Condo Media - October 2010 - 24

MANAGEMENT

liability to owners who are suffering health problems related to secondhand smoke is a legitimate concern. In the interest of reducing those litigation risks, Brady and other association attorneys suggest that boards encourage owners involved in smoking disputes to pursue smoke mitigation measures. Brady advises associations in some cases to consider sharing the mitigation costs, as a lower cost alternative to defending against suits the smoker, non-smoker or both might otherwise file against the association. Until the courts provide clearer guidance in this area, Brady says, “association boards will have to strike a delicate, difficult and far from definitive balance” between owners who assert that their right to quiet enjoyment entitles them to smoke in their homes, and owners who say that their right to quiet enjoyment requires the association to prohibit smoking in homes anywhere near theirs.

have considered the question have concluded that MCS is not a medical condition requiring accommodations. Still, associations need to take MCS complaints and requests for accommodations related to them seriously, association attorneys caution, partly because this legal ground remains uncertain; and, equally important, because most fair housing disputes are fought not in the courts, but in state agencies overseeing fair housing and civil rights regulations, which tend to favor individual owners and tenants over community associations and landlords. Another argument in favor of offering accommodations in this area — they can be fairly inexpensive and easy to implement, sometimes involving only replacing the substances communities are using with less toxic alternatives, and giving prior notice of painting plans and chemical applications to all residents who request it.

Smells and Sensitivities
Related to smoking, but a few rungs below it on the emotional intensity scale, are complaints about “bad smells,” usually involving strongly flavored foods, such as garlic, curry or cabbage. These disputes highlight the limitations on a board’s authority to cross the threshold into an owner’s unit. “You can’t tell someone they can’t cook foods they like because their neighbors don’t like the smell,” Brady notes. Cooking smells may offend some owners, but they don’t typically make them sick; toxic chemicals and even common and seemingly benign household substances can have precisely that effect on people suffering from specific allergies or coping with the wide-ranging vulnerabilities created by Multiple Chemical Sensitivity (MCS). The Fair Housing Act requires “special accommodations” for individuals suffering from physical or emotional disabilities that interfere with their “full enjoyment” of their homes. The courts have not dealt extensively with MCS claims, and many of those that

Aging in Place
The population is getting older. Extended families, who used to live in the same communities and often in the same dwellings, are now separated by hundreds or thousands of miles. While “out-of-sight-out-of-mind” may not always be the case, adult children who don’t see their aging parents regularly may not notice a slow but steady decline in their ability to care for themselves. Because the options are limited, often unappealing and expensive, children who do notice sometimes try to ignore the problem for as long as they can, allowing their parents to continue aging, not always gracefully, in place. Many of these aging residents are living in condominium communities in which they have resided for many years. “When they moved in 20 years ago, they were fine,” notes Pat Brawley, CMCA, AMS, PCAM, a property management consultant with Community Solutions. “But now, they are in their 80s or 90s, and they are no longer able to take care of themselves.” In community associations, where residents often have little contact with

each other, even close neighbors may not notice that an older neighbor is declining. If the owner’s dues are paid electronically, the board and management company may not have any reason to suspect a problem either. And so you hear stories like the one Brawley recounts, of a cat who cried steadily for a month before neighbors suggested there might be cause for concern. It turned out that the cat was crying because the owner had died. By the time the manager investigated, the cat had died, too. That’s a story Brawley heard from others, but she has plenty of stories of her own. She recalls one woman in her 90s, who, though active and generally in good health, was becoming forgetful — writing checks on closed accounts and sometimes forgetting to pay her association dues. When that occurred, Brawley would drop by the woman’s unit and help her make out the check. “As a site manager, I noticed the problem and had the time to help,” she notes. A portfolio manager responsible for multiple properties “doesn’t always have the time or ability to act as a social worker,” Brawley says. Even when managers or boards notice that an owner is suffering from age-related or emotional disabilities and want to help, they walk a narrow and ill-defined line between providing assistance individuals need but may not want, and violating their privacy rights and threatening their desire to live independently. “Informing an adult child that their parent isn’t able to live alone is like notifying parents that their daughter’s boyfriend has moved in with her,” Brawley says. “[In one respect], it’s not our business.” On the other hand, it is hard to ignore an elderly resident who clearly needs help. No one wants to be the manager or board member who discovers that a resident has been dead for weeks. And given that boards are as likely to be sued for intervening as for failing to do so, Brawley and other industry professionals agree, it is probably best to err on the side of offering

CONDO MEDIA • OCTOBER 2010

Condo Media - October 2010

Table of Contents for the Digital Edition of Condo Media - October 2010