FOR COMMUNITY ASSOCIATIONS

Bed Bugs Are Biting Again

By Jeffrey Turk, Esq.

I have become something of an expert on bed bugs. This was by no means a career ambition; I did not grow up wanting to know everything there was to know about bed bugs and would be happily ignorant about them today. But they have become a major problem for the owners and managers of residential and commercial properties, and the problem is worldwide.

“We are on the threshold of a bed bug pandemic,” the National Pest Management Association warned recently.

That we are talking about bed bugs at all, let alone a bed bug “pandemic,” is surprising. Until recently, these pests were encountered only in history books and old sayings, as in “don’t let the bed bugs bite.” But the banning of pesticides that had virtually eradicated the bugs has given them new life and international travel has given them wings.

The bugs themselves don’t have wings, but they attach themselves invisibly to the luggage and clothes of travelers, who have transported them via airplanes, buses, trains and cars to hotels, office buildings, shopping malls, schools, theaters and, of course, beds all over the world.

Bed bugs are small – less than an inch long – and resilient. They reproduce enthusiastically, spread rapidly and can live for up to a year without food, their food of choice being the blood of the sleeping humans they bite. Good housekeeping isn’t a factor; the bugs will infest the most pristine of dwellings, and they reside as comfortably in offices as in homes, hiding in desks, chairs and couches as well as mattresses, and hunkering down in the tiniest cracks and crevices, making them hard to find and, once embedded, harder still to dislodge. A measure of the difficulty: Pest control companies in Ohio and Kentucky have asked for a waiver to use chemicals the Environmental Protection Agency has banned, to deal with infestations they haven’t been able to cure otherwise.

Cover Story

There is no question bed bugs are getting more attention. They haven’t appeared on Oprah yet, but they did make the cover of a recent issue of the New Yorker magazine, under the headline, “Bed Bugs and Beyond.” The New York Times reports that the number of Google searches for bed bugs increased by 83 percent in the past year, and there is even a web site (Bedbugger.com) devoted to the topic. A housing agency in Toronto recently sponsored an all-day seminar on bed bugs and what to do about them, while in New York, a newly enacted ordinance requires landlords to disclose prior bed bug infestations to rental applicants and existing tenants. I have been lecturing on bed bugs at conferences around the country and these sessions are always filled. I have no illusion about the reason: It’s the topic (bed bugs), not the speaker that is the draw.

Pest management companies reported revenues of $258 million for bed bug extermination last year, compared to $98 million in 2006. That probably counts as good news for pest control companies, but not so much for the residents whose homes become infested or for the landlords, property managers and association boards that have to deal with their complaints.

Although bed bugs aren’t known to carry communicable diseases, their bites trigger an allergic reaction in many people – resulting in itchy, painful welts. And the bugs are gross. Just the thought of them makes people twitchy and angry – and inclined to sue the landlords, or community associations, or hotels in which the bugs appear.

One couple sued a Catskill hotel for $20 million after the wife was hospitalized for treatment of an allergic reaction she suffered from 500 bug bites she received. A singer, similarly, sued a Hilton hotel for $6 million, claiming permanent psychological damage from the more than 150 bed bug bites inflicted on her during a stay at the facility. The hotel’s offer to waive the fee for one night was not adequate, the singer said.

In one of the few cases that has produced an appellate decision, the Seventh Circuit upheld a jury award of $5,000 for compensatory damages and $186,000 in punitive damages for a bed-bug-bitten Motel 6 guest, who charged that the hotel ignored complaints about the bugs, failed to address the problem and continued renting rooms to unsuspecting guests. The Appellate Court agreed that the hotel’s failure to take corrective action and failure to warn guests about the problem “amounted to fraud and probably to battery as well.”

Landlord’s Obligation

Most of the reported bed bug cases to date have involved hotels. The relatively few cases involving rental properties have produced mixed decisions about the liability of the landlords, depending on their knowledge of the problem and the steps they took to deal with it. In one particularly egregious case, a tenant complained endlessly about bed bugs, to no avail. His unit became so infested that the tenant first slept on the balcony, then got an air mattress, then covered everything in plastic and finally tried sleeping on a metal cot in his bathtub. The court found the landlord’s refusal to respond unacceptable and his liability significant.

The state Sanitary Code in Massachusetts (and in many other states) requires landlords to keep dwellings free of insects and other pests, so there is little question about their obligation to respond to an infestation, once they become aware of it. But bed bug infestations are complicated for two reasons:

• Unlike most other pests – spray once and they’re gone – bed bugs often require multiple treatments; and
• Successful treatment requires the cooperation of tenants, who must bag virtually everything in their units, eliminate clutter, and wash and/or dry all their clothes. Without those steps, some bugs will survive and reproduce, continue to infest the targeted apartment and, inevitably, spread to others. For this reason, landlords can’t (and shouldn’t) simply throw up their hands if a tenant refuses to cooperate; they should seek a court order, if necessary, to compel cooperation in order to prevent a building-wide infestation that would be more complicated and more difficult to cure.

Bed bug infestations in rental properties raise another tricky question ¾the landlord’s potential liability (if any) for damage to personal property. This question arises because exterminators sometimes recommend disposing of furniture or clothing that can’t be effectively purged of bugs; and because, even when exterminators don’t recommend disposal, tenants sometimes “freak out” over bed bugs, jettison everything in sight, and then insist that the landlord compensate them for the loss.

Although we haven’t seen any court decisions on this question yet, we don’t think landlords have any liability for personal property lost or damaged in connection with a bed bug infestation, regardless of whether the exterminator recommends the disposal of the property or not. An infestation might constitute a breach of the warranty of habitability, justifying a temporary reduction in the tenant’s rent as long as the problem persists. But landlords would be responsible for property damage only if their negligence caused the infestation, which is unlikely to be the case. Nothing landlords do or fail to do will bring bed bugs into an apartment. More often than not, it is tenants who cause an outbreak, bringing in bed bugs attached to their luggage after a trip or in used furniture or used clothing that they purchase – one of the major sources of infestations.

At least thus far, no courts have found that the mere presence of bed bugs creates a claim for monetary damages for the loss of personal property. Our advice to landlords: As long as they respond prudently to bedbug complaints, we don’t think they will have any serious liability risks in this area.

The question thus becomes, what does it mean to respond prudently? The answer, unfortunately, is neither clear nor simple. Some experts believe the only proper response is a chemical treatment. Others insist that heating machines and other non-invasive, non-chemical technologies are the best treatments. My suggestion, which appears to be accepted by courts, is to follow the recommendations of your professional exterminator. If the exterminator says treating the infested unit alone with a single application is sufficient, fine. If he/she advises treating all the adjacent units with multiple applications, do it. Just make sure your exterminator has experience ¾ and a successful track record ¾ eradicating these pests.

It appears that following the recommendations of a licensed “professional” will demonstrate to a court that you were acting prudently and reasonably, thereby avoiding a negligence claim. In fact, in the cases in which courts have assessed actual and punitive damages against landlords and property owners have usually resulted from findings that they failed to comply with the directions of the exterminator.

A Common Area Problem

Although the ownership structure of condominiums is different, the concerns are similar to those of rental property owners and so is our advice to community associations. Condominium owners, who are responsible for maintaining their own residences, also arguably should be responsible for dealing with bed bugs individually as well. But because the pests spread so quickly, and because building-wide infestations are so difficult to control, unless an infestation clearly originated in a particular unit and is wholly contained there, we recommend that associations deal with bedbug extermination as a common area expense.

At least one association we know of is insisting that one owner pay the cost of exterminating the entire complex, claiming that this owner was responsible for introducing the bugs. We think this assertion will be difficult, if not impossible, to prove. While this owner’s unit may be less well kept than others, and the owner himself may be “unclean” (as the board alleges), bed bugs aren’t related to housekeeping skills or personal hygiene, or income. Just because one owner is first to notice or report bed bugs in his/her unit doesn’t prove conclusively that the problem originated there.

For landlords and community associations dealing with bedbug complaints (and if you haven’t yet, the odds are you will at some point in the future), we recommend the following:

1. Respond quickly and prudently to tenant/owner complaints and keep a detailed written record of the complaints and your responses.
2. Bring in a professional, licensed exterminator who has experience eradicating bed bugs, and follow the expert’s recommendations. Court cases to date suggest that obtaining and following an expert’s advice can provide something of a safe harbor from liability claims.
3. Obtain a court order, if necessary, to secure the cooperation of individual tenants and owners in treating their units. As noted earlier, a tenant’s refusal to cooperate with the bed bug treatment will not eliminate a landlord’s obligation to deal with the problem. The same logic applies to community associations; if one owner fails to exterminate or doesn’t exterminate successfully, treating all the other units and the common areas will be futile.
4. Consider adding a lease addendum or amending your condominium documents to proactively confirm the obligations of tenants and owners to report bed bugs and remediate infestations. Lease provisions could require, for example, pre-move in inspections of the tenant’s personal property, prohibit tenants from bringing furniture in from the street, and specify their obligation to permit access for inspections and treatments, etc.
5. Educate apartment tenants and condominium owners about the bed bug problem and the precautions they should take ¾inspecting luggage and clothes after trips, the risks of buying second-hand clothing and furniture ¾ and the need to report any sign of bed bugs immediately. The best strategy by far for dealing with bed bugs is to avoid infestations in the first place.

Security Concerns Are Understandable but a Community Association’s Obligations Are Limited

By Patrick Brady

Community association boards and managers spend a lot of time worrying about legal liability, and with good reason. Multi-million-dollar awards to residents who sue their associations for failing to provide adequate security are hard to ignore. So are statistics such as these: The cost of settling a negligent security claim averages between $500,000 and $600,000, according to some industry estimates; the average jury award to plaintiffs who allege security breaches by property owners is more than $1 million; and the cost of just defending these claims is $100,000.

Those are scary numbers, to be sure. But they shouldn’t scare boards into doing more than they are required to do to provide security in their communities.

This is not to suggest that board members shouldn’t be concerned about security; they clearly should be both because they don’t want to see their neighbors robbed, injured, or worse and because they don’t want the association to be liable for the damages resulting from those injuries. But the key liability question for boards is: What must they do to reduce the risk that judges or juries will find them to have been negligent in addressing the community’s security needs? How extensive are the association’s security obligations? The answer, in most cases, is not nearly as extensive as many boards assume.

A plaintiff alleging that a community association’s security measures were inadequate must demonstrate that:

• The association had a duty to provide security; and
• It failed to take reasonable steps to fulfill those obligations.

Maintenance Obligations

Courts in different jurisdictions set different standards, but a community association’s security obligations are generally similar to those of a landlord, which is to say, they are primarily maintenance obligations, for example: making sure common area doors and locks are functioning properly and that common area windows are secure and replacing light bulbs in hallways, stairwells, garages, parking lots and laundry rooms. Neither community associations nor landlords are required to guarantee the security of residents and their guests. Unless the condominium’s governing documents include security on the list of association responsibilities, boards have no obligation to hire security guards, install cameras and motion detectors, or implement any other specific high- or low-tech security measures.

Where community associations will and do get into liability trouble is by promising protections they don’t provide, failing to maintain security-related equipment they have installed, or failing to continue security measures they have implemented. If an association hires security guards and then fires them because of budget constraints, a resident who is subsequently robbed or assaulted will almost certainly claim the board was negligent, and the odds are good that a judge or jury will agree. An association usually incurs greater liability risks by eliminating a security-related service than by never providing the service in the first place.

Managing Expectations

Managing a community association’s security liability risks has much to do with managing the expectations of owners. While the association has no specific security-related obligations, it can acquire those obligations and the liability related to them if board members tell owners the association is responsible for protecting them or allow them to believe that to be the case.

This is one reason, although not the only one, we advise boards that install cameras to describe their purpose as “surveillance,” not “security.” Security implies that the camera provides a measure of protection. In fact, cameras simply record crimes; they do little, if anything, to prevent them. And they may actually do more harm than good by creating a false sense of security that makes residents less vigilant and less cautious than they should be.

A California case dramatically illustrates that point. The owners of an office building in California installed several fake cameras in their garage, ostensibly to deter crime. A woman leaving late in the evening was assaulted on her way to her car and fought her assailant vigorously until they reached a point in front of one of the cameras. Unaware that the cameras were just for show and assuming help would be forthcoming, she stopped struggling and was brutally raped. A jury found the building owners negligent and awarded the victim more than $1 million in damages.

The key points for community associations: Don’t install fake cameras, ever. Make sure any cameras, motion detectors, or other security-related devices you do install are always working. And most important – explain carefully to owners that the cameras provide surveillance only; they can’t prevent crime and do not reduce the need for owners to remain vigilant, to take common sense precautions (locking their cars and not leaving valuables in them) to protect themselves, and to report any suspicious individuals or activity – not to the board, but to the police.

Call the Police

The latter point (call the police) is perhaps most important. Many condominium owners assume that when they move into a condominium community, they enter a world completely different from the one they inhabited as owners of detached single-family homes or apartment tenants. If single-family homeowners are robbed, assaulted, or fear for their safety, they call the police. If a crime wave envelops a neighborhood, single-family owners don’t (usually) hire private security guards; they demand more police protection. They don’t hire a private fire brigade to deal with fires – they expect the local fire department to take care of those emergencies.

The response of condominium owners should be the same. Condominium owners pay property taxes and are equally entitled to police and fire protection and other municipal services. They don’t relinquish those rights – and transfer those obligations – to their community association. A community association board is not a police force, it is not a fire department, and it is not required to provide those services.

Association boards cannot ignore security concerns, however. In addition to maintaining common areas, as noted earlier, boards must respond reasonably to security risks that are identified or reasonably foreseeable. If someone reports a missing bulb or broken light, the board should make sure it is repaired or replaced. If shrubs become overgrown (providing cover for assailants), boards should make sure they are trimmed. And they should inform owners of security risks in the condominium community or surrounding neighborhood.

In some cases – if criminal activity is escalating in the community or surrounding area — the board might request additional police patrols or ask the department to send an officer to talk to owners about safety precautions. Forming a volunteer “community watch” group is another option if owners are concerned and willing to undertake that effort. The board can also ask the police department to provide a basic risk assessment for the community, or hire a professional security firm to provide a more comprehensive risk evaluation. Reviewing area crime statistics (available from the police department) is another easy way for the board to identify any security concerns that should be communicated to owners. With the exception of a security firm’s risk assessment, none of these measures involve any out-of-pocket costs and all can go a long way toward demonstrating to a court (should this become necessary) that the board has taken reasonable steps, within the limits of its obligations and authority, to address security concerns.

Don’t Just Say No

While boards are not required to implement specific security measures, they should approve reasonable requests from owners to implement security measures of their own. A 20-year-old California case (Frances T. v. Village Green H.O. Association), still cited today, highlights the importance of this advice.

The plaintiff homeowner, concerned about a rash of burglaries and thefts in the area, asked the board repeatedly for permission to install additional lighting near her unit. The board had been discussing security concerns for several months, but hadn’t acted on them and didn’t respond to this owner’s request, so she installed the lighting on her own. That drew an immediate response from the board, which ordered the owner to remove the unauthorized lighting and rejected her request to leave it in place until the board could propose an alternative.

The owner complied, but because her supplemental lights were wired into the same circuit as the association’s existing lighting (which the owner felt was inadequate), disconnecting the owner’s lights left the area without any lighting at all. Shortly after that, the owner was raped in this darkened area, and a court found the association as an entity and the board members individually to have been negligent and liable for damages as a result.

A 1991 Massachusetts case (Hawkins et. al. v. Jamaicaway Place Condominium) produced a contrary result. In this case, the association’s board determined that the bars an owner wanted the association to install on the outside of her windows represented an architectural improvement requiring the approval of 75 percent of the owners – a benchmark the owner was unable to meet. When she was subsequently raped in her unit, the owner sued the association for negligence, but the state Supreme Judicial Court rejected her claim, ruling that the owner could have installed the bars on the inside of her unit without permission, albeit at her own expense.

While this decision affirms the consensus view – that an association’s security obligations are limited ¾ it does not eliminate the need for boards to take owners’ security concerns seriously and to approve reasonable security measures (stronger locks on their doors and additional lighting around their units, for example), as long as those measures don’t harm or create a nuisance for other owners.

If, as in the Jamaicaway Place case, owners refuse to approve a reasonable request, the board might want to seek a court opinion either upholding the owners’ decision or overruling it. The association would have to foot that legal bill, but the costs involved would be miniscule compared to the damages for which the community could be liable if it loses a negligent security claim.

Battling Neighbors, Aging Residents, Outsized Obligations Create Headaches and Impossible Challenges for Boards

“My upstairs neighbors are overweight. When they walk across the floor, it sounds like an army doing maneuvers over our head.”

“The cigarette smoke coming from my next-door neighbor’s unit is making me sick.”

“When Mr. Gabrielli cooks spaghetti, I smell garlic for a week. And I hate garlic!”

“I haven’t seen Mrs. Jones for a couple of weeks. She must be over 90 now, and I’m a little worried about her.”

If you compiled a list of the most common condominium complaints, it would contain some variations of most, if not all, of these. Noise, smoking, odors (usually, although not always, related to cooking) and aging residents top the issues that concern, annoy, disturb or infuriate condominium residents and bedevil the board members and managers who are expected to “do something” ¾ usually in capital letters with exclamation marks ¾ to resolve the problems.

How Loud Is it?

We’ll start this discussion with noise complaints, which are both the most common and often the most difficult for boards and mangers to resolve. Most condominium documents contain language prohibiting owners from creating a “nuisance” that annoys other residents or interferes with their “quiet enjoyment” of their homes. And just about everyone agrees that noise falls under the nuisance category. The problem comes in trying to distinguish between normal noise (created by daily living) and noise so loud that it becomes a nuisance.

Like beauty (in the eye of the beholder) noise is subjective. The downstairs neighbor hears an army marching above; the upstairs neighbors insist that they tiptoe across the floor “quiet as mice.” “Like mice on steroids,” comes the reply. And so it goes. Is one neighbor being overly sensitive, the other not being sensitive enough, or (as is often the case) some combination of the two?

Noise complaints are further complicated because they often involve people who don’t like each other for unrelated reasons. “There is almost always a back story,” notes Patrick Brady, a partner with the Boston law firm, Marcus, Errico, Emmer & Brooks. A noise complaint, he adds, is as likely to be a symptom of a soured relationship as the cause of it.

That was the case in a recent incident in which Brady was involved, where one owner insisted that an upstairs neighbor, which whom she had been feuding for months, was intentionally tapping on the floor early every morning, just to annoy her. It turned out that the tapping sound was created by the neighbor’s walker, as she moved from her bedroom to her bath and kitchen after awaking.

“What’s the board supposed to do?” Brady asks. “Tell the upstairs neighbor she can’t use her walker early in the morning?”

Complaints about noise and other perceived annoyances are most likely to escalate, Brady has found:

• When new residents, unaccustomed to condominium living, discover that some sounds will travel through the best-insulated walls; and
• When a community’s demographics change, for example, when a number of families with young children move into a community that has consisted largely of empty-nesters.

Owners, unaccustomed to having children living upstairs (or anywhere in their vicinity) are appalled by the “noise,” often insisting that the board go to court, if necessary, to stop it. Again, the board confronted with that complaint will be hard-pressed to resolve it. They can tell the complaining owner to be more tolerant or ask the parents to encourage quiet activities for their children. Neither suggestion is likely to be well-received. And if the dispute ends up in court, which happens more often than it should, “How could we tell a judge that a four-year old can’t run around in his home?” Brady asks.

What the board may be able to do is point out that rugs or carpeting can reduce the noise created by children (or walkers) moving across uncovered floors. But if the association’s documents don’t require rugs, Brady notes, “we can only suggest them; we can’t require owners to install them.”

Noise complaints and other rules enforcement challenges often require boards to balance equally legitimate sets of competing rights. Equally problematic, demands for boards to halt “annoying” behavior often clash with the limits on an association’s authority to control activity within an owner’s home, tying the board’s hands and infuriating the owners demanding action. In both situations, the board’s position is untenable – not just damned if they do or don’t, but almost certainly sued regardless of what they do or don’t do. For that reason, some industry professionals think boards should limit their involvement in neighbor vs. neighbor disputes as much as possible (See “Industry Perspective” on page x). In most cases, they suggest, the board’s default position should be, “This is between you and your neighbor; it’s not the association’s problem.”

Smoking Storms

Few disputes are more bitter, more emotional, and more fraught with litigation risks for community associations than those between smoking and non-smoking neighbors. Smoking disputes are most intense and most difficult to resolve, Brady says, when they involve residents at the extremes: A non-smoker on a crusade to ban smoking everywhere, and/or a smoker who insists that a neighbor’s sensitivity to second-hand smoke is not her responsibility. These collisions between immovable forces and unstoppable objects become even more intense, Brady has found, when they involve attorneys or people who know them.

He described one recent incident in which an attorney and his wife purchased a unit in a community in which the owners were preparing to vote on an amendment to prohibit smoking completely. The amendment subsequently passed (the seller of the unit actually voted for it, Brady noted) and when the attorney smoked on his deck, the board fined him for violating the smoking ban. The attorney demanded proof, which the board had (in the form of pictures); now, Brady says, the attorney is going to court to challenge the fine.

An owner in another community Brady represents is complaining about pipe smoke seeping into her unit from the one above. Although the smoker has taken multiple steps to address the problem, including sealing cracks and using “smoke-eaters,” the complaining neighbor, a secretary in a law firm, is still complaining and an attorney in the firm in which she works is threatening to sue the association, even though, Brady notes, a vote on a no-smoking amendment is pending. That makes the threatened litigation hard to understand, Brady says.

“I told the attorney, if the court wants to declare second-hand smoke a nuisance that the board has the authority to prohibit, that will solve my problem.” While courts in some jurisdictions have defined smoking as a nuisance, courts in Massachusetts and other New England states have yet to do so. And absent that definitive ruling, Brady says, if this dispute goes to court, “we’ll tell the judge the board has done everything it has the authority to do.”

While an association’s legal authority to restrict smoking within an owner’s unit is not established, its potential liability to owners who are suffering health problems related to second-hand smoke is a legitimate concern. In the interests 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.

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, or 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 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.

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 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,” Pat Brawley, CMCA, AMS, PCAM, a property management consultant with Community Solutions, notes. “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 manger 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 help to people who don’t want it rather than failing to help people who will be harmed without the assistance.

The board’s authority and obligation to respond are clearer if the actions of a resident threaten the safety or property of others. The courts in some cases will intervene, for example, ordering locks on stoves where forgetful seniors were creating a fire hazard for the entire community, or prohibiting a violent, emotionally disturbed resident from occupying his home. But even these situations are rarely clear-cut. Troubled residents also have ownership rights that the courts will recognize and are reluctant to override, and the Fair Housing Act requires accommodations for individuals with emotional as well as physical disabilities. Although the law includes an exception for residents who pose a threat to others, boards need some basis to support their argument that a threat exists; the existence of a disability, association attorneys emphasize, is not in itself evidence that a court needs to intervene. Before seeking court action, association attorneys advise, boards should try to find an acceptable accommodation that will allow the resident to remain in place.

There is no blueprint for dealing with residents who are unable to care for themselves. Particularly when dealing with aging residents, common sense, compassion and a willingness to think creatively are probably the best guides. Apart from seeking guidance from a court – usually a last resort – Brawley suggests a few steps that can help boards and managers deal with these difficult situations when they arise:

• Create a directory of local resources — social workers, medical services, elder care agencies, and the like – that might provide assistance.
• Form a volunteer “lifeline” committee responsible for checking periodically on older or otherwise fragile residents.
• Collect emergency contact information for all owners. This isn’t easy, according to Brawley, who notes, “You never get a 100 percent response.” Keeping the information current is also difficult, she says. But linking the information requests to something residents need – a parking sticker or a pool access card, for example – “can significantly improve the response rate,” Brawley has found.

For boards and mangers dealing with residents who are aging in place, “there are no generic fixes,” Brawley says. “It’s a conundrum.” And with the population of seniors expanding rapidly as the baby boomers age, she warns, ‘it’s only going to get worse.”

FAIR HOUSING (OFF) BEAT

Fair housing enforcement actions involving community associations often raise interesting issues, but sometimes they just raise eyebrows. Two recent examples:

The Virginia Attorney General has sued a condominium association for violating the state’s Fair Housing Act, claiming that the enforcement of an association rule barring ball-playing in common areas discriminates illegally against families with children. One of the families receiving violation notices and fines contacted the A.G., complaining that only families with children had been targeted for enforcement actions. Neither this family nor the A.G. has indicated whether the disparity existed because the board did not enforce the rule against families without children, or because those families did not play ball in violation of the rule.

In Florida, an apartment owner planning to offer units to convicted sex offenders has run afoul of the Fair Housing law by telling existing tenants with children that they would have to leave. The owner gave the families only a few weeks’ notice, telling them that the complex was being converted to an “adult” community, but not mentioning that the adults he was targeting were sex offenders, who are not allowed to live within 2,500 feet of a school bus stop. Because children in the complex wait for the bus at the entrance to the community, the owner apparently decided that sex offenders could not move in unless families with children moved out.

The Fair Housing Center of the Greater Palm Beaches has sued the owner in federal court, seeking unspecified compensation to reimburse the families for their moving expenses and damages for the emotional stress resulting from being forced to relocate on short notice around the Christmas holidays.

The owner had the right to convert his building to an adult community, Reed Colfax, the attorney representing the families, told the Palm Beach Post. But he “should have handled it differently,” at a minimum, giving the families more time and financial incentives to relocate. Colfax described the owner’s actions as the most “egregious” example of discrimination in his experience, noting, “I’ve never seen the wholesale eviction of an entire class of people.”