Community Associations Update - April 2013

Date: April 5, 2013

Maryland: Who Bears the Burden of Proof as to the Reasonableness of a Requested Accommodation?
By: Jennifer S. Jackman, Esq.

The Maryland Court of Appeals has shifted the burden in disability discrimination cases and now requires associations to prove that a requested accommodation was unreasonable.

Under the Fair Housing Act, an association is required to allow an accommodation if the accommodation is reasonable and necessary to afford disabled persons equal opportunity to use and enjoy housing. In Maryland, up until a recent decision by the Maryland Court of Appeals, the burden of proving that an accommodation was reasonable fell to the person requesting the accommodation. That has changed.

In a March 28, 2013, decision from the Court of Appeals in Board of Directors of Cameron Grove Condominium v. State Commission on Human Relations, married unit owners, in an over-55 community, filed suit against their condominium association claiming that the association’s refusal to provide keys to the side and back doors of their condominium building amounted to disability discrimination. The owners claimed that by not having keys to the doors located closest to their units, they encountered difficulties in gaining access to their homes and carrying out daily activities. The owners submitted written requests with statements from physicians indicating that the keys would help them with their disabilities. The Association declined to provide the keys, citing security concerns and explaining that (1) the doors were heavy and dangerous for residents to use, (2) the keys could be duplicated, causing security breaches, and (3) installing a passcard system and safety doors would cost $19,000. The owners argued that the Association’s denial of their request amounted to disability discrimination. The Court sided with the owners and noted that the owners only requested copies of the keys – not a new entry system.

After years and years of appeals in this case, the Maryland Court of Appeals was asked to decide which party, the owners or the association, had the burden of proving the reasonableness of a requested accommodation. The Court of Appeals decided that once the owner shows that the requested accommodation is generally reasonable, the burden shifts to the association to prove that the accommodation is actually unreasonable, given its cost and the financial status of the association. The Court noted that plaintiffs in such cases rarely have the necessary financial information to prove that the association has the resources to afford an accommodation, so the Court shifted the burden to the party refusing the accommodation. (In the context of community associations, this finding is interesting given the owner’s right to review the Association’s financial records which arguably would provide the owner with sufficient information to reach a conclusion.) In addition to the financial considerations, the Court rejected the Association’s arguments that providing keys would create safety concerns. So the final decision was that the Association failed to prove the requested accommodation was unreasonable.

This case serves as a reminder that Associations should adopt reasonable accommodation policies. Associations need to be mindful that the Fair Housing Act contemplates that owners and associations will engage in an interactive process if the requested accommodation cannot be granted by the association so that the parties can explore other possible options. Finally, before denying a request for an accommodation, it is always a good idea to consult with legal counsel, particularly in light of the Court of Appeals’ decision in Cameron Grove.

E-Mail: Pitfalls and Precautions
By: Alexander N. Rouhani, Esq.

Takeaway: Boards of Directors will find it useful to set up and maintain an email service for the Board members to conduct their business, but should make an effort to educate users to limit their communications to relevant business topics to avoid violating any open meeting requirements.

Discussion: Email has become one of the most preferred methods of communication. It is fast, easy and can be sent from anywhere. However, choosing to communicate by email can create a host of problems for Board members, especially in the context of litigation and open meeting requirements.

Litigation: While it is never pleasant to deal with, litigation is often inevitable at some point for associations and their Board members. During litigation, any communications related to the subject matter of the suit can become relevant to the case, including emails sent by and between Board members. This can be problematic for Board members who use their work or personal email accounts to conduct Board business.

If a work email address is used, the employer may receive a subpoena requesting the production of the Board member’s email communications. Accordingly, the Board member may find themselves in violation of a company policy if their employer has a policy prohibiting the use of a work email address for personal matters. This is especially relevant when an employer is concerned about exposing confidential information to outsiders. Furthermore, a subpoena of this nature would require the employer to expend resources examining the employee’s email account to determine what is and is not necessary to produce.

If Board members use their personal email, they could face a similar dilemma. Emails about totally personal matters, such as friends, bills, financial responsibilities, and stories about children and spouses, will have to be produced unless all of the emails are appropriately categorized to determine which ones are relevant to the subject matter of the litigation. This can often result in a great deal of embarrassment to all those involved.

Open Meeting Requirements: When communicating by email, Board members must also be wary of violating open meeting requirements. In Virginia and Maryland, except when in an executive or closed session, Boards are required to conduct business in a forum open to all members of the association. This includes discussing the matters at hand, as well as voting on them. Accordingly, it can be considered a violation of the open meeting requirements if Board members discuss such matters via email and they may find themselves embroiled in unwanted legal action.

The District of Columbia does not have the same statutory requirements for open meetings as Virginia and Maryland, but the association’s governing documents could create a similar burden. As such, Board members of associations located in D.C. should carefully read their governing documents to determine whether they have open meeting requirements. Regardless, it is still recommended to limit what is discussed via email.

Solution: There are several things a Board can do to avoid the pitfalls discussed above. One of the most simple and effective solutions is to set up and maintain an email service for all Board members. This can be done for free over popular email service providers, such as Gmail or Hotmail. Additionally, the Board can choose to set up its own account or domain at a low cost. This will help eliminate problems surrounding potential litigation, as well as any subsequent personal or work-related issues.

Unfortunately, there is no simple technological solution, like the creation of a new email address, to prohibit Board members from communicating via email about matters that must legally be discussed at open meetings. Accordingly, Board members should attempt to avoid using email to discuss all Board-related matters as much as possible. While email is convenient, there is nothing that can be accomplished over email that cannot be accomplished in a face to face meeting. Realistically, it is impossible to completely restrict Board members from discussing association matters via email, but at the end of the day, remind Board members that the less that is discussed over email, the better.

Installation of Electric Car Charging Stations
By: Roberto M. Montesinos, Esq.

Over the past year, community boards have faced an increasing number of requests from owners wishing to install electric car charging stations (“ECCS”) in their assigned common element or limited common element parking spots. Given the growing popularity of fuel efficient vehicles, community boards can only expect to receive mounting requests of this nature in the future. In this article, we will explore a number of issues that community boards should consider with respect to the installation and maintenance of ECCS.

First, some information about the technology itself and possible risks associated with it: this article focuses solely on single-unit charging stations running on residential current. More sophisticated units, able to charge several vehicles at once or to "fast charge" a single vehicle, are quite sophisticated and typically offered only by utilities or municipalities.

However, even a home ECCS is more sophisticated and faster than charging off a standard house wall socket using an extension cord. The risks involved include a car driving away without properly uncoupling from the charger; overheating of the electrical circuits; and failure of the grounding protection. Moreover, because the technology is new, safety measures and technical standards are evolving rapidly. A system that is acceptable today may fail new, higher standards next year.

So, given these uncertainties, there are six major points of consideration that community boards need to keep in mind in developing a policy that would permit an owner to install an ECCS: (1) Type of equipment, (2) Installation, (3) Maintenance, (4) Indemnification and Release, (5) Insurance and (6) Termination. We will briefly address each of these points below and recommend that community boards adopt a policy addressing all of these concerns.

Initially, the equipment proposed for installation should meet all existing technical standards. Currently, the Society of Automotive Engineers (SAE) is leading the drive to develop uniform standards in the US. Beyond those, the planned installation may need to meet requirements from the local jurisdiction (state/county/city) and the local power provider.

Owners should submit complete plans and specifications drawn up by by a licensed and insured professional. The board should retain the authority to turn down the proposal based on the recommendations of its own independent professional, whose judgment will be final.

Assuming the proposal is approved, the actual installation must be carried out by a properly insured and bonded professional after the owner has obtained all necessary permits and delivered copies of them to the board. The policy should provide clearly that costs of installation, maintenance and repair of the ESSC are the sole responsibility of the applying owner.

The policy should also outline clearly the maintenance responsibilities with respect to the ECCS. These responsibilities may include a requirement for the periodic inspection of the ECCS and providing evidence, such as a certificate from a qualified inspector, that the ECCS is in good working order and safe. The board also needs to consider how the electrical costs associated with the ECCS will be paid for.

A sub-metering requirement could be imposed or a base monthly rate could be charged based on professional estimates. In either case, the board should reserve the right to increase charges to meet increases in costs of electrical service.

As part of the policy, we also recommend that the board require an applying owner to sign a written agreement indemnifying and holding the community (and its officers, employees and agents) harmless from claims related to the installation and operation of the ECCS. Evidence of an insurance policy covering the ECCS should also be provided.

Finally, the board should also reserve a right to terminate the privilege to maintain the ECCS. There are a couple of reasons for this. Firstly, the board will want to maintain this right in order to force an upgrade in equipment as the technology develops, standards evolve, and newer equipment is proven safer. Secondly, the board needs the termination power as a way to sanction an owner in the event that the ECCS is not operated in accordance with the community policy. Additionally, the board will want to have the authority to remove the ECCS in the event that common area repairs or renovations are ever required involving the affected areas. Lastly, the community board will want to reserve the right to remove the ECCS in the event that an owner sells his unit and/or assigns his parking space to another party. In this regard, the board may require an initial deposit from the applying owner in the event that removal is ever required.

Fuel efficient vehicles and similar developing technologies are going to require community boards to ensure that their associations have the appropriate safeguards in place in the near future. Please do not hesitate to contact us if your community requires any guidance in dealing with these issues and in drafting associated policies and agreements.

New Form I-9 Released

On March 8, 2013, USCIS released a new Employment Eligibility Verification Form I-9. Employers should begin using the new Form I-9 with revision date 03/08/13 immediately for all new hires. The revision date is on the lower left of the new form (Rev. 03/08/13)N. Employers may continue to use previously valid Forms I-9 (Rev. 08/07/09Y and 02/02/09N) for 60 calendar days. Beginning May 7, 2013, employers must only use the new Form I-9 (Rev. 03/08/13)N. In the cases of reverification or rehires the new version of the Form I-9 (Rev. 03/08/13)N must be used. For more information, please refer to the Federal Register notice. You may obtain the new Form I-9 (Rev.03/08/13)N by visiting I-9 Central or the USCIS website.

Here are some of the changes to the I-9:

  • Form I-9 is now two pages
  • Expanded instructions
  • New fields for e-mail address, phone number and foreign passport in Section 1

Employers are required to complete Form I-9 for all newly-hired employees to verify their identity and authorization to work in the U.S.