Page 15 - WFL Cooperator Winter Expo 2020

FLCOOPERATOR.COM THE WESTERN FLORIDA COOPERATOR —EXPO 2019 15 impact on the association or others, it would be a discriminatory act if the HOA refused to allow the owner to perform modifi cations \[or other preventive measures\] at that owner’s cost. If modifi cations are needed to fully use and en- joy their premises…it’s best for the board to permit \[the alterations\].” Smoke Secondhand smoke is a known health haz- ard and has become a major issue in both resi- dential and commercial settings. Smoking is banned in many public and semi-public places by local ordinance, and in the governing docu- ments of many condominium and cooperative communities, smoking is banned in public or common areas. In New York City, a local ordi- nance was recently enacted requiring all resi- dential buildings—condo, co-op, or rental—to post a property-wide smoking policy. Shapiro tells us that smoking, while prohibited in com- mon areas in most associations, is still permit- ted in individual units in Massachusetts. According to Scott Piekarsky, an attorney and principal at Piekarsky & Associates, lo- cated in Wykoff , New Jersey, “If someone is af- fected in their unit by conduct in another unit, then for good or bad, that problem is the asso- ciation’s problem. Smoke is obviously traveling through limited common elements—which the association is responsible for—so they’ve got to address it,” or risk costly, acrimonious litigation. “Furthermore,” says Piekarsky, “in New Jersey condominiums, there’s a state legal re- quirement that residents be off ered alternative dispute resolution (ADR) to resolve confl icts \[before litigation is permitted to move for- ward\]. Simply, if there is a dispute between unit owners, or an owner and the association, the association must provide ADR mechanisms to resolve the dispute. Automatically, the associa- tion is in the loop.” Shapiro points out that resolving the issue of an allergen or other environmental irritant comes down to a matter of who has jurisdic- tion over the means by which the irritant is being transmitted throughout the building. “It can be a question,” she says, “of whether the as- sociation manages the HVAC system—which typically it does. Can they put in fi lters? \[Th e board’s\] best course of action is to take whatev- er action they can within their power; whatever is beyond the capacity of the association to do must be sent back to the owners involved in the confl ict to be worked out between them.” Pets For many residents, pets are an important part of their lives, whether it be a dog, cat, or goldfi sh. For others, neighbors’ animal friends can be the source of much sniffl ing and teary eyes, or may even aggravate more serious con- ditions, like asthma or emphysema. Obviously, people with serious animal allergies or sensi- tivities to dander or pet hair should opt not to keep pets in their unit—but what about those residents with the most severe sensitivities, for whom pet dander and odor, like secondhand smoke, can pass from unit to unit through HVAC systems? Ordering pet owners to give up their furry or feathered family members clearly isn’t an op- tion—at least not in buildings or HOAs whose governing documents allow pets. Speaking of her own state, Magill says, “If you don’t have a restriction in your documents that prohibits pets, then under the Florida State Condomin- ium Law, you have no right to tell anyone to get rid of their pets.” Th at said, however, “Th e association does have an obligation to make an accommodation—or even allow a physical alteration to the premises to ameliorate the im- pact of \[an allergic resident’s\] disability.” Co-op vs. Condo Hakim points out that in New York, where there are numerous co-op buildings, the cir- cumstances may be a bit diff erent due to the relationship between the co-op shareholder, who lives in the building under a proprietary lease, and a condo owner, who is a member of an association and an owner of real property in his/her own right. “In a co-op, due to the nature of the legal relationship between shareholder and the co- operative corporation, the board of directors has a legal obligation under an implied War- ranty of Habitability to ensure that a \[resident’s\] apartment is safe and livable at all times,” says Hakim. “Irrespective of whether any claimed odor-related illness rises to the level of legal disability (for which the board would have to work towards making reasonable accommo- dations), the board must ensure that no condi- tion is created or permitted that would breach the complaining shareholder’s Warranty of Habitability.” In the case of drift ing pet dander, for ex- ample, Hakim says, “Th at would include tak- ing measures to ensure that any neighboring cats—including their dander and odor—are not materially and adversely aff ecting the other occupants of the building. Th e board will want to investigate the claim and work with the par- ties to fi nd resolution. In either event, a deter- mination should be made confi rming the al- leged conditions, that they are the cause \[of the complaining residents’ symptoms\], and that \[those symptoms\] rise to the level of disability under the ADA and/or are suffi cient to consti- tute a breach of the Warranty of Habitability or proprietary lease. Under most proprietary leases, a shareholder is not permitted to allow unreasonable odors to escape their apartment, so if odors—caused by cats, for example—are escaping the apartment, it could constitute a breach under the proprietary lease.” Hakim goes on to say that “In a condo- minium, where there is no proprietary lease and implied Warranty of Habitability, the as- sociation’s obligations—if any—would gener- ally depend on whether the dander and odors are directly related to the cats, and whether the alleged sickness is so severe that it would con- stitute a disability under the ADA. If so, then the condo’s board of managers would have to work towards fi nding a reasonable solution— though generally speaking, in the case of both a co-op and condominium, they are not required to demolish, materially change, or build some- ENVIRONMENTAL... continued from page 13 thing from scratch. Th us, possible solutions Clearly, the association and its insurer will do hing from scratch. Th us, possible solutions Clearly, the association and its insurer will do hing from scratch. Th us, possible solutions (short of trying to have the off ending animals everything they can to eliminate mold from removed) may include adjusting the airfl ow in the property aft er a fl ood or other catastrophic an apartment, sealing off gaps, or requiring the event. adjacent apartment owner to install HEPA or similar air fi lters.” Chemicals Another potential hot-spot is the use of it’s their responsibility. If the portion of say, a chemicals indoors to control or eradicate in- sects and rodents, and outdoor pesticides to sociation’s common area, it’s the association’s maintain landscaping. Many residents claim responsibility. Th at is without regard to liabil- the chemicals used adversely aff ect them, their ity factors. In Florida, the law has changed so kids, or their pets. Shapiro points out that in that the association insures the entire build- today’s ecologically conscious world, many as- sociations request—and many exterminators doors, A/C units. Th is enables the association use—environmentally friendly chemicals. If a to rebuild aft er a casualty loss, even if the unit resident has a problem with even those, that owner decides not to step up and rebuild their resident should be notifi ed in advance that the apartment interior.” She adds that it’s com- exterminator is coming, so they can make ar- rangements for themselves and their family less the units are physically connected—think (and their pets, if necessary) to be away from townhouses—“Th e owners are responsible for the building until the fumes dissipate—usu- ally just a few hours’ time. “I don’t think we have to fail to protect all the other owners from sonable. If an association can make an accom- vermin,” Shapiro says, “because someone’s pet modation, they should.” As with so many is- doesn’t like pesticides.” Mold In certain situations, it’s obvious that a con- dominium association or a co-op corporation is obligated to remunerate any damage caused by the growth of mold on their property. In the case of Florida, for example, such situations usually fall under what is known under Florida law as a “casualty loss”—in other words, the result of a natural disaster like a hurricane. But what about other potential mold prob- lems not caused by a natural disaster? Accord- ing to Magill, “If one has mold in their unit, pipe, that is the cause of the mold is in the as- ing; structure, internal plumbing, windows, pletely diff erent for an HOA. In an HOA, un- everything.” In the fi nal analysis, says Shapiro, “Be rea- sues in co-op, condo, and HOA living, aft er the incident, you’re still neighbors and you have to live together and with each other. n AJ Sidransky is a staff writer/reporter for Th e Western Florida Cooperator, and a pub- lished novelist. t t See us at Booth 315