CAI-MN Minnesota Community Living - Jan/Feb 2015 by CAI-MN

In this Issue: Carinâ&#x20AC;&#x2122;s Corner.......... 3 From the President.. 4 Solar Legislation....... 6 January/February 2015

Putting a Spotlight on Solar In-depth look at some of the issues that pop up around solar-energy installations

Online Magazine Now Available! www.cai-mn.com/ magazine

Volume 33 â&#x20AC;˘ Issue 1

Solar Panels on Your Home or Condo..... 13 Dealing with Snow Removal in a Minnesota HOA..... 17 Winter Is Here........ 21 R & R Does Not Stand for Rest and Relaxation.............. 23 Ask the Attorney ............................... 29 And Much More!

Minnesota Communit y Living

Carin’s Corner

Carin Rosengren | CAI-MN Communications Committee Chair

Board of Directors President Gene Sullivan Phone 952.922.2500 gene@ncmgi.com

Putting a Spotlight on Solar

roducing renewable energy is viewed by many to be an unassuming, admirable goal. Unfortunately though, achieving green results can mean the egregious erection of specialized equipment, installed on rooftops and tall structures, looking anything but uniform and standing out like a hammered thumb within an association community.

when the topic of solar-energy installations is in the spotlight:

What if your Board of Directors had no choice but to allow it? That is the case in 25 states where laws exist to restrict the ability of community associations to decide for themselves whether to allow the installation and use of solar-energy devices. Fortunately in Minnesota, similar legislation was defeated in 2014, but that doesn’t mean it is gone for good.

•

It is easy to understand that one person’s view of a beautiful, sleek energy source is another’s view of an angled and conspicuous eyesore; however, the sun-collecting panels create a slippery slope when it comes to assigning responsibility for maintenance, insurance, property values and aesthetics. The issues vary just slightly when considering townhomes vs. condominiums, where individuals do not own the roofs over their heads. Those living in a townhome own the building and thus the roof, but the association has responsibility to maintain it. This edition of Minnesota Community Living takes an in-depth look at some of the issues that pop up

•

Michael Klemm writes about the recent, proposed Minnesota legislation and its importance among priorities for the national Community Associations Institute (CAI) In his look at “The Solar Issue,” Matt Drewes offers the viewpoint and general considerations of an attorney with practice in insurance and construction disputes Michael Haugen is a property and casualty claims specialist, contributing in his article a discussion on responsibilities, deductibles and the decision-making process

I hope you will take a closer look with us at solar energy and its potential to impact community associations. If you have a story to share or comments on one or more of the articles inside, we want to hear it. Please send a “Letter to the Editor” to me via email (we’d love to have “Letters to the Editor” be a regular feature, but it has to start somewhere): crosengren@kellerpm.com.

Vice-President Joel Starks, CMCA Phone 952.698.2053 joel@sharpermanagement.com Treasurer Halo Stafford, CMCA, AMS, PCAM Phone 952.944.2237 edenplacemgr@pinnaclefamily.com Secretary Nancy Polomis, Esq. Phone 952.941.4005 npolomis@hjlawfirm.com Directors JoAnn Borden, CMCA, AMS, PCA Phone 763.746.1196 jborden@developcommunity.com Matthew Drewes Phone 952.835.7000 mdrewes@tn-law.com Joseph Fadell Phone 952.392.9208 fadell.joseph@gmail.com Russ Lis, CMCA, AMS Phone 612.805.6111 rlis@reconstructionsolutionsgroup.com Crystal Pingel, CMCA, AMS, PCAM Phone 952.277.2703 Crystal.Pingel@fsresidential.com

Thank you for your participation! In short, all ideas, articles, contacts, photos and submissions are welcome. Please peruse the outline of topics and themes for 2015. And please, don’t wait until September if you have an idea for October, as the magazine deadline is about 60 days before publication. So, start thinking, start writing, start an email to me with your ideas, and help us make 2015 a groundbreaking year for an improved Minnesota Community Living.

Jim Rezek Phone 763-424-9984 jimrezek@comcast.net Michelle Stephans, RS Phone 763.754.5500 michelle@reserveadvisors.com

Committee Chairs Communications Chair

Carin Rosengren Phone 952.432.3722 CRosengren@kellerpm.com

Charitable Outreach Committee Chair

Cliff Kurth Phone 763.248.1047 Minnesota 3cliff@aemn.co

Education Committee Chair Nigel Mendez Phone 651.287.8640 nmendez@carlsonassoc.com

Golf Tournament Chair Kris Birch Phone 651.481.9180 krisbirch@birchlawn.net

Communit y Living

Legislative Action Chair John Dorgan Phone 612.721.4116 jrd@jdorganlaw.com

Membership Chair

Janice Pyka Phone 612.801.1229 janicepyka@gmail.com

Social Committee

Jenna Wright Phone 303.547.7848 jwright@bensonpc.com

Trade Show Committee Chair Michele Ramler Phone 763.231.9809 mramler@cedarmanagement.com

Vision Awards Chair Shaun Zavadsky, CMCA Phone 952.277.2786 shaun.zavadsky@fsresidential.com

From the President — Don’t Be a Long Horn! (What it Means to Be Professional)

t happens to all of us. A situation arises that we have never encountered before. We don’t know what to do; however, we do know we have the responsibility of communicating to our clients (if we are a manager) or our members (if we are on the board), so we do so very quickly. And as we are communicating on this issue, we are actually thinking to ourselves “I’m pretty good. I’m letting everyone know what’s going on at the property right away!” However, very quickly, the conversation turns to something we haven’t taken a moment to think about, others ask us a question; “Now, what should we do?” “What should we do?” We hadn’t gotten that far yet. We don’t know. So we do what a lot of folks do in this situation, improvise! We try to pull things together from our past experience (or lack thereof ), and we simply take a stab, a grasping at straws, at what the problem might be and what the association should do. It is in this instance we have become “a Long Horn”. You know: in our communication we may make a point here, or a point there, but in between those points is a lot of bull!

So what can and should we do in planning ahead for the unknown? These very moments that test us, allow us to demonstrate our credibility and value. After all, if everything went correctly, we wouldn’t have a job. Just as good experienced folks know that the successful running of any association is done with a well thought-out emergency action plan, everyone must also have a like strategy for themself to deal with the unknown when it arises.

Minnesota Communit y Living

Take a Pause When something comes up that we have never encountered before, and we are not sure what to do, it is always a good idea to take a moment to pause, stop and think, and ask, what is really going on? I am not suggesting that you do not communicate to your association members, but why would you communicate before you really know what is going on? In my years in this business, I have noticed that when someone does not know the answers to a problem, they begin to worry. That worry leads them to do one thing—fill in the blanks. It’s basic human nature. When we are too quick to share a problem without the beginning notion of what is going on, or what can be done, we will simply be an instrument to stir things up. Once this has happened, we will find that we no longer have just one issue to deal with, but we also have all the others that are being construed by everyone else because they have just enough information to worry. In our desire to be quick, we have created a lot more work for ourselves. Do we really need to do this in the middle of a crisis?

Study One of the basic requirements for us in performing our fiduciary duty as an association manager or board member is “Reasonable Care and Diligence”. I like the way this requirement is phrased. While on the one hand we have a duty of diligence, taking the time to try to correctly assess what is going on, and what might be the wise solution; there is the understanding that no one can always know what to do perfectly, in every situation. That is why it is couched with the notion of “reasonable care”.

Example If a homeowner complains of water coming in through an upstairs ceiling, do we simply replace the entire roof? No, we first study

Gene Sullivan | CAI-MN President

the situation. We ask questions. Is the leak in a bedroom or bathroom? If in the bathroom, is it around a vent? If it is in the middle of the ceiling, is there a gable valley above that portion of the roof? Did this happen after a rain, or has it been dry outside? Did it happen in the winter or during the spring? In this example, we can clearly see that the solution could be as simple as replacing a shingle, caulking around flashing or vent pipe, re-installing a vent cap, removing an ice dam, going into the attic to re-attach a disconnected vent pipe, or even re-soldering a leaking joint to a fire sprinkler system. The answer may not be that the entire roof needs replacing. Reasonable care suggests that we first think and come up with a plan of action that is measured and economical. After all, isn’t that what all associations are really looking for?

Candor and Conviction Lastly, our duty as a professional demands that after we have studied the situation and come up with several reasonable solutions to pursue, we should then show both candor and conviction in making a recommendation. Do not be afraid to make a recommendation. Our clients and members expect that of us. I know it can be a lot easier if we never take a stand, and it might be harder for others to put blame on us when something doesn’t go right; however, we may also find that over time, our opinion and value to the association may not be what it once was, and they find it easier to replace us. However, by taking a little time to investigate and study a matter before reporting on it, we may find that instead of going from giving a lot of bull, we take that bull by the horns, increasing both our credibility and value to others.

Calendar 2015

Index

Series

Upcoming Events

6 Solar Legislation

3 Carin’s Corner

CAI-MN 2015 Trade Show

By Michael D. Klemm, Dougherty, Molenda, Solfest, Hills & Bauer P.A.

By Carin Rosengren

Thursday, February 26, 2015 Saint Paul RiverCentre

10 A Construction and Insurance Dispute Lawyer’s Perspective on Solar Panel Installation

CAI-MN Social Event: Bowling Happy Hour Thursday, March 26, 2015

By Matt Drewes, Thomsen & Nybeck, P.A.

Gathering of Angels: Charitable Outreach 13 Solar Panels on Your Home or Condo Are You Properly Covered? — Silent Auction Monday, April 23, 2015

CAI National Conference in Las Vegas April 29 – May 2, 2015

CAI-MN Social Event: Twins Baseball Game Outing Wednesday, June 10, 2015

CAI-MN 2015 Golf Tournament

By Michael Haugen, Winona Agency Inc./WA Insurance Group

14 The 2015 CAI-MN Tradeshow Information

17 Dealing with Snow Removal in a

Minnesota HOA

By Gil Cross, GWCross, LLC

Date & Location TBA

21 Winter Is Here

CAI-MN Social Event: Boat Cruise

By Jesse Dubuque, CMCA®, Director of Client Development

Date & Location TBA

CAI-MN 2015 Vision Awards

23 R & R Does Not Stand for Rest and Relaxation

Thursday, September 17, 2015 International Market Square

By Jewel Pickert, Conflitel Resolutions, LLC

CAI-MN Social Event: Wine Tasting

By Bob Mac Donald, CMAC, AMS, PCAM

Thursday, October 1, 2015

CAI-MN Social Event: Ugly Sweater and White Elephant Holiday Party

24 Building Better Business Relations 26 “What Is an Association, Anyway?” By Nancy T. Polomis, Esq., Hellmuth & Johnson, PLLC

Thursday, December 3, 2015

For more information regarding an event, call the office at 651.203.7250 or visit the CAI-MN website. Online registration is available at www.cai-mn.com.

4 President’s Message By Gene Sullivan

29 Ask the Attorney By Nigel H. Mendez, Esq.

2015 Annual Partners Platinum Asset Exteriors Community Development, Inc. Sela Roofing & Remodeling Xtreme Exteriors Gold Benson, Kerrane, Storz & Nelson Community Advantage FirstService Residential Gassen Management Hellmuth & Johnson Silver All Ways Drains American Family Insurance Jeff Mayhew Carlson & Associates Gaughan Companies Hammargren & Meyer PA Mutual of Omaha/CA Banc New Concepts Management Sharper Management Bronze American Building Contractors Clean Response Gates General Contractors, Inc. Levin & Edin Michael P. Mullen, PLLC Truseal America LLC

Find articles from this issue and archived articles online at cai-mn.com in the Minnesota Community Living (MCL) Resource Library.

Published by Community Associations Institute — Minnesota Chapter, copyright 2015. All articles and paid advertising represent the opinions of authors and advertisers and not necessarily the opinion of either Minnesota Community Living or CAI–Minnesota Chapter. The information contained within should not be construed as a recommendation for any course of action regarding financial, legal, accounting, or other professional services by the CAI–Minnesota Chapter, or by Minnesota Community Living, or its authors. Articles, letters to the editor, and advertising may be sent to Monte Abeler at montea@cai-mn.com, or at CAI–MN Chapter, 1000 Westgate Dr., Suite 252, St. Paul, MN 55114.

[ ADS ] All Ways Drains............................................... 8 American Family Insurance – Jeff Mayhew........ 8 Asset Exteriors............................................. 28 Benson, Kerrane, Storz & Nelson, P.C. ........ 22 Carlson & Associates, Ltd ........................... 14 Chestnut Cambronne................................... 18 Columbus Exteriors, Inc................................. 2 Community Advantage ............................... 25 Community Development, Inc..................... 30 Complete Building Solutions ........................ 9 Felhaber Larson Fenlon & Vogt ................... 20

Minnesota Communit y Living

Index of Advertisers

FirstService Residential................................ 18 Gassen Companies....................................... 22 Gaughan Companies.................................... 20 Hammargren & Meyer, P.A. ......................... 13 Hellmuth & Johnson, PLLC.......................... 27 Levin & Edin................................................... 7 Mutual of Omaha Bank................................ 20 New Concepts Management......................... 8 Omega Management, Inc............................ 19 Reserve Advisors.......................................... 25 Reserve Consultants, Inc. ............................ 13

Reserve Data Analysis, Inc. .......................... 20 Russo Consulting, Inc. ................................. 27 Schwickerts Roofing..................................... 20 Sara Lassila, CPA Inc....................................... 8 Sela Roofing ................................................ 12 Sharper Management ................................. 15 Strobel & Hanson, P.A.................................... 7 Thomsen & Nybeck...................................... 11 Toohey Law Firm, P.A. ................................... 8 Truseal America LLC..................................... 32 Xtreme Exteriors.......................................... 31

Solar Legislation By Michael D. Klemm, Dougherty, Molenda, Solfest, Hills & Bauer P.A.

n 2014, bills were introduced in the Minnesota House and Minnesota Senate attempting to limit associations’ authority to regulate solar energy systems. The Community Associations Institute Minnesota Legislative Action Committee (CAI-MN LAC) advocated for the interests of community associations at the state capitol, and ultimately the proposed legislation was defeated. This article will provide an in-depth look at proposed solar legislation from the 2014 Minnesota session, the national context, and CAI’s public policies relevant to this hot topic.

Minnesota Solar Bill As introduced in 2014, House File 2918 proposed the following general rule: (a) A private entity may not prohibit or refuse to permit installation, maintenance, or use of a roof-mounted solar energy system by the owner of a single-family house or townhouse. (b) A covenant, restriction, or condition contained in a deed, security instrument, homeowners association document, or other instrument affecting the transfer or sale of, or an interest in, real property that prohibits or has the effect of prohibiting the owner of a single-family house or townhouse from installing, maintaining, or using a roof-mounted solar energy system is void and unenforceable. As introduced, HF 2918 would have allowed an association to require that: (1)

a licensed contractor install a solar energy system;

(2) a roof-mounted solar energy system not extend above the peak or beyond the edge of the roof; (3) the owner or installer of a solar energy system indemnify or reimburse the private entity or its members for loss or damage caused by the installation, maintenance, use, repair, or removal of a solar energy system; (4) the owner and each successive owner of a solar energy system list the private entity as a certificate holder on the homeowner’s insurance policy; (5) the owner and each successive owner of a solar energy system be responsible for removing the system if reasonably necessary for the repair, maintenance, or replacement of common elements or limited common elements, as defined in section 515B.1-103;

Minnesota Communit y Living

(6) A solar energy system must meet applicable standards and requirements imposed by the state and by governmental units, as defined in section 462.384; and (7) A solar energy system for heating water must be certified by the Solar Rating Certification Corporation (SRCC) or other nationally recognized certification agency. A solar energy system for producing electricity must meet all applicable safety and performance standards established by the National Electrical Code, the Institute of Electrical and Electronics Engineers, and accredited testing laboratories, such as Underwriters Laboratories and, where applicable, rules of the Public Utilities Commission regarding safety and reliability. As introduced, HF 2918 also would have allowed an association to impose other reasonable restrictions on the installation, maintenance, or use of solar energy systems, provided that those restrictions would not increase the cost of a solar water heating installation more than 20 percent above the system cost as originally specified and proposed, or decrease the system’s expected production by more than 20 percent; and provided that those restrictions would not increase the cost of a solar photovoltaic installation more than $2,000 above the system cost as originally specified and proposed. As noted above, the proposed legislation to limit the authority of associations to regulate solar energy systems in Minnesota was defeated in 2014.

National Context According to CAI’s Government & Public Affairs Committee, 25 states prohibit or offer the ability to prohibit covenants or restrictions that prevent the installation of solar panels and associated devices, and 15 states (including Minnesota) have laws that recognize solar easements without having an express solar rights law (see Minn. Stat. § 500.30). Detailed information including a national map and excerpts from state laws is available on CAI’s website, in the article titled Solar Rights and Easements by State.

CAI Public Policies CAI’s Government & Public Affairs Committee has developed public policy positions on key issues that affect CAI members. Relevant to associations’ authority to regulate solar systems are the following CAI public policies: … on Conservation, Sustainability and Green Issues CAI supports environmental and energy-efficiency policies that

recognize and respect the governance and contractual obligations of community association residents as the best mechanism to enact sustainable environmental policies. CAI supports efforts by state legislatures to empower community associations to build consensus-based solutions regarding environmental initiatives, and opposes government and interest group efforts to override community policy or deed restrictions on single interest issues.

aesthetic controls within the declaration, restricting fence styles or paint color choices. Where governing documents are generalized or even silent on aesthetics, many communities craft policy resolutions to address details and procedures relating to architecture, landscaping and other aesthetic interests. When communities fail to construct or consistently enforce aesthetic policy, the result is usually property that lacks visual coherence due to poorly contemplated and executed aesthetic schemes. The results can be devastating for owner lifestyle and property value.

Background

CAI RECOMMENDATION:

Community associations are the outgrowth of smart land use planning. Community associations, which include condominiums, planned communities and cooperatives, represent a comprehensive approach to housing that encompasses individual lots or units as well as common areas such as parks, conservation/natural habitats and recreational facilities. These amenities usually are supported and maintained by the residents of the community, enabling state and local authorities to focus their resources on other uses.

CAI strongly supports community-crafted aesthetic controls, in accordance with governing documents or supplemental thereto, and opposes any and all attempts by federal, state and local government to interfere, ignore or negate the contractual obligation between associations and their members, permitting and requiring the association to maintain aesthetics that meet lifestyle expectations of the collective ownership, match a standard of cleanliness and maintenance and are part of a larger, unified aesthetic scheme. Architectural or design review committees should include professionals or seek advice from CAI business partners on a regular basis.

Conservation issues also benefit from the governance process within community associations. Deed restrictions, bylaws and rules provide a basis for implementation, enforcement and maintenance of policies and projects to address community concerns. This process provides a democratic forum for individuals in the community to collectively develop a range of solutions to meet the needs and values of the community. Fostering such diversity of approaches provides neighborhood-level laboratories to develop a range of sustainable solutions. Such local decision-making should be respected and incentivized. … on Aesthetics as an Economic Issue The overall appearance of any common interest community has an economic impact on property values. When communities look old, poorly maintained or without a unified scheme in architecture, color or landscaping, property values of individual owners’ properties as well as the whole community suffer. When aesthetics of any one development look clean, well maintained, properly proportioned and part of an overall design or compatible color scheme, owner expectations are met and property values are sustained and improved. In fact, independent studies have shown that real estate values generally appreciate in a common interest community when compared with properties not located within such a community. In order to maintain an attractive and valuable “curbside appeal,” common interest communities must control aesthetic interests of the development. Aesthetic control extends to the design and maintenance of all improvements existing on the footprint of the development, including, but not limited to: siding, fences, landscaping, lighting and even building housing units as well as lots, where applicable, all of which are visible throughout the community. Governing documents obligate the association to “maintain” the property. Sometimes governing documents also expressly provide 7

Minnesota Communit y Living

… on Environmental Quality CAI encourages all homeowner associations to actively participate in ensuring environmental quality in communities. In this interest, CAI abides by three fundamental principles: •

Collaboration with neighbors is the best way to develop sustainable, consensus-driven decisions.

•

Respecting property rights and honoring private agreements between homeowners associations and homeowners compatible with sustainable environmental practices.

•

Vigilant consideration of our actions will minimize our environmental footprint.

Background Environmental considerations exist in all facets of community living, from choices individual homeowners make with their own unit appliances to larger community-wide initiatives for drainage, electricity or building with environmentally friendly building materials. Associations are also interested in and affected by larger Continued on page 8

General Counsel for Associations:

Construction Defect Representation

Einar Hanson Benjamin Kirk

651-222- 0109

www.strobelhanson.com

Solar Legislation Continued from page 7 environmental issues beyond their own gates — at the municipal, state and federal level. Locally, associations occupy acres of land and constitute hundreds of voting citizens in any municipality. The environmental history of the association’s own property as well as neighboring properties has a direct impact on association living. Further, there are numerous federal and state statutes and regulations directing quality of air, water and soil. The Environmental Protection Agency (EPA), and in some jurisdictions, local and state agencies, often work with municipalities to ensure compliance and achieve remediation, where necessary. To avoid being subjected to undesirable or extremely costly governmental decisions concerning the environment, associations must be aware, educated and active participants in environmental quality management.

v v v v

Annual reports – Audits, Review, Compilations Tax planning and Tax Return preparation Monthly Accounting Consulting

www.saralassila.com 952.474.1631

sara@saralassila.com

CAI RECOMMENDATION: CAI recommends that associations craft policy resolutions to guide owners in energy efficiency and to inspire confidence among owners that the association is also utilizing sustainable technologies and “going green” with its own community projects. Associations are encouraged to be aware of environmental initiatives and to continually educate their own members with updates. CAI encourages owners to become actively involved within the municipality where environmental initiatives are likely to impact the association’s best environmental and financial interests. Finally, CAI encourages associations to tap the abundance of resources within CAI (state and national); the website includes links and articles, fact sheets and legislative updates on a wide variety of environmental concerns.

Conclusion Currently, many community associations in Minnesota have authority to regulate or prohibit the installation of solar energy systems, based on the statutes and governing documents that apply to them. Associations are encouraged to consult with their attorneys and other professionals as needed to develop and implement reasonable policies tailored for their particular community. Meanwhile, the CAI-MN LAC will continue to defend the rights of associations to govern themselves and to enforce contractual obligations that benefit the community as a whole.

Vigorous, cost-effective community association representation and outstanding customer service

Jennifer C. Toohey 763-746-0845 | tooheylawfirm.com

Minnesota Communit y Living

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Minnesota Communit y Living

A Construction and Insurance Dispute Lawyer’s Perspective on Solar Panel Installation By Matt Drewes, Thomsen & Nybeck, P.A., Attorneys

olar energy has been a topic gaining momentum for a number of years, and with good reason. A free, endless resource that has the potential to power our homes or even generate revenue by selling excess electricity is attractive. But the increasing access to this technology can generate tension between the interests of common interest communities and individual unit owners. Some owners may want to install solar panels, but their communities may resist that push for any number of reasons. This article is intended to provide some very general considerations about the effort to introduce solar technology to a community association from the point of view of an attorney who represents associations in construction defect and insurance coverage disputes. This is not a discussion of how to regulate solar panels. Certainly the issues of oversight and control of the installation, placement, appearance, and maintenance of these systems are hot button issues. Recent proposed legislation would have mandated community associations to allow owners to install solar systems on their roofs, but existing documents and governing law likely would place the obligation of insuring, maintaining, and replacing those systems on the association. Then there are the aesthetic considerations, which needless to say can be polarizing. But rather than discuss the issues which presumably all members of a community association can readily anticipate, this article is provided to raise awareness of some other issues that solar panel installation can create. This article isn’t about whether solar arrays in community associations are good or bad, but hopefully it will generate discussion of certain practical considerations about the physical impact these systems can have on the buildings of a community association, and where construction or insurance considerations are likely to arise.

A Force of Nature The installation of solar panels on the top of a structure changes the forces put on that structure. Without attempting to discuss technical or advanced engineering concepts (which I’m not qualified to do), there are obvious changes to the dynamics affecting a roof when solar panels are installed. First, the system adds weight to the roof. Many jurisdictions throughout the country regulate the amount of weight per square foot that may be added to the roof system, and may also require a plan reviewed and approved by a professional engineer. Even if this review isn’t required, it’s important to have an engineer or other 10

Minnesota Communit y Living

design professional calculate the weight your contemplated solar array will add to your roof, and to ensure the roof can withstand the added weight. This person should also take into account the age and composition of your roof, the trusses (interior framing) holding up your roof, the potential for snow to accumulate on or under the solar panels, and also the weight-bearing capacity of your walls, which support all of this. The fact that you can stand on your roof without falling through is not a reasonable basis on which to conclude the roof can hold the relatively small number of pounds per square foot of roof surface your proposed system may add. Bear in mind, the weight of a solar array will cover a large portion of the surface of the roof, yet its weight will not be spread evenly. There will be attachment points, or base mounts, that will be spaced out across the roof. Due to other concerns discussed later in this article, installers will be motivated to reduce the number of base mounts as much as possible. Also, the brackets holding the panels, and the mounting system itself, will add weight. And all of it, in the aggregate, will be increasing the forces pressing down on the roof and the walls of the structure. These downward forces should be considered and calculated, and they may not always be appropriate without additional support or bracing. A second way in which an array of roof-mounted solar panels will affect a roof system is that it will generate vastly different wind loads than those that were likely contemplated when the roof was designed and built. Once again, an engineer is more qualified to talk about the calculation of those loads, but they can be significant. The solar panels can act like a sail. In Minnesota, where we can have severe straight-line winds in summer hail storms and winter blizzards, the risk of the system, or even the roof itself, becoming compromised by wind is a real risk. Be sure you consider the need to properly secure the system, and that your structure has been designed or modified to account for the lift a strong wind may generate under a solar panel.

Drips and Drabs Another construction-related concern that arises any time someone wants to install something on a roof is the potential for leaks. The base mounts for a solar panel array, if they are going to try to spread the downward forces generated by their weight, and to remain secure despite the upward forces generated by wind, must be placed in a number of locations across the surface of the roof. Any time an attachment such as this is installed, it creates a penetration through a component or system (e.g., asphalt shingle, cedar shake, or rubber membrane) that was designed to function without a hole in it. The application of caulk or some other membrane or epoxy over that penetration may not solve the problem. It might fail to adhere properly, or it may be put on improperly, or one or more penetrations may be missed. And, even if the sealant is put on consistently, thoroughly, and properly, as it ages it can dry up and begin to fail, requiring reapplication. Be sure to consider, and account for, how your roof will remain weather-tight if solar arrays will be installed.

Warranty Consider the age of the roof where a proposed solar array will be installed. This roof may not last until the end of the period for which it was warranted, so a roof installed using shingles covered by a 30-year warranty could require replacement in 20 years. If the roof is 10 years old, how long will it be before the roof must be replaced? And what does the presence of a solar array do to the cost of that new roof? Obviously there is now equipment, as well as wiring, that will have to be removed, preserved, and reinstalled once the roof surface has been replaced. Moreover, if you might have otherwise had a claim for the breach of warranty on the roof, either against the manufacturer or the installer, it’s very possible that either or both will say the installation of a solar array voided that warranty. With that said, it’s possible the manufacturer and/or installer of the new solar array will warrant its work. But, in that event, the usual caveats apply. Consider the strength and viability of the parties involved, gather as much information as you can about past customers, and investigate whether other projects have had negative results. Another warranty consideration arises when the topic of green building initiatives are concerned. There are certain performance characteristics that are inherently driving the investment. In the case of solar energy systems, there may be representations or promises about the amount of energy that may be generated, or cost savings that will arise. If a system were to be installed, consider how you will measure the system’s performance and quantify the results. Be prepared to analyze whether the system has accomplished whatever it may have been represented to accomplish, and consider whether those warranties or promises have been performed as advertised.

Electric A solar array is installed for the purpose of collecting and conveying solar energy in the form of an electrical current. The transmission of the electrical current requires wires. The wiring must be safe and 11

Minnesota Communit y Living

secure as well, and will ultimately have to enter the home. Even if there is no increased risk of shock or fire from these wires or cables, there is likely to be an additional penetration somewhere on the outside of the home. This increases the chances of a leak as well, and requires care in the planning and installation of the system.

Insurance The new solar array will have to be insured. For associations governed by Minnesota Statutes Chapter 515B (also known as the Minnesota Common Interest Ownership Act, or MCIOA), the community association is likely to be responsible for insuring this component. However, if the presence of a solar array increases the cost of that insurance, MCIOA would authorize the association to pass that increased premium expense to the unit owner(s) who have solar arrays. And for the reasons outlined above, whether due to increased weight or wind loads, or new electrical installations, it’s definitely wise to investigate what the addition of a solar array may do to insurance premiums. When a claim does arise (and in Minnesota we certainly have wind and hail events that tend to generate insurance claims) there may now be damage to the solar array itself, in addition to damage to roofs or other parts of the buildings. This damage should be inspected by a party qualified to evaluate and test the solar array, and the cost of repairs will likely have to be adjusted to account for the removal and replacement of the system when any roof replacement is performed. This may simply increase the stakes involved in any insurance claim scenario, and could enhance the importance of the claims-handling process. These are a few of the ways construction and insurance matters are affected by the presence of solar panels. There are certainly other considerations as well, but my hope is that by considering these issues before any installation project, community associations and environmentally-conscious owners can anticipate and try to address them proactively and cooperatively. Otherwise, you’ll need the help of a construction or insurance dispute attorney. Note: The information in this article is provided solely as general information and not as legal advice. Your receipt, and even your use of this information, does not establish an attorney-client relationship. Readers are urged to speak with a qualified attorney focusing on community association law when making decisions regarding a specific legal issue.

Minnesota Communit y Living

Solar Panels on Your Home or Condo — Are You Properly Covered? By Michael Haugen, Winona Agency Inc./WA Insurance Group

customer recently came into our office and asked if he would have coverage if he put solar panels onto his roof. Initially I thought to myself yes, of course he would have coverage as long as the unit was permanently attached to his home. But this got me thinking. What if the solar panel was a stand-alone unit in his yard? Would he have coverage? What if the solar panel installation costs $20,000 — would coverage B “other structures” provide an adequate limit in the event of a loss? I would assume there are several different types of solar panels that can be a separate structure and/or attached to the home or condo — would they all be covered the same by the insurance company? Then I began to analyze the HO6 owner’s policy and how this would differ from a traditional HO5 homeowner’s policy. My suggestion to the customer was to get a quote for the installation from the contractor. Before starting any work, we could have a conversation with the insurance company about how best to cover the item and program the coverage accordingly. This would also notify the insurance company of the material change, so if he had a claim we would have no surprises. The HO5 (homeowners) question was relatively straightforward, but it got me thinking about how the HO6 (common interest community) policy would differ. The governing documents for most community associations state the association is responsible for insuring the buildings and all common areas. In the event a unit owner were to install a solar panel on the exterior of his unit, who provides coverage? 13

Minnesota Communit y Living

The agent should have a conversation with the insurance company to confirm. Because the solar panel is permanently attached to the exterior of the unit, the association’s policy should provide coverage. To be sure of this, the unit owner should make the association aware of the addition of a solar panel, which is usually required before an owner makes any material alteration to the exterior of his unit, anyway. But, if the board of directors approves this change, it should also make sure the association has enough insurance coverage to cover the replacement in the event of a loss. Two other considerations may come into play here. First, the association typically has a much larger deductible than the unit owner and this could leave significant outof-pocket expense if a claim were to occur. Second, in the event of a loss, the insurance company would compensate the named insured (in this case the association and not the unit owner), even if he paid the up-front expense to have the solar panels installed. Also, since community associations usually have the right to assess the cost of any deductible back to the owner of the affected unit, the owner will want to have adequate loss assessment coverage in place. This is why the owner should make sure to have a conversation with his own agent and/or to make sure the association’s agent is consulted about how best to cover the panels. In closing, I would recommend that the association and the owner who wants to install solar panels have an in-depth conversation with their agents before moving forward, so everyone is on the same page. Make sure you know the value of the panels (which can be as much as $30,000 installed) and discuss how a claim would likely be handled in the event of a loss so, if a loss occurred, there would be no surprises.

Want to Contribute? Submit an article to www.cai-mn. com for a chance to be featured in Minnesota Community Living!

Reserve Consultants, Inc. Association Property Services Specializing in RESERVE PLANS that are • Easy to Understand • Practical (Around 12 to 13 Pages) • Color Photos Included • Fee will be the Least Expensive Quoted John Russo, Reserve Specialist, has more than 20 Years Experience in Reserve Planning; Is the only Ph.D. Reserve Analyst in the Midwest. 952-944-7137 (Office) 952-935-9647 (Fax)

SMART & DECISIVE The Best Value in Construction Law for Community Associations

That’s what our clients tell us. At Hammargren & Meyer, we’re smart, decisive lawyers focused exclusively in the areas of law that we know best. For prompt responses and straightforward answers, call Hammargren & Meyer. (952) 844-9033 www.hammarlaw.com

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Join U s!

2015 TRADEShow O

Where: Saint Paul RiverCentre 175 West Kellogg Boulevard Saint Paul, MN 55102 (651) 265-4800

When: Thursday, February 26, 2015 11:30 am - 6:00 pm

Agenda: 11:30am Noon 1:00pm 2:00pm 4:00pm 5:00pm 6:00pm

Please

Registration Manager Education Session 1 Manager Education Session 2 2015 Tradeshow Manager Education Session 3 Homeowner Panel Networking Reception & Trade Show Adjourn

n Thursday, February 26, the Saint Paul RiverCentre will be the location of CAI-MN’s annual tradeshow event. This year’s tradeshow is offering an education session that will be split into three tracks. More information about the event can be found online! Exhibitor/sponsor and attendee registration is open! 2015 Tradeshow Features: • • • •

100+ Exhibiting & sponsoring companies 200+ Industry professionals in attendance Networking Reception Tradeshow Hall open for three hours

Sessions Using Mediation to Resolve Community Association Disputes Linda Mealey-Lohmann, Lawyer, Mediator & Arbitrator Cyber Liability: What Associations Need to Know and How to Protect Themselves Dan Hanson, Director, Management Liability Legislative Process In Action Anthony Smith and the LAC Group from CAI

Questions?

Homeowner Panel: Ask a Professional! Attorney: Nancy Polomis, Hellmuth & Johnson Insurance: Jeffrey Mayhew – American Family Insurance Property Manager: JoAnn Borden, Community Development Reserves: Michelle Stephans, Reserve Advisors

Contact Kelly Feekes at kellyf@ewald.com or 651-265-7856

Homeowners attend for free!

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SAVE the DATE!

Thursday, February 26, 2015 Saint Paul RiverCentre

Current Exhibitor/Sponsors As of 1/19/2015 Exhibitors All Elements Inc All Sons Exteriors All Ways Drains, Ltd. Alliance Association Financial Services Allied Blacktop Asphalt Associates, Inc. Asset Exteriors Association Dues Assurance Corporation Bartlett Tree Experts Benson, Kerrane, Storz, & Nelson, P.C. Birch Lawn Maintenance Breiwick Companies, Inc. C.G.T. Limited Carlson & Associates, Ltd. Cityview Property Services Clean Response COIT Cleaning & Restoration Services Columbia Building Services, Inc. Community Advantage, a Wintrust Company Construct-All Corporation Coverall Health-Based Cleaning System - Coverall of The Twin Cities Final Coat Painting, Inc. Hellmuth & Johnson, PLLC Levin & Edin Metro Paving, Inc. MicMak Condo Approvals, LLC Minnesota Exteriors Inc Nugent Sealcoating, Inc. Paul Davis Restoration PayLease Rainbow Treecare Reserve Advisors, Inc. Roeder Smith Jadin, PLLC Roofing Consultants, Ltd.

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SMA Exteriors & Restoration Inc. St. Croix SavATree Strongroom Solutions, Inc. Superior Reserve Engineering and Consulting Trans Alarm TruNorth Painting U.S. Bank Union Bank Homeowners Association Services Waldman Engineering Consultants Sponsors Conference Bag Sponsor Roeder Smith Jadin, PLLC Lanyards Sponsor Sharper Management, LLC Networking Reception Food Sponsor All Sons Exteriors Show Sponsors Treecology CertaPro Painters, Ltd. Community Advantage, a Wintrust Company Trade Show Food Station Sponsor Reserve Advisors, Inc. Trade Show Bar Sponsor Cedar Management, Inc. Roell Painting Company

Save the Date! CAI-MN 2015 Vision Awards

International Market Square New time of year!

September 17, 2015 Nomination Information Coming Soon at www.cai-mn.com

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TRADE Where:

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Dealing with Snow Removal in a Minnesota HOA A guide to understanding the expectations and realities of snow removal By Gil Cross, GWCross, LLC

ith winter upon us, we know that means snow is coming. The following are general guidelines about most snow removal contracts. Please contact your community manager or snow vendor if you have specific questions regarding snow removal in your community. It is important to understand that most snowplowing contractors gear their operation to an average winter with individual snowfalls that are typically in the range of 2 to 6 inches. They do not gear their operations to deal with the worst storm of the season. Truly adverse conditions usually only occur two or three times per winter. Therefore, it is both impractical and very expensive to have and use a fleet of front-end loaders for the typical snowstorm. Remember also, front-end loaders are usually transported by trailer, meaning highway access ramps have to be in decent shape just to get equipment to your site. Although your association’s board of directors and management company do their best to find and use the most qualified snowplowing contractor, Mother Nature is still capable of creating circumstances that can make it extremely difficult to follow the letter of the contract. To be sure, there are circumstances where a contractor’s performance may be unacceptable (like not showing up) and may require a serious review by the board of directors. However, until your association can find a snowplowing contractor with the Godgiven gift of Moses to part the snow in

your driveway like waters of the Red Sea, expect Mother Nature to continue to demonstrate who’s playing with all the aces.

Things to Remember about Snow Removal: The snowplowing contractor is an independent contractor hired by your association. This means the people doing the snowplowing and snow shoveling are not the employees of the association or the management company. Your board of directors and management company do not have any direct control over the snowplowing contractor or his employees. In general, no plowing or shoveling will occur on snowfalls under 2 inches. You should be prepared with a shovel and ice melt (calcium chloride) for these minor snowfalls. Compacted snow and ice can be particularly difficult to deal with for homeowners whose entries face north. The contractor is not expected to chop and remove ice. If you experience this problem, call your management company or board of directors, and they will direct the contractor to apply salt and sand (with board approval). Until snowfall stops, the contractor’s sole obligation is to provide either a single or double plow-width access lane to your address for emergency vehicles. This same procedure applies to the periods of blowing and drifting snow. This does

not guarantee you the ability to get your vehicle out of your driveway. It is only meant to provide assurance those emergency vehicles, such as a police car or ambulance, would be able to get close enough to your address to make a timely response under adverse conditions. Once the snowfall has stopped, the contractor will have 8 to 12 hours (depending on their contract) to complete a cleanup of all drives and parking areas. With snowfalls greater than 6 inches, the cleanup is usually extended an additional 12 hours. Snow shoveling is to be completed within 24 to 36 hours after the snowfall stops, but it may be delayed by sub-zero temperatures or sub-zero wind chills. You are responsible for providing the snow vendor with access to your driveway. If you park your car outside, you will be responsible for removing snow from areas obstructed by your vehicle(s). Despite the contractor’s best efforts, city snowplows may block driveway entrances. Call your management company if this occurs, and they will relay the information to the contractor.

Not All Snowfalls Are the Same: For the most part, the typical snowfall is no problem. Most of us are familiar with the average snowfall with winter storm warnings and all the media hype about 3 to 6 inches expected. It’s typically the kind of stuff that you drive through to get to work and the type of snowfall that would shut down federal offices in Washington, DC for two days. However, there are those occasional snowstorms where looks are deceiving. We look up and say, “Yup, it’s snowing; no problem.” Well, it’s the combination of the deceiving appearance of the alltoo-familiar “white stuff” and a sense of Minnesota pride about our ability to cope with any snowfall that frequently gets us into trouble about what to expect from the association’s snowplowing

Continued on page 19

Minnesota Communit y Living

chestnut cambronne ATTO R N E Y S AT L AW WE’VE MOVED OUR ASSOCIATION PRACTICE GROUP Collections • Loan Transactions • Eviction Actions Rule Enforcement • Construction Litigation Document Drafting, Interpretation, and Amendment We look forward to serving your community association in 2015 and in the years to come. 17 Washington Ave. N. • Suite 300 • Minneapolis, MN 55401 612.339.7300 • www.chestnutcambronne.com

David McGee

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EXCEPTIONAL SERVICE AND SOLUTIONS. Managing Community Associations in Minnesota for over 40 years. FirstService Residential Minnesota delivers best-in-class property management solutions with local leadership and nationally-supported technology, training, and best practices. We have successfully partnered with more than 270 properties and communities in Minnesota, building and maintaining longstanding relationships with Board members, residents, and vendors. Our awardwinning Association Managers are highly trained and certified, and they have manageable portfolios enabling them to provide exceptional customer service to each and every one of our clients. Call us to learn more about how we may serve your association. FirstService Residential Minnesota is an Accredited Association Management Company 1801 American Boulevard E. Ste. 21 | Bloomington MN 55425 952.277.2700 | www.fsresidential.com

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Dealing with Snow Removal Continued from page 17

contractor. You see, as Minnesotans, we all believe, “Ah, shucks, it’s only snow. I’ve seen worse. What’s the problem? There are places I have to go and things I have to do.” However, as mentioned, snowfalls differ significantly, and yet, we are unwilling to adjust our expectations.

Some Things to Consider About Minnesota Snowfalls: Cold Powder — This type of snow is great

for shoveling and plowing. It’s cold, it’s fluffy; it plows great. It’s easily pushed around by a 4X4 pickup. In fact, it’s easy to plow up to a foot or more with few problems. Snow blowers work great in this type of snow. Fast Moving, Cold Powder — This has

many of the same characteristics as previously described, but it creates a new problem in that it tends to pile up around the downwind side of obstacles, like the front of your south-facing garage door. It doesn’t take a genius to figure out that as long as the wind continues to blow, each scoop you move is immediately replaced by more snow. Under these conditions, trying to move snow is like trying to create a dry spot under a waterfall. Snow blowers and 4X4s work well, but aren’t able to make up for the fill-in factor. Wet and Heavy — This type of snowfall

usually occurs in the late fall or early spring. It has high moisture content and usually melts quickly upon hitting the warm ground. It’s the sloppy, messy, slushy stuff that sticks to the shovel and is harder to plow because it packs quite well. In fact, this is the best snow to use in making snowmen and snowwomen. Snow blowers are likely to become plugged on a regular basis, and the mechanical strain may prove too much for smaller machines. A 4X4 pickup can usually handle up to a 6 inch accumulation, but the work becomes more difficult and nearly impossible for anything over 8 inches in depth. If it accumulates, it compacts under foot traffic and vehicle traffic-making it very difficult to clean 19

Minnesota Communit y Living

the surface down to the bare pavement, resulting in icy driving conditions and slippery walking conditions. Fast Accumulating, Wet and Heavy —

This is about as bad as it gets (unless of course, you’re talking about a storm that delivers a one, two punch of heavy, wet snow followed by falling temperatures). The Halloween storm of 1991 and the late March/early April storm of 1996 are examples of this type of snowfall. It has the same characteristics as that mentioned above, but it adds up quicker than the national debt. It’s very difficult to plow because it compacts quickly, making it difficult to push because of its weight and the fact that it compacts into slippery ice under the wheels. A 4X4 pickup is of limited value in this type of situation. If the accumulation is over 8 inches, it becomes a time-consuming ordeal to move a scoop at a time with a front-end loader. It compacts under foot traffic and vehicle traffic, making it difficult to clean the surface down to the bare pavement and making for hazardous driving and walking. Understanding some of these snowfall characteristics may help you understand the degree of difficulty the snowplowing contractor may experience while plowing snow. Meanwhile, please be patient. If you are particularly concerned about the snowplowing contractor’s performance, please take the time to write to the board of directors, in care of your management company. They will copy and distribute your letter to each board member. Your written comments about the quality of service or the contractor’s failure to meet contract deadlines are extremely important. Please include specific information such as time, date, and location in your correspondence. Without written documentation, it may be difficult for the board of directors to develop any leverage in dealing with the contractor or canceling the contract altogether.

Managing to make a

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Making the Difference: Gaughan Companies is small enough to tailor their services to meet the needs of the Associations they manage, and large enough to make sure all areas of Associations’ needs are handled promptly and professionally. ~ Susan Sabrowsky Ashbourne Townhomes

Community Association Management Accessible. Reliable. Accountable. Hands-on Management. Whether your community is large or small, we provide comprehensive management services by evaluating your community’s wants, needs andPCAM goals. Tom Engblom CMCA, AMS, VP, Regional Account Executive

We understand the importance of efficient cost-effective 312-209-2623 practicestom.engblom@mutualofomahabank.com that result in the cohesive operations of the community. Our hands-on management is responsive to the requests of the Memberwhile FDIC preserving the mutualofomahabank.com Board of Directors and Homeowners Equal Housing Lender AFN45462_0213 property and lifestyle of the community. For over four decades, Gaughan Companies has been trusted for our integrity and perspective. Our Management Teams treat your Association as if we owned it. Each member of our team willof: member always be accessible, reliable and accountable to you, the The Community Associations Institute & The Minnesota Multi Housing Association homeowner. Providing LegaL advice to

Homeowners associations since 1975 Making the Difference:

• General corporate matters, enforcement of covenants, restrictions Gaughan is small enough to tailor and managementCompanies issues

their services Mark Radke Fred Krietzman 612.373.8418 • Document interpretation and amendments to meet the needs of the Associations they manage, and 612.373.8409 • Replacement reserve analysis large enough to make sure all areas of Associations’ needs • Collection of assessments and foreclosure assessment liens are handled promptly and of professionally.

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~ Interest Susan Sabrowsky • Applicability and options under the Minnesota Common Ownership Act (MCIOA) Ashbourne Townhomes • Project development and documents • Turnover of developer control

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Winter Is Here Let’s Gear up for Winter and Talk Salt

ven though in many associations the driveways and roads will be plowed for you and the sidewalks will be shoveled in a timely fashion, many times the application of salt on these areas is not included as a part of the contract. For those residents in single family homes, you are most likely already doing these services for yourself. Winter brings many different weather patterns, frost/heave cycles, and slippery surfaces around our home. My mother’s most dreaded forecast is “freezing rain”, and she’s been known to stay at home for over a week rather than risk driving in it! For the rest of us, however, we must persevere and tackle this winter weather head-on. To stay safe on our driveways we can apply myriad salt products. When buying salt at the hardware store, big box store, or grocery store (HINT: Table salt is not cost effective for your driveway but great for making water boil faster), take heed...

The Skinny On Salt: Note: All temps in Fahrenheit Calcium Chloride —

Effective down to negative 25! Fast-acting and better than rock salt, this can damage grass and plants when over-applied and lead to association notices in the spring. Apply sparingly or skip altogether. — Effective to 20 degrees, this is for contractors only, and while it is environmentally friendly, it can damage concrete. Avoid! Calcium Magnesium Acetate

By JESSE DUBUQUE, CMCA® , Director of Client Development

Magnesium Chloride —

Effective to negative 13! This is best for pet owners and gardeners; however, it can be lethal to pets that suffer from kidney disease if ingested. This salt is more effective than sodium, environmentally friendly and is safer around pets. Though no salt is 100% safe around pets, this is a good choice for extremely cold days. Can damage plants when over-applied. Potassium Chloride —

Effective to 25 degrees. This is also environmentally friendly and safer for pets, but again, lethal to pets with kidney disease if ingested. Can damage grass and plants when over-applied. Sodium Chloride/Rock Salt —

Effective to 20 degrees. Inexpensive on the front end but can damage asphalt, concrete, brick, stone, metal, grass, plants and wood. Do not use on new concrete. All that and lethal to pets. Best to avoid. Urea/Carbonyl Diamide — Works

down to 10 degrees but better at 25 and up. This can damage plants when overapplied and is not very effective. All salts have minimal to moderate damage to surfaces—so apply sparingly and only as much as needed!

Here are some application tips to lessen the slip and save the greenery for a colorful spring: Tip 1: Clear the snow first! Don’t apply salt where there is lots of snow or it will work on the snow and not the ice. Tip 2: Spread

it out! Use a spreader to evenly spread salt; if you accidentally dump a big pile use a broom to spread it out. Highly concentrated areas of salt are even more caustic to asphalt and concrete surfaces. Remember to wear gloves (but in cold weather, you most likely already are)! Tip 3: Skip

salt altogether! Try using sand or kitty litter for traction and leave the ice alone. If you must melt the ice, avoid magnesium, as that is the most caustic, and keep it on the ice and off the lawn. Special thanks to Tim Pearson with Natural Green Landscape Management for giving me a working knowledge of icemelting salt terminology! Stay warm, stay safe, and don’t jump over snow piles—you may land on a sheer sheet of ice on the other side! (Trust me on this one.)

Minnesota Communit y Living

R & R Does Not Stand for Rest and Relaxation By Jewel Pickert, Conflitel Resolutions, LLC

ommon sense just isn’t all that common when dealing with rules and regulations. It’s not that people don’t try to do the right thing or don’t know what the right thing might be. It’s just that individuals have their own perspectives based on a lifetime of experiences. In a sense, each of us interprets common sense differently. How about when people move in during the winter and prop the outside door of a condo building open the whole time they’re driving back and forth from their previous residence? Maybe they think it’s easier for them to not open and close the door constantly. It doesn’t occur to them that it’s colder for everyone else in the building. Or when someone parks perpendicular to the garages and blocks another’s access to the garage? Surely, common sense would prevail. After all, who wants to have to ask permission to get into or out of the garage? Again, it means the parkers have to think of how their actions impact others. The perspective might be it just takes them a minute. I’ve noticed these people typically have very long minutes, sometimes even extending to an hour or more. All is not lost, however. People can surprise you and do the kindest things for others. It’s just that when it comes to their daily routines, that “other” concept can become hidden. How can boards manage rules and regulations effectively? Make sure each rule is feasible, simple, specific, measurable, and enforceable. Does the rule make sense? If not, why are you trying to enforce this? If someone jumps over the patio railing to access the condo through the patio doors Feasible.

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instead of entering through the front door, would preventing that be a feasible rule? That’s akin to saying you have to enter the building through the back door instead of the front. Why bother with this? So long as the bylaws show patios as limited common elements, any subsequent damage from this practice would conceivably be paid for by the homeowner. If you need a lawyer to interpret your rule, it’s too complex. If it’s too complex, homeowners won’t be able to follow it, let alone understand it. For example, stating “owners need to be quiet whenever someone is sleeping unless they know they’re awake and always for each of the holidays and weekends” is way too complex, and, of course, not even feasible. It would be better to simply follow whatever the city’s noise ordinance stipulates. That way you have a specific time period people can adhere to. Simple.

Dues are to be paid by the first of each month. If received after the 10th day of the same month, a late fee of $20 will be charged for that month and for every subsequent month in which the dues are late. Pretty specific. A homeowner knows the exact parameters and consequences of non-compliance. Is your assessment policy this specific? Specific.

Measurable. Do homeowners know when

they’re in non-compliance? Let’s say that when there is a minimum snowfall of 2”, vehicles must be moved to a plowed spot after the snow plow makes its first pass. A visual cue and the weather reports will confirm the 2” designation. Although it can be difficult to know exactly when the plow will come, it’s easy to figure out when it has been there. If the rules say a vehicle in non-compliance can get towed, then it should come as no surprise when that happens.

Since board members typically are the rule enforcers, it makes no sense to create rules that irritate others simply because they aren’t enforced or are incapable of being enforced. Fairness matters. Homeowners may not say anything, but they notice when rules are misapplied or not applied. So long as rules are enforced fairly and consistently, there likely won’t be much pushback to the board. Yes, some people try to push through boundaries. It’s in their nature. Rein them in, and at least they’ll know that rules mean something and aren’t arbitrary. Enforceable.

Consider this example. A homeowner suggests a loading/unloading only parking spot by the front door. No permanent parking is to be allowed there. Is it feasible? On its face, it might seem to be helpful to everyone. Is it simple? Perhaps. Specific? Maybe 15 minutes is allotted for that loading spot. Measurable? Perhaps, although someone would have to time each parked vehicle from start to finish. Therefore, enforceability would be extremely difficult. Who has the time to monitor such a thing? We all know how the honor system works. It doesn’t. Common sense may not be all that common. But, the procedure for creating rules should be. If a board gets too rule-happy, members will be stuck with endless enforcement issues. If people keep complaining about a rule, it may be a sign to look closer at its legitimacy. Or, if legitimate, it’s time the board made it clear the rule isn’t changing. Otherwise, homeowners will have you endlessly modifying everything. In that type of situation, it would be difficult to even get people to want to serve on the board.

Building Better Business Relations By Bob Mac Donald, CMCA, AMS, PCAM

arly in my community association management career, I learned the importance of building better business relationships with vendors while managing a condominium complex in the Florida Keys. Hurricane Andrew was my teacher. In 1992, after the storm had passed and rebuilding was needed, vendors that I had used often were nowhere to be found; many of them abandoned their local clients in the Keys for the fortunes that could be had in Homestead, FL. Those who did not recognized the importance of maintaining a relationship with clients like the association I managed because of loyalties that had been established over time. The lessons learned in 1992 have helped me forge longlasting relationships with vendors and/or other clients here in Minnesota. This year at the CAI National Conference I took the opportunity to discuss the “loyalty issue” with a number of attendees and was surprised at the frustration expressed by a number of vendors and association managers over the lack of loyalty or sound business relationships in today’s marketplace; thus my burning desire to write this article. A prominent author once stated: “Relationships are the fuel that feeds the success of your business.” With this in mind, let me share the following lessons I learned over time from those who are much wiser than me. Building and maintaining relationships and working well with others is valuable currency in today’s business world. According to the Center for Creative Leadership (CCL), “people who have the ability to build and maintain strong, lasting relationships are more effective and achieve greater success than those who ignore or struggle with this competency.” Whether you recognize it or not, we who wish to serve our clients with excellence need to know how to build and maintain lasting relationships. Too often, we get caught up in the details of the kinds of products or services we are selling to notice how critical it is to build relationships. Specifically, in our line of work, building strong, long-lasting relationships between vendors, association managers and management companies is crucial. Clearly, in today’s marketplace there is a need to have longterm customers and good vendor relationships that will carry us through challenging times or the tight deadlines we all face. This includes the need to share struggles, resources and 24

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best practices that can really give us an edge. Darren Dahl, a contributing editor to various business magazines, puts it this way: “The reality is that business relationships are just like any other relationship. They require some effort to maintain and they must be mutually beneficial. As in any relationship, you must be willing to give, share and support, not just take or receive.” Perhaps the habit that I rely on the most in my attempt(s) to build and maintain better business relationships with a number of people and/or organizations is my continual desire to connect and contact people who don’t have an immediate need. In other words, stay in touch even when there is no immediate need to “conduct business.” It has been suggested that “Social media makes the whole process much easier and quicker, so follow your contacts on Twitter and LinkedIn. A short comment can really go a long way and people appreciate it because it gives them an opportunity to engage.” Although this may be valid, I have found that a phone call or visit to a vendor’s office serves me well as I work on relationship building. For example, I asked a contractor to edit and comment on this article even though he currently does not service any of my clients. But, in time, as we build a relationship, I hope to do so. Another way to build better business relationships is to reciprocate when someone reaches out to you! One of the most frustrating things for me is dead silence. In other words, when I reach out to a contact and don’t get a response I am frustrated. Perhaps you have felt the same way on occasion. Even if you don’t have the time to respond to something or deal with a request right away, make sure you find some way to reciprocate. Whether you’re a giver or a receiver in a particular instance, take time to remember what it’s like to be on the other side. Too often we are simply users and not relationship builders. This benefits no one. Relationship building is a critical leadership skill, and one that can be learned. While it is intuitive to some, for many it is a challenge because each relationship is unique and situational, and requires adjustment, compromise, and negotiation. With this in mind, I would like to share the following steps to building successful and sustained relationships that were published in an online article in 2009. 1 1. Be authentic. First, know yourself. Focus on becoming the very best person you can be. Be the best partner. Be aware of your impact on others. Be respectful. 1 The Courageous Leadership Newsletter: Building Better Business Relationships, Hughes, Brenda M. ED, Jan/Feb 2009

2. Be invested in THEIR success. Make the relationship a priority. Demonstrate your commitment. Tell them. 3. Focus on WE. Move from “I have all the answers” to “Together, we have all the answers.” 4. Don’t keep score. Do what you say you will do. Follow through. Be consistent. 5. Listen with your ears and mind wide open. Be open to hearing what the other person is really saying—not simply the words, but the emotions, concerns, fears. Seek first to understand, then to be understood. 6. Share information. Communicate well and communicate often. Keep others informed of any changes that may impact them and their expectations.

We started Community Advantage because we knew condominium, townhouse and homeowners associations had a unique set of financial needs. Fifteen years later, we are one of the Midwest’s leading industry providers.

7. Be human. If you make a mistake or misjudgment, admit it quickly.

That’s because, while other financial companies may

8. Speak with courage. With a genuine concern for the relationship, be direct and honest. It’s not about being blunt but sharing your thoughts in a way that opens up possibilities. Provide feedback to create value. And listen to feedback.

tailor services for each individual association’s needs. But,

9. Appreciate others. Look for what is going well and tell the person. Understand your interdependence on each other. Enjoy your time together.

THAT’S PART OF OUR STORY.

10. Stay connected. After a project or an assignment ends, stay in touch with this new relationship during the year. Consider making a quick call or sending an article you think the person would find interesting. Simple but very powerful.

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offer some services to these groups, this is our focus. We understand no association is the same, so we work to we also ensure that each group has access to a full suite of financial resources, including reserve investments, lending solutions and treasury management services. Our Trusted Industry Experts have the experience and dedication to offer an unmatched level of customer service.

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“What Is an Association, Anyway?” By Nancy T. Polomis, Esq., Hellmuth & Johnson, PLLC

rom time to time, I hear members of an association referred to as “tenants,” and hear of members’ requests to an association to fix an appliance or clean a carpet in their homes. Often, such statements are made by owners new to an association—often those coming from apartment-style living. Those kinds of statements make me wonder whether there is a fundamental misunderstanding of what a homeowners association is—and what it is not.

What an Association Is—and Isn’t—Legally Speaking and Otherwise

the association has foreclosed upon). Although an association enforces the community’s governing documents, it is not “Big Brother,” and is not tasked with resolving disputes between residents unless there is a violation of the governing documents at issue. An association is not a policing agent. While an association would likely cooperate in a police investigation, it would not likely conduct its own investigation of criminal matters or interfere in the police’s investigation of such matters.

From a legal perspective, nearly all homeowners associations are nonprofit corporations created under Minnesota Statutes Chapter 317A (or its predecessor, Chapter 317). Associations are, therefore, subject to the statute under which they are created. If an association was created as a common interest community under the Minnesota Common Interest Ownership Act (MCIOA), then that association is governed by both MCIOA and Chapter 317A. An association is the governing body that typically has the authority to ensure the community is operated in accordance with the governing documents affecting the homes in the association. An association is a group of homeowners with common goals, including maintaining the aesthetic uniformity and architectural character of their homes and maintaining the cohesiveness of their community. At the core, members of a homeowners association are neighbors, pure and simple. A homeowners association is not a landlord. It generally does not own units in the community (with the exception, perhaps, of a caretaker unit or units that 26

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What an Association’s Responsibilities Are—and Are not A homeowners association is responsible for maintaining the community in accordance with its governing documents. Although those responsibilities can and do differ among communities, generally speaking, condominium associations are responsible for maintaining the grounds, the exterior of the building, and the common hallways and shared spaces (lobby, community room, recreational facilities, etc.). Townhome associations are generally responsible

for maintaining common areas (which may or may not include individual yard areas), recreational facilities, lawns and landscaping and some portions of the exterior of each townhome. An association is generally not responsible for maintaining the interior of each home. The homeowner is generally responsible for maintaining plumbing, heating, air conditioning and electrical systems within the home, as well as structural components within the home. Flooring, cabinetry and wall coverings are generally considered part of a condominium unit (and nearly always part of a traditional townhome), and are the owner’s responsibility to maintain. Townhome and condominium associations are usually responsible for insuring some portion of each home in their communities; homeowners also have a responsibility to maintain appropriate insurance coverage. Bear in mind, however, that maintenance responsibilities are not necessarily the same as insurance responsibilities. While some condominium associations’ insurance coverage may extend to flooring and cabinetry (even though the association does not maintain those items), some associations’ coverage does not. Check with your board or management agent to ensure that your personal coverage and the association’s blanket coverage dovetail to provide full coverage in the event of a loss—no coverage overlaps, but, perhaps more important, no gaps in coverage. The association is responsible for enforcing the covenants and rules so as to enhance the community living environment for its residents. Owners are responsible for being aware of those covenants and rules and for abiding by them—and for ensuring that their guests do the same.

“Who You Gonna Call?” It is important to understand the roles of the association and the role of an association member so that members know when it’s appropriate to contact the association’s board or management and when it’s appropriate to address the situation themselves. If the issue involves maintenance of the exterior of the home and it’s unclear who is responsible for that maintenance, contact the board or management for clarification. If the issue involves maintenance of the interior of the home, it’s likely that such maintenance is the homeowner’s responsibility. If there is an apparent violation of the governing documents, such as excessive noise, residents are encouraged to first try to resolve the matter directly with their neighbors. Similarly, if there is a dispute between owners, those owners should attempt resolution of the issue

directly; neither owner should expect the association to step in and fix the problem. Where appropriate, public safety personnel (police) should be involved. Residents should, however, also let the board or management know of the situation in the event it becomes a chronic problem. Associations are responsible for enforcing governing documents. Associations are not responsible for “refereeing” disputes between residents. Associations often provide information to new members about who manages the community and what utility companies service the community. Associations may also want to consider offering information about what it means to live in an association and the rights, privileges and expectations of both the association and the resident. Knowing what an association is—and isn’t—can be of great aid in learning the rights, responsibilities and joys of living in a homeowners association.

Contact John Russo, Ph.D. Reserve Specialist 952-944-7137

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Ask the Attorney by

This column is comprised of questions that have been posed to me by homeowners, property managers and related professionals regarding legal issues that they have encountered with respect to their associations. Discussion of these questions, as well as prior questions, can be found on the CAI-MN LinkedIn page: www.linkedin.com/groups?gid=1769135

A unit in our condominium association is being sold and the seller wants the association to mitigate radon that was found in the unit. Do we have to do that? Do we need to notify the other units about the radon? This is a question that is coming up more frequently for associations. Effective January 1, 2014, the Minnesota Radon Awareness Act requires that sellers of real property provide disclosures that had not been required previously. As you can discern from the name of the act, the disclosures relate to the topic of radon. Radon is an odorless and tasteless radioactive gas that has been linked to the causation of cancer (most often lung cancer). According to the Environmental Protection Agency, radon comes from the natural breakdown of uranium in soil, rock and water. Radon typically moves up through the ground to the air above and into a home through cracks and other holes in the foundation, areas around service pipes, and even through the water supply. The entering radon becomes trapped inside the property where it can build up to unsafe levels. The Minnesota Radon Awareness Act requires that all sellers provide, prior to signing a purchase agreement: 1) the results of any radon tests that have occurred on the property; 2) the most current records and reports pertaining to radon concentrations in the dwelling; 29

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3) a description of any radon concentrations, mitigation or remediation; 4) information regarding any radon mitigation system; 5) a radon warning statement; and 6) a copy of the Minnesota Dept. of Health “Radon in Real Estate Transactions” guide. While radon testing is not required when selling a property in Minnesota, many buyers are making it a condition of the sale. If radon is found to be at an elevated level, buyers will often require mitigation prior to purchasing the property, or a reduction in the purchase price to allow for a system to be installed by the new owner. Mitigation systems can vary in style, but the result intended is the same — prevent radon gases from accumulating in the living spaces. While this can be fairly straightforward in single family homes, it becomes more complex when the subject property is a condominium or townhouse unit due to issues of ownership and control over the building and architectural restrictions.

Condominiums In a condominium, the association owns and maintains everything outside of the individual units. The units are usually defined as the the interior, unfinished surfaces of the perimeter walls, floors, ceilings and doors. In order for an owner to install a radon mitigation system, it may be necessary for a change to be made to the common elements. As condominium declarations generally prohibit modification of the common elements without approval of the Board, a unit owner should have a proposal prepared detailing the system that they wish to install and how it will affect the common elements. The association should be sure that the installation will be done by a professional who is licensed and insured, that the aesthetics of the outside vent fit in with the building characteristics, that the plan avoids roof penetrations where possible, and that it is clear who will be responsible for the maintenance of the system after installation. The cost for the system, including the

Nigel H. Mendez, Esq., Carlson & Associates, Ltd.

changes to the common elements, should be borne by the unit owner.

Townhomes For a townhome, the process will usually be similar, provided that your association has architectural restrictions in place that require approval of the board or an architectural committee prior to making changes to the outside of the structure. As with a condominium, the unit owner will be responsible for the cost of purchasing and installing the abatement system.

Alert the Neighbors? The association does not have any obligation to notify other unit owners that radon gas has been found in a unit. However, it may be wise to do so. If neighboring units test and discover radon, it may be possible to install a mitigation system that can span multiple units. This will likely result in a less expensive installation, on a per unit basis, and only one exterior vent may be needed.

Common Areas? If the association discovers radon gases at an elevated level in the common area, the cost of the necessary mitigation would be a common expense paid by the association. This situation is more likely to arise in an association with a party room, exercise room or guest suite. There is no legal requirement for an association to test for the existence of radon, but if neighboring units are discovering elevated levels, it would be wise for associations to investigate. To have a question answered in a future article, please email it to me at nmendez@carlsonassoc.com with the subject line “Ask the Attorney.” While I can’t promise that all questions will be answered, I will do my best to include questions that have a broad appeal. Questions will also be answered by other attorneys practicing in this area of law. The answers are intended to give the reader a good understanding of the issue raised by the question but are not a substitute for acquiring an opinion from your legal counsel.

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