The Fair Housing Act (FHA) protects certain disabled individuals using service animals. Three tests must be met: the person must have a disability (as defined by the Act); the animal must serve a function directly related to the person's disability; the request to have the service animal must be reasonable. FHA does not protect individuals who do not have disabilities or situations in which individuals train animals for use by people other than themselves.

FHA defines a person with a disability as an individual who has a physical or mental impairment that substantially limits one or more major life activities or is regarded as having an impairment. It is not necessary that the disability be an obvious one. Disability is defined broadly.

The Act generally does not apply to single family residences sold or rented by an individual owner provided that the owner does not own more than three single family houses at any one time, has not sold more than one non-owner occupied house within a 24 month period and that the dwelling is sold or rented without advertising or the assistance of someone in the business of selling or renting dwellings. (Whew! Did you get all that?)

Dwelling is defined by FHA as any building which is intended for occupancy as a residence by one or more families. Condominiums and cooperatives are considered dwellings under this definition and are subject to the Act. Restrictive pet policies must allow qualified persons with a disability to be accompanied by a service animal under FHA’s "reasonable accommodation" rules.

Reasonable accommodations are modifications that are practical and feasible. An example is modifying no-pet policies to accommodate a person with a disability to have a service animal. Any individual requesting such may be asked to provide reliable professional documentation confirming the disability and that the accommodation is necessary.

The FHA recognizes that service animals are necessary and does not categorize them as "pets." Service animals, then, cannot be subjected to "pet rules" that may be applied to non service animals. For example, service animals cannot be subject to size or weight restrictions, excluded from areas where people are generally welcome or restricted to only a particular door or elevator.

Individuals with disabilities are solely responsible for the conduct of their service animals, and the association has recourse if the resident fails to satisfy this obligation. For example, the resident is responsible for damage to property and control of barking. Service animals that bite or otherwise violate animal control laws can be usually reported to local animal control or police (check local or state laws for exceptions).

HOAs have more latitude than federal or residential rental properties in how service animal matters are handled. But they aren’t exempt. As long as the Board follows the "reasonable accommodation" guidelines, there should be no major conflict.  Excerpts from article by Tammi Bornstein and Susan L. Duncan, Delta Society National Service Dog Center    BACK

Synthetic Stucco (EIFS) Verdict
The nation's largest synthetic stucco manufacturer and one of its distributors must pay $2.5 million to 61 local condominium owners whose homes have been rotting because of a defective product, a Norfolk judge ruled.

Norfolk Circuit Judge Joseph A. Leafe found that Dryvit Inc., the nation's largest manufacturer of the material, knew its product was defective but sold it anyway. Leafe ordered the company and its distributor, Bishop Wall Systems Inc., to share in the $6.8 million repair costs identified in the suit.

"We hope that it's a wake-up call for this industry," said Auley M. Crouch III, one of three lawyers representing the condo owners. "This is the first time in the United States that there has been a determination by a judge or jury that this product is defective."

The plaintiffs argued that Dryvit and its distributor sold a product known to trap moisture inside wood-framed buildings, contributing to rot, mold, mildew and insect infestation. The product, called "barrier" EIFS (Exterior Insulation and Finish Systems), does not allow moisture to escape once it gets inside the structure, usually through areas around windows, doors, roofs and other seams.

The manufacturer insists its product is sound. Instead, they blame builders, subcontractors and homeowners for failing to install, seal and properly maintain the siding. Attorneys for Dryvit Inc. declined to comment Tuesday.

The money awarded will be used to offset repair costs to 61 units in the Spyglass section of the Bay Point Condominiums. It's not clear how the money will be divided, but it will fall short of the total costs, the lawyers said.

Court testimony revealed that the damage at the Spyglass units, which were built in 1995, included water intrusion, rotted studs and sheathing, ants, mold, mildew, slugs and termites behind some of the 16 samples taken.

P. Lee Starkey, a resident of the Spyglass section since April 1996, said the court victory was important financially, but just as important because the judge determined the EIFS was defective. "We're most pleased," Starkey said Tuesday. "Of course, we recognize that it will go to appeal, but we have every confidence that it will hold up on appeal."

In October, the condo association settled with a builder of the East Ocean View complex for $1.4 million after 2½ years of litigation. "From the evidence presented, it is clear to this Court that Dryvit's Outsulation EIFS system was defective when purchased" by the builder, Leafe's ruling said.

Rhine, who said he's already working on similar cases in Virginia Beach, said he hopes the judge's findings will persuade Dryvit and other manufacturers of synthetic stucco to reach agreements with other homeowners in similar situations. "This product is defective," Rhine said. "These homeowners have been damaged. They're not trying to make money. They're just trying to be reimbursed for the cost of repair. All the money that has been spent fighting this battle could have fixed this problem. We hope that this is going to bring some rational settlement discussions."  By Jason Skog, The Virginian-Pilot      BACK

Banning Home Businesses
Homeowner associations have a growing presence of home businesses in the community. Telephone and internet technology has made doing business from home cost effective, efficient and practical. However, some HOAs still struggle with antiquated bylaws that restrict home businesses. Those old restrictions are painted with a broad brush and often don’t key in on the real issues that make home businesses offensive: traffic, noise, signs, odors, deliveries and parking.

Some home office may generate some or all of these issues and complicate life for the neighbors. A home business that generates lots of walk-ins, vehicle traffic or noise is just not compatible with residential settings. Day care centers are a good example of this. Any business that inventories and ships large amounts of products doesn’t fit either. Some communities actually restrict garage use to vehicle parking to prevent inventory operations.

The restriction of home businesses is almost always driven by the disruptive nature of the business. For businesses that are less intrusive, home basing offers some marvelous benefits to the owner. Consider the efficiencies. A common commute of ½ hour each way means 10 days a year just getting there and back. Based on a 20 mile round trip and IRS mileage deduction, the commute costs almost $1600 a year, not to mention the parking tolls and tickets. Consider the average 1½ hours a day spent just preparing for work. That’s another 16 days a year. Together, that’s 26 days worth of wasted time without even considering fuel emission damage to the ozone layer and wardrobe cost.

Rather than be hard line on the issue, if home businesses are a reality at your homeowner association, consider permitting low impact businesses. They are probably there already and no one really cares that they are. Instead, focus on the disruptive byproducts of certain home businesses. That way, you focus on real problems.      BACK

Dis’n the Satellite Dish
Satellite dishes have long been source of contention in homeowner associations. Many HOAs prior to 1996 had bans on them in their governing documents which made the issue moot. However, the FCC (Federal Communication Commission) made those bans all illegal in 1996.

That year, the FCC determined that receiving satellite signals was, apparently, a basic right like free speech. Their logic was fueled by a massive lobbying effort by the satellite dish industry. The regulations produced in 1996 were very strict and essentially prohibited HOAs from interfering with these installations. And, to no one’s surprise, dishes sprouted like fungus on the building roofs, walls, eaves and fences.

Due to the many complaints from HOAs, the FCC agreed to soften the rules in 1999. Officials were convinced that owner rights hinged on ability to receive a clear signal and the HOAs rights hinged on curb appeal considerations. Thus, a compromise was struck. Some of the changes approved by the FCC include:

1) HOAs are allowed to restrict installations where there is a "legitimate safety objective."
2) HOAs may require permits when there is a historic preservation objective.
3) HOAs may impose painting requirements so long as they do not impair reception.
4) HOAs may mandate the location of dishes provided that "acceptable quality signals" can be received.
5) Condo residents may install dishes on balconies and patios where they have exclusive use.
6) HOAs may prohibit installation of individual dishes if the association installs a central dish system which provides the same service or provider as the owner would have chosen; provide signal quality at least as good as what would be received; the cost for installation, use and maintenance of the central system must not exceed the cost of an individual dish; and the system must not unreasonably delay reception. The association must reimburse an owner if it requires the removal of an existing dish in favor of a central system.
7) Renters have the same rights as owners in these matters.

If there are still any homeowner associations out there with satellite dish bans, it’s time to clean up the illegal language and replace it with something like: "Satellite dish and antenna installations are subject to FCC regulations and the rights afforded to homeowner associations to control their location. See the Board or Manager for more details before installing one."

Current regulations allow reasonable control to HOAs in most cases. In coming years, new technology will reduce the size of dishes even further or eliminate them entirely. Until then, do as Big Brother requires. Don’t get caught dis’n the dish.   BACK

Pets That Wander
One of issues that often vex a community are pet owners that feel their pets are not subject reasonable rules of restraint. To them, animals wandering about is a natural thing. To others, it’s maddening. If dogs roam the common area, there is usually an enforcement action. But, then again, dogs are relatively easy to catch.

But since cats don't bark or bite, they are easier to overlook. But they do damage to the common area and cause disturbances. Cats often use planting beds as litter boxes causing offensive smell and unsanitary conditions. Male cats fight and cause middle of the night disturbances. They wreak havoc around bird feeders. Some folks are allergic to cat hair and dander.

Tracking cats is difficult because cat owners often don't license or tag their pets. Also, much of cat wandering is done nocturnally. And non-resident cats can roam the common area just as easily as resident ones.

When it comes to enforcing pet rules, it’s important to understand that pets are considered family members. This means that pet owners are often very sensitive to criticism. Violation Notices should stress concern for the pet’s safety as much as the rights of the other community members. This helps balance the issue for many pet owners.

Repeated notices and reminder will have a positive effect for most. For the harder cases, tougher measures like fining, trapping or chemical repellents may need to be considered as a last resort.

All pets that wander are not lost. To make them welcome members of the community, remind their owners of the need for restraint. Then there’ll less need to wonder if they wander.       BACK

HOA ADA
The ADA (Americans with Disabilities Act) required that extensive and expensive alterations become standard in certain commercial and residential buildings. Many are required to have wider doors, special bathrooms, ramps, handrails, handicap parking and a variety of other features. So, how does this all apply to a homeowner association?

Consider a resident who moves in and wants accessible parking. As a result of the federal Fair Housing Amendments Act (FHAA), homeowner associations are required to determine and provide a "reasonable accommodation" to disabled residents when requested. According to the FHAA, it is unlawful "to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap..." This prohibition on discrimination also makes it unlawful to refuse "to make reasonable accommodations in rules, policies, practices, or services, when such may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling."

In the case of Gittleman v.Woodhaven Condominium Association, the plaintiff asked for a designated parking space due to his disability. The HOA argued that it was unable to grant his request because the master deed said parking spaces were common elements for the non-exclusive use of all unit owners.

The court, however, found that under federal housing law, the HOA is "duty bound to: (1) avoid enforcing provisions of the master deed that have discriminatory effects; and (2) regulate the use of the common elements so as to comply with the requirements of the FHAA." Therefore, the HOA was found guilty of discrimination under the FHAA’s guidelines.

The most important thing an HOA Board can do when faced with such a request is to respond promptly in writing that it will investigate the matter. Then, review the governing documents and determine if the parking is designated a common element, limited common element, individually owned or some combination. Finally, the Board should work with legal counsel to properly address the request. By Pamela J. Park of Kovitz Shifrin Nesbit      BACK