The Libraries Have Been Delivered

The CAIRF Adopt-A-Library collections, which were purchased and donated by Hobbs & Olson, L.C., have been delivered to the Salt Lake City, Sandy and Summit County libraries. They were all delivered several weeks ago, so they should either be on the shelves, or soon be there.

What happens in Vegas...

doesn't always stay in Vegas.

In the next couple of weeks, I will be hosting a short seminar at the Community Learning Center, in which I will share some of the highlights from The College of Community Association Lawyer's Community Association Law Seminar. I'll also probably share some of the information that I get at the ALI-ABA

Most likely, it will be on the 16th of February; I'm still trying to confirm that I can pull it off then. Watch this blog for more details!

Selling U.S. Condos in Dubai

The 7.8 billion dollar CityCenter project here in Las Vegas (where I am this week, attending the annual CCAL Community Association Law Seminar) has found an interesting pool of buyers; they are selling their condominiums to wealthy Dubaians. (Is that a word?)

The idea follows an investment in the project by a Dubai government-owned conglomerate; as part of that deal, the MGM Grand entity got an agreement to be able to sell units in a Dubai sales office. With the dollar at historic lows, the units are reportedly selling quite well to international investors.

The Las Vegas Sun's story on the project can be found here.

A Zogby Survey on Something Other than the Election

The Foundation for Community Association Research has just released an update to its Zogby 2007 telephonic national survey of Americans who live in common-interest communities. The nationally representative surveys are conducted to assess the perceptions of those who living in common-interest communities and to identify recent trends. Zogby conducted telephone interviews with 709 randomly selected adults residing in homeowners associations, condominiums, cooperatives and other planned communities—collectively called "community associations" in this summary. The margin of error is +/- 3.8 percentage points.

There are too many issues to be easily summarized here; the survey reaffirmed that a majority of those who live in community associations approve of their governance; according to the survey, "residents seem willing to trust the judgment of community association management to make decisions on their behalf, as three quarters are against the government forcing associations to allow clothes lines, six in ten think associations have the right to control the scope and placement of solar panels on individual homes to maintain architectural standards, and two thirds say that the elected board should determine how community associations prioritize and address environmental issues."

A pdf copy of the survey is available here.

Libraries contributed to Park City and Sandy

Hobbs & Olson has purchased two more sets of the Adopt-a-Library collections from the Foundation for Community Association Research. These libraries, along with the library donated to the main branch of the Salt Lake City Library, should be on the shelves of the Summit County Library at Kimball Junction in Park City, and at the Sandy Branch of the Salt Lake County Library (1300 East) in the next several weeks.

An Opportunity to Really Give

So, if you are wondering about how to make this Holiday Season special, how about taking a shot at improving the World in which we live?

The One Laptop per Child project will provide you with a durable laptop comuter for the recipient of your choice, and will contribute an identical laptop to a deserving recipient, for less than $400.00.

Of course, you can also contribute the laptop that you purchase to another deserving recipient, whom you may not know.

Please act promptly, if you are interested. This opportunity will end on November 26, 2007.

For more information on this amazing project, go to

LaptopGiving.Org

Another Case from Park City

On October 30, the Utah Supreme Court issued an opinion in the case of Berry v. Greater Park City Company, 2007 UT 87, which didn't deal directly with community associations; in fact, upon first blush, it would seem to have no relevance.

The Berry case dealt with a competitive skiercross race, promoted as the "King of the Wasatch." Mr. Berry, before participating in the race, signed a "Release of Liability and Indemnity Agreement." He was seriously injured in the race, and brought suit against several entities, including the ski resort and several sponsors. Before he could pursue his claims, he needed to challenge the enforceability of the release.

The court's analysis of the enforceability of the release is what makes the case of interest in the community association realm. Regular readers will recall that several weeks ago, I referenced a Georgia case in which the Georgia court upheld exculpatory language in an associations covenants. The new Utah case may shed some light on whether or not Utah courts will follow the Georgia court in enforcing similar provisions. And, it may assist drafters in making their language more likely to survive judicial scrutiny.

In Berry, the Court declined the plaintiff's request to rule pre-injury releases of negligence to be unenforceable based upon public policy. The Court did, however, reaffirm that "sound reasons exist for the law to treat pre-injury releases with greater suspicion than post-injury releases." The Court adopted the considerations of an old California case Tunkl v. Regents of the University of California, 383 P.2d 441 (Cal. 1963), as establishing the standards which a court should evaluate in considering the enforceability of these clauses. The factors of Tunkl, adopted by the Court, included:

“[1] [The transaction] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.”

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

Several of the factors in this analysis obviously argue against the enforceability of a pre-injury release of damages arising from negligence in performing construction services; on the other hand, the injuries arising from defective construction offer differ significantly from the injuries arising from negligent operation of a competitive or recreational activity. That is one of the underpinnings of the economic loss doctrine, and that is a discussion for another day.

"Litigation for Years to Come..."

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

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

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

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

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

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

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

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

You Ought to Add This...

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

The Declaration provided, in pertinent part:

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

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

Fine...Just Fine...

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

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

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

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

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

Holding Their Breath While Holding the Bag.

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

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

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

Here's a link to the article.

Rudy Giuliani's Answer to the Perpetual Pet Problem

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

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

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

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

Landslides in LaJolla, California

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

It Depends Upon How You Phrase It

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

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

Coming to a Library Near You...

In the next several weeks, the main branch of the Salt Lake City Library will be receving a collection of CAI publications, courtesy of Hobbs & Olson, L.C.

The books were purchased by the firm through the CAI Research Foundation's Adopt-a-Library program, through which participating libraries can receive an extensive collection of community association materials through a contribution from the sponsor.

Hobbs & Olson is also seeking to obtain a collection of books for the Summit County libary system. Keep watching this site for updates on that effort.

Beware of (Service) Dogs

Once again, I've had a unit owner approach an association board with an assertion that his otherwise prohibited dog is a "companion animal", and thus must be allowed to reside in the association, with its owner, despite the association's prohibition against dogs.

This request has a new twist, however; the dog is a "registered sevice dog", and has a certificate -- suitable for framing -- to show it.

The certificate was obtained from www.registeredservicedogs.com, a site that provides, upon payment of $51.45, "downloadable forms" that can be completed and returned for a certificate. I don't know what the forms require, because I wasn't willing to pay the money, but the existence of the site reaffirms my suspicion that "service animals" are becoming more popular, and associations need to be aware of their rights on this issue.

The site, like many similar sites, sets forth a summary of rights under the Americans with Disabilities Act (ADA). The owner in question, like many owners, assumes that these ADA rights apply to them. The owner is wrong. Those rights may allow him to take his companion dog to breakfast at Denny's, but they don't have any application to his breakfasts at home.

Unit owners and occupants do have certain rights respecting "service animals", but the rights of owners and tenants arise from the Fair Housing Act, and those rights differ from the rights under the ADA. Because this issue arises more and more often, I thought it would be helpful to provide a short summary on the topic.

The case law in this area is still developing, but it appears as though the courts will uphold an association's right, in the case of service animals (and particularly in the subclass of "companion animals"), to determine (1) the legitimacy and general nature of the disability, and (2) the animal's ability to assist with the disability.

I recently prepared a policy for a local association; this policy was adopted in tandem with their general policy regarding animals. The policy, which should be considered as an example only, is available
here.

And They Won't Rent to Courtney Love, Either

"Refusing to rent to somebody, because they have tattoos may be unfair, but it's not necessarily discrimination under the Fair Housing Act, unless the tattoos are specific to the person's religion or national origin," said Sandy Tamez of the San Antonio Fair Housing Council.

At least that's the attitude in San Antonio, Texas, where an apartment complex called The Villas, precludes those with excessive body tattoos, and, apparently, too many piercings as well. Edward Frankel, one of the co-owners of The Villas and other apartment complexes, states that this rule also goes for people with "tattoos exposed on the neck, hands and wrists..." and also applies to people who have their eyebrow and/or tongue pierced, more than two nose rings or more than five earrings.

While perhaps not technically illegal, this is one of those practices which, at least in this author's opinion, might not be worth the risk of a lawsuit or bad national publicity. I also can see a disparate impact claim arising, because this probably could be shown to result in discrimination against the young, and military veterans.

From a Reader...

It came without a copyright. This is for educational purposes.

If there's a copyright violation, it's not my fault.

And Now for Something Completely Different...

A blog that I stumbled upon this morning was reflecting upon the woes of poor Google; it seems that everyone wants to sue them. The case of note was a case recently filed in Pennsylvania, by and individual who has realized that "when [his] social security number is turned upside down in its entierty (sic) it is a scrambled code that does spell the name Google."

The complaint, which is available (along with all of its related pleadings) in the court's file, is a hilarious read. Apparently, Google has caused significant damage to Mr. Jayne; he wants damages of $500,000,000.00, which he seeks in the form of a "first check of $250,000.00 and a second check in the amount that remains."