Community Associations Newsletter - April 2017

Date: April 5, 2017

Preparing Your Association for Pool Season

By: Marla J. Diaz, Esq. 

As the weather starts to warm up, it is time for community associations to start planning for the pool season.  Getting ready for the pool season does not just involve making sure that the pool company has removed the cover and filled the pool.  For many associations, this is also the time of year that the associations review their pool rules to insure that they meet the association’s needs and that they comply with the applicable fair housing laws.  For associations with delinquent owners, it is also a time to contemplate suspending pool privileges for those owners. 

If your associations decide to address these two pool related tasks, there are several guiding principles that they can use to make sure that they do so correctly and within the requirements of the law.  This article is not intended to replace a careful legal review of your associations’ pool rules or due process procedures, but can hopefully be used to make associations aware of the potential legal pitfalls associated with enforcing pool rules and suspending pool privileges.

Fair Housing Laws and Pool Rules

All residential community associations must comply with the federal Fair Housing Act (the “FHA”), the state fair housing laws, and often with human rights ordinances adopted by their local government; all of which prohibit discrimination in community associations.  While it is a good idea to familiarize oneself with the fair housing laws applicable in the jurisdiction in which your community association is located, certain general requirements found in the FHA apply to all jurisdictions. 

The FHA prohibits community associations from discriminating against any of the protected classes in the provision of services or the use of its facilities.  Practically, this means that a community association cannot adopt or enforce any rules or regulations that limit a person’s use of a service or facility of the association based on such person’s race, color, religion, sex, national origin, familial status, or disability. 

For pools, most associations find themselves unintentionally running afoul of the FHA out of a concern for the health and safety of their younger patrons.  Associations often adopt rules that:

  • Require children to leave the pool for 15 minutes of each hour;
  • Require children to be supervised while at the pool;
  • Prohibit children from horseplay or disruptive conduct at the pool; and
  • Require children who have not yet been potty trained to wear special diapers.

These types of rules are generally well-intentioned, but unfortunately, a good intention is not a defense to a discrimination claim under the FHA. 

Absent a legitimate health and safety concern, it is unlawful for an association to have a pool rule that differentiates between the way an adult uses the pool and the way a child uses the pool.  The 15 minute break rule, for example, is not related to a legitimate health and safety concern because there is no evidence that this break is necessary for children to safely use the pool.  Conversely, a rule requiring children under a certain age to be supervised is more legitimate.  For example, under Virginia principles of contributory negligence, children under the age of 12 are legally incapable of looking out for their own health and safety.  If the law says children cannot keep themselves safe, then it is reasonable to require that children be supervised at the pool.

Associations can avoid allegations of discrimination by focusing their rules on the conduct they are trying to prevent, instead of the class of people that they believe are most likely to act badly.  For example, an association can adopt a rule prohibiting any incontinent person from using the pool without wearing a swim diaper.  This addresses the conduct of concern, ie. peeing in the pool, without focusing the rule on a protected class.  Similarly, an association can adopt a rule prohibiting all persons from horseplay or disruptive conduct at the pool.  It may be more probable that children will violate this rule, but the association’s true interest is in preventing people from acting in a way that could endanger themselves or others.  By focusing on conduct and not a protected class, associations can prevent the harm that they are most concerned about without subjecting themselves to claims of discrimination.

If your associations have not recently reviewed their rules for compliance with fair housing laws, the start of the new pool season may be a good opportunity to do so.  If there are any questions raised about a particular rule and the fair housing laws, legal counsel is always available to review the rule at issue.

Suspending Privileges

The Friday before Memorial Day is a trying day for community association professionals because of delinquent owners demanding pool passes.  This day can get even more complicated, however, when it comes to light that the association lacked the authority to suspend such privileges or failed to follow its due process procedures in suspending such pool privileges.  Suspending pool privileges presents an excellent opportunity for associations to encourage delinquent owners to bring their accounts current.  However, in order for the associations to effectively use this enforcement power without incurring liability for themselves, the associations must make sure that they have authority to suspend privileges and that they are following the due process requirements prior to withholding pool privileges.

Determining whether a community association has the authority to suspend pool privileges requires a careful consideration of the statutes and an association’s governing instruments, but it is a question that must be considered before withholding pool passes.  Community associations do not all have the right to suspend privileges.  In some jurisdictions, the statutes do not automatically provide that right to all associations, and not all governing instruments permit suspension of privileges .  If your association has any doubt, it is worth asking legal counsel for a quick analysis on the right to suspend pool privileges.

Once it has been determined whether pool privileges can be suspended, the association must understand the steps that it must follow before suspending those privileges.  For most community associations, the demands of either their governing instruments or state statute require that certain due process procedures be followed before the association can suspend an owner’s pool privileges.  An association may not withhold an owner’s pool passes merely because that owner is delinquent.  In Virginia, the Condominium Act in Va. Code Ann. § 55-79.80:2 and the Property Owners Association Act in Va. Code Ann. § 55-513 provide that privileges can be suspended if an owner is more than 60 days delinquent in the payment of assessments, but only if the owner has first been given notice of the delinquency, an opportunity to cure the delinquency, a hearing before the board of directors, and notice of the suspension.  Md. Code Ann. § 11-113 of the Maryland Condominium Act similarly requires notice, an opportunity to cure, and a hearing before suspending privileges.  Neither Delaware’s nor the District of Columbia’s Condominium Act expressly require due process before suspension of privileges, but D.C. Code Ann. § 42-1903.08(a)(11) and Del. Code Ann. Tit. 25 § 81-302(a)(11) require notice and a hearing prior to imposing a fine for violation of the condominium instruments.  It appears, therefore, that there is an intention for some due process before sanctions, such as a suspension of privileges, are imposed against an owner. 

Governing instruments for many associations have their own due process requirements which can add additional requirements to statutory rules,  or can parallel the statutory requirements.  Only rarely will an association have no due process requirements before it may suspend privileges.  Even then, however, associations can benefit from instituting basic due process procedures for suspending pool privileges. 

The goal of suspending pool privileges is to get owners to cure their delinquencies.  Advance notice of pool privilege suspension will induce many owners to resolve their delinquency early.  Waiting to advise owners of the suspension until the day they come to pick up pool passes creates embarrassment for owners and contentious encounters for managers.  Often owners that are not told of the suspension until the last minute will be unable to gather the funds to pay off the delinquency.  If your association is contemplating suspending pool privileges or withholding pool passes, it should consider what authority it has to suspend privileges and what due process obligations it has before suspending those privileges.  Planning the due process procedures for suspension of pool privileges in advance will serve the dual goal of getting delinquencies paid early and avoiding a difficult Friday before Memorial Day.

If your association would like legal counsel to review either its pool rules or its due process requirements and procedures prior to the start of pool season, please do not hesitate to contact counsel at Whiteford, Taylor & Preston, LLP.

The Decision to Serve Alcohol Will Never Be Dry: Things to Consider Before Serving Alcohol at Your Next Community Event

By: Chad Rinard, Esq. 

With spring upon us, community gatherings are popular events for associations to introduce neighbors to each other, conduct annual meetings, or pass that amendment to governing documents that requires the presence of members who may be otherwise difficult to assemble.  As a neighbor and homeowner myself, the answer on whether to serve alcohol at a social gathering is a resounding: “Yes, please.”  As a lawyer, however, it is much easier to object: “Perhaps not.”  On one hand, there is no doubt that the safest course for an association is simply to resist the service of alcohol.  No alcohol, no liability.  On the other hand, the appeal of serving a cold beer or a glass of wine can be a well-deserved complement when there is a desire to bring neighbors together or build community spirit.  The option to serve alcohol, coupled with a willingness to do so, does not need to be dismissed entirely however, and can be navigated to mitigate the risk of liability for those associations that find the consumption of alcohol, in moderation, a desirable complement to their gatherings. 

The consideration of whether to serve alcohol at a community event encompasses numerous issues which tend to fall within three categories: the risk of liability to the association for damage caused by those that consume alcohol; the strict prohibition against service to a minor; and any licensure necessary to serve alcohol, which is highly dependent upon the details of the event. 

The first category, potential association liability for damage caused by those that consumed alcohol, is perhaps the scariest. The jurisdiction where your association is located is important for this issue.  For example, Virginia and Maryland are part of a dwindling minority of states that are “non-dram shop states.”  Neither state has a statute that places liability on a party that serves alcohol to individuals who, because of their alcohol consumption, causes injury to another, another’s property, or themselves.  Conversely, Delaware and D.C. prohibit the sale or delivery of alcohol to an intoxicated person, or any person who appears to be intoxicated.  Depending on where your association is located, there may or may not be a similar standard in which an association is potentially liable for the intoxication of one of its members, which makes the risk of continuing to serve anyone who appears to be having the time of his or her life entirely unappealing, and to be watched closely. 

That is not to say that alcohol, consumed in moderation, cannot be a positive addition to a gathering.  If an association decides to serve alcohol, it has discretion to limit the places where the alcohol is served and consumed.  Consumption in and near the community pool is highly discouraged.  Consumption contained in community clubhouses, to grassy common areas and within walking distance to owners’ homes is more ideal.

Next, Virginia, D.C., Delaware, and Maryland prohibit the sale of alcohol to minors. This prohibition is not surprising, but service of alcohol to exclude the consumption by minors at events to which they are welcomed may be more challenging than it seems.  Virginia, D.C., Delaware, and Maryland prohibit the knowing service or consumption of alcohol by minors.  Therefore, it is paramount for an association to ensure at any event at which there are minors and alcohol that minors are prohibited from the consumption of alcohol regardless of whom provided it to them.  It is best to have anyone at an event with alcohol to be carded before consumption is allowed, and given wrist bands for identification.  Bartenders may also be hired to limit service to those who may be permissibly served.  Finally, well in advance of any event at which alcohol is served or expected to be consumed, an association is urged to contact its insurance carrier to understand whether there is coverage for any incident that occurs at an event at which alcohol is served.  It is a common exclusion to insurance policies to preclude coverage for incidents that happen at community events at which alcohol is sold.  Association are encouraged to become knowledgeable of the risk of liability and potential lack of coverage that the service or consumption of alcohol may present.

Lastly, associations should be aware that a license may be required to serve or sell alcohol at a community event.  In Virginia, no license is required as long as an association adheres to the following: (1) the alcoholic beverages must not be charged for in any way; (2) consumption of alcoholic beverages is limited to common areas regularly utilized for private parties; and (3) the meeting or party is not open to the public.  Even if the above is satisfied, there are exceptions, such as when beverages will be sold or a fee is paid to attend the event, then a license is required to be obtained by the association. Before an event at which alcohol is to be served, it is best for a Virginia association to contact the Alcohol Beverage Control Board to determine whether a license is required.  

In D.C., a license may not be required for an event that is closed to the public and where alcohol is provided gratuitously for on-premises consumption on that premises. Notwithstanding the foregoing, if the operator of the premises provides entertainment, food, or nonalcoholic beverages or rents out the facility for compensation, a license is required.  A D.C. association therefore should confirm with the Alcoholic Beverage Regulation Administration whether an event license is required at an event which will include alcohol.        

In Delaware, a group gathering license is required to serve or sell alcohol at a community event.  The form for application to the Delaware Office of Alcoholic Beverage Control is available online at the State of Delaware’s website.  The form notes that all applicable Delaware Code provisions governing the service and sale of alcohol apply, in that, the persons in charge must still be mindful of not selling alcohol to individuals who “appear” intoxicated or are minors.  The group gathering license also has an associated fee, which is explained in the form and in the applicable Delaware Code provisions.Maryland tends to delegate rules about the sale and service of alcoholic beverages to local government.  Accordingly, any association located in Maryland should contact its local city or county government to determine any licensing requirements prior to hosting an event where alcohol will be served.   

The decision on whether to serve alcohol at a community event will never be easy.  Associations and their managers should know any requirements for licensure, or exemptions to coverage under the association’s insurance policy for incidents that arise from serving or the consumption of alcohol. Service of alcohol should be restricted so that the consumption of alcohol by a minor is completely prohibited, and service to any adult who appears intoxicated is deterred.  It is appropriate to stop service to avoid overconsumption and limit the risk of injury to guests and others.  Legal counsel is highly encouraged and recommended to assess the various details of your association’s event and ensure the necessary approvals and restrictions are in place both before and during the event.  In the meantime, “Cheers!”   

Tree Liability in Maryland, DC, and Virginia

By: Jason S. Ordene, Esq. & Anthony Clark, Esq. 

Among the many issues community associations deal with are disputes between owners regarding trees that encroach upon a neighbor’s property.  While each jurisdiction has established law on the issue, as a community, the simplest solutions are usually the best.  Therefore before resorting to the courts, residents should consider contacting their neighbors to ask whether they would be willing to fix the problem voluntarily.  While the world would be simpler if such property disputes were always amicably resolved between neighbors, in some instances, owners cannot reach an accord.  This article will explore the differences between how D.C., Virginia, and Maryland resolve these issues.

One of the most common issues homeowners face is when a tree’s roots or branches extend over the property line onto a neighbor’s adjoining property.  In this situation, Maryland has adopted the “Massachusetts Rule” and D.C. has adopted a slightly modified version thereof.  Melnick v. CSX Corp., 540 A.2d 1133 (Md. 1988); Dudley v. Meadowbrook, Inc. 166 A.2d 743 (Md. 1961).  The Massachusetts Rule generally limits a neighbor’s remedy to “self-help,” which means that when your land is invaded by branches and roots of trees, you may protect yourself there from by cutting them off to the extent that they invade your property.  When a neighbor uses such “self-help,” they must be sure to not to prune the tree past the property line, as doing so may be considered a trespass upon the owner’s property.  Furthermore, the neighbor using “self-help” may not kill or otherwise cause substantial harm to the owner’s tree.  Consequently, a neighbor using the “self-help” remedy should hire a professional arborist to perform the trimming so as to ensure that the owner’s tree is not significantly harmed. 

In Maryland, there is generally no cause of action or right to file a lawsuit for tree encroachment and remedies are limited to “self-help.”  However, there is an exception to this rule that under certain circumstances, specifically in urban areas, an owner may be subject to liability if a dead or dying tree limb falls and injures someone.  Hensley v. Montgomery County, 334 A.2d 542 (Md. Ct. Spec. App. 1975).  While D.C. generally follows the Massachusetts Rule, it has adopted a modification which allows a cause of action if there is negligence by the owner.  D.C. imposes a duty on owners of “common prudence” in maintaining their property.  See Tolu v. Ayodeji, 945 A.2d 596 (D.C. 2008); Dudley v. Meadowbrook, 166 A.2d 743 (D.C. 1961).  An example of common prudence is if there are noticeable signs of rot in the tree or some other disease that compromises its structure and stability, then the owner of the tree must take appropriate action to ensure such defects do not result in the tree damaging a neighbor’s property.  If an owner repairs a damaged tree, the repairs must be done in a reasonable and prudent manner to ensure that the tree will not later cause damage to a neighbor’s property.  If an owner has notice that their tree is damaged and is likely to fall or otherwise damage a neighbor’s property, then that owner has a duty to take appropriate steps to ensure that the neighbor’s property is protected.  If the owner breaches this duty, then they may be subject to liability. 

Virginia follows a different rule known as the “Hawaii Rule,” which states that while living trees are not ordinarily nuisances, they can become so when they cause actual harm or impose an imminent danger of harm to the adjoining property.  Fancher v. Fagella, 650 S.E.2d 519 (Va. 2007).  While self-help is still allowed in Virginia, if an overhanging branch or protruding roots actually cause, or there is imminent danger of them causing substantial harm to property, other than casting shade, dropping leaves, flowers, or fruit, the neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the neighbor may cause the cut-back to be done at the tree owner’s expense.  Virginia has limited the application of this rule stating that the “Court has never recognized, nor do our precedents support, a ruling that a landowner owes a duty to protect travelers on an adjoining public roadway from natural conditions on his or her land.” Cline v. Dunlora South, LLC, 726 S.E.2d 14 (Va. 2012).

These rules apply to trees located within an owner’s property or in the common elements.  Association boards and managers should at least understand these rules so that they are better prepared to respond should a dispute arise between neighbors about a tree, or when a tree located in the common elements causes an issue.  Associations should also review their options with legal counsel when confronted with a tree encroachment issue, especially if the association is considering using self-help.  If your association would like legal counsel to assist with a tree issue in your community, please do not hesitate to contact counsel at Whiteford, Taylor & Preston, LLP.