SPRING: TIME TO SMELL THE FLOWERS - AND THINK ABOUT LIABILITY, CONTRACTS AND RULES

In the spring, our thoughts turn to, liability, condominium rules, vendor contracts and insurance. Well, maybe that’s only true of condominium attorneys. But the advent of spring is a good time for condominium boards and managers to review the activities that accompany warm weather, and the legal issues related to them.

For communities that have grass and shrubs and flowers to tend, landscaping will be a priority. If you don’t have an established relationship with a landscape contractor, it’s best to line one up well before spring; if you wait too long, it may be difficult to find companies that are accepting new clients or are able to adequately serve those they do accept.

Make sure the contract with this vendor – or with any vendor for that matter – is clear and specifies in detail the services, scope and quality of work you expect – how often the grass will be mowed, the materials to be used, what flowers and shrubs (if any) will be planted and where. The less detailed the contract, the more room there will be for disputes over what was intended. You should have the association attorney review contracts before you sign them to make sure they protect the association’s interests and achieve its goals. It’s easier and less expensive for attorneys to help you avoid pitfalls than to extricate you from them.

If you have a contract with an existing vendor, you should review it to make sure it still addresses the association’s needs. Watch out particularly for automatic renewal provisions, which typically require several month’s advance notice if you want to cancel. Negotiating a termination after the renewal has been triggered can be difficult and messy – more difficult and messier if the association has negotiated a contract with a new vendor.

Make sure the contract requires the company to have adequate insurance and to provide proof of it. Insurance experts define ’adequate’ to mean liability coverage providing no less than $1 million per occurrence, plus workers’ compensation equaling no less than the ‘statutory limits,’ which vary from state to state. Proof of insurance involves more than the vendor’s assurance that he/she has coverage; you want vendors to provide a certificate of insurance and make sure the association is added as an additional insured on the contractor’s policy. Otherwise, the association will have to rely on its own liability policy to cover a claim resulting from the vendor’s services.

Volunteer Assistance – and Concerns

Sometimes owners volunteer to help with landscaping chores, which can be okay, with appropriate limits and precautions. Liability and safety are the primary concerns: You don’t want volunteers, however skilled they think they are, climbing trees with chain saws to cut branches.

Planting flowers and shrubs, which many owners want to do, obviously involves less risk, but is not without potential problems. The primary concern is aesthetic: What happens if other owners hate what the volunteers plant, or if the flowers they choose clash with the overall landscaping design, or become overrun with weeds?

To avoid these problems, you should require owners to sign a licensing agreement specifying that:

• The board must approve what they plant;

• The owners must maintain it; and

• The board has the authority to revoke permission and order the removal of plantings at the owners’ expense if they fail to comply with the licensing terms.

The agreement should also require the volunteers to sign a waiver relieving the association of liability for damages related to their gardening efforts.

There isn’t a lot of risk here, but nothing is completely risk-free. The agreement should cover planting in common areas and limited common areas, which are also subject to association rules.

If owners plant flowers or shrubs without permission, as they sometimes do, the board has several options, but ignoring the situation isn’t one of them. If you fail to enforce one rule, you risk setting a precedent that will make it difficult for you to enforce others. The board has the authority to order owners to remove plants that haven’t been approved, but unless the planting is objectionable – for example, if owners have planted poison ivy - removal may not be necessary. The important point is to assert the board’s authority, which you can do by requiring the owner to sign a licensing agreement after-the-fact approving the installation and requiring its ongoing maintenance.

Dive In!

Even in New England, summer will arrive – eventually. If you have a swimming pool, you should begin planning to open it long before the opening date.

This pre-opening process should include obtaining the annual health inspection and operating permit that most communities require, and verifying that the pool complies with the Sanitary Code requirements for semi-public” pools (condominium pools are in this category). Among other requirements, pools must be:

• Managed by a “certified pool operator” who has completed a training course in the “safe and effective operational maintenance’ of pools;

• Inspected annually by a local building or health inspector.

• Enclosed by a six-foot-high fence with self-latching gates; and

• Equipped with safety tools.

The state Sanitary Code allows local Boards of Health to grant variances if enforcement of the requirements would create a ”manifest injustice” or if the required protections can be achieved through other means. A small association that rarely uses a pool may be able to obtain a waiver of some requirements under this provision.

The “certified pool operator” requirement is particularly important. Most communities require that pools be tested regularly to ensure that they meet specified water quality standards.

You want a professional pool manager, who is knowledgeable and insured, to assume this responsibility.

The willing volunteer who has managed his own private pool in the past won’t necessarily be up to the task.

Before you open the pool for the season, you should make sure the association’s pool rules comply not only with health and safety requirements, but also with state and federal laws, which prohibit discrimination against children.

A rule that says ‘no running in the pool area’ would be fine, because it applies to everyone; a rule that says ‘children can’t play ball in the pool’ or “can swim only between 9 and 10 in the morning’ would run afoul of the anti-discrimination laws. Because state laws and local ordinances can change, you might want to have the association’s attorney review your rules to make sure they are up to date.

Cooking Out

Many condominium owners have outdoor grills or would like to have them. Some associations bar all grills because they think the fire risks are too great. Where grills are allowed, they must comply both with any rules the association imposes and with state fire protection rules. These common sense rules specify that grills:

• Must be 10 feet from the side of a building.

• Can’t be used on a porch, balcony or deck with a roof, overhang or wall (other than the exterior of the building).

• Can only be used on open first floor porches, decks or patios if there is an outdoor stairway to the ground, or the porch is at ground level; and

• Can’t be used on fire escapes.

The state Fire Marshall’s rules also limit the use of “gaseous fuel cooking and heating appliances,” which would include propane gas grills. These rules specify that the appliances can’t be used on any balcony or deck above the first floor or ground level. The reason: Propane is heavier than air and doesn’t dissipate; a smoker on the second floor could accidentally ignite a propane tank on the deck above. Propane grills might be allowed on the ground level patio of a garden style condominium or on the ground level patio of a multi-story building, but only if there is no overhanging deck or patio above it. Propane grills are flatly prohibited in high-rise buildings.

Condominium boards should review the rules governing not only outdoor grills but outdoor activities generally – rules governing gatherings in common areas for example, or regulating noise in the community.

Sound travels - through the open windows of units and from gatherings on outdoor decks or patios – and the noise can disturb others. But rules can’t cover everything. Condo boards should remind owners not only of their obligation to comply with the rules, but also of the need to be considerate of their neighbors. We think of it as the ‘four ‘Cs’ of condominium living: Compliance, common sense, common courtesy and common interest. All should apply and in all seasons – not just in the spring..

For a review of your Association rules, their coverage and restrictions, contact William Thompson.