 Aloha and welcome to another edition of Condo Insider. Hawaii's show about association living. As I've said many times, about 40% of our population lives in an association here in Hawaii. This show is all about information for board members and owners. Some have said why do I have a flower layer on today? I had the chance to be a guest speaker at the Hawaii Council Community Association's seminar today at noon on reserve studies. And so those of you interested in more education, check out Hawaii Council Community Association. They have a very vibrant program on education for homeowners and condo associations. Finally, finally, finally we're at the final chapter of HRS 514B Hawaii's Condo Association. Something that began as a four-part series. And we're now in the part six of the four-part series because it's so robust. And the material for this course, this class comes from the real estate commission's course for realtors on condo living. And I want to welcome back my good buddy and good friend Scott Shroy, Director of Training for Associate, who's helped me go through this, who's been qualified by the real estate commission to teach this course. And say welcome back. Well, thank you. I know you tried to lock the door, but I still got in. Yes, I noticed that. And I know you're leaving today, but I'd like to tell everybody that Scott is a very skilled person who has his own radio show. He's going to be joining me and Jane Sugimura as a future co-host on the show. And we appreciate all that you're going to do. And your jokes will never be as good as my jokes. Well, why do you let you believe that? Anyway, this show is all about condo living in 514B. We've been through government structure, government process, fiscal matters, financial budgets, reserves. And we've been through common issues. And last week we got through half the common management issues. And because we have these 28 minutes go so fast, we're going to roll right into the condominium issues we face today. And the number one thing, and it's always a big challenge, is pets. Pets. I always say there's three P's, people, parking, and pets. And the number one is always pets. I can believe that. So the issue becomes, you know, boards want to establish rules for pets. Maybe even say you can't have pets. Can they do that? They can, as long as they are reflected in the bylaws of the association. They can say pets are allowed, pets are not allowed. They can indicate how many pets. I've seen bylaws that say you're allowed a cat or a dog, but not both. You know, it varies from association to association. So the key document is the bylaws. Yes. That's an officially recorded document of association. And so if they say you may have pets, or maybe even restrictions on pets, or you cannot have pets, can the board establish house rules that are contrary to the bylaws? That actually happens more often than not, where an association does allow pets. Maybe they have very good right up in the bylaws in regards to those pets. And then somewhere along the line, they decide to change the rules. And in the house rules, they say no pets allowed. If they haven't changed that in the bylaws, the bylaws are the governing document. So the bylaws will supersede those house rules, and pets would still be allowed. So in order to change that, they would have to amend their bylaws. And that's going to take 67% of the owners to vote, either by written consent or by at a meeting to change the bylaws to change the pet restrictions. And so what happens if all of a sudden they decided to go from a pet-friendly building to a non-pet-friendly building, and you happen to have a dog? Well, I've actually had that happen a couple of times with friends who own condos in pet-friendly buildings, where the board did decide to change the bylaws and now no longer allow pets. Those people who had pets before the bylaws were changed are grandfathered in. What's more interesting about that is say you were grandfathered in, you had your little chihuahua, and the chihuahua passes away. Are you allowed to replace that pet now that the bylaws have been changed? And the answer is... I'm waiting for your answer. Oh, okay. I thought I gave it to you. The answer is yes, they can continue to replace that animal as long as they live there. But the day they sell that unit, the person buying that unit doesn't have that right. They have to abide by what's in the bylaws now. Well, it sounds interesting in pets because people sometimes seek pet-friendly buildings because maybe they're afraid of dogs or they're allergic to pet hair, whatever it may be. So it's not really right for the board to try to, through the house rules, make changes that are contrary to the bylaw. Yep, that's exactly right. And it's very important for a buyer if they're looking for a condo that they can have Fifi, their poodle, or whatever they have. It's important that they read those documents and understand whether or not they're going to be allowed to have that particular animal there or not. I read an article recently about pets and we were talking about when they would have put like size restrictions on pets or quantity, a number of pets. And a lot of it comes back to people's phobia. Like big dogs, they make people afraid, right? Not everybody, but some people are afraid. Where I was looking at an American Kennel Association article and they were saying that the better way to do it is to define breeds of dogs that are not available to be have in the building. And there's actually house rules where they have a pet-friendly building where I've seen them say that certain dog breeds are not allowed because they're considered a little more aggressive than other breeds. But I think the key for our listeners would be to understand that if the bylaws say you can have pets or not have pets, you can't set up house rules to alter that. Although you could set up house rules probably if it allows pets to say you only allowed one dog or two dogs and they can't be over 50 pounds or whatever on that line. They could modify the restriction to make it more correct for their building. I think what's important too to understand is that some of these bylaws are fairly old. Maybe the building was built in the 70s or 80s and they did allow pets but the pet rule and the bylaws may be vague in itself and it might be time to take a look at that and see do the bylaws need amendment for that. I saw one association built in the early 80s where the restriction was you can have pets as long as it doesn't exceed 30 pounds. Well the way that was written I could have a whole bunch of three or four pound teacup chihuahuas before I hit that 30 pound restriction. You didn't have it written so that it applied to one animal. It just said pets are allowed and then a 30 pound restriction. So it might be a good idea even now to take a look at your bylaws and make sure that it is clear. You're probably getting documents to be reviewed every 10 years or so to make sure they meet the current standards of the building. But the other thing that always comes up is the famous service, assistance and emotional support therapy animals. I know you're an expert on that nationally and we only have 28 minutes. We have three more topics to cover. Can you just talk a little bit about that real quickly, as quickly as I can. First there's two big distinctions there. Number one, a service animal under federal law is a properly trained dog for whatever your disability is or a properly trained miniature horse which is usually the size of a large dog. That is all the disability act recognizes as a service animal. But even when they clarified that back a few years ago they also pointed out that does not change the rules under federal fair housing person with a disability and an emotional support animal. Emotional support animal has often been referred to as any common domestic animal. So it could be a dog, it could be a cat, it could be a bird and even if the association has a rule that says no pets are allowed and you have an emotional support animal they have to make reasonable accommodations as it's called to allow you to have that animal. Sadly though I think it's been, and you and I have talked about this before that it's being abused quite a bit in regards to this emotional support. I wanted to ask a person, they say I need this emotional support kangaroo that we did a show on this. There's emotional support snakes, chickens, kangaroos, you name it and I qualified for emotional support elephant when I did my online application. But the reality is what can they ask, what can the board ask? The board cannot ask what your disability is. That's first big no-no, nor can they ask for any medical documents. All the person who has the issue needs to provide is a document, a letter signed by a medical professional indicating that they have a disability that requires them to have this emotional support animal. The sad thing is, and you found out this on your own just trying to get your emotional support pygmy elephant approved is that a lot of people just go online, pay a fee, ask a few questions and boom they've got a letter supposedly signed by a medical professional. What we had was on the news recently about Hawaii Kai and you were interviewed on the news. I think it was a lady, but a person who had two chickens. Two emotional support chickens. Yes. We're still trying to get clarification from the state at least in regards to whether or not those are actually valid because the law is fairly vague on what animals could be considered and the poor board is trying to understand what their rights are as running the association and what the person's rights are as a person with a possible disability. You did mention snakes. I would however like to point out that in some states an emotional support animal snake is okay but not in Hawaii. It cannot be an illegal animal. So at least we don't have to worry about somebody showing up with their emotional support boa constrictor. I saw a property manager, they had a picture of a townhouse project and the person had a brand new goat and the goat was running free in the common areas and they captured it but they got pictures of it running free in the common areas and when they asked about it, it went from a pet to an emotional support goat. Yes. I guess the point I'd like to make before we move on off the pet side of it is the by-laws rule number one. But number two, we certainly respect the rights of the disabled and any legitimate disabled person to be able to have those things that make their life better. Well and we also declare like the goat issue you just brought up you can have what is called reasonable restrictions and running loose in the common area would not be deemed reasonable or an accommodation. So you could have rules like they must be leashed, they must be licensed and you must pick up after them. Those are reasonable rules according to federal fair housing. But the legislation we've seen in the past on this has been focused on the medical certifier. If they were to falsely certify someone needing it, that they would be a misdemeanor. I think that's what they did in California or some other states. California and Florida. And Florida because it's become such an issue that people can use that because of your limited ability to ask questions to try to get around the by-laws and say no pets. Lastly, it's only happened in the last year maybe two years but if you look at older documents and older articles they talked about the fact that multiple animals have not been an issue. Well they now have started to become an issue where there have been instances where people are claiming five different animals as their emotional support in a non-pet rental or non-pet condominium. So it's getting pretty hairy. I had a mediation with a person that had two dogs but the second dog was the emotional support animal for the dog. So they were saying we need two because my one emotional support dog gets lonely and so we have to have an emotional support dog for the dog. So it's a complex matter but for what we can talk about today I think what's important the boards need to know they can't create house rules that violate the by-laws with regard to pets. And number two if they have an issue on service animals or emotional support animals I suggest they talk to their attorney because there are big penalties if you falsely take action on that and I would be the first to admit that the laws are gray and maybe not always fair. So let's take something since you brought the three P's up there was parking. Yes. So I'm an owner and you're an owner of a condominium and because of whatever reason I want your parking stall and you want my parking stall and so that's different than the declaration. So you know 67% owner vote theoretically would be required to amend the declaration. Is that true on swapping parking stalls? No it's not true on parking stalls and in our case my first reaction to you would be how much are you willing to pay me monthly for that my parking stall. But that's just between you and I. That's true. The point is that the owners on their own could go and get a lawyer to write up an amendment to the declaration swapping the parking stalls signed and notified and recorded by both parties and all the owner has to do is to give a copy to the board of directors and the board can't interfere with the simple swapping of a parking stall. I would like to point out though if it's involving a disability the association does need to take steps to make reasonable accommodation in regards to parking as far as they're able to but that's another showing itself as well. Yeah well that's interesting I saw a case where an owner who was disabled wanted to demand that another owner had to swap stalls they couldn't do that they couldn't get away but the association had to make reasonable combinations to the extent that the guest parking or the area near the elevator that they were allowed in the park there for 15 minutes while they unloaded their groceries they had to make accommodations to try to make their life easier that owner after they couldn't get the owner to be forced to swap stalls wanted the association to be forced to give up a guest parking stall in exchange for their stall at the service level and they weren't able to get the Civil Rights Commission to support that either because the board was going to make accommodations you can use the parking stall when you have a provider to come take care of you for your own personal assistance or B you can park there while you unload your groceries the board was going to give them temporary permanent away they could do it forever accommodations but they couldn't force exchange of the real property which was owned by the association that's quote hundred owners so they couldn't force that and I think the key there too is it's got to be a reasonable accommodation you know sometimes they can the request can be unreasonable and or highly expensive for the association too so those factors do come into play yeah so unparking just to kind of sum that up owners among their own choices between owners can swap parking stalls at their own expense the board really has no standing on it and certainly when they do that they should make sure it's recorded because they want that to follow up on I have seen owners who say you use my stall I use your stall they just did it as an accommodation and didn't bother to change the deed saying that maybe a future buyer wouldn't want that so as an alternative spending all the money with the lawyers and recording it they could just say I'll park in yours you park in mine and handle it that way I actually see it quite often where oh your car is smaller than my car and my car would fit better and there you want to swap and that's just a simple swap for a temporary period of time I'll hook up for a break right now and we have two more topics to go through after the break so thank all of you for watching kind of insider we'll be right back in a minute Aloha my name is Justine Espiritu this is my co-host Matthew Johnson every Thursday at 4 p.m. on Sintek we host the Hawaii food and farmer series we like to bring in folks from the whole realm of the local food supply and agriculture anyone working on these issues any organization or individual that has plans or projects what kind of people have we had on us we've had farmers we've had chefs we've had people from government larger institutions everyone who's working to help make Hawaii's local food system that much better so you can see us every Thursday and join the conversation on Twitter and we hope to see you there welcome back to kind of insider we're sitting here with Scott Shirley summarizing finally after six long weeks kind of many of the 514 being common issues to keep in our schedule because it's my I'm going to call it my good ridden stay for Scott I see you at the office I see you here getting nightmares you're getting nightmares I know I understand your feelings anyway smoking and condos the big debate there were two bills before the legislature neither one of them moved on so they died all talking about smoking and condos so what could the board do about smoking and condos and it's become this issue about smoking right up there with the pets issue and a lot of condos actually for the last few years have been taking their own initiative by amending their bylaws making themselves a smoke free property where they actually take a vote and surprisingly enough they get more than 67% to respond in regards to smoking issues and they make their entire property a smoke free environment and I think a lot of the newer projects being built are already incorporating that in there because smoking is such a bad habit we do already have statute that we can lean on in certain other areas like the state no smoking law says that you cannot smoke in any common area hallways elevators association office and I believe in 2015 they added electronic cigarettes as a tobacco product so anywhere you're not allowed to smoke a regular cigarette and you're not allowed to smoke electronic cigarettes although I follow behind cars where they're vaping in the car and I think I'm in a Cheech and Chong movie or the car is on fire but let's kind of go back to generally on smoking it's clear in the state law that you can't have smoking in the common area so by the pool, the elevators, the lobby the board just had a right to enforce no smoking state law, they have an obligation this morning the next area that's always been controversial is lanais in some cases lanais are common elements in some cases they're part of the apartment in the declaration but I've always referred to I don't like the word smoking I like the word noxious odors there could be incense or something else that's flowing into another apartment causing allergy or disruption so what do you feel about smoking on lanais? you're right it has been a bit of a controversy in regards to that because the statute says common areas and some attorneys will point out well the lanais is a limited common area for your use only so you should be allowed to smoke on there so I think your take which I've agreed with surprisingly is that the noxious fumes issue a lot of these condos don't allow you to have on your lanais well isn't it sort of the same thing your billowing smoke or especially if you're vaping on your lanais it's going into other units and bothering other people most of the lawyers I know it's not uniform so I don't want to be telling our viewers that this is the rule you should take but you should check with your lawyer but most believe you can restrict under today's law smoking on lanais if the smoke travels into another person's unit so that smoking on lanais can be done without amending the declaration if you want to have a non-smoking building that means you can't smoke in the unit that takes an amendment to 67% of the condos to do that and some of the condos I've seen that have done that they've gotten anywhere from 80-85% response rate to doing that so you know the issue about smoking is very high on a lot of people's list and I'm not saying I'm right but my experience says this and that is that we see more resistance to smoking or allowing smoking is to resort properties that they have a lot of vacation rentals so they don't want to have guests being restricted so they're more inclined although hotels today have non-smoking rooms and certainly the owner of a condo can say I always take non-smoking guests or tenants of them maybe so I think we've tried to get the legislature to really clarify that in the law but today we have what we have and the boards have to look at that and say is it a problem in our building smoking on the eyes? If so let's check with our lawyer what we can do because oftentimes they'll set up a smoking area down in one corner where the winds don't blow and say we're having a non-smoking building but we have a little smoking area right next to the dumpster right next to the dumpster but somewhere so they can accommodate those people but in the end if they want to get a non-smoking building they have to amend the bylaws and that's 67% I think one of the things that an association should realize is there is statute there is laws and rules in regards to smoking so there is options out there for the association to take how about marijuana I don't know and today is 420 I believe yes it is I'm a clean guy well as you know Hawaii is one of those states that allow medical use of marijuana and that has become an issue with condo associations, homeowners associations even with long term rentals and the state has stepped up to the plate in regards to this as well you can't stop somebody from using their medical marijuana but if the building has a non-smoking policy and you partake of your medical marijuana by way of smoking you can stop the smoking part meaning they are still allowed to take medical marijuana they are just not allowed to smoke it like an ingester or some other method and I think we are probably going to have to face the issue sooner or later that Hawaii may end up becoming eventually a recreational state as well like Colorado and if you think of the tax benefits of that we might be able to finish rail if they do that we don't have time today we have some very interesting bills on for example allowing owners to smoke but tenants not to smoke there's a couple of bills out there but scenario boards have to think about and pull their owners what they want and look at their use like the vacation rental building versus the regular building and if the policy realizing common areas they don't have a choice well in the eyes they may have a choice and if they want to prevent it in the apartment they've got to amend their declaration and auction their bylaws to create a non-smoking and some of them are going to that extent so happens all the time and then they have to deal with the person who has been smoking and now having withdrawals so you've created a medical problem for me and I'm going to create all this you might be surprised to know Americans with Disabilities Act nicotine addiction is considered a disability however that doesn't give you the right to smoke a cigarette it just means you have protections if you are in recovery meaning you're not smoking anymore so finally we've done our last few minutes of the show my favorite topic is do owners have rights if they want to complain to resolve a dispute and what rights do they have in general terms and I know all the years that I've known you or at least admitted to knowing you this has been a big topic for you one that you are very much in favor of in regards to having mediation and trying to resolve problems I think the way I look at this is that it's like a fulcrum where you want to balance between the association's needs and the owner's rights and so you have a dispute the way some of the roles are today they really favor the association more and limit even due process like the board says you've got to pay the fine whatever it may be there are all specific regards today for mandatory mediation you have a right to go to mediation and the board has a mandatory obligation to attend in 19, 2015 they gave a second type of mediation called a value of mediation which is before retired judges who can take the gloves off and be more like a settlement conference to do the mediation so what we need our viewers to know and boards to know is that homeowners have a right to either facilitate a value of mediation in the law it says shall go to mediation which means you have no reason not to go to mediation a current billable foot of legislature which probably won't pass in its current form but says it's a breach of your fiduciary duty if you don't go to mediation which means your insurance won't cover you because it's an automatic breach of not showing up for mediation and then the statute further provides for something called non-binding arbitration which is rarely used because why spend all the money with a formality of arbitration if it's not binding but Act 187 if it gets amended this year will allow parties to agree to non-binding arbitration or a value of arbitration where the judge wishes an opinion and the good thing about that is that it sadly pays $175 and the Condominium Education Fund covers all the rest of the costs I think that's another key right there is this is also a less expensive way to resolve your problem than everybody hiring their attorneys and spending thousands and thousands of dollars trying to resolve something that could have been actually easily taken care of through mediation and for clarification the cost of this mediator or arbitrator is paid through the continued education fund but if you want to hire your own attorney you got to pay for your own attorney they don't pay for your attorney you still have the right if you want to bring your attorney with you but you pay for that cost not the association or not that fund and I would encourage all boards and all owners to try just to go to an executive session and work out their problems before they get into this process but the law does give owners that right and boards need to know it says shell and that doesn't mean it's optional it's like they should go for that note we're at the end of our show I can't believe it we got through the whole thing this time I know 514b is pal we'll have more interesting topics next week about association living but you're a good friend for many many years and your wife is too Penny she has bad taste in men but she's a wonderful lady I know what my best asset is let's put it that way so anyway I just want to thank you for coming for six weeks in a row and all you contributed over the years to the industry and I welcome you back and co-host with me over time and thank you Scott Shirley for being a part of the show and to all our viewers we're pal for this week come back next Thursday at 3 o'clock and we always welcome to call with questions Aloha