The End of the Line...

...as far as we go...

regular TRAX riders will understand that reference. I invite the rest of you to take a ride on TRAX, so you can catch it.
The End of the Line



Julie Ladle and I had a meeting out at Daybreak today; while we were there, I wanted to visit the terminus of the rails of the new Mid-Jordan TRAX line to Daybreak.

When completed (currently anticipated to be sometime in 2011-12), the spur will travel from Daybreak to the Fashion Place (6400 South) Station, where it will connect to trains running to Downtown, and ultimately to West Valley City, the Airport, and the University of Utah.

The course to Daybreak will be rather indirect, but it will allow many other residents to avoid the need to fight traffic and dump carbon into the atmosphere. This link will take you to the latest information on the progress of this extension.

No More Non-Judicial Foreclosures?

Those who know me, and those who follow this blog, are aware that I've never been an advocate of non-judicial foreclosures of community association assessment liens. And at the the CCAL Law Conference last month, the pundits were agreeing.

I've had a number of reasons to dislike nonjudicial foreclosures; I think they usually take longer than a letter followed (when necessary) by a complaint; I think they are unduly aggressive in a number of situations; I think they unduly impose excessive costs on the association and ultimately the unit owner, and I've always questioned their legality under Utah statutes. And now, there's published evidence that confirms that a Utah trial court has found them problematic, and an appelate court won't review that decision, at least for now.

The case, McQueen v. Jordan Pines Townhomes Owners Association, Inc., involved challenges on a number of grounds to the legitimacy of a condominium non-judicial foreclosure; the trial court essentially held that ambiguities and omissions in the Utah Condominium Act would not justify the absence of a "trustee" in a nonjudicial foreclosure, and hence the attempted sale by the association's counsel was set aside. The association's counsel appealed, but that appeal was very quickly rejected by the Utah Court of Appeals, based upon the absence of a "final ruling" from which the association was appealing. Remaining controversies between the parties preclude consideration of the appeal at this time; I strongly suspect that the costs of further litigation will preclude further litigation and the eventual appeal.

I think it's a very important case; we'll be exploring it in more depth in connection with an upcoming CAALRS collection seminar. Keep an eye on this blog, and/or Utahcondolaw.com for information on the date, time and other subjects to be covered.

CAALRS, Utahcondolaw.com and this blog are all sponsored by the law firm of Hobbs & Olson, L.C.

UCIOA Consideration Postponed

Marla Mott-Smith Bowers, Chair of the Utah Legislative Action Committee (ULAC), has advised that the Utah Legislature will not be considering the adoption of the Uniform Common Ownership Interest Act this session, as had been hoped and anticipated. From her press release:

Due to the magnitude of UCIOA and Legislative Research time restraints, Senator Greg Bell will not submit UCIOA this session. Instead, he will submit it during the interim session to be held sometime in May or June, 2009.

Senators Michael Waddoups and Greg Bell recognize the need in Utah for the type of comprehensive act we have proposed and remain committed to the passage of UCIOA.

Get Your Pools and Spas Fixed NOW!

Last Friday's uccai meeting addressed pool safety and the need to modify your pools pursuant to the Virginia Graeme Baker Pool and Spa Safety Act; seven months ago I suggested in this post that you shouldn't even have waited for the law to take effect before modifying your pools and spas. (The law took effect in December.)

Now, unfortunately, there's news of another unfortunate death due to a pool drain. Five-year-old Linnea Rose Oldham of Snyderville, Utah was killed in a tragic drain-related incident while vacationing in Mexico; according to the article in the Park Record, the family wants the story to get out, in hopes that it will prevent other similar tragedies.

Please, if your association's pools and spas have not been modified, shut them down and get them fixed now.

My thoughts and condolences to Linnea's family and loved ones.

It's Happening Here, Too!

No, this is not an alarmist blog entry about Jon Huntsman's support of civil unions for gay couples. That's not the subject of this blog.

What I'm referring to is the stripping of units that are being foreclosed, which I blogged about last month, when I was live blogging from Palm Springs.

KSL is reporting that some foreclosed homeowners in Utah are stripping and/or vandalizing their foreclosed homes. According to the article, "Michael Leavitt, a home inspector, says the bigger problem comes when people buy foreclosed homes at an auction and don't actually see the house."

(The article didn't say, but I don't think that's our former governor Michael Leavitt, although sources do say that he recently lost his job...)

Apparently here, as in Florida, both theft and/or vandalism occasionally follow foreclosures. Once again, vigilance and observation of foreclosed units seems to be prudent.

Housing Tax Breaks

Yesterday's New York Times has an article on the proposed housing and other tax breaks under the proposed stimulus plan; for homes purchased after April 9, 2008 and before July 1, 2009, "first time homebuyer" couples can receive up to $7,500 tax credit. "First Time Homebuyers" are defined broadly; there are phase outs for higher income categories.

All of this is subject to change, of course, as the House and Senate work to reconcile their bills.

Interesting Planning Meeting in Park City

Wednesday night's meeting of the Park City Planning Commission ought to be a little more interesting than most; on the agenda is consideration of the proposed Treasure Hill Development, a rather large (as you can see) proposed development in Park City.

Time and energy permitting, I plan to attend. If I do, I'll let you know what happens.

Here's a link to the 360 page agenda for Wednesday's meeting. (Note that a mere 170 pages deal with this proposed project.)

New Legislation Watch

I've added a new Utah Legislature Watch Widget; the top left corner of this blog will be devoted, at least through the duration of the legislature, to monitoring the progress of bills related to condominiums and other types of community associations. I'm going to skip the liquor bills and the "message bills"; you can watch those elsewhere.

The list should be updated automatically; we'll see how it works.

And if there are any other bills that are related to the industry and which you think should be posted, please let me know.

Congratulations to the New Utah CMCAs.

The National Board of Certification for Community Association Managers (NBC-CAM) has announced that five Utah association managers became certified as Certified Managers of Community Associations during the latter half of 2008.

The new Utah CMCA recipients include:

Kevin Flewell | West Jordan, UT
Jeffrey Holt | Kaysville, UT
Jennifer Jones | West Jordan, UT
Kathie Savage | Park City, UT
Cheryl Wagoner | Lehi, UT


The CMCA signifies that a manager has passed NBC-CAM's national exam and met the requirements for managing condominium, cooperative and homeowner associations.

To obtain CMCA certification, managers must complete a 16-hour classroom course, the Essentials of Community Association Management, and pass the NBC-CAM CMCA Examination. (Since these recipients were all students of mine, I can personally attest that they were good students, and well instructed in their 16-hour course.)

Certified managers must adhere to the CMCA Standards of Professional Conduct and take continuing education courses for recertification. CMCA recipients who don't comply with the Standards of Professional Conduct are subject to disciplinary action, up to and including suspension or revocation of the credential.

NBC-CAM is the first and only national organization created solely to certify community association managers and to help consumers identify managers who have demonstrated fundamental competency and knowledge in this profession.

Get Your Butts Out of Here!

The city of Belmont, California passed an ordinance in November of 2007, which is becoming effective this month; the ordinance prohibits smoking in:

(3) Multi-unit residence common areas; except that a landlord or common interest development may designate a portion of the outdoor area a smoking area. A designated smoking area:
(i) must be located at least twenty (20) feet from any operable window or door used by the public of an indoor area of a multi-unit residence where smoking is prohibited;
(ii) must not include, and must be at least twenty (20) feet from, outdoor areas primarily used by children including, but not limited to, areas improved or designated for play or swimming;
(iii) must be no more than twenty-five (25) percent of the total outdoor area of the premises for which it is designated;
(iv) must have a clearly marked perimeter;
(v) must be identified by conspicuous signs; and
(vi) must not overlap with any area in which smoking is otherwise prohibited by this chapter or other provisions of this Code, state law, or federal law.
(4) Individual units of multi-unit residences, if such units share at least one common floor or ceiling with another such unit.

A copy of the ordinance is available here.

So, unless you are in a single family residence in Belmont, you'll need to get your butt outside, if you want to have a smoke.

I Saw This One Coming...

A Sacramento woman has been ordered not to bring her "service pit bull" to classes at the American River College; she says he gives her "protection" and a thirty minute advance warning of epileptic seizures; she also alleges "he's been certified through the county as a service animal". County officials dispute that, saying that they don't certify service animals.

My source is this story; if I find more on this controversy, I'll post it.

Saving Beaver County

The Utah Supreme Court issued an opinion yesterday in the case of Save Beaver County v. Beaver County, which confirmed the rights of the citizens of Beaver County to challenge, by referendum, the County's approval of the proposed Mount Holly Club.

The Supreme Court opinion succinctly described the proposed Mount Holly Club:

As planned, Mt. Holly is a gated club with an 18-hole golf course, a private ski resort, and up to 1,204 residential units.

A private ski resort ?!?!?!

The proposed plan met with some opposition, but Beaver County proceeded to adopt an ordinance to the land code, and published its "Notice of Adoption of Ordinance" on May 12, 2007. That same day, twelve residents requested applications for referendum petitions. These petitions were filed, seeking a vote by the residents in the November 2008 election. 845 signatures were obtained; more than enough to support the referendum.

The opinion sets forth a lengthy analysis as to whether the County was acting administratively or legislatively, but ultimately held that the County's action was legislative, thereby triggering the citizens' right to a referendum, which the Court appears to consider rather important:

Because the power of the people to legislate directly through referenda is a constitutionally guaranteed right, it is the responsibility of this court to “defend it against encroachment and maintain it inviolate".

Hence the voters will get to decide, in the end, whether Mount Holly Club will be allowed. (Although my strong suspicion is that the current economic conditions may have already doomed Mount Holly Club.)

Alphabet Soup

This afternoon's discussion, continuing in the economic theme, is a discussion on lending in the community association industry. Several representatives of private project approval companies, a representative of FannieMae, and a developer's attorney (who explains that he has inadvertently become a banker's attorney are discussing the current state of financing in the U.S.

Historically, FHA was the first government-related association to assist in condominium funding; that was ultimately followed by the VA, then FNMA and FMAC. These entities all had underwriting standards relating to which projects they would lend upon; community associations could seek and obtain approval, once that approval was obtained the approval would be posted, and would be permanent, in the absence of litigation, or certain other significant adverse actions.

In November of 2007, however, FNMA stopped granting approvals and deferred the approval decision to lenders. That caused great consternation, as lenders did not know what they were doing, and loan availability suffered.

Recently, FNMA has indicated that it will resume the project approval program, with several different options.

An attorney, who is the past president of CAI, is suggesting that a price protection plan for homes will solve the World economic problem. Simplified greatly, he's proposing that new homeowners be assured of a repurchase of their home, at the original purchase price, after a two year period.

One drafting suggestion to the practitioners is that association governing documents allow board modification of provisions relating to secondary mortgage markets.

Several of the panelists are reminding attendees that the agencies will, even in otherwise noncompliant projects, grant exceptions in appropriate circumstances.

CCAL Case Review -- Part 2.

Back to the case review:

The first case of the morning's discussion is Pacific Hills Homeowners Association v. Prun, a case involving an association's five-year long pursuit for the removal of a fence. The lawsuit came five years after the first letter; the unit owner defended based upon laches, and waiver.

Park Ridge Condominium Association, Inc. v. Callais involved an association that refused to produce records based upon a contention that the request was designed to harass; the production was required, and fees were awarded.

Ritter & Ritter, Inc. Pention and Profit Plan v. The Churchill Condominium Association, involved a dispute between a unit owner and an association, relating to required repairs to slab penetrations between units. The court reaffirmed the board's fiduciary duty, but then analyzed the decision on the business judgment rule. Judicial deference applied to the board, but not the association; the association owed a duty to the members, and the association had to repair the problem. In other words, the board was not liable for deciding not to make the safety repairs, but the association had a duty to make them.

Thompson v.Toll Dublin, LLC involved a builder's effort to force an association into arbitration in connection with its construction defect; the developer knew of the defects, resulting in fraud claims against the developer. The Court rejected the effort to force non-statutory claims into arbitration; the court also found the arbitration provisions to be unconscionable.

A California case, Treo @ Kettner Homeowners Association v. The Superior Court of San Diego County involved a condominium provision which purported to take away the unit owners' right to a jury trial in a construction defect case. The Court denied the enforceability of the provision, based upon the absence of meaningful negotiation in connection with the declaration's provisions.

An Arizona case, The Lofts at Fillmore Condominium Association v. Reliance Commercial Construction, Inc. held that a builder was liable rof breach of the implied warranty of habitability, even where the seller was not the builder. The implied warranty arose between the builder and the ultimate buyer, even in the absence of contractual privity.

Lake Buckhorn Property Owners Association, Inc. v. Townsend involved architectural restrictions in a declaration which were supplemented by a more restrictive regulation respecting the size of a septic tank. The court restated the black letter law that an association's regulations which are inconsistent with a declaration are invalid.

Miller v. Savana Maintenance Association, Inc. is a fair housing case which affirms an association's right to insist upon medical records to substantiate a claimed handicap under the Fair Housing Act.

Chesler v. Conroy involved outrageous behavior among the residents of a three unit condominium; the parties clearly treated each other inappropriately; nonetheless, the court held that this particular case did not rise to a federal fair housing claim, based upon disability. The Court did reaffirm the potential, in appropriate cases, of a hostile environment fair housing claim.

Bloch v. Frischholz was a religious discrimination case; it involved a woman who challenged an association rule based upon its interference with her right to mount a mezuzah (a religious symbol) on her door, in a common hallway. The Court held that the religious discrimination prohibitions in the fair housing act does not require a religious accomodation, and facially neutral restrictions were permissible.

On to Alternative Dispute Resolution

Things are getting more interesting now; the discussion has moved to whether or not mediation works.

A few lawyers are saying that it never works; most lawyers are in jurisdictions where mediation is mandatory. Benny Kass is speaking favorably of the process; he laments only that mediation comes at the end of the case. There seems to be a consensus in the room that if mediation fails, it is often due to poor choice of a mediator.

On to leasing restrictions... Once again, participants are talking about "rental prohibition regret" -- the situation where partially vacant associations are wishing that they could allow rentals, in order to stop or slow foreclosures, or provide for some income that might allow for the payment of assessments. A panelist who will remain unnamed is suggesting, with a chorus of "boos" that "A board doesn't necessarily have to follow its bylaws." The contention is that the times warrant the action. Jim Strichartz is suggesting that boards should seek adoption of temporary moratoriums on enforcement. Another participant reminded that any such hardship should be conditioned upon continued payment of assessments.

Similarly (as discussed yesterday), what about the age-restricted communities? First and foremost, associations are reminded not to lose their exemption status in connection with the granting of such hardship exemptions.

Another suggestion: Can a board exercise its business judgment, in light of financial difficulties, not to pursue enforcement of violations during the financial crisis? Most panelists (and I) think that's a rather scary proposition, because it might lead to widespread violations, which could lead to waiver of the provision.

CCAL Law Conference -- Day 2, Part 3 -- The Economy, Again

Another session dealing with the economy -- this time, "How to Guide Your Firm Through the Economic Slump". Four partners/shareholders of various sized firms are addressing the economy's effect on firms; all of these firms are seeing dramatic increases in revenue, and (unfortunately) parallel increases in accounts receivable.

One bit of consistent advice from all of the panelists (Hobbs & Olson clients beware) is that firms be more aggressive in following up on accounts receivable. All of the panelists report terminating clients who haven't been paying.

Two collection attorneys in California report that due primarily to the California statutory restrictions, they are accessing each routine collection matter at least 50times. Suddenly, the weather in Southern California is not quite as inviting...

All of the attorneys on the panel insist upon payment for their collections rather than accepting contingent referrals; the consistent response: "You get what you pay for..." Contingent firms, these panelists say, tend to focus only on gathering the "low hanging fruit". Those easy cases, of course, are not the most important cases to be pursuing.

Liveblogging CCAL -- Part 2

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.

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.

"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.

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.

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

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.

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.

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.

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:

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.

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.

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.

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.

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...

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...

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.

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.

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.

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.

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.

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.

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!)

"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.

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.

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:

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.

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.

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.

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.

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.

Bored?

Apparently, I was.

I found this on the Best Of Craigs List:

three pink plastic lawn flamingos, the momma, the daddy and two
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.

Here's a link, if you are interested

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.

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.

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...

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:

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.

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:

"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.

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.

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.

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.)

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.

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.

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

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!

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.

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.

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

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.)

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).

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.

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!

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.

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.

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.

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

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:

“[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.”

Hawkins, 2001 UT 94, ¶ 9 n.3 (quoting Tunkl, 383 P.2d at 445-46).

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.