Major [?] Water Conservation Efforts in St. George

ksl.com has an amusingly reported story on the "major effort" to save water in St. George. It's short, so I'll post the whole thing:

ST. GEORGE -- A major effort is underway to conserve water in St. George.

The city council passed a new plan that asks residents and businesses to voluntarily take steps to save water. Those steps can be as simple as washing only full loads of laundry, checking for leaks and repairing sprinkler heads.

The council also agreed to restrict watering during daytime hours.

WOW! I sure hope that the residents can handle these sacrifices!

New Utah Case Regarding Fiduciary Duties

At today's CAI trade show, I spoke about a case issued this morning by the Utah Court of Appeals, Stevensen 3rd East v. Watts. It's an interesting case dealing with fiduciary duties, if you're into that sort of thing; I'll blog about it in the next few days, but if you just can't wait, you know have a link to the 23 page opinion.

Happy reading!

Trade Show Tomorrow!

The Utah Chapter of CAI's Trade Show is tomorrow afternoon and evening; exhibitors and presenters (myself included) will be providing valuable knowledge and information to community association members, board members, managers and service providers.

The event will be at the South Town Expo Center in Sandy, Utah; more information on the show, and a link to register, can be found here for the dinner and show, or here, for just the show.

Best Practices -- Green Communities

I'm pleased to announce that the Best Practices Report on Green Communities, which was presented at the recent CAI National Conference in New Orleans, is now available for free download. And, the report can be reproduced and distributed:

Readers can download and reproduce this report for community association managers, board members, individual homeowners and community association-related industry professionals without permission of the Foundation for Community Association Research provided the following terms are met: the document,including the use permission statement, must be reproduced in its entirety and may not be added to, modified, amended, or otherwise altered from the original as presented here. Readers and users agree not to sell copies of this document or otherwise seek compensation for its distribution.

I'd like to thank all of the following, for their assistance in compiling and supporting the report:

Foundation Representatives
Ellen Hirsch de Haan, ESQ., Becker & Poliakoff, P.A.
Lincoln W. Hobbs, ESQ., Hobbs & Olson, L.C.
Sandra Matteson-Pierson, LSM, PCAM, Capital Consultants Management Corporation
Team Members
Amy Bray, Esq., Andersen, Tate & Carr, P.C.
Joe Bunting, CMCA, AMS, LSM, PCAM, Kiawah Island Community Association, Inc.
Leslie Fellows, CMCA, Today Management, Inc.
Marjorie J. Meyer, CMCA, PCAM, Associa, Inc.
Harry Richter, CMCA, Charter Management
Debra A. Warren, CMCA, PCAM
Foundation Staff
Sara Drake, Community Associations Institute
Jake Gold, CAE, Community Associations Institute
David Jennings, CAE, SPHR, Community Associations Institute
Editor
Terry White, T&S White Company
Special Thanks
A special thank you to the CAI Large-Scale Managers Committee for supporting the development and distribution of this Best Practices report.

City Creek in The New York Times

A recent New York Times article gives some great coverage to Salt Lake City and the City Creek Center project that is quickly changing downtown Salt Lake City's skyline.

Most of the information on the project has been covered before, but there are a couple of new and interesting details in the article. For one, the project will include "Fountains that include fire and bells — designed by the company responsible for water features at the Bellagio hotel in Las Vegas . . . " (Does that mean that what happens at the fountain will stay at the fountain?)

Another interesting fact is that one bedroom, Temple view condominiums are being sold for more than $900,000. The price isn't that surprising; the fact that they're building and selling one bedroom units with that view is. Then again, I suppose there aren't that many families who could afford a larger condo with the same view. (Interestingly, a New York Times article from about 18 months ago made me speculate, in an earlier post, just how much the view would be worth.)

They're Not Just in Your Brain, Anymore

This interesting tidbit about micro-chipped trees was in the Daybreak Community Update:

Understanding the importance and value of trees, the Daybreak community has made trees an integral part of everyday life. This effort coincides with their commitment to be a sustainable and walkable development. This is evidenced by the anticipated investment of 100,000 trees to be planted throughout Daybreak of which 8,500 have already been planted. Collectively, the urban forest has the ability to improve the air quality and reduce energy consumption while contributing to a beautiful and memorable community.

In response to this need, Daybreak is working with the Salt Lake County Million Tree Program, South Jordan City and G. Brown Design, Inc. to develop an urban forestry management program. This program is the system by which the trees will be properly monitored and provide a streamlined management approach through the use of a tree inventory and mapping system. The inventory contains information about each tree including: Unique Tree # using a RFID (Radio-frequency identification) tag that is 1/2” long x 1/8” diameter glass capsule embedded into each tree, Scientific Name, Common Name, Location, Tree Condition, Caliper Size, Canopy Size, and Photo. After the tree has been tagged and evaluated, it becomes part of a tree database and computerized mapping system.

In order to ensure that a tree is correctly associated with the data, a RFID tag is embedded into each tree which provides the ability to identify and track individual trees. Once embedded into the tree, the tag can be read by waving a RFID scanner in close proximity to the tag. The RFID scanner functions similar to a barcode scanner at a grocery store. The ID# is then read by the scanner and transmitted to a computer via a Bluetooth connection. This number can then be used to properly identify and update any tree specific information. For example, if a homeowner association member locates a tree that needs to be maintained (i.e., pruned, removed, staked, etc.) then the tree can be identified using the RFID technology. This RFID # and associated map location could be included in a report given to a maintenance crew. The maintenance would then be recorded as part of the tree inventory. In this way, information about a tree can be transmitted effectively, thus saving time and resources.

Trees provide both environmental and aesthetic contributions to the Daybreak community. As the seasons pass and trees mature, they develop their own unique character and beauty while contributing to an overall look and feel of a place. The urban forest is a significant and valuable investment to residents of Daybreak. With proper monitoring and maintenance, Daybreak’s urban forest will remain healthy and viable into the future.

So, I wonder when we'll be able to get an IPhone application to read info about trees in the urban forest.

Everything You Always Wanted to Know About HOA and Condo Insurance...

but were afraid to ask.

Two former executive directors of the Utah Chapter of the Community Associations Institute, Marla Mott-Smith Bowers and Tiffany Dominguez, are in the process of starting a new professional education provider, and for their first seminar, they've arranged for a presentation by two of the nation's foremost authorities on community association risk management.

The Seminar, Community Association Liability, Insurance & Risk Management, will be held on Thursday, May 28. The speakers will be Cliff Treese, recent recipient of the Community Association Institute's Byron Hanke Award for his support of education and research for homeowners and homeowners associations, will be speaking with Joel Meskin, Esq, another national authority on Community association risk management issues.

Mr. Meskin is VP Community Association Products McGowan & Co., Inc., a leading provider of Community Association and Property Manager Insurance Products nationwide. For 15 years he was a trial attorney specializing in insurance coverage and related litigation.
Joel has insured over 50,000 community assocations nationwide. He has produced insurance policy products and engaged in risk management. He lectures to organizations and associations nationwide about homeowner association related insurance issues: fraud, claims, property manager claims, and association risk management.

Mr. Treese is a nationally recognized practitioner in common interest community underwriting, risk management and insurance. His community association management experience includes asset management, information services and technology, human resources and payroll processes, and national quality award criteria and ISO
9000. Cliff has worked with developers and general contractors in all phases of the association development and construction.
He is a past national president of the Community Associations Institute (CAI) and its Research Foundation and a recipient of the Institute’s Distinguished Service Award. He has been involved for over two decades in CAI professional management development programs and has authored several publications for the institute.

Additional information on the seminar is available at this link.

Live Blogging The Managers' Munch -- Problem Board Members

I’m here at the Utah CAI Chapter's Monthly Manager’s Munch; the presenters are John Morris, Jamie Nopper and a law clerk, Michelle Kasteler, from the firm of McKay, Burton and Thurman. Today’s topic is “Dealing With the ‘Problem’ Board Member”.

The first archetype of the problem board member is “No Show Ned”. That description is pretty self-explanatory. Recommended suggestions include the creation of expectations for attendance and follow-through; in-person communications with Ned about his obligations; possible removal (with a strong recommendation of legal counsel.

“Power-Crazy Patty” is a common participant on association boards; characteristics include decision-making and acting alone; failure to share information, and the bullying of members. Suggestions for dealing with Patty include education about her status as a member of the board; standard procedures for distribution of information; and (once again) removal. (And another reminder about the importance of obtaining legal advice.)

Next is “Rules-Don’t Apply to Me Ronald” First, the board (or manager or counsel) needs to remind this board member that he will be treated like others; excuse him from voting on issues in which he is directly concerned; and lastly, “seek legal advice on removing him as a board member”.

"Agenda-Pursuing Agnes" is the somena who ran for the board with a personal agenda; the example given being the woman who wants to get her cousin hired as manager. She only wants to focus on her agenda, and has little or no concern about the well-being of the association as a whole. Suggestions inclued the identification of her conflict of interest and dealing with them pursuant to the association's governing device. Then you may need to resolve that issue (which they ironically refer to as her "pet" issue); with timeframes for reconsideration, if necessary.

"Contentious Carl" thrives on conflict, is insulting and offensive; he turns every meeting into a shouting match. Sometimes these individualys threaten violence. Suggestions inclued formal procedures and protocol during meetings; call the police if necessary.

"Terri Traitor" leaks the association board's privileged information; she may be suspected of aligning herself with dissident owners. Suggestions for her type include reminders of the importance of confidentiality, including a written acknowledgement of the need for confidentiality. If the board member's opposition is known, she can be excluded from strategic sessions; if it is suspected, a separate committee can be formed to consiere and address the meetings. John Morris is considering an amendment to his stock documents requiring the preservation of confidential and privileged information.


"Penny Pincher Pete" never wants to spend association money or raise assessments, defer major projects, and complains about all of the bids being "rip offs". First suggestion here is to advise him of his duties and responsiblities; secondly, get advice from the manager and other professionals; lastly, invite Pete to seek and obtain other bids.

"Suzy Stickler" is described as "the one board member who always reads the documents and knows what they say". (Most of the "Suzy Sticklers" that I know only think that they know them.) The panel's position (probably related to their definition as opposed to mine), is that these types are not a problem. The board's suggestion is that she may not, in fact, be a problem. Compliance with the rules, they say, is a problem.

Facing Financial Crisis

The subtitle of this section is "Foreclosures and Community Associations"

Surprised? Ha!

An insurance professional and three lawyers are discussing the pitfalls and risks associated with foreclosures; both those done correctly, and those which have problems.

The moderator, Jamie Schraff, is recommending communications with association members. Barry Postman, Esq., who disclaims pursuing collections as part of his regular practice, is suggesting communications with owners and a case-by-case analysis on whether or not to pursue individual collections. Leonard Siegel suggests inquiring as to the debtor's solvency prior to the commencement of a foreclosure.

Florida now mandates, via statute, a "meet and confer" conference with the debtor prior to commencement of the proceedings.

An attorney in the audience has thrown a curve to the panel by suggesting that an effort to contact the unit owner may constitute a violation of the Fair Debt Collection Practices Act. The panelists are acknowledging that to be a "fair point"; Mr. Postman is attempting (unsuccessfully in my humble opinion), to draw a distinction between "gathering infromation" and commencing collection proceedings.

Ms. Schraff has reminded all of the participants that CAI's listing of Rights and Responsibilities calls for foreclosure to be used only as a last resort...

All of the panelists are encouraging the obtaining of directors and officers coverage.

Now the panel is discussing the transfer of collection rights to debt collectors; the panel is rightly warning Associations to carefully scrutinize these relationships to make certain that the Board is not improperly delegating its responsibilities. And, they are all advising, make certain that the parties making these offers are not looking primarily to their own interests.

Bare Coverage in New Orleans

The first session that I'm attending today is entitled "Bare Walls, Bare Coverage? -- The Great Coverage Debate. The subject matter is insurance, not Bourbon Street.

The most interesting new knowledge to me is that Fannie Mae is essentially requiring HO-6 coverage in connection with mortgages. Additionally, FNMA regulations which have long required reserves for deductibles, are beginning to be enforced; that is impracticable for many associations which are carrying larger deductibles as a means of having adequate insurance.

Another main focus of the session is the fallout from a recent Maryland case, Anderson vs. Gables on Tuckerman, which led to insurance legislation. In that case, in an opinion which reached a similarly absurd result as the Flores v. Earnshaw case, the Maryland Court of Appeals ruled, as explained by Robin Manougian, CIRMS:

“the Maryland Condominium Act does not require the council of unit owners to repair or replace property of an owner in an individual condominium unit after a casualty loss.” The basis of the Court ruling [was] its conclusion that the Condominium Act requires the unit owner to make all repairs to the unit regardless of the cause of the damage."

Ms. Manougian further explained:

The vast majority of the Condominiums that our Agency insures (and by and large associations insured throughout Maryland) want to maintain traditional Single Entity coverage – master policy property insurance that covers the units, minus improvements and betterments made or acquired by the unit owners. This continues to be the best way to insure condominium associations because of:
-- The interdependency of the units to the common elements
-- The difficulty of adjusting losses between two or more adjusters – one for the association to the extent common elements are damaged, and one or more for the unit owners depending on the number of units affected at time of loss.
-- The insurable interest that the Association effectively has in the units. If the units are not properly insured, uninsured or underinsured losses affecting the units can impact value, adversely affecting the entire property.
-- Certificates of Insurance: The lenders have not reacted en mass as of this writing. Some have contacted us to verify that either Single Entity of Bare Walls coverage is in place. We suspect these calls will increase with time, and this means that they will look for affirmation of master policy unit coverage, or will begin requiring two certificates: One from the Condominium Association, and one from the unit owner.
-- Overall Costs. Single Entity coverage allows the unit owners to buy unit coverage in bulk. The overall replacement value, even if bare walls coverage is rendered, will not change much if at all, which means the premium for the Master Policy will not change, while the premiums for HO-6 based on increased dwelling coverage will increase.
-- The Maryland Condominium Act does not require that owners carry HO-6.* (see Fannie Mae requirement effective March 01, 2009)
-- Even if HO-6 coverage is carried, the possibility exists that unit owners will fail to have or maintain unit/dwelling coverage at full replacement value at time of
loss.

The insurance industry and Maryland's CAI Legislative Action Committee sponsored and managed to get legislation passed that will fix the result, by allowing associations, through their master policy, to insure the units and the betterments therein.

Live Blogging the CAI Conference -- Day 1

I'm at the Community Association Institute's National Conference, and will be live-blogging some of the conference proceedings the next couple of days.

Happy Earth Day!

I'm in New Orleans this week for a Foundation for Community Association Research strategic planning meeting and the Community Association Institute's National Conference; one of the conference highlights (at least in my opinion) is the release of the Foundation's Best Practices Report on Green Communities. It's the culmination of a project that I and others have been working on for many months; it will be available, soon, for free pdf downloads. I'll give you a link, as soon as it's available.

You Wanted a Toilet in Your Condominium?

The Utah Court of Appeals, in an opinion last week, came out with a rather absurd result in a dispute between a condominium developer and unit purchaser.

The case, Flores v. Earnshaw, involved Mr. Seadhna Flores' purchase of a yet-to-be-built condominium unit. Mr. Earnshaw and Mr. Flores both signed a Real Estate Purchase Contract (REPC) which called for a purchase price of "$144,950, less the $10,000 previously paid when Flores had exercised the earlier Option Agreement." About a month later, Earnshaw called "to express concern about the selling price..." Earnshaw sought to revise the contract to increase the price of the unit to $179,950; Flores rejected this offer, and ultimately sued, seeking specific performance of the contract.

Following a trial, the trial court decided that the contract was ambiguous as to whether the parties intended to convey a fully built-out unit, or just a shell of a unit. The court found that the form language in section 1.l was ambiguous, and considered evidence outside of the contract to ascertain the parties' intent. The court thus ordered the sale of a fully built out for $144,850. Earnshaw appealed.

The issue addressed by the Utah Court of Appeals involved whether or not the trial court was correct in allowing and considering the evidence outside of the contract. Ultimately, the court concluded that the court could only look to the contract to determine if it was ambiguous; it the contract itself did not appear ambiguous, the extrinsic evidence should be excluded. Looking only at section 1.1, the court found no ambiguity. Unfortunately for Mr. Flores, that section called for inclusion of "plumbing, heating and air conditioning fixtures, and equipment; ceiling fans; water heater; built-in appliances; light fixtures and bulbs; bathroom fixtures; curtains, draperies, and rods; window and door screens; storm doors and windows; window blinds; awnings; installed television antenna; satellite dishes and system; permanently affixed carpets; automatic garage door opener and accompanying transmitter(s); fencing; and trees and shrubs," only to the extent that they were presently owned and attached to the property. Because none of the items were "owned and attached" as of the date of the contract, the court found the language unambiguous, and held that the admission of the extrinsic evidence was improper. Thus the court remanded the case (sent it back to the trial court) "for further proceedings consistent with this opinion."

This is, obviously, an absurd result even if the case was decided correctly pursuant to evidentiary rules. There is no doubt, when the extrinsic evidence is considered, that Flores was expecting to buy, and Earnshaw originally intended to sell, a completed unit, with toilets and appliances. The court noted that the parties (and presumably the real estate agents, erred by using an REPC for completed construction. That fact, while true, is of little consolation to Mr. Flores.

The appellate court gave a few hints, and possible solutions, to Flores, in noting that the existence of an ambiguity can be found by reviewing the "contract taken as a whole." Furthermore, the court noted that the parties had not argued "mutual mistake, reformation, impossibility or any other theory to support their positions."

At this point, Mr. Flores and his counsel have the option to ask the Utah Supreme Court to review the Court of Appeals' decision, or they can try to get the trial court's reconsideration as to whether the contract, as a whole is ambiguous; Mr. Flores and his counsel could also seek to pursue some of the other theories suggested by the trial court. That may or may not be successful, depending upon the posture of the case.

This case should serve as a reminder of several things; the need for the assistance of competent advice in the purchase of property, the need to deal with an honest and reputable builder, and the need to carefully evaluate and pursue all legal options and theories when everything else fails. Although I had no familiarity with the case prior to last Thursday, (when the opinion was issued), I strongly suspect that the attorneys fees incurred by both both parties likely approached or exceeded the $35,000 difference in the original and proposed purchase price. And now, they get to go back to the trial court to fight some more.

Legislative Update Forthcoming

Regular readers will notice that my legislative tracking widget is no longer posted; with the adjournment of the legislature, it seems rather meaningless.

Of the bills being watched, only HB 243 survived; that bill dealt with "Rental Restrictions on Condominiums and Common Interest Communities". A couple of readers and clients have asked for my thoughts on that; unfortunately, I haven't had time to read and consider it. It is, however, on my "short list", and I'll update on it and other legislation of note in an upcoming blog.

Live Blogging The Managers' Munch -- Rentals

I'm attending the Utah Chapter of the Community Association Institute's monthly Manager's Munch today; the subject is Rentals in Community Associations. The first speaker, Paul Smith of the Utah Apartment Association is advocating the regulation, but not the prohibition of, rentals in associations.

Paul recommends using a local, attorney-reviewed lease contract; he also recommends that the board suggest the screening, by owners, of the potential tenants. If you do that, he says, make certain that the information regarding tenants is kept confidential. Next, require owners to identify their tenants.

Paul suggests that tenants should also be kept abreast of the owners' deficiencies; he suggests that associations advise tenants of pending amenity disruptions. Leases should inform unit owners of the association's governing documents.

According to Paul, cities are actively encouraging participation in the Good Landlord programs, in which municipalities provide disproportionate fees for non-participating landlords, in order to encourage training and education.

Paul contends that most cities won't touch a definition of a family; that's the first matter upon which he and I differ significantly. I suggest that my associations look to and incorporate those definitions into their restrictions; Paul's co-presenter, Kirk Cullimore more or less retracted that assertion.

Now Kirk Cullimore is up, taking on the difficult task of attempting to explain conflicts and overlaps between municipality, state and federal laws. His advice, with which I agree, is that you find the most restrictive requirement, and comply with it.

Kirk recommends that associations should inspect units more than they traditionally have. He suggests that utility companies may be willing to provide information as to the recipients of bills. Kirk also suggests using the state DMV database; I'd recommend extreme caution in that area, because the subscription agreement on that information contains significant limitations on its proper and improper use.

Kirk is now talking of nuisance evictions; he contends (and I agree) that they are difficult in Utah. A "three day comply and vacate" notice is often ineffective by itself; even if it's not, they make a good trail, and can lead to the service of what Kirk calls a "Three Day Get the Hell Out" notice. (I like that term, but probably wouldn't put it on a pleading...)

Kirk suggests a required lease addendum for the community; I agree that this approach is superior to the imposition of a form lease.

Rental Restrictions in Bylaws?

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.

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.

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.

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?

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.