Page 12 - Chicago Cooperator Spring 2020

12 THE CHICAGOLAND COOPERATOR —SPRING 2020 CHICAGOCOOPERATOR.COM ban smoking in their public or common areas; some even go so far as to ban smok- ing altogether on the property—even in the private residences. In New York City, a local ordinance was recently enacted requiring all residential buildings—con- do, co-op, or rental—to post a property- wide smoking policy, whatever it may be. Resolving the issue of secondhand smoke or other environmental irritants comes down to a matter of who has ju- risdiction over the means by which the irritant is being transmitted through- out the building. “It can be a question,” Shapiro says, “of whether the association manages the HVAC system—which typi- cally it does. Can they put in filters? \[The board’s\] best course of action is to take whatever action they can within their power; whatever is beyond the capacity of the association to do must be sent back to the owners involved in the conflict to be worked out between them.” According to Scott Piekarsky, an at- torney and principal at Piekarsky & As- sociates, located in Wykoff, New Jersey, the same is true in his state. “If some- one is affected in their unit by conduct in another unit,” he says, “then, for good or bad, that problem is the association’s problem. Smoke is obviously traveling through limited common elements— which the association is responsible for— so they’ve got to address it,” or risk costly, acrimonious litigation. “Furthermore,” says Piekarsky, “in New Jersey condominiums, there’s a state legal requirement that residents be offered alternative dispute resolu- tion (ADR) to resolve conflicts \[before litigation is permitted to move forward\]. Simply, if there is a dispute between unit owners, or an owner and the association, the association must provide ADR mech- anisms to resolve the dispute. Automati- cally, the association is in the loop.” Pets For many residents, pets are an im- portant part of their lives, whether it be a dog, cat, or goldfish. For others, neigh- bors’ animal friends can be the source of much sniffling and teary eyes, or may even aggravate more serious conditions, like asthma or emphysema. Obviously, people with serious animal allergies or sensitivities to dander or pet hair should opt not to keep pets in their unit—but what about those residents with the most severe sensitivities, for whom pet dander and odor, like secondhand smoke, can pass from unit to unit through HVAC systems, or can linger in hallways and other common areas? Ordering pet owners to give up their furry or feathered family members clearly isn’t an option—at least not in buildings or HOAs whose governing documents AIRBORNE... continued from page 10 allow pets. Speaking of her own state, Magill says, “If you don’t have a restric- tion in your documents that prohibits pets, then under the Florida State Con- dominium Law, you have no right to tell anyone to get rid of their pets.” That said, however, “The association does have an obligation to make an accommodation— or even allow a physical alteration to the premises—to ameliorate the impact of \[an allergic resident’s\] disability.” In multifamily housing, accommoda- tions for animal-related disabilities can come into conflict with disabilities that require animal assistance. In Illinois, new legislation took effect on January 1 of this year that seeks to clarify some of the more enigmatic issues surrounding service and support animals, but stops short of guidance on circumstances in which one resident’s disability precludes the accommodations of another’s. Thomas Goodwyn, associate at the Chicago office of law firm Saul Ewing Arnstein & Lehr, LLP, advises, “Under the Animal Assistance Integrity Act, as the law is known, a condominium asso- ciation or cooperative ‘may consider’ the documented disability-related needs of other residents when evaluating a request for an assistance animal, but cannot deny an assistance animal solely due to the dis- ability-related needs of another resident. Rather, the condominium association or cooperative ‘must attempt to balance the disability-related needs of all residents.’ How that is to be accomplished is left un- said.” Goodwyn goes on to say that this balancing act has yet to be tested in the courts. Co-op vs. Condo Hakim points out that in New York, where there are numerous co-op build- ings, the circumstances may be a bit dif- ferent for a co-op shareholder, who lives in the building under a proprietary lease, versus a condo owner, who is a member of an association and an owner of real prop- erty in his/her own right. “In a co-op, due to the nature of the legal relationship between shareholder and the coopera- tive corporation, the board of directors has a legal obligation under an implied Warranty of Habitability to ensure that a \[resident’s\] apartment is safe and livable at all times,” says Hakim. “Irrespective of whether any claimed odor-related ill- ness rises to the level of legal disability (for which the board would have to work towards making reasonable accommo- dations), the board must ensure that no condition is created or permitted that would breach the complaining share- holder’s Warranty of Habitability.” In the case of drifting pet dander, for example, Hakim says, “That would in- clude taking measures to ensure that any neighboring cats—including their dan- der and odor—are not materially and ad- versely affecting the other occupants of the building. The board will want to in- Helping communities preserve, protect and enhance their property values through communication and education. Mike Pezza 630-393-7373 | mikepezza@pezzalandscape.net