At the recent UCOM seminar, I was asked to speak on pressing new legal issues affecting condominiums. While we cannot look in a crystal ball to envision every single issue that may come up, there are various issues which have surfaced over the last three to five years which will, no doubt, take a more prominent role in the issues facing community association and condo boards in 2015 and beyond.
It will be the focus of this article to highlight some of the issues which need attention by boards of directors of community associations who may not have a keen appreciation for these issues which may be germinating at their condominium project.
First – Medical Marijuana. It is, of course, the perennial issue of medical marijuana. In a landmark decision by the Michigan Supreme Court, it was determined that local municipalities may not ban the use of medical marijuana within their boundaries which overturned many local ordinances, including local ordinances in Livonia, Birmingham, Bloomfield Hills and Lyon Township. While that applies to local municipalities, it does not necessarily apply to condominium associations. There is a basis by which the condo association can consider banning medical marijuana from being dispensed or cultivated in any unit or upon the common elements and require that medical marijuana can only be consumed inside the unit space by the occupant of the unit to whom it is prescribed based upon his or her medical condition so long as all effects therefrom are contained within the unit space and, of course, unless prohibited by federal law which is being enforced.
Two – Smoking. Those of us who like cigars are in trouble in many high rise condominiums where the smoke, even on the balcony, traverses to other condominium units. Infiltration of smoke between units and even on the common elements can be a problem. The association may ask to intervene and some associations are considering or have implemented a ban on smoking. That, of course, is a two edge sword in that to the extent that people cannot smoke in their condominium unit, that may inhibit not only resale, but what certain people consider to be their basic liberties. Obviously, this is an issue which should be discussed between the Association Board and its legal counsel before any action is taken or contemplated.
Three – Emotional Support Pets. The Federal Statutes, i.e., the Fair Housing Act, the Americans with Disabilities Act and State Civil Rights Acts, such as the Elliott Larsen Civil Rights Act, provide protections for disabled persons against housing discrimination. These statutes and corresponding case law hold that an emotional support animal is a reasonable accommodation for a mentally disabled person and depression is a recognized disability. A condominium association’s refusal to waive a no pet policy to allow the emotional support animal could be a violation of federal and state law. Condo associations can ask for proof of disability, such as a letter or prescription from an appropriate professional such as a therapist or physician, which should thereby entitle him or her to a reasonable accommodation that would allow an emotional support animal in the unit. However, one should be aware of disability letter factories which have sprung up who will write a letter for someone regardless of whether or not the disability is legitimate.
Four – Hoarding problems affecting safety and aesthetics. More and more condominiums are being faced with persons who are hoarding all types of personal property and other refuge in their condominiums. Condominium associations have an obligation to intervene if the problem affects safety, aesthetics, etc. For example, in a multiunit building, a fire hazard in one unit caused by a hoarder can directly affect all other units in the building. Unsafe sanitary conditions, even in a detached condo, can pose problems for other units in the condo. Our experience is that the Board of Directors must be aggressive in pursuing hoarders who obviously may also suffer from a mental disability.
Five – Electrical and Natural Gas Vehicle Charging Stations. Condo associations are increasingly being asked to allow co-owners to install electric charging stations. What about natural gas charging stations which may be next on the agenda. The problems with these types of situations include fire hazards caused by overheating of charging elements causing risk to the attached units and garages. Obviously, modifications need to be in writing and clearly delineated, including the responsibilities for maintenance, repair, replacement, extra insurance, etc.
Will the association be required to ask to put in actual oil based gasoline pumps, or otherwise be labeled as discriminatory as it relates to favoring electric cars.
Six – Bed Bug Infestation. A problem that is increasingly bugging condo association is the spread of bed bugs, particularly, in high rise condos. This is something that Boards will have to consider along with other types of pest control procedures.
Seven – Political Signs. When will the association be precluded from allowing someone to put up a political sign. Is there a first amendment or constitutional state consolidated right that applies to private entities such as condominiums as some cases have seemed to suggest and/or does a State Constitution preempt condominium bylaws. These are issues that will have to be considered.
Eight – Leasing and Investor Problems. Many of our clients are seeking limitations on the number of units that can be leased to avoid investor speculation and/or other economic conditions causing the units to be leased. What is the limit that can be placed on a condominium’s co-owners right to lease his unit? Are these enforceable and are they being enforced in a uniform and consistent manner? Will these, in any way, assist in getting in FHA Certification and/or VA approval? Getting these types of approvals become more effective with the secondary mortgage market being more difficult to from which to obtain financing.
Nine – Drones. There are already condos in California where drones are being used by management companies to survey the vast estates comprising the condominium project. Drones will continually be a problem for condos in terms of delivery of personal property, food, surveillance toys and the like. Issues of privacy will continue to abound and the Association must come up with various procedures and rules to deal with drones, large and small.
Ten – Oil and Gas Leases. Many associations are being faced with the prospect of oil and gas companies wanting to drill in common areas and, in some cases, units in the condominium, or requesting permission to drill and/or are going on adjacent properties which arguably impact on the common areas of the condominium project even though the drilling is not directly on same. This will continue as America’s thirst for home grown energy increases and condominium associations must be prepared to deal with these contingencies.
Eleven – Solar Panels. Let’s not forget solar panels being placed on condominiums by the aftermarket. Does the Association want to have solar panels architecturally and/or aesthetically and does the Association have the right to ban solar panels.
Twelve – New Amenities. New condo associations offer many amenities that the older condo associations do not have and in the past have not wanted. However, one can expect new trends from associations such as fire pits and splash pads, those alluring water sprays that do not hold standing water, DMX trails for jogging and walking, swimming pools, enlarged pools, a teen slide and even a kiddy park with pirate ships, bike trails, concert stages to serve the number of growing young families that may be moving into the community. Obviously the association must be cognizant of the members’ concerns and work together to find conclusions and solutions which may challenge the Board of Directors both esthetically and financially.
The above are only a few examples of the kinds of issues facing condominium associations in 2015. What is clear, however, is that condominium boards will be challenged to deal with some of these, if not all of these issues, and that with the benefit of good property management, and astute and creative legal consultants, condominium associations should be able to directly and successfully confront these issues.