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

3 Reasons Your Cooperative Attorney Needs to Review Contracts

Your Cooperative attorney wears many hats.  Obviously they will litigate your nonpayment cases and evictions, but sometimes Board’s and management companies forget to use them for arguably the most important task…reviewing contracts.

We see all too often that Cooperative’s will rely on canned or template contracts provided to them by the vendor/contractor or perhaps one they retrieved on-line thinking it must legally protect their interest.  Sometimes they are right.  Often, they are not, and it can cause many problems and cost your membership thousands, if not tens of thousands of dollars.

Calling your attorney after you signed a bad contract is trying to put the horse back in the barn. Here are a few examples to let the message sink in:

1. Management Contracts

While the vast majority of management companies we know use standard language widely accepted in the industry, many times, there will be terms within the management contact that can be very unfair and problematic.  Your cooperative attorney will spot these right away.  Are you agreeing to a term that cannot be canceled upon 60 days’ notice?  But, are you responsible for the entire term if you want to change management companies?   What are your indemnification obligations?  If the cooperative has to reimburse the management company as a result of their actions which caused a lawsuit, you should not necessarily be automatically responsible. We will make sure the management companies use language that avoids the cooperative isn’t responsible for their mistakes.   There are big differences in the terms: “negligence” and “gross negligence.”  The difference may cost you.

2. Contracts for Construction

Your cooperative attorney will assure essential terms are mandatory.  Adequate guarantees of workmanship and warranties are non-negotiable.  We had a client years back who did not have our office review the contract on a 7-figure project.  The workmanship was horrid and required massive repairs. The contractor refused to provide anything to remedy the situation since it fell outside of a short warranty period.  The client should not have had to pay out of pocket for the repairs.  Our own experts verified the poor workmanship, yet the court held the client to the strictest reading of the contract terms. Since the repairs came after the expiration of the short warranty/guarantee of workmanship, they were stuck and the contractor got off scot-free.   The reason we use this example is that the court stated to the parties during the ruling, this should have been caught before signing the contract and his hands were tied.  Obviously, he felt bad for the injustice that occurred, but people may enter into bad deals.  This one was.

3. Landscaping Contracts

Be wary of deals where you are getting a discount in consideration for extended terms of contracts. We have seen a lot of these vendors give you a sweet deal if you sign on for 3-5 years. However, if you cancel it any sooner, they will hit you to repay the discounted amounts.  What happens if you terminate because of poor workmanship? It seems unfair the contractor should be rewarded for their poor service and you have to compensate them in a form of liquidated damages because of their failures.  This is not cool in our book, and it shouldn’t be for you either.

What is the takeaway?

First, Contracts that your cooperative attorney did not draft are not contracts looking out for your interest.

Second, contracts that your cooperative attorney did not review cannot be relied upon to assure your interest has been protected. My dad who is an engineer taught me a great lesson growing up: measure twice, cut once. It rarely requires extensive time or costs to have your cooperative review any proposed contract or to provide proposed revisions or supplemental addendums, or what we call “wrap around contracts.” There is nothing more frustrating than a client being screwed on poor workmanship, or an unconscionable contract term that could have been prevented, particularly those that result in an otherwise good case, being lost.

 

About the author

Creighton D. Gallup in an experienced Partner with Pentiuk, Couvreur & Kobiljak, P.C. He has drafted proposed legislation exempting housing cooperatives from the Michigan Truth in Renting Act and the Michigan Consumer Protection Act. You may recognize him as Creighton is a frequent instructor at NAHC and MAHC where attendees benefit from his many years’ experience working with management companies and housing cooperative boards.

 

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.

Outdoor Security Cameras at Your Housing Cooperative

The installation of security cameras is widely considered amongst cooperatives mainly for the security and surveillance of its parking lots. The installation of security cameras has its benefits as well as its detriments, but it does not come without issues for multifamily housing properties. There are legal ramifications that are associated with the installation of outdoor security cameras on cooperative premises.

The installation of security cameras, which encompasses the hardwiring of an electrical fixture to the exterior of a building, could seriously compromise not only the structural integrity of the building and/or unit(s), but could also compromise the safety of other members of the cooperative. Although it may seem that security cameras are a minor addition, affixing anything, regardless of how small in size the fixture is, to the exterior of the buildings may compromise the structural integrity of the building or may interfere with existing plumbing, electrical, gutters, downspouts, rain guards, or roofs. A cooperative does not want to face issues with deteriorating exterior structures or compromised service lines located within the interior structure of the building down the line if the exterior structure was damaged or if any vital service lines within the walls were compromised by the installation of the security cameras.

More importantly, issues with the electrical aspect of the installation arise if the electrical wiring of the security cameras were not done properly. Generally, as the buildings of a cooperative are comprised of units that share a common structural foundation, it is vital that the installation of any electrical device does not create any fire or safety hazards, or compromise the structural integrity of the exterior structure, or compromise the plumbing or electrical services of other members of the cooperative. Further, the issue of building code violations also arise if the installation of the security camera is installed in violation of any city of building code.

Implementing the installation of security cameras to the exterior structure of the building may bring challenges for a cooperative. The cooperative could potentially face future liability as a result of the altering of the general common elements of the buildings. The cooperative must protect itself and its members so that the cooperative does not lend itself to future litigation or loss of unit or units due to safety and fire hazards that may stem from the installation of security cameras. A cooperative may find that it would be in its best interest to preserve the current structural integrity of the buildings and not allow for the installation of security cameras.

If a cooperative desires to implement the installation of security cameras for security and surveillance purposes on its buildings to observe the parking lots or any other general common element located on the cooperative premises, the cooperative must be aware of the problematic issues that could likely arise, outside of the possibility of compromising the structural integrity of the Cooperative. Such issues that could arise, but are not limited to:

The Position of the Camera Lens

If a cooperative desires to install security cameras mainly for the oversight and protection of its parking lots, it must be aware that at no time should any camera lens have a view of anything but the parking lot. The camera lens cannot be facing towards any member’s front or back porch. If the cooperative were to also consider having security cameras installed in any other area of cooperative premises, the camera lens can only face that specific general common element, and not any member’s front or back porch area. The cooperative’s board must be aware that in the event that the security cameras are being improperly used and the cooperative is sued, the cooperative will have to defend itself.

Security Camera Policies and Procedures for Board Members, Office Staff, Maintenance Staff, and Management to follow

Legally speaking, everyone is afforded a reasonable expectation of privacy. It is the cooperative’s duty to see that each member is protected and there is not an invasion of anyone’s privacy with respect to the operation and security cameras. The cooperative’s board must implement reasonable policies and procedures for those office and maintenance employees to follow whom are to come into contact with the security cameras. The board may also want to adopt similar policies and procedures for itself to follow, if any board member is to also come into contact with the security cameras. The implementation of reasonable policies and procedures for all to follow with respect to the handling of the security cameras and its footage is vital so that the cooperative does not lend itself to future litigation in the event that the security cameras are improperly being used.

Recordkeeping

With the installation of security cameras comes the burden of recordkeeping. The cooperative’s board would have to determine the time frame in which it will retain such footage. Said proposed timeframe in which the cooperative was to retain such footage could result in a heavy burden for the office and maintenance staff. Generally, as there are many buildings that make up a cooperative premises, there would be multiple cameras to extract footage from each day, week or month. The implementation of the security cameras could take away from the day to day operation and management of the Cooperative. Moreover, there is also the risk of forgetting to record, the deletion of helpful information whether on accident or on purpose, or even the failure to turn the cameras on that would without a doubt cause a heavy burden on the cooperative. Moreover, there is a high probability that members of the cooperative would be requesting access to such footage that would, without a doubt, take away from the day to day operation and management of the cooperative.

Cooperative Member Complaints

The installation of security cameras could open the floodgates with respect to member complaints. There is a high probability that the cooperative office staff, management and/or the cooperative’s board is going to have to micromanage every member complaint and request for footage. This micromanaging will, without a doubt, tie up the day to day operations of the cooperative as well as create an influx of issues at board meetings with violation hearings.

Insurance

As the interior/exterior structure of the building would be altered with security cameras, the cooperative must be aware of the insurance policies that would have to be implemented to protect the cooperative. The cooperative would have to contact its insurance agent to inquire what policies and limits would need to be obtained and maintained by the cooperative. A major drawback to implementing the installation of security cameras on the buildings is the fact that the security cameras could cause damage to the interior/exterior structure of the dwelling unit if the security camera is installed improperly, or if the contractor causes damage to the building, or if there is inclement weather and the security camera is extracted from its hardware, or if the interior/exterior structure cannot withstand the weight of the security cameras and causes damage to the structure internally or externally. The cooperative must be aware of the potential issues that accompany the installation of security cameras, and the cooperative’s board must protect the cooperative by obtaining and maintaining the proper insurance policies and limits for the installation of all security cameras as alterations would be done to the interior/exterior of a general common element.

Selection of Contractor

The cooperative’s board will have to select a contractor to perform the installation of the security cameras. The board will have to meet with individual contractors at a board meeting and listen to their proposals for installing the security cameras. The board must also request that every contractor is to provide evidence that they are licensed and fully insured as well as provide a certificate of insurance for Workers’ Compensation and liability before work is commenced.

Selection of Security Cameras

The cooperative’s board will have to decide what type of security cameras are to be installed on the buildings and how the cameras will be wired into the electrical system, whether it be into the electrical system of a unit or whether an electrical box will have to be included. The board will also have to decide on the specific aesthetic criteria so that all cameras are the same color and type so that there is uniformity within the cooperative.

Tampering of Security Cameras

The cooperative’s board must also be mindful that members or their guests could vandalize or tamper with the security cameras. It would be in the board’s best interest to implement a policy change within the Rules and Regulations that would prohibit the tampering of cooperative security cameras.

If a cooperative were to decide that it would allow for the installation of security cameras, the cooperative’s board must be mindful of the above-listed areas of concerns that not only affect the day to day operations of the cooperative but also affect the livelihoods of the members. As stated above, every individual is legally afforded a reasonable expectation of privacy. It is vital that the cooperative preserve and afford every member with a reasonable expectation of privacy and not use the security cameras to invade anyone’s privacy.

In sum, the installation of security cameras to the interior/exterior structure of the buildings will no doubt bring many challenges to a cooperative. The cooperative could potentially face future liability as a result of the installation of the security cameras to the general common elements of the cooperative. The cooperative must be mindful that it must protect the cooperative and the members so that the cooperative does not lend itself to future litigation or loss of any unit or units due to safety and fire hazards that may stem from the installation of security cameras. The cooperative must be also mindful of the fact that the installation of security cameras will not come without problems as difficult enforcement and operational issues will arise, such as recordkeeping and responding to member complaints as well as the threat of improper use of the cameras by staff that could lead to invasion of privacy claims. Cooperatives considering installing outdoor security cameras on cooperative premises should consult its cooperative attorney as there are legal ramifications that are associated with the installation of outdoor security cameras.

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.


Alyssa Gunsorek is an associate attorney with experience in contract negotiations. She has contributed articles for various publications including the MAHC Messenger, NAHC’s Housing Cooperative Quarterly, and Pentiuk, Couvreur & Kobiljak’s Cooperative Law Journal.

Cook County Mandates Immediate Changes In The Application Process Regarding Felons

New Law, New Process

Is your Cooperative in compliance with changes in the application process mandated by Cook County?  If your current application process considers criminal convictions along with income, prior occupancy, and other qualification matters, then that process violates Cook County law according to the Just Housing Amendment to the Human Rights Ordinance

All cooperatives in Cook County are now required to use a two-stage process for evaluating an applicant for membership.  The first stage must have nothing to do with running a criminal background check or soliciting criminal background information about the applicant. The law prohibits this conduct at the first stage.

What if my cooperative is not in Cook County?  These mandates only apply in Cook County . . . for now.  But these mandates are the start of a movement that may spread throughout the country.  Other metropolitan centers like Seattle and Detroit have already adopted similar laws.  Be vigilant.

 

Why Can’t I Order a Criminal Background Report Right Away?

Your current practice probably asks for criminal background information right upfront. You cannot do that anymore. In the first stage, you can only ask about income, prior occupancy patterns, and all other matters that a cooperative has traditionally inquired about to determine if the applicant meets the minimum qualifications for membership. If the applicant meets those criteria and is qualified for membership, then the applicant is conditionally approved for membership.

This conditional approval for membership, however, is just that, it’s a conditional approval.  It is subject to being withdrawn but only under some very narrow and well-defined circumstances pertaining to the applicant’s criminal history.   This is where it gets tricky.  Once conditional approval has been granted, then and only then may the Board obtain criminal background information on the applicant.  If the applicant has no criminal background, then the previously granted conditional approval becomes final and the applicant becomes a member of the cooperative.

 

What Do I Do If The Applicant Has A Criminal Record?

If the criminal background information, however, on the applicant comes back positive then the Board must review that criminal background information. If no felony convictions have occurred in the three years prior to the application, then the conditional approval becomes a final approval.

If the criminal background information on the applicant is positive but the applicant has a criminal record occurring more than three years prior to the application, then the conditional approval also becomes a final approval. The Board is prohibited from using criminal background more than three years old.

 

What About Sex Offenders?

There is one exception to the three-year rule. If the applicant is a current sex offender subject to the sex offender registration act or subject to a current child sex offender residency restriction, then the Board may reject that applicant.

If the criminal background information on the applicant is positive within the last three years and does not pertain to sex offender registration or residency restrictions, then the Board must conduct an individualized assessment as to whether the applicant poses a demonstrable risk to the personal safety and/or property of others.

If the Board determines that the applicant poses a demonstrable risk to the personal safety and/or property of others based on the criminal convictions within the prior three years, then and only then made the Board withdraw the conditional approval and deny membership.

If the Board determines that the applicant does not pose a demonstrable risk to the personal safety and/or property of others based on the criminal convictions within the prior three years, then the conditional approval becomes final and the applicant becomes a member.

What Changes Must Be Made?

These standards must not only be written into a cooperative’s application forms, but additional notices must also be attached to the application forms to comply with the disclosure requirements of  Cook County’s law.

In a nutshell, the cooperative is required to disclose in writing to all applicants that it evaluates criminal convictions in light of the new law’s rules and regulations, i.e., the cooperative will only consider the applicant’s criminal conviction history for the past three years after conducting an individualized assessment as to whether the applicant poses a demonstrable risk to the personal safety and/or property of others, or the applicant is a current sex offender subject to the sex offender registration act, or subject to a current child sex offender residency restriction.

Important and additional legal details are contained within the County’s rules and regulations. We encourage you to review these carefully. Please note the deadline for the enforcement of this provision is January 31, 2020. All changes to the documents of the cooperative should be made as soon as possible. See Cook County Commission on Human Rights Notice.


What About My Rights To Personal Safety and Protection of Property?

Cook County has substituted its judgment for that of the Board as to who is and who is not an acceptable criminal risk to your community. The County has said that anyone with a criminal conviction more than three years before the application is an acceptable risk. The County has declared that a Board’s opinion on such matters has no merit.

In so doing, the County has further eroded each member’s right of association in a cooperative membership society. The County’s approach is simply this– your rights to safety and the protection of your property must yield to an applicant’s desire for housing when the applicant has a criminal history more than three years old.  If you’re not comfortable with the County’s abridgment of your rights, then here are the Commissioners you need to talk to.

Interaction with local and other units of government is a critical cooperative responsibility.  Should you have any questions or need further guidance, please feel free to contact an attorney familiar with cooperative 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.


Attorney Kerry L Morgan has extensive experience in matters related to federal discrimination law and has worked zealously with cooperatives to resolve disputes. He previously served as an Attorney-Advisor with the United States Commission on Civil Rights in Washington, D.C.

 

More Doggone Trouble for Housing Cooperatives

Is That Cute Dog A Monster in Disguise?

In the past, many cooperative housing providers prohibited pets. This policy resonated with its members who were tired of living next door to other members with barking dogs or caterwauling cats.  Yet, federal and state law now require cooperative housing providers allow assistance animals. Assistance animals are animals which a disabled member may keep in a cooperative housing situation, as long as a medical provider is persuaded that the member needs the animal in order to overcome a specific disability and that the animal will ameliorate that disability.

 

That is all well and good, but what about the member who doesn’t control his or her assistance animal? Let’s say the slobbering dog is barking all the time or running at large. Or perhaps that pesky cat is prowling the neighborhood at night and meowing right outside your bedroom window.  Do members just have to sit back and take it? The answer is no.

 

Cooperative Boards have an obligation to adopt reasonable Rules and Regulations governing assistance animals. If they don’t, they are letting their members down by not protecting their privacy and their right to enjoy the cooperative without the nuisance created by animals who their owners do not control.

 

What’s the Difference? 

Let’s get some terms straight first.  Members sometimes throw around terms but don’t really know what they mean in the law. For instance, a service animal is a dog or horse trained to perform a specific assistance task. The key point of a service animal is that it must be trained.   An assistance animal on the other hand is an animal prescribed by a medical authority to assist a person to ameliorate a disability thereby permitting that person to enjoy housing on an equal basis with others.  Sometimes people refer to assistance animals as comfort animals or emotional support animals. These all mean basically the same thing.  Of course, a pet is an animal that a member simply wants to possess that does not meet either of the above requirements.

 

Nice Dog, Bad Owner?  Bad Dog, Nice Owner?

Let’s take an example.  A cooperative member went on the Internet and downloaded a service animal packet. She received a card that said her dog was a service animal. She got a vest for the animal that identified the animal as such and let everyone know that her dog was a service animal and she could take that animal wherever she wanted in and out of the cooperative.  The dog was also seen running loose throughout the cooperative. The dog was tied up outside when the member was not present. The dog barked at passersby without restraint. The dog would tip over garbage cans. The owner would fail to clean up after the animal on a routine basis.  Is this a case of a nice dog but a negligent owner or a bad dog and a nice owner?  As far as enforcement of the Cooperatives Rules and Regulations, it does not matter.

What is the cooperative to do? Other members were filing complaints with the cooperative board demanding all sorts of remedies. They demanded the dog be banned from the premises. They demanded the member be evicted from the premises. They demanded that the member be fined for each offense.  The Board must do something or else its next board meeting will be a free-for-all disaster.

 

The Board Takes Action, But Is It the Right Action?

Since the member claimed the animal was a service animal, the Cooperative Board swung into action. It asked the member for a list of tasks that the service animal performed. The member could not come up with anything substantive other than it assisted the member and provided some generic benefits.  The Cooperative then concluded that since it wasn’t a true service animal then the cooperative might be able to force the member to remove the animal.

While this was going on the member went to her physician. Her physician gave her a note saying she suffered from a disability and that the dog provided comfort in helping the member to overcome her disability and should be accommodated by the housing provider under the Fair Housing Act as Amended.  The member’s medical note stated she suffered from anxiety and depression and needed the animal. This note confused the cooperative because the member had previously claimed the animal was a service animal.

What to do?  Can the member be fined or evicted, or the dog ordered removed because it’s not a service animal?  Or does the medical note take precedence?

 

The Law to The Rescue.

In such situations, both federal and state law will block the cooperative from imposing fines and or initiating conviction on that basis, because the disabled member may retain the dog as an assistance animal without the need to demonstrate it was trained to performed any particular tasks.  It does not matter what the member calls the dog– a service dog or companion animal or even Fido–because the member’s companion animal note from her physician trumps the service dog requirements.

Thus, the member may not be disciplined or evicted simply because she possessed a companion animal which she called a service animal.   The law requires the Cooperative to accommodate both service animals and companion animals when sought by a medically verified disabled member.

 

Did Rules and Regulations Swing into Action?

But what about the barking and the running at large and all the noise and the commotion the dog is creating for the other members of the cooperative?   Did the cooperative had already adopted reasonable rules and regulations governing pets?  Did those Rules also apply to animals such as assistance animals or service animals? Did the member agreed to abide by the Pet Rules and Regulations governing all such animals as a condition of living in the cooperative?

Well drafted rules would clearly demonstrate the member was in violation. They could be used to show she failed to correct the errant behavior, as the dog continued to run loose without a leash, engage in destruction of property, and nuisance barking. The dog would also run loose in common areas without owner restraint.  In such case the cooperative may consistent with its policies on prior warnings, act against the member as it deems warranted under the circumstances provided it has proper Rules and Regulations already in place.  This is no time to start drafting such Rules!

The basis for any such action should solely refer to violation of the Rules and Regulations pertaining to pets/animals. The basis for such action should not mention or state anything about the animal not being a service animal or not meeting service animal criteria or being a companion animal.

Enforcement of objective Rules regarding legitimate expectations about how animals should behave in a cooperative setting brings needed balance to harmonic cooperative living where the law permits animals to be present as accommodations to persons with disability. Such Rules and Regulations are important and should be well drafted so they can be enforced when necessary.  Boards should ensure their Rules and Regulations are properly adopted and legally sufficient for this purpose.  Are they?

 

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.


Attorney Kerry L Morgan has extensive experience in matters related to federal discrimination law and has worked zealously with cooperatives to resolve disputes. He previously served as an Attorney-Advisor with the United States Commission on Civil Rights in Washington, D.C.