Condominium and Homeowners Associations

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. 
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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.
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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. 
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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!
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… 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. 
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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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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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I have written a number of articles about whether a condominium or homeowner association (or apartment owner) needs to allow emotional support animalsDelta 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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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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