Legal Leaders Presents Philadelphia’s Top Rated Lawyers of 2014 has selected Alexander D. DiSanti, Esq., for inclusion in a special section featuring the top rated lawyers in Philadelphia. ALM is partnering with Martindale-Hubbell to produce this special magazine. It will be featured in The Philadelphia Inquirer, The Wall Street Journal, The American Lawyer and The Legal Intelligencer, among others. Alex has retained an AV Preeminent rating, the highest rating in legal ability and ethical standards, by Martindale-Hubbell, the leader in lawyer ratings. He focuses his practice on representing homeowner and condominium associations, which he has done for over 25 years, and personal injury litigation, which he has done for 30 years. Alex can be reached by telephone at 610-627-1700 and by email at adisanti@fbpdlaw.com. The website of Forbes Bender Paolino & DiSanti, P.C., can be visited at www.fbpdlaw.com. Please feel free to contact Alex if you have any questions or comments.
By Katie Robinson
Among the many homeowners associations that exist throughout the United States, some are now considering the prospect of transitioning to gated communities. While an association may approach this question as an answer to a lack of security, becoming a gated community is actually a multi-faceted process and is not one to be taken lightly. Associations must consider legal and monetary issues, among others; to simply seek the safety of walls and gates is to underestimate the entire process.
How, exactly, does the infrastructure of a gated community differ from that of a normal HOA? Alexander DiSanti, Esq., an attorney at Forbes Bender Paolino & DiSanti, P.C., in Media, PA, explains. “A gated community is a type of residential community. It contains security features, such as walls, fences, guardhouses, and security gates that open and close as each vehicle enters or leaves the community. There are positives and negatives associated with gated communities,“ DiSanti says.
Gregory Chandler, an attorney at Eads Murray & Pugh, P.C., in Indianapolis, IN, also notes that security is a big factor for associations looking to make the transition. “Gated security creates the impression of increased protection and upscale living, which has made these types of communities increasingly popular. Gated communities have a certain aesthetic quality that many people find appealing. Arguably, it is a selling point that will help preserve and increase property values, though I know of no data to support that,” Chandler explains.
Gated communities can provide associations with many positive additions for their residents. DiSanti lists some of those positives as “an added reality and/or sense of security and decreased criminal activity, which is a primary concern for those who choose to live in gated communities; increased privacy, including the virtual elimination of solicitation by those outside the community; an added sense of prestige and exclusivity; the reduction of traffic, which is achieved by preventing those outside the gate from using the roadways within the community; added control of the community as a result of physical barriers to restrict people from entering the community; and the creation of a private world.” Some associations may be looking to create a real sense of a tight-knit community. With walls surrounding the property, and a gate keeping out unwanted visitors, gated communities can provide a very physical representation of that community.
While many associations and residents may assume that a gated community will automatically provide them with greater security, that is not necessarily the case. As Chandler says, “The problem with gated communities is that they tend to create a false sense of security. Owners are enticed by what they deem to be increased protection from criminal activity, but the reality is that these notions are somewhat illusory. There have been studies conducted over the years indicating that the rate of crimes, such as auto thefts and burglaries, is just as high in gated communities as in non-gated communities. Criminals can, and do, figure out ways to circumvent the gates.” Thus, gated communities do not always succeed as fortresses of security. When considering the transition, associations need to weigh this reality against the cost of building the infrastructure of gates and walls. The security provided may not mitigate the cost of the transition. Chandler agrees, saying, “The practical reality is that gated security may not be worth the increase in costs.”
Associations may also assume a greater liability by attempting to provide this extra security. “Associations do not typically have a legal duty to provide security for the community or its common areas. Hypothetically, it could be argued that by becoming a gated community, the association has voluntarily assumed a duty that did not previously exist. As a result, if criminal activity were to occur, there may be an increased liability risk to the association,” Chandler notes. Associations must consider that gates can increase the risk and cost that they assume.
The drawbacks to a gated community extend beyond those of cost and a false sense of security. As DiSanti notes, “Some negatives include increased purchasing costs and higher expenses in the form of maintenance costs and paying security workers; the need to drive outside the community gates to access businesses and to shop; a feeling of isolation; the barrier to welcomed guests; and the promotion of distrust of outsiders.” Chandler adds that the drawbacks may simply come down to the fact that the gates can pose an annoyance to residents and homeowners. Some homeowners could also provide access codes to their guests, vendors, or other non-residents.
Beyond the abstracts of gated communities, the process of actually making the transition can be quite extensive. DiSanti explains, “Typically, all aspects of infrastructure are the responsibility of the community association, including gates, walls, fences, and guardhouses. These are initially assumed by the developer and passed onto the community association. Any and all maintenance and operational costs, such as paying security workers, are directly or indirectly borne by the community association.” Chandler agrees that an association’s budget will take a large hit after making the decision to become gated. “It is likely that there will be a significant increase in cost to the homeowners. Gates are expensive to maintain.” He notes that the association takes responsibility for the gate, infrastructure, and security personnel needed to run this new facet of the community.
If, however, an association weighs the pros and cons of the gated community and decides to further explore the transition, it will invariably consult its residents as the next step. DiSanti underscores the difficulty of convincing homeowners to undertake the costly, extensive process. “It would probably be difficult to transform a non-gated community to a gated community. The issue, at a minimum, would spark contentious and vigorous debate. Those who oppose it would say that they are being forced to accept something that they did not want at the outset, or that they will be forced to leave the community to escape the gated community,” he says.
Provided that the residents consented to the transition, the association would need to approach the process by returning to the governing documents. DiSanti provides a list of preliminary questions for the association to ask:
- Do they provide the general foundation that would allow for the creation of a gated community?
- What are the steps that need to be followed to make this a reality?
- What approvals are needed?
- How many people need to support the transition?
- Must the decision to proceed be unanimous?
- How are votes cast?
“The law of a particular state would have to be analyzed to determine if there is statutory or case law that provides insight into the rights of a community to make this transition, as well as the processes that must be followed to effectuate this change,” DiSanti adds. If state law and the governing documents allow, the association can proceed. Despite the drawbacks and costs of gated communities, associations must ultimately decide for themselves if they feel that a gate would promote a sense of safety and community within those newly-erected walls.
Alexander D. DiSanti, Esq., is an officer of Forbes Bender Paolino & DiSanti, P.C. Forbes Bender Paolino & DiSanti, P.C., is a full service law firm with offices located in Delaware County (Media) and Chester County (West Chester), Pennsylvania. Alex has been representing condominium and homeowner associations for over 25 years. He has the highest lawyer rating given by Martindale-Hubbell of AV Preeminent. Alex was selected for inclusion in Pennsylvania’s Legal Leaders Presenting Top Rated Lawyers for year 2013. At the request of the National Business Institute, he has served as a faculty member and instructor of Legal Aspects of Condominium Development and Homeowners’ Associations, a legal education seminar for lawyers. Alex can be reached at (610) 627-1700 or adisanti@fbpdlaw.com. Visit his website at www.fbpdlaw.com.
The Demystification of the Proxy Vote
By Alexander D. DiSanti, Esq.
Introduction
Both the Uniform Planned Community Act and Uniform Condominium Act contain provisions, relating to the use of proxies. The statutory language is substantially similar, and Section 3310 of the Uniform Condominium Act provides:
(b) Proxies. Votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner. If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over the meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. A proxy terminates one year after its date unless it specifies a shorter term.
There is confusion about what is a proxy and how is it used. Some association members confuse a proxy with a ballot. Sometimes, a proxy is identified as a proxy ballot. A proxy is not an absentee ballot. In states where mail-in ballots are permitted in a political election, a member may receive a proxy and think that he has received a ballot. The member specifies his voting preferences and mails the proxy back to the sender. The member believes that his votes will count. Typically, they will not. This raises interesting issues. This article will attempt to demystify the use of proxies and provide useful information to homeowner and condominium associations, concerning this important and sometimes troubling methodology.
Proxy Basics
Homeowner and condominium association boards have a fiduciary duty to provide voting opportunities to all those entitled to vote on the business of the association. Member participation at meetings should be encouraged. Inability to attend a meeting should not result in the waiver of the right to vote. Absentee members may vote by proxy. Importantly, proxy votes may be necessary to establish quorum requirements.
What exactly is a proxy? Simply, a proxy is a written document whereby a unit owner appoints someone else, a proxy holder, to represent him at a meeting and to vote on behalf of the proxy giver. A proxy creates an agency relationship between the absentee voter and the proxy holder. This typically happens when a member cannot attend a meeting. The proxy holder must appear at the meeting to cast a ballot on behalf of the proxy giver. The proxy giver should trust that the proxy holder will attend the meeting and exercise the proxy power in accordance with the wishes of the proxy giver. A vote by a proxy holder has the same force and effect as a vote by the proxy giver.
There are two types of proxies: 1) general and 2) limited or directed. A general proxy allows the proxy holder to vote without restriction, allowing the proxy bolder to exercise his discretion. A limited or directed proxy restricts the voting power of the proxy holder. The restriction may relate to voting at a specific event or on a specific issue or may direct how the proxy holder must vote.
There are certain requirements of a valid proxy. It must be in writing, dated and signed by the proxy giver. The proxy giver must give his authority freely and without coercion or duress. A proxy is not transferable to another proxy holder. A proxy must be given to a specific individual, who must be named in the proxy or be identifiable by title or description, such as president of an association.
A proxy may identify a secondary proxy holder in the event the primary proxy holder fails to attend the meeting. Generally, if a proxy giver attends the meeting or revokes the proxy in writing to the board before the meeting, the power of the proxy terminates.
The governing documents of an association should be examined to determine if there is a restriction concerning who may act as a proxy holder. For example, a proxy holder is generally required to be a member of the association and entitled to attend the meeting of the association. A non-member of the association will generally have no right to attend a meeting of an association.
One of the mistakes to avoid in an association election is failing to send proxies to the members of the association before the meeting occurs. This can happen by mere inadvertence. Commentators recommend sending proxy forms with the notice of the meeting. Extra proxy forms should be brought to the meeting in the event that solicitation of association members is required to secure additional proxies to establish a quorum for voting.
Include as much information as possible on the proxy. Include the names of all candidates for the positions involved in the voting and include a space for write-in candidates. Be sure to identify how many people can receive a vote for a particular position. Votes for too many candidates void a proxy.
Proxy Problems and Abuse
Proxies can cause problems and abuse. There are issues relating to whether the governing documents limit the number of proxies that a proxy holder can vote, the related issue of proxy-hoarding, whether the proxy holder votes in a manner consistent with the wishes of the proxy giver and the validity of a proffered proxy. To amplify the first two issues above, let us imagine an overly ambitious candidate soliciting proxies from unit owners for the purpose of obtaining additional votes. It is wise to use a management company to send proxies to unit owners prior to the meeting with instructions to return completed proxies to the management company in an effort to avoid this type of problem. The problem is more difficult to handle in the event that solicitation of proxies is sought at the time of a meeting to establish a quorum. A person soliciting proxies can handpick whose proxies are being sought. This can affect the results of the voting process.
There is a delicate balance. Limiting the number of proxies that an individual can have may complicate or defeat the establishment of a quorum for the meeting in the event of insufficient turnout. Yet, the board must be sure that unit owners believe that the election process has credibility. Striking this balance may be achieved by allowing proxies to be used only for the purpose of establishing a quorum if the association has an insufficient number of votes to elect a candidate without counting the proxy votes.
Other potential problems include a proxy giver issuing more than one proxy, which implicates issues of error or fraud. A challenge to the voting results at a meeting may be mounted if a disgruntled voter determines that confusing or misleading information was contained in the proxy document. There may be restrictions to the right of one to give another a proxy, such as a member of the board granting proxy power to another member of the board or to another person. This attempted transfer by a member of the board represents an impermissible delegation of power.
Proxy disputes should be resolved by election inspectors appointed by the board. Commentators generally recommend that inspectors err on the side of validity of the proxy to avoid the disenfranchisement of a unit owner. If it is determined that the proxy was invalid, the vote should be nullified.
As always, when dealing with community association issues, the governing documents of the association and the laws of the state of the association must be analyzed.
New Laws in the State of Florida
Florida has recently undergone a significant rewriting of laws governing community associations of that state. These changes were made because of concerns about the way these associations were run and complaints by association members. In some respects, these changes were designed to create greater transparency and accountability. Proxy voting was addressed in these laws.
Commentators from that state say that a homeowner association is permitted to use proxies in the election of directors and to establish a quorum. Proxies may be general or limited. The law specifies the elements of a valid proxy.
However, these commentators say that the use of proxies in condominium associations is generally prohibited. Proxies are not permitted to be used in the election of board of directors, unless otherwise provided in the governing documents of an association. General proxies are generally not allowed. Proxies may be used to establish a quorum or to address administrative issues at board meetings. If the matter at issue relates to an issue of substance, only limited proxies are permitted.
Conclusion
The right to vote with respect to matters affecting a community association should be encouraged. Impediments to this right should be addressed to ensure the involvement of all association members in the voting process. Proxies are an important tool to achieve this goal and are oftentimes necessary to establish a quorum, allowing an annual meeting to proceed with the power to decide issues of critical importance to the future success of a community association.
Alexander D. DiSanti, Esq., is an officer of Forbes Bender Paolino & DiSanti, P.C. Forbes Bender Paolino & DiSanti, P.C., is a full service law firm with offices located in Delaware County (Media) and Chester County (West Chester), Pennsylvania. Alex has been representing condominium and homeowner associations for over 25 years. He has the highest lawyer rating given by Martindale-Hubbell of AV Preeminent. Alex was selected for inclusion in Pennsylvania’s Legal Leaders Presenting Top Rated Lawyers for year 2013. At the request of the National Business Institute, he has served as a faculty member and instructor of Legal Aspects of Condominium Development and Homeowners’ Associations, a legal education seminar for lawyers. Alex can be reached at (610) 627-1700 or adisanti@fbpdlaw.com. Visit his website at www.fbpdlaw.com.
Slip and Fall Incidents on HOA Property – The Law and Practical Advice
By Alexander D. DiSanti, Esq.
Introduction
We live in a litigious society. Several years ago, the Chicago Tribune reported that there was a national-wide increase in slip and fall lawsuits against homeowner associations. This was thought to be associated with a downturn in the economy. More people were unemployed or underemployed. Money was tight. Financial obligations were difficult to meet.
Owners of homes in homeowner associations are required to pay common expense and other assessments as required by the law of the jurisdiction and the governing documents of the association. In a difficult economic climate, these payments are harder for owners to make. Pressure is applied to the owner by the association to become current with respect to the debt. The owner is advised that the matter will be assigned to legal counsel to the association to proceed with collection of the debt. The legal fees and expenses of counsel are added to the indebtedness of the owner, increasing the financial obligation.
This may lead to a judgment, which leads to attempts to execute upon the judgment. Bank accounts are garnished. Personal property is levied and executed upon. The most drastic efforts to collect the debt take the form of a sheriff’s sale of the real property or a foreclosure action by the association.
The challenges of life may create an incentive to pursue a claim for personal injury. Events become opportunities to compensate for hardships and the difficulties of life. Instead of accepting responsibility for an injury-producing event, the victim may point the finger of blame outward. The cause of the incident is identified by the victim, who is motivated to find a defect or dangerous condition. Sometimes, it seems that the victim cannot truly know what the cause of the fall was. The victim speculates about the cause of the fall. With time, this speculation leads to a firm conviction and belief.
In a slip and fall incident on a sidewalk of a homeowner association, the association becomes a source of financial recovery. Most claims are covered by general liability insurance, naming the association as an insured. This coverage will provide the association with an investigation of the claim, defense counsel appointed and paid by the insurance company to defend the claim and liability coverage in the event of a finding of responsibility and an award of financial damages against the association in favor of the victim.
Slip and fall claims are generally viewed by the legal community as difficult to win. The purpose of this article is to provide a useful legal guide to homeowner associations facing the challenges of creating a safe environment for residents and others using association property, whether it be a parking lot, sidewalk or other common area.
Tort Liability of a Homeowner Association
The management of a homeowner association is entrusted to a board of directors. A property manager may be hired by the board to handle the day-to-day management issues. The association is responsible for the maintenance and repair of the common areas. With respect to snow plowing and removal, a snow removal contractor is usually hired to perform these functions. There can be a dispute between the association and the snow removal contractor about responsibility for a condition that allegedly caused injury to a person. Both can be held responsible to the victim.
Liability can be imposed for dangerous or defective conditions that were actively created by the negligence of the association, as well conditions that the association passively allowed to exist on the common areas. The same analysis applies to the snow removal contractor. The area may not have been plowed or shoveled completely. The area may not have been salted completely. Ice may have formed after the snow removal was completed. Was the association aware of this or not? Should it have been aware through proper inspections? Was the snow removal contractor advised? Was there sufficient time to gain awareness of the problem and to take action to correct it?
Slip and fall claims have basic elements. These include a victim, a hazard, an injury, a causal relationship between the hazard and the injury, notice of the dangerous condition or defect and duty of care. Some of these concepts need no explanation. With respect to the others, a hazard is usually a physical feature or condition, something as simple as ice or snow or a difference in the elevation between two blocks of cement of a sidewalk. Other times, the hazard may be less obvious. It may be identified by a violation of a building code, such as the riser height of a stairway.
It is not legally sufficient to claim entitlement to monetary damages based upon a mere injury. There must be a causal link between the hazard and the injury. Moreover, there must be a causal link between the existence of the hazard and the actions or inactions of the entity sought to be held accountable for the injury. Without establishing these causal links, the injured person will almost certainly fail in the attempt to collect an award of money.
The injured person has the burden of proof with respect to all of the elements of a cause of action. In Pennsylvania, the burden of proof is by a fair preponderance of the evidence. To make it simple, this is not a “beyond a reasonable doubt” standard, such as in a criminal case. Instead, the evidence must be viewed as tipping the scales of justice ever so slightly in favor of the claimant with respect to the element at issue. The injured person must prove that a hazard existed, as well as prove that the hazard was the result of the negligence of the party sought to be held responsible.
The injured person must prove that a dangerous condition existed on the property of the association and that it created an unreasonable risk of harm. The injured person must prove that the association knew or should have known of the hazard in time to take corrective action, either eliminating the hazard or providing a warning of the hazard. This knowledge of a dangerous condition is identified in the law as actual or constructive notice.
The law requires the injured person to prove that the association breached a duty of ordinary care to prevail. This is also referred to as reasonable care. The level of care required may be determined by the relationships between individuals or entities, custom, practice, code or statute. The injury must be foreseeable to be compensable.
Liability is dependent upon control of the premises. The injured person must prove that the party sought to be held responsible controlled the premises that contained the hazard. Control is determined by authority to manage, direct, supervise, restrict or regulate the premises.
Liability may be based upon a special duty that was contractually assumed by the association. There may be certain obligations imposed upon the association in the governing documents, such as removal of ice and snow from common sidewalks and parking lots.
Defenses of a Homeowner Association
Studies have demonstrated that approximately 30 percent of all slip and all claims were legally caused by a factor other than the condition of the premises. Studies have also demonstrated that eight to 10 percent of all claims are the result of the conduct of the victim. There may be other factors contributing the fall, such as dangerous floor coatings, slippery or dangerous shoes, as well as other defective products or the acts of others.
The most obvious defense is that a defective or dangerous condition did not exist or that the injured person failed to prove that one existed. The defect may be considered so trivial that liability cannot attach as a matter of law. For example, the crack in the cement may be so small that it is considered within the realm of acceptability. The same analysis applies to a cement block of a sidewalk that is only slightly higher or lower than the adjacent block.
The most likely defense is that there was lack of notice of the defect or dangerous condition. If the injured person cannot prove that the association knew about the condition, he will focus on the issue of constructive notice. This is based upon the argument that, if reasonable inspections were made, the condition would have been identified. What is a reasonable inspection schedule? There is no specific answer. It is fact sensitive. It is better for the defense of the claim if it can be demonstrated that an inspection occurred close in time before the incident and no dangerous condition was found.
Foreseeability is a critical factor, which determines the duty owed. Some situations present dangerous conditions no matter how frequent the inspection schedule, such as entrances to building. This area may require floor mats or carpets to create a reasonably safe environment.
In Pennsylvania, if the condition is determined by the fact-finder to be open and obvious, there may be no need to warn of the dangerous condition or to take corrective action. Simply, there may be no duty owed to the injured person. The injured person is charged with the responsibility to be vigilant and to notice an open and obvious condition.
Similarly, in Pennsylvania, proof of negligence on the part of the injured person may defeat or limit the monetary recovery. The association has the burden of proof with respect to this defense. If the injured person is determined by the fact-finder to be more than 50 percent responsible for the happening of the incident, the injured person is not entitled to a monetary recovery. If the negligence of the injured party is 50 percent or less, the recovery of the injured party is reduced proportionately. For example, if the injured person is determined to be 50 percent responsible and the claim is worth $1,000.00, the injured person would be entitled to recover $500.00. This is called the concept of comparative fault or negligence. In some states, any responsibility for the fall on the part of the injured party precludes any recovery of monetary damages.
Responding to an Incident
If you are aware of an incident within your association common areas, it is important to provide assistance to the victim, document the event and maintain these records for future reference. When assisting the victim, call for emergency medical assistance if this has not already been done and the victim would like assistance. Express concern for the victim. Record all sensory observations, such as what you see, what you hear, including statements made by the victim or witnesses. Has a cause of the fall been identified by the victim or another person? Are there any witnesses to the incident? Record the names, addresses and phone numbers of any witnesses. Do not make any promises to the victim, such as offering to pay medical expenses. Do not make any statements about what you see or hear to the victim or others. Do not say anything about what may have caused the incident. Do not speculate about the cause of the incident or the nature of the victim’s injuries. If no dangerous condition is observed that may have caused the fall, record that conclusion.
Preventing Slip and Fall Incidents
According to recent data, slip and fall cases have a total annual cost in the United States of over $60 billion. An association must prepare for the worst and hope for the best. According to John Caballero, CIC, CRM, a Client Advisor/Risk manager at Gulfshore Insurance, there is an action plan to help associations manage slip and fall claims. He confirms that outdoor surfaces, such as parking lots, sidewalks and walkways, are where these claims typically originate. Steps and stairs pose a hazard. Steps become worn with usage, as well as carpeting on stairs. Pool decks present slippery conditions with the use of minimal footwear for traction. Locker rooms can be slippery, and clothes, bags and towels present obstacles. Entryways are high-traffic areas, and foot traffic, water and outside debris is constantly a concern. Please see his Slip and Fall Prevention Checklist at www.gulfshoreinsurance.com/how-you-can-prevent–slip-and-fall–incidents. It is full of helpful information for community associations.
Conclusion
Slip and fall incidents are a major problem for community associations. No matter what precautionary steps are taken, the risk remains. There are many causes, both involving the association, outside contractors and the victim. An association must carefully and vigilantly inspect the premises for potential hazards on a continual basis. If hazards are identified, they must be quickly abated. It is in the best interests of an association to take the necessary steps to help reduce the number of incidents of personal injury on common areas. Insurance costs are affected by the number of incidents reported and claims made, involving injury to persons and property. Nevertheless, when an association is made aware of an incident of this type, reporting the incident to the association’s insurance company is of critical importance. Prompt notice of the claim to the insurance company allows the investigation to proceed sooner, while evidence is fresh and people’s recollections are better. Failure to promptly report an incident may affect whether the insurance company decides to provide insurance coverage to the association for the claim. An association is charged with the responsibility to proceed with all due diligence to manage the risk of injury claims and to deal with them appropriately when they occur.
Alexander D. DiSanti, Esq., is an officer of Forbes Bender Paolino & DiSanti, P.C., a full service law firm with offices located in Delaware County (Media) and Chester County (West Chester), Pennsylvania. Alex has been representing condominium and homeowner associations for over 25 years. He has been defending slip and fall cases at the request of numerous insurance companies for nearly 30 years. Alex has been rated AV Preeminent, the highest rating in legal ability and ethical standards, by Martindale-Hubbell since 1997. He was selected for inclusion in Pennsylvania’s Legal Leaders Presenting Top Rated Lawyers, Legal Leaders Presents Top Rated Lawyers in Insurance Law & Coverage,and Legal Leaders Presents Philadelphia’s Top Rated Lawyers for year 2013. At the request of the National Business Institute, Alex has served as a faculty member and instructor of Legal Aspects of Condominium Development and Homeowners’ Associations, a legal education seminar for lawyers. Alex can be reached at (610) 627-1700 or adisanti@fbpdlaw.com. His website can be visited at www.fbpdlaw.com.
Legal Leaders Presents Philadelphia’s Top Rated Lawyers has selected Alexander D. DiSanti, Esq., for inclusion in a special section featuring the top rated lawyers in Philadelphia. ALM is partnering with Martindale-Hubbell to produce this special magazine. It will be featured in The Philadelphia Inquirer, The Wall Street Journal and The Legal Intelligencer, among others. Alex has achieved an AV Preeminent rating, the highest rating in legal ability and ethical standards, by Martindale-Hubbell, the leader in lawyer ratings. He focuses his practice on representing homeowner and condominium associations, which he has done for over 25 years, and personal injury litigation, which he has done for nearly 30 years. Alex can be reached by telephone at 610-627-1700 and by email at adisanti@fbpdlaw.com. The website of Forbes Bender Paolino & DiSanti, P.C., can be visited at www.fbpdlaw.com. Please feel free to contact Alex if you have any questions or comments.
Curfew Rules and Homeowner Associations
By Alexander D. DiSanti, Esq.
Introduction
Summertime conjures up a lot of images. The weather is warmer. The sun is hotter. Clothes are lighter. Spring has caused nature to burst with color and activity. The vacation at the shore is no longer a distant reality. You can smell the salt air as you daydream about the beach and the ocean surf.
Homeowner associations provide families with children a host of amenities and a feeling of belonging to a neighborhood. Summertime with daylight hours extending into the evening changes the behavior of everyone, including children. School is now a memory. Their lives are less structured, and free time may be more plentiful.
These factors can lead to dilemmas for homeowner associations. There may be complaints from residents about children congregating in common areas and being noisy into the evening hours. There may be concerns that the common areas will be vandalized by the youth of the community. The board is approached with a suggestion that perhaps these concerns should lead to action. Someone proposes that the board should impose a curfew on the children in the association. Another voice wonders whether this is legal and, if it is, what issues need to be considered?
This article will address these important issues from a legal standpoint. There are certainly requirements that must be followed, as well as limitations to the exercise of this police power by an association.
General Legal Principles
A homeowner association has the right to implement curfew laws. This right may be restricted by the laws of a particular state or other governmental entity. Therefore, it is important to understand the laws of a particular jurisdiction that may pertain to this subject matter.
The right to impose a curfew must be contained in the rules and regulations of the association. The board must determine if this right is contained in the rules and regulations. If not, the board must take the necessary steps to amend the rules and regulations to allow for a curfew rule.
The curfew rule must provide specifics. The hours of the curfew must be addressed, as well as the ages of those affected by the curfew. These should not be arbitrarily chosen by the board. The board must be mindful that the association cannot discriminate against children or families with children. Having rules that are directed to children is a form of discrimination, just like having rules directed at people of a certain race, religion or national origin.
For example, in most cases, restricting children from association facilities is illegal. Fair Housing laws need to be considered. A legitimate exception to this general rule of illegality is when governmental authorities have set restrictions, relating to a certain subject matter. For example, there may be a governmental restriction forbidding someone below a certain age from using a pool without an adult present. A law may require that diapers be worn by certain people while using a pool. Similarly, a manufacturer of a product may provide restrictions relating to the age and weight of a user of fitness equipment.
The basic rule is that curfew rules cannot be more restrictive than local governmental curfew laws. If the rule is broader than the law, Fair Housing laws may be violated. If you are not sure of the curfew laws in your municipality, consult the city/township/borough website for specific information. Otherwise, contact the governmental agency and ask for this information. The board will want to obtain a copy of all applicable laws.
Municipalities that have curfew laws impose fines and/or penalties on the children in violation of the law, depending upon their age, and the parents of the children. Once the rule has been put in place, how is the rule enforced by an association? The association cannot arrest a child. The simplest approach is to contact the local police department and advise of the curfew violation. Remember, the law that the police department is being asked to enforce should contain the same standards as the rule that the association is seeking to enforce. This permits the police to handle the situation without forcing the association to deal with the situation.
There is a caveat. The police department may not think that it has authority to enforce the municipal ordinance. The municipal ordinance will contain restrictions, making it necessary that the violator be in a public place. The police may question whether the common areas of an association are public places. This issue arises because the common areas are owned by the association, not the general public. Unfortunately, the police may decide not to handle the complaint by the association.
Accordingly, the rule created by the association must contain a penalty. This is usually in the form of a fine that is imposed when the curfew rule has been violated. The rule should be specific about who is fined and how much the fine is. The rule can contain authority for higher fines for repeat violators. The association must be careful to follow due process when determining whether a rule has been violated. The violator must be given notice of the rule violation and an opportunity to be heard.
Case In Point
In 2009, a state Department of Fair Employment and Housing investigated a complaint, alleging that Hidden Valley Lake Association had discriminatory rules and practices that affected children and families. The complainant said that these rules and practices violated the federal Fair Housing Act. HUD accepted the complaint and referred it to the state for further action.
The complainant alleged that the association’s practices discriminated against familial status and said that the rules were too restrictive toward anyone under the age of 18. Specifically, he said that the association’s rules restrict children ages 13 to 17 from using tennis courts owned by the association. He also questioned the association’s rules that prohibited babysitting children on the tennis courts.
There was also a complaint that the curfew rules were too restrictive toward minors. The association had a curfew for children under the age of 18 between 10:00 p.m. and 6:00 a.m. This was broader than the county’s curfew for minors, which was from 11:00 p.m. to 5:00 a.m. The county curfew law also contained many exceptions, while the association’s curfew rule contained none.
The parties apparently reached an agreement to resolve the dispute. The terms of the agreement are not important for our purposes. This case illustrates the sensitive nature of these issues.
Pennsylvania Law
This writer could not uncover a reported Pennsylvania case, relating to curfew rules and homeowner associations.
Conclusion
Curfew rules implicate a number of issues and concerns. The association must make choices, both in terms of what specific provisions are contained within the rules and regulations and in the application of those rules to the real world. It is recommended that these specific rules be reviewed periodically. The association must be vigilant for changes made to curfew laws by a governmental agency to be sure that the rule is consistent with the law and not more restrictive. As always, common sense and decency are the pillars of successful property management.
Alexander D. DiSanti, Esq., is an officer of Forbes Bender Paolino & DiSanti, P.C. Forbes Bender Paolino & DiSanti, P.C., is a full service law firm with offices located in Delaware County (Media) and Chester County (West Chester), Pennsylvania. Alex has been representing condominium and homeowner associations for over 25 years. He has the highest lawyer rating given by LexisNexis Martindale-Hubbell of AV Preeminent. Alex was selected for inclusion in Pennsylvania’s Legal Leaders Presenting Top Rated Lawyers for year 2013. At the request of the National Business Institute, he has served as a faculty member and instructor of Legal Aspects of Condominium Development and Homeowners’ Associations, a legal education seminar for lawyers. Alex can be reached at (610) 627-1700 or adisanti@fbpdlaw.com. His website can be visited at www.fbpdlaw.com.
Alexander D. DiSanti, Esq., of Forbes Bender Paolino & DiSanti, P.C., has been recognized by Legal Leaders Presents 2013 Top Rated Lawyers. He has been invited to be included in the August 2013 issues of The American Lawyer and Corporate Counsel in a special section featuring “Top Rated Lawyers” in Insurance Law & Coverage. The law firm has offices in Delaware and Chester Counties, Pennsylvania.
Alex has been retained to defend personal injury and other cases by numerous insurance companies over the course of his almost 30 year career. He has handled many personal injury jury trial matters to verdict, in addition to arbitration and mediation of these claims. His website can be visited at www.fbpdlaw.com. Please contact him at adisanti@fbpdlaw.com or call (610) 627-1700 if you would like to discuss this practice area.
A Condominium Association has the Right to Enter a Unit
By Alexander D. DiSanti, Esq.
Introduction
In a popular movie series, Spider-Man, Uncle Ben, the surrogate father of Peter Parker, Spider-Man’s alter ego, says, “With great power comes great responsibility.” This article will examine the rights of an association to enter a unit, in addition to the potential liabilities inherent in the exercise of that right.
While this article will focus on a condominium association’s right to enter a unit, the analysis generally applies to planned communities, as well. Section 3307 of the Uniform Condominium Act, which has been adopted by the Commonwealth of Pennsylvania, provides, in pertinent part:
[T]he association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of his unit. Each unit owner shall afford to the association and the other unit owners and to their agents or employees, access through his unit reasonably necessary for those purposes.
The statutory law of Pennsylvania provides the association with authority to enter a unit. The governing documents of an association may provide additional detail, relating to, among other subjects, the exercise of the right to enter a unit, the obligation of a unit owner to provide keys to the unit to the association, notice requirements to the unit owner prior to entry and securing the unit afterward. Accordingly, the governing documents of an association must be reviewed to fully understand these issues as they relate to a particular community.
Gaining Access in the Real World
While the law of Pennsylvania allows a condominium association the right to enter a unit, the association must demonstrate that entry into the unit was based on the association’s responsibility to maintain, repair or replace the common elements or a provision articulated in the association’s governing documents. It may be necessary for an association to enter a unit to gain access to a problem in need of a solution.
An upper unit has a ruptured washing machine hose and water is leaking into a lower unit. The lower unit owner is complaining to the property manager. There is common space between the upper and lower units. In addition, the lower unit is being damaged by the flow of water. The source of the water flow must be stopped. Another common example, with the same theme, involves a pipe servicing an upper unit leaking, causing water to flow into a lower unit and damage to the lower unit.
What does the association do? Wait for the upper unit owner to come home, which would allow more water to flow and greater damage to occur, or deal with the problem independent of the owner. The answer is simple. The responsibility is clear, but the potential ramifications of the decision to proceed independently must be considered.
The right to access is a matter of state statute, court precedent and the governing documents of the association. What is the procedure that will be followed in seeking entry? Associations incur no liability by merely entering a unit in conformity with the law and governing documents. However, liability may attach if, for example, contractors act inappropriately. Criminal activity, such as theft of an item from the unit, and leaving the unit unsecured create problems and liability concerns.
The association may try to exercise the right to enter in an effort to determine whether the unit owner is complying with the rules and regulations of the association. For example, there may be a no pet rule. There is suspicion that a unit owner has a banned pet. There may be smoking bans. There have been complaints of smoke from a unit. Is it wise for the association to use the right of entry in furtherance of a police function? This depends on authority for the entry and the procedures used.
Absent emergency situations, before an association gains access to private property, notice of intent to enter should be communicated to the unit owner. This notice should be in writing and specifically state why access is being requested. The notice should also state the date and time the association intends to enter the unit. Typically, the unit owner should be notified at least one week prior to the date of access. (As with all of these issues, please be sure to consult the governing documents of the association to determine what may be required.)
The association should then act in compliance with the notice. It is preferable to have the unit owner present. However, this is not always possible. Access to the unit may be gained by a key provided to a friend or neighbor of the unit owner. The unit owner may offer the association a key to gain access. This creates potential liability to the association. Some commentators believe that, in the absence of an obligation of all unit owners to provide the association with a key, an association should avoid accepting a key from a unit owner. One problem relates to who has access to the key once in the possession of the association. What happens when someone abuses the situation and gains entry for unlawful purposes? There are privacy considerations, as well.
Nevertheless, if an association agrees to accept a key from a unit owner on a temporary basis, written documentation in the form of a receipt should be utilized to memorialize the date and time that the key was delivered to the association representative and when the key was returned to the unit owner. This written document should be signed by all concerned to avoid conflict.
If the association decides that it wants to have copies of keys to every unit and there is authority for this in the governing documents, there should be a written security policy to detail who has access to the keys and how the keys are secured. Again, having a copy of keys to every unit is not a recommended policy to adopt.
What should the association do if the date of entry into the unit arrives and the unit owner is not at home or does not answer the door? Assuming that the visit is not for an emergency, the association should provide a second notice to the unit owner with a later date and time.
What happens if the unit owner is again absent or fails to answer the door? Pennsylvania law does not provide associations with the right to demand keys. Some states do. At this point, consideration of legal procedures to gain access is warranted.
Emergency Situations
In an emergency, an association should provide whatever notice it can to the unit owner, whether by email, cell phone or otherwise. Records of the attempts to notify the unit owner must be maintained.
The association may be obligated to gain entry into a unit without the cooperation of the unit owner. A true emergency situation may compel the association to use a method designed to cause as little harm to the unit as possible to gain entry. This will obligate the association to properly secure the unit after the emergency repairs have been completed.
When the association gains access to a unit without the unit owner present, if the association does not have a key, a locksmith will need to be involved in the process. This will be a cost item. The cost should be borne ultimately by the unit owner. It is recommended that at least two people be present when entry is gained. One should be a member of the board of directors or a property manager. Venders should be honest and law-abiding. An association must always make security and the safety of all involved the highest priority.
Some associations notify the police in emergency situations when access to a unit is necessary. Although not required, this is generally a good policy.
Once the repairs have been completed, if the unit owner has not been notified of the emergency, further attempts to contact the unit owner are recommended. Again, these attempts should be documented. It is prudent to leave a written note in the affected unit, detailing the emergency situation, the repairs made and contact information for the unit owner. The unit owner will certainly be concerned when he returns. Lines of communication must be open.
Conclusion
Entry into a unit by an association implicates a number of issues and concerns. The association must make choices, both in terms of what specific provisions are contained within the governing documents and in the application of those provisions to the real world. It is recommended that these specific provisions be reviewed periodically. This may lead to changes in procedures and policies, either before or after these provisions become the framework for dealing with a specific incident. As always, common sense and decency are the pillars of successful property management.
Alexander D. DiSanti, Esq., is an officer of Forbes Bender Paolino & DiSanti, P.C., a full service law firm with offices located in Delaware County (Media) and Chester County (West Chester), Pennsylvania. Alex has been representing condominium and homeowner associations for over 25 years. He has the highest lawyer rating given by LexisNexis Martindale-Hubbell of AV Preeminent. Alex was selected for inclusion in Pennsylvania’s Legal Leaders Presenting Top Rated Lawyers for year 2013. At the request of the National Business Institute, he has served as a faculty member and instructor of Legal Aspects of Condominium Development and Homeowners’ Associations, a legal education seminar for lawyers. Alex can be reached at (610) 627-1700 or adisanti@fbpdlaw.com. His website can be visited at www.fbpdlaw.com.
Alexander D. DiSanti, Esq., of Forbes Bender Paolino & DiSanti, P.C., with offices in Delaware and Chester Counties, has been contributing legal insight and analysis to Pennsylvania AssociationHelpNow, a publication of Brainerd Communications, Inc. Its website can be visited at www.AssociationHelpNow.com. The publication is designed to be a resource for community associations and the businesses and professionals who serve them. If you are interested in receiving copies of this publication, please email the publisher at info@BrainerdCommunications.com or call (877) 588-5010. Mr. DiSanti focuses his practice in the areas of condominium associations and homeowner associations. He has been involved in the representation of community associations for over 25 years. His law firm’s website can be visited at www.fbpdlaw.com. Please contact him at adisanti@fbpdlaw.com or call (610) 627-1700 if he can be of service to you in these or other practice areas.
Alexander D. DiSanti, Esq., of Forbes Bender Paolino & DiSanti, P.C., with offices in Delaware and Chester Counties, has been included in the online edition of Pennsylvania’s Legal Leaders Presenting Top Rated Lawyers. This publication is a collaborative effort involving LexisNexis Martindale-Hubbell, the company that has long set the standard for lawyer ratings, and ALM Media, a leading provider of news and information to the legal industry. This honor is a reflection of his expertise, experience, integrity and overall professional excellence. Mr. DiSanti is part of a select group of Pennsylvania lawyers recognized in this publication for their legal abilities and professional ethical standards. He focuses his practice in the areas of condominium associations and homeowner associations, as well as personal injury. Mr. DiSanti would be happy to assist you in these and other areas of legal practice.