By: Barbara Hager
All of us at times are messy people – we save too many things, or do just a bit too much shopping online, and pretty soon our homes are “cluttered” and full of junk. We get “joy” from all we own and will not get rid of anything! Does this mean we are hoarders?
There is a difference between having too much stuff and being a hoarder. The Association will know a true hoarding situation when the condition of a unit affects the health and sanitation of the neighboring units, not just the one messy unit. Vermin, cockroaches, the smell of dead animals (former pets not disposed of properly) and the smell of rotten food are all signs that someone is a hoarder. Hoarding is a recognized disability. True hoarding affects the neighboring units and threatens the health and safety of other unit owners and occupants. Hoarding also presents a serious fire hazard.
Because it is a recognized disability under the law, hoarding must be handled very delicately by the Board of Directors in order to avoid allegations of discrimination under fair housing laws. There should be no jokes, disparaging remarks or anything negative said at Board meetings or elsewhere about the hoarder. Although the rules usually say unit owners must keep their unit in “good condition” hoarders cannot be handled in the same perfunctory manner other violators of the rules are handled. Before fining or bringing the hoarder to court, due to fair housing and discriminations, the Association must try to assist the hoarder to clean up the unit. This is very different from simply calling in the violator of the rules for a hearing and then issuing a daily fine until he cleans up the unit. More cooperation and help by the Association is required.
A good place for the Board of Directors to start is to call the fire department, health department and or social services department of the municipality. Sometimes the fire marshal will issue orders to clean up the unit if it is a fire hazard. Additionally, municipalities may have social service departments or other advocates available to help hoarders deal with both their unit condition and their mental health condition.
If the municipalities cannot or will not help, the Board will want to begin its approach to the problem. It should first informally call the unit owner in to discuss (in executive session only, not publicly) the Association’s offer to help. Additionally, if there are other relatives or unit owners who are friends or relatives of the hoarder the Board might ask them for assistance in approaching the problem. Fines can be levied but first give the unit owner a reasonable period of time to do a basic clean up. However, the hoarder may simply pay the fines but do nothing to change or clean out the unit. Then the Board may consider bringing an action in court seeking a court order (injunction) to have the judge require the hoarder to clean up their unit. Of course, if the hoarder does not pay the fines, after the fines exceed two months of common charges the Board may proceed with foreclosure.
Judges may be reluctant to order the hoarder to clean up unless the Association has sufficient evidence (from neighbors, health department, fire department, social workers etc.) about the extent of the problem and how it is threatening the health and safety of other unit owners. Therefore, it is important to keep detailed records of the situation. Contact legal counsel should you have any issues regarding hoarders and would like legal advice on how to handle the situation.
By: Andrea Dunn
It’s that time of year…finally!!! It’s been a long winter and the residents are tired of being indoors. With the snow gone, the lawn and gardens are on full display. Are you happy with the landscaper? Many times, things do not go as planned with a landscaper. Promises are made to get you to sign that contract, but once signatures are obtained, it’s as if your 15 year old nephew could do a better job for $50.00. You feel trapped. You are in the middle of a long term contract and it is clear that things are not going to work, but you have no idea how to move on. Here are some tips and things to consider:
1. Do your homework before signing a contract. Ask for references and actually speak to the references. Your property manager is a great resource and has many companies that he/she has worked with and can be a wealth of information. Go and look at accounts that the landscaper is currently servicing. Do you like what you see? Do a google search and read reviews. It is clear that many disgruntled customers are ones that cannot be made happy, but if you are seeing a reoccurring theme in the complaints, there may be a ring of truth to the complaints. Do a search of the court website: www.jud.ct.gov to see if the landscaper has been sued before and why. Check to see if the licenses needed are valid. Did you know that fertilization requires a license?
2. The Contract: Please read it thoroughly and have your attorney review it. Each community is different as to what it needs with regard to landscaping. DO NOT BASE YOUR DECISION ON PRICE ALONE. Cheaper is not always better. Long term contracts are risky. You may want to do a short term contract with a new provider to make sure he/she is going to work out and minimize the time you need to deal with him/her if things go south. A few things to look out for in landscaping contracts:
a. Automatic renewal clauses: many contracts contain language that allows the contract to automatically renew with a percentage increase in the cost. Often, these clauses have specific requirements of notification to prevent the automatic renewal. Often, a period of 60 or 90 days of notice is needed to prevent the automatic renewal. Attention to this detail is imperative.
b. Scope of Work: specific details are an absolute must. Every duty/expectation should be clearly written out with specific detail. Phrases like: mow the lawn as needed or clean the beds as needed are not helpful and can become a problem if a disagreement occurs. If you want a specific height of the lawn, please state it. If you want specific plants, mulch, fertilizer, edging, etc., it needs to be clearly stated in the contract.
c. Insurance: the landscaper needs to provide the association with proof of workers compensation and general liability insurance. Check with your insurance carrier on this to make sure you obtain what is necessary and how it relates to your coverage.
d. Warranties: the landscaper needs to stand behind his/her work within the acceptable guidelines for the industry.
e. Defaults and the process to terminate the contract. There is a reason I suggest you be specific in the scope of the work. If you need to get out of the contract, specificity is your friend. Make sure the contract lists what constitutes a default: failure to perform services as contracted in a workmanlike manner, insolvency/bankruptcy, material breach of any part of the contract, etc.
f. Remedies: most contracts will contain a paragraph allowing for termination of the contract upon notice of default and failure to cure within a certain number of days. Many associations do not want to give the landscaper an opportunity to cure his/her defaults. By the time things have reached this stage, the parties no longer wish to deal with each other at all. DO NOT SKIP THIS STEP. To keep the association from breaching the contract, you must follow the contract and the processes listed therein. If the landscaper fails to cure the defaults (fix everything complained of), the contract most likely is considered terminated. Most landscapers will come to the property manager and board and want to work things out as these contract are the only source of income for these companies and they want to keep your business.
g. Dispute resolution: most contracts contain this paragraph. This mandates that any dispute arising out of the contract, if not resolved, must be resolved by Alternative Dispute Resolution. This is an administrative process that forces the parties to use an arbitrator instead of filing a court action. Parties meet with an arbitrator and present their issues and the arbitrator issues a decision that is final. The parties have to pay for the arbitrator. A discussion should be had about whether or not the board wishes to allow this or ask that it be removed. A discussion with your attorney on the pros and cons of arbitration is recommended.
Conclusion: Be specific and clear as to what your expectations are with regard to landscaping. Protection of both parties via the contract is imperative. Do your homework even though it may take extra time to check on the prospective landscaper. Happy Spring. May your property look glorious and beautiful and your landscaper be amazing.
By: Barbara Hager
It is getting warmer out (slowly) and your association may be reviewing your recreation and pool rules, especially those regarding children, to get ready for the summer season. In the summer there are children out of school playing around and about the complex, and everyone swimming in the pool.
Be careful in making rules specifically aimed at children. In the old days (before the 1988 Federal Fair Housing Laws) associations typically had several rules regarding children which just seemed to “make sense” and were made with the intent of protecting health and safety. However, several of these old “common sense” rules may now be found to violate federal anti-discrimination laws, in the federal fair housing area. Fair Housing law does not permit discrimination against anyone based on “familial status” and this includes families with children.
For example, “children may not play in parking lot or in common areas” has been found to discriminate against families with children.
“Children under 5 not allowed in pool” or “children not allowed to swim after 5:00PM” are both illegal under federal fair housing laws. Additionally, “children must wear rubber diapers in the pool” is problematic. An acceptable way would be to say, “those with incontinence problems are required to wear a rubber diaper/undergarment in the pool.”
“Children may not swim without adult supervision”. This has been found to be illegal because not all adults can swim and many children may swim very competently. A better way to state this would be “anyone who does not know how to swim is not allowed in the pool.” This makes it clear you are aiming the rule at safety generally and not at particular persons. (You can make an exception for those taking swimming lessons with a certified swim instructor).
All these types of rules have been recently found to be in violation of the federal fair housing law which prohibits discrimination based on family status. Rules directed specifically at children are now problematic. Instead, your rules should be directed to the behavior you want to regulate, not the persons.
So instead of saying, “children may not play in the parking lot” the rules should state “no playing in the parking lot. “
Regarding pools, “adult swim time” should just be termed “lap swim time” which leaves room for children who are good swimmers to participate. Forbidding children from using the pool at times it is still open for adults is outright illegal.
The key to remember is, rules that were perfectly acceptable 30 years ago are no longer acceptable. Under the federal fair housing laws, an association may not treat families with children different than families or individuals without children. You will do fine if your rules are aimed at behavior, not particular people, especially children.