Community Associations

Hoarding is a psychological condition where: 1) individuals have difficulty getting rid of possessions that are no longer useful; and 2) efforts to discard these possessions and not acquire new items cause distress. Television shows such as Hoarding: Buried Alive and Hoarders display in alarming detail the negative emotional and physical impact of this condition upon the individual with the hoarding disorder as well as his or her family and neighbors.

The negative consequences of hoarding in a community association — especially a high-rise condominium — are very serious. Hoarding behavior can easily lead to unsanitary and unsafe conditions that extend far outside the unit where the hoarding condition has manifested. For example, collections of half empty food containers strewn about a unit can quickly escalate into a pest infestation and breeding ground for mold and other unwelcome guests. Piles of newspapers and other combustible materials in close proximity to heat sources become fire risks. The cumulative weight of hoarded items can even lead to structural problems. Doorways and hallways overflowing and otherwise barricaded by mounds of stuff can hamper the efforts of emergency personnel and management.

A community association that chooses to ignore a hoarding situation could be found liable for failing to take action if the hoarding situation leads to injury to person or property. Continue Reading What are the Negative Consequences of Hoarding in a Community Association?

The deadline to comply with the new inspection requirements mandated by the recent amendment to the Philadelphia fire code is fast approaching.

In the wake of a fire escape collapse in Center City that caused one death and two very serious injuries, the City of Philadelphia reviewed whether to mandate the inspection of fire escapes. Ultimately, the City of Philadelphia enacted a bill that amended Section F-1011.1 of the Philadelphia Fire Code. This amendment requires building owners to conduct very specific inspections of their building’s fire escapes and fire escape balconies. A report of the inspection must be filed with the Department of Licenses and Inspections (“L&I”).

Continue Reading Deadline to Comply with New Fire Inspection Requirements is Fast Approaching

An entire textbook and law school class could be devoted to the topic of handgun regulation. This article will focus on two recent United States Supreme Court (“Court”) decisions, briefly discuss some of the ways in which the Court’s decisions could apply to community associations, and identify practical issues that a community association should consider before embarking on any attempt to restrict handguns in its community. Any association interested in regulating firearms should consult experienced association counsel before embarking on such a task.

Continue Reading Handgun Regulation in Community Associations

As someone who manages risk for a living and can find potential liability in even the most mundane and (seemingly) harmless activities, I don’t get invited to many parties. Statements such as “Are you crazy!?! Those kids shouldn’t be running with an open container of Play-Doh” and “You do realize that mistletoe is poisonous” tend not to ingratiate me with the host and guests.

You can imagine my horror when a unit owner informs me that he doesn’t have his own property insurance. My horror increases when the unit owner informs me that the reason he doesn’t have insurance is his belief that he is covered by the condominium association’s insurance. For the record, your association’s property insurance does not adequately protect you. Add “Call Insurance Agent/Broker to Review Coverage” to your New Year’s Resolutions.

Continue Reading Insufficient Insurance Coverage, Running With Play-Doh, and Other Risky Activities

Spoiler alert! The zombie apocalypse in this article was not caused by a top secret government experiment, well-intentioned vaccination protocol, or ancient (and very cold) magic. The zombies discussed in this article were created by men and women garbed in Brooks Brothers (ok, probably Joseph A. Banks) and Anne Taylor. The zombies in question were created by stalled and abandoned foreclosure actions as well as a bank’s unwillingness to initiate foreclosure. Like their zombie relatives, zombie mortgages cause serious problems to the living mortgages and communities within their reach. Instead of eating brains like some of their zombie forbears, zombie mortgages eat the revenue stream flowing to community associations.

Continue Reading Night of the Undead . . . Mortgages (Zombie Mortgages)

During the transition process from declarant to homeowner control of an association, one common area of dispute is the condition of the sidewalks. The new sidewalk surfaces may be scaling, cracking, spalling, discolored, holding water, or otherwise falling apart. The association attributes the condition of the sidewalks to defective construction and requests the declarant to repair or replace the crumbling sidewalks. The declarant blames the condition on the association’s use of de-icing chemicals (i.e. salt) and refuses to repair the sidewalks. This scenario is played out, time and again, throughout the Northeast. Continue Reading Are Homeowners Responsible for Sidewalk Condition During Transition?

Under Pennsylvania statute, when real estate subject to homeowner’s association assessments or condominium association assessments is sold at sheriff’s sale, the homeowner’s association or condominium association is entitled to recover delinquent assessments/charges accruing in the six (6) months prior to the sheriff’s sale. All other assessments/charges accruing prior to the sheriff’s sale are ordinarily divested through the sheriff’s sale process.

However, under the right combination of circumstances, a condo association or homeowner’s association may be able to recover not only the statutory six (6) months of pre-sheriff-sale indebtedness, but also all other pre-sheriff’s-sale assessments/charges.

First, the real estate in question must have been purchased by a third party who has bid enough at the sheriff’s sale to create a “pool” of available funds to cover (after payment of sheriff’s costs, taxes, and the foreclosing mortgagee’s judgment) both the statutory six (6) months and all other pre-sale indebtedness due the association.

Second, the association or its counsel must file “exceptions” to the proposed sheriff’s distribution of the funds bid by the third party, indicating that after payment of sheriff’s costs and taxes, the foreclosing mortgagee’s judgment, and the statutory six (6) months, there remains enough to pay the remaining pre-sale indebtedness due the association. Provisions of the statutes governing payment of delinquent condominium and homeowners association assessments provide that if enough funds are available, the association may get paid the rest of its pre-sale indebtedness after the payment of sheriff’s costs and taxes, the foreclosing mortgagee’s judgment, and the statutory six (6) months, and ahead of any leftover funds paid to lienholders junior to the foreclosing mortgagee and to the delinquent owner-defendant.

Third, the court must sustain or grant the “exceptions.” If they are uncontested, the odds increase that they are sustained, but it is possible for them to be opposed by a junior lienholder or the owner-defendant…or even the foreclosing mortgagee.

At Stark & Stark, we can help condominium and homeowner’s associations facing sheriff’s sales of real estate to see if their entire pre-sale indebtedness can be paid through the exception to sheriff’s distribution process.

Stark & Stark’s Community Associations Group has teamed up with Jennifer Brick of Jennifer Brick Consulting, LLC to help further develop business leads, market the group’s services to community association property managers and meet industry decision makers throughout Pennsylvania, New Jersey and Delaware.

Prior to founding J Brick Consulting, LLC, Jennifer Brick served for 14 years as the Business Development and Practice Manager for the Community Association Group at Stark & Stark, before assuming the same position with a different New Jersey law firm. Now a consultant, Ms. Brick partners with her clients on various marketing and business development initiatives including industry introductions, media outreach, lead generation, and public relations.

Ms. Brick said of her return to the firm, “I am thrilled to once again be working alongside Chris Florio and Don Brenner and their extensive legal team helping them drive client development and practice growth across multiple states. I look forward to continuing our collaboration and helping the Stark & Stark team reach their targeted growth goals.”

A recent case decided by the District of Columbia Court of Appeals has sent shockwaves through the Mortgage Lending Industry and given hope to Condominium Associations and Homeowners Associations at the same time. The issue in Chase Plaza Condominium Association, Inc. v. JP Morgan Chase Bank, N.A., concerned the statutory “super-priority” lien established in the District of Columbia’s Condominium Act which guarantees to an Association a lien superior to a Mortgage or Deed of Trust for assessments incurred six (6) months prior to the initiation of a suit to foreclose the lien. Most states – including Pennsylvania and New Jersey – have similar statutory frameworks because their Condominium and Homeowners Acts are based on a common Uniform Act adopted in whole or in part by the various state legislatures. The question hanging in the air for some time has been what the effect of a foreclosure of the super-priority lien would have on a Mortgage or Deed of Trust – that is, whether foreclosure of the super-priority lien would extinguish a purchase money Mortgage recorded before the assessments fell due.

In the Chase Plaza case, a condominium unit owner became delinquent on his condominium assessment payments. JP Morgan Chase Bank was the holder of a Deed of Trust encumbering the unit under which it was the lender to the unit owner, who had used the funds to purchase the unit. Unable to collect the assessments from the unit owner due to insolvency and later bankruptcy, Chase Plaza foreclosed its lien only to the extent that it represented the period during which assessments fell due under its statutory super-priority lien. Chase Plaza obtained a judgment and followed the prescribed process for listing the unit for a foreclosure sale under District of Columbia law. The unit was then sold at the foreclosure sale to a third party in an amount which would compensate the condominium association for its super-priority lien of assessments. JP Morgan Chase then filed a Complaint seeking to have the foreclosure sale declared void.

The D.C. Court of Appeals reversed the trial Court, which had previously found in favor of JP Morgan Chase and voided the foreclosure sale. The Appeals Court employed a rigorous examination of the D.C. Condominium statute and found that the plain language of the law conferred upon the association a lien superior in priority even to prior recorded mortgages for the assessments falling due six months before initiation of a lien foreclosure action. The Appellate Court’s opinion found that the D.C. Council intended in the Act to ensure the timely payment of assessments, and that a mortgage lender had available remedies such as escrow accounts to preserve the position of its lien of mortgage. This was a welcome event for condominium and homeowners associations, particularly in the current environment where mortgage lenders will often delay in prosecuting a mortgage foreclosure action for their own benefit while associations (and by extension other unit owners) continue to provide services to a unit which is also delinquent for assessment obligations.

Chase Plaza has upended the position taken by the mortgage lending industry that foreclosure of super-priority liens for assessments does not extinguish prior recorded mortgages. Expect to see test cases on similar facts brought by associations in Pennsylvania, New Jersey and other jurisdictions citing Chase Plaza as persuasive authority and urging that those Courts adopt the reasoning of the D.C. Court of Appeals.

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.