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What Your Common Interest Community Needs To Know When Considering Requests By Disabled Owners For A "Reasonable Accommodation"

The United States Fair Housing Act makes it unlawful for a residential common interest community to discriminate in the terms, conditions or privileges of the sale or rental of housing, or in the provision of services in connection with a dwelling, because of race, familial status, gender, religion or disability.  When it comes to the "disabled", unlawful discrimination is further defined as the condominium's failure to make a "reasonable accommodation" in its practices, policies, etc. so that an owner can have an "equal opportunity to use and/or enjoy a dwelling".  Specifically, the applicable federal regulation provides: 

"(a) It shall be unlawful for any person to refuse to permit, at the expense of a handicapped person, reasonable modifications of existing premises, occupied or to be occupied by a handicapped person, if the proposed modifications may be necessary to afford the handicapped person full enjoyment of the premises of a dwelling". 

In this regard, common interest community associations often receive requests from disabled owners that they be allowed to modify a common element, building component, etc., at their expense.  For example, a disabled owner may ask for the right to install a ramp to his or her unit to allow for wheelchair access to the unit.   When considering a "reasonable accommodation" request, as they are commonly called, the condominium should not condition its approval of the request on the disabled person's promise or duty to restore the area in question back to its original condition.  In fact, it is clear that only with request to rentals, not owners, can this be done.  The applicable federal regulation provides: "In the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted."
 
Residential condominiums should consult with counsel once it receives any owner or resident’s request for a "reasonable accommodation" pursuant to the United States Fair Housing Act.   

In Pennsylvania "Reasonable" Attorney's Fees is a Subjective Standard

In Pennsylvania, common interest community associations are creatures of both real estate law and state statutes.  A condominium’s enforcement authority is rooted in restrictions that both run with the land and are recorded as restrictive covenants with the deed clerk of the county where the common interest community is located.  The primary statute for condominiums within Pennsylvania is the Uniform Condominium Act (68 Pa.C.S. § 3101 et seq).

The Uniform Condominium Act provides that a condominium association is entitled to recover its reasonable attorney’s fees along with the costs of suit incurred as a result of the condominium having to litigate matters relating to the collection of common expense assessments like monthly maintenance fees and special assessments [68 Pa.C.S.§ 3315(f)]. Simultaneously, the majority of condominium declarations allow for the recovery of reasonable attorneys’ fees and legal costs in collection actions.
  
Experience has shown that the determination of the  “reasonableness” of the attorney’s fees boils down to the subjective opinion of the particular judge ruling on the fee application.  Courts of this state will consider such issues as whether opposition was filed by the debtor defendant, whether court appearances were required, whether discovery was exchanged and whether any additional motions or court pleadings had to be filed outside of the ordinary.
   
This subjective standard was well illustrated in the case of Mountain View Condominium Association v. Bomersbach, 734 A.2d 468 (Pa.Cmwlth. 1999).  In Mountain View, the Commonwealth Court of Pennsylvania ruled that the lower court did not err in its  calculation and award of attorney’s fees which the condominium was entitled to recover from a unit owner. What makes Mountain View so noteworthy is that the Court allowed a fee award of $46,548.64 on what was initially only a debt of $1,200.00 when the common interest community initiated the collection action.
   
While the fee rates which condominiums agree to pay their attorneys may be the same or similar to their competitors’ within the industry, the court’s awarding of these fees through the foreclosure or collection process is dependent upon the court’s subjective opinion.  Some courts rightfully award a condominium all legal fees and costs incurred in its collection actions, penny for penny, whereas in some situations some judges dramatically reduce the amount of the attorney fee award.

When a judge issues an order awarding attorneys fees and legal costs less than the amount which the condominium incurred, the common interest community may file a motion seeking the court to reconsider its position on the award, or the condominium can appeal the court’s decision.  However, both of these options will cause the condominium to incur additional legal fees which may not be recoverable from the debtor.  The decision as to whether the condominium should file a motion for reconsideration or appeal the court’s decision after the entry of final judgment should be made on a  case by case decision based upon the total amount which the court has reduced the fees awarded and other relevant factors.

As stated by the trial court in Mountain View, “[t]he Association had the option of either backing off or enforcing its rights under the Declaration and the decisional law.  The fact that it elected not to compromise, to stand on principal and to uphold the law requires that its attorney’s fees be covered.  Any holding to the contrary would cause chaos in Condominium Associations whose compliant members would have to bear the cost of dealing with non-compliant members.” In the end, there is no sure-fire way to predict the amount of attorney’s fees which will be awarded by a court.  However, this should never deter a condominium from enforcing its declaration and bylaws to collect unpaid assessments, the “life-blood” of the condominium.

Collecting Interest On Unpaid Pennsylvania Condo Fees, Maintenance Fees, and Special Assessments

While many Pennsylvania common interest community associations are quick to take legal action to collect unpaid monthly maintenance fees, special assessments, late fees, and other condo fees, many condominium associations do not realize or do not take advantage of their ability to collect interest on unpaid condominium common assessments. The Pennsylvania Uniform Condominium Act (68 Pa.C.S. § 3101 et seq)(the “Condo Act”) permits common interest community associations to charge interest on delinquent balances. Specifically, the Condo Act permits condominium association’s to charge interest on unpaid common assessments up to 15% per year.

The charging of interest for unpaid common assessments has proved to be an excellent tool for common interest community associations in order to motivate regularly delinquent owners to bring their accounts current. It is recommended that the association’s board of trustees pass a resolution regarding the levying of interest if the board wishes to impose interest fees for unpaid assessments.  The resolution should set forth the amount of the interest to be charged and the time period in which the interest will be calculated and applied to the debtor’s account.  The resolution should be published to the membership and hopefully will be an additional incentive for delinquent owners to take action to address their balances.

New Pennsylvania Law Alters the Jurisdictional Limits

In late November, Pennsylvania House Bill 2172 became law. As a result of this new law, and effective January 22, 2011, the jurisdictional limit of Pennsylvania's magisterial district courts was increased from $8,000 to $12,000 in civil cases. Also as a result of this new law, effective January 22, 2011, the Philadelphia's Municipal Court jurisdictional limit was increased from $10,000 to $12,000. Interest and costs are not to be calculated when considering the jurisdictional limits.

The new law should affect, in several respects, the manner by which Pennsylvania's common interest community associations recover unpaid assessments, including unpaid maintenance fees, special assessments, and other condo fees. 

Legal Issues in Age Restricted Communities

A. Christopher Florio, Shareholder and Co-Chair of Stark & Stark's Community Associations group, presented a seminar entitled Legal Issues in Age Restricted Communities for the Community Associations Institute and Apartment Association of Greater Philadelphia's Expo. The Expo was held Wednesday, April 29, 2009 at the Valley Forge Convention Center. Mr. Florio's seminar discussed living in age restricted communities, and the legal issues that are peculiar to age restricted communities in Pennsylvania.

You can listen to Mr. Florio's full presentation here. (28.8 MB)

You can view a copy of Mr. Florio’s seminar materials online here. (PDF)

Stark & Stark Shareholder to Present Legal Issues in Age Restricted Communities Seminar at 2009 CAI Conference

A. Christopher Florio, Shareholder and Co-Chair of Stark & Stark's Community Associations group, will present a seminar entitled Legal Issues in Age Restricted Communities at the 2009 Pennsylvania & Delaware Valley Community Associations Institute and Apartment Association of Greater Philadelphia's annual conference. The conference will be held Wednesday April 29, 2009 at the Valley Forge Convention Center in King of Prussia, Pennsylvania.

 

Mr. Florio's seminar will be speaking about living in age restricted communities, and the legal issues that are peculiar to age restricted communities in Pennsylvania. You can access additional conference information, a full list of the convention seminars, and registration information here.
 

Pennsylvania Legislature Sends House Bill 2295 to Governor Rendell

As a follow up to a recent post the Pennsylvania House of Representatives, on a concurring vote, approved House Bill 2295 yesterday (199-0).  The House originally passed HB 2295 on June 11, 2008. After the House originally approved the Bill in June, it was then sent to the Senate. The Senate approved the Bill, but also added additional language to the Bill in conjunction with Senate Bill 963.

SB 963 amends the Uniform Condominium Act by furthering the abilities of older communities to amend their declaration of covenants in order to better serve and provide for the members of their communities. The amended HB 2295 passed the senate on Monday June 30, 2008, and after having passed for the second time in the House yesterday, will now move to Governor Rendell for final approval.

The Community Associations Institute of Pennsylvania’s Legislative Action Committee has long supported HB 2295, as well as SB 963. HB 2295 is a very important and positive piece of legislation which will enable associations to provide the highest level of service to unit owners.

Pennsylvania's House Bill 2295 Moves to Senate

On June 11, 2008 the Pennsylvania House of Representatives passed House Bill 2295, which would amend Section 3315 of Pennsylvania’s Uniform Condominium Act (The Act). HB 2295 will restore original language, which had been removed from The Act in 2004. In 2004 the amendment to The Act reduced the rights of an association to collect unpaid assessments after a judicial sale of unit, to only being able to collect unpaid assessments in cases ending in foreclosure.

HB 2295 will provide a condominium association with a “super-priority” lien for assessments payable by unit owners. This means that an association will be able to collect up to six months of unpaid assessments from unit owners in the event of a judicial sale, and/or foreclosure of a unit. The money collected from the assessments enable an association to provide unit owners with maintenance services required in accordance with the association’s contracts and statutory responsibilities.

Taking away the right of an association to collect unpaid assessments after the judicial sale of a unit will only negatively affect the association and it’s unit owners. Reinstating the original language used prior to the amendment of The Act in 2004 will enable community associations to continually provide the level of service unit owners have come to expect.

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