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Archive for the ‘HOA’ Category

Lions, Tigers, and… Peacocks? Oh My! How to Handle Requests for Emotional Support Animals

Posted on: April 16th, 2018

By: Christopher M. Curci

Many HOA’s with a “no pets” policy struggle to properly handle requests from unit owners to have emotional support animals at the property.  Governing Boards have to balance the needs of the unit owner making the request with the competing desire of other unit owners to enforce the Association’s “no pets” policy.  We are often asked questions such as, “Do we have to allow this?” “What information can we request from the unit owner?” and, “Can we impose limitations on where the animal can go?”  Complicating matters is that the law regarding emotional support animals is broadly written and largely unsettled by the courts.

To start, emotional support animals (or “ESA’s”) are different than service animals.  A service animal is a dog that has been specifically trained to perform tasks for an individual with a disability, such as a seeing eye dog.  By contrast, ESA’s provide emotional support and are not required to have any specific training.  Any animal can be considered an ESA.  In one extreme example, an airline passenger attempted to bring her emotional support peacock on an airplane.  This ruffled United Airlines feathers, who refused to allow the peacock on the plane.

The nuances of the law can be difficult to follow.  A unit owner is not required to produce a doctor’s note to verify his or her medical needs – even a letter from a social worker could suffice.  But, if a disability is “readily apparent,” then the Association cannot ask the unit owner to provide any documentation at all.  Further, while an HOA can adopt formal procedures for requesting an ESA, it cannot deny a unit owner’s request merely because he or she failed to follow those formal procedures.  The Association cannot charge a fee to the unit owner for having an ESA, but the unit owner is responsible for any financial damage caused by the animal.  Maybe the ESA can go in common areas, but maybe not.  Confused?  You should be.

There is no “one size fits all” answer to these questions.  We have successfully defended HOA’s that have denied requests for an ESA or have imposed various restrictions on where an ESA can go.  But, each situation is unique and depends on the specific facts and circumstances of the situation.  HOA’s should be mindful that ESA requests can be legal landmines if not handled properly.  The Department of Justice has fined HOA’s $25,000 – $45,000 for Fair Housing Act violations.  Lawsuits and fines can and should be avoided with proper legal advice.

Christopher M. Curci, Esq. is member of Freeman, Mathis, & Gary’s HOA Practice Group and regularly advises and defends HOA’s in housing related disputes.  He can be reached at [email protected] or by phone at 267-758-6013.

Homeowners’ Associations: Banning Short Term Rentals on Coastal Properties May Violate the California Coastal Act

Posted on: April 9th, 2018

By: Jeffrey R. Cluett

The California Court of Appeal overturned a denial of a preliminary injunction of a homeowners’ association resolution banning short term rentals (“STR”).  It found that appellants made a prima facie case that the ban violated the California Coastal Act, which requires a permit for any “development” that changes “the intensity of use or access to land in a coastal area.”  Greenfield v. Mandalay Shores Cmty. Ass’n (2018) 2018 Cal.App.LEXIS 258, **1-2.

Mandalay Shores is a development in the Oxnard Coastal Zone.  Id., *2.  For decades, non-residents have rented homes there on a short-term basis.  Id.  In June 2016, Mandalay Shores Community Association (“Association”) adopted a resolution banning STRs for less than 30 days.  Id. at *3.  In August 2016, the Coastal Commission advised the Association that the ban was a “development” under the Coastal Act requiring a coastal development permit.  Thereafter, the Greenfields, who own a residence at Mandalay Shores, sued for declaratory and injunctive relief.  Id. at *4.  The trial court denied the Greenfields’ ex parte application for a temporary restraining order and motion for preliminary injunction, finding that the STR ban was not a “development” within the California Coastal Act.   Id. at *5.

The Court of Appeal disagreed.  It noted that the California Coastal Act intends to “[m]aximize public access to and along the coast and maximize public recreational opportunities to the coastal zone consistent with sound resources conservation principles and constitutionally protected right of property owners.”  Id. (citation omitted).  “Development” includes any change in the density or intensity of use of the land.  Id.  The courts interpret “development” expansively to respect the Coastal Act’s mandate that it be liberally construed.  Id. at **5-6.  Accordingly, courts have held that closing and locking a gate that is usually open to the public is a “development,” as is posting “no trespassing” signs on a parcel used to access the beach.  Id. at 6.

The court found that the Greenfields made a prima facie showing to issue a preliminary injunction staying enforcement of the STR ban until trial.  Id. at *8.  The court therefore ordered the trial court to enter a new order granting appellant’s motion for a preliminary injunction.  Id.  The key takeaway for Associations with homes with beach access, therefore, is that changing regulations concerning who can rent those homes may fall afoul of the California Coastal Act.

This case is set for a Status Conference on May 21, 2018, where it will presumably be set for trial; the November 6, 2017 trial had been vacated pending appeal.  At trial, the case will turn on whether the STR ban is a “development” that would result in “a change in intensity of use or access.”

Despite the Court of Appeals ruling, the Association could yet prevail.  With the ban, residents and long-term renters would have beach access.  Therefore, that precluding short-term renters from renting may not be a “development” that “results in a change in the intensity of use or access to land in a coastal area” because residents and long-term renters would have beach access.  The question, therefore, is whether the California Coastal Act allows an Association to determine which people may have beach access.  Because this is a different situation from posting “no trespassing” signs or closing and locking a gate, which seeks to bar all beach access, the court may come to a different conclusion.

If you have any questions or would like more information, please contact Jeff Cluett at [email protected].

Unit Owners Denied Easement To Access Community Dock

Posted on: February 22nd, 2018

By: Michael G. Kouskoutis

In Goldman v. Lustig, a Florida townhome unit owner (Lustig) sought an injunction to prohibit neighboring unit owners from crossing his yard to access a dock located behind his unit.  The unit owners had rights to the dock pursuant to an assignment between Lustig and the Association, in which Lustig severed his riparian rights for the benefit of neighboring unit owners.  Lustig conceded that portions of the dock belonged to all unit owners and that the only means to access the shared dock was by a pier located in his backyard, yet still argued that unit owners had no right to enter his property.

The unit owners urged the court to recognize an implied easement by necessity, which grants an easement over another’s land “where there is no other reasonable and practicable way of egress, or ingress” to shared property.  In siding with Lustig, the court stated that “an easement by necessity requires a showing of an absolute necessity.”  The court reasoned that, since the unit owners live on waterfront property, “they can find an alternate means of accessing the dock, such as by constructing their own access pier, which would be a ‘reasonable and practicable way of egress, or ingress.’”

Community associations should be careful not to overlook issues of access when providing shared property, and should be mindful of the onerous burden courts may impose prior to granting implied easements.

If you have any questions or would like more information, please contact Michael Kouskoutis at [email protected].

Enforcing an HOA Covenant

Posted on: February 12th, 2018

By: Jan S. Sigman

Many homes built in the metro Atlanta area in the past 20 years are located in subdivisions that have a homeowner’s association (HOA). In 1994, Georgia adopted the Property Owner’s Association Act.  If an HOA elects to become subject to the Act, then the covenants passed by the HOA are enforceable against all the current property owners in the association, as well as subsequent purchasers into the community. Covenants may include restrictions on the development and use of the property.

In Great Water Lanier v. Summer Crest at Four Seasons on Lanier Homeowners Ass’n, Case No. A17A1810 (January 2, 2018), the Georgia Court of Appeals enforced various HOA covenants on a subdivision plat where Great Water accepted but did not sign the warranty deed. On cross motions for summary judgment, the trial court held the parcel was subject to the HOA covenants.  Great Water appealed, but the Court of Appeals affirmed the trial court’s ruling.  By accepting the deed, the Court of Appeals held, Great Water voluntarily consented to be bound by the HOA covenants. This case illustrates the need for buyers to conduct due diligence into HOA covenants that could encumber the property.

Jan Seanor Sigman is licensed to practice in Georgia and represents contractors and design professionals in all construction matters including contract negotiations, payment disputes and delays, contract terminations, and defective work. If you have any questions or would like more information, please contact Jan Seanor Sigman at [email protected].

Show Me the Money! Georgia Court of Appeals Affirms HOA’s Right to Recover Attorneys Fees

Posted on: January 31st, 2018

By: Cheryl H. Shaw

Community associations are funded through assessments paid by property owners. When owners fail to pay, the association’s ability to meet financial obligations and provide for upkeep of the community is diminished.  Common area repairs and replacements don’t go away just because the association’s bank account is lean, and maintenance projects get more expensive when delayed. Owners who pay their assessments end up subsidizing those who do not, while delinquent owners continue to enjoy the benefits of the association.  Pursuing delinquent property owners in court can be a long, arduous, and expensive process. However, the Georgia Court of Appeals recently affirmed an association’s right to recover attorney fees incurred in that effort, making the process a little less painful.

In Summit at Scarborough Homeowners Ass’n v. Williams, 343 Ga. App. 343 (2017), an HOA sought to recover its court costs and attorney fees after obtaining judgment against a property owner for unpaid annual assessments. The trial court denied the motion and the HOA appealed, asserting it was entitled to the fees under a provision of the recorded Declaration of Covenants, Conditions, Restrictions and Easements which stated:

The annual and special assessments [imposed by the Declaration], together with late charges, simple interest at the rate of twelve percent (12%) per annum, court costs, and attorneys’ fees incurred to enforce or collect such assessments, shall be an equitable charge and a continuing lien upon the property against which each such assessment is made and shall also be the personal obligation of the person who is the record owner of the property at the time the assessment fell due.

Siding with the HOA and reversing the trial court’s order, the Court of Appeals reiterated that under Georgia law, the Declaration of a homeowners’ association is considered a binding contract: “Where parties contract for the recovery of attorney fees, a trial court does not have the authority to alter that arrangement unless it is prohibited by statute.”  Finding no statute that prohibited recovery of fees in this context, the Court held the Declaration obligated the property owner to pay the HOA the reasonable attorney fees incurred in its collection efforts.  The Court reversed the trial court’s order and remanded the case with instructions to enter an award of costs and fees consistent with the Declaration. Id.

The Williams case confirms Georgia courts will enforce an HOA’s right to recover attorney fees if clearly set forth in the recorded declaration. Making sure your association has the right language in its governing documents is critical.  Cheryl H. Shaw is licensed in Georgia and has successfully represented community associations and property management companies in all manner of claims, including consultation concerning governing documents and daily business operations.  If you have questions or would like more information, please contact Ms. Shaw at [email protected].