One of the most important pieces of advice I give builders and developers is to “get it in writing.” It turns out that when you get it in writing is also critical. A big national builder found itself in Court with a home buyer because the builder did not put its arbitration clause in the Agreement of Sale. The builder used a form purchase agreement which referenced the builder’s limited warranty. Months later, at the settlement table, the builder finally gave the buyers the limited warranty. The limited warranty contained a requirement to arbitrate all disputes. When the buyers later had problems with their home, they went directly to Court instead of to arbitration. The Pennsylvania Superior Court said the arbitration clause was not enforceable because it was not provided at the time of the Agreement of Sale. The only mention of arbitration was provided months later, after the Agreement of Sale was signed.
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Homeowners’ Association is not required to protect residents from dogs
Lots of Association board members worry whether the Association is required to enact rules to control dangerous dogs. In McMahon v. Pleasant Valley West Association, the Commonwealth Court ruled that an Association does not have a duty to force a unit owner to maintain, control or confine their dogs on the dog owner’s property. The Association also does not have a duty to prevent dogs from harming other unit owners. Because they have no duty to control the dog, or to protect unit owners from harm caused by the dog, the Association was not responsible for injuries to the unit owner. The Court noted that there was no “special relationship” between the Association and the dog owner or the victim of the dog attack. The Court noted that the Association did not act to “provide any additional protections against an attack by the … dogs over and above the protections provided in the dog law….”
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2018 Property Tax Assessment Appeals
In the summer of 2017, property tax assessments and assessment appeals were a big topic of discussion. That is because 2017 marked the countywide reassessment for all properties. The County Tax Assessment Appeal Board heard tens of thousands of assessment appeals. Some of the appeals resulted in substantial savings for the property owners.
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Questions About the Tax Deduction for Pass-Through Income
We have written a few articles about the changes to the Tax Code. The change that many professionals are trying to figure out is the 20% deduction for individuals using a pass-through business entity such as a partnership, LLC, “S” corporation or sole proprietorship. Code Section 199A is not just a minor change in already settled law. It is a brand new concept. Even the AICPA has requested – twice – that the IRS and Department of the Treasury provide guidance on the pass-through deduction.
There are a couple of key concepts that are building blocks to understanding Section 199A. Some of these are:
- The business must be a “qualified business.” A qualified business is anything that is not a “specified service trade or business.” This means that service businesses such as accounting, actuaries, brokers, consultants and lawyers are not qualified businesses and cannot take advantage of the deduction. Engineers and architects are qualified businesses, and the owners may use the deduction.
Of course, this exclusion has an exception. If a business would otherwise be disqualified, but the taxpayer has a taxable income less than $207,500.00 for an individual ($415,000.00 for taxpayers filing a joint return), then the taxpayer may be eligible for the deduction. In this case the deduction is phased out depending on how close the income is to that threshold amount.
- The deductible amount requires a lot of calculation. The deduction that a taxpayer can take is the lesser of (A) 20% of the taxpayer’s business income or (B) the greater of either: (i) 50% of the W-2 wages paid by the business; or (ii) the sum of 25% of the W-2 wages paid by the business plus 2.5% of the unadjusted basis of qualified property of the business.
But even this confusing definition has different qualifiers. For example, qualified business income excludes net capital gain. This means that the higher the ratio of net capital gain to taxable income, the lower the pass-through deduction. The deduction favors companies with employees because 50% of the W-2 wages paid could be deductible. On the other hand, if a company has few employees, but creates income through its depreciable assets (such as landlords), they can deduct up to 2.5% of the unadjusted basis of the property.
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Are These Dogs Allowed: Yet Another Case on Emotional Support Animals
I have written a number of articles about whether a condominium or homeowner association (or apartment owner) needs to allow emotional support animals. Delta airlines new policy related to service and emotional support animals created some controversy and was heavily reported in national news. As service and emotional support animals become more commonplace, questions keep coming up, and so associations need to be reminded of what to do when a resident wants to keep a support animal.
To review, there are two federal laws to follow: the Americans With Disabilities Act (“ADA”) and the Fair Housing Act (“FHA”). The ADA says that a service dog is permitted in all public places. A service dog is an animal that is specially trained to perform a task that is directly related to a person’s disability. Under the FHA, providers of housing – like a landlord of condominium association – need to provide reasonable accommodations for assistance animals. Unlike a service dog, an “assistance animal” does not need to be specially trained to perform a task. They can provide only emotional support for a person with a disability. The definition of assistance animal or emotional support animal is much broader than a service animal under the ADA.
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How to Avoid Declarant Liability in a Condominium
Very often, a real estate developer is only active in a project until the subdivision plan is approved. At that point, the developer often sells some or all of the development rights to the builders who actually construct and sell the homes. The developer may not realize that it usually retains liability for the completion of the community, even though the developer and builder planned to pass that responsibility onto the builder. Why? Like most legal surprises, the reason is not taking care of the details of the transaction.
In Hillside Villas Condominium Association, Inc. v. Bottaro Development Company, a neighborhood was created using this typical model. The developer created a community in nine separate phases. The builder constructed the homes, and paid the developer every time a home was sold. This looks like a typical residential condominium project. Whenever a phase of the community was added, the developer assigned special declarant rights to the builder. This allowed the builder to construct and to legally declare the units. The developer retained all of the declarant rights that were not specifically transferred or assigned to the builder. So long as the builder sold at least four units per year, this relationship would continue until the community was sold out.
In all of these relationships, the problem comes when the builder fails to complete something. Here, the storm water management basins were not completed, and the roads required repairs totaling $900,000.00. The Association sued both the builder and the developer.
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Alternate Dispute Resolution Comes to Association Communities (Whether they want it or not)
* House Bill 595 was signed by Governor Tom Wolf on Monday, May 7, 2018. The Bill becomes effective on Wednesday, July 6.
The Pennsylvania General Assembly passed House Bill 595, which is expected to be signed by Governor Wolf. This Bill gives a process for deciding disputes in Condominium and Homeowners’ Associations. There are a few things that every Association should know about this new requirement. They are:
- Most Associations need to adopt bylaws or rules and regulations that establish Alternate Dispute Resolution (ADR) procedures. This includes procedures for disputes between two or more unit owners and/or between a unit owner and the Association.
- A “unit owner in good standing” can file a Complaint with the Attorney General’s Bureau of Consumer Protection for a violation of the Act relating to meetings, quorums, voting, proxies, and Association records. Previously, this option was available only to disputes over Association financial records.
- A “unit owner in good standing” is someone who has no past due assessments. So a unit owner that is behind on their assessments cannot file a Complaint with the Bureau of Consumer Protection. Except that if the unpaid assessments are related to a Complaint filed with the Bureau of Consumer Protection, then the unit owner is in good standing regardless of unpaid assessments.
- A unit owner cannot file a Complaint with the Bureau of Consumer Protection until he or she has exhausted the ADR procedure or at least 100 days after the unit owner started the Alternative Dispute Resolution procedure. If there is no ADR procedure, the unit owner can go straight to the Bureau.
- Finally, if a unit owner has a dispute with the Association and wins, he or she may be entitled to an award of costs and reasonable attorney’s fees.
These additions to the Uniform Condominium Act and the Uniform Planned Communities Act are intended to help owners and Associations settle their differences without going to court. In order to do this, Associations will need to take some steps to prepare themselves:
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Zoning for Agricultural Projects: Every Detail Matters
Whenever a farmer needs zoning approval for an agricultural project, they cannot leave any detail to chance. If anyone opposes the project – be it the Zoning Hearing Board, the Board of Supervisors or a group of neighbors – anytime the farmer misses even the smallest detail, it could be grounds for getting the project denied.
In Berner v. Montour Township Zoning Hearing Board, the Zoning Hearing Board (twice) and the County Court of Common Pleas (twice) approved the farmer’s zoning application for a swine nursery barn. The Zoning Hearing Board in particular put a lot of faith in the work of Todd Rush from my friends at TeamAg. Unfortunately, there was an organized group of neighbors that opposed the application. The Commonwealth Court eventually ruled that the Zoning Hearing Board was wrong, and that the farmer should not have received the approval for the swine barn.
Most of the Commonwealth Court’s denial dealt with very small differences between the language of the Zoning Ordinance and the Nutrient Management Act. The Zoning Ordinance required the applicant to “submit facility designs and legally binding assurances with performance guaranties” to ensure that the operations will be “conducted without adverse impact upon adjacent properties.” Since this sentence appears to deal with the design of manure storage facilities and manure and wastewater management, the Zoning Hearing Board decided that these requirements were preempted by the Nutrient Management Act. After all, the NMA does not allow a municipality to regulate practices related to storage or application of manure or the construction or operation of manure storage facilities.
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Disney Character Mailbox Gets Bounced from Homeowners Association
A recent homeowners association case pitted the association’s board against Tigger. Yes, that Tigger – the trusty friend of Winnie the Pooh, Christopher Robin and the rest of the Hundred Acre Woods. Actually, the problem was a mailbox that was shaped like Tigger. In this case, the Association’s Architectural Guidelines bounced the Tigger mailbox right of the neighborhood.
The community in question had fairly typical Architectural Guidelines. The Declaration of the community provided that the Board needed to approve all installation, construction or alterations of any “decks, fences, permanent play equipment, ledges, pools, storage tanks, accessory buildings, or any other structures on the lot.” The Guidelines also provided that any proposed modifications need to be compatible with the architectural character and design of the community. The list of items specifically requiring approval did not include “mailboxes.”
One of the unit owners replaced their standard mailbox with a new mailbox that looked like Tigger. The Association determined the mailbox violated the Architectural Review Guidelines and instructed the unit owners to remove it. The unit owners refused, and five years of litigation ensued.
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When to Call the Snow Plows
Even though winter is (hopefully) almost over, it is a good time to talk about snow and plan ahead for next year. Every winter, condominium and homeowner association boards all over Pennsylvania face the same question: When do we need to call our snow removal contractors? This is a divisive topic in the community. Some people believe that no matter what the snow amount, the grounds crew should be there around the clock to remove the snow. They may threaten to sue the Board if there are any slips and falls on Association property. Board members want to know what is their legal duty to remove snow and ice from the Association’s roads, sidewalks, driveways, etc.?
The Association’s potential liability for slips and falls on an ice or snow-covered surface is covered by the “Hills and Ridges Doctrine.” This says that the Association has to remove snow and ice within a reasonable time after the accumulation in order to prevent a dangerous condition. An Association cannot allow snow and ice to accumulate in hills and ridges, if the accumulation is a danger to pedestrians.
The key to the Association’s responsibility is that it needs to act “reasonably.” That does not mean immediately after the last snowflake falls. In fact, Courts have found a landowner not liable for injury when snow fell overnight and the parking lot was not cleared by 7:45 the next morning. The Courts have also said that the Association does not have to pre-treat sidewalks before a storm, or to salt or sand a parking lot during or immediately after an ice storm. If there is snow everywhere, people are supposed to know that there may be slippery conditions.
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