Hawaii Condo Law

Yesterday, the Governor signed into law Act 45 which allows the criminal justice center to expand the sex offenders that are listed on its website as sex offenders.

The Hawaii Supreme Court in State v. Bani, 97 Haw. 285, 36 P.3d 1255 (2001), overturned a prior statute that required that all sex offenders registration information be made available to the public. A constitutional amendment was passed last year permitting the legislature to make the information public. Act 45 implements the constitutional amendment and allows most of the sex offender registery information to be available online. According to the Attorney General, the online registry does not list the following sex offenders:

• About 300 whose offenses are less serious and whose information is available at the attorney general’s Criminal Justice Data Center and police stations.
• About 300 others whose cases are being worked on to determine if they meet the new standards for having their information posted. These cases include mostly people who moved to Hawaii.
• About 100 who have committed only single misdemeanor offenses and are not required to have their information made public.

Many community associations are faced with issue of whether it has a duty to inform residents whether a sex offender is living in the community. While an association will normally have the power to inform its members of a sex offender in the community, it probably does not have a duty. For most associations, however, it makes sense if they are aware of a sex offender in their community to inform their residents of the fact. We normally recommend, however, that instead of identifying the individual, the community simply inform residents where the information may be located.

On March 31, 2005, the Mayor of the City and County of Honolulu signed into law Ordinance 05-007. The new law deals with dangerous dogs. Sec. 7-7.1 of the Honolulu Revised Ordinances defines “Dangerous dog” as any dog which, without provocation, attacks a person or animal. A dog’s breed shall not be considered in determining whether or not it is dangerous.

If a dangerous dog injures someone other than the dog’s owner, special conditions are placed on the dog and the dog owner. One of the new conditions is that when outside the owner’s premises, the dog shall be attended and kept on a leash no longer than four feet in length and under the control of a person eighteen years of age or older. It is likely that a court would treat the common elements of a condominium project as “outside the owner’s premises”. Therefore, if there is a dangerous dog in your project the City Ordinance will require that the dog be kept on a short leash.

The College of Community Association Lawyers is a group of attorneys that practice community association law. Members have distinguished themselves through contributions to the evolution or practice of community association law. Admission requirements includes: (1) a minimum of 10 years of practice in community association law; (2) substantial writing in the area of community association law; (3) significant teaching on community association law; and (4) community service or legislative activity. The College plans and presents what many consider the best educational program on community associations. Hundreds of attorneys, managers and others attend the CAI Law Seminar each year.

I’ve written this article for two reasons. First, I want to encourage any attorneys that meet the requirements of the College to apply for membership. Second, I want you to know that I’ll be in Washington, DC from April 8 to 12, 2005 to attend strategic planning for the Board of Governors of the College of Community Association Lawyers. While I will continue to post updates while I’m away from the office, there may be some delays particularly while I’m traveling.

A PCAM is a manager that has earned the highest designation available to a community association manager, the Professional Community Association Manager® designation. Managers that earn the PCAM® designation have, among other things, taken and passed six 200 level courses on Facilities Management, Association Communication, Community Leadership, Community Governance, Risk Management, and Financial Management. After passing the courses, the manager must successfully complete the Case Study, which includes a substantial paper on community association management.

The courses are taught by the National Faculty for the Community Associations Institute. I’m fortunate to be one of CAI’s National Faculty, teaching the course on Community Governance two or three times a year. While this means that I must occasionally travel to the mainland to teach courses (in addition to classes in Hawaii), it is fun teaching and learning from the managers taking the course.

Mark Speigler, one of the partners at the first firm I worked at, told me that a lot of the advice he gave his clients was not strictly legal, but business advice. I remembered that because to me it represented the difference between a competent attorney and an exceptional attorney. A competent attorney tells you what you are legally authorized to do, an exceptional attorney provides that plus a little more.

In community association law, identifying an association’s legal authority is only part of the process. Just because the association has the authority, does not mean it has to use it. Sometimes it makes sense to make a document available to an owner even if you aren’t legally required to do so. If the request has a legitimate purpose and it’s release would not harm the association or violate any laws or important policies, the board should consider approving the request.

Similarly, just because the association has the power to enforce a violation, does not mean that it should. Sometimes, an alleged violation is just a dispute between two neighbors. The board should consult with its attorney and consider the impact on the association and residents before acting. These types of disputes often have each neighbor pointing their finger at the other. I sometimes have trouble deciding which one of my kids is telling the truth when they’re saying that the other one started it. It’s even harder when a Board is dealing with bickering neighbors. Even if you can tell which neighbor might be at fault, the Association is not normally a substitute for the police or the court system. If the dispute does not affect anyone else, it may be more appropriate for the two neighbors to resolve the dispute themselves. That is why Hawaii condominium law permits owners to enforce the governing documents and house rules in appropriate cases. One area that the association may wish to be careful about is where there is an allegation of discrimination. I’ll explain why in a future article.

Last month, the National Association of Realtors (”NAR”) reported that condominiums are appreciating faster than single-family homes. NAR President Al Mansell, said the reputation of condos as an investment has changed dramatically. “In much of the 1980s and early 90s, condos earned a reputation for slow price growth, in many cases because there was an oversupply on the market,” he said. “With the maturation of this market segment, condos have been appreciating faster than single-family homes for the last four years. In the past, affordability was a bigger factor in condo sales – now, lifestyle choices have emerged as a driving force in their growing popularity.”

“Lifestyle choices” are what condominium associations are all about. Some people purchase a condominium unit because they chose a lifestyle where someone else maintains and repairs their home. Other people purchase a condominium unit because they chose a lifestyle where amenities are available to residents that would not be available to them if they lived outside a community association. Still other people purchase a condominium unit because they chose a lifestyle where they can rely on residents to abide by a shared set of rules and aesthetic appearance.

NAR’s pricing information is consistent with polling data. A 1999 Gallup poll showed that community association members were happy with their associations. The poll showed that 75% of association members were either extremely satisfied or very satisfied with their association. Another 20% were somewhat satisfied with their association. Not surprisingly, almost the same percentages thought their association was extremely, very and somewhat responsive. The poll also showed that 42% of community association members would not consider selling their home under any circumstances. Another 36% would consider selling at 15% above market value. While a condominium lifestyle choice is not for everyone, it is clear that they are translating into the bottom line for condominium owners.