Cockroaches, Fires and Grossly Offensive Odors – Hoarding Affects Everyone in a Condominium

April 25, 2012

By Curtis G. Kimble.

It seems to be coming up more and more often – hoarding and the problems it causes in condominiums and other attached housing.  One condominium association I recently spoke with has a unit owner whose hoarding is preventing the effective treatment of a major cockroach problem in the building, which in turn is preventing an adjacent unit owner from being able to rent or sell her unit and is causing others to have to treat and spray for cockroaches at least weekly.

A court of appeals in Tennessee recently approved a board’s request to force the sale of a unit and ruled that the unit owner’s hoarding, and the nuisance and health threat it created, violated the association’s CC&Rs  (4215 Harding Road Homeowners Association v. Harris).  The court unanimously agreed that a forced sale of the unit was not only the appropriate remedy, but “the only remedy” possible since the owner refused to correct the problem and because of the impact on the other residents of the “grossly offensive odors” and other problems the hoarding created.

Before filing the suit, the association had a professional bio-hazard cleanup company that cleans crime scenes and gross filth and hoarding situations come in and spend nine hours one day and fifteen hours the next cleaning the unit.   Multiple odor bombs had to be set off and three commercial dumpsters were filled with massive amounts of filthy debris, molding paper products and rotting food.  Bleach had to be used to clean the mold off the walls and windows and then the unit was repainted.  The property manager personally did thirty-eight loads of laundry for the unit owner.   Other residents pitched in, some paid for the unit owner to stay in a hotel and others brought her meals.

But that solution only lasted a few months before the residents that shared the unit owner’s HVAC air stack were again faced with nauseating, unbearable odors.  This time, the unit owner refused to allow the association to help remedy the problem, despite repeated attempts.

That particular association had a very unique provision  in their governing documents which specifically authorized the association to sell a unit as a remedy for persistent and serious violations of the CC&Rs.  So, this remedy won’t be available to most associations in Utah, but other remedies are available to an association or to an affected unit owner (almost all governing documents prohibit nuisances, for instance).  The Tennessee case highlights the importance of the fact that no single unit owner can be allowed to affect the safety, quality of life and enjoyment of property of the remaining residents.  As discussed in this blog post, hoarding fueled a recent condo fire in Arizona, as well as several others.

As with any enforcement issue, the board, or an affected owner, should start with the least threatening and most amiable methods possible.  In-person conversations, phone calls and letters should courteously explain the problem and ask for compliance, and should only escalate from there if necessary.  The unit owner needs to understand the broad consequences and effect of the problem, including health and safety concerns.  At least two or three letters should be sent clearly identifying the issue and what is needed to cure the problem so there is a paper trail documenting your efforts.

If those efforts are unsuccessful, it’s important to obtain evidence of the problem.  Subjective, general assertions from a neighbor or witness won’t count for much.  It’s important to have specific details described in writing.  And photographs are always best.  Keep a detailed record of everything that transpires relating to the unit and the problem.  If the health department or fire department will come out and issue citations (I’m not necessarily saying they will), that will help a great deal in documenting the problem for a court action.

It’s important to remember that hoarding reflects an illness that needs to be treated with sensitivity.  But, it’s also important to remember that the actions of one person can’t be permitted to destroy the right of every resident to use and enjoy his or her unit.  Use common sense and consult your association attorney as necessary.

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The Results Are In: The 2012 Utah Legislative Session

March 8, 2012

By Curtis G. Kimble.

The 2012 general session of the Utah Legislature ends tonight at midnight and only one small change to a current law and no new laws affecting condominiums and homeowners associations were passed this year.  This is probably welcome news to the many boards and management committees that were likely more than a little overwhelmed by last year’s many changes.

The only change this year is to the law regarding reserve studies.  A board is required to conduct a reserve study every five years and to review and update it every two years.  But, when S.B. 56 goes into effect on May 8 of this year (assuming it’s signed by the Governor), a board will only have to conduct a reserve study every six years and review and update it every three years.  While industry professionals generally agree that a reserve study should be updated more frequently than that, even annually, and many states require an annual review and update of a reserve study, this change to the law will take some pressure off boards.

No other new laws or changes affecting condos and HOAs will go into effect this year.  Next year, expect to see more significant changes proposed that haven’t been seen yet.  I have a feeling we can also expect to see that Ombudsman bill (H.B. 56) that I explained here proposed yet again.


Assistance and Service Animal Update

May 6, 2011

To my displeasure, I have found that more and more frequently, a common “counterclaim” to an Association’s enforcement actions (regardless of what the Association is enforcing) is an allegation that the Board has violated the Fair Housing Act (“FHA”).  This blog entry deals with Assistance and Service Animals and recent meetings I have had personally with the Utah Anti-Discrimination and Labor Division on the topic (the “UALD”).

 Please remember, that each case is fact specific and this blog entry is for general information only and should only serve as to alert you as to issues to consider.

 People with disabilities are afforded certain federal and state housing privileges to help them cope and deal with their disabilities.  I think we all can agree that this is a fair, moral and good legal concept.  One of the accommodations that MUST be made is a reasonable accommodation for a service or companion animals, but only if strict conditions and requirements are met.  Owners do not have a unfettered right to have an assistance or service animal.

 First and foremost, “service animals” will not be the topic of the Article.  I do not think anyone would disagree that a visually or hearing impaired individual should not have access to a service animal to help them overcome and live better with their challenges.

 However, the issue becomes much more complicated when a request from an owner is made for an “assistance animal” based on a medical condition that may not be as apparent.  This issues often arises in ‘no pet’ communities.

 If you take anything from this Article it should be that a properly permitted assistance animal is NOT deemed a pet in the eyes of the law.  A rough analogy would be such an animal is just as crucial as a wheelchair.  Thus, your pet policies do not apply.

 I am sure you are wondering what entitles someone to have an “assistance animal” in the first place.  First, they must have a disability which limits a major life function.  This can, and in some cases should, be question.  But be careful as to how you go about finding this out.  As described below, it is a health care provider’s job to make this determination – not the Board’s.  Second, a licensed health care provider must provide a “link” between the disability and the animal that is being requested as an assistance animal.

 Most Associations require their members to have their doctor fill out a form that evidences both a disability and certifies that the animal will be of a therapeutic and helpful nature.  To be very concise, if the health care provider certifies this to be true, then the Association really does not have grounds to question the certification.

 If the Association is presented with the doctor’s note; a prescription form; etc; you do have the right to follow up with the issuing health care provider to make sure it came from them and is legitimate but that is about as far as you are allowed to inquire.

 You have no right to inquire about the nature of the disability and your forms and/or questions should not go down that path.

 You are likely asking yourself “what does John mean by a health care provider?”  A physician’s assistant and nurse, etc., will likely qualify as such.  I have tried to argue in the past that the doctor or health care provider must have some training with respect to whatever type of a disability is being alleged.

 For example, I have personally not agreed with an “ear, nose and throat” doctor giving a prescription for an assistance animal for an emotional condition.  However, I have been told (and we will update this blog as more information develops) that it is the doctor or health care provider who puts their name on the line if they certify something that they cannot diagnose properly.

 Therefore, you are allowed verify that the “note” came from a certain person and that this person is a trained health care professional.  But, in most instances, your scrutiny will stop there.  (There will always be exceptions and issues on this topic – but for now – please use this information as your default mindset.  Another question arises – can a chiropractor prescribe an assistance animal?  More to come).

If you make a request upon your owners for a health care provider’s certification, and you do not get it back within a reasonable time, you do not need to make the accommodation until such note is received.

 If someone wants or has “2” cats, the health care provider must prove a need for 2 cats.

 Further, just because an owner had approval for a prior pet, does not mean that that approval extends to the “next pet.”  For example, if a pet dies or is lost, the owner must make a request again.  Remember, this analysis is all about the current pet being the appropriate pet for the particular challenge of the owner.

 You can ask for a medical opinion about the breed or type of animal and whether or not it truly provides a medical benefit over other breeds or types of animals.  However, be careful.  If someone has a “scary dog” that simply does not mean it cannot be an assistance animal. The key consideration is not the breed, but whether it (1) stays under control; (2) stays on a leash; (3) does not physically attack or threaten other owners; (4) does not unreasonably bark or make noise or (5) cause damage to the common areas, etc., that you cannot reasonably remedy.

 Unless a City Ordinance disallows a certain type of breed of dog or other animal you probably cannot challenge the breed unless it shows violent tendencies or is inherently dangerous. In such cases, I believe the Anti-Discrimination Division will defer to the City and PERHAPS allow you to ban that particular type of animal.

 Questions arise about exotic pets – snakes, etc.  This will be discussed in a follow up entry.

Remember, the accommodation that you must give is not unlimited – the owner must be given a reasonable accommodation.  Not all requests will be reasonable.

If you start on a path of enforcing a pet policy, make sure that it is uniform and consistent amongst all owners with the above considerations for assistance animals.  You should accept both verbal and written complaints from other owners who complain about pets in the community and then do your due diligence to make sure the pet is properly in the community pursuant to the law discussed above and your policies.  Please keep a file on each approved assistance animal.

This topic is a complicated one and this blog entry cannot do it full justice.  Please contact us before engaging in any pet enforcement program or if you simply have assistance and service animal related questions.  As stated above, more to come on pets AND Fair Housing Rules related to swimming pools; weight rooms; etc.

Best regards, John Richards


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