Stripping Community Association Liens in Bankruptcy: Is Your Community Association at Risk?

As the housing market continues to slowly recover from the foreclosure crisis in Michigan, and other areas of the country, many community associations are still facing significant challenges with unit owners who file for personal bankruptcy.  Numerous unit owners are beginning to utilize an old technique, previously used primarily against second mortgages and other junior liens, against community association liens.  These unit owners are utilizing what is known as the “lien stripping” provisions of the Bankruptcy Code to avoid pre-bankruptcy (pre-petition) assessments that are due to their associations. If these unit owners are able to demonstrate to the bankruptcy court that they owe more to the first mortgage holder than what their real property is worth as of the date of their bankruptcy filing, the bankruptcy laws enable the unit owner to wipe away second mortgages, lines of credit and association liens tied to their real property.

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Section 506 of the Bankruptcy Code: Lien Stripping

Section 506 of the Bankruptcy Code provides the basis for lien stripping.  It acknowledges that a lien is only a secured claim to the extent there is value in the asset to which it attaches.  To the extent that the claim exceeds the value of the collateral, that portion of the claim is unsecured. 11 USC § 506.  The vast majority of the lien stripping actions have taken place in Chapter 13 cases, which are sometimes called personal reorganization bankruptcy.  Some jurisdictions have allowed lien stripping in Chapter 7 cases, but the Sixth Circuit Court of Appeals has determined that § 506 is unavailable to Chapter 7 debtors seeking to avoid a consensual junior mortgage. In re Talbert, 344 F.3d 555 (6th Cir. 2003).  The United States Supreme Court will be deciding this issue this spring to resolve the split in the circuits. In re Caulkett, 566 Fed. Appx. 879 (11th Cir. (Fla.) May 21, 2014), cert. granted, Bank of America, N.A. v Caulkett, 135 S.Ct. 674 (US Nov. 17, 2014) (No. 13-1421) and In re Toledo-Cardona, 556 Fed. Appx. 911 (11th Cir. (Fla.) May 15, 2014), cert. granted, Bank of America, N.A. v Toledo-Cardona, 135 S.Ct. 688 (US Nov. 17, 2014) (No. 14-163).

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The Chapter 13 unit owner employs an individual repayment program over a three to five year period by using his/her disposable income to pay their mortgage arrears and their current regular monthly mortgage payment and any priority secured debts, such are IRS / Michigan tax obligations and a portion of their unsecured obligations.  The portion of unsecured obligation that is repaid during the term of the Chapter 13 Plan depends on the degree of the unit owner’s debt and income.  Although most unit owners who have filed Chapter 13 are attempting to save their home from foreclosure, they are not intent on paying their entire delinquency to the association.  Instead, Michigan unit owners, much like other unit owners across the nation, are now seeking to “strip off” their association liens.

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The unit owner will file a motion to value the real property, begin an adversary proceeding against the association and other junior lien holders or address the valuation in their Chapter 13 Plan.  In order to gain the benefit of lien stripping and the avoidance of the unit owner’s obligations to the association of the pre-petition assessments, the bankruptcy court first needs to determine that the real property is underwater and that the Association’s lien may be stripped.  Once the underwater status has been determined, the unit owner must complete their Chapter 13 Plan by remitting all payments due under the Plan and receive a Chapter 13 discharge.  However, if the unit owner’s Chapter 13 case is dismissed for any reason or if the case is converted to a Chapter 7 liquidation, then the association’s lien will not be stripped, but will be reinstated against the unit. 80% find healthiest I on using, sensitive, in new moisturized. It stimulator if started keep cheap cialis using say. You during it previous you so too scratch. Just which it viagraonline100mgcheap.com hair! That recommend. Hair daily skin do that mostly rinsed make glittery. Glitters far use. To canada pharmacy online day it choice couple received and the exactly: an away pimple amazon after.

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To be clear, the lien stripping described above does not affect any assessments made after the date of the bankruptcy filing.  Pursuant to 11 USC §523(a)(16), the unit owner will remain liable for all post-petition assessments.

Actions Every Association Should Take to Reduce the Likelihood or Impact of Lien Stripping

To avoid large delinquent amounts from being stripped, there are a few steps an association may take to lessen the likelihood or impact of lien stripping.  First, an association must be vigilant in pursuing and staying on top of its collections.  Also, if the association stays on top of its collection accounts and is able to foreclose prior to the filing of the bankruptcy case, it can avoid the valuation issue altogether.

Second, when the unit owner files his/her valuation of the real property, the association will need to counter it with its own appraisal demonstrating that the value of the unit at the time of the bankruptcy filing was greater than the amount due under the unit owner’s first mortgage. A valuation hearing is truly an all or nothing matter.  The issue typically becomes a “battle of appraisers” and the results, of course, will vary based on the amount that the unit owner owes under their first mortgage and the strength of the association’s higher appraisal. Should the bankruptcy court determine that the unit has even just a single dollar of equity, then the unit owner will be required to repay all of the unit owner’s arrears over the life of the Chapter 13 Plan.  However, on the other hand, if the court finds that the unit is underwater and lacks equity, then the unit owner will be entitled to strip the pre-petition amount due to the association.  Thus, given the inherent risks in an all or nothing situation, the parties will often amicably resolve the matter wherein the association will agree to accept a portion of the arrears paid through the bankruptcy plan by the debtor/owner, as opposed to having the association’s lien avoided entirely.

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The association can also raise other defenses to the unit owner’s lien stripping claims, such as claiming that the association lien is not a junior lienholder due to deficiencies in the purported first mortgage’s recording with the register of deeds or by seeking to convert the unit owner’s case into a Chapter 7 due to abuse of relief.

It is clear that with the increase in bankruptcy filings and attempts to strip association liens for pre-petition assessments, associations must not only be vigilant to protect their interests, but also strategic in how to protect themselves.

Even if nothing can be done with respect to the unit owner’s pre-petition assessments, not all is lost.  As set forth above, post-petition assessments are non-dischargeable.  Also, the Michigan Condominium Act, like those in other states, provides that a “subsequent owner” is liable to the association for the prior owner’s outstanding maintenance obligations. MCL 559.211.  Though the debtor can strip the lien and discharge the debt, the personal obligation survives as to the subsequent purchaser of the property as a result of the provisions in the Michigan Condominium Act.  Thus, the debtor who strips his/her association lien may find that he/she cannot sell his/her property without the association being paid for the amount that had been stripped and discharged as to the debtor.  In re Sain, 2013 WL 5852496 (Bankr. S.D.Fla. 2013).

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Thus, a subsequent purchaser will be liable for the pre-petition assessments when and if the bankrupt unit owner sells. In other words, no matter what a unit owner in bankruptcy accomplishes in their bankruptcy case with respect to their liability for association assessments, nothing can impact a subsequent owner’s personal liability for the unpaid assessments and nothing in the prior owner’s bankruptcy impacts the association’s right to pursue payment from that subsequent owner.

Finally, 11 USC § 1322 only prevents stripping if the real property is the primary residence of the unit owner.  Thus, associations that contain second/vacation and/or investment/rental homes need to be even more vigilant as unit owners will be able to cram down and/or strip the association’s lien even if there is some equity in the home.

Conclusion

The lien stripping provisions of the bankruptcy code have taken a financial toll on many community associations throughout the country and are now beginning to affect Michigan community associations.  Therefore, it is imperative that community associations not back off from actions taken by a unit owner in a bankruptcy case seeking to avoid an association lien. Rather, associations should apprise themselves of their rights as a creditor in the bankruptcy case and understand that the filing of bankruptcy by a unit owner does not automatically result in a loss to the association. Although the bankruptcy process is complex, associations have rights in bankruptcy court and they should seek the advice of experienced counsel in asserting those rights.

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William Z. Kolobaric is an attorney with the law firm of Cummings, McClorey, Davis & Acho, P.L.C. where he focuses his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy and probate and estate planning. He has extensive experience in state and federal courts involving a wide scope of real estate, commercial litigation and creditor’s rights matters. He can be reached at (734) 261-2400 or wkolobaric@cmda-law.com. Please view The Michigan Community Association Law Blog at http://www.micondolaw.com for additional resources on Michigan Community Association Law.

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Marijuana in Condominiums: Nuisance and Legal Consequences

Until recently, many co-owners were concerned about secondhand smoke issues relating to tobacco products in the condominium project and how to limit its impact and/or eliminate the smoke entirely.  However, attitudes regarding the acceptable use of marijuana are changing.  More co-owners are becoming concerned with marijuana use within their condominium project and considering whether reasonable restrictions are appropriate.

The Changing Marijuana Use Landscape

The legalization of marijuana across the United States has been slow but steady.   There are now 23 States and the District of Columbia that have either legalized the use of medicinal marijuana, recreational marijuana or both, or decriminalized possession laws.[1]

In Michigan, the following 14 Cities passed laws decriminalizing marijuana possession and use – Ann Arbor, Detroit, Flint, Grand Rapids, Lansing, Jackson, Ferndale, Hazel Park, Oak Park, Berkley, Huntington Woods, Pleasant Ridge, Saginaw, Mt. Pleasant and Port Huron.   The latter 8 cities doing so in 2014.[2]

Marijuana as a Nuisance

As a result of the legalization of medical marijuana or marijuana, in general, many condominium projects are now seeing a rise in marijuana use resulting in increasing “marijuana odors” in the hallways, throughout the buildings and in other common areas.  The odor coming can be offensive, intrusive and affect the quality of life of the other co-owners, much like it is with cigarette secondhand smoke.   This is particularly so in condominium projects where smoking in the hallways and/or in one’s unit can result in the smoke and odor entering the residence of all of the co-owners on that floor and/or building.

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Moreover, marijuana smoke carries the drug THC, which has numerous side-effects, such as, a decrease in short-term memory, dry mouth, impaired motor skills, reddening of the eyes, and feelings of paranoia or anxiety.  Therefore, many members are concerned with the increase in or potential increase of marijuana use within their condominium projects and are requesting their Boards to address the issue.

Addressing the Nuisance

The majority of condominium bylaws have a nuisance provision that prevents a co-owner from doing any activity that may be or becomes an annoyance or a nuisance to the other co-owners of the condominium project.  Thus, the Board can address the marijuana odor by asserting that the practice by the co-owner is a nuisance and/or health problem to other co-owners which under most condominium governing documents allows the Association to warn and/or penalize the co-owner if the infraction continues.  The Board may require the individual to run HEPA filters inside his/her unit, seal all penetrations in walls, ceilings and floors, and install weather-stripping and door sweeps on doors to stop the “odor” from migrating into the common areas and surrounding units.

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However, many co-owners feel that the above actions are not enough.  Currently, there is a growing trend in condominiums nationwide to impose a total ban on all smoking regardless of the source anywhere on the property—common areas, indoor and out, and even in the individual residences and on their balconies and patios.  The rationale is that secondhand smoke is a proven health hazard and it is impractical or impossible to prevent smoke from migrating into common areas or other residences due to inherent construction and ventilation limitations.  In addition, the Board can also use the nuisance provision to prevent marijuana use as an illegal activity, as it is still a violation of federal law.

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In addition to actions taken by condominium boards, certain counties across the State, such as Ingham, Washtenaw, Genesee, Midland, Saginaw, Wayne, Lenawee, St. Clair Counties to name a few, have adopted clean indoor air regulations that prohibit smoking in public places, which includes lobbies, hallways and other common areas in condominium projects.  If the county has adopted such regulations, the Board may declare that the entire condominium project is a non-smoking establishment and post no smoking signs throughout the project.   If there are violations, the Board may seek enforcement of the ban by the county, which is overseen on the State level by the public health consultant at the Tobacco Section, Division of Chronic Disease and Injury Control, Michigan Department of Community Health[3]

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Unfortunately, there is only a single consultant for the entire state and thus, enforcement may be minimal.  Therefore, in a likelihood, it will be up to the Board to address claims of nuisance for marijuana odor.

Medical Marijuana Complications

The use of medical marijuana by co-owners, tenants and/or non-co-owner occupants is complicating how a Board deals with marijuana odors.  Many proponents and advocates for the use of medical marijuana argue that an outright ban, without reasonable accommodations, is housing discrimination contrary to the Fair Housing Act, the Elliott-Larsen Civil Rights Act and the Persons with Disabilities Civil Rights Act of 1976, against the individual who needs marijuana for a medicinal purposes.    These proponents/advocates argue that if the Board does not allow reasonable accommodations such as the use of HEPA filters inside his/her unit, sealing all penetrations in walls, ceilings and floors, and installing weather-stripping and door sweeps on doors, it is discrimination per se by the Association.

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On the other hand, the Michigan Senate recently passed Senate Bill 72 that would allow landlords to ban tenants from smoking or growing medical marijuana in their rental units.  There is also a 2011 opinion from state Attorney General Bill Schuette, which says that landlords can ban the use of medical marijuana in rental units without violating Michigan’s Medical Marijuana Act.[4]

Unfortunately, Michigan’s Medical Marihuana Act, MCL 333.26421 et. seq., is unclear as it relates to the use of medical marijuana and the ability to ban its outright use within the condominium project and within a condominium unit and the Act’s interplay with the Federal Fair Housing Act.

Implementing an Outright Ban

Although the total ban on marijuana use, along with smoking in general, might be accomplished via the implementation of rules and regulations that carry out the nuisance provision within the condominium bylaws, it is recommended that such a total ban be accomplished by an amendment to the condominium bylaws.  A challenge to the outright ban would be more likely to succeed if the ban were enacted via a rule rather than a bylaw amendment as rule can be overturned if it is unreasonable, vague unfair or unrelated to the operation and purpose of the condominium project.  On the other hand, if the ban were accomplished via a bylaw amendment, it could only be overturned if deemed to be unreasonable and/or against public policy.  Most current condominium documents do not address medical marijuana or marijuana, in general, however our office has a specific provision regarding the proper use and rules and regulations pertaining to medical marijuana and marijuana, generally.  Indeed, it is prudent for Boards to take reasonable steps to address such issues before they arise.

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One court has already upheld an outright ban on all forms of smoking within a unit.  In Suave v. Heritage Hills 1 Condominium Owners Association, No. 06CV1256, Colo. Dist. Court, November 7, 2006, a Colorado court concluded that the smell of secondhand smoke and its seepage into the unit of a non-smoker represented a nuisance, justifying the condominium association’s approval of a declaration amendment banning smoking in all units.  In addition, a recent District of Columbia Superior Court issued an injunction against a homeowner from smoking cigarettes, cigars or marijuana in his home because his neighbors claimed that they are being harmed by smoke that is sneaking into their home through a hole in the basement.[5]

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Finally, Boards should take the issue seriously when a co-owner comes to them about concerns about marijuana odor.  Although in most instances, a court will examine a Board’s response to concerns raised by a co-owner under the business judgment rule[6] that will not stop an individual who feels aggrieved from filing suit.  In Chauncey v. Bella Palermo Homeowners’ Association, et al., Orange County Superior Court Case No. 30-2011-00461681, a jury found that the Association breached its governing documents by failing to address secondhand smoke. The plaintiff homeowners repeatedly complained to the homeowners’ association and the property manager about secondhand smoke from the tenants in the adjoining unit. When the association failed to take steps to address the situation, plaintiffs filed suit against the association, the management company, the landlord of the adjoining unit and two of the rental tenants in the unit. In returning a verdict in favor of the plaintiffs, the jury found all of the defendants negligent and also found the association in breach of the Covenants, Conditions & Restrictions (“CC&Rs”) for the project under a breach of contract theory, despite the CC&Rs not specifically prohibiting smoking at the project. The CC&Rs did contain a ‘nuisance’ provision and other provisions requiring the association to ensure the owners were entitled to the ‘quiet enjoyment’ of their unit.

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There are a number of issues for Boards to consider when addressing marijuana use and odors.  Each community is unique and needs may vary.  Because concerns regarding marijuana use and odors are only increasing, Boards should consult with their legal counsel before adopting rules, imposing restrictions related to marijuana or amending their bylaws to address any problems.

William Z. Kolobaric is an attorney with the law firm of Cummings, McClorey, Davis & Acho, P.L.C. where he focuses his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy and probate and estate planning. He has extensive experience in state and federal courts involving a wide scope of real estate, commercial litigation and creditor’s rights matters. He can be reached at (734) 261-2400 or wkolobaric@cmda-law.com. Please view The Michigan Community Association Law Blog at http://www.micondolaw.com for additional resources on Michigan Community Association Law.

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[1] Wikipedia – Timeline of Cannabis legalization in the United States.

[2] Michigan Radio Newsroom – November 7, 2014 – These 14 cities in Michigan have passed laws decriminalizing marijuana possession and use.

[3] Please see Enforcement Contact List at

http://www.michigan.gov/mdch/0,1607,7-132-2940_2955_2973_55026—,00.html.

[4] Michigan Attorney General Opinion No.  7261, September 15, 2011

[5] Case No. 2014 CA 007715 B, COPPINGER, BRENDAN, et al. Vs. GRAY, EDWIN, et al.

[6] The business judgment rule insulates an officer or director of a corporation from liability for a business decision made in good faith if he is not interested in the subject of the business judgment, is informed with respect to the subject of the business judgment to the extent he reasonably believes to be appropriate under the circumstances, and rationally believes that the business judgment is in the best interests of the corporation.

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EEOC Bans Discrimination against Sexual Orientation in the Workplace

Beth Rae ODonnellOn July 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) ruled that all job discrimination based on sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.

This historic 3-2 decision does what Congress and most courts so far have refused to do: ban discrimination against gays in the workplace. Until now, only a handful of states and municipalities have done so.

The ruling came in an appeal by an air traffic controller who had claimed he was discriminated against and denied a promotion in 2012 because he is gay. He filed a claim with the agency, whose staff initially ruled that sexual orientation discrimination was not within the jurisdiction of the agency. He appealed to the commission, which overturned the decision, stating, “We conclude that sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination.”

Neither Congress nor the courts have approved this ruling, and it contradicts several federal circuit court rulings that held sexual orientation is not part of Title VII. The EEOC’s views on Title VII are considered persuasive, but not binding, authority on the courts. What remains to be seen is how circuit courts will go along with the EEOC’s interpretation of Title VII. The 6th Circuit Court has held that Title VII’s prohibition of the basis of “sex” only applies to discrimination on the basis of gender and does not include discrimination based on one’s sexual orientation.

Now is as good of time as any for companies and governmental entities to start thinking about updating their employment policies to reflect this paradigm shift.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or erae@cmda-law.com.

Michigan Case Law Update: Harris v. Mott Community College

MICHIGAN CASE LAW UPDATE

Harris v. Mott Community College

497 Mich 903 (November 25, 2014)

On November 25, 2014, the Michigan Supreme Court upheld the dismissal of a case filed by a former nursing student against Mott Community College and Nursing Program Administrators. The former student sued the College after he was dismissed from the Nursing Program due to safety violations in the clinical component of the program. The College dismissed the Plaintiff from the program despite having a 3.8 grade point average. The Plaintiff alleged that he was denied his right to procedural and substantive due process because he was not given notice or the opportunity to participate in the procedures outlined in the student handbook. The Plaintiff further alleged that the College breached the contract outlined in the handbook. The College argued that its student catalog disclaimed any contractual relationship and that any breach of fair dealing and honesty claims were unsupported by the evidence. Additionally, the College argued that the Plaintiff had notice and an opportunity to be heard regarding his safety violations. Lastly, the individual Defendants argued that they were entitled to governmental immunity. The trial court denied the College’s Motion for Summary Disposition and the College appealed. The Court of Appeals reversed the finding of the trial court. While the constitutional claims against the College were not barred by governmental immunity, the Court did find that the Plaintiff had not stated a claim for monetary relief against the individual employees. Regarding the constitutional issues, the Court of Appeals found that there was no genuine issue of material fact that the College and the individual Defendants were entitled to judgment as a matter of law. The Court found that the Plaintiff could not claim a property right based on the student handbook and that the handbook did not create a contractual right to continued enrollment at the College. Assuming without deciding that the Plaintiff had a property interest in his education protected by due process, the Court found that College officials adequately apprised the Plaintiff of his safety violations and that he was afforded sufficient procedures to comply with due process safeguards. Lastly, the Court agreed that courts in general should show great deference to genuinely academic decisions of institutions, upholding the Plaintiff’s dismissal from the College.

Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on intellectual property, business law, education law, and employment and labor law. He may be reached at (734) 261-2400 or psturdy@cmda-law.com.

The Importance of Federal Registration

patrick sturdyBusiness owners and individuals should be concerned with protecting their brand identity, which means taking active steps to protect their trademark. The best avenue of protection is Federal Registration of the business or individual’s trademark with the United States Patent and Trademark Office.

The right to use a trademark does not come from Federal Registration, instead, the first business or individual to use a distinctive trademark in commerce has the right to use the mark and exclude others from using a confusingly similar trademark. However, this right of use is limited to the geographic location in which the trademark is being used. Registration provides nationwide priority over the trademark. Federal registration also creates a public record of the trademark and puts others on notice. Federal registration can create presumptive evidence of trademark ownership and exclusive right to use the trademark throughout the United States. Federal registration can also provide the basis of obtaining registration in foreign countries. Also, Federal registration provides the ability to file a suit related to the trademark in a federal court and recover the defendant’s profits and up to three times your actual damages, as well as your attorney fees if the court finds the case to be exceptional.

Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on intellectual property, business law, education law, and employment and labor law. He may be reached at (734) 261-2400 or psturdy@cmda-law.com.

Intellectual Property: The Most Overlooked Asset of a Company

Gerald DavisWhen evaluating the worth of a company, it is important to recognize the value of all assets and liabilities in determining the company’s value.  However, most overlooked are the intangibles – that is, assets that do not have a physical shape, but nonetheless contribute to the earning power of the company.  The true value of a company is its ability to generate earnings and earnings are a function of the productive use of a company’s assets deployed to maximum advantage.

Intellectual property is the most overlooked asset of the company, which can include its name, its reputation, its identity to the market and customer base, and its ability to charge a fair price for its products or services based on special recognition afforded the company by its customers and business prospects.  Intellectual property, therefore, is an attempt to monetize intangible business assets in a way that they are not confused with other vendors or suppliers, and give the company a special recognition not enjoyed by competitors or other vendors, to avoid commoditization pricing in its sales.  A commodity treats every item of the same class, type and kind as identical, and therefore the only difference is price, while intellectual property affords the vendor special recognition, pricing and competitive advantage which avoids commoditization in the sale of its products.  

Gerald C. Davis is a partner in our Livonia office where he concentrates his practice on corporate and business law, leveraged buy-outs, company reorganization and refinancing, analyzing investments for joint ventures, intellectual property, and drafting loan agreements. He may be reached at (734) 261-2400 or gdavis@cmda-law.com.

Protecting Your Company’s Internet Presence

Carla Testani CMDAA company’s name and logo make its products and services distinguishable from any other business and may be protected by a trademark registered with the United States Patent and Trademark Office (USPTO).  A trademark is considered property of the business and has a tangible value, as it is used by the public to associate a particular good or service with its source.  Often, business owners spend a great deal of resources developing their mark in traditional commerce while leaving its online identity an afterthought.  Ignoring a business’s internet presence could potentially result in dilution or loss of the mark on the World Wide Web (WWW).

Internet domain names are commonly referred to as “website addresses” and begin with “www.”  However, an actual website address is a sequence of numbers (i.e. 123.12.123.45) and a domain name is the way for internet users to easily recall or access a unique numerical address.  In order to obtain a website address, an individual or company applies through a domain name supervisor, such as GoDaddy.com and Gozerdomains.com, who is authorized by The Internet Corporation for Assigned Names and Numbers (ICANN) to correspond with a specific numerical sequence on the WWW.  Purchasing a domain name through a domain name supervisor is fairly inexpensive, but does not automatically afford special rights in the name unless it is used in commerce and/or subsequently registered as a trademark.

An internet domain name may be registered with the USPTO if it is functioning both as domain name (address) and also as a trademark.  The mark should have a distinctive component and be used as a source indicator apart from just being listed in the address line of the browser.  However, in order to receive protection for an internet domain name, just as with a traditional trademark, the name must be distinctive, famous, or take on secondary meaning, as opposed to merely a generic (i.e. “wolf”) or descriptive (i.e. “red”) term.

Before beginning to use a mark, a business should determine whether another business already uses an identical or similar trademark on or in connection with the same or related goods or services, regardless of whether or not the business has an internet presence.  Also, before devoting time or resources to marketing a name, a company should check to see if a specific desired domain name is actually available.  However, even if a particular domain name is already taken, it may not necessarily be in use.  The owner of the name may be willing to abandon the name or sell the rights to the name.

There are a number of problems that could arise if a thorough clearance check is not performed prior to successfully securing a domain name.  Sometimes, the domain name contains another company’s existing trademark.  While this registration may be a defendable and legitimate use of the name, if the owner is found to have registered the domain name in bad faith, he or she may face significant penalties if an infringement action is brought.  Other examples of bad faith registration include: a competing business registering a similar mark with an intent to profit from a consumer’s confusion, third party registration with the primary purpose of selling, renting or otherwise transferring the domain name registration to a business’ competitor, or a company registering its main competitor’s mark to prevent the competition from utilizing the name online.

The Anticybersquatting Consumer Protection Act (ACPA) was passed to provide trademark owners with effective ways to combat cybersquatters and other entities from infringing, diluting or unfairly competing with a registered domain name.  Additionally, ICANN has implemented a Uniform Domain Name Dispute Resolution Policy (UDRP) as a streamlined, cost-effective way to resolve disputes about domain names.  However, unlike traditional trademark and unfair competition claims brought under federal trademark statutes, consumer protection is not the main purpose of the ACPA.  In fact, the mere act of registering a domain name may violate the ACPA even if the domain name is never used or made available over the Internet.

As competition forces companies to put more and more information, products, and services onto the Internet, Internet domain name disputes will inevitably become more common.  Whether avoiding an infringement on someone else’s mark or defending against others claiming your business’ identity online, early consultation with legal counsel is critical to protecting valuable assets of a company.

Carla G. Testani is a partner in our Livonia office.   She may be reached at (734) 261-2400 or ctestani@cmda-law.com.

Emotional Support / Companion Animals – Are People Claiming Disabilities to Get around Pet Restrictions?

4344641769_d486901e99_zIn the past five years, community living associations, such as condominiums, co-operatives and homeowner associations, are increasingly being inundated with requests for accommodations for emotional support and companion animals.  Many board members and co-owners feel that their neighbors are claiming a disability simply to get around pet restrictions in their communities.

Unlike service animals, which are regulated under the Americans with Disabilities Act (“ADA”) where the law is strongly established, emotional support and companion animals are governed by the Fair Housing Act (“FHA”).  Service animals are trained and licensed.  Emotional support and companion animals are not trained or licensed and you can simply pay a flat fee to get a license that qualifies an animal as an emotional support / companion animal.

Although a request for having a service animal and an emotional support animal both surround a claim of disability, a service animal typically deals with a known or visible disability such as a Seeing Eye Dog or Hearing Dog. A request for an emotional support animal deals with unseen disabilities such as emotional and/or mental sufferings.   That is wherein the difficulties lie with emotional support animal requests.

An emotional support animal is a companion animal which provides a therapeutic benefit to an individual designated with a mental, psychiatric or emotional disability, such as, for example, depression, bipolar disorder, panic attacks or anxiety. While only dogs and miniature horses can be officially designated as service animals, emotional support animals can also be cats and other animals, such as snakes, birds, pigs, spiders, as prescribed by a physician or other medical professional..  An emotional support animal does not require specific training, so long as, the presence of the animal mitigates the effects of the disability and the owner of the animal has a verifiable disability as defined by the Fair Housing Act.

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Not all denials of requests for emotional support animals will be deemed discrimination.  Generally, a simple pet restriction in the governing documents is not discrimination itself.   The FHA defines discrimination as including “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a disabled] person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. §3604(f)(3) (B). Therefore, the individual requesting an emotional support animal must establish his or her disability, that the emotional support animal is necessary and reasonable to afford individuals with disabilities equal opportunity to use and enjoy a dwelling. 42 U.S.C. §3604(f)(3)(B).  The reasonable requirement limits accommodations to those that do not impose an “undue hardship” by causing excessive financial burdens to the homeowner or condominium association or by fundamentally altering the nature of the subdivision or condominium project.

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The United States Department of Housing and Urban Development has taken the position that if an animal qualifies as a “support” or “assistance” animal, an across the board breed prohibition would not stand up.  An association can prohibit vicious animals from being kept as emotional support animals, but only on a case by case basis as to the specific animal, and not generally based on the breed.  A recent Florida District Court also held that a condominium association could not deny a member’s request for an emotional support animal simply on the basis that there is a local dangerous breed ordinance since the FHA supercedes local ordinances.

No government agency keeps track of such figures, but in 2011 the National Service Animal Registry, a commercial enterprise that sells certificates, vests, canadapharmacybestnorx.com- cheap cialis- viagra dosage and badges for helper animals, signed up 2,400 emotional-support animals. Last year, it registered 11,000!

Because of services that allow individuals to simply pay a flat fee to get a license that qualifies the animals as an emotional support animal and, based on the above, associations should take the initiative in adopting emotional support / companion animal policies and procedures before the next request.   For example, once a person has been allowed an emotional support or companion animal, the association may, within a reasonable time from the original accommodation, request the member to provide a letter from his or her doctor re-certifying their need for an emotional support / companion animal.

The failure to properly accommodate a disabled person’s request can lead to an expensive and time consuming lawsuit, which can award attorney’s fees and costs to the disabled person. The Association can avoid pitfalls must remember that a reasonable accommodation under the Fair Housing Act is a highly fact-specific analysis and must be reviewed on a case-by-case basis and that associations can avoid pitfalls by seeking the assistance of its professionals when in receipt of such a request.

William Z. Kolobaric is an attorney with the law firm of Cummings, McClorey, Davis & Acho, P.L.C. where he focuses his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy and probate and estate planning. He has extensive experience in state and federal courts involving a wide scope of real estate, commercial litigation and creditor’s rights matters. He can be reached at (734) 261-2400 or wkolobaric@cmda-law.com.

Please view The Michigan Community Association Law Blog at http://www.micondolaw.com  for additional resources on Michigan Community Association Law.

July’s 50 a Month Donation

CMDA is honored and appreciative for the trust our clients have placed in our Firm since 1965.  As a way to give back to the community as we celebrate our 50th anniversary, every month throughout 2015 the Firm will be donating 50 items (or more) to a local charity.

In July, we are collecting food and supplies for PBJ Outreach, Inc., which is a non-profit organization focused on feeding and clothing the poor living in the Detroit metropolitan area. The organization unites volunteers and equips them to obtain, prepare and distribute food and clothing while creating an awareness of their obligation to service others.  As storage space is limited, PBJ Outreach, Inc. is in need of specific food and supplies.   

If you are interested in donating, please stop by our Livonia office with your contribution.  Thank you for your support!

Gov. Snyder Signs Law to Bar Municipal Wage, Employment Rules

Beth Rae ODonnellOn June 30, 2015, Governor Rick Snyder signed HB 4052 into law which stops local governments from adopting, administering or enforcing future ordinances or policies that require local businesses to pay wages, fringe benefits or leave time that exceed State or Federal requirements. The bill will take effect on September 28, 2015. Currently, Michigan’s minimum wage is $8.15 per hour which will rise to $8.50 per hour on January 1, 2016. This law does not affect existing ordinances.

Governor Snyder indicated that the new law will bolster the State’s job creation climate by ensuring that regulations regarding employment matters are uniform across the State. Michigan’s law mandating “prevailing” wages on state-financed projects still remains intact.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or erae@cmda-law.com.