Legal Articles
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Building Credibility
A major component to achieving success at trials concerning homeowner association issues involves gaining credibility with the judge and jury. While there are many actions that the HOA’s attorney can make at trial, the board gains its highest credibility before the lawsuit is even filed. Adhere to the following best business practices before trial and credibility will likely soar.

Follow the Governing Documents. Failing to follow the HOA’s governing documents is a sure fire way to lose credibility. The governing documents, rules, regulations, policies and procedures establish the guidelines and expectations for the whole community. If the board fails to follow them, it will appear unreliable and not credible.

Document Your Actions. If an action is taken by the board or manager, document the action in writing. This can be in the meeting minutes, a letter sent to the homeowner, or in a note to the file outlining the facts and action taken or not taken. Certainly there will be testimony about this action at trial, but often testimony alone is not enough to build credibility. If the action is documented, the board can use the documentation at trial to substantiate its story. Documentation carries much better weight than "he said, she said".

Maintain the High Road. When documenting the board’s actions, remember that written document may be used at trial. Thus, the board should not record it’s in kind reaction to rude or abusive behavior even when provoked. Simply note the rude behavior and move on with the reason for the board’s position.

Be Consistent. Follow the governing documents consistently. For example, if one homeowner is allowed a front porch swing, do not deny another the same request. It will come across as selective enforcement of the rules.

Correct Mistakes. If a mistake is made in the course of dealing with a homeowner, admit it and move on. Attempting to explain the mistake away often leads to a story that is difficult to tell and unbelievable.

The actions the board takes now will determine its credibility at trial. While a good lawyer can massage certain issues, the facts are what they are. Following these five steps will not only help at trial, but will often help keep the board from getting there in the first place.

By Brian E. Martin, Esq. Published by HindmanSanchez P.C.  BACK

Doggone Dogs
Some may be old enough to remember the rock band from the 1970s called Three Dog Night. There is an interesting story behind their name. Australian aborigines domesticated and kept wild dogs (dingos). On cold nights they would customarily sleep with their dogs to keep warm. On colder nights they would sleep with two dogs, and if a night was especially cold, it was a "three dog night".

The relationship between man and dog goes back a long way. They brighten lives in ways humans can’t. They’re so forgiving and compliant. For many, they are the ideal companion. But for homeowner associations, dogs do present challenges.

Barking dogs can be a very contentious issues in an HOA. Many dog owners think that while other dogs may bark, theirs certainly doesn’t. Let’s come clean on this one. When left alone, all dogs bark. Some howl. It’s their nature. They are social animals and when deprived of company, barking is a way of attracting it. But in the confines of a common wall community, barking generally attracts only the unwelcome attention of the neighbors.

Modern technology provides answers to the barking issue by surgical and non-surgical means. Surgery is considered in extreme cases when behavior modification can’t be accomplished. Some of the bark control gizmos include:

• Bark Control Collar (Shock). Automatically emits a battery powered electric shock when triggered by barking.

• Bark Control Collar (Spray). Automatically emits a citronella (lemon) spray when triggered by barking.

• Bark Control Collar (Ultrasonic). Automatically emits a high pitched sound.

• Stationary Ultrasonic Unit. Automatically emits a high pitched sound without collar.

• Portable Ultrasonic Unit. Emits a high pitched sound when triggered by a trainer.

Reports on effectiveness of these devices vary. They are battery controlled so making sure the batteries are working is essential. Whether shock, spray or ultrasound is more effective is subject to trial and error. But according to industry reports, over 2/3rds of those that reported using the devices for more than 90 days said behavior improved.

There is a belief that shock collars are the dog equivalent of Tasers (stun guns). But according to the industry, the level and duration of a collar shock is a tiny fraction of what a Taser does. For more on this, go to www.acornpetco.com/DispellingTheMythsAboutShockCollarsPage.html

If a dog barks in the woods and there is no one there to hear it, is he still a bad dog? Since barking is bound to cause complaints in a homeowner association, be prepared to offer effective alternates to the owners of the offenders. Good boy.   BACK

Model Remodeling
Owning your own home is an American dream and, for many, a reality. In urban settings, homeowner associations have become a dominant form of new construction, often representing over two thirds of new homes. While HOA homeowners have many rights and privileges, they often concede certain freedoms usually enjoyed in more traditional home ownership. One particular area of concession involves remodeling.

To control the look and feel of the community, many HOAs have material, color and design standards which must be adhered to. In common wall and multi-story communities, structural integrity demands that changes made in one unit do not compromise the viability of the building. For these reasons, it is important for the homeowner association to keep the owners informed and reminded of material standards and remodeling guidelines to avoid inadvertent violations.

Here are a number of requirements and guidelines which can be included in a Remodeling Policy as appropriate:

1. For smaller projects (mostly aesthetic, no structural or utility work involved), submit to the board for written approval prior to commencement of work a description of the work to be performed, who will do it and the anticipated schedule.
2. For involved projects (includes structural, utility work) owner must submit architectural plans, copies of permits and contractor agreements to the board for written approval prior to commencing work. If warranted, the board may seek the review and approval of an architect or engineer with related costs to be paid by owner.
3. If view is a consideration in project , require disclosure of proposed structure height and whether removal of trees is contemplated for better view.
4. All power tool operation must be accomplished either in the unit or off property unless authorized by the board in writing and provided there is no unreasonable objection from the neighbors.
5. Contractors are permitted to work only from 9:00 a.m. to 5:00 p.m. Monday through Saturdays. No work on Sundays.
6. All demolition and construction material shall be disposed of off property, not in HOA dumpsters.
7. Contractor shall clean up any affected common area daily.
8. Owner will provide adequate parking for contractor. Contractor may not use guest parking or block fire lanes.
9. Common utility (electrical, water, gas, etc.) interruption must be approved and coordinated by the board.
10. If landscaping renovation is proposed and the HOA has a landscape standard, a comprehensive plan should be submitted showing proposed changes.
11. Establish specific standards (brand, model, color) for paint color, roofing material, storm doors, screen doors, awnings and other common add-ons.

Since the desire to remodel can happen anytime as the spirit moves the remodeler, the board needs to be proactive in keeping owners informed of expectations. Publish the Remodeling Policy on the HOA website and reference it in all newsletters and periodic email updates. Since remodeling will happen, make sure you do all possible to direct a model outcome.   BACK

FCC Bans "Exclusivity Clauses"
In action taken October 31, 2007, the Federal Communications Commission ("FCC") unanimously adopted an Order banning the use of exclusivity clauses in contracts for the provision of video services to residential properties. This Order represents a reversal of an earlier Commission Order which found little evidence that exclusive contracts stifled competition. Previously, the FCC believed that exclusive contracts benefitted consumers because they allowed community associations and property owners to negotiate for lower rates and service improvements. However, the FCC reversed itself, because it now believes that banning the use of exclusivity clauses will foster more competition.

Specifically, the October 31, 2007 FCC Order provides as follows:

This Order is important for condominium and homeowners associations, because many associations currently have entered into bulk rate contracts with franchised cable operators or are considering entering into such bulk rate contracts. This Order provides that an association still has the authority to enter into such bulk

rate contracts, but also provides that such contracts may not include a provision that the cable company shall have exclusive access to the property, including the individual units or lots. Further, to the extent that any existing contracts provide that exclusive language, those provisions will be unenforceable.

The primary effect of this Order is that, although a homeowners association may still enter into bulk rate contracts with cable companies, and unit owners or lot owners will still be required to pay their share of any assessment for the provision of such services, an HOA owner will now have the authority to enter into additional cable contracts on their own. In other words, the Order will not affect an owner’s current obligations under the HOA’s existing contracts, but will provide owners the independent authority to contract for additional services on their own.

It is important to note that the FCC Order only applies to "building exclusivity" clauses, which prohibit access to the premises by a cable company. The Order does not apply to clauses that prohibit a cable company from using existing wiring on the premises ("wire exclusivity" clauses), and also does not apply to clauses that prohibit the marketing by other providers ("marketing exclusivity" clauses).

Further, the FCC Order only applies to video programming by a franchised cable operator. Therefore, this Order does not apply to the provision of telephone or internet services, nor does it apply to satellite providers or private, non-franchised cable providers, such as DIRECTV, Dish Network, etc.

To the extent that a homeowner association currently has or is considering entering into a bulk rate cable contract, It is recommended that the HOA board consult with legal counsel in order to determine whether any affected exclusivity clauses exist in such contracts and the legal effect of such clauses.

Information provided by Peter S. Sachs of Sach & Sax.    BACK

No Smoking Frontier
"My home is my castle." Maybe, maybe not, if you’re a resident in a homeowner association. After pushing through smoking bans in bars and restaurants, anti-smoking advocates have begun to set their sights on another target: HOAs.

These advocates have been predicting that it is only a matter of time before common wall HOAs bar smoking entirely, not just in common areas. In fact, in 2006, a Colorado court upheld an amendment to the Declaration of Condominium prohibiting smoking anywhere within the boundaries of the condominium property, including the individual condominium units.

Two condominium owners had complained that smoke seeped into their units from a unit occupied by heavy smokers. When the homeowner association unsuccessfully tried caulking, installing foam insulation, and altering the return air ducts to prevent smoke from entering the other units, three of the four unit owners approved an amendment prohibiting smoking anywhere on the condominium property.

The smokers sued, claiming that the HOA had acted capriciously, that it lacked the authority to prohibit legal activities within residential units and that it had not proven that secondhand smoke, rather than simply the smell of smoke, was actually seeping in the other units. They also claimed that the smoking ban violated the owner’s right to smoke within the confines of his private unit.

The trial judge rejected all of the smokers’ arguments, ruling that:

• The homeowner association’s efforts to mitigate the smoke before it enacted the amendment demonstrated that it had not acted "capriciously";

• The HOA properly based its authority to ban smoking on the Declaration’s anti-nuisance provision, which allows prohibiting any practice that interferes with the peaceful possession and proper use of the property by its resident; and

• Secondhand smoke qualifies as a nuisance and that whether there was actual smoke or simply a smoke smell is irrelevant.

As for the unit owners’ right to smoke in their own unit, the court offered that smoking is not a right protected by the Constitution. Furthermore, governmental jurisdictions have adopted laws designed to protect citizens from the adverse health effects of secondhand smoke in indoor areas.

It should be noted that the significance of the court decision is somewhat limited by the facts in this matter since the condominium was small and the building was older and, therefore, more susceptible to smoke seepage. Also, the unit owners had been complaining about the secondhand smoke for several years, and the homeowner association had undertaken extensive and unsuccessful efforts to address the problem before enacting the smoking ban.

However, given the growing number of people living in HOAs and the increasing willingness of nonsmokers to assert their right not to breathe secondhand smoke, there will almost certainly be more smoking disputes among members in the future. In fact, management companies and health activists recognize that there is a growing voluntary movement by HOAs to ban smoking which they predict will result in tens of thousands of units becoming smoke-free within years to come.

Will this decision and judicial reasoning open the door for other HOAs to enact similar smoking bans? The Colorado judge noted that there is plenty of medical evidence proving that secondhand smoke poses a health risk for nonsmokers, which is underscored by the adoption of laws in many states banning or restricting smoking in public places. In this lawsuit, the judge saw that the balance between the rights of smokers to indulge in smoking within the confines of their private homes and the rights of nonsmokers not to be harmed by secondhand smoke had tipped the scales of justice in the favor of the rights of nonsmokers.

Anti-smoking groups still have millions of dollars remaining from the class action settlements with tobacco companies to spend on campaigns against tobacco and secondhand smoke. Such anti-smoking campaigns have reached into California where two cities are considering comprehensive anti-smoking ordinances that would apply to all individual condominium units.

Not only will future cases continue to challenge HOA smoking bans, but HOAs that refuse to ban or restrict smoking may also face lawsuits by members who allege that they have been harmed by secondhand smoke and claim that the HOA has liability for the damages they have suffered.

The balancing act won’t be easy, but in the interest of resolving divisive conflicts and preserving a sense of community among residents, it will be essential. Board members should watch all of these comprehensive governmental smoking ban initiatives to see how far they go in requiring smoke-free condominium units.

By Attorney Daniel H. Craven of Gulf Shores, AL.   BACK