Legal Lessons Learned
Here are some court cases that are educational for all HOAs:

No Personal Improvements in the Common Area. A Virginia homeowner association discovered that some members had constructed fences in the common area and refused access into fenced areas by other HOA members and service providers. The fence builders claimed a prior board gave permission but could not show written proof of it. The HOA sued for removal of the fences and the court ruled in their favor stating no owner had the right to build in the common area. The court granted the HOA the right to remove the fence or have the offender move the fence, both at the offender’s expense. (Summit Homeowners Assn v. Yari)

Special Assessment Payment Responsibility. An owner in a New Jersey condominium didn’t want to pay a special assessment to replace second story balconies since he lived on a first floor patio. The HOA said it had responsibility to maintain balconies which were limited common area and all owners shared in the expenses. The owner sued for a refund, the court ruled the HOA had maintenance responsibility and it wouldn’t interfere with how the costs were distributed. (Davis v. Metuchen Gardens Condominium)

Responsibility for Member Injury. The widow of a California homeowner who died while trying to fix a sewer pipe sued the HOA. The homeowner and two other men had used a backhoe to dig a twelve foot deep by fifteen foot wide trench to uncover the broken pipe. Failing to shore up the trench walls, they caved in and killed him and another man. The widow claimed the HOA was negligent in failing to protect the man from danger posed by the ditch. The court ruled in favor of the HOA stating the association had no responsibility to protect a member from an obvious danger that he helped create and chose to ignore. (Heffernan v. Reinhold)    BACK

Pool Rules for Fools
Did you ever read the standard set of state mandated pool rules? They are meant to address health and safety considerations and are often directed at children (or childish adults). For the most part the rules are, like, "Duh, who doesn’t know that?" But there is something about playing in water that brings out silly, loud and obnoxious behavior in some.

Homeowners associations have additional challenges when it comes to the pool. Consider these all too common occurrences: One of the big bugaboos is certain "guests" that use the pool. As it turns out, these folks may not be guests at all, just gate crashers. Then there are the former residents that feel right at home coming back to take advantage of the amenities. Then there are the grandkids who cavort from dawn’s early light to the setting of the sun...but where are their grandparents? How about those midnight swims "a la natural"? And don’t forget Rover...he’s a water spaniel!

Trying to control some kinds of pool behavior can be downright maddening. But fortunately, as a private community, the HOA can set additional rules that fit with the lifestyle of the residents and to protect the viability of the facility and privacy of the members. Since this isn’t a public facility, and the HOA does have legal liability for what goes on there, it’s entirely appropriate to make rules when necessary. These rules can carry penalties imposed by the HOA. One of the most effective penalties is restricting access to the pool backed up by monetary fines if the restriction is violated. Holding residents directly responsible for the actions of their guests is essential to minimize policing.

Not all bad pool behavior can be controlled by rules or penalties. Don’t overlook the use of police if dealing with trespassers or drunk and disorderly behavior. Professional law enforcement does have its place.

With pool season coming on, consider adopting a special set of rules if necessary. Rather than have them carry an authoritarian tone, preface them with a statement like, "This pool is here for the enjoyment of all residents. The following activities disrupt that common enjoyment. This is your pool. Please do your part to keep the peace." When it comes to rules at the pool, let the pool rule.    BACK

Satellite Dish 101
As many homeowner association boards will tell you, satellite dishes continue to be a hot issue. In 1996, the Federal communications commission (FCC) adopted detailed regulations which dictated what a board can and cannot do in restricting satellite dishes and other multi-point distribution systems. While many HOAs have adopted rules and regulations which incorporate the FCC regulations, the question still arises as to how the board can enforce those restrictions when an owner installs a device violating those rules.

The current FCC guidelines prohibit HOAs from unreasonably restricting television antenna and satellite dishes that are one meter or less in diameter. This rule applies only to those areas where a unit owner has a direct or indirect ownership interest and exclusive use or control. In the case of condominiums, this rule would essentially apply to the limited common elements, such as balconies, decks or patios. An HOA may prohibit or restrict the devices on the common areas such as the roof, exterior portions of the building, or on the common grounds.

Under the guidelines, a satellite dish restriction is valid unless it:

1. Impairs the reception of an acceptable quality signal,
2. Unreasonably prevents or delays installation, maintenance or use, or
3. Unreasonably increases the cost of installing, maintaining or use.

Let’s assume that a board has adopted a rule which prohibits the installation of satellite dishes on the common area roof and an owner has one installed there anyway. The HOA should have a schedule of fines which includes satellite dish placement. An initial fine of, say $25, plus $5/day is usually a powerful incentive for most violators to comply.

What about the HOA simply having the offending dish removed? The FCC regulations are very stringent on this matter so it’s advisable, if the owner refuses to remove the dish, to file suit to have it removed by court order. This prevents the owner from claiming that the HOA remove their personal property without authorization. Further, the Board has a judge’s decision that it acted in a reasonable way. And, the HOA is entitled to recover its legal fees in the event it is forced to file a lawsuit.

Even though the FCC procedure complicates the issue, be assured that the HOA can still have substantial control over dish placement. Since this is an important curb appeal issue that impacts market value, the board should establish a clear placement and fine policy to avoid the many likely challenges in the future.   BACK

Pool Rule Prejudice
Swimming pools and children. For some homeowner associations (HOA), the two do not always go together peaceably. Many HOAs wishing to create "adults only" pool time have adopted rules that prohibit children from the swimming pool during certain times and in the process have violated the Fair Housing Amendments Act of 1988 ("the Act").

The Act was amended in 1988 to prohibit discrimination against any person in their use of a dwelling based on their "familial status." The Act defines "familial status" as a situation where one or more minors are domiciled with a parent, legal guardian, or the designee of a parent or guardian. The United States Department of Housing and Urban Development ("HUD") is the governmental agency responsible for implementing the provisions of the Act. HUD adopts regulations to clarify the prohibited acts of discrimination in housing. These regulations include a prohibition against rules that have the effect of restricting a resident’s use of the recreational facilities associated with a dwelling based on their familial status. HUD and various cases have found that the Act clearly applies to HOA swimming pools.

If a court finds that an HOA has adopted rules that violate the Act, it will be responsible for the costs of defending against any such claims and may be responsible for paying monetary damages (actual and punitive), plus the attorneys’ fees of the complaining resident. Therefore, it is in the HOA’s best interests to have legal counsel review its pool rules to determine whether they violate the Act. Once it has been discovered that a rule potentially violates the act, that rule must be abandoned or modified. It is not sufficient to take the issue under advisement or investigation.

A quick glance at most HOA rules regarding swimming pools will likely uncover at least one rule prohibited by the Act. These include certain rules based on age, restrictions against children wearing diapers in the pool, adult-only pools and adult-only hours or swim times. These rules are discriminatory under the Act as they appear to discriminate against families with children by not providing equal access to the swimming pool to all residents. Over the past decade, a number of court decisions have applied the provisions of the Act to HOA pool rules and regulations. The cases have held that restrictions on children’s use of a swimming pool, where those same restrictions do not apply to other adult residents, are prima facie cases of discrimination under the Act.

Courts have found that the only way an HOA may avoid liability for rules that discriminate against children is to show two things: (1) that the pool rule is rooted in a "compelling business necessity," and (2) that the rule constitutes the "least restrictive means" to achieve the desired effect. In the context of swimming pools, concerns about safety and sanitation typically prompt HOAs to adopt rules that limit children’s use of the pool. Of course, keeping the pool safe and sanitary presents a compelling business necessity, but the Act requires that HOAs come up with more inventive ways to address their safety and sanitation concerns than simply forbidding minors under a certain age or non-toilet trained children from using the pool.

To better understand what types of pool rules can be validly adopted, a review of several cases is helpful.

Article reprinted with permission from Orten & Hindman.   BACK

Where's The Beef?
A common scenario: A new owner moves into the HOA and receives a demand letter informing of an architectural violation on the newly purchased property. Further, if it is not removed within 30 days, there will be a per day fine until the matter is resolved. How should the new owner handle this kind of problem?

Many HOAs have some form of architectural requirements which are often enforced by an architectural review committee (ARC). The idea is to keep some semblance of uniformity and balance within the association, owners must receive advance approval before any exterior work is done. Design review within an association has at least two purposes: to establish and preserve a harmonious design for a community and to protect the value of the property.

One might disagree with the need for external uniformity, but if the governing documents require it, it is binding on the members. You should read all of your association documents carefully to learn the scope and purpose of the architectural review committee.

There has been much litigation in the area of architectural controls. The courts have made it clear that covenants are valid and enforceable provided there are clear policy guidelines establishing the overall standards. For example, it probably will not be acceptable merely to say that owners may not make changes to the exterior without first obtaining the written approval of the board or the architectural control committee.

If no specific guidelines have been developed, neither the owner nor the ARC will have any objective standards by which to judge the validity of the proposed external change. And without such standards, even the most well-intentioned ARC can be accused of being arbitrary. The ARC cannot be a dictator by rendering unreasonable decisions. The Board must establish specific guidelines. If those rules are not already in the governing documents, they should be drafted, approved in accordance with your legal documents and the laws of your state.

There are several valid defenses by an owner when the HOA seeks enforcement of the architectural standards including:

The Board should try to work out an amicable resolution for alleged violations. In the final analysis, Boards and their ARCs must be firm but reasonable and flexible. If the owner has a valid defense, the Board should consider dropping the claim. The Board may also want to amend or abolish certain architectural controls which may not have a place in today’s world. By Benny L. Kass   BACK

Slow D-O-W-N!
Here he comes again! That #!*%! kid’s gonna kill someone if he doesn’t slow down! Traffic speed is something many HOAs grapple with. Since HOA streets tend to be narrower and traffic more compact, normal street speed is often way too fast. Some HOAs have resorted to traffic committees or rent-a-cops who lay speeding tickets on offenders. But this clearly only works on residents. Guests and those just passing through merrily shred the tickets.

Other HOAs install axle jolting speed bumps that infuriate everyone, guilty and innocence alike, and create a real safety hazard for bicycles and motorcycle riders.

Posting SLOW DOWN signs has some positive effect. Still others post Burma Shave style signs (On Our Streets...Please Drive Slow...And Let Our...Little Shavers Grow). But, the speeders continue to speed.

Some municipalities have hit upon an effective way of slowing traffic down without the bone jarring effects of traditional speed bumps and the labor intensity of traffic patrols. Cities like Portland Oregon have enacted "traffic calming zones" which use several passive, yet effective techniques. One is the Traffic Circle (aka "roundabout" in England). Essentially, a circular concrete island is constructed in the intersection which forces traffic to slow to get around it. The island can include an attractive planting area although strategically placed boulders help ensure that the SUVs don’t roll over it.

Another calming device is a special speed bump that looks like it’s on steroids. Instead of a one foot blip, the speed hump spans the width of the street and extends from 14 to 22 feet deep. The 14 foot variety moderates traffic to 25 MPH while the 22 footer moderates speed to 30 MPH. These monstruous bumps are usually placed in a series several hundred feet apart to ensure that traffic remains moderated through the neighborhood. The cost of each modified bump is $1000-1500.

One important consideration to calming traffic is emergency vehicle access. Fire response and ambulances need to get where they’re going quickly and seconds of delay can literally make the difference between life and death. Whatever traffic calming solution your HOA may be considering should cleared by emergency response authorities.

Another extremely important consideration is the impact of traffic calming devices on your residents. Many devices have the effect of locking residents in. In effect, by trying to slow down a few speeders, a gauntlet must be run by every resident that wants to come and go. Before any of these speed control techniques are implemented, be sure to discuss them with the residents and make sure you have majority approval. Otherwise, you are likely to create a firestorm.

Vroom...vroom....screeeeech! Speed and vehicles seem to go together. If your HOA is experiencing ongoing speeding and traffic safety problems, maybe it’s time to consider some of these alternatives.

For more on the technology and philosophy behind modified speed bumps see: www.trans.ci.portland.or.us/trafficcalming   BACK

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