I was out on a walk one day when I noticed a turkey in my neighborhood—it was roaming free in an unfenced yard. I saw the turkey during the first part of fall and noticed that the turkey remained after Thanksgiving (admittedly, I am not certain it's the same turkey, but I believe so). At one point, I wondered if the turkey was a pet. read more

Typically, in order to trigger a Director and Officer's (D&O) coverage, a claim must be "made" within the policy period. This is commonly referred to as a "claims made" policy. Many D&O policies also require that the claim be reported during the policy period. These are commonly referred to as "claims made and reported" policies. read more

Last summer, I blogged about a condominium association in Florida whose board inexplicably delayed a resident's request to keep a service animal at the condominium. Although the resident was clearly confined to a wheelchair, the Board required unnecessarily extensive "proof" of the resident's disability, and, even after they received it, delayed granting an exception to the association's pet restrictions. These actions were deemed to be unreasonable. You can read about it here: http://www.barkermartin.com/blog/condo-hoa-blog/post/accommodating-accommodations. In that blog post, I provided several simple tips to guide a board's decision-making when confronted with a request for an accommodation or modification under the FHA. While the FHA may be rather complicated, complying with requests for reasonable accommodations due to disability should not be. Yet, I just read about another association that got it very wrong. The facts of McHale v. Water's Edge Association, No. 1:14-cv-23381-UU (S.D. Fla. Dec. 1, 2014), read like an FHA "don'ts" list. Ms. McHale, a resident who suffers from mental and physical disabilities, requested permission to keep an assistance animal despite the condominium's no-pets policy. She provided requested documentation substantiating her disability and need for the emotional support animal to fully use and enjoy the unit. And then, the alleged bad behavior began: Ms. McHale claims she was verbally harassed by the association president, received repeated notices of violations of the no pet policy, and was asked to provide sworn testimony from her treating psychiatrist as to her disabilities and further evidence she needed the animal (which she provided). Moreover, the association enacted new pet rules that required pets to be in carriers when not in the unit, and that laundry facilities could not be used for pet bedding. Not surprisingly, Ms. McHale sued the association alleging the above facts and violations of the FHA, among other things. Preliminary motions have were heard, and the court found the association's actions amounted to a refusal to make the requested accommodation, which allowed the case to go to trial. While it appears the parties recently reached a confidential settlement, this lawsuit illustrates the types of factors that can land an association in court. Avoiding this type of litigation should not be that difficult. Association Boards should remember that there is more to complying with the FHA than simply allowing a person to keep an animal they otherwise would be prevented from keeping. If you harass the person about the animal, if you enact or enforce rules that make it burdensome for the disabled person to keep the animal, or if you make the application process difficult or too lengthy, you run the risk of violating the FHA for refusal to make reasonable accommodations, or constructive denial. This case, like the Sabal Palm case I discussed in June, seemingly could have been avoided by a little education, and a little common sense. If we can assist with either, please give us a call! read more

UCIOA Friday, February 20 was the last day for SB 5263, otherwise known as the Washington version of the Uniform Common Interest Ownership Act or "UCIOA" to get out of the Senate committee of origin, the Committee on Financial Institutions and Insurance. Having worked on the committee that was adapting the uniform language for use in Washington (the "WaCIOA" committee) for years, I have mixed feelings about the failure of the bill to pass. Obviously, it is frustrating to have worked so hard on something only to see it die in the committee of origin. On the other hand, it is my opinion that the bill's flaws outweighed its overall benefit to future community association homeowners in Washington and therefore, it's good it didn't pass this time around. Hopefully, homeowners can make their voices heard on those issues in the interim and a more consumer-protective version of the bill can be introduced next year. In addition to providing significant developer benefits, the original version of UCIOA acknowledged that there is no reason for the disparate treatment of common interest communities ("CICs") by treating all such communities, including condominiums, "non-condo" homeowners associations, cooperatives and the new "miscellaneous communities" alike. The Washington version did the same – at least for the development and governance issues contained in Articles I, II and III. The Washington version (WaCIOA) would also have provided significant consumer benefits to homeowners in Washington. Primarily, WaCIOA would have corrected ambiguous language in current acts that led to the devastating recent judicial opinions in Filmore (over 90% approval for "change in use" required), Sudden Valley (assessments not governed by budget approval process in HOAs) and Club Envy (one-year statute of limitation for challenge of amendments does not apply) The bill would also have provided non-condo CICs with the significant additional governance tools currently only available to condominiums, such as default amendment percentages and similar provisions. In terms of consumer protection provisions, WaCIOA's provisions required that resale certificates and public offering statements be made available to almost all common interest community purchasers with streamlined disclosures, making it easier for owners to understand what they were purchasing. Unfortunately, the original bill still had some very serious flaws. First, despite the fact that one of the main components of a uniform or "model" act is the recognition that all CICs are essentially the same, the bill departed from the uniform act in providing only condominiums with implied and express warranties of quality. In theory, the bill was intended to hold the "status quo" in Washington by providing these warranties only to condos, yet subtle changes in the language affecting the time limit to bring claims under the warranties and how warranties can be waived would likely have allowed developers to avoid liability that they currently have under the Condo Act. Moreover, the bill contained other provisions inconsistent with the model act that would have been detrimental to homeowners in Washington, including phase-out of the requirement that developers provide public offering statements to buyers, allowing appointment of board members by people other than owners, delay of the collection of assessments from developer-owned units, and the allowance of pre-sales so far in advance of construction of units that the potential for abuse is massive. Moreover, after the bill was introduced, the two primary consumer protections remaining in the bill were stripped by anti-consumer public interests. First, the banking lobby insisted upon deleting superpriority lien provisions for any CICs other than condos, which actually would have invalidated any current HOA's superpriority contained within its governing documents. Second, the building industry further weakened the warranty protections, again ensuring that only condos enjoyed any statutory warranty protection, and deleted provisions that would allow developers to except advertising materials from claims of misrepresentation. Ultimately, the bill failed to get out of committee for reasons that appear unrelated to the stripping of the consumer protections or CAI's position on the bill, so it is unclear whether the legislators who supported the bill this year will be willing to run it again next year. If it is to be addressed again, it is important to remember that the purpose of adopting a model act is to take advantage of the balance achieved by many nationwide. And while it certainly needs to be adapted to fit Washington law, UCIOA carefully balances the rights of developers, lenders, governing boards and owners. Any decrease in the rights of homeowners upsets that balance. Hopefully, the legislature can pass a more balanced bill in the future. read more

What is radon? Radon is a radioactive gas that comes from the natural decay and breakdown of uranium that is found in nearly all soils. The United States Environmental Protection Agency offers a substantial amount of information relating to radon, its health risks, and radon mitigation here: http://www.epa.gov/radon/index.html. Who is responsible for mitigating radon when it is found to be at unsafe levels in a community association? Of course, it depends. Although radon testing recently has become fairly commonplace in real estate transactions, case law relating to radon mitigation in community associations has not yet percolated from the courts. read more