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2nd Quarter 2017www.caitenn.org
In ThisIssue
From the President
Caught In Between
Dealing with Mosquitoes
What Happens Now?
LIF
ESTY
LES
2017 CAI ANNUAL SPONSORS
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Alliance Association BankApex Ventures, Inc.
BB&T Association ServicesBrightView Landscape Services
Law Office of Alvin L. HarrisOnSite Engineering
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RenoviaRobins Insurance Agency, Inc.
Roger Perry, P.C., CPASweetwater Pools of Nashville
Timmons Properties, Inc.Weiss & Weiss, Attorneys at Law
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2ND QUARTER 2017 3
2017 OFFICERSTENNESSEE CHAPTER
OF CAIPRESIDENT
Scott Weiss, Esq.Certified Business Partner
Weiss & Weiss, Attorneys at [email protected]
VICE-PRESIDENTMatthew Komisky, CMCA, AMS, PCAM
Paragon [email protected]
SECRETARYJaye Kloss, CMCA, AMS
Ghertner & [email protected]
TREASURER EMERITUSHenry Puckett, CMCA, AMS
Ghertner & [email protected]
BOARD MEMBERSJimmy Carter
Homeowner [email protected]
John Hensley, CMCA, AMS, ARM, PCAMAssocia TN
Brent HogueRenovia
Jake LinkousRobins Insurance
Jamie Rothberg, CIRMSJames A. Rothberg & Associates
Joyce L. Spiecha, CMCA, AMSKeith S. Collins Co., LLC
Jeff StocktonCertified Business Partner
Taylor WhiteLangley & Taylor Pool [email protected]
Gerald Wigger, Esq.Ortale, Kelley, Herbert & Crawford
CHAPTER OFFICEFaye Ellis, CED, CPM
211 Donelson Pike, Suite 106Nashville, TN 37214
(615) 874-0031Fax (615) [email protected]
Community Lifestyles is published by the Tennessee Chapter of the Community Associations Institute.
Names and addresses of our members can change. If your contact name, address or phone number changes, please
go to [email protected] to update.
From the Presidentby Scott Weiss, Attorney at Law, Weiss & Weiss, Attorneys at Law
Now that we are well into 2017, I am pleased to share some of the accomplishments that CAI Tennessee Chapter has achieved
so far this year.
West TN Regional Council – Since approval of the West Tennessee Regional Council this year in February, Tammy Joyner, our West Tennessee Regional Council Chairperson, has been hard at work trying to build upon our presence and member-ship in West Tennessee.
Activity: Tammy has solicited dozens of volunteer board members from numerous community associations in her area to join CAI. Tammy has also spoken to numer-ous managers not only in her office, but from other management companies, about joining CAI and asked that they too contact the volunteer boards they represent and encourage them to join CAI. Tammy is also working with Kathy Sutherland, our Education Committee Chairperson, to organize volunteer board training workshops in Memphis. Our chapter will be hosting a kick-off luncheon in Memphis to get the word out and keep the momentum going. More will follow about board training, the kick-off luncheon and other progress in my next update.
East Tennessee Regional Council – Kevin Stevens is the East Tennessee Regional Council Chairperson. Kevin has also been hard at work formulating ideas on how to build CAI presence and membership in East Tennessee.
Activity: Kevin is beginning to organize, plan and schedule regular quarterly meet-ings to increase membership and participation. He is compiling a list of community management companies, managers, volunteer boards and vendors in his area which he intends to have complete and ready for use once the Knoxville Regional Council
kick-off luncheon is scheduled. Much like the main chapter luncheons, Kevin’s vision for guest speakers is to schedule experts in fields to speak on such topics as board governance, delinquent assessment collections, Association liability and other topics of interest to our East Tennessee members and future members. Tennessee Chapter – Many of you have heard me say that education and training are paramount. The Education Committee has been hard at work this year to provide you with guest speakers at
our monthly membership luncheons who provide substantive, education-based and content-driven topics which is relevant to community associations. Most recently, we had the Reserve Study Panel at the June luncheon; there will be an insurance panel scheduled for a future luncheon; a termite/pest panel for a future luncheon; and we are trying to organize a tree control panel for another luncheon this year.
In addition to more substance at our monthly luncheons, the Tennessee Chapter has completed the following training courses and still has the others listed as upcoming:
March 31, 2017: Business Partners Essentials Training Course (Completed)April 5, 2017: Miller-Dodson/Scott Weiss - “Reserve Studies and the Law” (Completed)August 10-12, 2017: M100 Course - Maxwell House Hotel (Upcoming)
continued on p. 14
During 2017 and beyond, CAI of Tennessee will continue to build upon our mission of enhancing the quality of community association living in Tennessee.
4 TENNESSEE COMMUNITY LIFESTYLES
James A. Rothberg & Associates1 Burton Hills Blvd., Suite 220 | Nashville, TN 37215
phone 615-997-1833 | fax 615-665-1300email: [email protected]
Thanks to the Tennessee Chapter of the Community Associations Institute for its
patronage throughout the year.
Specializing in writing habitational risks including:
Apartment AssociationsCondominium Associations
Homeowners Associations & CooperativesOffice Condominium & Cooperatives
2ND QUARTER 2017 5
Associations used to avoid getting involved in neighbor-versus-neighbor disputes, but a new HUD regulation regarding harassment changes the dynamic. Should you intervene now?
Let’s say a condominium unit owner routinely harasses another by verbally assaulting her with obscenities and
threats of violence. The harassing owner also frequently sends letters to the other owner, sug-gesting that he will slash her tires if she parks in a certain space even though parking spaces aren’t reserved. The threatened owner reports the harass-ment to the association board and manager, who notify the association attorney.
Until recently, the attorney’s advice may have been to inform the harassed owner that the association shouldn’t become involved in owner-versus-owner disputes. Unless the dispute affects the whole community or poses some threat to the health and safety of residents, the association normally wouldn’t intervene because the association is only responsible for entering contracts for the maintenance of common areas, collecting assessments, enforcing restrictive covenants, and carrying out other association business.
However, after the U.S. Department of Housing and Urban Development adopted a new regulation this past September, community association boards must now choose whether to intervene in disputes between neighbors and risk being drawn into litigation resulting from the dispute or refuse to intervene and risk being sued for violating the Fair Housing Act. Either choice will likely prove to be a very large, bitter-tasting pill to swallow.
HUD’s new regulation poses very serious and potentially devastating financial liability to community associations.
Now associations may be held liable for the discriminatory actions of residents who harass or create a hostile environ-ment for others. That’s right, this new regulation essentially places even more burdens upon associations to be the “police” of their neighborhoods by creating a new duty to intervene when the association knew or should have known about actual or alleged harassment between neighbors, even though these situations having nothing at all to do with regular association governance and operations.
Although not clear on many issues, the regulation clearly establishes a nexus between community associations and third party liability. It includes a provision that liability “can derive from an obligation to the aggrieved person created
Caught In Betweenby Scott Weiss, Esq.
by a contract or lease,” such as association declarations, bylaws, or other rules and regulations. Associations that prohibit “nuisance” behavior or have provisions that ensure the right of owners to peacefully enjoy their homes could be in trouble. Harassment arguably meets the definition of a nuisance that may interfere with the right to peaceful enjoyment. Therefore, according to the regulation, associa-tion boards will be required to respond to any claim by one
owner that he or she is being harassed by another.
Housing and HarassmentCommunity association volunteer
leaders, professional community association managers, and associa-tion attorneys all should be concerned about this HUD regulation and possess at least a basic familiarity with it.
HUD believes that associations generally have the power—and thus the duty—to respond to third-party harassment by enforcing conditions and restrictions authorized by govern-ing documents or by state and local legal authority, and that community associations regularly require residents to comply with the CC&Rs through notices of violations, fines, liens, and court filings. HUD’s position is that “the community associa-tion is required to take whatever actions it can legally take to end the harassing conduct.”
HUD’s new regulation addresses two types of harassment:Quid pro quo – Harassment defined as “subjecting a
person to an unwelcome request or demand and making submission to the request or demand a condition related to the person’s housing.”
Hostile environment – Harassment that involves subject-ing an individual to “unwelcome conduct that is sufficiently severe or pervasive such that it interferes with or deprives the person of the right to use and enjoy the housing.”
Duty To ActHUD’s position is that a community association has a duty
to act when it “knew or should have known” of the harass-ment of one resident by another. This standard is met at the moment the association has knowledge from which a “reasonable person would conclude” that the harassment was occurring. A verbal or written account from the harassed resident, another resident, or a friend of the resident may be enough to provide notice to the association that a hos-tile environment may be occurring. Whether the verbal or written notice is sufficient to establish the conduct as being
The following article originally was published in the July/August 2017 issue of CAI’s Common GroundTM magazine. It has been reprinted with permission.
continued on p. 7
Because of new HUD regulations, community associations now have a duty to investigate harassment claims.
6 TENNESSEE COMMUNITY LIFESTYLES
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2ND QUARTER 2017 7
sufficiently “severe or pervasive to create a hostile environ-ment” depends, according to HUD, upon the “totality of the circumstances.”
Identifying HarassmentIllegal behavior can take many forms. According to the
regulation, unwelcome conduct can be spoken or written; it may include gestures, signs, and images; and it may be communicated in direct and indirect ways through innuendo. Absent testimony from someone who witnessed or overheard the incident, how is an association board to know which neighbor is telling the truth? Under the regulation, all it takes is one incident to establish quid pro quo harassment, and “if sufficiently serious,” the offended party may include a claim of hostile environment as well.
So how is a board to determine when a dispute is a conflict between people who don’t like each other versus a dispute that rises to the level of a Fair Housing violation that the board must address? In determining whether there is an actual dispute or just simply a natural animosity between neighbors, HUD will look at the “totality of circumstances.” For example, the agency will examine:• The nature of the conduct• The context in which the incident(s) occurred• The severity, scope, frequency, duration, and location of
the conduct• The relationship of the persons involved• Whether there was unwelcome conduct that was sufficiently
severe or pervasive as to create a hostile environmentHUD will examine these circumstances through the lens
of what is referred to as the “reasonable person” standard. In other words, would a “reasonable person” under similar circumstances and with a similar background, feel that a hostile environment exists?
Burden of ProofTo be successful in a lawsuit against an association for
violating the new HUD regulation, the aggrieved person must only prove that a violation of the regulation exists. The individual isn’t required to prove that he or she has suffered any actual physical or psychological harm. He or she, how-ever, may introduce evidence of such harm to assist a judge or jury in the calculation of an award for monetary damages.
Investigating ClaimsBecause of the new HUD regulation, community associa-
tions now have a duty to investigate harassment claims, take steps toward stopping harassment if they find evidence of it, and follow up to ensure the behavior doesn’t continue. However, the regulation falls short on defining the steps association boards are required to take and how far they are required to go in addressing the harassment. While the
regulation identifies several “corrective actions” that may be taken to curtail the harassment, many of these actions, such as filing suit to evict the harasser or denying an owner access to the property, are available to landlords but not associations.
That’s the fundamental problem with HUD’s regulation. By including community associations in its definition of “providers of housing or housing-related services,” HUD fails to recognize that community associations aren’t landlords; that association owners aren’t tenants; and that association homes or units aren’t apartments and cannot be treated the same way.
Investigating claims of harassment and attempting to mediate the harassment by mailing cease-and-desist notices to the offender, and possibly levying fines if the association has a fine policy, would seem to be reasonable responses for a board forced to deal with a harassment claim. But whether those measures would satisfy HUD or a court is unclear.
Since this regulation was adopted and went into effect in 2016, during the Obama administration, we’ll have to see whether Ben Carson, the new secretary of HUD, takes a closer look at this regulation and modifies it to exclude community associations.
Scott Weiss is an attorney at Weiss & Weiss in Nashville, Tenn., and president of CAI’s Tennessee Chapter. www.weissandweisslaw.com
©2017 Community Associations Institute. Further reproduction and distribution is prohibited without written consent. For reprints, go to www.caionline.org/reprints.
Caught In Between, cont.
Letter from the Chairby Matthew Komisky, Publications Chairperson
I hope you find this newsletter informative about the Tennessee Chapter and also a resource with the articles and the advertising. I’m always searching for new articles that are relevant to the industry and especially the Tennessee market. If you have suggestions for the newsletter or want to submit an article, please contact me via email at [email protected].
I would like to thank Jenny at Lewis Letterworks for her hard work on the newsletters and the directory. I certainly couldn’t do this without her help!
8 TENNESSEE COMMUNITY LIFESTYLES
April, May and June Luncheon Highlights
2ND QUARTER 2017 9
April, May and June Luncheon Highlights
10 TENNESSEE COMMUNITY LIFESTYLES
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It’s the time of year when recovery from the past year and the quiet, slower pace
that cooler weather affords makes it easy to procrastinate. Who wants to think about dealing with pests in the warm season when what it brings seems so far out, especially when many are still contemplating their New Year resolutions? Mosquito-borne diseases like Zika and the West Nile Virus are things we may not be ready to hear about, but they are real, they are here, and we need to be proactive.
There is no need for hype or panic, but education and awareness is important, beginning with the mosquito itself. The male mosquito does not bite but feeds on nectar and the juices of plants. It is the female mosquito that bites and needs to do so to have a blood meal in order to reproduce. This cycle contributes to heartworms in dogs and cats, which is probably the most common ailment in our area caused by mosquitoes.
Though not an issue in our area just yet, Zika is very real. Education, especially among travelers, can help lessen its impact in the United States. For us locally, it is important to be aware of what is possible in the future and try to avoid it if at all possible. The West Nile Virus is here as well, though we often think of it only occurring in Africa. It became very real to me the summer before last when I had a client spend over a month in the hospital due to the virus. He was in criti-cal condition for a time and it took a while for him to recover. Although he was doing what he could on his own property, the probable culprit was a neglected swimming pool next door. It took getting a municipality’s involvement to get the situation taken care of.
As with many other things in life, a little time spent now can reduce the time spent later. This is especially true when dealing with mosquitoes. What one does now can have a significant impact on exposure to the aggravation of mosqui-toes as well as their related illnesses. Taking care of breeding areas now will reduce the numbers that are able to breed. The complete cycle from egg to adult takes an average of 10 to 14 days depending on temperature and environmen-tal conditions. The adult lifespan of a mosquito is only two weeks. The “season” for our area typically starts up in March and can go as late in the year as October.
Mosquito breeding begins with standing water. The cap you just took off that bottle of water holds enough water for a mosquito to start the cycle of laying eggs. With needing such a small amount of water, there are many places we should check regularly for standing water.
Proactive Planning or Catchup Cleanup: Dealing with Mosquitoes
by Chuck Negas, Northwest Exterminating
The gutter maintenance that may have been delayed in the past becomes extremely critical to make sure leaves are not clogging downspouts and gutters are set so there is no standing water. Broken downspouts and splash blocks allow water to collect in unintended places next to structures (as well as potentially being det-rimental to the structure itself and affecting
your termite program). Neglected toys, sagging tarps over lawn furniture or lawn equipment, and the saucers below plant containers can all be suitable places for a mosquito to start her family. Low lying areas in the lawn or sunken walk-ways can be areas that need attention in order to properly drain. Water in bird baths, planting containers, and even pet bowls need to be flushed at least once a week. Sunken areas, brush piles, and abandoned structures, ponds, and pools need to be addressed due to stagnant water; however, fountains can discourage mosquito activity since the water is constantly moving.
There are, of course, treatment methods to go hand-in-hand with general exclusion and maintenance. Holes in trees or stumps can be filled with sand to reduce the amount of water that is able to collect. Larvacides can be used. Larvacides prevent the mosquito larvae from maturing into adults. Standing water in drains, the landscape, and even drainage ditches can be an issue and can be treated with an appropriate larvacide. The adult mosquitoes, much like humans, look for shaded places to rest during the heat of the day. Mosquito treatments can then be performed that apply products to shrubbery, low trees, and other vegetation. These treatments, when properly applied on a regular basis (typically monthly), will go a long way in reducing the local population of mosquitoes.
Personal protection, especially to those who seem to be more susceptible to their bite, can be as simple as wearing long pants and long-sleeve shirts. Exposed skin should be treated with a repellant containing DEET. If you are a pet owner, do not forget to take care of them as well! There are many medications to help them avoid heartworms, and should be done so with the supervision of their veterinarian.
Mosquitoes are here and so are the diseases and problems they bring, but that doesn’t mean we should be frightened, that we cannot fight back. Through education and vigilance, we can avoid mosquitoes and take back our backyards. We can grill in peace and our children can play outside without worry, but it involves acting now. Prepare your home and your yard when the weather is cool so that you may enjoy it all summer long.
12 TENNESSEE COMMUNITY LIFESTYLES
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2ND QUARTER 2017 13
What Happens Now?by Scott Weiss, Attorney at Law, Weiss & Weiss, Attorneys at Law
You are at an Association annual meeting. There are one or two homeowners who are trying to take over your meeting by controlling discussion and making untrue allegations toward the board and other members. Homeowners are beginning to leave and you can tell that the meeting is quickly getting out of control. The board president asks you what to do. What happens now?
A ccording to Roberts Rules of Order Newly Revised, 11th Edition, the chairperson (HOA president) has absolute
control over the meeting. No one can speak without being recognized by the chairperson. This power comes with a great deal of responsibility. The chair must at all times con-duct the meeting impartially and according to the agenda. He must be familiar with parliamentary procedure (or ideally, have a parliamentarian present for guidance) in order to keep the discussion moving and know when to take a vote without someone having to “call for the question.”
Announce Ground Rules Prior to starting the meeting, the HOA president should explain the ground rules for conducting the meeting. The president should explain the meeting process and state if and when homeowner comments will be permitted and how homeowners must seek recognition from the chair/president. If certain members tend to continuously disrupt or dominate the meeting, strict time limits and control techniques (dis-cussed below) should be applied consistently throughout the meeting. Keep in mind, however, that most members are attending a meeting solely for the purpose of learning about what is going on in their neighborhood and to pro-vide helpful and constructive suggestions. You should not discourage such contributions or, worse yet, inadvertently create homeowner apathy!
Time Limits for Speaking More often than not, the Board must prepare itself for a heated if not downright nasty debate on a controversial topic. If such a topic is on your agenda, the Board should set limits on speaking time. An ideal time limit is three to four minutes. The Board should also set a rule (or Motion to Limit or Extend Debate should be made), which should be announced with the other “ground rules” at the begin-ning of the meeting that all who wish to speak must have an opportunity to speak once, before anyone can speak a second time. While the Board must allow for a reasonable number of people to speak to each side of an issue, this number will vary depending on the number of homeowners who wish
to speak. It is reasonable to establish a shorter speaking time limit for those who wish to speak a second time or to rebut a previous comment. Keep in mind that homeowners should have time to speak before they take formal action on any item under discussion. This opportunity to speak must be allowed in addition to any other speaking opportunities provided by the meeting chair/president.
Controlling the Meeting The chairperson (usually the HOA President) of any meet-ing must embody the following qualities: organization, com-posure and, above all, the ability to remain calm, yet in charge of the often frenzied mass of speakers. That familiar scenario in which a controversial topic causes respectful, courteous “friends” to degenerate into disrespectful, profanity-using, and even threatening “strangers” can be avoided. If faced with a particularly hostile or difficult member, the chairperson should first warn such member and call him or her to order. In the case of a particularly egregious breach of order, after numerous warnings the chairperson can direct the secretary to take down the words used by the disorderly member, and should “name” the offender in such minutes (i.e., “Mr. X! The chair has asked you to refrain from offensive language three times, and yet you still refuse to comply.”). Members should also be reminded that debate about any issue should not be directed at any specific member, but instead should always be directed to the chairperson.
Removing the Member or Adjourn the Meeting? Removal should be the last resort. If an association cannot conduct business due to serious and/or continued disruption from a member, the Association may consider ordering him or her to leave the meeting. Such action, however, is not recommended unless absolutely necessary, as the removal of a member could have negative repercussions. A better alternative would be to adjourn the meeting until a later time (by a Motion to Postpone to a Definite Time) rather than forcing a member to leave.
Scott Weiss is an attorney and CAI Tennessee Chapter President. His practice involves community association law and real estate law. Scott represents associations in matters involving delinquent account collections, restrictions enforcement, HOA rights in bankruptcy, State and Federal Fair Housing laws; governing document interpretation, composition, amendments and legal opinions; and association general counsel matters. Scott is also a parliamentarian and member of the Tennessee Association of Parliamentarians and National Association of Parliamentarians. www.weissandweisslaw.com
14 TENNESSEE COMMUNITY LIFESTYLES
223 Madison Street • Suite 212 • Madison, TN 37115
615 .868 .4101 • Fax 615 .868 .3893
of counsel
Nathan C. LybargerThomas Patrick Wall III
Law Office
Hall & AssociatesM. Wesley Hall III
LandlordAdvocate®
Our partnership with Operation Stand Down (OSD) is stronger than ever. Many of our members have donated items to the OSD Thrift Store. The Thrift Store is a retail store open to the public (similar to Goodwill or Salvation Army). All proceeds from sales are used to support OSD services to all military veterans in our community. The store also employs homeless veterans and provides training to them in the field of retail sales with the goal of giving them a skill that they may use to seek employment in retail and customer service. Many of our members have also offered employment opportunities to military veterans from OSD. Be sure to introduce yourself to John Krenson, Executive Director of OSD, at our Golf Tournament on September 11. John has been an amazing partner with CAI this year.
During 2017 and beyond, CAI of Tennessee will continue to build upon our mission of enhancing the quality of community association living in the State of Tennessee through educa-tion, legal advocacy, professional development and network-ing opportunities. Thank you for making our chapter great!
Thank You To Our 2017 Luncheon Sponsors!
January - LSIFebruary - Langley & Taylor Pool Corp.
March - Weiss & Weiss and Miller DodsonApril - Renovia Services
May - Professional RoofersJune - Wright Construction
July - Certa ProAugust - Available
September - Allied Universal SecurityOctober - Reliable Roofing
From the President, cont. from p. 3
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