For weeks, associations, municipalities, children’s day camps and public swimming pool organizations have been trying to decide if they could open summer recreation facilities such as pools, parks and playgrounds. The state has only recently released directions on how to open businesses, like construction, in a socially distant way.
Going into the Memorial Day
**UPDATE 5/9/2020** Governor Wolf ordered all foreclosures and evictions delayed until July 10, 2020. If a mortgage company, landlord or manufactured home park owner has already sent out the required paperwork to start a foreclosure or eviction (Act 6 or 91 Notice, Notice to Quit, MHCRA Notice, etc.), they have to start all of the
This is a classic story of a divided association Board. Two Board Members think one way while the third Board Member disagrees. In this case, the two new Board Members made some criticisms of prior Boards. The single Board Member, who happened to be the Board President, was on the previous Boards being complained about. This is (unfortunately) not a unique story. The twist in this case is that the solo Board Member filed a defamation suit against the Association. I have had lots of people related to Associations – Board Members, property managers, contractors – ask me about defamation or libel law suits. This is one of the few times I have seen a case make it to Court.
The solo Board Member claimed that the other two Board Members made defamatory statements about him. He alleged that the statements lowered his esteem and reputation among the Board Members and the vendors who work with or for the Association. He said that the two Board Members’ statements caused people in the neighborhood not to associate with him and to “discount his authority as a Board Member.”
Continue Reading Sticks and Stones May Break My Bones, But Publically Criticizing My Actions as President of the Executive Board Will Never Hurt Me
One of the questions I am asked most frequently from condominium and homeowner Association boards (and managers) is whether the Association is liable for injuries that occur on the common elements? The answer that I always give is that an Association is only liable for an accident on the common areas if they knew of the problem and failed to take reasonable care to make the common area safe. The recent case of Hackett v. Indian King Residents Association reinforced this answer.
In this case, a resident of the Association slipped and fell on some branches on a common area sidewalk. The branches fell only hours before she slipped on them. It was dark when the resident fell, so she could not see the branches that caused the accident.
Continue Reading Association Not Responsible for Resident’s Slip and Fall Accident on Common Areas
This is a post about reasonable accommodations that does not involve an emotional support animal. I cannot remember the last time I did not write about dogs. Recently, the Pennsylvania Federal Courts ruled that an Association does not need to provide the exact accommodation requested, if the Association offers accommodations that achieve the same function.
In this case, a resident needed a walker to get around. She would use the walker to get from her condominium unit to the lobby of the building. From there, she would leave the walker in the lobby of the building and use her cane to get to her car. The resident insisted that she needed to leave her walker in the lobby of the building.
The Association was not happy leaving the walker in the lobby. It offered a handful of possible solutions. The Association offered to store the walker at the concierge’s desk and retrieve it anytime she asked. They offered to have someone bring the walker to her parking space so she could use it to get out of the car. This building has valet parking, so the Association offered to allow her to use the valet parking (presumably free of charge). The resident rejected all of these solutions. She insisted that she needed to store her walker in the lobby.
The resident sued the Association under the Fair Housing Act, claiming that they did not provide a reasonable accommodation for her disability. The District Court and the Third Circuit Court of Appeals both sided with the Association. In doing so, the Court made two extremely important points that help guide Associations.
Continue Reading Associations are Only Required to Make Reasonable Accommodations, Not All Accommodations
At the end of 2018, Pennsylvania passed the “Assistance and Service Animal Integrity Act” or ASAIA for short. ASAIA is designed to eliminate fraudulent claims by pet owners asserting a need for an “emotional support animal” in order to bypass the Association’s rules on pets. I have written a number of articles on
Associations and Unit Owners frequently disagree over who is responsible to pay for repairs to certain items. Sometimes it is easy to figure out. The Association needs to pay for repairs to the community swimming pool, and the Unit Owner needs to fix the stove. Whenever the item to be repaired gets close to the boundary of the Unit, however, the answer to this question becomes more difficult. I came across an interesting case, Winchester Condominium Association v. Auria, where the question was who is responsible to pay for re-wiring a wall outlet: the Unit Owner or the Association?
In this case, the Association required all of the Unit Owners to replace aluminum wiring in the outlets of their Units. The Unit Owners were informed that the replacement was required for safety reasons and for the Association to maintain property insurance. [Note: I have done this a few times for dryer vents, pans under hot water heaters and fireplace insulation.] Every Unit Owner made arrangements to have the wiring in their outlets replaced. Every Unit Owner, that is, except for one.
Continue Reading Wiring: Where Does the Common Element End and the Unit Begin?
Soon community associations will have to deal with snow and ice, and the problems that come with it. In this article I want to discuss salt and other deicers. Many unit owners are certain that one type of salt will ruin their sidewalks. Other units owners believe that any kind of ice melt will harm concrete. Associations get complaints about ice in the winter, and then about spalling sidewalks in the spring. Which deicers are best, and which are asking for problems? Although most of my posts contain mostly legal advice, for this article I got to use my background as a chemical engineer too.
There are four main kinds of ice melt that are used. They are sodium chloride (rock salt), calcium chloride, magnesium chloride and calcium magnesium acetate (CMA). The truth is that all ice melt works in basically the same way. Magnesium chloride, calcium chloride and CMA all absorb water. In doing so, they produce a chemical reaction with the water that produces heat. The heat produced melts the ice. The melting ice dissolves the deicer, and then carries it onto the rest of the surface. Sodium chloride is a little different in that it actually lowers the temperature in which water freezes. So instead of freezing at 32 degrees, water with salt dissolved in it doesn’t freeze until it is 25 degrees. Try it at home – science is fun!
Continue Reading Winter is Coming
… no matter how much they want to. Many planned community and condominium declarations have a confession of judgment paragraph. These are usually towards the back and written in all caps (just like my father-in-law sending an email). They seem to permit associations to bypass all of the demand letters and District Justice courtrooms, and just enter a judgment against the Unit Owner. But what looks good on paper doesn’t always work in practice. Pennsylvania Courts just re-affirmed the long-time rule that Associations cannot confess judgment against Unit Owners.
Residential condominium or homeowner association assessments are a “consumer credit transaction.” This means that the assessments are used to pay for goods or services that are primarily for personal family or household use. Pennsylvania law says that a person cannot enter a confessed judgment against another for a debt that comes from a consumer credit transaction. In the case that I read, the Association and the Unit Owner entered into a payment plan. When the Unit Owner stopped making payments, the Association entered a confessed judgment against him. The Court struck the confessed judgment on its own – it did not even wait for the Unit Owner to make a request.
Continue Reading Associations Cannot Enter A Confessed Judgment Against Unit Owners…
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.
Continue Reading Real Estate Developers: Make sure all of your important contract provisions are included in the Agreement of Sale