if it passes, would deprive most Utah homeowners from having any recourse in the event of defective construction.
I have received a copy of correspondence sent from a local realtor to a representative in support of the bill; I would respectfully request that you consider my responses to the arguments in the letter that you may have received:
"It codifies more than a decade of Utah case law currently in place";
This is not true. The Utah Supreme Court stated several years ago, regarding to the American Towers decision, which this purports to “codify” : “we do not find American Towers Owners Ass'n and SME Industries persuasive authority regarding the current state of the economic loss rule in Wyoming or Utah." (Grynberg v. Questar, 2003 UT 8,¶56, 70 P.3d 1). Several other cases have questioned and limited American Towers. I am certain that it is that clear trend, from Utah’s Supreme Court and Court of Appeals, that is spurring this legislation.
"It reinforces homeowners' rights to bring claims under contract law, allowing current and subsequent homeowners to sue builders for defective construction under the terms of their contract or warranty";
There is no need to “reinforce” a right to sue under contract. This right is clearly established under Utah law, and has been since statehood. This bill does absolutely nothing to create or reinforce any homeowners’ rights.
"It clarifies that homeowners and third parties may bring tort claims when a construction defect causes personal injury or damage to other property";
Again, this right is clear under existing case law. This bill, however, would allow these claims to be pursued only when there is an injury. If a tub falls through the floor and kills or injures someone, there could be a lawsuit. If a tub falls through and lands on the concrete garage in a condo, there will probably be no suit, because there will be no “damage to other property” and no contract between the contractor and the homeowner.
"It strikes a balance between allowing a homeowner to sue for faulty work, while guarding against frivolous lawsuits."
Many, if not most homeowners will not be able to sue because of the absence of a contract. Even where contracts exist, they are almost always drafted by the developer's or contractor's lawyer, and unit owners very seldom seek or obtain legal advice when purchasing their homes.
Furthermore, I have seen no evidence of “frivolous lawsuits”. On the rare occasions that frivolous lawsuits may be filed, the courts can and will respond by awarding attorneys’ fees to the defendants under Utah Code Ann. 78-27-56.
Why is the Utah Association of Realtors supporting SB 220???
"It protects the free market system and the home buyer's right to choice";
This does not, in any way, add any “right to choice”. What does it allow one to choose that they cannot currently choose?
"It helps insure that buyers have choices regarding the design, construction and warranty of their home";
How does this bill even effect, much less help that “choice”? How does an owner’s inability to sue in negligence increase their choices in design?"
It prevents third parties from suing on behalf of homeowners who may not want to be part of a lawsuit";
No one can sue on behalf of another without the other’s consent. A community association can, under current law, (which has been in place for thirty years) bring a suit on behalf of the association, but when that happens, the decision to sue is made by an elected board. No one is being forced, by anyone else, into lawsuits.
"It protects housing affordability by limiting frivolous lawsuits that artificially inflate home construction costs";
I keep hearing this, and I keep asking for any evidence of “frivolous lawsuits”, but I am not seeing any evidence of any frivolous construction defect lawsuits. Furthermore, “housing affordability” necessarily includes the cost of repairs and maintenance. If builders are shielded from liability (by this or any similar bill), the cost of resultant repairs and maintenance will be borne by innocent homeowners.
"And, it gives buyers the option, in line with building code standards, to choose more affordable products for their homes, e.g., a 20-year shingle for a roof, rather than a 50-year on".
Again, home buyers have that option right now. This adds nothing. In fact, under this law, they may get that 20 year roof without being told about it, because there will be no obligation on the builder to meet any standard of care.
"It protects homeowner and home builder insurance availability and affordability".
There is no evidence that this will help availability or affordability of home builder or homeowner insurance. If it has any effect on homeowner insurance, it would almost certainly be negative, as homeowner insurers would lose their right to subrogate against builders.
"It reinforces homeowners' rights to bring claims under contract law, allowing current and subsequent homeowners to sue builders for defective construction under the terms of their contract or warranty";
A repeat of the same arguments above. Those rights exist, and this does not add to them.
"It clarifies that homeowners and third parties may bring tort claims when a construction defect causes personal injury or damage to other property";
See above.
"It strikes a balance between allowing a homeowner to sue for faulty work while guarding against frivolous lawsuits".
There is no balance for the majority of Utahns who don’t have contracts with their contractors, and thus would have no right to sue.
I sincerely thank you for your time and consideration of this important legislation. I respectfully suggest that there is no need for any legislation on the subject, but if there is to be legislation on an issue of this importance, it should be carefully considered and debated. That has not happened with this bill.
Lincoln W. Hobbs
801.519.2555
March 1 Open Thread
I'm trying a new idea in connection with today's Seminar and Discussion; this is this Blog's first "Open Thread".
The idea, for those of you who are new to this, is to just open it up for comments, starting with a topic and allowing the readership to let it go from there.
So, to start it all off -- Any thoughts about what the legislature has done this session, and what we, in the community association industry can and should do about it?
And remember, as you comment; this is an open (and moderated) blog. What you say can and will be seen by many others!
The idea, for those of you who are new to this, is to just open it up for comments, starting with a topic and allowing the readership to let it go from there.
So, to start it all off -- Any thoughts about what the legislature has done this session, and what we, in the community association industry can and should do about it?
And remember, as you comment; this is an open (and moderated) blog. What you say can and will be seen by many others!
Monday, February 25, 2008
In Case You Missed It...
The New York Times is noting that Utah's economy is also beginning to feel the nation's economic woes. In this article, the Times reports that Utah's home price drops were the sixth worst in the nation for the fourth quarter of last year.
And the article notes that although we're feeling the recession, we are likely not to see it to the same extent as many other communities, for a number of reasons, including the LDS Church's City Creek project.
And the article notes that although we're feeling the recession, we are likely not to see it to the same extent as many other communities, for a number of reasons, including the LDS Church's City Creek project.
Friday, February 15, 2008
Another Owner You Should Be Happy Not to Have...
Many months ago, I posted an entry about why you wouldn't want Courtney Love in your association; now I suppose you can add Paris Hilton to that list.Ms. Hilton, it seems, has gotten herself into trouble (yeah, I know you say; "what else is new"). This time, however, its because of her animals, and not her conduct.
The Los Angeles Department of Animal Services is investigating Ms. Hilton, because she apparently boasted to Ellen DeGeneres about her 17 dogs. An animal protection organization called the authorities, and the authorities paid a visit to Ms. Hilton's home. According to my source my source, (Ireland Online), neither Ms. Hilton nor her dogs were home when the authorities arrived.
This story serves as a good reminder of my regular advice to associations that the local authorities (animal authorities, boards of health, environmental agencies) are often helpful in dealing with problem owners and tenants.
Monday, February 11, 2008
A List of Available Books
I received a call today from a client who wanted to know what books that Hobbs & Olson had donated to area libraries; I referred him to the Foundation for Community Association Research's web site on the subject, but then thought that it might help the readership of this blog to have a list. So, here you go.
The following books should now be on the shelves a the Salt Lake City Library Main Branch, the Summit County Kimball Junction Branch, and the Salt Lake County Sandy Branch:
Accounting for Managers
Before Disaster Strikes
Be Reasonable!
Boomer Shock: Preparing Communities for the Retirement Generation
Building Community
Community Association Leadership: A Guide for Volunteers
Community Associations & the Environment
Community Association Finances
Community First!
Community Matters
Complete Book of Home Inspection
Conducting Meetings
Decision Making in Communities
Everyday Governance in Community Associations
Homeowners Association: A How to Guide for Leadership
Increase Income, Not Assessments
Motivating the “What’s In It For Me?” Generation
Neighborhood Watch (brochure)
Playgrounds for Young Children
Plumbing Instant Answers
Pursuit of Parking
Questions & Answers about Community Associations
Reinventing the Rules
Road Repair Handbook
Self Management: A Guide for the Small Community Association
So Now You're on the Board-Audio Tape
Special Assessment, A Novel
Surveys: A Guide for Community Associations
The A-B-C's of Parliamentary Procedure
The Homeowner & the Community Association
The Homeowners Association Manual
The Ultimate Pool Maintenance Manual
Tips for Community Association Insurance
Tips for Protecting Association Finances
True Stories of Survival
What Every Homeowner Needs to Know About Mold
Guides for Association Practitioners
Assessment Collection: Legal Remedies
Bids and Contracts
Communications for Community Associations
Community Association Legal Counsel: How to Select & Use an Attorney
Conflicts of Interest
Conflict Resolution
Design Review
Developer Transition
Disaster Management for Community Associations
Drafting Rules
Enhancing Outdoor Spaces for Community Associations
Insurance: How Community Associations Protect Themselves
Meetings & Elections
Member Dues
On-site Managers
Pet Policies
Property Taxes & Homeowners Associations
Reserve Funds
Risk Management
Selecting the Landscape Maintenance Contractor
Successful Leasing in a Community Association
The Board President
The Board Secretary
The Board Treasurer
Trees, Turf & Shrubs
Volunteers
The following books should now be on the shelves a the Salt Lake City Library Main Branch, the Summit County Kimball Junction Branch, and the Salt Lake County Sandy Branch:
Accounting for Managers
Before Disaster Strikes
Be Reasonable!
Boomer Shock: Preparing Communities for the Retirement Generation
Building Community
Community Association Leadership: A Guide for Volunteers
Community Associations & the Environment
Community Association Finances
Community First!
Community Matters
Complete Book of Home Inspection
Conducting Meetings
Decision Making in Communities
Everyday Governance in Community Associations
Homeowners Association: A How to Guide for Leadership
Increase Income, Not Assessments
Motivating the “What’s In It For Me?” Generation
Neighborhood Watch (brochure)
Playgrounds for Young Children
Plumbing Instant Answers
Pursuit of Parking
Questions & Answers about Community Associations
Reinventing the Rules
Road Repair Handbook
Self Management: A Guide for the Small Community Association
So Now You're on the Board-Audio Tape
Special Assessment, A Novel
Surveys: A Guide for Community Associations
The A-B-C's of Parliamentary Procedure
The Homeowner & the Community Association
The Homeowners Association Manual
The Ultimate Pool Maintenance Manual
Tips for Community Association Insurance
Tips for Protecting Association Finances
True Stories of Survival
What Every Homeowner Needs to Know About Mold
Guides for Association Practitioners
Assessment Collection: Legal Remedies
Bids and Contracts
Communications for Community Associations
Community Association Legal Counsel: How to Select & Use an Attorney
Conflicts of Interest
Conflict Resolution
Design Review
Developer Transition
Disaster Management for Community Associations
Drafting Rules
Enhancing Outdoor Spaces for Community Associations
Insurance: How Community Associations Protect Themselves
Meetings & Elections
Member Dues
On-site Managers
Pet Policies
Property Taxes & Homeowners Associations
Reserve Funds
Risk Management
Selecting the Landscape Maintenance Contractor
Successful Leasing in a Community Association
The Board President
The Board Secretary
The Board Treasurer
Trees, Turf & Shrubs
Volunteers
Saturday, February 09, 2008
Suing the Smoker Next Door
Some New York condo owners are suing their smoking neighbors. (We all knew these lawsuits were coming.) The lawsuit, reported in this article in the New York Times, has some amusing background about the dispute between the neighbors and among other residents in this appartently litigious community.
The surprising thing is that the residents are not suing the association. The association has been sued before, by other tenants, who have complained of a "plague of roaches".
Why aren't these tenants suing the association? Because, according to the plaintiff, [the association] has been cooperative, even paying to seal off ducts in Ms. Huff’s apartment that could have been spreading the smoke. (Sealing off those ducts may also have had the secondary benefit of limiting cockroach migration.)
The surprising thing is that the residents are not suing the association. The association has been sued before, by other tenants, who have complained of a "plague of roaches".
Why aren't these tenants suing the association? Because, according to the plaintiff, [the association] has been cooperative, even paying to seal off ducts in Ms. Huff’s apartment that could have been spreading the smoke. (Sealing off those ducts may also have had the secondary benefit of limiting cockroach migration.)
Thursday, February 07, 2008
Mark Your Calendars for March 1. . .
at 10 a.m.
That is the scheduled time for UtahCondolaw's Las Vegas / New Orleans update, which will be a 90 to 120 minute summary of what Julie Ladle and I learned in our trip recent trip to Las Vegas (for the College of Community Association Lawyer's Community Association Law Conference), and my trip to New Orleans (for the ALI-ABA "Drafting Documents for Residential...Communities Conference).
There will be a $15 charge for the seminar, but that will be waived for clients, and most likely, (depending upon demand) for those who ask nicely. We'll have light refreshments and beverages.
I am confident that the update will be time well spent, and there are very few seats available, so if you are interested, give Linda or I a call at 519-2555 (leave a message if you miss us).
And for those of you who may be too late, we hope (subject to technological abilities) to podcast the event, or even to have it available here on video. Updates on this will be posted on this blog (of course).
That is the scheduled time for UtahCondolaw's Las Vegas / New Orleans update, which will be a 90 to 120 minute summary of what Julie Ladle and I learned in our trip recent trip to Las Vegas (for the College of Community Association Lawyer's Community Association Law Conference), and my trip to New Orleans (for the ALI-ABA "Drafting Documents for Residential...Communities Conference).
There will be a $15 charge for the seminar, but that will be waived for clients, and most likely, (depending upon demand) for those who ask nicely. We'll have light refreshments and beverages.
I am confident that the update will be time well spent, and there are very few seats available, so if you are interested, give Linda or I a call at 519-2555 (leave a message if you miss us).
And for those of you who may be too late, we hope (subject to technological abilities) to podcast the event, or even to have it available here on video. Updates on this will be posted on this blog (of course).
Tuesday, January 29, 2008
The Libraries Have Been Delivered
The CAIRF Adopt-A-Library collections, which were purchased and donated by Hobbs & Olson, L.C., have been delivered to the Salt Lake City, Sandy and Summit County libraries. They were all delivered several weeks ago, so they should either be on the shelves, or soon be there.
Monday, January 28, 2008
What happens in Vegas...
doesn't always stay in Vegas.
In the next couple of weeks, I will be hosting a short seminar at the Community Learning Center, in which I will share some of the highlights from The College of Community Association Lawyer's Community Association Law Seminar. I'll also probably share some of the information that I get at the ALI-ABA
Most likely, it will be on the 16th of February; I'm still trying to confirm that I can pull it off then. Watch this blog for more details!
Friday, January 25, 2008
Selling U.S. Condos in Dubai
The 7.8 billion dollar CityCenter project here in Las Vegas (where I am this week, attending the annual CCAL Community Association Law Seminar) has found an interesting pool of buyers; they are selling their condominiums to wealthy Dubaians. (Is that a word?)
The idea follows an investment in the project by a Dubai government-owned conglomerate; as part of that deal, the MGM Grand entity got an agreement to be able to sell units in a Dubai sales office. With the dollar at historic lows, the units are reportedly selling quite well to international investors.
The Las Vegas Sun's story on the project can be found here.
The idea follows an investment in the project by a Dubai government-owned conglomerate; as part of that deal, the MGM Grand entity got an agreement to be able to sell units in a Dubai sales office. With the dollar at historic lows, the units are reportedly selling quite well to international investors.
The Las Vegas Sun's story on the project can be found here.
Tuesday, January 15, 2008
A Zogby Survey on Something Other than the Election
The Foundation for Community Association Research has just released an update to its Zogby 2007 telephonic national survey of Americans who live in common-interest communities. The nationally representative surveys are conducted to assess the perceptions of those who living in common-interest communities and to identify recent trends. Zogby conducted telephone interviews with 709 randomly selected adults residing in homeowners associations, condominiums, cooperatives and other planned communities—collectively called "community associations" in this summary. The margin of error is +/- 3.8 percentage points.
There are too many issues to be easily summarized here; the survey reaffirmed that a majority of those who live in community associations approve of their governance; according to the survey, "residents seem willing to trust the judgment of community association management to make decisions on their behalf, as three quarters are against the government forcing associations to allow clothes lines, six in ten think associations have the right to control the scope and placement of solar panels on individual homes to maintain architectural standards, and two thirds say that the elected board should determine how community associations prioritize and address environmental issues."
A pdf copy of the survey is available here.
There are too many issues to be easily summarized here; the survey reaffirmed that a majority of those who live in community associations approve of their governance; according to the survey, "residents seem willing to trust the judgment of community association management to make decisions on their behalf, as three quarters are against the government forcing associations to allow clothes lines, six in ten think associations have the right to control the scope and placement of solar panels on individual homes to maintain architectural standards, and two thirds say that the elected board should determine how community associations prioritize and address environmental issues."
A pdf copy of the survey is available here.
Monday, November 26, 2007
Libraries contributed to Park City and Sandy
Hobbs & Olson has purchased two more sets of the Adopt-a-Library collections from the Foundation for Community Association Research. These libraries, along with the library donated to the main branch of the Salt Lake City Library, should be on the shelves of the Summit County Library at Kimball Junction in Park City, and at the Sandy Branch of the Salt Lake County Library (1300 East) in the next several weeks.
Wednesday, November 14, 2007
An Opportunity to Really Give
So, if you are wondering about how to make this Holiday Season special, how about taking a shot at improving the World in which we live?
The One Laptop per Child project will provide you with a durable laptop comuter for the recipient of your choice, and will contribute an identical laptop to a deserving recipient, for less than $400.00.
Of course, you can also contribute the laptop that you purchase to another deserving recipient, whom you may not know.
Please act promptly, if you are interested. This opportunity will end on November 26, 2007.
For more information on this amazing project, go to
LaptopGiving.Org
Thursday, November 08, 2007
Another Case from Park City
On October 30, the Utah Supreme Court issued an opinion in the case of Berry v. Greater Park City Company, 2007 UT 87, which didn't deal directly with community associations; in fact, upon first blush, it would seem to have no relevance.
The Berry case dealt with a competitive skiercross race, promoted as the "King of the Wasatch." Mr. Berry, before participating in the race, signed a "Release of Liability and Indemnity Agreement." He was seriously injured in the race, and brought suit against several entities, including the ski resort and several sponsors. Before he could pursue his claims, he needed to challenge the enforceability of the release.
The court's analysis of the enforceability of the release is what makes the case of interest in the community association realm. Regular readers will recall that several weeks ago, I referenced a Georgia case in which the Georgia court upheld exculpatory language in an associations covenants. The new Utah case may shed some light on whether or not Utah courts will follow the Georgia court in enforcing similar provisions. And, it may assist drafters in making their language more likely to survive judicial scrutiny.
In Berry, the Court declined the plaintiff's request to rule pre-injury releases of negligence to be unenforceable based upon public policy. The Court did, however, reaffirm that "sound reasons exist for the law to treat pre-injury releases with greater suspicion than post-injury releases." The Court adopted the considerations of an old California case Tunkl v. Regents of the University of California, 383 P.2d 441 (Cal. 1963), as establishing the standards which a court should evaluate in considering the enforceability of these clauses. The factors of Tunkl, adopted by the Court, included:
Several of the factors in this analysis obviously argue against the enforceability of a pre-injury release of damages arising from negligence in performing construction services; on the other hand, the injuries arising from defective construction offer differ significantly from the injuries arising from negligent operation of a competitive or recreational activity. That is one of the underpinnings of the economic loss doctrine, and that is a discussion for another day.
The Berry case dealt with a competitive skiercross race, promoted as the "King of the Wasatch." Mr. Berry, before participating in the race, signed a "Release of Liability and Indemnity Agreement." He was seriously injured in the race, and brought suit against several entities, including the ski resort and several sponsors. Before he could pursue his claims, he needed to challenge the enforceability of the release.
The court's analysis of the enforceability of the release is what makes the case of interest in the community association realm. Regular readers will recall that several weeks ago, I referenced a Georgia case in which the Georgia court upheld exculpatory language in an associations covenants. The new Utah case may shed some light on whether or not Utah courts will follow the Georgia court in enforcing similar provisions. And, it may assist drafters in making their language more likely to survive judicial scrutiny.
In Berry, the Court declined the plaintiff's request to rule pre-injury releases of negligence to be unenforceable based upon public policy. The Court did, however, reaffirm that "sound reasons exist for the law to treat pre-injury releases with greater suspicion than post-injury releases." The Court adopted the considerations of an old California case Tunkl v. Regents of the University of California, 383 P.2d 441 (Cal. 1963), as establishing the standards which a court should evaluate in considering the enforceability of these clauses. The factors of Tunkl, adopted by the Court, included:
Hawkins, 2001 UT 94, ¶ 9 n.3 (quoting Tunkl, 383 P.2d at 445-46).“[1] [The transaction] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.”
Several of the factors in this analysis obviously argue against the enforceability of a pre-injury release of damages arising from negligence in performing construction services; on the other hand, the injuries arising from defective construction offer differ significantly from the injuries arising from negligent operation of a competitive or recreational activity. That is one of the underpinnings of the economic loss doctrine, and that is a discussion for another day.
Wednesday, October 31, 2007
"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.
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.
Monday, October 29, 2007
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.
Thursday, October 25, 2007
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.
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.
Wednesday, October 17, 2007
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.
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.
Tuesday, October 09, 2007
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.
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.
Thursday, October 04, 2007
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.
“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.
Wednesday, October 03, 2007
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.
Tuesday, October 02, 2007
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.
Sunday, September 30, 2007
Coming to a Library Near You...
In the next several weeks, the main branch of the Salt Lake City Library will be receving a collection of CAI publications, courtesy of Hobbs & Olson, L.C.
The books were purchased by the firm through the CAI Research Foundation's Adopt-a-Library program, through which participating libraries can receive an extensive collection of community association materials through a contribution from the sponsor.
Hobbs & Olson is also seeking to obtain a collection of books for the Summit County libary system. Keep watching this site for updates on that effort.
The books were purchased by the firm through the CAI Research Foundation's Adopt-a-Library program, through which participating libraries can receive an extensive collection of community association materials through a contribution from the sponsor.
Hobbs & Olson is also seeking to obtain a collection of books for the Summit County libary system. Keep watching this site for updates on that effort.
Friday, September 28, 2007
Beware of (Service) Dogs
Once again, I've had a unit owner approach an association board with an assertion that his otherwise prohibited dog is a "companion animal", and thus must be allowed to reside in the association, with its owner, despite the association's prohibition against dogs.
This request has a new twist, however; the dog is a "registered sevice dog", and has a certificate -- suitable for framing -- to show it.
The certificate was obtained from www.registeredservicedogs.com, a site that provides, upon payment of $51.45, "downloadable forms" that can be completed and returned for a certificate. I don't know what the forms require, because I wasn't willing to pay the money, but the existence of the site reaffirms my suspicion that "service animals" are becoming more popular, and associations need to be aware of their rights on this issue.
The site, like many similar sites, sets forth a summary of rights under the Americans with Disabilities Act (ADA). The owner in question, like many owners, assumes that these ADA rights apply to them. The owner is wrong. Those rights may allow him to take his companion dog to breakfast at Denny's, but they don't have any application to his breakfasts at home.
Unit owners and occupants do have certain rights respecting "service animals", but the rights of owners and tenants arise from the Fair Housing Act, and those rights differ from the rights under the ADA. Because this issue arises more and more often, I thought it would be helpful to provide a short summary on the topic.
The case law in this area is still developing, but it appears as though the courts will uphold an association's right, in the case of service animals (and particularly in the subclass of "companion animals"), to determine (1) the legitimacy and general nature of the disability, and (2) the animal's ability to assist with the disability.
I recently prepared a policy for a local association; this policy was adopted in tandem with their general policy regarding animals. The policy, which should be considered as an example only, is available
here.
This request has a new twist, however; the dog is a "registered sevice dog", and has a certificate -- suitable for framing -- to show it.
The certificate was obtained from www.registeredservicedogs.com, a site that provides, upon payment of $51.45, "downloadable forms" that can be completed and returned for a certificate. I don't know what the forms require, because I wasn't willing to pay the money, but the existence of the site reaffirms my suspicion that "service animals" are becoming more popular, and associations need to be aware of their rights on this issue.
The site, like many similar sites, sets forth a summary of rights under the Americans with Disabilities Act (ADA). The owner in question, like many owners, assumes that these ADA rights apply to them. The owner is wrong. Those rights may allow him to take his companion dog to breakfast at Denny's, but they don't have any application to his breakfasts at home.
Unit owners and occupants do have certain rights respecting "service animals", but the rights of owners and tenants arise from the Fair Housing Act, and those rights differ from the rights under the ADA. Because this issue arises more and more often, I thought it would be helpful to provide a short summary on the topic.
The case law in this area is still developing, but it appears as though the courts will uphold an association's right, in the case of service animals (and particularly in the subclass of "companion animals"), to determine (1) the legitimacy and general nature of the disability, and (2) the animal's ability to assist with the disability.
I recently prepared a policy for a local association; this policy was adopted in tandem with their general policy regarding animals. The policy, which should be considered as an example only, is available
here.
And They Won't Rent to Courtney Love, Either
"Refusing to rent to somebody, because they have tattoos may be unfair, but it's not necessarily discrimination under the Fair Housing Act, unless the tattoos are specific to the person's religion or national origin," said Sandy Tamez of the San Antonio Fair Housing Council.
At least that's the attitude in San Antonio, Texas, where an apartment complex called The Villas, precludes those with excessive body tattoos, and, apparently, too many piercings as well. Edward Frankel, one of the co-owners of The Villas and other apartment complexes, states that this rule also goes for people with "tattoos exposed on the neck, hands and wrists..." and also applies to people who have their eyebrow and/or tongue pierced, more than two nose rings or more than five earrings.
While perhaps not technically illegal, this is one of those practices which, at least in this author's opinion, might not be worth the risk of a lawsuit or bad national publicity. I also can see a disparate impact claim arising, because this probably could be shown to result in discrimination against the young, and military veterans.
Wednesday, September 26, 2007
From a Reader...
It came without a copyright. This is for educational purposes.
If there's a copyright violation, it's not my fault.
And Now for Something Completely Different...
A blog that I stumbled upon this morning was reflecting upon the woes of poor Google; it seems that everyone wants to sue them. The case of note was a case recently filed in Pennsylvania, by and individual who has realized that "when [his] social security number is turned upside down in its entierty (sic) it is a scrambled code that does spell the name Google."
The complaint, which is available (along with all of its related pleadings) in the court's file, is a hilarious read. Apparently, Google has caused significant damage to Mr. Jayne; he wants damages of $500,000,000.00, which he seeks in the form of a "first check of $250,000.00 and a second check in the amount that remains."
Tuesday, September 25, 2007
Coming to a Kiosk Near You
I just received an interesting press release from Athomenet, a national provider of website and related services for community associations.
The press release announces a YouTube hyperlink; the video shows a new Kiosk in a swanky Georgia community; residents of the community can reserve their tennis courts through a kiosk. The video is worth checking out; the press release is available here.
The press release announces a YouTube hyperlink; the video shows a new Kiosk in a swanky Georgia community; residents of the community can reserve their tennis courts through a kiosk. The video is worth checking out; the press release is available here.
Monday, September 24, 2007
NIMBY in Holladay
It appears that certain residents of Holladay Utah are concerned that the renovation of the Cottonwood Mall will cause some disruption, and perhaps the loss of a buffer zone that they have had from the mall.
The Salt Lake Tribune reports that neighbors of the mixed-use development, planned for the 68 acres which currently contain the Cottonwood Mall, are afraid they will lose a historical buffer zone. Both sides purport to be working towards a deal, but it looks like this might just turn into a nasty legal dispute.
The article can be found here.
Friday, September 14, 2007
An Hour of Free (and Exciting) (?) Video
Many years ago, I presented a one hour course for the Utah State Bar Annual Meeting. The session, entitled "Community Association Law: What You Don't Know May Hurt You", was videotaped by the Utah State Bar, and is available for online continuing legal education.
Lawyers who want to watch this and get CLE credit have to pay, but you can watch it here for free. The material is a bit dated, and I was quite a bit younger than, but not much has changed other than my time in a 10K.
As always, you cannot rely on the information contained in this video, and you are reminded to seek competent legal advice for your own legal questions.
Lawyers who want to watch this and get CLE credit have to pay, but you can watch it here for free. The material is a bit dated, and I was quite a bit younger than, but not much has changed other than my time in a 10K.
As always, you cannot rely on the information contained in this video, and you are reminded to seek competent legal advice for your own legal questions.
Wednesday, September 12, 2007
Win an Ipod Nano!
As announced previously, the Utah Chapter of the Community Associations Institute is having a trade show at the end of the month.
One reason to attend, of course, is the high caliber of speakers and presenters at the show; another, and maybe even better reason, is the possibility of winning a new generation Ipod Nano with video.
Hobbs & Olson and Utahcondolaw.com will be providing a brand new, engraved Ipod Nano, which will be pre-loaded with the "What You Don't Know Might Hurt You" video. And, if and when we begin our podcasting from this blog, you'll have a place to save those podcasts.
Music on your Nano? You won't want to waste it on music!
Tuesday, September 11, 2007
Family Values
I just had an inquiry, which I repeatedly get, regarding whether or not (and how) an association can limit the number of residents in a unit. My response, as usual, was qualified: it depends on where you are, and how much risk (of litigation) you can bear.
The Federal Fair Housing Act prohibits discrimination based upon "familial status"; "familial status" is defined as:
"one or more individuals (who have not attained the age of 18 years) being domiciled with--
(1) a parent or another person having legal custody of such individual or individuals; or
(2) the designee of such parent or other person having such custody, with the written permission of such parent or other person."
With this definition in mind, I think that it's risky, at best, to try to restrict the number of blood-related individuals residing in a unit. I do think, however, that associations can safely adopt definitions from their municipalities, and restrict occupancy based on those criteria.
FYI, Salt Lake City's ordinance restricts occupancy in it zoning by defining a family as follows:
"Family" means:
A. One or more persons related by blood, marriage, adoption, or legal guardianship, including foster children, living together as a single housekeeping unit in a dwelling unit; or
B. A group of not more than three (3) persons not related by blood, marriage, adoption, or legal guardianship living together as a single housekeeping unit in a dwelling unit; or
C. Two (2) unrelated persons and their children living together as a single housekeeping unit in a dwelling unit.
The term "family" shall not be construed to mean a club, group home, transitional victim home, substance abuse home, transitional home, a lodge or a fraternity/sorority house.
And Summit County defines a family to include:
10-11-1.108 Family: A single individual, doing his/her own cooking and living upon the premises as a separate housekeeping unit, or a collective body of persons doing their own cooking and living together upon the premises as a separate housekeeping unit in a domestic relationship based upon birth, marriage or other domestic bond as distinguished from a group occupying a boarding house, lodging house, club, fraternity or hotel.
The Federal Fair Housing Act prohibits discrimination based upon "familial status"; "familial status" is defined as:
"one or more individuals (who have not attained the age of 18 years) being domiciled with--
(1) a parent or another person having legal custody of such individual or individuals; or
(2) the designee of such parent or other person having such custody, with the written permission of such parent or other person."
With this definition in mind, I think that it's risky, at best, to try to restrict the number of blood-related individuals residing in a unit. I do think, however, that associations can safely adopt definitions from their municipalities, and restrict occupancy based on those criteria.
FYI, Salt Lake City's ordinance restricts occupancy in it zoning by defining a family as follows:
"Family" means:
A. One or more persons related by blood, marriage, adoption, or legal guardianship, including foster children, living together as a single housekeeping unit in a dwelling unit; or
B. A group of not more than three (3) persons not related by blood, marriage, adoption, or legal guardianship living together as a single housekeeping unit in a dwelling unit; or
C. Two (2) unrelated persons and their children living together as a single housekeeping unit in a dwelling unit.
The term "family" shall not be construed to mean a club, group home, transitional victim home, substance abuse home, transitional home, a lodge or a fraternity/sorority house.
And Summit County defines a family to include:
10-11-1.108 Family: A single individual, doing his/her own cooking and living upon the premises as a separate housekeeping unit, or a collective body of persons doing their own cooking and living together upon the premises as a separate housekeeping unit in a domestic relationship based upon birth, marriage or other domestic bond as distinguished from a group occupying a boarding house, lodging house, club, fraternity or hotel.
The ordinances of other Utah governmental entities can be found on the links at Utahcondolaw.com.
Tuesday, September 04, 2007
So, What is a View Worth, Anyway?
The New York Times has another interesting article on the values placed by New Yorkers on their views. It will be interesting to see the values and marketing of the City Creek and other high rise condominiums that are on their way to downtown Salt Lake City.
Value of a View
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