July 2017 Community Associations Newsletter

July 2017 Community Associations Newsletter July 11, 2017 Fairfax County Seeks Your Input on Short-Term Property Rentals By: Marla J. Diaz, Esq. Fairfax County Seeks Your Input on Short-Term Property Rentals [Link to Online Survey Below] The Virginia General Assembly passed Senate Bill 1578, which gives localities the authority to establish standards and require registration of Short-Term Rentals (defined as the rental of residential space that is intended for occupancy for fewer than 30 consecutive days). The regulations affect short-term rentals through online services such as Airbnb, Craigslist, VRBO and other similar services and may be prohibited by your association s restrictive covenants. The Board of Supervisors for Fairfax County has created a working group to draft zoning regulations for Short- Term Rentals in the County and to establish a registry. The working group is seeking input from community members who have a vested interest in this issue. Below is a link to Fairfax County s online survey, which will be available until August 31, 2017: http://www.fairfaxcounty.gov/dpz/short-term-rentals.htm Who should be interested? Homeowners, residents, volunteer Board members, anyone with a stake in any residential condominium or homeowners association located in Fairfax County who may be impacted by short-term rentals in the community. Why should I be concerned? It is imperative that any zoning amendments and regulations adopted by the County clearly state that residents may be subject to additional rules or restrictions relating to the short-term rental of residential property imposed or enforced by a condominium or homeowners association. Without such clarification, there is a greater likelihood that the County s ordinance will lead to confusion, an increase in covenant violations relating to prohibited short-term rentals, and result in the need for enforcement action by common interest community associations. Most condominium covenants restrict short term rentals as many lenders and the FHA certification process prohibit rental of units for less than six months or use of units as hotels. These restrictive covenants are important, therefore, to make sure that financing is available for purchasers in a condominium. While Fairfax County allowing short term rentals does not make these restrictive covenants unenforceable, owners may be more likely to try and contest the applicability of the covenants if Fairfax County allows short term renting. It is important, therefore, that any short term rental zoning ordinance states clearly that owners must check with their condominium or homeowners association prior to renting because the association may have more restrictive limitations on short term rentals. If you have questions regarding this issue, you may contact Fairfax County at 703-324-1314, TTY 711, or you may email your comments or concerns to: ordadmin@fairfaxcounty.gov. The public hearing schedule for this issue has not yet been scheduled. If you have any questions for the attorneys at Whiteford, Taylor & Preston, LLP, regarding this or any other issue, please feel free to contact us at any time.

Maryland s High Court strikes Condominium s Rule Restricting Access to Common Areas By: Anthony Clark, Esq. On June 23, 2017, the Maryland Court of Appeals, Maryland s highest court, ruled against a condominium association in the case of Elvaton Towne Condominium Regime II, Inc. v. Rose, No. 33, Sept. 2016 in its attempt to enforce a rule that restricted an owner s privileges in the condominium and right to access to their interest in the condominium property due to their failure to pay delinquent assessments. The subject rule was promulgated by the condominium s board through its rulemaking authority. The Court reviewed the rule under the Maryland Condominium Act (the Act ) and provided [r]estricting a condominium unit owner's access to communally-held property is a significant infringement of the owner's property rights so significant that the General Assembly found it appropriate to require that such a restriction may be authorized only through a provision in the declaration, as evinced by the text of 11-108(a) of the Act. Here, the Court affirmed both lower courts (the Circuit Court for Anne Arundel County and the Maryland Court of Special Appeals) rulings that the restriction of access to communal property was a indeed a taking by confirming that the condominium s restriction imposed upon the owners adversely affected their property interests in two of the common elements of Elvaton that other residents of Elvaton continued to enjoy: the parking lot and the pool. The Opinion further provides that the Board exceeded its authority under 11-108(a) of the Act and the Declaration in stating that the Declaration does not provide for an exception that would restrict access to the common elements due to an alleged failure to pay fees. Thus, the suspension-of-privileges Rule is invalid as beyond the Council's power. Impact for Associations: The Court made it clear that condominiums may still enact reasonable rules and regulations in accordance with the Declaration and Bylaws, and applicable statutes (the Maryland Condominium Act and Maryland HOA Act). However, the Elvaton case makes it more difficult for condominiums to use rule making authority to restrict of privileges and access to community property as an enforcement tool for collection of delinquent assessments and deterrent for future violations and non-payment of assessments. Recommendation: How then do associations protect themselves from liability under this new case? A strategy to avoid this conundrum is to review and possibly amend governing documents, collection, parking and enforcement policies and proceed cautiously in making sure that an Association s day-to-day enforcement mechanisms are in line with its governing documents and applicable statutes. We also recommend educating board members and management about this case law. If you would like our office to review your governing documents and policies or schedule a conference to discuss these issues for your association, please feel free to contact any of our Maryland community association attorneys. How does this decision affect neighboring jurisdictions? Maryland law is persuasive in these neighboring jurisdictions. Currently, the authority to restrict privileges and access to communal property due to non-payment of assessments in these jurisdictions is as follows. Delaware: by Chad J. Toms Under 25 Del. C. 81-302(a)(11), which is applicable to many but not all* common interest communities in Delaware, an Association may: suspend any privileges of unit owners, other than the right of a unit owner to vote on any matter submitted to a vote of unit owners, or services provided to unit owners by the association (other than those necessary for the habitability of the owner's unit) for non-payment of assessments; may impose charges for late payment of assessments; and, after notice and an opportunity to be heard, may levy reasonable fines for violations of the declaration, bylaws and rules of the association. This statutory provision provides an Association with broad powers to suspend privileges for unpaid assessments so long as the suspended privilege is not related to a unit owner vote or a service necessary for the habitability of a unit. *The application of this section of the code requires an in-depth analysis, so if you have questions please contact your attorney.

District of Columbia: by Roberto Montesinos While 42-1903.08(11) of District of Columbia Condominium Act ( D.C. Condominium Act ) and the D.C. Condominium Act as a whole do not speak directly on the issue of suspension of privileges, it does seem that the intent of the statute is to impose some form of due process on condominium associations prior to the imposition of a sanction. For that reason, we find it advisable for condominium and homeowners associations in the District to adopt and maintain enforcement policies that specifically set forth the potential for suspension of an owner s privileges in the event of a violation of the governing documents. Collections policies may also be amended to include provisions regarding the suspension of privileges in the case of a unit owner delinquency. Any policies that are adopted by a board should be regularly disseminated to the membership so that owners are aware of the potential sanctions they face in the event of a violation and/or delinquency. For a more thorough discussion of restriction of privileges in DC, see: http://www.wtplaw.com/newsletters/2014/04/community-associations-update-april-2014. Virginia: by Kathleen Panagis Associations previously interpreted the Virginia Property Owners Association Act and Condominium Acts to mean that an association could suspend privileges if it had that authority under its rules and regulations. However, two cases tend to suggest that an association is not permitted to suspend an owner s privileges simply by passing rules and regulations. Farran v. Olde Belhaven Towne Owners Association and Shadowood Condominium Association, et al. v. Fairfax County Redevelopment and Housing Authority opinions are not directly on point as these cases deal with covenant charges and not suspensions. Nevertheless, these cases tend to support the conclusion that an association can only take actions that are specifically allowed to it by its Governing Documents. Before suspending an owner s privileges, associations should scrutinize their Governing Documents to verify they have the requisite authority to do so. Without the presence of such authority, associations face potential risk. Should an association be in the fortunate position of having Governing Documents that do contain express language allowing it to suspend an owner s privileges, the association, at a minimum, must follow the statutory due process procedures that are imposed by the current versions of the Virginia Property Owners Act and Condominium Act. Barbecues, Grilling, and your Community Association: Local Rules You Need to Know By: Steven Dunn, Esq., Whitney Greer, and Abigail Kuhn Summer is officially here and we just celebrated the Fourth of July. Along with pools and other activities, grilling and hosting barbecues are two of America s favorite summer pastimes. These activities present great opportunities for owners to get outside on their own properties or the common elements/areas, for the association to host social gatherings, and for residents to enjoy themselves. Community associations, their boards of directors, and their managers, however, need to be aware of the restrictions contained in state and local law, and their respective community association s governing documents relating to grilling. Most often, these restrictions relate to fire safety. To ensure compliance with legal obligations and to keep residents and their guests safe, board members and managers must understand and appreciate these restrictions. It is important for owners and residents to understand these restrictions, too. Whiteford, Taylor & Preston, LLP serves community associations throughout Delaware, the District of Columbia, Maryland, and Virginia. Each of these jurisdictions has its own fire prevention code. Many of the localities within the jurisdiction either adopt the statewide code, or do so with certain revisions. With some exceptions, localities that adopt and revise a statewide code tend to have more restrictive or extensive fire prevention regulations than what is required by the state. To assist your community association with its grilling questions, we have compiled a list of the local laws or ordinances related to grilling in select local jurisdictions. DELAWARE Statewide Delaware has adopted the National Fire Protection Association Fire Code, NFPA 1 (2015). 707-7-1.0 DEL. ADMIN. CODE 1.1 (2017) ( Delaware State Fire Prevention Regulations ). Outdoor grilling: No hibachi, grill, or other similar devices used for cooking shall be used or kindled on any

balcony, under any overhanging portion, or within 10ft of any structure. No hibachi, grill, or other similar devices used for cooking shall be stored on a balcony. Storage of flammable fuels: Outside storage of combustible materials shall not be located within 10ft of a property line and shall not be stored beneath a building unless the building is specifically constructed for that purpose. Storage of cylinders within a residential building, including the basement or any storage area in a common basement of a multiple-family building and attached or detached garages, shall be limited to cylinders each with a maximum water capacity of 2.7 lb. and shall not exceed 5.4 lb. aggregate water capacity per each living space unit. Exceptions: Provisions do not apply to one and two family dwellings. Equipment permanently installed in accordance with its listing, applicable codes, and manufacturer s instructions shall be permitted. Kent This jurisdiction follows the Delaware State Fire Prevention Regulations. *The city of Dover has adopted some different regulations. Outdoor grilling: Recreational barbecuing shall be prohibited on any balcony or under any overhanging portion or within 15 feet of any structure, except that the use of electrical ranges or electrical grills shall be permitted. Dover, DE Mun. Code 46.5(e)(1). Storage of flammable fuels: In apartment buildings, condominiums, or any other multifamily residential dwelling of three or more units by any other name, the storage of propane tanks inside units or on balconies is prohibited. Dover, DE Mun. Code 46.5(e)(1). New Castle This jurisdiction follows the Delaware State Fire Prevention Regulations. Sussex This jurisdiction follows the Delaware State Fire Prevention Regulations. DISTRICT OF COLUMBIA DC D.C. has adopted the International Fire Code (2006) with certain revisions. D.C. CODE MUN. REGS. tit. 12H F-101H et seq. (2008) ( D.C. Fire Prevention Code ). Outdoor Grilling: Charcoal grills on balconies of any. Grills with gas burners or tanks are not allowed on rooftop terraces or on combustible balconies. Grills with gas burners or tanks are not allowed within 10 feet of combustible construction. Storage of flammable fuels: LP-gas burners with tanks shall not be located on rooftop terraces, combustible balconies or within 10 feet (3048 mm) of combustible construction. Storage of cylinders within a residential building, including the basement or any storage area in a common basement of a multiple-family building and attached or detached garages, shall be limited to cylinders each with a maximum water capacity of 2.7 lb. and shall not exceed 5.4 lb. aggregate water capacity per each living space unit. Exceptions: Single family homes Where buildings, balconies and decks are protected by an automatic sprinkler system. Natural gas grills approved and installed in accordance with the Construction Codes, provided that such grills are installed on a non-combustible surface and located 10 feet (3048 mm) or more from any combustible construction. MARYLAND Statewide Maryland has adopted the National Fire Protection Association Fire Code, NFPA 1 (2015). Md. Code Regs. 29.06.01.01 et seq. (2017) ( State Fire Prevention Code ). See also MD. CODE ANN., PUB. SAFETY 9-1001 (2017). Outdoor grilling: No hibachi, grill, or other similar devices used for cooking shall be used or kindled on any balcony, under any overhanging portion, or within 10ft of any structure. No hibachi, grill, or other similar devices used for cooking shall be stored on a balcony. Storage of flammable fuels: Outside storage of combustible materials shall not be located within 15ft of a property line and shall not be stored beneath a building unless the building is specifically constructed for that purpose. Storage of cylinders within a residential building, including the basement or any storage area in a

common basement of a multiple-family building and attached or detached garages, shall be limited to cylinders each with a maximum water capacity of 2.7 lb. and shall not exceed 5.4 lb. aggregate water capacity per each living space unit. Exceptions: Provisions do not apply to one and two family dwellings. Equipment permanently installed in accordance with its listing, applicable codes, and manufacturer s instructions shall be permitted. Allegany County Anne Arundel County Outdoor grilling: This jurisdiction has adopted the State Fire Prevention Code with respect to outdoor grilling, but explicitly permits electric grills or similar appliances where no open flame is produced. Anne Arundel Cnty. Mun. Code. 10.11.7. Storage of flammable fuels: This jurisdiction has adopted the State Fire Prevention Code with respect to storage of flammable fuels, except that flame producing cooking devices are prohibited within 15 feet of any structure. Anne Arundel Cnty. Mun. Code. 10.11.7. Baltimore City Outdoor grilling: Charcoal burners and other open-flame cooking devices may not be operated on combustible balconies or within 10 ft. of any combustible construction or property line. Baltimore City Mun. Code 308.1.4. Storage of flammable fuels: Storage or use of LP gas containers of any size in assembly building or in any assembly are of a building is prohibited. Baltimore City Mun. Code 308.3. Baltimore County Outdoor grilling: Except for 1 and 2 family dwellings, no hibachi, gas fired grill, charcoal grill, electric grill, deep fryer, fuel fired heating or cooking device, or other similar devices used for cooking, heating, or any other purpose, can be used, stored, or kindled on any balcony or on any patio, under any overhanging portion of the structure, or within 15 ft. of any multi-family occupancy. Baltimore Cnty. Fire Prevention Code, ch. 10. Storage of flammable fuels: This jurisdiction has adopted the State Fire Prevention Code with respect to Calvert County Caroline County Carroll County Cecil County Charles County Dorchester County Frederick County Garrett County Hartford Kent County

Montgomery County Outdoor grilling: The use of charcoal burning, other fuel burning or electric cooking equipment outside of any multi-family dwelling shall be prohibited unless such cooking equipment is at least twenty (20) feet from every part of the building. Montgomery Cnty. Mun. Code, ch. 22 22-81. Storage of flammable fuels: Generally, the storage and handling of flammable and combustible liquids shall be in accordance with State Fire Prevention Code. The storage in excess of five (5) gallons of class I flammable liquids shall be prohibited in all dwellings, dwelling units, apartment houses, hotels and other residential occupancies. Montgomery Cnty. Mun. Code, ch. 22 22-44. Exceptions: *Exceptions for outdoor grilling only* townhouses, row houses, or other multi-family dwellings where all dwelling units are side by side and non are superimposed above another. Ocean City Prince George's County Outdoor grilling: Charcoal burning and electric grills are prohibited on the balconies of apartments and condominiums. Charcoal burning and electric grills may not be used within 30 ft. from buildings. Prince George s Cnty. Fire Safety 11-269. Storage of flammable fuels: This jurisdiction has adopted the State Fire Prevention Code with respect to Queen Anne s County Saint Mary s County Somerset County Talbot County Washington County Wicomico County Outdoor grilling: A person may not use a barbecue grill on a balcony of a residential dwelling or within 20 feet of any part, including a balcony, of a residential dwelling. MD. CODE ANN., PUB. SAFETY 9-1001 (2017). Storage of flammable fuels: Storage of flammable or combustible liquids above ground is prohibited within fire zone limits as established in the county. Wicomico Code 144-6 144-6. Worcester County VIRGINIA Statewide Virginia has adopted the International Fire Code 2012 Edition. 13 Va. Admin. Code. 5-51-11 et seq. (2017) ( Statewide Fire Protection Code ). Outdoor grilling: Charcoal burners and other open-flame cooking devices shall not be operated on combustible balconies or within 10 feet of combustible construction. Storage of flammable fuels: With a gas grill, the grill may be stored on a balcony after its tank is disconnected, however the tank cannot be stored on the balcony, within 10 feet of combustible construction, or inside any enclosed structure such as the dwelling unit. Exceptions: *Exceptions for outdoor grilling only* 1 and 2 family dwellings. where buildings, balconies, or decks are protected by an automatic sprinkler system.

LP gas cooking devices having a water capacity not greater than 2.5lb. Electric grills allowed. Alexandria This jurisdiction follows the Statewide Fire Prevention Code. Arlington County Outdoor grilling: Cooking devices cannot be operated or stored on any balcony, rooftop, or deck of any building, or within 15 feet of combustible construction or a residential building, hotel, or motel. Arlington Cnty. Mun. Code, ch. 2, 8.1-22 (2009). Storage of flammable fuels: This jurisdiction follows the Statewide Fire Prevention Code with respect to Exceptions: *Exceptions for outdoor grilling only* 1 and 2 family dwellings Buildings, balconies and decks with an automatic sprinkler system, or Non-combustible balconies, decks, and rooftop patios with cooking devices using an approved and permanently installed natural gas system as its only means of heating fuel, and is Listed by a nationally recognized testing authority Securely mounted to prevent overturning Properly installed in accordance with the manufacturer s installation instructions, and approved, permitted, and inspected by the Arlington County Building Code Official. Caroline County Jurisdictions in Caroline County follow the Statewide Fire Prevention Code. Chesapeake Fairfax County Outdoor grilling: Cooking devices cannot be operated or stored on a balcony or deck, or within 15 feet of combustible construction or residential occupancy. Fueled equipment such as portable cooking equipment cannot be stored, operated, or repaired within a building. Fairfax Cnty. Mun. Code. 62-2-8. Storage of flammable fuels: This jurisdiction follows the Statewide Fire Prevention Code with respect to Exceptions: *Exceptions for outdoor grilling only* Cooking devices using electricity as a heating source and listed by a recognized testing authority. Detached two one- and two-family dwellings and townhouses. Fauquier County Fredericksburg Hampton Loudoun County Outdoor grilling: Open flame cooking grills, including gas or charcoal grills, hibachis, or similar cooking devices cannot be operated on balconies or within 15 feet of any combustible construction. Loudoun Cnty. Mun. Ord. 11-02 1602.11. Storage of flammable fuels: This jurisdiction follows the Statewide Fire Prevention Code with respect to Exceptions: *Exception for outdoor grilling only* one and two family dwellings. Newport News Norfolk

Orange County Prince William County Outdoor grilling: This jurisdiction has adopted the Statewide Fire Prevention Code with respect to outdoor grilling and also provides that no charcoal cooker smoker grill or any flammable liquid or liquefied petroleum gas fired stove or similar devices shall be ignited or used on balconies or spaces under balconies of multifamily dwellings unless approved by the Fire Marshall. These devices may be used at ground level if greater than 15 feet from any structure. Prince William Cnty. Mun. Code. ch. 9, 9.1-45. Storage of flammable fuels: This jurisdiction follows the statewide fire prevention code with respect to Portsmouth Spotsylvania County Stafford County Suffolk Virginia Beach Outdoor grilling: This jurisdiction follows the Statewide Fire Prevention Code with respect to outdoor grilling. Storage of flammable fuels: The storage of combustible or flammable materials shall be confined to approved storage areas. Combustible or flammable materials shall not be stored under interior or exterior stairwells unless the area under the stairwell is protected by an approved fire suppression sprinkler system. Va. Beach. Mun. Code. ch. 12, 12-43.4. Williamsburg As stated above, many community associations also have grilling rules or restrictions within their own governing documents or condominium instruments. Board members and managers should review these provisions carefully. Legal counsel and the local fire marshal s office are also good resources with regard to these issues. If your association would like legal counsel to assist with a grilling issue in your community, please do not hesitate to contact counsel at Whiteford, Taylor & Preston, LLP. Many thanks to WTP summer interns, Whitney Greer and Abigail Kuhn, for their research efforts for this article. New Rules and Regulations for Aquatic Facilities in the District of Columbia By: Jason S. Ordene, Esq. As of June 9, 2017, new rules and regulations for Aquatic Facilities, including Swimming Pools, Spa Pools, and Saunas, went into effect in the District of Columbia for the purpose of updating existing regulations to reflect new industry standards and District regulations. Most significantly, the proposed rulemaking incorporates industry standards that are included in the second edition of the Model Aquatic Health Code published by the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, as well as other industry standards. There are a variety of new requirements including changes to required signage, reasonable accommodations, and allowing individuals the right to use gender-specific restrooms and other gender-specific facilities that are consistent with their gender identity or expression. Other important changes require having quickly accessible Automated External Defibrillators (AEDs) and other first aid safety equipment at specific locations near the pool as well as new requirements for the placement of water fountains or water coolers. All community associations with aquatic facilities, including swimming pools, spa pools, or saunas, in the District of Columbia, should review these new rules and regulations to ensure that all aquatic facilities remain compliant. Violations of these new rules or regulations may subject an association to civil fines or penalties. Below are some of the changes to the Rules and Regulations:

Section 203 allows an aquatic facility to designate eating areas and to allow the public to use non-glass and non-breakable water bottles. Section 203 requires an aquatic facility to close swimming pools and pool deck areas to the public during competitive swimming practices and/or swimming competitions. Revisions to the child safety plan age of expected bathers are included in Subsections 305.2(e) and (f): (e) The expected number of bathers who are over the age of fourteen (14) when the spa is open (daily average for the operating months); (f) The percentage of the expected bathers who are under the age of fourteen (14) when the spa is open (daily average for the operating months); New water fountain requirements for existing aquatic facilities are included in Subsections 400.2 and 400.3: 400.2: Existing aquatic facilities shall have at least one (1) drinking fountain directly plumbed and maintained in good repair or shall have at least one (1) water cooler inside the facility. 400.3 If a drinking fountain cannot be provided inside the aquatic facility, it shall be provided in a common use building or area adjacent to the aquatic facility entrance and on the normal path of bathers going to the aquatic facility entrance. New depth marker tile requirements are included in Section 402. Revisions to chemical levels used to treat waters in swimming pools, spa pools, and saunas are included in Section 404. Updated regulations regarding the use of specific water quality test kits and new requirements for blood borne pathogen control kits are included in Sections 405 and 406. New requirements for spa pool and sauna turnover rates, plumbing system guidelines, and new circulation system charts for all different pool categories are included in Sections 408, 409, 410, and 411. New standard operating procedures for accidents involving bodily fluid are included in Subsection 412.7. New equipment room size, minimum ceiling height, and lighting requirements are included in Subsection 503.5. New requirements for first aid and safety equipment for public and semi-public swimming pools are included in Section 505. New requirements for pool safety covers including installation and weight capacity are included in Subsections 505.5, 610.9 and 610.10. New requirements for recordkeeping storage, access, handling, and prohibited use of chemicals for new and existing facilities are included in Section 608. New requirements for the installation of an eye wash station are included in Section 609. New requirements for the issuance of licenses, registrations, certifications, certificates of occupancy, and applications are included in Sections 700, 701, 702, 703, 704, and 706. New Department of Health access and inspection requirements are included in Subsection 710.1. Updated requirements for public record retention and disclosure are included in Section 714. New imminent health hazard provisions are included in Subsections 715.1 and 715.2. New informal conference requirements are included in Chapter 8. Updated requirements for service of process are included in Chapter 9. Updated administrative and civil penalties and judicial review provisions are included in Chapter 10. The public pool classifications (categories) have been revised and new definitions have been added. The full set of Rules and Regulations can be found by clicking here.