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Changing Scenes of Communities

Apr 12, 2011 | Archive, Blog, Text Only Article | 0 comments

Trying to pinpoint the boundaries of the concept of “diversity” is about as easy as teaching a cat the alphabet. This is especially true in the context of community associations. An association’s membership is as varied in background and demographics as the society around it. With respect to condominiums, for instance, this means that retirees and families with young children, English and Mandarin speakers, atheists and Buddhists, and Canadian and Greek transplants may all live under – and jointly own – one roof.

This is a good thing, of course: A cookie-cutter membership packs all the excitement of a bread sandwich. But association leaders should keep in mind that a diverse membership may come with a broader spectrum of potential issues. This is especially critical given that the overall number of enforcement disputes involving associations appears to be increasing, possibly due to tensions sparked by the sluggish economy with more people at home to “police” the community. “A condominium is a microcosm of America,” says Terry Leahy, a shareholder of the law firm Leahy McLean Fjelstad in Kirkland, which represents associations. “Whatever happens in America happens on a smaller scale in a condominium community.”

Dan Zimberoff, an association attorney at Barker Martin in Seattle, recalls a situation where some condominium residents were bothered by cooking odors coming from the unit of a neighbor who routinely prepared meals from her native country. (Other residents were probably bothered that she did not invite them over for dinner.) Many associations would understandably be reluctant to address sensitive issues such as this one. But the best way to resolve an enforcement dilemma that may involve a “diversity”-related hot spot is to “put it on the table and face it head on in a way that is transparent and honest,” says Zimberoff. (In that case, the association considered placing restrictions on cooking times and even installing an “air scrubber,” but ultimately the owner spearheading the complaints moved out for other reasons.)

“The key is to open the lines of communication and build relationships,” says Leahy. This approach is particularly advisable when cultural differences and language barriers are in play. The first instinct is simply to pass more rules, says Leahy, “but that will rarely change anything.” Indeed, owners from other countries may not understand that, when they buy a property that is governed by a community association, there is “an extra set of rules and regulations that is enforceable against them,” notes Stephan Fjelstad, also an attorney with Leahy McLean Fjelstad.

Foreign owners may likewise lack familiarity with the rules-enforcement process. “When an owner gets an enforcement letter from me, there is a lot of opportunity to avoid the problem,” says Fjelstad. But those with a limited grasp of the American legal system may get the incorrect impression that “the only way out is to get a lawyer” and litigate. “The moment you see that you may be dealing with someone from another culture, you need to take a softer, less combative approach,” says Fjelstad.

Instead of relying on one-size-fits all methods of problem solving, associations should try to understand “where the person is coming from” and take efforts to incorporate him into the community, says Leahy. “It is easier to accomplish things when relationships are in place,” he adds, such as starting a dialogue when a conflict arises. And people are more likely to observe the rules – and tolerate minor rule violations – when they are interested in maintaining positive relationships with their neighbors.

Improved communication and understanding of differences can prompt creative solutions. In Colorado, a board adopted a rule that owners could not plant gardens in front yards – but a unit owner planted a front-yard garden anyway. “The normal response would be to send out a letter,” says Leahy. “But instead the community leaders talked to the person and found out that in this person’s culture, you use the land you have to cultivate your own food.” Armed with this knowledge, the association accommodated the owner by getting her involved in tending a garden space in a common area. By digging deeper into the motivations of the unit owner, “the association met both her needs and the needs of the community,” concludes Terry.

A practical solution to language barriers, says Leahy, is to look into whether a person who does not understand English has a child or other relative who is familiar with the language. Alternatively it is wise to invest resources in translating materials. This expense can pay off: A condominium association represented by Zimberoff in which the majority of residents and tenants do not understand English has noticeably increased membership participation with multilingual communications from the board.

Though it is critical to investigate the true nature of an issue involving cultural or other differences, be sure not to simply fall back on stereotypes, which are frequently inaccurate. “We have clients in the 55-plus communities or with a high percentage of retirees who are among our most technologically adept communities,” notes Zimberoff, despite the perception that younger communities are more likely to embrace things like community email-lists and websites.

Finally, be aware that laws protect owners from some types of discrimination committed both intentionally and inadvertently by associations. For instance, the Federal Fair Housing Act prohibits association discrimination on the basis of race, color, religious, sex, national origin, familial status, and disability. (Washington law also forbids discrimination based on sexual orientation.) In 2009, a federal court of appeals held that a Jewish family could state a claim for discrimination under the FFHA against their condominium association if they could prove intentional discrimination. In that case, the association repeatedly removed the family’s mezuzah (a small religious artifact that the Jewish faith requires believers to affix to their doorframes) based on a rule banning any items outside unit entrance doors. The FFHA was also found to be violated last year when a condominium association excessively fined families when their children were playing games in common areas in violation of the rules.

Associations further must make “reasonable accommodations” to people with disabilities, such as allowing a service animal despite a pet restriction in the governing documents. The FFHA also requires associations to permit people with disabilities to make “reasonable modifications” to existing dwellings or common areas at the expense of the person requesting the modification. This may include installation of wheelchair ramps and handrails. Fjelstad notes that, as the population ages and awareness of protections afforded to those with disabilities expands, requests for modifications are becoming increasingly common.

As the diversity of the nation increases, so too does the variety of people who are becoming members of community associations. Associations should celebrate this diversity, while remaining sensitive to the particular needs of members whose differences make community living worthwhile.

By Allison Peryea

Associate Attorney, Leahy McLean Fjelstad,

Allison Peryea is an associate attorney at Leahy McLean Fjelstad, a law firm in Kirkland, Washington that represents community associations. She can be reached at allison.peryea@leahyps.com.
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