Sunday, July 27, 2014

Medical Marijuana, Google Glass and other new subjects for association use restrictions.

Summer is the perfect time for many associations to speak with their association attorney about updating their rules and regulations. I have been busy for the past few weeks reviewing and updating rules and regulations for all types of communities. Naturally, one of the rules which I have been discussing at length was whether or not secondhand smoke had become a problem and should be addressed.

More and more community associations are addressing the issue of cigarette and cigar smoke and even vapors released by e-cigarettes. However, very few address the issue of marijuana smoke.

Florida Governor Rick Scott recently signed the Compassionate Medical Cannabis Act  into law which allows for the limited use of medical marijuana for persons suffering from epilepsy, cancer and ALS. In addition to this law, Florida voters will be asked to decide in November if an even more expansive use of medical marijuana should be allowed by amending the Florida Constitution to permit such usage. Early polls indicate widespread support for this referendum.

Twenty-two states and the District of Columbia now have some form of law that permits the use of marijuana for varying medical purposes.

Of course, this new right is accompanied by a countervailing concern about how the use of and growing of marijuana might impact neighbors living in shared ownership communities. The starting point for associations in other states which have preceded Florida on this path has been the passage of rules limiting the smoking of medical marijuana in common areas as well as on balconies, patios, front and back yards.

Regardless if you see this as a personal-freedom issue or just another potential usage that should be regulated by your association, the fact remains that new laws, new technology and new products coming on to the market bring with them the need for boards and residents to evaluate how they wish to see their communities operated.

Another example of a rule which was requested by an association board for the first time recently pertains to wearable technology. In this community, a few residents using Google Glass presented questions about security risks as well as data and personal privacy concerns. Wearable technology encompasses not just Google Glass but other wearable devices such as health monitors, watches, GPS devices, cameras, etc. The basic concern with wearable technology is that there will be no telltale signs that the tech users are taking pictures or video or tape recording conversations. In fact, the very appeal of wearable technology is that it can be used with little or no effort.

Whether we are talking about smoking marijuana or wearing Google Glass, any usage which falls within the definition of a nuisance can be regulated as such. Otherwise, your association may wish to get a little more specific about these and some other new member behaviors which have popped up on your radar.



Monday, July 21, 2014

New Blog Name...Even Broader View of Community Association Issues!

Congratulations!!

You are reading the first post I am writing under the name of my new blog, the Community Association Law Blog. If you are reading this post, it is likely that you have followed my association blog for some time already now.

For the past decade, I have blogged about issues that confront all types of community associations throughout the U.S. and the world. A quick perusal of our archive reveals that we have covered an awful lot of ground together over the years.

Today my old blog URL was redirected without my knowledge to a law firm with whom I have no affiliation. Rather than risk any interference in my blog postings, I have created this new URL to continue without missing a beat.

Please make a note of the new Community Association Law Blog which can be found at www.communityassociationlawblog.com.

I look forward to many more years of sharing insights, experiences and some humor on the various issues that impact the millions of Americans who live in condominiums, cooperatives, homeowners' associations, mobile home parks and timeshare communities.

Warmest Regards,
Donna

Which affirmative defenses might derail your community's enforcement efforts?

Most association boards can decide when they wish to pursue an owner who has violated the community's restrictions. However, it is the rare board that undertakes a thorough analysis before sending out those demand letters to determine if the owner can use any affirmative legal defenses to successfully challenge the association's enforcement efforts.

Naturally, enforcement decisions should not be made in a vacuum. Association boards are well advised to consult with their association attorney to determine (a) if they have the authority to enforce the restriction they wish to enforce and (b) if there is any current or previous situation which would make such enforcement challenging at best and impossible at worst.

Let's look at some of the affirmative defenses which might derail your board's enforcement efforts.

Laches-this legal doctrine denies claims in which the person or entity asserting the right has delayed for a considerable amount of time in asserting that right or claim and such delay could prejudice the adverse party. If a board knew an owner had erected a shed in violation of the covenants and restrictions but waited several years to pursue enforcement, laches may be raised as an affirmative defense.

Equitable Estoppel-this affirmative defense comes into play when a court will not grant legal relief to a party who has not acted fairly.  For example, if an association improperly assigned parking spaces and then attempts to enforce the parking space restriction against an association member, the defense of equitable estoppel could be used. This defense brings to mind the legal maxim-"he who seeks equity, must do equity."

Waiver-in this affirmative defense, the association would have voluntarily surrendered a known right. That could be a right which derives from the statutes or from the association's governing documents. An example of waiver would be a board which fails to make an approval decision on an application to purchase within the time period set forth in the governing documents.

Selective Enforcement-An owner can use the affirmative defense of selective enforcement to prove that the association is enforcing the restrictions in an arbitrary manner against some owners and not others. Unfortunately, many owners rely too heavily on this particular affirmative defense to challenge all attempts by their association to enforce the rules. For example, if an association fails to pursue an owner for a mailbox violation that does not necessarily create a selective enforcement defense by an owner who is being pursued for a pet violation. Florida courts have held that a successful selective enforcement argument in the association setting requires an "apples to apples" scenario.

If you are a board member attempting to enforce your use restrictions, please speak with experienced association counsel to ensure that a possible affirmative defense is not lurking out there. If you are an owner who is being pursued for a violation, ask yourself if any of the foregoing defenses might apply to your situation.