The Wisconsin Supreme Court, in an opinion released last Friday, issued an opinion which affirms the validity of rental restrictions included in a community association's bylaws, as opposed to the association's declaration. Several courts around the country have dealt with this issue in the past several years, with opinions coming down on both sides of the issue. And in this case, the Court was divided, with a dissenting justice arguing that the amendment to the bylaws were contrary to the declaration and the statutes, and that the restrictions needed to adopted, if at all, as an amendment to the declaration.
The case, Apple Valley Gardens Association, Inc. v. MacHutta, involved an association formed in July of 1979, by Steven MacHutta (yes, that MacHutta). The original declaration included a sentence providing that "Any lease...shall not relieve an owner from his obligation to pay common expenses or any other obligations..."
In 2002, the Association members amended the Association's bylaws to prohibit rental of units. Ms. MacHutta, the declarant's spouse was renting her unit, and challenged the amendment. Existing tenancies were "grandfathered", as the dispute did not ripen until 2004, when the board refused her petition to enter into a lease with a new tenant. Nonetheless, she rented the Unit and the Association sued.
The Court framed the first question as to whether lease restrictions must be included in the declaration; the court held that the rental restriction fell within the statutory provision providing that bylaws could include "any restriction on or requirement respecting the use and maintenance of the units...," which the Court held could include rental restrictions.
The Court next held that the provision respecting the joint liability of owners for assessments, by allowing leases, was contrary to the restriction against leases.
"Condominium ownership is a statutory creation that obligates individual owners to relinquish rights that they might otherwise enjoy in othr types of real property ownership", the Court stated. Amendments to the bylaws were foreseeable and enforceable, even if not as readily discoverable by virtue of recordation, and even if more easily achievable than declaration amendments. "The fact that lenders and purchasers rely on recorded declarations is irrelevant. If lenders and purchasers wish to know whether and under what conditions a condominium unit may be rented out, they may easily inquire as to both the declaration and the bylaws."
Next, the Court held that the declaration's reference to the conditions under which leases must be made did not mandate that they be allowed. The Court stated: "this provision neither grants a right to rent one's unit nor prohibits it..."
Lastly, the court dismissed a statutory-based challenge to the provision, holding that a marketability statute did not prohibit the bylaw.
The dissent disagreed, arguing first that restrictions such as rental restrictions must be in the declaration to be valid. Furthermore, the dissent argued, the amendment was contrary to, and hence prohibited by, the Declaration.
Apple Valley provides support for the Association that cannot, for whatever reason, provide rental restrictions in a declaration as opposed to bylaws. Nonetheless, this author, and the majority of practitioners in the area, encourage associations to make such significant changes in the declaration, rather than the bylaws.
Thursday, April 02, 2009
Wednesday, April 01, 2009
Abandoned...
Monday's New York Times had an article on the continued (and apparently increasing) tendency of lenders to walk from properties, rather than foreclose on them.
This article, however, reveals a new twist to the problem: the owners, who think their homes have been foreclosed, are being charged by municipalities for the clean up, and sometimes the demolition of, these residences. So it's not just community associations that are facing non-responsive lenders, but also the owners of those units. Previous posts on this blog have advocated vigilance in the monitoring of units in this day and age; this gives another reason. And just because a lender threatens foreclosure, don't assume it will be completed.
Tuesday, March 24, 2009
Pet, or Service Animal? (Again...)
A new Florida Federal District Court case has some good reasoning and guidance dealing with the pet vs. service animal distinction, and how an association should respond to requests for a service animal accommodation.
The case, Hawn v. Shoreline Towers Phase 1 Condominium Association, involved the Davis C. Hawn's assertion that his Labrador retriever, Booster, was a service animal who was "dually trained to help [Mr. Hawn] both physically and psychologically.
Booster was originally introduced to the association's board as a "pet", and Mr. Hawn sought a six month trial period "to give folks a chance to prove that they love their pets as onel would love any other family member." There's no evidence that the association did anything in response to this letter, but about a year later, Mr. Hawn sought permission to keep Booster as his "service animal". His letter asserted physical and psychological disabilities, supported by a letter from a psychologist and a chiropractor.
The association thereafter attempted on two different occasions to get more information regarding Mr. Hawn's alleged handicap; no further information was provided. As a result, the association sent a letter stating "at this time, we must deny your request..."; Mr. Hawn responded by filing a complaint with the Florida Commission on Human Relations (FCHR). The FHCR ultimately found in favor of Mr. Hawn; following that, he filed his claim in the Florida Federal District Court, alleging violation of the Federal Fair Housing Act and the intentional or reckless infliction of emotional distress.
The defendants moved for summary judgment, contending that Haws had failed to meet his burdens. The court, while assuming that Hawns was handicapped, found for the association based upon the fact that the association had no knowledge or reason to know that he was, in fact handicapped. The court noted that the association had never denied the accommodation, but rather had twice requested -- unsuccessfully -- to obtain additional evidence of the handicap and/or the need for the accommodation.
The court, in its opinion, reviewed and relied extensively upon a Hawaii case of several years ago, Prindable v. Association of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245 (D. Hawaii 2003), affirmed, Dubois v. Association of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir. 2006). The Prindable/Dubois case, like this case, involved a patient association which sought, unsuccessfully, to receive medical evidence to support the need for an alleged service animal.
Haws provides strong support for associations' rights to request competent evidence for the need for a requested service animal. In those instances where the need for a service animal is not obvious, associations can and should insist upon adequate and appropriate medical evidence, so that legitimate requests for accommodation are granted, and unwarranted requests are denied.
The case, Hawn v. Shoreline Towers Phase 1 Condominium Association, involved the Davis C. Hawn's assertion that his Labrador retriever, Booster, was a service animal who was "dually trained to help [Mr. Hawn] both physically and psychologically.
Booster was originally introduced to the association's board as a "pet", and Mr. Hawn sought a six month trial period "to give folks a chance to prove that they love their pets as onel would love any other family member." There's no evidence that the association did anything in response to this letter, but about a year later, Mr. Hawn sought permission to keep Booster as his "service animal". His letter asserted physical and psychological disabilities, supported by a letter from a psychologist and a chiropractor.
The association thereafter attempted on two different occasions to get more information regarding Mr. Hawn's alleged handicap; no further information was provided. As a result, the association sent a letter stating "at this time, we must deny your request..."; Mr. Hawn responded by filing a complaint with the Florida Commission on Human Relations (FCHR). The FHCR ultimately found in favor of Mr. Hawn; following that, he filed his claim in the Florida Federal District Court, alleging violation of the Federal Fair Housing Act and the intentional or reckless infliction of emotional distress.
The defendants moved for summary judgment, contending that Haws had failed to meet his burdens. The court, while assuming that Hawns was handicapped, found for the association based upon the fact that the association had no knowledge or reason to know that he was, in fact handicapped. The court noted that the association had never denied the accommodation, but rather had twice requested -- unsuccessfully -- to obtain additional evidence of the handicap and/or the need for the accommodation.
The court, in its opinion, reviewed and relied extensively upon a Hawaii case of several years ago, Prindable v. Association of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245 (D. Hawaii 2003), affirmed, Dubois v. Association of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir. 2006). The Prindable/Dubois case, like this case, involved a patient association which sought, unsuccessfully, to receive medical evidence to support the need for an alleged service animal.
Haws provides strong support for associations' rights to request competent evidence for the need for a requested service animal. In those instances where the need for a service animal is not obvious, associations can and should insist upon adequate and appropriate medical evidence, so that legitimate requests for accommodation are granted, and unwarranted requests are denied.
Tuesday, March 10, 2009
Live Blogging -- The Fair Debt Collection Practices Act
Several of my colleagues in the office are gathered in the conference room, listening excitedly to a seminar on the Fair Debt Collection Practices Act (the "Act"). Since I know that so many of you are interested in the subject, I'm going to live blog it.
The presenter, J. Scott Watson, is regaling the audience by letting us know that he knew (and worked for) Mr. Lieberman (presumably not Joe), who was the defendant in the leading case which established that lawyers are "debt collectors", under the Act.
A creditor, collecting its debts in the name of another, will be responsible for its conduct in connection with the collection of debts. In other words, an association whose representative uses a name other than the association, may be imposing the association and himself or herself to liability.
All debt collectors, including attorneys, are precluded from contacting debtors who are known to be represented by counsel. This is a non-issue to lawyers, as the Rules of Professional Conduct otherwise preclude such conduct.
The speaker suggests "reading the act in its entirety..."
A case called Foti established that a message on a voice mail, without the purpose of the call, violated the Act. On the other hand, identification of the reason for the call would be a violation, assuming a third party answered the call. The suggestion.
The speaker offers no suggestions; my suggestion -- don't leave messages on voice mail machines.
Never discuss a debt with anyone other than the debtor. If you are seeking someone's location from a third party (which is allowed under a specific exemption), don't disclose the reason for your inquiry. If someone contacts you purporting to be counsel for a debtor, request confirmation in writing, before proceeding.
Calling a deadbeat (er, I mean debtor) at work can be a real problem.
If a debtor requests that the debt collector cease collection activities, the debt collector must stop; the only exception will be the pursuit of judicial proceedings.
Perhaps the most troublesome aspect of the Act is the "least sophisticated debtor"; that requires that communications cannot be confusing to the least sophisticated debtor. That is, needless to say, a pretty low standard.
A new trend in litigation, according to the speaker, is suits arising from efforts to collect an amount that the debtor is not entitled to. For this reason, associations and managers must use extreme caution in referring collections to make certain that the information conveyed is accurate.
The recent Hicks case, from Florida, involved Section 1692; the debtor alleged that the voice mail messages were improper, in that they did not disclose the debtor's identity, and the purpose of the call. The message said, "this is in regard to a personal matter...." The court certified a class action, based upon the assumption that the auto-dialer had most likely called a large number of individuals.
Campuzano involved a letter being sent, with the necessary warnings; it made an "offer" of a discount, for a quick call. The plaintiff suggested that it was deceptive in that the officer who had purportedly signed the letters had not actually been involved; the court noted that the officers of the company did not need to have personal knowledge of the letters in order to avoid liability. The court noted that the executives were not lawyers, suggesting a different standard for lawyers.
In McKinney v. Cadleway Properties, Inc., the court addressed the status of a successor who had acquired a debt; the successor will be treated as a debt collector.
Romano case involved an attempted call to Ruben Romano; he was speaking to Ruben, Sr., rather than Ruben, Jr. The discussion with the father disclosed the debt to the son. Either the speaker didn't say, or I didn't catch, what the court did under those facts. I'll track it down, and supplement.
Fogel involved the collection of student loans from a law school graduate (oops!); the lawsuit was filed in the district of the primary Rutgers campus, which was in a different county than the law school, and the residence of the graduate. Again, I'll follow up with the result.
Interesting question for the end of the seminar: If you have two debtors, should you send a letter to both? The speaker advises yes. That, of course, leads to another question; if you do so, can you bill for both?
The presenter, J. Scott Watson, is regaling the audience by letting us know that he knew (and worked for) Mr. Lieberman (presumably not Joe), who was the defendant in the leading case which established that lawyers are "debt collectors", under the Act.
A creditor, collecting its debts in the name of another, will be responsible for its conduct in connection with the collection of debts. In other words, an association whose representative uses a name other than the association, may be imposing the association and himself or herself to liability.
All debt collectors, including attorneys, are precluded from contacting debtors who are known to be represented by counsel. This is a non-issue to lawyers, as the Rules of Professional Conduct otherwise preclude such conduct.
The speaker suggests "reading the act in its entirety..."
A case called Foti established that a message on a voice mail, without the purpose of the call, violated the Act. On the other hand, identification of the reason for the call would be a violation, assuming a third party answered the call. The suggestion.
The speaker offers no suggestions; my suggestion -- don't leave messages on voice mail machines.
Never discuss a debt with anyone other than the debtor. If you are seeking someone's location from a third party (which is allowed under a specific exemption), don't disclose the reason for your inquiry. If someone contacts you purporting to be counsel for a debtor, request confirmation in writing, before proceeding.
Calling a deadbeat (er, I mean debtor) at work can be a real problem.
If a debtor requests that the debt collector cease collection activities, the debt collector must stop; the only exception will be the pursuit of judicial proceedings.
Perhaps the most troublesome aspect of the Act is the "least sophisticated debtor"; that requires that communications cannot be confusing to the least sophisticated debtor. That is, needless to say, a pretty low standard.
A new trend in litigation, according to the speaker, is suits arising from efforts to collect an amount that the debtor is not entitled to. For this reason, associations and managers must use extreme caution in referring collections to make certain that the information conveyed is accurate.
The recent Hicks case, from Florida, involved Section 1692; the debtor alleged that the voice mail messages were improper, in that they did not disclose the debtor's identity, and the purpose of the call. The message said, "this is in regard to a personal matter...." The court certified a class action, based upon the assumption that the auto-dialer had most likely called a large number of individuals.
Campuzano involved a letter being sent, with the necessary warnings; it made an "offer" of a discount, for a quick call. The plaintiff suggested that it was deceptive in that the officer who had purportedly signed the letters had not actually been involved; the court noted that the officers of the company did not need to have personal knowledge of the letters in order to avoid liability. The court noted that the executives were not lawyers, suggesting a different standard for lawyers.
In McKinney v. Cadleway Properties, Inc., the court addressed the status of a successor who had acquired a debt; the successor will be treated as a debt collector.
Romano case involved an attempted call to Ruben Romano; he was speaking to Ruben, Sr., rather than Ruben, Jr. The discussion with the father disclosed the debt to the son. Either the speaker didn't say, or I didn't catch, what the court did under those facts. I'll track it down, and supplement.
Fogel involved the collection of student loans from a law school graduate (oops!); the lawsuit was filed in the district of the primary Rutgers campus, which was in a different county than the law school, and the residence of the graduate. Again, I'll follow up with the result.
Interesting question for the end of the seminar: If you have two debtors, should you send a letter to both? The speaker advises yes. That, of course, leads to another question; if you do so, can you bill for both?
Friday, March 06, 2009
What's a Short Sale?
I'm live blogging today from the UCCAI Manager's Munch; the topic of the day is -- you guessed it -- the economy. More specifically, "The Effects of Short Sales and Foreclosures on Homeowners' Associations".
The speaker is Paul Newton, Backman Title Services.
Paul's beginning with an explanation of "race notice" -- the concept that the first to record their property interest will have priority.
Utah's Condominium Act provides priority to mortgage holders over association liens in condominiums; in the HOA setting, there was no law prior to 2004. Nonetheless, most declarations (in HOAs and condominiums) provide similar protections to lenders.
Backman's office was opening 150 foreclosure files a month in 2007; now it's a thousand per month.
Paul appropriately points out that the language of a declaration is critical respecting the association's rights; some declarations give priority to first mortgages; others give priority to all mortgages. Needless to say, at least for a while, that's a significant issue.
Another good point arises with respect to the "due date" of assessments in non-condominium associations. Most declarations have assessments on an annual basis. If assessments become due on the first of the year, but are billed monthly thereafter, the association may have priority relating back to January 1. Careful lenders avoid this predicament by receiving a payoff, and assuring that assessments are current at the time of transfer.
Paul says that their company appreciates the filing of a new lien, even post-foreclosure, so that the title companies know whom to contact. John Morris questions whether the filing of a lien against lenders may create a "selective enforcment" issue. That's a good point; a solution to that may be an amendment to the association's debt collection policy; a policy distinction which is reasonable should eliminate that argument.
John Richards inquired about how to pursue lenders who don't take care of their property; Paul recommends contacting the lender at the address on the deed, and the trustee who conducted the sale. (There are a lot of very busy foreclosure lawyers who will really enjoy that additional mail.)
A short sale, as defined by Paul, involves a proposal for a sale where not all lienholders will be made whole; the first lienholder will dictate who gets what, and the title company must close within those parameters. Obviously, the frequency of these short sales is increasing.
The speaker is Paul Newton, Backman Title Services.
Paul's beginning with an explanation of "race notice" -- the concept that the first to record their property interest will have priority.
Utah's Condominium Act provides priority to mortgage holders over association liens in condominiums; in the HOA setting, there was no law prior to 2004. Nonetheless, most declarations (in HOAs and condominiums) provide similar protections to lenders.
Backman's office was opening 150 foreclosure files a month in 2007; now it's a thousand per month.
Paul appropriately points out that the language of a declaration is critical respecting the association's rights; some declarations give priority to first mortgages; others give priority to all mortgages. Needless to say, at least for a while, that's a significant issue.
Another good point arises with respect to the "due date" of assessments in non-condominium associations. Most declarations have assessments on an annual basis. If assessments become due on the first of the year, but are billed monthly thereafter, the association may have priority relating back to January 1. Careful lenders avoid this predicament by receiving a payoff, and assuring that assessments are current at the time of transfer.
Paul says that their company appreciates the filing of a new lien, even post-foreclosure, so that the title companies know whom to contact. John Morris questions whether the filing of a lien against lenders may create a "selective enforcment" issue. That's a good point; a solution to that may be an amendment to the association's debt collection policy; a policy distinction which is reasonable should eliminate that argument.
John Richards inquired about how to pursue lenders who don't take care of their property; Paul recommends contacting the lender at the address on the deed, and the trustee who conducted the sale. (There are a lot of very busy foreclosure lawyers who will really enjoy that additional mail.)
A short sale, as defined by Paul, involves a proposal for a sale where not all lienholders will be made whole; the first lienholder will dictate who gets what, and the title company must close within those parameters. Obviously, the frequency of these short sales is increasing.
Mortgage Cram-Down Update
Last night, the U.S. House of Representatives passed H.R. 1106, allowing for bankruptcy court intervention in renegotiating the terms of certain mortgages. The bill does not directly refer to association's, but CAI's Public Affairs team was (and is) encouraging community association leaders to follow the legislation, and share your concerns about the potential of interference with community association assessments. Here's a snippet of the info sent from CAI this morning:
I'll post updates here on this blog, and on the www.utahcondolaw.com parent page, and on our new collection site, www.caalrs.com
On Thursday, March 5, the House of Representatives passed HR 1106 with some technical amendments by a vote of 234 to 191. Although the concerns raised by CAI and others have not yet been fully resolved, your efforts in expressing concern have helped us get Congress’s attention, and members of the Judiciary Committee have committed to work with us to clarify and address these issues.
CAI continues to have concerns that the legislation will have a negative impact on associations in states with priority assessment liens, and that the grant of authority to bankruptcy courts, absent clearer direction and limitations, may be used to modify a homeowner’s assessment obligations to his/her community association. Again, thanks to your efforts, Congress is now aware of these issues and we will continue to work with legislators as the bill moves into the Senate.
Your efforts will help us ensure that this legislation will not have negative unintended consequences for common interest communities across the country and the residents who are current in their assessments. A well-crafted plan, that helps those in distress while protecting those who are current, will benefit us all.
I'll post updates here on this blog, and on the www.utahcondolaw.com parent page, and on our new collection site, www.caalrs.com
Friday, February 27, 2009
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.
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 LineJulie 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.
Thursday, February 26, 2009
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.
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.
Sunday, February 22, 2009
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.
Wednesday, February 11, 2009
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.
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.
Tuesday, February 10, 2009
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.
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.
All of this is subject to change, of course, as the House and Senate work to reconcile their bills.
Monday, February 09, 2009
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.
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.
Friday, February 06, 2009
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.
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.
Thursday, February 05, 2009
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.
My source is this story; if I find more on this controversy, I'll post it.
Wednesday, February 04, 2009
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:
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:
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.)
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.)
Saturday, January 31, 2009
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.
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.
Friday, January 30, 2009
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.
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.
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.
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.
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!
Subscribe to:
Posts (Atom)
