Published By: Michael A. Inman, Jeanne S. Lauer, Gregory J. Montero, Robert V. Timms, Jr., Matthew J. Weinberg

Liability Issues

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We often get calls from new board members after transition from developer control. They have questions like this one: Some of the homeowners have added fences, above ground pools and sheds without getting approval from the Association. Many of these changes do not appear to meet the standards that are part of our documents. No action has been taken to correct these violations. How do we go about enforcing the covenants and rules?

The first step is to examine the architectural guidelines and the enforcement provisions in the governing documents. Usually an association’s declaration establishes a committee, often called the architectural standards committee, and grants it powers and duties.

There are often architectural guidelines in the nature of rules and regulations which detail the standards for the community and the procedures for enforcement. If these do not exist, the board of directors should pass a policy resolution that clarifies the standards in the association’s governing documents with greater detail and sets the procedures for enforcement.  This policy resolution is generally referred to as a “due process procedure.”

One of the most important reasons that these procedures need to be in place is that the actions of the committee are subject to review in any legal action in which the association may become involved. The more clearly the resolution defines the procedures and the more closely the committee adheres to them, the more likely they are to be successful if enforcement of a covenant or rule goes to court.
Continue Reading “OUR NEW BOARD JUST INHERITED A HOST OF OLD VIOLATIONS – WHAT SHOULD WE DO? “

Revock v. Cowpet Bay West Condominium Association

Third Circuit Court of Appeals, 2017

A very instructive case was decided last month in a Federal Appeals Court which will demonstrate almost everything not to do with respect to compliance with the Fair Housing Act relative to emotional support animals. This case dealt with a suit brought by two emotionally disabled unit owners in a condominium community that had a no pet rule. The association had no policy regarding service animals or emotional support animals. The residents seeking approval of their dogs provided appropriate paperwork supporting their need for the dogs.  Certain residents were upset by the violation of the no pet rule expressing their views on strongly worded and insulting blog postings and called for these violators to be fined.Continue Reading Fair Housing Act – Emotional Support Animals

[This article is an excerpt from an article written by Mike Hunter for the

Charlotte Observer. We believe it contains some very helpful information and suggestions]

“Most swimming pools have a list of rules posted somewhere on the premises. We’ve all seen them. The rules contain common sense prohibitions against dangerous pool activities, such as having glass in the pool area and diving into the shallow end.

And almost every set of pool rules contains a statement similar to this: ‘No one under the age of 18 may use the pool unless accompanied by a parent or guardian.’ It makes sense, right?

According to a 2012 federal court opinion from California (Iniestra v. Cliff Warren Investments), a pool rule requiring adult supervision of children violated the Fair Housing Act (FHA) because it discriminated against families with children.

In explaining its opinion, the federal court found the rule requiring adult supervision to not make perfect sense if its goal was to ensure the safety of all swimmers. The court noted that the Iniestra children, who were competent swimmers, were not allowed in the pool facility without a parent, but yet adults who never swam a day in their life could use the pool facility without supervision. Also illogical was that a certified lifeguard who was under 18 could not use the pool without the presence of a parent or guardian.Continue Reading The Fair Housing Act and Your Community Pool

In the past two months we have been consulted on two situations involving emotional support animals.  Be it known that this is a topic addressed by the Fair Housing Act.  In order to qualify the resident must satisfy certain requirements. They are as follows:

Documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.Continue Reading Emotional Support Animals and The Fair Housing Act – a word to the wise

There is often confusion about when animals must be accommodated when owned by a handicapped owner who applies for an exception to a pet rule.

The Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability.

The FHA makes it unlawful for a person to refuse "to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

"Handicap" is defined as: "a physical or mental impairment which substantially limits one or more of such person’s major life activities."

Continue Reading Animals and the Fair Housing Act

Yet another example of the risk involved in deciding not to make a requested accommodation in a prudent manner in light of the requirements of the Fair Housing Act.  This often stems from board members and managers not knowing that "handicap" is a very broadly defined term under the Fair Housing Act.  Handicap is defined as follows: 

 

"Handicap" means, with respect to a person, (i) a physical or mental impairment that substantially limits one or more of such person’s major life activities; (ii) a record of having such an impairment; or (iii) being regarded as having such an impairment. The term does not include current, illegal use of, or addiction to a controlled substance as defined in Virginia or federal law. Continue Reading ASSOCIATION FINED BY DEPARTMENT OF JUSTICE FOR FAILING TO MAKE A REASONABLE ACCOMMODATION