ASSOCIATIONHELPNOW

Questions and Answers About Community Association Law

Johnny Depp won, can you win against lies from Condo or HOA residents?

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Can you win defamation case against residents?

HOA and condominium board members are maligned, disparaged, defamed and attacked on social media on a regular basis. I interviewed condo and HOA attorney David J. Byrne to see if there are similarities that can be drawn between the $10,000,000 Johnny Depp victory and what goes on in our industry.

Don’t spend the $10,000,000 right now (lol), but we do discuss scenarios such as whether slandered board members are entitled to compensation when published lies prevent them from enjoying their own community amenities or discourage them from the volunteerism and service they dedicate to their associations.

You can find the short video here: https://youtu.be/XHWWnFFdsj4

Panelist: David J. Byrne, Esq. • Ansell Grimm & Aaron, PC

djb@ansellgrimm.com • www.ansellgrimm.com

Have a question? Email is at: info@brainerdcommunications.com

Answers and advice do not constitute legal or other professional advice. Consult legal and other professionals to assess any situation before taking action.

What is different between hold harmless and indemnification?

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In my opinion a hold harmless and indemnification are different and not one in the same.  However, they are mostly used together.  The hold harmless is a requirement to protect against an actual or potential loss.  It is statement that one party will not be held liable for the injuries or damages caused by the other party.  Whereas, the indemnification specifies the terms on the actual compensation for the loss.  The purpose is to make sure the association is compensated for ANY loss incurred that was not their fault.   I have seen contracts that only have Hold Harmless agreement and no indemnification language. [Read more…] about What is different between hold harmless and indemnification?

Second, our previous Notice of Annual Meeting and Election of Board members included a dual-purpose document that serves as both a Proxy (i.e., to ensure a Quorum) and as an Absentee Ballot? Some of the Board members, including me, think that this isn’t a good idea and would like to have separate documents. Is this reasonable.?

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Reasonable may be irrelevant. Unless “reasonableness” is required concerning a particular action, “reasonableness does not matter. All that matters is whether the notice and ballots are consistent with New Jersey law and the condominium’s bylaws and if so, whether the particular action was undertaken in good faith.

Elysa D. Bergenfeld, Esq
Ansell Grimm & Aaron, P.C.
214 Carnegie Center, Suite 112
Princeton, NJ 08540
Direct Dial: 609-557-1034
e-mail: edb@ansellgrimm.com
Main Office: 609-751-5551
Website: www.ansellgrimm.com

In New Jersey, should the Condominium Association’s Notice of Annual Meeting and Election Ballots for Board members provide a disclosure when one of the Board members running for re-election is also a contractor (who performs work every week)?

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It is extremely unlikely that a judge in New Jersey would allow any ballot or notice to have editorial comment about a candidate. 

Elysa D. Bergenfeld, Esq
Ansell Grimm & Aaron, P.C.
214 Carnegie Center, Suite 112
Princeton, NJ 08540
Direct Dial: 609-557-1034
e-mail: edb@ansellgrimm.com
Main Office: 609-751-5551
Website: www.ansellgrimm.com

May we (board) dictate what may or may not be asked at an open meeting? Maybe we state certain questions are “off limits” and may not be asked? May those that ask a question considered “off limits: not be allowed to ask additional questions for a set time frame determined by the board? Our logic this would help prevent confrontational situations for the betterment of the community.

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[Read more…] about May we (board) dictate what may or may not be asked at an open meeting? Maybe we state certain questions are “off limits” and may not be asked? May those that ask a question considered “off limits: not be allowed to ask additional questions for a set time frame determined by the board? Our logic this would help prevent confrontational situations for the betterment of the community.

May a board without owner approval enter into a agreement with an unrelated association business to provide a utility hookup in return for a payment to the association?

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An association may receive payments for the use, rental or operation of the common elements and this would include utilities that are not part of any unit. In addition, the Association may enter into contracts. Unless stated otherwise in the Declaration, these powers can be exercised without approval of the members. However, it is important to keep in mind that Board members owe a fiduciary duty to the association and must perform their duties in good faith in a manner they reasonably believe to be in the best interests of the association.

Eric J. Phillips, Esquire
Hladik, Onorato & Federman, LLP
298 Wissahickon Avenue
North Wales, PA 19454
Direct Dial: 267-662-9035
Fax: 215-855-9121
ephillips@hoflawgroup.com
www.hoflawgroup.com

The answer to this question depends on the rights of the board under applicable law and the powers granted to the board under their governing documents. Thus, I cannot provide a definitive answer with knowing the state in which their operate and review their documents and applicable law.

David Hellmuth
Hellmuth & Johnson, PLLC
8050 West 78th Street
Minneapolis, MN 55439
(952) 746-2107
dhellmuth@hjlawfirm.com
www.hjlawfirm.com

I am not sure I understand what is meant by “utility hookup”. The Board need not obtain owner approval for much of what it does as it is comprised of elected (and sometimes appointed) representatives who act in the best interests of all members. With that said, if the question is asking if the association (through the Board) can allow a business to use utilities provided and paid for by the association in exchange for a payment by the business, the answer is probably yes. But I am unsure why the association would want to enter into such an arrangement. That opens the door for any person or business to ask to use association-provided and paid utilities in exchange for payment therefor. It is not a recommended action.

Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
717.846.2246 phone
717.846.2248 fax
saustin@austinlawllc.com
www.austinlawllc.com

We do not have the ability to fine. Residents refuse to remove their scooters from hallways. Generally, something in the hallway would be removed by staff. Do we have to allow residents to store their scooters in the hallway because they are disabled? May we take these scooters away ourselves?

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First, why is there no ability to fine? Even if there is no provision for that now in the Governing Documents, the (Pennsylvania) Board can enact a fine policy/rule/regulation that is effective going forward.

Next, as to the underlying issue, the residents storing their scooters in the hallways. If that is prohibited by your Governing Documents, and they are not disabled, then enact a find policy (per the preceding paragraph) and enforce it. If one or more of the residents is disabled, then you need to discuss what a reasonable accommodation will be, one that helps that person with their issue and that also keeps the hallways safe for everyone else. If there is no good reason they leave the scooters in the hallways, other than not wanting to take up space in their Unit, then I suggest that is not medically-related (regardless of the need for the scooter) and they should be required to take them into their units.

Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
717.846.2246 phone
717.846.2248 fax
saustin@austinlawllc.com
www.austinlawllc.com

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Hallways are general common area. Board has complete authority in that area. Therefore, the scooters can be taken away by the board at any time without warning.

I cannot see how a disability would require a scooter needing to be stored in the hallway. It can easily be stored in the unit instead.

Rinaldo Acri
ACRI Commercial Realty
290 Perry Highway, Suite 1
Pittsburgh, PA 15229-1864
(412) 459-0111
rinaldo.acri@acrirlty.com
www.acrirlty.com

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I would recommend a rule that does not allow storage of personal property in hallways or storage of any items outside any units in common hallways. The rule should be kept fairly generic so that the Association can disallow any person property stored in common areas.

David Hellmuth
Hellmuth & Johnson, PLLC
8050 West 78th Street
Minneapolis, MN 55439
(952) 746-2107
dhellmuth@hjlawfirm.com
www.hjlawfirm.com

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If the residents are in fact disabled, they are entitled to “reasonable accommodations” from the Association. If the scooters are too large or unwieldy to bring into their apartments, then the Association must provide a reasonable location for them. Placing personal property in a hallway is frequently a violation of the local Fire Code, though. In that case, keeping scooters in the hallways would be a violation of law and the Association must look elsewhere, possibly outside the front entrance. If the residents are not disabled, then staff can address the issue as it sees fit (but warn the owners). Meanwhile I would suggest that you send violation notices and if necessary, start legal action. You are not looking to collect additional funds for the Association; you are seeking an incentive for the owners not to continue violating your regulations. Legal fees are a strong lever in that regard.

Kenneth Jacobs
Smith Buss & Jacobs LLP
60 East 42nd Street
Suite 4600
New York, NY 10165
212-688-2400 X4102
kjacobs@sbjlaw.com

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Federal law prohibits the failure to reasonably accommodate disabled persons in residential housing. I assume these residents are disabled. It is very questionable whether leaving a scooter in the hallway would qualify as a “reasonable accommodation” since it raises safety concerns. It is important to discuss with the residents why the scooters cannot be stored inside the unit. Further, it is unclear why this community does not have the ability to fine and whether there are any rules prohibiting this conduct. In general, I do not recommend that associations engage in self-help remedies. I would suggest contacting the local code enforcement official who may be able to issue a cease and desist notice. If possible, this community should adopt a rule prohibiting storage of belongings in hallways and a fine policy.

Eric J. Phillips, Esquire
Hladik, Onorato & Federman, LLP,
298 Wissahickon Avenue
North Wales, PA 19454
Direct Dial: 267-662-9035
Fax: 215-855-9121
ephillips@hoflawgroup.com
www.hoflawgroup.com