 Welcome to the Condor Insider show where we discuss all things relative to condo living and your condo investment. Today we'll be discussing costly discrimination and safety issues and how to avoid them. Our guest today is attorney, Porter DeVries with DeVries and Associates. Hi Porter, welcome back. Hi Krista, thanks for having me. Great to be back. Thank you, I just wanted to take a minute to have you just tell us a little bit about your law firm and anything you'd like to tell us about yourself. Great, so yeah, my law firm, DeVries and Associates, we've got offices here at Honolulu as well as in Kailua Kona and we represent clients across the state. Primarily our focus is everything real estate. So if it touches on real estate, if real estate is the hub of the issue, we're gonna work on that. So we end up representing a lot of condo associations. We provide general counsel services to the board. We also represent individual homeowners and transactions as well as some developers for various projects. So that's a bit about us. And how long have you been in Hawaii? You personally? Yeah, this is our seventh year. I've been here for a little six and a half years. I've been here. So yeah, we're entering our seventh year. Awesome. Well, you sound like the perfect person to discuss some of the things that we're going to be talking about today. And the first thing I kind of wanted to talk about was discrimination and maybe discriminatory actions that can take place that people don't realize are discriminatory and understanding the state laws regarding discrimination versus the federal laws. Can you kind of talk to us a little bit about that? Sure. Discrimination is definitely something that can be misunderstood or under understood. But it all starts with the protected classes. Protected class at the federal level consists of race, color, religion, sex, disability, familial status, and national origin. Hawaii adds to that at the state level adds protected classes of gender identity and expression, HIV status, age, marital status, and sexual orientation. And so between all of these, the analysis of any kind of discrimination claim starts with is the subject, a member of one of these classes. And so obviously race has been a big issue in our country's history. Here in Hawaii, we're a very diverse area. I think we're pretty sensitive to that and understand that one. It's pretty clear cut discriminating on the basis of race. When we get into things like familial status, it can be a little bit less obvious. So discriminating against someone who has children, singling them out for actions of children in say a common area. That would be an example of something where, the policy of the board, a house rule that limits a common area to adults only, unless there's a really compelling reason to have only adults there, to find somebody or to issue a warning to someone for having children in that area, that would be a form of discrimination. Thank you. Is there anything, I know the hot topic these days is marijuana, medical, medicinal marijuana, and also comfort animals, which is a whole other subject. But how, so you have a situation, let's say where somebody is using medicinal marijuana. Now, how would you relate that back to one of those categories that you were just sharing with us? Right, so a medicinal marijuana user is somebody who has a card. They've got a legal right to use marijuana for medical purposes. And they have that right on the basis of a disability. And because of that, they then fall into a protected class. So there is a potential for discrimination, someone who is using medical marijuana. The condo statute, 514B, as well as the HOA statute 421J, both have specific language protecting medical marijuana users. And basically eliminating or trying to eliminate with that statutory provision any kind of repercussions for those users. So let's say, and I'll say it for myself, I get out of my elevator at my condo and if someone's cooking bacon, I can smell it. If someone's making some kind of great type of ethnic food, I can smell it. But I also can walk off the elevator and get hit in the face with the smell of marijuana, which to me, I don't particularly care for that. And it kind of feels like it permeates the carpet and everything, what kind of, if I wanted to go complain as an owner or a tenant about that happening, can I do that? Or do they just basically have carte blanche to smoke and have the hallways filled with the smoke? Yeah, that's a great example of a fairly common situation. I've heard of this in several instances. The medical marijuana user doesn't have carte blanche. That's a given, but they do have a right to use medical marijuana. You as a neighbor, you have a right, whether you're a tenant or an owner and whether this user is a tenant or an owner, but you have a right to file a complaint about that, raise this issue with your onsite property manager or to bring it up at a board meeting so you can come some kind of enforcement. There's nothing wrong with doing that. The potential for discrimination comes with or at the stage of where the board would step in or the property manager, if they're authorized, would step in to issue a fine or a warning notice, something like that. The initial reaction, and I've seen this a couple of times, where the initial reaction is, well, we need to cite them for smoking marijuana in their unit and that's getting out into the hallways, for example, as you described. That's potentially a discriminatory action against them because, again, they have that statutory right and having this disability, they've got federal protections as well. So when it comes to actually enforcing this or taking some kind of step to reduce the impact of this, the action needs to be focused on the effects of it. So what somebody does in their unit for medical purposes, that's really not something that the board could regulate. When it's getting out into the hallway, now that's something that the board could regulate. So an action that the board would take would be to limit this nuisance, which is the smoke getting into the hallway and possibly getting into other units or whatever. So again, the enforcement action needs to be against something that isn't related to the basis for this person being in a protected class. Very interesting, and I appreciate your expertise on this because I was always under the understanding that if the house rules or the lease agreement, if it was a rental, stated no smoking of any kind, meaning anything, that that would include medicinal marijuana being smoked, that they would have to cook it in brownies, butter, whatever form they want to capsule, however they want to take it. But you shared with me earlier that no, they can choose to use whatever method they want to, which could include smoking. So that was a real bit of information I didn't have. I should have called my attorney about that. Yeah, it does seem to be kind of counterintuitive. If you've got an absolute restriction against smoking to allow that, then seems right, just counterintuitive. But that's where the statute comes in to provide those explicit protections for medical marijuana users. Seems like there are other things out there that if you just looked at the written word on a house rule as it stands, I think what happens is there's a feeling of, well, it's in writing and it's right there. And you signed that you were gonna abide by the house rules, not necessarily related to the medicinal marijuana, but could be. But also things like this particular settlement that I was reading about where some folks were honoring their religious tradition and having a Jewish type of decoration put on the outside of their door and the house rules stated there was not to be anything put on the doors. And the board went ahead, I would imagine without consulting an attorney, I would think that they hadn't consulted an attorney and actually removed it and they ended up settling for $40,000, $40,000 by making that mistake. And that was probably separate from the attorney's fees that they paid. I would imagine, yeah. So it just seems like there needs to be kind of a little bit of a light bulb that goes off when any type of a concern or any type of action is gonna be taken to maybe consider it a little bit more, maybe take the time to run it by an attorney before you write that email or send out that fine. I mean, I'm not talking every little obvious case, but when it's a little off and you're not quite sure, seems like they could avoid a lot of time, effort and money by just taking that step to begin with. Yeah, and I think you're right that there's often this kind of allegiance to the written documents that can be blinding, you know? And so somebody's looking at this saying, well, you can't put anything on the outside of your door. Well, that applies to everybody. And if we're to create an exception for one person, then we're opened up to potential for claims for selective enforcement of CCNRs or house rules. So that's where a legal opinion comes in, you know? And these issues really should get some kind of legal review at a minimum, just to ensure that kind of the bigger picture or the objective picture is being considered. And boards don't find themselves going down this path of just strict enforcement and adherence to the rules when maybe those rules aren't necessarily entirely enforceable or in this particular situation, they wouldn't be enforced in the same way that the board is trying to. Inflict with other laws that have to be considered. I've even seen situations where an association's had their house rules written maybe 20 years ago. So verbiage in the house rules or specifically related to comfort or assistance animals where it just says point blank, no animals. And then they just stick with that and don't have the understanding that times have changed and there's other things to consider related to being able to accommodate those type of requests and whatnot, but there again, those particular folks that have those, a comfort or an assistant animal have to make sure that they're not, that they're still not causing disturbances or feces out in the yard, normal things like that. That again, isn't about the animal necessarily, it's about the result of what's happening. Is that correct? Well, yeah, certainly the result of in this case, having a comfort pet, that if they do pull this person, the owner into a protected class with a disability that house rule that was written 20 years ago, it's just out of date. It doesn't match with the current laws and really can't be strictly enforced like that. But I think that kind of raises an interesting point or a good point for everybody, whether regardless of what side of these issues you're on, meaning, if you're a board member, if you're a property manager, if you're an owner, I think the point there is that over communication or over explanation may be necessary from one party or the other. So in that example where you've got 20-year-old house rules and an owner comes in and says, well, I've got this emotional support animal, I've got, it's documented, I have a legal right to have it here. The house rules are against that. It really should be incumbent upon the owner to over explain, share more information, provide more of an analysis to help the board understand rather than just- I'm gonna have to cut you off really fast. We're gonna have to go to a break. We're halfway through already. I can't even believe it. And when we come back, we're gonna talk about safety issues that aren't addressed and how that can cause problems and legal issues and money. So we will see you in just a few minutes. Thank you. Just a few seconds. Thank you so much and we'll see you back on Condo Insider. Aloha, y'all. My name is Mitch Ewan. I'm from the Hawaii Natural Energy Institute. I'm the host of Hawaii, the state of clean energy. We're on every Wednesday at four o'clock and we hope that we have interesting guests who talk to us about various energy things that are happening in Hawaii all the way from PV to windmills to hydrogen. Most of my heart, electric buses and electric vehicles. So please dial in every Wednesday at four o'clock on Hawaii, the state of clean energy. Aloha. Aloha, I'm Mellie James, host of Let's Mana Up. Tuesdays, every other Tuesday from 11 to 1130. This show is meant to dive into stories of local product entrepreneurs and how they're growing their companies from right here in Hawaii. I'm so thrilled to have our show kicked off and so please join us on Tuesdays at 11 o'clock as we talk to local entrepreneurs and hear their stories. And welcome back to Condo Insider and we are here today with attorney Porter DeVries and we're going to continue talking about discrimination and the safety issues and how that can be very costly to an association and owner or even a property management company for that matter. So before we jump into the safety issues, Porter, I just wanted to share, I just want to really have the impact of how financially some of these mistakes can be the high amounts of money. And I just wanted to share, I was doing some research. There was an owner that was sued and in a federal court, the folks suing them. 200, over 200,000, 219,747 dollar judgment because unfortunately the tenant had a flesh eating bacteria disease and she didn't make it, but her family went back and sued the landlord because they were evicting her, attempting to evict her because of that. And apparently of the tens of thousands of cases that are brought to higher jurisdiction related to discrimination, supposedly, what I'm reading, 50% of them are related to disability issues. I thought that was very interesting. I guess because I'm on the rental management side I would have thought it would have been related to if you have children or not and that type of thing, but that was very interesting to me now. Yeah, it's definitely that sort of issue. I think it's one that's definitely important or really comes on everybody's radar easily where you've got somebody who's potentially creating a hazard. I mean, flesh eating bacteria, that's pretty significant. I haven't come across that one before, but there are examples dealing one now with an owner who's a hoarder and as a result of their activities, they're attracting all kinds of tests and creating issues for their surrounding units. This is something then that all of the owners who are affected bring to the board's attention and the board says, well, let's find a way to get them out of there. And, well, you can necessarily do that in all cases and that's where legal opinion at the very beginning is important. Otherwise they're potentially getting into something there where they could end up paying significantly in damages. So if you have a situation or it sounds like you're dealing with a situation like that, can you address the effects like as you would with the marijuana smoke in the hallway, can you address the effects of the hoarding rather than the hoarding itself, like infestation and those type of things? Is that how you move forward? Yeah, I mean, you have to, exactly. You can't address the thing that makes this person part of their protected class. So their disability, in this case, is the diagnosed psychiatric disorder, which qualifies as a disability, meaning that we can't take actions against this person related to that or these specific activities of hoarding and inactivity with regard to throwing things out. But yeah, when it comes to PEP, that's something where fine can be imposed. The board can exercise its right to go in and fumigate if necessary. All of this, of course, in accordance with the governing documents. Interesting, all right. Well, I think it's time for us to move on to talking about some safety issues and lawsuits that are brought up related to safety issues not being dealt with. Do you have any specifics that you'd like to share with us? Well, sure, and I came across one pretty interesting issue recently was that was the installation of security cameras. And whether that created or created an actual duty for the board to be monitoring what's going on. So generally, the board of directors has, you know, they owe various duties to the owners and the association as a whole. And those are to act in the association's best interest to not be self-interested in their and self-dealing in their actions. And fiduciary duties like that are, you know, pretty well understood under the heading of just do what's best for the association. When the board does things that are beyond what their basic duties are, they're potentially creating a situation where they could be held to a higher standard. And so this issue came up in a court case where the installation of security cameras wasn't something that the board was required to do. You know, one of the arguments was that this was reasonable and necessary and there were other purposes. But with that, the question, and it's still unanswered, is does installing those security cameras then impliedly mean or does that represent to the average owner that somebody's watching these, somebody's paying attention, somebody's acting on the things that are discovered on that tape? Boy here in Honolulu, where we live, there's security cameras everywhere, but... Right, security cameras, yeah, we're starting to see them everywhere. And, you know, I think they are certainly helpful. I love having them when we're trying to deal with something after fact, which is pretty much the only time that attorneys are dealing with things. Yeah, unfortunately. We're looking back and so they have some record that's clear and basically unimpeachable. That's pretty awesome. Yeah. In those cases. I know there have been some recent, I don't think that it's actually gone to court yet, but there's been situations. I know there was a little girl that was 13 in Maui that fell out of a window last year. You know, I've actually had to terminate my relationship with clients because I've found, I can give a couple examples. I had one situation where very large sliding glass door, the left side was coming out and extremely concerning and they were not willing to fix it and the people had a three-year-old child, the tenants. So, you know, that presents a huge liability to the company that I work for, to myself as a licensed real estate agent and they refuse to move forward with repairing it properly, securely. So I had to terminate my relationship with them and I've also had situations where in wood decks or wooden stairs that are faulty and weak, decaying and they're not willing to make those repairs. So there's times when as the service provider or the agent, you know, you have to make a decision whether, if your client isn't willing to handle the safety issues that are ultimately gonna affect the tenant that you're placing in them and put yourself at risk, you have to make the decision whether or not you wanna keep that relationship going or not. So it's been a part of it. Yeah, absolutely. Right. And, you know, if I were representing you, I'd say absolutely drop these people. They're creating a liability for you and just generally an unsafe situation all around. So, you know, the landlord, property owner, property manager underneath them acting as an agent, there's certain duties that are owed to the tenants. So whether it be common law duties like habitability, possession, things like that or statutory protections, you know, like maintaining utilities if that's part of the agreement. You know, there are these duties that the property owner has to their tenants and it's when they breach one of those duties and somebody gets hurt and that legally the cause of that injury is this breach of the duty. That's when we've got a lawsuit that's ripe for settlement and easy settlement. So it all comes down to these duties. And so whether you're the board of directors understanding your duties to the association or a homeowner that's renting a property, what is the duty that you owe to people and are you living up to that? I also think that the onsite managers of these large complexes maybe need to have more training, especially related to discrimination in fair housing. So I would like to see in my dream world, I would like to see all of the general managers, resident managers, onsite managers be required or supported, encouraged by the boards and the association management to attend the annual fair housing workshops that are presented by HUD. There's so much great information things that they may be doing that they don't even realize shouldn't be done can be avoided, you know. So it's just something I have anybody out there listening please send your onsite managers to the fair housing seminars. Yeah, so that's one big one. And the other thing that I did wanna mention also and I've seen some of these come across is RICO cases on the HOA side or RICO complaints boards not hiring licensed, insured contractors for projects for $1,500. Yeah, that's a good breach of duty right there. That's a huge one. And also having a very well-written contract put together preferably by their attorney. I mean, do you do that for associations? You write contracts that they're gonna in place with their vendors? We do and standard AIA construction contracts are pretty much the norm, but they do leave a lot of room for additions and interpretation and there certainly are gray areas that should be reviewed by legal counsel to ensure that the contract is complete on ambiguous and protects everybody's interests. But backing up just a second to the hiring and unlicensed contractor an association that does that for property manager who does that. That is pretty much a clear breach of duty. Yes, Porter, thank you so much for joining us again. I can't believe we're running out of time. I'm always concerned we're gonna have enough to talk about but inevitably unfortunately in some cases we do. And so I wish you a very happy new year and I wish everyone out there in think tech Hawaii world and who watches condo and site are a very happy new year and we will be back next week with a different host with a wonderful topic which will be announced soon. So we hope to see you all then and I appreciate you watching it and hope you learn something. Thank you so much, mahalo. Thank you.