Archive for September, 2009

Keys to the Castle–Do You Need to Turn Them Over?

Wednesday, September 23rd, 2009

[Original Post September 21, 2009]

Like animals, people view their homes as their personal “den”–a safe place where they can raise their family and not worry about the dangers of the outside world.  So it’s not surprising that one of the most common conflicts that arises in shared ownership communities, and especially condominiums and co-ops, is the question of whether an owner must turn over a key to management.  It’s one thing for strangers to have the walk of the building, but to be able to actually enter your home?  That’s a little hard for many to swallow.

First, understand that a number of state laws specifically allow an association to request keys for emergency entry.  Further, many association documents will have a clause mandating that a key to every door be turned over to the management office.  If you’ve read the book, you’ll remember that your “documents” are a contract, and you are legally bound to abide by the provisions they  contain.  So at the outset, understand that in many or even most situations you will be legally required to provide a key to the staff that operates your community.

Remember also that it’s a basic principle of life in a shared ownership community (condo, co-op and hoa) that you give up some of your basic homeowner’s rights for the good of the community as a whole.  You can’t expect to have the exact same privileges in an SOC as you would in a traditional detached home.

But then, why would management need a key to your unit?  Why not simply call you when they need entry?  Let me lay out some common situations, and why having a key is so important for your staff.

Let’s start at the top and work our way down.  The first situation involves true emergencies.  Fire, floods, gunshots, heart attacks–these are the situations where, if management does not have a key, they will certainly break down your door.  In a true emergency, that may not bother you–better to pay for a broken door than to have your home destroyed by an electrical fire.  But be certain that, in an emergency, management has every right to enter your unit by whatever means possible (in the situations above, it would most likely be police or firefighters doing so).

The second situation, and one that is far more common, involves small emergencies, such as water leaks.  These are the ones where a lot of conflicts arise, but remember that small problems become big problems very quickly.  Assume, for example, that the neighbor three units underneath you has water damage from a leak in her ceiling.  To troubleshoot the leak, the manager or superintendent will have to enter each unit above the apartment and investigate for signs of damage, evidence of overflowing or clogged pipes, toilets and sinks or even active floods.  Sometimes, the source of a leak can be several units above, and many of these investigations reveal damage that unit owners wouldn’t even know existed (for example, water stains on the ceiling of a dark closet, where mold commonly develops).

So say, for the moment, that you’re a person who refuses to give their key to the management office.  Now imagine that you have a leak in your unit that is actively destroying your wallpaper.  What if every owner in the building above yourself also refused to hand over their keys to management?  The office would have to call each owner individually, wait for a response, find a time when the owner could allow them into the unit, sometimes even fight with the owner about management’s right to enter the unit–and all the while your damage is getting worse.  Not really fair to you as an owner, is it?

Even when it’s not a true emergency, issues like water leaks, hazardous smells (chemical smells or gas, for example) and pest problems need to be investigated by management immediately, and if owners have not provided their keys to management, it is absolutely guaranteed that the damage to one or more units will be significantly worse than if they had.

The final category involves everyday, 9-5 maintenance.  In a high-rise building it is common for staff to have to enter individual units to investigate maintenance issues like balcony or wall cracks, pipe noises, electrical issues that affect multiple units, fire sprinkler issues and even reports of foul odors (that can sometimes be evidence of hoarding problems).  While these issues are not likely to damage units in the short term, requiring management to get individual permission to access each unit is extremely inefficient, costs significant money in wasted time, and is likely to result in greater remediation costs once a problem can be fully fleshed out.

In my opinion, every set of documents in a high-rise building should require a key to be turned over to management.  Not doing so can result in dangerous situations during true emergencies (and require the staff to break down doors), can lead to increased unit damage due to hazards like water leaks, and will cost significant money in lost time and inefficiency when carrying out day-to-day maintenance activities.  If you are an owner who has been recalcitrant about turning over your key, please consider the arguments I’ve made and see if maybe giving a semi-stranger a key to your home is a lesser evil than the potential damage that occurs otherwise.

Civic Responsibility in an SOC World–How to Recall a Board

Wednesday, September 23rd, 2009

[Original Post September 9, 2009]

Since the launch of the book, we’ve received a number of comments from readers who have expressed desperation at the state of their shared ownership community, especially the condition of the board of directors (usually as a tyrannical dictatorship spending their money at will and ignoring every rule in the house).  Now, these complaints tend to be occasionally overstated (I know from the hyperbolic criticisms that have been thrown at my own board), but there’s no question that SOC boards exist that do seem to pattern themselves after popular South American dictators.   The constant question that arises in these situations is how do we fix it?  How do we bring them down?  While the answer to that question, recall, is simple, the reality is often complex, so I thought I’d write a bit about our own civic responsibility in the modern age of SOCs.

In a traditional 1950s suburb, being a good neighbor, a good citizen of the community, required little more than pleasantries and an occasional favor.  But ownership of property in common with your neighbors introduced a totally different social dynamic into neighborhoods.  Volunteer board members, many of whom have no financial or business training, are expected to run a sometimes large and complex business that is the typical SOC operating association.  These communities do not self-select motivated members who are competent to run a large non-profit business.  Sometimes, there is not a single owner who has the skills ordinarily required to be a director of a corporation.  That, in and of itself, is an enormous problem for SOCs.  Over time, some board members take the opportunity to educate themselves and become spectacular directors, some learn just enough to get by, and undoubtedly there are some who have no interest in, nor aptitude for, learning how to run a business.  There is no question, however, that the health and success of an SOC is directly related to the competency of the board of directors.

So let’s assume for the moment that you live in an SOC with the board from hell–they’ve been ignoring the rules for years, they appear to be siphoning off funds, or at least turning their heads at bookkeeping irregularities, and the property has gone into total disrepair.  How do you, as a single owner, break the cycle and bring order back to your community?

First, remember that, universally, a motivated SOC ownership may recall a board of directors, for any or no reason, by vote of a majority of its members.  No question, this is easier said than done.  In many communities it is extremely hard to motivate owners to get involved in the SOC, which is viewed as an unwelcome and unnecessary intrusion into their otherwise complex lives (you do tend to wonder, of course, why buyers never consider that SOCs are not like traditional communities–it’s part of why we wrote our book).  It’s not uncommon for an SOC to never hold an annual meeting, despite the requirement to do so, because of disinterest on the part of the community.  Staging a recall, therefore, takes motivated leaders and a concerted pr campaign.  Let me give you some ideas.

To begin with, someone has to take charge, and that person might very well have to be you.  The concept of SOCs introduces civic involvement on a much smaller scale than ever before.  Unlike municipal governments, where civic volunteers are paid for their good deed, SOCs are a pure democratic society, and they require someone to step up and take the reigns.  Everyone has some sort of skill that would be helpful in community organization.  Perhaps you’re a good writer, or a good speaker.  Maybe you’re an artist who can prepare fliers or even design a website.  Maybe your skill is simply being friendly, and you can offer your time to visit neighbors and explain to them, face to face, what’s going on in your community.

The first step is for a person or a like-minded group to organize themselves an an opposition force.  These people should meet, discuss their goals (anything from influencing the board to removing them) and then start plotting strategy.  Recalling a board is a true political exercise!  It’s no different than the political battles you see during national elections, just with fewer funds.  Start by educating your neighbors about the problems that exist in the SOC.  Be very careful not to toss around wild accusations, or you may very well be guilty of libel.  Instead, access the records of the association and compile information about their budgeting, bookkeeping and expenditures.  Note anything that looks unusual.  Make a master list of complaints, and then compile those into easily understandable bullet points.  You want to make the information as understandable as possible, and get your neighbors motivated by the facts.  True, there are always some who won’t care, but if the board’s actions are truly egregious, you should be able to motivate a majority.

But how do you get your message out?  You can learn lessons from President Obama’s 2008 campaign.  Prepare a flier with the basic issues laid out and have volunteers spread throughout the community, talking to neighbors.  If you’re in a condominium, park yourself in the lobby and hand out fliers as people get home from work–you have a right to free assembly in most situations.  Set up a website with a catchy title, like www.recalloceanboard.com.  Even if you don’t have a web designer or a lick of experience, there are free programs on the web that will allow you to set up a nice looking website where you can post your arguments.  And as you reach your neighbors, try to get them actively involved, as well.  Ask if they have any skills that might help organize the community.  Maybe they know a lawyer who can help out the opposition group!  Remember that, under most laws, you have access to the addresses and phone numbers of the other owners in the community, so you have the right to send out a flier or, if you think you can be unobtrusive, give your neighbors a call.

At some point during this process, it may be necessary to pick among the community organizers to determine who will run for the new board once the old directors are removed.  Again, it may just be a basic civic responsibility that a motivated and qualified citizen throw their hat in the ring for the job.  It will be easier to motivate owners to follow your cause if you have already chosen a replacement board, laid out their qualifications and discussed, in detail, what changes will be made if the recall is successful.  And be a clever marketer!  Information given to owners should be short, sweet and to the point.  Tell them how they will benefit from the change, and what will happen to their investment if nothing is done.

What if you are scared that the old board will retaliate against you, and you don’t want to make waves?  This part gets a little tricky.  Certainly, you can prepare fliers and a website anonymously, and may be able to motivate owners that way.  But any good movement requires at least one public leader, and the recall simply may not succeed unless someone is brave enough to take charge.  If a board member threatens violence, call the police.  If your home or car is vandalized, call the police.  Chances are, these crimes will be easily traced to the few motivated suspects.  Sometimes civic responsibility requires bravery.  Even board members have to regularly deal with threats, and sometimes even property damage and violence.  The key is to stand tall, don’t back down, and report even the slightest infraction to the authorities.

Just a note–there are people out there who are unstable, and do not follow the normal rules of personal responsibility.  If an angry owner or board member were to truly threaten you with violence, ie, leave a threatening letter or even brandish a weapon, take it seriously.  These are crimes, and they can be prosecuted.  Get a restraining order, make sure your alarms are all working properly, and be vigilant.  But by the same token, living a terrified life is no life at all.  Sometimes, you just have to take a leap of faith and hope for the best.

So after months of community organization, fliers, websites, personal meetings, phone calls and the like, you believe you’ve organized a large enough group to effect a recall.  Go to management, call a special meeting (which usually requires the written assent of some small percentage of owners), and tighten your message.  The special meeting is the battle royale!  Make sure you have facts to back up all allegations, that your presentation is water tight and that you clearly explain the problems the community is encountering and how you and your group intend to solve those problems.  Get as many supporters to attend the meeting as possible, and make your case.  If you’ve organized properly, you should know in advance whether you are likely to win the recall, but sometimes votes change, and it often comes down to the wire.

If you win…congrats!  Do a better job than your predecessors–it’s a far harder task than it seems.  And if you lose, remember that you’ve knocked the board back on their heels, and they’re probably scared.  There’s a good chance they’ll clean up their act, but if not, keep going to meetings and calling their bluff, and when the next election rolls around you’ll be a well known commodity who is likely to earn a spot on the board.  Sometimes, change must come from within, and it doesn’t always happen in a day.  So keep plugging away, stay involved, and good luck!

Board Members Just Want to be Loved, Is That So Wrong?

Wednesday, September 23rd, 2009

[Original Post August 17, 2009]

Welcome back to the New Neighborhoods blog!  Before we start, I want to direct everyone’s attention to a new resource on our website, Gary A. Poliakoff’s Hurricane and Disaster Preparedness and Recovery pamphlet.  You can find it in PDF format under “resources.”  This pamphlet is a great way to prepare yourself for the current storm season and to answer any questions you might have about disaster planning and recovery, written by one of the experts in the subject.

Out of all the topics discussed in our book, one of the most fascinating, in my opinion, concerns the social issues that arise out of condo, co-op or HOA ownership, and especially board membership.

I have read that the vast majority of marriages that fail do so because of financial issues.  That’s not really surprising–money (or lack thereof) is a great stress for most people, and opinions about how to manage finances differ wildly.

Knowing this, imagine for a moment that I asked you to purchase a car with your best friend.  Owning something as complex as a car raises numerous financial questions, including how to maintain the vehicle, when to schedule repairs, how to manage mileage and depreciation and how to best insure the investment.  To most, the thought of having to make such complex financial decisions with someone who is even as close as a best friend is extremely unappealing.

Now, instead of a car, what if I asked you to purchase a home with hundreds of strangers?  The thought probably makes you cringe–however, this is exactly what every single condo, co-op or HOA owner has done.  If you live in a shared ownership community, you’ve not only made one of the largest purchases of your life, you’ve done so with dozens, and sometimes hundreds, of people that you barely know.  Sometimes, it’s amazing that such a system of property ownership is not only common, but also extremely popular.

So given the difficult situation that all SOC owners face, imagine how tough it must be for the board members.  Most people hope to be on good terms with their neighbors.  But board members are tasked with making financial decisions that impact their entire community.  It’s simply not possible that every person in that community will agree with every decision made.  In many cases, it is inevitable that a large minority of the community will disagree with decisions made by the board members.  And in these cases the board members, who are most often well-meaning volunteers, come to be hated by at least a small percentage of their neighborhood.  Unfortunately, it’s an unavoidable reality–if you serve on a board, some of your neighbors will always dislike you.

A few months ago, while I was still serving as president of my condominium, I attended a grievance committee meeting as an observer and was approached by an owner that I had never met.  He explained to me that he had an excellent renter in his unit, but that the renter was getting a dog (renters are not allowed to own pets under our documents).  Given that the renter was such a great tenant, would I be willing to grant him an exception to our rule?

Now, anyone who has read our book knows that you can’t grant exceptions–if you do, you’re “selectively enforcing” the rule, and it becomes invalid (and totally unenforceable).  I tried to explain to this owner that, unfortunately, the board is not allowed to grant exceptions, and we would have to deny his request.

Almost immediately after I began to speak, the owner started shouting at me that I was “exactly like everyone said–you just say no, no, no to everything.  Well I’m done with you–I’m not talking to you anymore, thanks for nothing.”

Even though I was a seasoned board member, this conversation was a little shocking.  First, I wondered, do people really sit around talking about me, much less talking about the fact that I always say “no” to everything?  Had I developed a reputation as an ogre, a reviled “condo commando?”  And more than that, who was “everyone?”  Exactly how many of my neighbors held such a negative opinion of me that it actually came up in day-to-day discussions?

And what it really comes down to is this–like most people (and most board members), I try to be a nice person.  I don’t like making people’s lives difficult, or saying “no” all the time.  But I also have an obligation to make responsible decisions, and I take my “community service” very seriously.  So ultimately, there’s nothing I can do if even a large minority of my neighbors feel that I’m being unreasonable.  Truthfully, even if a majority of my fellow owners wanted me to violate a rule, I wouldn’t do so.  I would rather be removed from office by a recall than not satisfy my fiduciary duty to the association.  But that’s a very difficult position to take, and it’s hard to tell if the majority of board members around the country would feel the same way.  Just like politicians, at least some percentage of board volunteers are tempted to bow to public opinion, even if following that opinion would violate their responsibilities.

Ultimately, it takes a thick skin to serve as a board member, and many well-meaning volunteers have been chased out of office by the slings and arrows of their neighbors.  It’s a shame, but it’s just one of the inevitable quirks of sharing financial decisions with strangers.

Prescription Pets, Revisited: A Discussion of Service Animal Exemptions in Condos, Co-Ops and HOAs

Wednesday, September 23rd, 2009

[Original Date August 1, 2009]

Welcome, friends, to our first New Neighborhoods blog entry!  To give you some background, I’m Ryan Poliakoff, one of the authors of New Neighborhoods–The Consumer’s Guide to Condominium, Co-Op and HOA Living (ask for it at your favorite bookstore!)  Formerly a lawyer, I am now an active author as well as the vice president of a $100 million oceanfront condominium.  Our book is about Shared Ownership Communities (SOCs)–condominiums, cooperatives and planned developments governed by a homeowner’s association (HOAs).  My plan for these blogs is to discuss some of the issues that my board encounters on a regular basis, and to share my thoughts on the best ways to handle these problems (or to ask your advice about how they were handled in your community).  I encourage you to comment on my blog in our forums, which can be found at www.newneighborhoodspublishing.com.  So enough with the intro–let’s get to the good stuff!

In our book, we dedicate several pages to the issue of Prescription Pets, which describes the current trend of doctors writing prescriptions that purport to allow their patients to keep pets in otherwise pet-restricted buildings.  How does this happen?  Here’s a brief rundown (the book is far more detailed):

The Fair Housing Amendments Act (FHAA) is a federal law that prohibits housing discrimination against people in a number of protected categories, including those who are “handicapped.”  It further states that community associations must make reasonable accommodations to handicapped persons to prevent them from being discriminated against.  So how does this work? One obvious accommodation would be to allow a paraplegic to install a ramp up to their front door, even if the documents prohibit such architectural modifications.  But this exact same principle also covers “service animals.”  That is, an association must reasonably accommodate a handicapped person by allowing them to keep a service animal, such as a seeing-eye dog, even if the building does not allow pets.  Unfortunately, creative doctors have stretched this policy to its limits, and that’s where the world of prescription pets was born.

Under the current statute, the language of which is extraordinarily broad, almost any person can allege that they are “handicapped,” as it covers any condition that affects a major life function (eating, sleeping, moving about, conducting daily activities).  That definition encompasses diseases like depression, insomnia, anxiety, obesity–the list is extensive.  And for the past decade or so doctors have been “prescribing” pets to sufferers of these diseases, claiming that they are service animals and that the association must therefore allow the pet as an accommodation (or else risk violating the FHAA).

Let’s be honest for a moment–it would take an unusually virulent animal hater to attempt to deny a visually-impaired person the help of their guide dog, or even reject pets used for seizure detection or as helpers to physically-challenged people.  But some of the borderline cases, especially those relying on emotional diseases, push the boundaries of what was intended by the act, and they require a bit of finesse on the part of a board of directors to manage.

My condominium is a pet friendly building, but our documents do not allow renters to have pets–only owners.  Our board recently received the following request for a pet exemption for a prospective renter.  I have changed the names and specifics to protect the individual’s privacy, but you’ll get the basic idea:

“Dear Sir/Madame,

Due to the fact that he is suffering from situational depression, it is imperative that John Doe be able to continue to live with his dog, Fido, who has been his constant companion over the past ten years.

Should you have any questions, please feel free to contact me by email or telephone.  Best regards, Dr. So-and-So.”

Now, readers who are practiced board members are probably rolling their eyes, because this is exactly the type of cursory, simplistic pet prescription that any family doctor can write for any person, making vague allegations of handicap.  What exactly is “situational depression?”  Does it affect a major life function?  Why does this man need a service animal?  Can we really compare a person like this to a visually-impaired person who uses a guide dog?  Is it fair to lump them into the same category?  How can a board respond to this type of request?

All good questions.  The first step our board took was to request more information.  When a disease is not visibly obvious, the board is allowed to request medical records sufficient to demonstrate that the disease exists, and that it does, in fact, impair a basic life function.  Additionally, the board may request detailed information on the doctor’s qualifications to make the diagnosis, and proof that the doctor is in fact the treating physician.  So this was our second step–ask our lawyer to contact Dr. So-and-So and ask him to provide additional information.  We then received the following response.

“Dear Mr. Lawyer,

In response to your letter, Mr. Doe is suffering from a depressive disorder.  Part of the symptom complex of the depressive disorder is insomnia: Mr. Doe has difficulty falling and staying asleep without his dog.  When he is unable to get a good night’s rest, his cognitive functioning (directing attention, concentrating, and decision-making) also becomes impaired.

His diagnosis is based on criteria from the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, published by the American Psychiatric Association.  As a duly-licensed psychotherapist in Florida, my scope of practice includes diagnosis and treatment of mental, emotional, and cognitive disorders.

Should you have any questions, please feel free to contact me by email or telephone.

Best Regards, Dr. So-and-So”

Now that’s a practiced, very clever doctor!  He has alleged a condition that clearly impairs life functions–sleeping and cognitive functioning both qualify.  So the person is legally handicapped (I know, I know–aren’t we all?).  The doctor is a licensed physician who is treating the patient and entitled to make this diagnosis.  So what’s left?

The only remaining issue is whether a pet requires some special training before being qualified as a “service animal.”  It’s true that, in this case, special training would appear to be lying there like a pillow, and most dogs know how to do that intuitively.  But the case law around the country is extremely varied on whether special training is required.  One court in California stated that the innate qualities of dogs made them uniquely suited to be service animals, and that the only training needed is their natural instinct.  Other courts have required proof of simple obedience classes, and then there are the courts that require service animals to have special training, like guide dogs.  The problem, of course, is that the law is so varied a board would have little idea what would happen in court if they reject the request.  If this request were made in California, for example, there’s almost no question that the association would lose its challenge.  But in other states? Not quite as clear.

So what’s a board to do?  Do you allow the request, understanding that it really treads the edge of what was intended by the law?  Or do you deny the request, knowing that a lawsuit is almost guaranteed, and that, depending on the state, the association could easily lose the case?  It’s a tough call–please sound off in our forums, and we’ll discuss your comments in a future blog–and I’ll let you know what we decided.

Until next time, thanks for reading, and for those interested in the book, I hope you enjoy it!

Ryan Poliakoff