Assistance/Service/Comfort Animal Regulations

By: Tyler S. LaMarr, originally published through the Community Association Institute:  http://uccai.net/blog/comfort-pet-regulations/

We all know someone whose dog or cat is much more than just a pet. Well, for purposes of the Fair Housing Act, they may be right. Community associations must be careful as they adopt rules and regulations regarding animal restrictions because it is easy to run afoul of federal laws like the Fair Housing Act (FHA) or the Americans with Disabilities Act (ADA), which provide homeowners with special rights.

Generally speaking community associations can adopt and enforce animal restrictions including an outright ban on all pets. However, certain animals are not considered “pets” under federal law. For example, Seeing Eye dogs for the blind are considered service animals — not pets — and therefore cannot be banned by the association’s rules.

Under federal law, comfort animals are excluded from certain pet restrictions

Less obvious examples include companion or comfort animals for people who suffer from a disability such as post traumatic stress syndrome — such comfort and companion animals also are not considered “pets” under federal law and cannot be banned from the community.

Not surprisingly, some residents try to overcome community pet restrictions by making a bogus claim that their pet is needed to ameliorate a disability. Community managers are well within their rights to require proof from a medical professional or some other qualified person who can verify the existence of a disability and confirm the need for an assistance animal.

Unlike service animals, companion and comfort animals are not required to be certified with special training. Also keep in mind that assistance animals are not always cats and dogs — disability laws require reasonable accommodations for miniature ponies, pot-belly pigs, ferrets or any other animal that improves the mental or physical health of a disabled person.

“…not always cats and dogs… includes miniature ponies, pot-belly pigs, ferrets or any other animal…”

Furthermore, while the Association must provide reasonable accommodations for assistance animals, the Association need not tolerate nuisances from such animals. For example, nuisance rules regarding feces and excessive noise apply equally to assistance animals and ordinary pets.

Remember that penalties for an FHA or ADA violation can be expensive and can garner negative publicity for the HOA, so it is always a good idea to consult with an attorney to ensure that Association rules are in compliance with federal and state law.

Content on this site is provided for informational purposes only. It is not intended as, and does not constitute, legal advice. While all content is believed to be correct within the scope of its purposes when written, it may be incomplete and and/or the relevant law may have changed. Content on this site is not intended to comprehensively cover any subject, does not cover a number of related matters, and does not cover any person or entity's particular situation. As such, it is not reasonable for anyone to rely upon the information herein with respect to any particular legal matter. Rather, readers are encouraged to retain a licensed attorney to provide individualize and current legal advice.

Flying The American Flag - Can and Should HOAs restrict? By Peter H. Harrison

Recently our law firm was approached by an HOA that wanted to restrict its residents from continually flying the American flag. Needless to say HOA members and other Utahns were outraged over any restrictions regarding the American Flag.  Local and national television and online media outlets happily covered the story and the ensuing controversy.

Now let me be clear, I have great respect for the American flag.  My grandfather was a decorated soldier in World War II  who spent hours at the University of Utah documenting his war time experiences.  Through my discussions with him I learned about the sacrifices that so many have made to preserve the amazing freedoms that we enjoy in this country.  These freedoms are symbolized by our beautiful flag.  That being said, it is easy to lose sight that among these cherished freedoms that Americans enjoy, are the freedoms of expression and speech, freedom of association, and the freedom to contract. 

By purchasing a home in an HOA or Condo development, homeowners become members of an Association, and obligate themselves to adhere to legally binding contractual duties, that we commonly refer to as CC&Rs.  These CC&Rs are often complex and difficult to read. Just peruse this informative Wikipedia entry  for a taste of the complexity of condominiums. (Notably – America’s first modern Condo project was developed in Utah.) Due to the complex nature of CC&Rs, HOA members commonly fail to fully understand or appreciate the restrictions on their ownership rights. 

In the recent media coverage, the outraged homeowners turned to the Freedom to Display the Flag Act of 2005, to oppose the HOA’s rule restricting the placement of the American flag.  

However,  a careful reading of the Flag Act, which is also incorporated into Utah law reveals the Flag Act does not completely override an HOA's CC&Rs.

Utah Condominiums may restrict owners from affixing the American flag on any area in which the resident does not maintain exclusive use and control.  In plain terms, the HOA can restrict flag flying in the HOA common areas. The common areas in a condominium  project  typically include the surrounding landscaping and the entirety of the exterior of the buildings, including roofs, siding, stucco, etc.  HOAs often impose restrictions on flag flying to prevent unnecessary holes and fixtures in roofs and walls that can lead to water leaks and property damage, which the HOA would become responsible to repair; or, to preserve a common and uniform appearance throughout the development. Thus, under both the CC&Rs and the Flag Act, HOAs hold a broad legal right to restrict the location of flag flying.

It is important to remember that when you purchase in an HOA you could be contracting away certain “property rights” or your freedoms of speech and expression.  Remember that your first amendment rights prohibit the government from abridging your freedom of speech, but not necessarily a private HOA.  The first amendment does not prohibit or prevent an individual from contractual limiting those speech rights.

Flying the American flag is an important and protected expression of patriotism. However, as the media failed to address, this protected expression is not an unlimited right. Now just because an HOA has the legal right to restrict something, doesn't mean that it should.  HOAs and its members should work cooperatively to achieve solutions to allow our flag to fly in a way that allows the expression of patriotism, enhances the aesthetics of the community, and simultaneously prevents property damage.

If you have questions about your HOA's enforcement rights and contractual duties please don’t hesitate to contact our office.

References:

Fox and Friends - National News

Fox 13 - Local News

KUTV 2 - Local News

 

 

 

Why would anyone ever want to live in an HOA!?

 By Peter H. Harrison, Esquire

You’ve likely heard of an HOA abusing its power and discretion in enforcing CC&Rs.  Maybe you’ve heard about the HOA who refused to let a little boy sell lemonade (http://www.myfoxchicago.com/story/29554169/hoa-shuts) or about a Florida HOA who fined a man $5,000 because they determined his trees were too short (http://www.consumeraffairs.com/news/this-week-in-homeowners-association-news-111513.html).  With countless horror stories like these circulating the interwebs, why would someone ever want to live in an HOA?

Well, there are a number of great reasons to reside in an HOA.  Many people (particularly people like me) that don’t love the idea of having to do yard work love the low maintenance nature of HOA living.  Not everyone wants to shovel snow, mow the lawn, edge, landscape, etc.  HOAs also often take primary responsibility to maintain roadways, building exteriors and roofs.

Additionally, many HOA’s offer great amenities to their members such as swimming pools, parks, play grounds, tennis courts, hiking trails, horse trails, clubhouses, ski access, and some even have golf courses.  The shared nature of these amenities generally means affordable and convenient access to the membership.

Many of the horror stories involving HOA’s revolve around rule enforcement, however, most people that live in an HOA enjoy the conformity that the rules bring to the community.  Napolean once said, “Imagination rules the world.” If that were the case you could easily live in a community in which your next door neighbor built a pink house or even worse a “Garage-Mahal (http://www.deseretnews.com/article/600128770/Neighborhood-fights-for-identity.html?pg=all), which was built in my neighborhood. 

However, owners in HOA’s don’t have to worry about their neighbors building a hideous monstrosity because they are protected via the binding nature of the restrictive covenants.  Not only do rules help with the appearance of a community but they tend to preserve and increase property values.

It is important to remember that you can’t believe everything you see and hear in the media.  According to the Community Associations Institute (CAI), a non-profit dedicated to building better communities, some 62 million people live in an estimated 315,000 association-government communities, from townhouses to detached single-family homes to apartments.  A study performed by an independent research group for CAI http://uccai.net/ found that 7 out of 10 people who live under owner associations are happy with their communities. Only 8 percent express some level of discontent, while 22 percent were neither satisfied nor dissatisfied.  Most surprising in light of negative media coverage is that 81 percent of HOA residents believe they receive a “good” or “great” return on their HOA assessments.

Finally, several years ago I met with a group of people who were attempting to draft comprehensive beneficial legislation for HOA’s.  Among that group were several county recorders who stated that nearly all new communities at that time functioned as a community association.  This trend is only increasing.  The proliferation of HOAs is not going away. 

If you have questions, problems, concerns or simply want to become part of the 7 out of 10 people who enjoy their HOA community living please contact our office and see if we can help you.

HOA Collections

Authored by Peter H. Harrison, Esquire

HOA Collections

HOA’s are by and large mini-municipalities.  Just as our local cities and counties are funded by the payment of taxes by the citizenry, HOA’s are funded by the collection of assessments from HOA members.

As a member of an HOA, whether it be a condominium or planned community, the association’s behavior on collections can directly impact the membership’s ability to sell.  Many lenders will not finance a unit in an association with a delinquency rate of greater than 15% of the owners.  This can leave members who would otherwise sell their units with limited options.

An effectively governed association will anticipate the problem of delinquencies and put in place a collection resolution ahead of time to address any potential concerns.  Quality management companies and competent counsel should be able to assist an HOA through this process while simultaneously implementing a lien policy.  Simply having a collections policy can often alleviate a delinquency problem from the beginning.

Once the collection policy is implemented, an HOA should ensure that the collection policy is enforced in an evenhanded manner.  Collection efforts should never be pursued in a discriminatory or vindictive way. 

The Utah Legislature has recognized the importance of an HOA’s legal rights to collect assessments in a cost effective manner.  Both the Utah Condominium Ownership Act (UCA 57-8-49) and the Utah Community Association Act (57-8a-306) recognize the ability to collect reasonable attorney fees and costs when pursuing a legal action for a delinquency.  Essentially the Legislature is clarifying that an HOA need not be burdened by both a delinquency from an owner and the additional cost of hiring an attorney to collect the delinquency.

If you live in an HOA that has collections issues, or would like to discuss how to implement an effective collections strategy please don’t hesitate to contact the attorneys at Miller Harrison.

The Quorum Requirement: A Creative Solution to Getting Stuff Done

The Quorum Requirement: A Creative Solution to Getting Stuff Done

By: Douglas C. Shumway, Esq.

“Welcome, Ladies and Gentlemen to our owner’s association meeting. Unfortunately, we didn’t make the quorum requirement to vote on anything tonight, so we’ll need to reconvene this meeting for a later date. Sorry.”

Sound familiar?  Lamentably this scenario is more frequently a reality than a hypothetical for many community associations. If you’ve ever served on or worked with an association board or management committee, you know all too well the crippling effect quorum requirements can be to getting things voted on in special or annual association meetings. It is not at all uncommon for some associations’ CC&R’s and Bylaws to contain a high quorum requirement that, practically speaking, is all but impossible to obtain.

Most CC&Rs and/or bylaws contain a provision that provides guidance on what to do in the event quorum is not met at a particular meeting. Almost all such provisions require the board to re-schedule the meeting and send out notice of that meeting to all owners. Included in this provision is likely the requirement that the new meeting be held within a specific time frame.  If you’re lucky, your association’s CC&R’s and/or bylaws state something like: where quorum is not met at a scheduled meeting, the board must adjourn and re-schedule the meeting, and at that rescheduled meeting the quorum requirement is reduced by half (or some other percentage).  Some CC&Rs and/or bylaws allow for a third and fourth re-scheduled meeting, wherein the quorum requirement continues to be reduced by half each time. Here’s where the creativity comes in.

If your documents provide for the reduced quorum requirement at each re-scheduled meeting, you can avoid a lot of headache and heartache by sending out a notice of your meeting with your own version of the following explanation: 1) the meeting will begin at 6:00 pm. Quorum requirement shall be 70%, and 2) if quorum is not met by 7:10pm, the meeting will be adjourned, and a second meeting will begin at 7:15pm that same night. Quorum shall be 35%.

This creative approach allows board’s to reach quorum at their owner meetings on the same night in which the meeting was noticed to all owners, without ever having to re-schedule for a later date. Make sure your governing documents allow for the reduced quorum at the re-scheduled meetings before using this approach, otherwise you run the risk of voting on officers or amendments that may be invalidated later on for failure to meet the quorum requirement. 

If your CC&R’s and/or bylaws do not contain such a provision, amending the documents may be difficult since getting enough people to show up to the meeting to vote on the amendment(s) is like pulling teeth sometimes. In such a situation, there is always the possibility of amending the CC&R’s and/or bylaws via written ballot. It may require some creative incentives and pounding the pavement to get ballots returned, but it is worth it! 

The HOA Annual Meeting

‘Tis the Season for Utah HOA Annual Meetings!

By: Douglas C. Shumway, Esq. 

Almost all homeowners associations in Utah are organized as non-profit corporations, and as such, Utah law requires such associations to hold at least one membership meeting per year.  UCA 16-6a-701. This meeting is commonly referred to as the annual meeting.  Associations oftentimes hold multiple meetings throughout the year.  The annual meeting, however, is specifically required by statute, and it provides an association’s members the opportunity to receive a recap of the association’s activities from the preceding year, as well as a snap shot of the association’s activities for the upcoming year.  The annual meeting also provides an association’s members an opportunity to chime in and make recommendations for the operation of the association, as well as to participate in the vote to elect an association’s newest members of its board of directors.

A homeowners association’s annual meeting provides an association the opportunity to address two additional requirements of Utah law that apply to homeowners associations.  First, an association’s board of directors is required to adopt an annual budget and to provide the association’s members a summary of the adopted budget. UCA 57-8a-215. The summary provides the association’s members information on the association’s recurring expenses (i.e. landscaping, utilities, security, etc.), as well as any significant or unusual expenditures (i.e. resurfacing a pool, reroofing buildings, installing playground equipment, etc.) that the association intends to make during the year. In addition, if the association’s governing documents do not expressly authorize the Board to adopt an annual budget, the annual meeting provides the association’s members the opportunity to ratify the budget.

Second, and as part of the budget process, homeowners association’s board of directors is required to complete a reserve analysis of the costs to repair, maintain and replace the common area and facilities that have a useful life of between 3 – 30 years. UCA 57-8-7.5; UCA 57-8a-211.  The association board must include a line item in the budget for reserve contributions, and the board must provide owners the opportunity to veto the reserve line-item amount proposed.  If the owners do not veto such reserve provision by a 51% vote of the entire membership within 45 days of the board’s adopting of the budget, the proposed budget shall be considered adopted. Id.

As mentioned above, a homeowners association may hold meetings in addition to its annual meeting throughout the year.  But if there is only one association meeting that you intend to sit in on during the year, plan on attending the annual meeting as it is oftentimes the most informative and most important meeting of the year.

HOAs, Contracts - A Checklist and Basic Guide

By Tyler LaMarr, Community Association Lawyer

Vendor Contracts – A Checklist of Key Provisions

Samuel Goldwyn said that “an oral contract isn’t worth the paper it is written on.”  Unfortunately, the same can be said for many written contracts.  The purpose of this brief article is to identify key provisions that should be included in association contracts. A well written contract can reduce liability exposure, reduce the risk of litigation, and help ensure that associations meet their objectives.

Term/Duration

A good contract will detail relevant timeframes and answer the following questions: (a) When does the contract become effective? (b) What is the deadline for completion of work? (c) How long will the contract remain in force? (d) Are party notification requirements time sensitive? (e) Is the contract auto-renewing, and if so, when, and for how long? (f) Do material terms (i.e. price) change throughout the effective date of the contract?

Deadlines and effective dates are commonly disputed; these disputes can often be avoided with clearly identified term and duration provisions.

Termination/Escape Route

Association’s frequently contact legal counsel seeking an escape route after becoming dissatisfied with vendor service. A good contract will provide an out for an unsatisfied association. Such provisions should include details on how to terminate, including the proper point of contact, the requisite advance notice (if any), an opportunity to cure, etc. At times it is in the association’s interests to clearly articulate grounds for termination; whereas, in some cases an association may wish to retain discretion to terminate without cause.

Associations should resist rushing into agreements that appear to be informal (i.e. bids, proposals, estimates), which may in fact have all the necessary elements to constitute a binding contract. While the focus is often on the initial execution of the contract, associations should consider important provisions that are often absent in less formal agreements.

Insurance/ Indemnification

Association directors have a fiduciary duty to the association and its members to use reasonable judgment in carrying on association business. Thus, when negotiating and executing contracts boards should always consider the inherent risks and include contract provisions to account for accidents or otherwise injurious conduct or events. Qualified vendors will be insured and will be prepared to provide proof of insurance at the association’s request.

Associations should (a) request proof of insurance, (b) ask about the coverage provided, (c) include a contract term requiring minimum insurance limits, and(d) establish that failure to maintain adequate insurance constitutes a material breach of the contract.  Association’s should also consider seeking indemnification from vendors/contractors, and should consult with legal counsel to take steps to protect directors’ and association interests.

Attorney’s Fees

Contract disputes can be very costly to litigate. Litigation expenses often prohibit an association from seeking court assistance to enforce contract terms.  As such, a good contract should include an attorney’s fee provision, which allows a prevailing association to recover court costs, expenses, and attorney’s fees in addition to damages. Costly litigation should be avoided if possible; however, attorney’s fees provisions often bring additional clout to out of court negotiations because of the prospect for attorney’s fees liability if cooperative negotiations break down.

Seek Legal Counsel

There is no one-size-fits-all contract.  Associations are wise to consult legal counsel up front to avoid costly disputes later. Expending some association resources for competent legal counsel can save the association time, headaches, and money in the long run.

HOAs, Pets, and Assistance Animals

By Tyler LaMarr, Community Association Lawyer

We all know someone whose dog or cat is much more than just a pet.  Well, for purposes of the Fair Housing Act, they may be right. Community associations must be careful as they adopt rules and regulations regarding animal restrictions because it is easy to run afoul of federal laws like the Fair Housing Act (FHA) or the Americans with Disabilities Act (ADA), which provide homeowners with special rights.

Generally speaking community associations can adopt and enforce animal restrictions including an outright ban on all pets.  However, certain animals are not considered “pets” under federal law. For example, seeing eye dogs for the blind are considered service animals – not pets – and therefore cannot be banned by the association’s rules.  Less obvious examples include companion or comfort animals for people who suffer from a disability such as post traumatic stress syndrome – such comfort and companion animals also are not considered “pets” under federal law and cannot be banned from the community.

Not surprisingly, some residents try to overcome community pet restrictions by making a bogus claim that their pet is needed to ameliorate a disability. Community managers are well within their rights to require proof from a medical professional or some other qualified person who can verify the existence of a disability and confirm the need for an assistance animal.  Unlike service animals, companion and comfort animals are not required to be certified with special training.  Also, keep in mind assistance animals are not always cats and dogs – disability laws require reasonable accommodations for miniature ponies, pot-belly pigs, ferrets, or any other animal that improves the mental or physical health of a disabled person. Furthermore, while the Association must provide reasonable accommodations for assistance animals, the Association need not tolerate nuisances from such animals.  For example, nuisance rules regarding feces and excessive noise apply equally to assistance animals and ordinary pets.

Remember that penalties for an FHA or ADA violation can be expensive, and can garner negative publicity for the HOA so it is always a good idea to consult with an attorney to ensure that Association rules are in compliance with federal and state law.