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Sunday, April 26, 2015
April 2015 View Previous Magazine Features

Ahead of the Curve
By: Nena Groskind

When I was (much) younger and would fret about problems I might encounter in the future, my Mother would tell me, “Don’t borrow trouble.” Most parents, including me, have no doubt given their children the same advice. Condominium association managers and board members shouldn’t try to “borrow trouble” either, by fashioning rules and implementing policies to address problems that haven’t surfaced yet and may not ever require attention. “You don’t want 45 pages of rules,” addressing issues that aren’t relevant to the community, Robert Keegan, CMCA, AMS, PCAM, vice president at R&E Associates, Inc., AAMC says.
But boards and managers don’t want to end up so far behind the curve that they are blind-sided or overrun by issues either. We’ve identified three challenges that may not require immediate attention, but should be on community association radar screens.

It would be hard to imagine a more dramatic example of an issue demanding attention than the drone that landed recently on the White House lawn. The skies aren’t exactly crowded with drones – yet, although a few commercial pilots have reported close encounters of a potentially dangerous kind. But a Google search for the term produced about 3.5 million results. Clearly, there’s a lot of interest in the technology – both for personal and commercial uses.
Community associations boards have to be concerned about residents using drones to spy on their neighbors (or neighbors who think that’s what the drones are doing) and about drones delivering packages to residents. On the personal use side, “There are absolute privacy considerations,” Clive Martin, counsel, in the Boston office of Robinson & Cole LLP, says. “This is something boards absolutely need to consider.”

Liability Risks
Personal and commercial uses of drones also create potential liability risks for community associations – the same risks they face for anything that could harm residents. An owner who is injured by a drone – or claims his privacy was violated by one – will almost certainly sue the association along with the drone’s owner.
Given the liability concerns – hard to quantify but easy to imagine — some association attorneys think boards should proactively adopt rules prohibiting drones from landing in common areas or from flying in the air space above the community, which the association also controls. But others suggest that an outright ban might discourage prospective buyers and upset current owners who want the convenience of receiving drone deliveries. They also caution that overly restrictive association rules might provoke a legislative backlash, like the “right-to-dry” laws many states enacted to counter association rules barring clotheslines, or the federal OTARD rules, preventing association bans on telecommunications equipment.
Most industry executives who have thought about the issue agree that some reasonable restrictions on drones will be needed. Their suggestions include:
• Prohibit drones from landing in common areas, but designate approved areas where they can land.
• Limit the times of day during which drones are allowed to land in the community – to reduce owner complaints about noise or other disruptions. Restricting landings to daylight hours will make it easier for residents to spot drones and avoid being injured by them.
• Require owners receiving drone deliveries to indemnify the association from damage claims resulting from those deliveries.

On the immediacy of concern scale, electric cars rank considerably higher than drones, simply because there are more of them. There were approximately 260,000 electric cars on the road at the end of last year; industry estimates project another 40,000 will be added to that total before this year ends. As the number of electric car owners continues to grow, the number of community association residents seeking access to electrical outlets and/or charging stations will grow as well. How will boards respond?
Just saying no is probably the easiest answer, but not the best one, Martin advises. “Boards should try to be responsive and reasonable.”
Being reasonable means requiring the owners using the charging stations to pay not just for the electricity they use but for the purchase, installation and maintenance of the charging equipment, as well, Martin says. Being responsive, he suggests, means trying to find ways to accommodate owners’ requests for access to the charging equipment they need.

Location, Location, Location
It is easy to include charging stations or spaces for them in newly constructed buildings, but considerably harder to add them to existing structures – especially if residents own their parking spaces. If the electric car owner’s spot is located some distance from the best – or only – feasible location for a charging station, what do you do?
Boards might encourage owners of the well-located spots to swap with their neighbors, but that idea tends to work better in theory than in practice, Martin has found. “People get attached to their parking spots,” he notes. The owner whose spot is near the building entrance won’t be enthusiastic about taking a spot located at the opposite end of the garage, and the board can’t force an owner who doesn’t want to swap to do so.
If parking spaces are neither deeded nor assigned, boards can designate some number of spots for electric cars; but owners forced to settle for more distant spaces will no doubt object to the “special treatment” electric car owners are receiving.
Boards don’t want to offend some owners in order to accommodate others, but they also don’t want electric car owners running long extension cords from their residences to their automobiles. Industry executives offer these suggestions:
1. Establish policies governing charging stations, either through bylaw amendments approved by owners or through rules enacted by the board.
2. Association policies should specify, among other details, where charging stations can be located. Try to select the least desirable spots rather than the most desirable to reduce friction with other owners.
3. Require owners using the charging stations to pay for their installation, repair and maintenance.
4. Boards should either arrange for and oversee the installation of charging stations (at the expense of owners requesting them) or grant easements allowing owners to install the stations in designated common area locations. If the latter, boards should insist on approving the installation plans and either select or approve the contractors owners use.
5. Require owners to pay for the electricity used to charge their cars; also make them responsible for the cost of installing any equipment needed to monitor usage and bill separately for it.
6. Require users of the charging stations to maintain insurance covering them and to indemnify the association for any damages resulting from their installation, use, or maintenance.
7. Consider making the installation of charging stations a common expense. Poll owners to gauge their support for this option. The main argument for it: As electric car ownership grows, the stations may become a desirable amenity, increasing the appeal of the communities to prospective buyers and increasing the value and marketability of owners’ homes.

Massachusetts, Rhode Island, Vermont, Maine are on a rapidly growing list of states that have approved the medical use of marijuana, triggering a host of questions that community associations in those states will have to answer, primary among them: Whether and under what circumstances to allow owners to use and perhaps grow marijuana in their communities.
On one level, the answer is clear, association managers and most attorneys agree: If an owner has a legitimate medical need to use marijuana, and state law permits that use, the board can’t prohibit it, even if owners have approved a bylaw amendment banning smoking in the community.
“You have to treat requests to waive a no-smoking rule (for medically approved marijuana use] the same way you’d treat requests to waive a pet ban for an owner who claims a medical need for a service animal,” Keegan says ―as an accommodation required under the Fair Housing Act. “You have to say yes.”
Scott Wolf, CMCA, AMS, PCAM, owner of Greater Boston Properties, Inc., AAMC, agrees with Keegan: “If they have a legal right to smoke marijuana, we have to let them do it.” But as with service animals, he notes, boards can impose reasonable requirements and restrictions on marijuana users — for example, requiring them to mitigate the infiltration of smoke into common areas and other units. “We can say they need to install an air filtration system in their unit and ask them to take other measures to be respectful of others in the community,” he says. “But that’s about the extent of it.”

Balancing Act
What about the rights of owners whose health is affected negatively by exposure to marijuana smoke? “It’s only a matter of time before the Massachusetts Commission Against Discrimination (MCAD) brings the first complaint,” Martin predicts – either on behalf of an owner asserting a medical need to smoke marijuana or an owner asserting the right not to be sickened by it. As with all disputes of this kind, he says, “it will be a balancing test, based on the facts you’re dealing with – it’s all about what is reasonable.”
While Fair Housing laws require associations to offer “reasonable accommodations” to residents with physical or emotional disabilities (including conditions requiring the medical use of marijuana), the law also give boards some room to negotiate precisely what those accommodations will be. Communities that have adopted rules restricting smoking (or bylaws prohibiting it) will be in a better position to regulate marijuana smoking in their communities. For that reason, many attorneys advise associations that haven’t enacted smoking bans to consider doing so by having owners approve a bylaw amendment to that effect. The amendment should specify that the ban applies to marijuana as well as tobacco, Martin advises.
Martin and most association attorneys generally advise boards to treat medical marijuana accommodation requests the same way they treat requests for any other Fair Housing accommodations: Sensitively, thoughtfully and fairly, trying to balance the legitimate medical needs of marijuana users against the equally legitimate needs of other owners, concerned both about exposure to second-hand smoke and about the presence of drugs of any kind in any form in their community. Among other measures, boards may want to:
• Ask if there are drugs other than marijuana that could provide comparable relief.
• If there are no drug alternatives, ask if the marijuana can be administered by means other than smoking it. Marijuana can be incorporated in baked good and it is available in pill and liquid forms.
• If a physician confirms that smoking is the only viable option for this patient, require him/her to install ventilating equipment and take other measures to prevent the seepage of second-hand smoke into other units. Boards might also require medical marijuana users to smoke someplace other than in their residences – on their decks, in parking areas or other spaces removed from the buildings.

Growing Concerns
Medical marijuana laws in Massachusetts and some other states allow owners not only to use medical marijuana but also in some cases to cultivate it in their residences. “The growing business will create problems for sure for community associations,” Martin notes.
Security is one: At $3,000 to $4,000 apiece, marijuana plants are attractive targets for thieves and drug users. The conditions required to grow marijuana create property damage risks as well -- elevated humidity creates mold risks and the high intensity lights are potential fire hazards.
Additionally, some marijuana varieties emit noxious odors and the increased utility usage could unfairly burden other owners in communities where utilities are shared rather than separately metered ― all legitimate concerns and legitimate arguments for prohibiting in-residence cultivation. Although Martin advises boards to response positively, if they can, to owners’ requests, this is one area where he agrees, they should “just say no.” □

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