‘Home sweet home’ can become un-sweet very quickly indeed when the physical environment you’ve worked hard to create becomes a source of environmental toxicity. Chemicals, smoke, pet dander, and mold — along with other allergens and irritants — can make a person’s life miserable. If you live in a private home, the solution is clear: get rid of the cat, remove the plant or bush, and use environmentally-safe and hypoallergenic products for cleaning and exterminating. In a multifamily residential community such as a co-op or condominium, however, eliminating those irritants can be more difficult. The pet may belong to your neighbor; the landscaping choices may not be your domain; and the chemicals used by the exterminator may be out of your control.
But difficult or not, condo and co-op boards have just as much responsibility to address — and ameliorate, if at all possible — residents’ environmental sensitivities, as they do a person’s need for a wheelchair ramp or large-print meeting minutes.
Are Environmental Irritants a Cause for Disability?
According to Ellen Shapiro, a principal at the law firm of Goodman, Shapiro & Lombardi, which has offices in Massachusetts and Rhode Island: “Multiple chemical sensitivity in itself is considered a disability. The Department of Housing and Urban Development (HUD) administers all these issues. They take the position...that what they refer to as ‘environmental illnesses’ are legitimate. The definition of a disability under HUD — and that’s the definition we use — is a disability that substantially limits a major life activity. HUD rules apply nationwide. States may expand upon them, but not diminish them.”
The legal framework under which we consider disabilities is further defined under the Americans With Disabilities Act (ADA), explains Mark Hakim, Of Counsel at New York-based law firm Schwartz Sladkus Reich Greenberg & Atlas. “The Americans With Disabilities Act, as amended from time to time, is a federal law protecting those with legal disabilities,” he says. “Under the ADA, a person with a disability is someone who has a physical or mental impairment that seriously limits one or more major life activities, or who is regarded as having such impairments. [It] includes physical or mental impairment that substantially limits one or more of a person’s major life activities such as breathing, seeing, hearing, walking, sitting, standing, sleeping, caring for yourself, lifting, or learning. It also requires having a record of an impairment and/or being regarded as having an impairment. Asthma and allergies are generally considered disabilities under the ADA. Respiratory and other conditions caused or exacerbated by smoke and chemicals may also constitute a disability under the ADA.”
Lisa Magill, Of Counsel at Kaye Bender Rembaum, which has offices in Pompano Beach and Palm Beach Gardens, Florida, points out that the criteria for designating an impairment are “very subjective, as it’s defined by a medical professional of the person seeking redress.” This factor in determining disability can put a great deal of uncertainty on the co-op or condo association dealing with an issue of environmental sensitivity.
Key among the considerations to be taken into account if a resident is requesting accommodations to address an environment-sensitive health condition is whether or not what they’re asking for can be considered ‘reasonable’ under the law. Sima Kirsch, a community law attorney in Chicago, says: “Although the special accommodation requested must help the owner overcome the limitations that arise when one or more of their significant life functions are impacted, the request will unfortunately not be considered reasonable if the application imposes undue financial burden upon the HOA.
“Nevertheless,” she continues, “if there is no impact on the association or others, it would be a discriminatory act if the HOA refused to allow the owner to perform modifications [or other preventive measures] at that owner’s cost. If modifications are needed to fully use and enjoy their premises…it’s best for the board to permit [the alterations].”
Secondhand smoke is a known health hazard, and has become a major issue in both residential and commercial settings. Smoking is banned in many public and semi-public places by local ordinance. In the governing documents of many condominium and cooperative communities, smoking is prohibited in public or common areas. In New York City, a local ordinance was recently enacted requiring all residential buildings — condo, co-op or rental — to post a property-wide smoking policy. Shapiro tells us that smoking, while prohibited in common areas in most associations, is still permitted in individual units in Massachusetts.
According to Scott Piekarsky, Managing Member at the law firm of Piekarsky &
Associates, LLC, in Wyckoff: “If someone is affected in their unit by conduct in another unit, then for good or bad, that problem is the association’s problem. Smoke is obviously traveling through limited common elements — which the association is responsible for — so they’ve got to address it,” or risk costly, acrimonious litigation.
“Furthermore, in New Jersey condominiums,” says Piekarsky, “ there’s a state legal requirement that residents be offered alternative dispute resolution (ADR) to resolve conflicts [before litigation is permitted to move forward]. Simply, if there is a dispute between unit owners, or an owner and the association, the association must provide ADR mechanisms to resolve the dispute. Automatically, the association is in the loop.”
Shapiro points out that resolving the issue of an allergen or other environmental irritant comes down to a matter of who has jurisdiction over the means by which the irritant is being transmitted throughout the building. “It can be a question,” she says, “of whether the association manages the HVAC system — which typically it does. Can they put in filters? [The board’s] best course of action is to take whatever action they can within their power; whatever is beyond the capacity of the association to do must be sent back to the owners involved in the conflict to be worked out between them.”
For many residents, pets are an important part of their lives, whether it be a dog, cat, or goldfish. For others, neighbors’ animal friends can be the source of much sniffling and teary eyes, or may even aggravate more serious conditions like asthma or emphysema. Obviously, people with serious animal allergies or sensitivities to dander or pet hair should opt not to keep pets in their unit. But what about those residents with the most severe sensitivities, for whom pet dander and odor, like secondhand smoke, can pass from unit to unit through HVAC systems?
Ordering pet owners to give up their furry or feathered family members clearly isn’t an option — at least not in buildings or HOAs whose governing documents allow pets. Speaking of her own state of Florida, Magill says: “If you don’t have a restriction in your documents that prohibits pets, then under the Florida State Condominium Law, you have no right to tell anyone to get rid of their pets.” That said, however, “the association does have an obligation to make on accommodation — or even allow a physical alteration to the premises to ameliorate the impact of [an allergic resident’s] disability.”
Co-op Versus Condo
Hakim points out that in New York, where there are numerous co-op buildings, the circumstances may be a bit different due to the relationship between the co-op shareholder, who lives in the building under a proprietary lease; and a condo owner, who is a member of an association and an owner of real property in his/her own right.
“In a co-op, due to the nature of the legal relationship between shareholder and the cooperative corporation, the board of directors has a legal obligation under an implied warranty of habitability to ensure that a [resident’s] apartment is safe and livable at all times,” says Hakim. “Irrespective of whether any claimed odor-related illness rises to the level of legal disability (for which the board would have to work towards making reasonable accommodations), the board must ensure that no condition is created or permitted that would breach the complaining shareholder’s warranty of habitability.”
In the case of drifting pet dander, for example, Hakim says: “That would include taking measures to ensure that any neighboring cats — including their dander and odor — are not materially and adversely affecting the other occupants of the building. The board will want to investigate the claim and work with the parties to find resolution. In either event, a determination should be made confirming the alleged conditions, that they are the cause [of the complaining residents’ symptoms], and that [those symptoms] rise to the level of disability under the ADA and/or are sufficient to constitute a breach of the warranty of habitability or proprietary lease. Under most proprietary leases, a shareholder is not permitted to allow unreasonable odors to escape their apartment, so if odors — caused by cats, for example — are escaping the apartment, it could constitute a breach under the proprietary lease.”
Hakim goes on to say that “in a condominium, where there is no proprietary lease and implied warranty of habitability, the association’s obligations — if any — would generally depend on whether the dander and odors are directly related to the cats, and whether the alleged sickness is so severe that it would constitute a disability under the ADA. If so, then the condo’s board of managers would have to work towards finding a reasonable solution — though generally speaking, in the case of both a co-op and condominium, they are not required to demolish, materially change, or build something from scratch. Thus, possible solutions (short of trying to have the offending animals removed) may include adjusting the airflow in an apartment, sealing off gaps, or requiring the adjacent apartment owner to install HEPA [high-efficiency particulate air] or similar air filters.”
Another potential hot-spot is the use of chemicals used indoors to control or eradicate insects and rodents, and outdoor pesticides to maintain landscaping. Many residents claim the chemicals used adversely affect them, their kids, or their pets. Shapiro points out that in today’s ecologically-conscious world, many associations request — and many exterminators use — environmentally-friendly chemicals. If a resident has a problem with even those, that resident should be notified in advance that the exterminator is coming, so they can make arrangements for themselves and their family (and their pets, if necessary) to be away from the building until the fumes dissipate — usually just a few hours’ time. “I don’t think we have to fail to protect all the other owners from vermin,” Shapiro says, “because someone’s pet doesn’t like pesticides.”
In certain situations, it’s obvious that a condominium association or a co-op corporation is obligated to remunerate any damage caused by the growth of mold on their property. In the case of Florida, for example, such situations usually fall under what is known under Florida law as a ‘casualty loss’ — in other words, the result of a natural disaster like a hurricane. Clearly, the association and their insurer will do everything they can to eliminate mold from the property after a flood or other catastrophic event.
But what about other potential mold problems not caused by a natural disaster? According to Magill: “If one has mold in their unit, it’s their responsibility. If the portion of say, a pipe, that is the cause of the mold is in the association’s common area, it’s the association’s responsibility. That is without regard to liability factors. In Florida, the law has changed so that the association insures the entire building; structure, internal plumbing, windows, doors, AC units. This enables the association to rebuild after a casualty loss, even if the unit owner decides not to step up and rebuild their apartment interior.” She adds that it’s completely different for an HOA. In an HOA, unless the units are physically connected — think townhouses — “the owners are responsible for everything.”
In the final analysis, says Shapiro, “be reasonable. If an association can make an accommodation, they should.” As with so many issues in co-op, condo and HOA living, after the incident, you’re still neighbors and you have to live together and with each other.
A J Sidransky is a staff writer/reporter with The New Jersey Cooperator, and a published novelist.