Legal Time Savers – Don’t Cash a Member’s Check During Evictions.

​It is worth reminding Cooperatives of some basic pitfalls that may easily sink your summary or eviction proceeding against members. Whether your Cooperative has initiated an eviction for non-payment of monthly carrying charges or fees, or is terminating membership based on material non-compliance, a common question arises: What does the Cooperative do with that member’s monthly carrying or occupancy charges?

The quick answer is DO NOT ACCEPT monthly carrying charges from a member who is the subject or party to an eviction proceeding. Best practices dictate that once a Notice to Quit or Demand for Possession has been issued to the member for nonpayment of carrying charges, to terminate membership or recover possession of the co-op unit, that monthly carrying charges due by that member should NOT be accepted. Why is this? Several courts, including the Michigan’s Court of Appeals in Park Forest of Blackman v. Smith, 112 Mich. App. 421, have held that a landlord’s (or here, a Cooperative’s) acceptance of rent (or carrying charges) for days ​prior to the final date on the notice constitutes a termination or waiver of that notice to terminate. See also Hoefler v Erickson, 331 Ill. App. 577; 73 N.E.2d 448 (1947); Bernstein v Weinstein, 220 Ill. App. 292 (1920), Major v Hall, 251 So 2d 444 (La. App. 1971); Jones v Webb, 320 Mass. 702; 71 N.E.2d 216 (1947).

In Michigan, this rule is called the Park Forest Rule. The reasoning behind this rule is that by accepting rent or carrying charges after a notice to terminate has issued, it leads the tenant or member to believe that further legal proceedings based on that prior notice are not forthcoming due to acceptance of rent or carrying charges. This applies whether the notice is based on non-payment of monetary obligations or due to a breach of other duties in an occupancy agreement or bylaw provisions. The action of acceptance is viewed by the courts as a revocation of the notice by the landlord or cooperative.

If the Cooperative accepts carrying charges for obligations prior to issuance of a Notice, the member/defendant may raise the Park Forest Rule as an affirmative defense to the lawsuit, which in most cases will result in the dismissal of the case and the Cooperative will have to start over – re-issue the notice to quit/demand for possession, and re-file the lawsuit. Unless the Notice is strictly for non-payment of carrying charges and the member tenders the full amount due and owing, the Cooperative should NOT accept the payment.

There are some exceptions, however. For instance, if a termination case is suspected to last over a month, the parties may agree to a Direct Payment Order from the Court. These are typically called Escrow Orders. An Escrow Order is an order by the Court that typically requires the defendant to pay their monthly carrying charges to the court during the pendency of the action. The Court holds onto those funds in escrow and releases those funds at the end of the case. Successful cooperative attorneys will seek to recover those amounts after the case has concluded to cover those past carrying charges.


Matthew T. Nicols is an associate attorney at the Pentiuk, Couvreur & Kobiljak, P.C., with offices in Wyandotte, Michigan and Chicago, Illinois. Mr. Nicols focuses his practice primarily in areas of cooperative housing law, and other community and condominium association law. He is licensed to practice law in the states of Michigan and Illinois.

 

Please note this content is provided to our readers for educational purposes but it is not intended and should not be regarded as legal advice. Readers are encouraged to consult with competent legal counsel for personalized guidance.

Remote Zoom Courtroom Hearings: Tips and Best Practices for Witness and Client Participation.

The use of Zoom and other digital, web-based or video conferencing technology has become widespread throughout courts in the United States, since the onset of the coronavirus pandemic. With glaring uncertainty on when courts will revert to conducting hearings and trials in-person, it is important to highlight some basic tips and best practices for our readers who may participate in Zoom hearings.

Currently, almost all landlord-tenant matters, which many housing cooperative cases fall under, are being conducted by Zoom or other video remote technologies. While specific protocol, policies and guidelines may differ from court to court, there are several things everyone can do to familiarize themselves with this technological shift, and the responsibilities that parties, witnesses or deponents to litigation cases may be required to adapt.

Below are some tips and best practices to ensure a smooth transition in the use of Zoom and video-based hearings.

General Considerations:

Although you may be participating in hearings from the comfort of your home or office, it is important to continue to afford the court the proper decorum and etiquette as though you are in the courtroom. Some things should not change:

  • Be on time for your case.
  • Dress appropriately, or in business attire. Avoid casual attire or “loungewear.”
  • Chose a suitable place in your home or office for participation. Don’t participate in Zoom hearings from your bed, bathroom or outdoor patio.
  • Avoid interrupting or speaking over others.
  • Turn off all other noise making devices, and diminish or limit any outside distractions and noises (i.e., barking dogs, fans, radio, etc.). Other audio distractions can be easily avoided by “muting” your microphone during times in which you are not speaking.
  • Make sure your room or office has good lighting. Avoid rooms with bright or back- lighting.

Technical Responsibilities and Requirements:

Unfortunately, internet service, software and hardware for use in remote Zoom hearings is not uniform. However, it is very important to ensure that you have the basic hardware (i.e., computer, laptop, cellular phone, etc.) and video-based functions (i.e., cameras) to be able to participate both audibly and visibly. While courts sometimes provide basic information and protocol on their websites, they generally do not provide technical assistance or troubleshooting for equipment or connection issues.

Participants should, prior to the hearing, take the time to become familiar with Zoom, directions, tutorials, support and technical requirements. This information can be found for free on https://zoom.us. In addition to ensuring you have the proper equipment and internet connection, use these tips for a more seamless Zoom experience:

  • Use a good LAN, WiFi or substantial LTE connection to ensure a good connection.
  • Run microphone or video checks prior to your hearing to ensure good audio and video functions.
  • Computers and laptops are preferred over cell phones.

Connecting to the Zoon Hearing:

With most courts conducting hearings through Zoom, once you are ready to make your virtual/remote appearance (preferably 5-10 minutes prior to the scheduled time), you will need to access Zoom (https://zoom.us). If you have not registered a Zoom account, register and create your account. Registering your Zoom account is easy, quick and free. It is very important to use your full name when registering your account. When you join a meeting, the host will view your name. If you list your Zoom name with nickname, initials or other name, you may experience difficulty being admitted into Zoom hearings.

Once you have registered your Zoom account, you will need to join a zoom meeting. To join a meeting, click the “Join a Meeting” icon on the main page. You will then be directed to enter a “Meeting ID.” In most cases, the Meeting ID for the courtroom proceeding will be provided to parties in the following ways:

  • Listed in a Notice of Appearance sent by the Court or other instructions provided by the Court;
  • Listed on the Court’s website.
  • Listed on the Judge’s Courtroom Protocol, typically on the court’s website.

However, if participants are represented by legal counsel, you should always check with your attorney beforehand to confirm the date, time and Meeting ID for the Zoom hearing.

You’re In! How to Conduct Yourself During the Zoom Proceedings:

Now that you’re prepared for the hearing, have attained all technological requirements, and have entered your Meeting ID, the court or judge’s clerk will let you in to the meeting room. In many cases, the court clerk will ask what case you are attending, so be prepared to provide that information to the clerk. Some court’s use the “Chat” function, in which you may type your name, case name and case number that you are appearing in. Once you have gained access to the court’s Zoom meeting room, here are a few important reminders for how to conduct yourself at the hearing.

  • Position your camera at eye level or slightly above eye level.
  • Be mindful of what is behind you. Choose a neutral background.
  • Have proper lighting, ideally light should be facing you, not facing the camera.
  • Mute your sound when not speaking to eliminate background noises.
  • Unmute only when necessary to speak.
  • State your full name and the case that you are appearing in.
  • Avoid rustling papers or other extraneous noises.
  • Speak one at a time to avoid multiple people speaking over one another. When a case is “on the record” the court is making a record of those proceedings. It is difficult for a court reporter to transcribe multiple people speaking at the same time.
  • Spell proper names.
  • If using a mobile devise, avoid frequent moving or jostling. Lay the phone on a flat surface to attain proper camera angles.

Conclusion:

We do not know how long courts will continue to utilize remote, Zoom hearings in the conducting of court business and litigation cases. It is, however, likely to continue during the coronavirus pandemic, and perhaps further into the future depending on whether courts will view the use of Zoom and remote hearings a benefit to the progress of cases on their dockets.


Matthew T. Nicols is an associate attorney at the Pentiuk, Couvreur & Kobiljak, P.C., with offices in Wyandotte, Michigan and Chicago, Illinois. Nicols focuses his practice primarily in areas of cooperative housing law, and other community and condominium association law.

 

 

Please note this content is provided to our readers for educational purposes but it is not intended and should not be regarded as legal advice. Readers are encouraged to consult with competent legal counsel for personalized guidance.

Fair Housing, Discrimination, and Sexual Harassment: The Law, Examples, and Best Practices to Avoid Discrimination and Sexual Harassment Claims.

With discrimination claims on the rise and the possible expansion of protected classes (i.e., sexual orientation or transgender status) from a recent United States Supreme Court opinion in Bostock v. Clayton Cty, Georgia, Nos. 17-1617 et. al., 590 U.S. ___ , (more) 140 S. Ct. 1731 (2020), in which the court held that under Title VII, it is unlawful discrimination for employers “to fail or refuse to hire, or to discharge any individual, or otherwise discriminate against any individual” because of their sexual orientation or transgender status, there is never a better time for housing cooperatives to refresh their knowledge of fair housing and employment issues. The law pertaining to fair housing, discrimination, and sexual harassment claims are ever-evolving and a complex field, so knowledge of key factors and best practices will put cooperatives in a better position to avoid unwarranted discrimination lawsuits. First, a recap of some fundamental laws, concepts, and illegal conduct.

The Fair Housing Act and the Protected Classes

The Fair Housing Act makes it unlawful for a housing provider to discriminate on the basis of race, color, religion, sex, national origin, familial status or handicap (42 U.S.C. 3601 et seq). These groups, or categories, are known as the “protected classes.” With the recent United States Supreme Court’s decision in Bostock, supra, ruling that one’s sexual orientation and transgender status falls within the meaning of “sex” for purposes as a protected class although the case involved an employment Title VII discrimination case because the Fair Housing Act prohibits discrimination on the basis of sex, it is likely that the court’s conclusions in Bostock may be equally applied to other federal statutes’ meanings of this term and protected classes. Within the more pragmatic application and concern for housing cooperatives, the Fair Housing Act provides a detailed list of prohibited and discriminatory conduct. The specific language, found at 42 U.S.C. 3604, is summarized by the following:

  • In the sale and rental of housing, it is illegal to discriminate because of race, color, religion, sex, disability, familial status or national origin in the following ways:
  • Refuse to rent or sell housing;
  • Refuse to negotiate for housing;
  • Make housing unavailable;
  • Set different terms, conditions or privileges for the sale or rental of a dwelling;
  • Provide a person different housing services or facilities;
  • Falsely deny that housing is available for inspection, sale or rents;
  • Make, print or publish any notice, statement or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation or discrimination;
  • Impose different sale prices or rental charges for the sale or rental of a dwelling;
  • Use different qualification criteria or applications, or sale or rental standards, procedures, such as income standards, application requirements, application fees, credit history analyses or other requirements;
  • Evict a tenant, member or guest;
  • Harass a person. It is illegal under the Fair Housing Act to harass a person because of their race, color, religion, sex, disability, familial status or national origin. This includes sexual harassment;
  • Fail or delay performance of repairs;
  • Limit privileges, services or facilities;
  • Discourage the purchase or rental of a dwelling;
  • Blockbusting; and
  • Deny access to or membership in any multiple listing service or real estate brokers’ organization.

In addition to these types of prohibited discriminatory conduct, the Fair Housing Act also requires housing providers to make reasonable accommodations to housing cooperative members and occupants to allow for reasonable modifications that may be necessary to allow a person with a disability to enjoy their housing. See Section 504 of the Fair Housing Act; 42 U.S.C. 3604(f)(3)(A) and (B). Lastly, it is important to know that discrimination also includes the threatening, coercion, intimidation or interference with anyone exercising their right or assisting another person exercising a right protected by the Fair Housing Act, including the filing of a fair housing complaint.

The Takeaway on Fair Housing for Cooperatives

Housing cooperatives should have internal policies and procedures, including training materials for incoming staff
that educate and remind staff of prohibited and discriminatory conduct in violation of the Fair Housing Act. These policies and internal guidelines, while not be foolproof, nor entirely insulating a housing cooperative from facing Fair Housing Act complaints should provide a basis and standard of conduct for the housing cooperative, its board of directors, committees, office employees and staff to avoid falling in situations and legal pitfalls that may cost the cooperative monetary and punitive damages.

Sexual Harassment and Safe Interactions

While the Fair Housing Act prohibits discrimination based on the basis of one’s sex, so do other federal laws such as Section 109 of the Housing and Community Development Act of 1974, Title IX of Education Amendments of 1972 and Title VII of the Civil Rights Act, which also prohibit sexual harassment and sexual discrimination. Sexual harassment claims typically arise in one of two main types of claims. First, are “quid pro quo” sexual harassment claims. In the context of fair housing, “quid pro quo sexual harassment” is best described as situations where the housing provider or staff requires someone to submit to unwelcoming requests to engage in sexual conduct in order to obtain or maintain housing or housing-related services. Examples include, but are not limited to, situations where a staff member says that an applicant will not be reviewed or approved unless they succumb to sexual acts; threatening to evict or evicting a person for refusing to perform sex acts; and/or refusing to perform repairs unless the member or resident performs sex acts. Sex acts include a variety of things from sexual intercourse, the transmission of sexual content, photographs or videos (i.e. sending profane or pornographic pictures, text messages, emails or other content), the uninvited touching or groping, making sexually explicit comments or remarks, catcalls, ogling or cornering someone. Inappropriate or sexually-content laden jokes can also be considered forms of sexual harassment.

The second type of sexual harassment claims include what is known as a “hostile environment” or “hostile work environment.” This type of sexual harassment deals with the workplace environment. However, in the context of providing housing to others, such instances may include the following:

  • Subjecting someone to severe or pervasive unwelcome touching, kissing, or groping. This may also include more subtle acts such as brushing up aside someone, breathing on someone, or physically blocking someone’s movement;
  • Making lewd comments about a person’s body, looks, or appearance; and
  • Sending severe or pervasive unwelcome text messages, photos, or content as described above.

The list of types and examples of acts, conduct, statements or cues that fall within the scope of sexual harassment are too long to list in a brief article. However, the important takeaway the reader should know is that sexual harassment does not merely consist of overt and grotesque acts. Sexual harassment can also be considered in many subtle ways, through actions or conduct, or even omissions, body language or other subtle gestures. With the United States Supreme Court’s decision in Bostock, supra, it is ever more so important to be aware that sexual orientation and transgender status are considered to be a protected class within the meaning of “sex” in a Title VI employment case. Best practices and caution should be equally applied to housing. Nevertheless, this case shows additional layers and types of conduct, statements, acts or suggestions pertaining to one’s sexual orientation or transgender status may also be considered sexual harassment under fair housing.

Housing cooperatives should at a minimum require a basic level of education and training pertaining to sexual harassment both in the work environment and in the fair housing realm. These trainings and programs should be made available for the cooperative’s directors, officers, employees and staff. Given that the law is fluid and constantly changing with the times, continued education in this area is highly recommended and necessary. Further education is an obvious benefit to all. However, putting action to these best practices and the law may better insulate the housing cooperative from legal action and will also provide for a safer work and housing environment within the cooperative.

For more on sexual harassment in housing cooperatives, see An Anti-Harassment Policy-A Model Policy-is Needed, written by Herb Fisher and published in the summer 2018 issue of the Cooperative Housing Quarterly.

This article was featured in CHQ winter 2020 issue. Click here to read the PDF newsletter.


Matthew T. Nicols is an associate attorney at the Pentiuk, Couvreur & Kobiljak, P.C., with offices in Wyandotte, Michigan and Chicago, Illinois. Nicols focuses his practice primarily in areas of cooperative housing law, and other community and condominium association law.

 

 

Please note this content is provided to our readers for educational purposes but it is not intended and should not be regarded as legal advice. Readers are encouraged to consult with competent legal counsel for personalized guidance.

Does Your Cooperative’s Waiting List Accommodate Disabled Applicants and Members? 

Waiting Lists

Most co-ops offer different types and sizes of units including 1 to 3 bedrooms with various floor plans and square footage combinations. As is often the case, members desire to move from one unit to another. There may be many different reasons for moving such as an increase in family size or a unit with a better view or access to green space or parking. But in some cases members will want to move from their unit to another unit for accessibility purposes or because they have a disability and another unit will better enable them to enjoy the privileges of cooperative living than their current unit.

In such cases the member often presents management or the cooperative Board with a written request to be placed on a waiting list. Virtually all cooperatives maintain waiting lists for this purpose and applicant names are routinely added to the bottom of the list. In many situations when a member decides to sell their unit they seek assistance from the cooperative that then refers the seller to the first name on the waiting list. If the parties can reach a mutually agreed upon sale price, then the unit is sold to the person at the top of the list. Though the seller doesn’t have to sell to any person on the list, the list provides a good starting point for individuals already interested in buying specific types of units.

Does Your Cooperative’s Waiting List Accommodate Disabled Applicants and Members?

Into this process comes a disabled member’s request to move because of his or her disability. It is common practice to add the disabled member to the end of the list because that is fair on a first-come first-served basis. This is particularly so when a member’s name could sit on a list for a number of years without any opportunity to purchase or exchange a unit.

Though it seems unfair, HUD has required cooperative housing providers that maintain a waiting list to advance the name of a disabled applicant or member seeking to transfer because of a disability, to the top of that list.

This means that the disabled applicant or member jumps to the top of the list only behind other disabled applicants or members who have previously made the same request. Nondisabled members or applicants whose names already appear on the list are pushed down the list to make room for the disabled members at the top.

In most cases a member or an applicant for membership who has a disability warranting a specific type of unit such as a unit with no steps or most directly accessible to handicap parking or other specific accessibility feature will qualify to move the member or applicant to the top of the waiting list.

What is Section 504?

HUD has maintained that the Rehabilitation Act of 1973 requires this result.  The Rehabilitation Act of 1973 is a federal law, codified at 29 U.S.C. § 794, that prohibits discrimination on the basis of disability in federally-assisted programs or activities. Specifically, Section 504 prohibits discrimination on the basis of disability in any program or activity that receives financial assistance from any federal agency, including HUD as well as in programs conducted by federal agencies including HUD. Persons with disabilities, persons associated with persons with disabilities, and other persons engaged in certain protected activities under the law are protected by section 504.

Note that the law applies to any program or activity that receives financial assistance from any federal agency including HUD.  Section 504 regulations define “recipient” to include a HUD funded public housing agency or a HUD funded non-profit developer of low income housing.  A Section 8 voucher program or activity also triggers coverage.  However, a private landlord who accepts Section 8 tenant-based vouchers in payment for rent from a low-income individual is not a recipient of federal financial assistance merely by virtue of receipt of such payments.

What Is The Cooperative Suppose To Do?

Thus, according to HUD, when a mobility accessible unit becomes available in the cooperative housing context, the cooperative should make at least the first disabled applicant or member’s name on the list available to the seller for the seller’s consideration. In a traditional landlord-tenant situation, the landlord would be required to offer the unit to the disabled applicant or tenant, but in the cooperative housing situation, the cooperative is not the owner of the unit. The cooperative’s interest is simply ensuring that the applicant or member is qualified or continues to be qualified to reside in the community. Nor is the seller obligated to sell to any particular person disabled or not. The seller is still free to bargain the best sale price for his or her unit. Increase your sales today with professional eCommerce ppc management by Catapult Revenue

HUD’s Section 504 regulations at 24 C.F.R. § 8.27 require recipients to adopt suitable means to assure that information on available accessible units reaches otherwise qualified individuals with disabilities who need the features of those units. This means that the cooperative must at least provide the name of the disabled person on the list to the seller. If there is more than one disabled member interested in the unit, the cooperative must repeat this process until all disabled applicants or members have had the opportunity to bargain with the seller. If the seller still has not obtained the price he or she desires then the cooperative may offer the names of applicants without disabilities on the waiting list to the seller.

Cooperative boards and management should review their waiting list protocols and if they are recipients of federal funds; they should ensure that disabled applicants and members desiring to transfer to different units with accessibility features, location or related considerations are advanced to the head of the waiting list.


Attorney Kerry Lee Morgan is of counsel to the law firm Pentiuk, Couvreur & Kobiljak, P.C. and  has extensive experience in matters related to federal discrimination law and has assisted cooperatives to resolve these contentious disputes. He previously served as an Attorney-Advisor with the United States Commission on Civil Rights in Washington, D.C.

Please note this content is provided to our readers for educational purposes but it is not intended and should not be regarded as legal advice. Readers are encouraged to consult with competent legal counsel for personalized guidance.

Federal Appeals Court Affirms Dismissal of Fair Housing Act Lawsuit Over Claims of Smoking in Unit

Housing cooperatives, like other types of community and association housing, face many issues with federal housing laws such as the Fair Housing Act (“FHA”) and Americans with Disabilities Act (“ADA”). While the differences between housing cooperatives, and condominiums, for example, are wide and vast, they are sometimes subject to certain laws. Here, cooperatives and condominiums both must navigate and comply with federal (and state) laws pertaining to Fair Housing. This article, while providing an in-depth analysis of a federal lawsuit involving a condominium owner and the association, involves claims of discrimination under the Fair Housing Act as a result of the failure to ban smoking within the units. This specific instance is something the housing cooperatives, as well as condominiums, face in an ever-evolving and nuanced area of federal housing law.

Introduction

On December 19, 2019, the United States Court of Appeals for the Sixth Circuit issued an Opinion affirming a Michigan federal District Court’s dismissal of a condominium unit owner’s lawsuit alleging discrimination under the Fair Housing Act against a condominium association for its failure to ban smoking as a reasonable accommodation request. This case carries significance for condominium and other association-based communities in how courts continue to address claims under the Fair Housing Act relating to smoking inside a building or unit and the odors that result. This article goes over the history of the case, the Sixth Circuit Court’s opinion and analysis, as well as some key things that the association did that were noteworthy in the opinion.

Although the David v. Echo Valley defendant was a condominium association, which is inherently different from the unique property and occupancy interests within a housing cooperative, the fact that housing cooperatives are also subject to the Fair Housing Act makes this case relevant to cooperatives. While many understand the differences between condominium associations and cooperative housing corporations, they have some shared characteristics and are treated similarly when it comes to some areas of the law, such as Fair Housing. The intent of this article is not to suggest that condominiums and housing cooperatives govern themselves in identical fashions. However, when condominiums and cooperative do have shared concerns and interests, one can learn from the other.

Facts of the Case

The plaintiff in Davis v. Echo Valley Condominium Ass’n, et al.[1], raised several claims against the condominium association and its management agent, including discrimination under the Fair Housing Act, nuisance, breach of covenants (premised under the association’s master deed and bylaws) and other state-law claims. The plaintiff complained, “that the smell of [cigarette and marijuana] smoke regularly emanating from a neighbor’s condo aggravated her asthma.”[2] The plaintiff was a cancer survivor who suffered from asthma, and also at some time was a member of the association’s board of directors. The co-owner initiated complaints to the association’s board of directors and management agent that smoke and odors from an adjoining unit were causing aggravations to her medical conditions, causing discomfort and other adverse effects to her ability to “breathe comfortably” and otherwise live peacefully in her unit.[3] Like many similar situations people face in association and community living, the plaintiff first complained to the neighbor prior to filing any claims in a court of law, but to no avail.

The plaintiff then complained directly to the condominium association. The association and its management agent’s first response was that they sent the neighbor-resident a written letter requesting that they keep the smell of smoke contained. It is worth noting that the association did not have a written policy, Bylaw provision, rule or regulation that prohibited smoking inside one’s condo unit. Instead, the association and its residents long understood that smoking was permitted inside condominium units. After the association received another complaint from the plaintiff, the association hired a heating and cooling contractor and paid for the installation of a fresh-air system which drew in air from the outside, rather than from the basement, in the plaintiff’s unit. The association did this at no cost to the plaintiff.

While the installation of the fresh-air system in the plaintiff’s unit appeared to help and alleviate some of the odors, the plaintiff claimed that the smell and effects of the neighbor smoking in their unit persisted. In the plaintiff’s next move (prior to filing a complaint in a court of law) she submitted a Reasonable Accommodation Request to the association, asking them to prohibit smoking within her building. In response, the Association attempted to amend its bylaws to prohibit smoking, but the proposal failed. Even though the neighbors who were the main source of the plaintiff’s complaints had moved, the plaintiff still filed a lawsuit against the association and its management agent.

Plaintiff/Co-owner’s Lawsuit and Appeal

The crux of plaintiff’s lawsuit against the association was that the association had discriminated against her under the Fair Housing Act (and Michigan law) by refusing grant a reasonable accommodation request to ban smoking, which was claimed to be a detriment to the effects of plaintiff’s disability (i.e., cancer survivor, asthma and chemical sensitivities) and the ability to peacefully enjoy her use of the unit. The plaintiff also brought other claims relevant to condominium associations, notably asserting breach of several covenants within the association’s bylaws, and a private nuisance claim, which is also discussed below. First, we start with the plaintiff’s claim of discrimination under the Fair Housing Act.

In the trial court, both the plaintiff and defendants filed motions for summary judgment. The trial court granted the defendants’ motion for summary judgment, and in doing so, determined that the plaintiff’s request (to ban smoking within the condominium or her building) was not a reasonable accommodation as it would fundamentally alter the association’s already existing policy which allowed smoking. The plaintiff then filed an appeal to the Sixth Circuit Court of Appeals. As discussed below, the Sixth Circuit Court of Appeals affirmed the trial court’s decision to grant defendants’ motions for summary judgment and dismissing the lawsuit.

The Association did not unlawfully discriminate against the plaintiff under the Fair Housing Act by failing to ban smoking.

On appeal, the Sixth Circuit affirmed the trial court’s granting of summary judgment in favor of the association and its management agent. The Sixth Circuit held that the plaintiff’s “proposed smoking ban amounts to a “fundamental alteration” of the [a]ssociation’s smoking policy.”[4] The appeals court reasoned that the smoking-ban was not an accommodation or mere adjustment, but rather, an entire “rewrite” of the association’s policy.[5] More notable, because the association lacked any specific policy banning smoking and because there was a long-established understanding within the association that smoking was permitted, the Sixth Circuit further claimed that the plaintiff’s proposed ban “would intrude on the rights” or other co-owners.[6] The Sixth Circuit’s ruling relied on prior federal cases reviewing similar FHA claims and reasonable accommodations regarding smoking bans.

Under the Fair Housing Act (hereafter, the “FHA”) (and its amendments)[7] it is unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling because of a handicap of’ that person.”[8] “Discrimination” also includes “a refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”[9] In order to state a prima facia case for discrimination under the FHA for refusing to grant a reasonable accommodation request, a plaintiff must first prove a number of elements.

While the FHA prohibits discrimination based on one’s race, color, religion, sex, national origin, familial status or disability, this case and article focuses on the “disability” class of claimants. From this, it follows that a plaintiff must first prove that he or she suffers from a handicap or disability. Next, the plaintiff must allege and show that the accommodations sought were “necessary.” Third, the plaintiff must prove that the request was a “reasonable accommodation.” The Sixth Circuit looked to each of these factors in its analysis of the plaintiff’s claims in Davis v. Echo Valley, et al. While little was offered by the plaintiff to prove the first element (i.e., showing of a disability or handicap), the Court’s ruling focused more on the second and third requirements (the “necessary” and “reasonableness” factors), rather than whether the plaintiff suffered from a disability or handicap.

Requests for reasonable accommodations must be “necessary.” The Sixth Circuit agreed with the trial court’s characterization that the plaintiff’s proposed smoking ban was not “necessary” to afford her the ability to use and enjoy her dwelling unit. In making that determination, the Sixth Circuit Court looked at the plaintiff’s ability to “use her condo for “several years” despite the [association’s pre-existing smoking policy]” in determining that plaintiff’s request was better couched as a request for “better opportunities” rather than a strict necessity in order to reside, live and enjoy her condo unit.[10] These facts proved it difficult for the plaintiff to show that the smoking ban was necessary to afford her the ability to use and enjoy the dwelling unit.

The focus then shifted on whether the plaintiff’s accommodation request was “reasonable.” The adjustment the plaintiff’s request had on the association’s policies, however, was deemed by the court to go too far. As stated by the Sixth Circuit “an adjustment goes too far if the costs of implementing it exceed any expected benefits it will provide the person requesting it.”[11] In order to be “reasonable,” any requested change in the associations rules or policies, is not determined upon whether the request is a moderate or fundamental change to the policy(ies), but rather, “whether the request is a modest adjustment or fundamental change of the “rule, policy, practice, or service” that the plaintiff challenges.”[12] The court further explained that a reasonable accommodation request seeks a “fundamental change if it turns the challenged policy into something else entirely.”[13]

Looking at the plaintiff’s request to ban smoking, the court concluded first, that the smoking ban would improperly interfere with the rights of third parties (i.e., other co-owners within the condominium association) and their right to smoke in their units.[14] As noted by the Court, it is not unlawful to smoke inside one’s home or condominium unit (absent a policy). Additionally, the court reasoned that forcing the association’s policies from a “smoking-permitted policy” to a “smoking-prohibited policy” would constitute an entire rewriting of the policy rather than an adjustment.[15] The plaintiff, therefore, failed to establish that the accommodation request was both (i) reasonable, and (ii) did not result in a fundamental change to the association’s policies.

Breach of Covenants (Condominium Bylaws) and Nuisance Claims.

Unlike condominiums, which are typically governed by statutory schemes, such as Michigan’s Condominium Act for example, (see MCL § 559.101 et seq.), which laws may require certain covenants, terms and conditions be enumerated within the association’s master deed and bylaws, cooperative governing documents (i.e., Articles of Incorporation, Bylaws, Occupancy Agreements, Rules, Regulations & Policies), may contain similar covenants, provisions or policies, as those in the fact of the Davis v. Echo Valley case.

Next, the Sixth Circuit addressed the plaintiff’s several claims that by allowing smoking inside condominium units, the association was failing to enforce several covenants within the Master Deed and Bylaws. The Court also addressed the plaintiff’s state law nuisance claims. Both, however, can be addressed in the context of the association’s covenants. Specifically, the plaintiff claimed that the association failed to enforce the requirement that co-owners must keep their units “in a safe, clean and sanitary condition,” i.e., the covenant prohibiting co-owners from creating a nuisance or annoyance to other co-owners, and doing acts that would increase the rate of insurance on the condominium. Here, all of the plaintiff’s claims fell short.

First, looking to Michigan law that restrictive covenants (such as those alleged by the plaintiff in Davis v. Echo Valley, et al.) must be strictly construed against persons or parties claiming to enforce them. Moreover, any ambiguities are resolved in favor of one’s free use of his/her property.[16] Next, looking to the association’s history, the Sixth Circuit noted that from a historic perspective, the association had never prohibited or restricted smoking. Nor did the language of the association’s bylaws or rules and regulations show any support that smoking was prohibited. Rather, the bylaws and policies showed that the association had in fact, banned other activities ranging from restrictions on certain pets or animals, to display signs or possession and use of BB guns. The Sixth Circuit Court concluded that if the association intended or wanted to ban smoking, such ban or prohibition would be reflected in the bylaws or policies that ban other activities or things.[17] In short, a smoking ban was not consistent with the association’s bylaws or policies, nor their history.

In determining that the association had not failed to enforce the covenant of providing safe, clean and sanitary conditions, the court again referred to the association’s bylaws and policies. Because the policies allowed smoking, and historically so, the court determined that some amount of smoke would constitute “ordinary” in the context of sanitary and clean conditions and that such levels could not “be considered a “danger” or “pollution”.

In looking at the plaintiff’s nuisance claim under both theories that the association’s breached its covenants and plaintiff’s claim under common law, the Sixth Circuit looked to state law. In Michigan, a private nuisance is an “unreasonable interference with the use or enjoyment of property” that results in significant harm.'”[18]  According to Michigan case law, many courts agree that a nuisance claim provides no way for relief in the context of smoking. As noted by the Sixth Circuit Court “[the plaintiff] chose to live in a condo complex whose bylaws do not restrict smoking. As other courts have found, while even a small amount of smoke might be a nuisance in a complex that bans smoking, the same cannot be said for a complex that allows it.”[19] To this regard, the Court noted that despite the plaintiff’s alleged “sensitivities,” which may be more so than an average person, a “nuisance is not subjective.”[20]

The plaintiff’s other breach of covenant claims against the association failed. The plaintiff additionally alleged that smoking inside the unit caused an increase in the rate of insurance because it constituted a fire hazard. The Court dismissed this claim, again because of the association permitted smoking. Lastly, the plaintiff’s claim that smoking inside constituted unlawful and offensive activity was dismissed on procedural grounds, notably dealing with the plaintiff’s failure to raise this issue with the trial court.

Learning from Davis v. Echo Valley Condominium Association

There were some important things that the association and its management agent did, in this case, played a role in obtaining a dismissal of the lawsuit. The Sixth Circuit Court noted these actions taken by the association and its management agent. First, the association and its management agent did not ignore the plaintiff’s complaints and requests. Rather, they attempted a compromise and alternative resolution. These efforts were all noted by the Sixth Circuit Court and helped to “undermine” the plaintiff’s claim that the association and its management agent failed to enforce the bylaws.[21]

Specifically, the association first wrote a letter to the occupant in the condo unit that the plaintiff claimed the smoke and odors emanated from. The association asked the plaintiff’s neighbor to keep the smell of smoke from intruding into the plaintiff’s unit and contained. Although this effort did not cure the plaintiff’s claims, the association did not stop there. After the plaintiff continued to complain, the Board of Directors had a clean air unit/air purifier installed in the plaintiff’s unit, all at the association’s expense. When the plaintiff continued to complain, the association even went as far as to circulate a proposed amendment to the bylaws providing for a smoking ban. However, the proposed amendment for a smoking ban failed to pass by a majority vote. All of these efforts showed that the association made concerted efforts to resolve the plaintiff’s complaints. While no single effort was determinative of the outcome of the case, the Court did make sure to note the association’s efforts, which did factor into the court’s ultimate decision. 

What is important to take away from this case is that the association’s actions and attempts to resolve plaintiff’s complaints without first resorting to extremes; the association taking neither a “do-nothing” approach nor instantly pushing a smoking ban policy change without first exploring alternative methods of resolution, played an important role in the outcome of the case. Housing cooperative corporations may take a similar approach to address member complaints when a cooperative does not have an express smoking ban within its governing documents.

Even though complaints about smoking may be common, they cannot, and should not be met with one standard common approach or singular answer. With these types of cases, a Cooperative would be best served by taking a hard look at the member’s complaints to first understand the facts, the nature and severity of the complaints, the alleged effects claimed by the member-owner, and the proposed requests the member seeks. Understanding the nature and allegations of a resident’s complaints about smoking will allow the cooperative to determine and craft an appropriate and well-thought response. A well-rounded response providing for multiple steps or efforts, such as the association’s response in Davis v. Echo Valley, et al., proved to be worthwhile in helping obtain a dismissal of the plaintiff’s lawsuit. A response such as that from the association in the Davis v. Echo Valley, et al. case is likely crafted by a well-informed Board of Directors, with the assistance of its management agent and the cooperative’s legal counsel, all of whom should understand not only the policies and rules in place but also, the make-up and preferences of the membership and cooperative community.

About the author

Matthew T. Nicols is an attorney, providing legal advice and assistance to cooperatives in resolving conflicts amongst the Board of Directors. He has experience in litigating disputes involving directors’ wrongful and harmful conduct to the cooperative.

Please note this content is provided to our readers for educational purposes but it is not intended and should not be regarded as legal advice. Readers are encouraged to consult with competent legal counsel for personalized guidance.

References

[1] Davis v. Echo Valley Condo. Ass’n, 945 F.3d 483 (6th Cir. 2019).

[2] Id. at 486.

[3] Id. at 487.

[4] Id. at 492 (citing Howard v. City of Beavercreek, 276 F.3d 802, 806 (6th Cir. 2002))

[5] Id.

[6] Id.

[7] Pub. L. No. 100-430, § 6, 102 Stat. 1619, 1620–22; 42 U.S.C. § 3604

[8] 42 U.S.C. § 3604(f)(2)

[9] 42 U.S.C. § 3604f)(3)(B).

[10] Davis v. Echo Valley Condo. Ass’n, 945 F.3d at 490.

[11] Id. (citing Smith v Lee Assocs., 102 F.3d at 795.

[12] Id.

[13] Id.

[14] Id., at 492.

[15] Id.

[16] Id., at 493 (citing Moore v. Kimball, 291 Mich. 455, 289 N.W. 213, 215 (1939); Millpointe of Hartland Condo. Ass’n v. Cipolla, No. 289668, 2010 WL 1873085, at *1 (Mich. Ct. App. May 11, 2010) (per curiam)

[17] Id., at 493

[18] Davis v. Echo Valley, et al., supra at 494 (citing Adams v. Cleveland-Cliffs Iron Co., 602 N.W.2d 215, 222 (Mich. Ct. App. 1999).

[19] Id. (citing Schuman v. Greenbelt Homes, Inc., 69 A.3d 512, 520 (Mich. Ct. Spec. App. 2013; and Nuncia v. Rock Knoll Townhome Vill., Inc., 389 P.3d 370, 374-75 (Okla. Civ. App. 2016).

[20] Id. at 495 (citing, Schuman, supra at 525).

[21] Davis v.Echo Valley, et al., at 495