Kuhn v. McNary Estates Homeowners Association, Inc., No. 6:16-cv-00042-AA (D. Or. Jan. 12, 2017)
The United States District Court for the District of Oregon ruled that an association violated federal and state fair housing acts when it refused to allow owners to park a large vehicle in their driveway that they used to transport their disabled daughter.
McNary Estates Homeowners Association, Inc. (association) governed an Oregon subdivision in which Renee and Gary Kuhn owned a home. The Kuhns’ daughter, Khrizma, had significant physical and mental disabilities. Khrizma was unable to use a toilet by herself and suffered from severe bladder and bowel incontinence.
In April 2015, after consulting Khrizma’s doctors, the Kuhns decided to purchase a small recreational vehicle (RV) equipped with a toilet and shower for Khrizma’s transportation. The RV would ensure that Khrizma was always close to a toilet, and the shower could be used to clean Khrizma if necessary while away from home. Khrizma’s condition also required a vehicle where she could lie down.
The McNary Estates declaration of covenants, conditions, and restrictions (declaration) prohibited parking large vehicles, including RVs, in front of homes. The RV the Kuhns wanted would not fit in their garage, so they asked the association for an accommodation to the restriction. The Kuhns submitted letters from Khrizma’s doctors and medical records explaining the medical issues and why Khrizma needed to be close to a toilet at all times.
In August 2015, the association formally rejected the Kuhns’ request, explaining that the accommodation requested related to Khrizma’s transportation and was not necessary for her use and enjoyment of the home.
Fair Housing Act prohibits discrimination in the provision of services or facilities in connection with a dwelling on the basis of disability. Discrimination includes a refusal to make reasonable accommodations in rules, policies, or practices when such accommodations may be necessary to afford the disabled person equal opportunity to use and enjoy a dwelling.
The court ruled in favor of the Kuhns’ and held the Association’s denial of the request for a reasonable accommodation was improper and held that they should have been granted the right to park in their driveway. (Credit to CAI Law Reporter for material contained in this article.)
Joel M. Kriger, Esq.
The Davis-Stirling Act gives homeowners associations some powerful tools to deal with delinquent homeowners, including the ability to foreclose on a delinquent owner’s home if necessary. However, associations and managers should be extremely cognizant of the statutory guidelines throughout the collections process in order to avoid successful challenges by delinquent owners. The first step is properly notifying the owner of the Association’s intent to record a lien and recording that lien in accordance with the statutory requirements.
In particular, Civil Code Section 5660 sets forth very strict language which must be included in any pre-lien letter sent to the delinquent owner at least 30 days prior to the recording of a lien. Furthermore, there are stringent statutory guidelines regarding the memorialization of the board’s decision to record the lien in CC 5673 and important requirements regarding the form of the lien itself in CC 5675. These must be followed to the letter to avoid any possible challenge by a delinquent homeowner under CC 5690 which, if sustained, could lead to a forced lien release even if the delinquency remains unpaid.
We recommend that management and the board of directors consult legal counsel prior to initiating collections attempts against any unit owner. Legal counsel can offer advice regarding required language, dates, and forms of notice required to properly record an assessment lien, and can often handle the entire process upon request.
Garrett Wait, Esq.
On January 1, 2016, Civil Code Section 1708.8 was amended to provide that a person commits a physical invasion of privacy by entering into the air space above the land of another to photograph or record private events.
Also, Senate Bill 142 created a new Civil Code Section 1708.10 which states that use of a drone less than 350 feet above ground level without express authority is a trespass. This makes it possible for drone operators to be subject to civil lawsuit if they fly at less than 350 feet above private property.
Jamie Handrick, Esq.
Board members must be very careful with email communications between themselves and management regarding potential or existing litigation. These emails are all discoverable. This means that the opposition can obtain copies of them, and use the emails to either advance or defend their position in the litigation. Comments contained in these emails can be very damaging to the association’s interests. There are two ways to protect the association from damaging emails. First, do not communicate via email regarding the facts or merits of any potential or existing litigation. These matters may be discussed in executive session, but the substance of the discussions should not be recorded in the minutes. Second, when it is necessary to discuss litigation matters via email make sure that counsel for the Association is included. When counsel is included the emails are protected by the “attorney-client privilege”, and therefore not available to the opposition.
Joel Kriger, Esq.