HOA, Condo, Neighborhood Associations Training and Education: Basic Legal Issues Seminars

In June and July, I will be presenting this year's Basic Legal Issues for HOAs on two separate occasions, once again hosted by Neighborhood Alliance. These seminars focus on issues relevant to homeowners and members of mandatory homeowners and condominium associations. NA and I have partnered for these annual seminars for over five years now.

I will speak on the basics of homeowners and condominium associations and will also cover covenants, bylaws and amendment procedures. As always, we provide a substantial amount of time for a question & answer session. The first session will be on Tuesday, June 26, 2012, from 6:30 p.m. to 8:30 p.m. and will be held at Pelco Products in Edmond, 320 W 18th Street, Edmond, OK 73013. The second session will be on Tuesday, July 17, 2012, from 6:30 p.m. to 8:30 p.m. and will be held at Home Creations' Melody Banquet Hall, 2288 N. Broadway, Moore, OK 73160. For more information, or to register, please visit http://www.nacok.org/.

Oklahoma Homebuilder’s Association Luncheon. Topic: 5 Ways to Improve Community Associations

In June, I will be speaking at the Central Oklahoma Homebuilders Association's (COHBA) Developer's Council and Sales & Marketing Council (SMC) Luncheon on community association issues with the theme "HOAs don't have to be a headache." This meeting is geared toward developers, builders, and salespeople and will focus on the proper management of HOAs, how HOAs can be a positive aspect of a neighborhood, and will also cover the common mistakes made by developers and builders and how to avoid them. The program is scheduled for Tuesday, June 26, 2012, from 10:00 a.m. to 11:30 a.m. and will be held at COHBA at 420 E. Britton Road. The cost, which includes lunch, is free for all SMC Members, $20.00 for COHBA Members and $30.00 for all other attendees. Reservations are required by Friday, June 22nd at 5:00 p.m. To make reservations, please call Denise Jones at 843-1508 or email denise@okchomebuilders.com.

ADA, Swimming Pools, and Community Associations – Rule Update

ADA Pool Compliance Update

On May 21, 2012, the US Department of Justice released its final rule on Americans with Disabilities Act requirements for swimming pools. The deadline for compliance has been extended to January 31, 2013. The DOJ does not specifically address under what circumstances community association pools must comply with the new requirements. They did emphasize that permanent or fixed lifts are the standard; portable lifts will not satisfy the ADA requirements, which was one significant question raised by the initial rule. Additionally, they responded to the common misconception that any non-compliant pools would have to close. The final rule states:

Compliance with the 2010 Standards is only required to the extent that it is "readily achievable"—a term that means "easily accomplishable and able to be carried out without much difficulty or expense."

As originally published in the ADA Title III Regulations at § 36.104, the following criteria may be used to determine whether compliance is "readily achievable."

(1) The nature and cost of the action;

(2) The overall financial resources of the site or sites involved, the number of persons employed at the site, the effect on expenses and resources, legitimate safety requirements necessary for safe operation, including crime prevention measures, and any other impact of the action on the operation of the site;

(3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;

(4) If applicable, the overall financial resources of any parent corporation or entity, the overall size of the parent corporation or entity with respect to the number of its employees, and the number, type, and location of its facilities; and

(5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

Community associations with limited budgets may not be able to fund the installation of a permanent lift system in their pool. While some associations may have available funds, installation may not be "readily achievable" due to delays caused the currently high demand for lift systems. According to the final rule, these pools may continue to operate in spite of their non-compliant status.

While the final ruling has left many questions unanswered, the DOJ states that the extension of the deadline will allow the department to continue educating affected entities as to their responsibilities for compliance.

Does your Association qualify for a sales tax exemption?

Under 68 O.S. § 1356(53) qualified neighborhood watch organizations are eligible for a sales tax exemption for the first $2,000.00 of purchases or sales for each calendar year. The statute defines "qualified neighborhood watch organization" as "an organization that is a not-for-profit corporation under the laws of the State of Oklahoma that was created to help prevent criminal activity in an area through community involvement and interaction with local law enforcement and which is one of the first two thousand organizations which makes application to the Oklahoma Tax Commission for the exemption after the effective date of this act."

Along with an application, the Association must submit its articles of incorporation, bylaws, or other form of documentation showing the incorporators' intent demonstrating that crime prevention is one of the purposes of the Association. Additionally, the Association must include documentation indicating its affiliation with local law enforcement, as well as a description of the boundaries of the area within the Association's jurisdiction. Finally, the Oklahoma Tax Commission requires the name of the person who will be responsible for keeping records of tax-exempt purchases and sales for the Association to ensure that the $2,000.00 limit is not exceeded. The exemption card will be sent to this person.

It is important to note that unincorporated associations are ineligible for the sales tax exemption. Not only should an association incorporate to qualify for the sales tax exemption, several significant benefits result from incorporation. See, 18 O.S. §865-867, and 18 O.S. §1027E.

Further instructions and an application for sales tax exempt status are available at http://www.tax.ok.gov/btforms/PktE.pdf.

Matthew L. Winton

Condominium and homeowner association lawyer

mlw@vwlaw.net

Swimming pools, condominium and homeowner association, Americans with Disabilities Act

Ensuring Compliance with ADA Pool Requirements

Summer is almost here, and for many associations, that means it's time to start thinking about getting the community pool ready for use. This year, in addition to normal cleaning and maintenance, associations need to ensure compliance with the ADA requirements for public pools. The ADA published these guidelines in 2010, and they were scheduled to go into effect March 15, 2012, but confusion on the policies has resulted in an extension of the deadline to May 15, 2012.

Very generally, the rules require all public pools to have at least one accessible entrance, commonly a lift or sloped entry. Larger public pools must have two. Private pools are exempt from these requirements. The ambiguity lies in the classification of community association pools. Generally, community association pools are considered private. However, some associations sell memberships to the public. Others host swim meets. In these situations, the pool is being used as a public pool. For those associations hosting swim meets, a question arises as to whether the pool is considered a public pool only during times of public use, or, if not, the number of swim meets required to cause its classification as a public pool. The rules require permanent means of access, but some wonder whether temporary access might be sufficient for pools that are generally private, but host the occasional swim meet.

In summary, if an association does not sell memberships or host swim meets, its community pool is exempt from the requirements. If an association sells memberships, its pool must comply with the new standards. For those associations that do not sell memberships, but host swim meets, the correct interpretation and application of the rules has yet to be determined. Stay tuned for further updates: the Department of Justice expects to release further guidance and clarification of the rules, and is considering a six month extension of the deadline.