AANC Lease amended to include coverage on Association membership, unauthorized use

The following sections of the AANC Lease Agreement were added as part of the latest (Fall, 2009) edition to dissuade copyright infringement and curtail theft of AANC intellectual property:

 A. MEMBERSHIP REQUIREMENT. In order for this Agreement to be valid and binding, We and the management entity acting as Our agent (if any, hereinafter "managing agent") must be, at the time of the signing of this Agreement and at the time of the signing of any additional document memorializing the renewal or extension of this Agreement, members in good standing of both the Apartment Association of North Carolina (AANC) and of the AANC-affiliated local apartment association, if any, for the area in which Home is located (both AANC and the AANC-affiliated local apartment association shall be referred to collectively for the remainder of this Paragraph as "AANC").

(a) If We or Our managing agent are not members in good standing of AANC as provided above, this Agreement is, at Your option, voidable and unenforceable by Us, though You agree that Your rights under this subparagraph shall be subject to the following conditions:

(i) You may only void this Agreement by providing Us notice in writing;

(ii) Should You void this Agreement, You shall vacate the Home immediately; and

(iii) When vacating the Home, You shall also remove all personal property from the Home immediately; and

(iv) You shall be considered a holdover tenant immediately upon Your voiding of this Agreement, and should You fail to vacate the Home and remove all personal property, You agree You are subject to summary ejectment (via legal process) from the Home;

(v) You shall not receive, nor shall We be liable for, a refund of any rent or fee previously paid under this Agreement, but You shall not be liable for any rent or fees that are unpaid as of the date You void this Agreement; AND

(vi) You shall be liable to Us for daily rent (prorated daily based on the value of the Total Monthly Rent) beginning the seventh (7th) calendar day after You void this Agreement until We obtain legal possession of the Home and until all of Your personal property is removed from the Home.

(b) Your right to void this Agreement, as described and conditioned in subparagraph (a), above, shall also apply if both of the following events occur:

(i) the Agreement is automatically renewed on a month-to-month basis three or more times after Our, or Our managing agent's, membership in AANC has lapsed, and

(ii) neither We nor the management company is a member of AANC at the time of the third automatic month to-month renewal.

 B. PROTECTION OF COPYRIGHT. By signing below, We and Our managing agent, if any, acknowledge that pages one through nine (1-9) of this Agreement is a lease form (pages one through nine of this Agreement hereinafter generally referred to as the "master lease form") exclusively created, owned, and copyrighted by AANC. As such, We and Our managing agent, if any, hereby represent that this form is either (i) an original master lease form purchased directly from AANC or from a local apartment association affiliate of AANC or (ii) a computer-generated version of the master lease form purchased from an authorized licensee of AANC. You and We agree that if the master lease form signed by You and Us is either a photocopyor a computer-generated version obtained fromany source other than an authorized licensee ofAANC, then this Agreement shall be void ab initio (i.e., null and void from the beginning, as if the Agreement had never been signed or otherwise agreed upon).

AANC Lease Usage and Copyright

Copyright Infringement. It is illegal to duplicate any AANC copyrighted forms or printed Materials. Copyright infringement includes any direct reproduction/photocopying of the AANC Lease or forms, or having/using such AANC Leases or forms (including computer-generated versions) that are obtained from ANY source other than an authorized licensee of AANC. Copyright infringement also pertains to any AANC Leases or forms that are obtained from unauthorized sources with slight editing to the AANC Lease or forms. The maximum statutory penalty for copyright infringement is $50,000. A significant copyright suit by the Texas Apartment Association resulted in the Association receiving a $10,000 settlement from a printer who plagiarized the TAA lease. Use of AANC-copyrighted forms is an exclusive benefit of membership in an AANC-affiliated Apartment Association. If you are no longer a member of an AANC-affiliated Apartment Association, you no longer have the right to use AANC Leases or forms.

Association Membership Requirement in Current AANC Lease

In order to execute an AANC Lease Agreement or to sign any additional document memorializing an AANC Lease renewal or extension, Lessors attest to their current membership in good standing in the Apartment Association of North Carolina and of an AANC-affiliated local apartment association. If a Lessor is not a member in good standing of the AANC as above, then the AANC Lease Agreement can become voidable and unenforceable (at the option of the Lessee), subject to certain conditions.

Cleaning Fees in Apartment Community Operation: An Analysis by the Apartment Association of North Carolina

By Ken Szymanski, AANC Executive Director and Will Brownlee, attorney-at-law

There are wide-ranging apartment industry practices regarding the imposition of cleaning fees at the end of residential tenancies. While this range generally falls under the umbrella of acceptable business practices and public relations, there are some considerations that the legal community advises be kept in mind. The Apartment Association of North Carolina conducted a confidential industry survey in the spring of 2003 to ascertain field practices in the context of the legal parameters. Sixteen firms operating over 10,000 apartments all over North Carolina participated.

Survey Results and Implications - Most of the respondents indicated that they do assess cleaning fees/charges, but they do not do so in a flat, nonrefundable manner. The most common response is that cleaning fees or charges are determined by the severity of the apartment conditions at time of move-out. Many firms use third party cleaning companies who will charge extra when the work performed in a given apartment is above customary and routine cleaning - these charges are merely passed on to the apartment firm and in turn to the resident. A number of companies provide a letter at move-in that details cleaning charges, as needed, by item. For example, one firm cites a $20 fee for a dirty stove, $15 for a dirty tub, and $85 for an entire dirty apartment. One company specifies vacuuming, cleaning, and mopping as the expected treatment of various surfaces. Respondents refer to AANC Lease Paragraph 35.C. (Resident's Duties Upon Termination) "Properly clean the Premises…." as the basis for their management approach, in conjunction with Paragraph 5.E.(3) cited below. One firm related that they take photographs of particularly dirty apartments and that "if it is clear on a Polaroid photo, it will stand up in Small Claims Court." Many properties will perform a walk-through with residents at the end of the tenancy and allow a 10 to 24 hour period in order to have the resident re-clean prior to a re-inspection.
Legal Considerations - The North Carolina Security Deposit Statute (N.C.G.S. 42-51) is silent on the matter of cleaning fees in articulating permitted uses of the deposit. Conversely, the AANC Lease allows deductions for "cleaning the Premises if not properly done by the Resident" (paragraph 5.E.(3)). Some attorneys believe this Lease clause may be unenforceable, unless those cleaning charges somehow rise to the level of damages exceeding normal wear and tear.

In one way, redecoration or cleaning fees seem to be flat fees charged — in some cases — no matter what condition the apartment may be in once the tenant vacates the property. They seem to be a way to pass on turnover/prep costs to the tenant.

Conclusion - The North Carolina Attorney General's Consumer Protection Office and the North Carolina Real Estate Commission's Legal Staff are fond of saying that apartment owners can only recover "actual damages" from residents. This is to fend off potential abuses. Any approach at estimated damages, automatic damages, or averaged damages is something for the apartment industry to avoid. The operative words in both AANC Lease references are "properly clean". In the specific area of assessing cleaning charges, it seems reasonable to pass along costs when third party cleaning companies charge extra for work performed in a given apartment that is above customary and routine cleaning.

EPA Issues Apartment-Friendly Final Ruling On Water Sub-metering

Apartment building and property owners that measure individual use of their tenants' drinking water are not subject to requirements under the Safe Drinking Water Act, according to an Environmental Protection Agency notice published in the Federal Register on Dec. 23, 2003. In a finalized memorandum, EPA said it was revising current policy to promote water conservation. Customers who are billed for the amount of water they consume are encouraged to conserve, EPA said.

Until now, owners of apartment buildings and other properties that met the definition of a public water system and billed tenants for the water through sub-metering were considered to be "selling the water" and therefore independently subject to full regulatory requirements under SDWA. A public water system is defined by EPA as one that provides water to the public for human consumption and has at least 15 service connections serving at least 25 people. Sub-metering refers to a billing process by which a property owner, or association of property owners, bills tenants based on a metered tool.

The revised policy, effective Dec. 16, should not affect the quality of drinking water, as the public water system that provides the water is still subject to the drinking water law, according to EPA. Moreover, the public water system must make "good faith efforts" to provide apartment tenants with annual water quality reports, known as Consumer Confidence Reports, EPA said. Approximately 15 percent of the U.S. population lives in apartments, according to EPA.

The web link to the Official Federal Register Notice is:
http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/pdf/03-31588.pdf

New N.C. Limited Fire Sprinkler Maintenance License Requirements

Technicians who carry out periodic maintenance of fire protection systems (such as minor repairs, the replacement of activated or damaged sprinkler heads, the lubrication of control valves and /or other tasks that the National Fire Protection Association manual categorizes as maintenance) must now be licensed in the Limited Fire Sprinkler Maintenance classification. These licenses are issued based on demonstrated experience and training; they expire annually on December 31st.

Applicants for licensure in the Limited Fire Sprinkler Maintenance classification have until July 1, 2004 to satisfy the experience requirement with evidence of 4,000 hours of full-time employment in the field of facility maintenance, including the periodic maintenance of fire protection systems (as detailed above.) After July 1, 2004, applicants for initial licensure must submit evidence of both 2,000 hours of full-time facility maintenance employment (including the same periodic maintenance of fire protection systems) and 18 hours of classroom instruction in NC State Board of Examiners-approved training in fire systems, maintenance, repair, and restoration to service.

AANC and N.C. League of Municipalities Clarify Allowable Pass-Through of Local Government Stormwater Fees

In response to a number of inquiries from AANC members across the state, the Association has had conversations with key state and local government attorneys about the practice of "passing through" local government fees to residents, such as for stormwater runoff management or solid waste collection/disposal. Passing through stormwater or garbage fees that are assessed to an apartment property owner is permissible, but it is clear that the property owner is the party ultimately responsible for paying the fee to the municipality. AANC spoke with Ellis Hankins, the Executive Director and chief lawyer with the North Carolina League of Municipalities, about this matter. The key point, regarding North Carolina law and local and state utility policies, is that the multifamily rental housing property owner MUST be the responsible party in paying the municipal service bill; the duty cannot be subrogated to residents. If the monthly bill is say, $500 for stormwater fees (some municipalities may assess fees semi-annually), it must be retired in total by the owner. Municipalities will not and cannot be involved with collecting from individual apartment households, nor with all the vagaries of nonpayment. Mr. Hankins clarified that a bill-paying apartment owner may then in turn either add a pro rata share of the total property stormwater fee to a contracted apartment base rent, or assess a monthly fee to each lessee covering the pro rata share.

Note that the current AANC Lease Agreement does not mention stormwater fees in the "Utilities and Services to be paid by Lessor" box; further, for garbage service, if not paid by lessor, the language reads that the resident must "obtain" it (implies from a third party). The next AANC Lease/Handbook revision will modify this section. The only utility/services currently governed by the North Carolina Utilities Commission are water and sewer services, by N.C. G.S. 62-110(g). According to Mr. Hankins, the NCUC is not involved with other local utilities. Note that regarding the AANC Lease, non-payment for any utilities when due - with the exception of water and sewer services

- shall be considered a material breach of the lease for which Lessor may terminate the Agreement.

Local stormwater fees are usually calculated based on apartment property impervious surface area (rooftops and asphalt square footage); the monthly amount is typically fixed for a given year. An apartment owner could reasonably divide this total property bill by the number of units or even become more scientific and allocate by apartment size; devising a lease addendum should be easy to perform until the next AANC Lease revision is complete. Even though the Utilities Commission is not involved, AANC cautions its members to be careful not to exceed their total bills, plus small and realistic administrative fees, in the allocation process, thus steering clear of any "unfair and deceptive trade practices", cited in N.C.G.S. 75-1.1, which carry possible treble damages.

N.C. Commission for Health Services Sets New Rules for Apartment Swimming Pools

At their meeting on November 14th, the Commission for Health Services considered some twenty-three proposed amendments to the state Public Swimming Pool Rules. In some of the more noteworthy changes, the Commission did approve a Safety Provision (18A .2530), regarding the location of the required emergency telephone. Effective April 1, 2005 the telephone shall be permanently affixed to a location inside the pool enclosure or outside the enclosure within 75 feet of a bather entrance. This change will modify the current rule of the phone's location being "accessible to all pool users within 300 feet of the pool."

In response to some well-publicized events involving suction hazards and pool drain covers, the Commission made a substantial change to 18A .2539 that will affect many older apartment pools: Effective April 1,2006 all public swimming pools with a single main drain shall be protected from potential bather entrapment by a safety vacuum release system installed on the drain piping and single drains smaller than 12 inches in diameter shall be protected by an anti-entrapment drain cover meeting AMSE/ANSI A112.19.8M standard which is incorporated by reference including any subsequent amendments and additions.

Section 18A .2534 contains the following new language:

Public swimming pools constructed after April 1, 2004 shall provide a separate room for storage of pool chemicals.

The Commission also approved other new rules, including:

• A new inspection demerit system with some 33 aspects eligible for assessment including water clarity, operator training, pool water pH, lifesaving equipment, signage, lighting, maintenance, and filter/circulation systems.
• Circulation system requirements of at least one inlet per 20 gallons per minute of return water flow and an inlet location requirement so that no part of the swimming pool is more than 25 feet of horizontal distance from the nearest return inlet.
• New deck language calling for a vertical clearance of at least seven feet from all parts of the required clear walk space for structures covering swimming pools.
• New depth marking and lighting language requirements.
• A new section on Children's Activity Pools as a subset of 18A .2531 Wading Pools.
• A new section on pool operator duties in managing fecal accidents as part of Water Quality Standards 18A .2535.
• A new section on so-called "Interactive Play Attractions" (popular in mixed-use developments) as a subset of 18A .2543 Water Recreation Attractions.
• Modified fence requirements in 18A .2528.

Landlords Now Face Liability: Supreme Court extends responsibility for tenant dogs' bites, changes NC case law

RALEIGH — The N.C. Supreme Court ruled June 25 that landlords can he held liable under certain circumstances for bites inflicted by tenants' dogs. The ruling represents a significant change in North Carolina case law. Traditionally, North Carolina law has required that a bite victim must prove that a dog was vicious and that the owner knew of the dog's dangerous nature before the victim could recover medical costs from the owner. A victim could also sue the owner based upon their the owner's negligence. As a practical matter, recovering costs often proved difficult or impossible if the dog owner had a limited income, few assets, and wasn't covered by homeowner's or renter's insurance. Renters often fit this description. The new ruling creates an alternative means for bite victims to attempt to recover damages, allowing them to sue landlords, who likely have a greater ability to pay, under a theory of negligence. Colonial Associates, L.L.C owned 13 acres of land in Wake County. The company leased out two houses on the property through Management Associates, a rental property management company, while trying to sell the entire estate. John Olson, who owned two Rottweiler dogs, rented one of the houses. Ordinarily, the lease limited Olson to having only one pet, but Management Associates allowed Olson to keep the second dog as well. The rental contract also provided that the tenant must "remove any pet… within forty-eight hours of written notification from the landlord that the pet, in the landlord's sole judgment, creates a nuisance or disturbance or is, in the landlord's opinion, undesirable." Management Associates was also aware of two incidents in which Olson's Rottweilers had attacked people and that he let the dogs run free on the property. On April 18, 1996, Cecil Holcomb, a demolition contractor and licensed builder, went to the Olson house. A potential buyer had hired Holcomb to estimate how much it would cost to tear down the rental homes. Holcomb rang the doorbell, but got no response. As he attempted to walk to the back of the house, the two Rottweilers approached him. One of the dogs lunged, knocking Holcomb down; he suffered a distal radius fracture and back injuries. Holcomb sued Olson and Colonial Associates. Holcomb argued that the landlord was negligent in allowing Olson to continue to keep the dogs on the property and that Olson should be held strictly liable for his dog's actions. At trial, a jury found for Holcomb and awarded $330,000 in damages. Colonial Associates appealed the verdict to the N.C. Court of Appeals, which threw out the award. However, because the appeals court split to 2- 1 in its ruling, the case also came before the N.C. Supreme Court. The high court held that Holcomb could bring his lawsuit based upon a theory of negligence against Colonial Associates. "The fact that we recognize a strict liability cause of action against owners and keepers of vicious animals… does not preclude a party from alleging negligence (a different cause of action) against a party who may or may not be an owner or keeper of an animal " Justice Robert Orr wrote for the court. The court also rejected Colonial's argument that it did not have a duty of care to third parties because it did not have control over the dogs. Noting the lease language that allowed the landlord to require the tenant to remove a pet on 48 hours notice, the Supreme Court found that Colonial and Management Associates had sufficient control to remove the danger posed by Olson's dogs. In addition, the Supreme Court found that facts existed upon which the jury could conclude that Management Associates was Colonial's agent, and that Holcomb was a lawful visitor, not a trespasser. "Unlike a hole that can be filled or a broken step that can be repaired, an animal is not a condition of the premises," Justice Parker wrote. "Animals are mobile and have moods and personalities. Thus, to hold that a landlord can be liable in negligence for an attack by a tenant's animal on account of the landlord's failure, pursuant to the terms of a lease, to order removal of an animal places an undue burden on the landlord. In my opinion the control is too remote to hold that the landlord breached its duty of care. Notwithstanding the majority's overture to dogs, today is, I fear, a sad day for Fido and Rover." The case is Holcomb v. Colonial Assocs., LLC, (581A02)

Final Order of North Carolina Utilities Commission on Inside Wires

courtesy of Gerry Lederer of Miller & Van Eaton

On January 12, 2006, the North Carolina Utilities Commission ("NCUC") issued an order and rule ("Order") in its inside wire proceeding (P-100 Sub 152). This is the third order issued by the Commission, and like the first two, it does not mandate access to private property in favor of telecommunications providers. Still, the Order could potentially nega­tively impact the ability of commercial real estate owners and managers to recover fees from carriers accessing their property. Worse, some carriers may seek to use the Order as a means to escape previously executed access agreements that contain financial terms favorable to the property owner.

WHAT THE ORDER SAYS: In previous rulings the Commission outlined its inability and unwillingness to mandate a property access obligation on real estate owners and affirmatively recognized a real estate owner's right to control ac­cess to their property. The January Order, however, makes no such points. The Order simply lists a number of the issues raised by parties in support of their respective reconsideration petitions to previous orders. The Commission dismisses those requests for clarification (including requests from the Real Access Alliance, a group of NC real estate interests which includes the AANC) and releases its final rule as an Exhibit entitled "Fair Competition Among Local Telecommu­nications Service Providers."
The new rule establishes Commission oversight of any preferred provider contract ("PPC") executed by a carrier in North Carolina. A PPC is defined in the rule as "a contract between a particular local service provider and the owner or developer of a development, giving the preferred provider special status or rights not available to other local service providers." (Section (a)(8) of Order.) The Commission next bans a carrier from agreeing to three terms common in PPCs, including Exclusive Access agreements, Exclusive provisioning terms, and Use of weighted contracts in a preferred provider contract unless carrier elects a new status in North Carolina called "Electing Provider."

ANTICIPATED CHALLENGES/SUGGESTED RESPONSES TO THE ORDER: There are two challenges likely to be faced by real estate professionals in North Carolina following the Order.

• Carriers will seek to employ the Order as a means to liberate themselves from fees owed pursuant to access agree­ments, claiming that such payments are now barred.
• Carriers will refuse to provide compensation for access to properties claiming such payments are barred, or will argue they must maintain total control over their sub loops and therefore will not become "electing carriers."

The answer to the first claim is simple. The Order does not ban payments in existing or future contracts so long as the carrier complies with the NCUC Order. Contracts old and new alike should not permit a carrier by their inaction, i.e. failing to comply with the Order, to be the beneficiary of the ban on weighted contracts in PPCs. Access agreements entered into from this date forward should make clear that there is an ongoing obligation on the carrier to comply with all NCUC prerequisites for the payment of an access fee is any contract, regardless of whether the terms of the agree­ments renders it a PPC.

The second anticipated response is harder to address. Real estate professionals, especially those in the residential sec­tor, will be challenged to make an access agreement attractive enough for a carrier to serve their building/development and provide an access fee for such access and not run afoul of the new rules.

Since the triggering event of the Order is a carrier entering into a PPC, real estate professionals should explore means to achieve their goals without entering into PPC. For instance, there is no ban on a real estate professional entering into an exclusive marketing agreement with a provider. This independent agreement need not address access terms at all.

CONCLUSION: The Order is more favorable to real estate than that proposed by the NCUC staff prior to the interven­tion of the Real Access Alliance. The Order does not include everything the RAA sought and with the creation of multiple rules on PPC has the potential to result in market confusion and losses to real estate. An active educational effort by the RAA and its North Carolina affiliates could reduce this confusion and potential for mischief.

Federal Requirements Affect NC Pool/Spa Operators

The Virginia Graeme Baker Pool and Spa Safety Act of 2007 established U.S. Consumer Product Safety Commission standards for pool and spa safety, including suction drain safety requirements and recommended state pool fence standards. One of the suction drain safety requirements is that all public swimming pools must install anti-entrapment drain covers meeting the ASME/ANSI A112.19.8-2007 Standard on all suction drain outlets by Dec. 19, 2008. There are no enforcement provisions in the federal law, which leaves it up to the states to begin enforcement. The Division of Environmental Health is beginning the process to adopt the drain safety standards into the North Carolina Rules Governing Public Swimming Pools. It will take about one to two years before enforcement of these provisions on public swimming pools with multiple drains takes place in North Carolina. It is unlikely any state or local enforcement will begin before the 2010 swimming season. In the meantime, the federal law creates a duty of care for all owners and operators of public swimming pools to install drain covers meeting the ASME/ANSI A112.19.8-2007 Standard. What this means for public swimming pool owners is that new anti-entrapment drain covers will need to be installed on all pool suction drains. Very few drain covers installed prior to 2009 meet the new standards. Disabling existing pool drains is not an option, since that would violate current state rules resulting in denial or suspension of a public swimming pool operation permit. Approved drain covers will need to meet the ASME/ANSI A112.19.8-2007 Standard. Drain covers meeting earlier editions of the standard are unlikely to be approved under the current standard. The new federal law prohibits commerce of the older style drains after December 2008, but pool owners need to verify the drain covers installed are not manufactured under the older standards. The only exception are drains too large to be blocked by a human body, including large-aspect covers 18-inches by 23- inches or larger and channel drains 3-inches by 31-inches or larger. For additional information and answers to FAQs, visit this page of the NCDENR's website :http://www.deh.enr.state.nc.us/ehs/images/pti/VGB_Questions.pdf

New EPA Regulations Address Lead-Based Paint Hazards

Children are exposed to lead primarily through lead-based paint and lead contaminated dust and soil found in and around homes built before 1978. Common renovation activities like sanding, cutting, painting, and demolition can create hazardous lead dust and chips by disturbing lead-based paint and other coatings, which can be harmful to adults and children. Without proper precautions, disturbing the lead-based paint and coatings in homes allows dust to settle on toys, windowsills and floors. Children can then easily swallow bits of dust and paint chips. To protect against this risk, on March 31, 2008, The United States Environmental Protection Agency (EPA) issued the Lead; Renovation, Repair and Painting Program rule requiring the use of lead-safe work practices and other actions aimed at preventing lead poisoning. Under the rule, beginning in April 2010, firms and their contractors performing renovation, repair and painting activities that disturb lead-based paint and coatings in homes and child-occupied facilities built before 1978 (single- and multi-family), must be certified, use trained workers and must follow specific work practices to prevent the creation of lead hazards. Currently, persons performing renovations for compensation in pre- 1978 housing and child-occupied facilities must provide either the "Protect Your Family From Lead In Your Home" or the "Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools" pamphlet to the owners and occupants before beginning renovation activities. Beginning in December 2008, the rule requires that only the "Renovate Right: Important Lead Hazard Information for Families, ChildCare Providers, and Schools" lead hazard information pamphlet be provided to owners and occupants of target housing and child-occupied facilities. To get a copy of the pamphlets and regulation mentioned above go to the U.S. Environmental Protection Agency's Web site at http://www.epa.gov/ oppt/lead/index.html. For more information about the EPA Lead; Renovation, Repair and PaintingProgram Rule call the N.C. Department of Health and Human Services, Divisionof Public Health, Health Hazards Control Unit (HHCU) at (919) 707- 5950.

N.C. Legislature Passes Hot Water Allocation Bill

In a major victory for the AANC and the North Carolina apartment industry, the N.C. House and Senate approved S661, which for the first time will allow the "hot water capture/cold water allocation" method of sub-metering to be used in apartments built prior to 1989. This marked the culmination of several years of work for the AANC at the state and local levels to broaden the reach of apartment water sub-metering to include older properties that could not feasibly convert to full water sub-metering because of their plumbing systems. With this new law, which becomes effective on October 1, 2009, about 25% of apartment properties in urban N.C. will now be able to bill for water use, with resultant positive impacts on water conservation, consumer equity, and housing affordability. AANC continued to work on this bill throughout the Legislative session with other stakeholders, primarily the North Carolina Justice Center; the bill ultimately included various landlord/tenant provisions (discussed later in this column). Here is the key language of the new law: If the contiguous premises were built prior to 1989 and thelessor determines that the measurement of the tenant's totalwater usage is impractical or not economical, the lessor mayallocate the cost for water and sewer service to the tenantusing equipment that measures the tenant's hot water usage.In that case, each tenant shall be billed a percentage ofthe landlord's water and sewer costs for water usage in thedwelling units based upon the hot water used in the tenant'sdwelling unit. The percentage of total water usage allocated for each dwelling unit shall be equal to that dwelling unit's individually submetered hot water usage divided by all submetered hot water usage in all dwelling units.

The following conditions apply to billing for water and sewer service under this subdivision:

1. A lessor shall not utilize a ratio utility billing system or other allocation billing system that does not rely on individually submetered hot water usage to determine the allocation of water and sewer costs.
2. The lessor shall not include in a tenant's bill the cost of water and sewer service used in common areas or water loss due to leaks in the lessor's water mains. A lessor shall not bill or attempt to collect for excess water usage resulting from a plumbing malfunction or other condition that is not known to the tenant or that has been reported to the lessor.
3. All equipment used to measure water usage shall comply with guidelines promulgated by the American Water Works Association.
4. The lessor shall maintain records for a minimum of 12 months that demonstrate how each tenant's allocated costs were calculated for water and sewer service. Upon advanced written notice to the lessor, tenant may inspect the records during reasonable business hours.
5. Bills for water and sewer service sent by the lessor to the tenant shall contain all the following information:
   1. The amount of water and sewer services allocated to the tenant during the billing period.
   2. The method used to determine the amount of water and sewer services allocated to the tenant.
   3. Beginning and ending dates for the billing period.
   4. The past-due date, which shall not be less than 25 days after the bill is mailed.
   5. A local or toll-free phone number and address that the tenant can use to obtain more information about the bill. As part of the compromised negotiations on the bill, the new statute includes several Landlord/Tenant Law changes, including a new statewide minimum housing quality standard (affects mostly rural areas); and a new approach for a landlord to charge a complaint filing fee (aka "Administrative Fee") of 5% of the monthly rent or $15, whichever is greater.

New Apartment Accessibility Rules To Go Into Effect

In another major AANC fight and victory, the new construction accessibility rules go into effect generally when the 2009 N.C. Legislature adjourns later this year. North Carolina Senate Bill 607 - Disapprove Building Code CouncilRule: this Accessibility bill was defeated in Committee on May 12th, with only 4 out of 20 legislators voting for the bill. Thus, the attempt at overriding the Building Code Council's adoption of the International Building Code Chapter 11 with North Carolina amendments was defeated. The enforcement date per state rules was the last day of the legislative session. The NC Building Code Council, however, put a transition date of January 1st, 2010 allowing both to be used until then.

What is in effect now?
The current 2002 NC Accessibility Code with 2004 Amendments is in effect until the NC legislature goes home. Provisions in 2009 NC Building Code such as NCBC 1007, NCBC 3409, and Appendix E have already been in effect for buildings using the 2009 NC Building Code. Some of these provisions may replicate provisions in the 2004 NC Accessibility Code. Some, such as NCBC 1007.3, which requires areas of refuge for all buildings, even sprinklered ones, with few exceptions, may be more restrictive. Horizontal exits may be used to access the area of refuge. NCBC 1007.2 requires an elevator in a building for one path of egress 4-stories above the level of exit discharge.

When does NC Building Code Ch. 11 and ANSI A117.1 go into effect?
The note at the beginning of the 2009 NC Building Code Ch. 11 states that Ch. 11 and ANSI A117.1 ("the rule") go into effect on the day of adjournment of the legislature's current session. On June 9, 2009, the NC Building Code Council voted to allow a transition period between the current NC Accessibility Code (NCAC) and Ch. 11 and ANSI A117.1. The transition period will extend from the time that the legislature adjourns until December 31st, 2009. During that time, a designer may choose whether to design the building using the 2004 NCAC or 2009 NCBC Ch. 11 + ANSI A117.1.

May Ch. 11 & ANSI A117.1 be used before the legislature adjourns (before the enforcement date)?
Some jurisdictions have asked if the new requirements may be used before the enforcement date, particularly on large projects that are pulling foundation permits near the end of the legislative session. This is acceptable based on the use of NCBC Ch. 11 and ANSI A117.1 as an Alternate Method under NC Administrative Code 105.1 as both NCBC Ch. 11 and ANSI A117.1 have been adopted by the NC Building Code Council and approved by the Rules Review Committee. It is still a matter where designers will have to address the worst case scenario between the applicable codes (NCAC and NCBC Ch. 11/ANSI A117.1) since both will apply on a state and federal level.

N.C. Recycling Mandate Effective October 1st

During the 2005 legislative session, the N.C. General Assembly passed House Bill 1465, banning plastic bottles from landfill disposal effective October 1, 2009. The law does not apply to plastic containers used for motor oil or pesticids. Essentially, the state is mandating recycling of plastic bottles. At least 95 percent of North Carolina residents have access to some type of plastic bottle recycling through local government programs - although the "access" is highly variable in urban North Carolina, ranging from specialized service at apartment properties in some major cities such as Raleigh and Charlotte to managing a single recycling center in a city or a county where individual households must transport recyclables to a single point on a regular basis. Unfortunately, North Carolinians collectively currently only recycle 18 percent of PET plastic bottles! In apartments, several major North Carolina cities provide recycling service at the property level. Others do not. Many cities have evolving programs, such as going to so-called "single-stream" recycling programs (this allows co-mingling of recyclables instead of having to saddle apartment residents with the duty of having to separate recyclables such as paper, plastic, and aluminum). There are many ways to recycle plastic bottles. To determine the recycling services available in your city or county, use this link: http://p2pays.org/localgov/ncwaste.html. You can also work with your current trash hauler or recycling service provider to start a program. If you need additional help or guidance, call the North Carolina Department of Environment and Natural Resources, Division of Pollution Prevention and Environmental Assistance at 919-715-6500 or 800-763-0136.

N.C. Pool Rules: Requirements Modified

The N.C. apartment industry fared well at the North Carolina Commission for Public Health meeting on NC Public Swimming Pools held February 17, 2010 in Raleigh.
In response to strong AANC arguments about proposed Public Pool fence and door alarm requirements, the most onerous proposed rules - that would have required ALL existing properties to have both substantial retrofit mandates and clubhouse door alarms when adjacent to pool decks - were pulled just prior to the Commission meeting by NC Environmental Health staff. AANC made the arguments that the proposed rules would have economically disastrous to many apartment properties, and that accessibility and fire code coordination appeared to have been minimal.

Under the revisions approved today for a May 1, 2010 effective date, the only change that will apply to pool fences will be a requirement for pool fences with gates built before 1996 with a gate swing toward the pool to reverse the gate swing by April 1, 2011 (unless Fire Code overrides this provision or in cases of slope or topography problems). Both existing properties and new construction will continue to have a duty for ground level doors opening from occupied buildings to inside the pool enclosure to be either self-closing or child-protected.

The new rules ratified today make it doubly clear that Public Pool owners must provide documentation to State or County Health officials pertaining to suction hazard reduction under the Virginia Graeme Baker Act, namely:

• Documentation of the maximum possible flow rate for each pump suction system;
• Documentation that covers/grates meeting national standards are installed in compliance with the standard and manufacturer's instructions;
• Documentation that drain sumps meet the dimensional requirements specified in the cover/grate manufacturer's installation instructions.

Renewable Energy and Wind Turbines: a Mandate, But Drawing Fire

The North Carolina Legislature has mandated that renewable energy account for 12.5% of all generated energy in the state by 2021. "Renewable" usually means wind, solar, and so-called "biofuels" (as opposed to coal, natural gas, or nuclear power) as a means of providing energy for urban North Carolina, including apartment communities.

But the promise of large, industrial-sized wind turbines as a source of clean, renewable energy are drawing fire from the N.C. Legislature, which sees them as monstrosities that will mar the scenic beauty of the western mountains. In August, the N.C. Senate took the nation's firmest stand against these turbines by voting 42 to 1 to ban them.

The one vote in favor of the turbines came from a mountain legislator - Sen. Steve Goss, from Watauga County. Senate Bill 1068 amends a 1983 ridge law to allow only turbines that are 100 feet or smaller on mountaintops above 3,000 feet. While environmentalists are against the bill in its current form, they say a previous iteration of the bill was acceptable in that it struck a balance in protecting the western N.C. mountains as well as allowing for the potential of wind energy. "There is a misconception that the original form of this bill would allow turbines everywhere, which is simply not true," says Brandon Blevins, wind program coordinator for the Southern Alliance for Clean Energy. Blevins was trying to calm fears that giant turbines would turn up along the Blue Ridge Parkway, Appalachian Trail, or other scenic areas. "Permits would have been denied if the construction would have significant adverse impacts on views from any state park or high recreation lands. It would have been a very complex and thorough permitting process," Blevins says. He notes that the approval process would include studies of the impacts of noise and shadow flicker, the obstruction of mountain views, and the effect on endangered species, among other criteria. Appalachian State University, which is located in Watauga County, recently installed a wind turbine on campus, albeit smaller than the industrial-sized ones targeted in the ban. The use of wind power has grown in North Carolina, where 47 percent of the state's electricity comes from coal. The wind turbine debate is due to be picked up by the N.C. House when it reconvenes in May 2010. If the bill is voted down, Blevins says, "two-thirds of the potential wind power for the entire state would no longer be viable."

New North Carolina Laws That Affect Rental Housing Providers:

Stronger Penalties for Willful Non-Compliance with Security Deposit Laws

Effective October 1, 2009, N.C. GEN. STAT. & 42-55 imposes new penalties for a landlord's "willful" failure to comply with the deposit, bond, or notice requirements of the applicable security deposit laws. Upon the showing of any "willful failure" of compliance with N.C. security deposit laws, a landlord would lose the right to retain any portion of the deposit. The term "willful" has been defined by the N.C. Supreme Court as "the wrongful doing of an act without justification or excuse, or the commission of an act purposely and deliberately in violation of law." State v. Ramos, 363 N.C. 352, 378 S.E.2d 224 (2009). This is a very interesting definition for landlords. Landlords are part of a highly regulated industry and are expected to know that industry's laws. Along these lines, the U.S. Supreme Court famously stated nearly 100 years ago that ignorance of the law is no excuse. Shevlin-Carpenter Co. v. State of Minn., 218 U.S. 57, 30 S.Ct. 663 (1910). Thus, we know that a landlord's failure to know the security deposit laws cannot be excused. As such, it will be an interesting question whether a landlord can say that their ignorance or inadvertence of certain security deposit laws is justified, to fit the State v. Ramos definition. It is far better to assume that the answer to that question is No, and to make every effort to comply with these laws. Otherwise, you will run the risk of a lawsuit.

New Fees for Evictions
Effective October 1, 2009, a landlord may charge certain fees related to an eviction of a tenant. However, these fees must be specifically provided by the lease; they are not automatically owed simply because they are in a statute. If you intend to charge such fees, you must ensure that all leases signed after October 1 contain provisions for thesefees; if you do not, you may not charge them against your tenants.

The new charges are:

• Complaint-Filing Fee: A fee equal to five percent (5%) of the monthly rent, in addition to court costs, attorney's fees, and any late fee owed. This can be charged if you filed a complaint for a default of the lease, and the tenant cured the default, and you elected to dismiss the case prior to trial.
• Court-Appearance Fee: A fee equal to ten percent (10%) of the monthly rent, in addition to court costs, attorney's fees, and any late fee owed. This can be charged if you filed a complaint for a default of the lease, you obtained a judgment, and the tenant did not appeal it.
• Second Trial Fee: A fee equal to twelve percent (12%) of the monthly rent, in addition to court costs, attorney's fees, and any late fee owed. This can be charged if you filed a complaint for a default of the lease; you obtained a judgment; the tenant appealed the case to District Court, and you obtained a district court judgment. There are certain limitations to these fees that you must keep in mind: You can only charge ONE of these fees. For example, if you filed an eviction against a tenant, and if you charged and collected a complaint filing fee, you cannot also charge a court-appearance fee. You settled, in essence, by accepting the complaint-filing fee.
• Again, these fees are in addition to your normal late fees.
• In terms of an eviction, you cannot charge any other fees besides late fees, court costs, and attorneys fees - regardless of what your lease may say.
• These laws only affect leases signed after October 1, 2009. Existing leases will be grandfathered until the end of the current term of the lease; do not assume that month to- month leases are exempt; you should seek to have tenants on month-to-month leases sign new lease forms after October 1, 2009.
• Any other fees in leases signed after October 1, 2009 are void and against public policy. Be careful with the "against public policy" aspect, since it can form the basis for an unfair/deceptive trade practice claim. This means that you cannot charge administrative fees for evictions on all leases signed after October 1, 2009.
• For section 8 or other subsidized leases, these fees are only on the tenant's portion of rent, not the gross rent. NOTE: You should NOT list these fees as damages in your eviction case. Why? Because according to these new statutes, the fees do not become ripe - that is, you are not eligible to claim them - until after the cases are over or dismissed, respectively. It is premature to demand them as part of your eviction lawsuit. They are to be collected afterwards - not beforehand.

Mandatory Carbon Monoxide Detectors
Effective January 1, 2010, N.C. Gen. Stat. & 42-42(a) is revised to add a new subsection (7) mandating the installation of carbon monoxide detectors in rental units statewide, where those rental units have (1) a fireplace, (2) a fossil-fuel burning heater or appliance, or (3) an attached garage. The new law mimics the smoke detector provisions in terms of who is to provide batteries and when. Though a landlord is required to install new batteries in the smoke detectors at the beginning of the tenancy, the tenants are expected to replace the batteries as needed during the tenancy.

Lead-Based Paint Hazard Program in North Carolina

The U.S. EPA will begin enforcing the new rules for its Lead Renovation, Repair, and Painting Program on April 22, 2010. In North Carolina, the rules will be administered by the N.C. Department of Health and Human Services - Division of Public Health (http://www.ncpublichealth.com). For pre-1978 housing, a significant number of apartment maintenance personnel who potentially disturb wall surfaces in excess of 6 square feet will need to complete an 8-hour training session prior to April 22nd, though individuals who receive training can in turn be authorized to train other personnel. There is a maximum 1:30 "class size" ratio and a 1:10 "hands-on training" ratio. Currently, there are four EPA-accredited training firms operating in N.C. - the Alliance for Healthy Homes in Durham, along with groups in New Bern (Craven County), in Morrisville (Wake County), and Greenville (S.C.) Tech. For more information, contact Don Chaney of Division of Public Health at 919-707-5974. AANC local affiliates will likely be staging this training.

Extension of Development Approvals in S831

Concern about the impacts of the recession on the development industry was the impetus behind enactment of S831 to extend previously-issued local and state development approvals that would otherwise expire. This extension applies to any approval at any point during the period beginning January 1, 2008 and ending December 31, 2010, and covers preliminary plats, development plans, building permits, and a number of other development approvals. This could be very important to apartment developers in terms of vested rights. The language in this Session Law is actually more permissive than this 3-year window, according to Richard Ducker, a land-use law expert with the School of Government at UNC-Chapel Hill. Permits that expired after January 1, 2008 but prior to the effective date of the law are revived by this law. Also, in all likelihood, the maximum amount of time left on an approval at any time during the three year period only starts to run on January 1, 2011.

NCUC issues Hot Water Billing Orders; AANC Submits Petition

On Sept. 29th, the North Carolina Utilities Commission issued two Orders pertaining to SB661: an Order Adopting New and Revised Application Forms, and an Order Initiating Rulemaking Proceeding. There were no surprises with the Application Forms Order, but the Rulemaking Order contains a section requiring providers to subtract 20% of the total amount of water purchased by the provider for common area usage and leakage. AANC submitted a petition to the NCUC on October 16th, contending that the 20% common area usage subtraction was too high and inflexible to each property condition/application.

New N.C. Ad Hoc Accessibility Code Committee Meeting & Deliberating

Fresh on the heels of the N.C. Legislature endorsement of the Accessibility changes in the state Building Code, a new ad hoc Accessibility Committee has been named by North Carolina Building Code Council Chairman Dan Tingen. Purpose: to examine the new 2009 International Building Code's Accessibility Chapter (compared to the current N.C. Code), and make recommendations to the NCBCC based on the comparison and the Committee's sense of North Carolina's best course for incorporation into a new 2011 NC "Blue Pages" Code. The AANC is serving on the Committee, whose members are:

Carole Acquesta, AIA, PE, Director, Capital Project Design, NC State University (Committee Chair)
John Llwewllyn Hitch, AIA, Smith Sinnett Architecture
Mark Humienny, AIA, IBI Group
Ken Szymanski, Apartment Association of North Carolina
Annaliese Dolph, Disability Rights North Carolina
Julia Leggett, The Arc of North Carolina
Julius Register, City of Greensboro Dept. of Inspections
Leslie Young, R.L. Mace Universal Design Institute

AANC Lease amended to include coverage on Association membership, unauthorized use

The following sections of the AANC Lease Agreement were added as part of the latest (Fall, 2009) edition to dissuade copyright infringement and curtail theft of AANC intellectual property:

A. MEMBERSHIP REQUIREMENT. In order for this Agreement to be valid and binding, We and the management entity acting as Our agent (if any, hereinafter "managing agent") must be, at the time of the signing of this Agreement and at the time of the signing of any additional documentmemorializing the renewal or extension of this Agreement, members in good standing of both
the Apartment Association of North Carolina (AANC) and of the AANC-affiliated local apartmentassociation, if any, for the area in which Home is located (both AANC and the AANC-affiliated
local apartment association shall be referred to collectively for the remainder of this Paragraph as "AANC").(a) If We or Our managing agent are not members in good standing of AANC as provided above, this Agreement is, at Your option, voidable and unenforceable by Us, though You agree that Your rights under this subparagraph shall
be subject to the following conditions:
(i) You may only void this Agreement by providing Us notice in writing;
(ii) Should You void this Agreement, You shall vacate the Home immediately; and
(iii) When vacating the Home, You shall also remove all personal property from the Home immediately; and
(iv) You shall be considered a holdover tenant immediately upon Your voiding of this Agreement, and should You
fail to vacate the Home and remove all personal property, You agree You are subject to summary ejectment (via legal process) from the Home;
(v) You shall not receive, nor shall We be liable for, a refund of any rent or fee previously paid under this Agreement, but You shall not be liable for any rent or fees that are unpaid as of the date You void this Agreement; AND
(vi) You shall be liable to Us for daily rent (prorated daily based on the value of the Total Monthly Rent) beginning the seventh (7th) calendar day after You void this Agreement until We obtain legal possession of the Home and until all of Your personal property is removed from the Home.
(b) Your right to void this Agreement, as described and conditioned in subparagraph (a), above, shall also apply
if both of the following events occur:AANC NEWS Page 5
(i) the Agreement is automatically renewed on a month-to-month basis three or more times after Our, or
Our managing agent's, membership in AANC has lapsed, and
(ii) neither We nor the management company is a member of AANC at the time of the third automatic month to-
month renewal.

B. PROTECTION OF COPYRIGHT. By signing below, We and Our managing agent, if any, acknowledge that
pages one through nine (1-9) of this Agreement is a lease form (pages one through nine of this Agreement hereinafter generally referred to as the "master lease form") exclusively created, owned, and copyrighted by AANC. As such, We and Our managing agent, if any, hereby represent that this form is either (i) an original master lease form purchased directly from AANC or from a local apartment association affiliate of AANC or (ii) a computer-generated version of the master lease form purchased from an authorized licensee of AANC. You and We agree that if the master lease form signed by You and Us is either a photocopyor a computer-generated version obtained fromany source other than an authorized licensee ofAANC, then this Agreement shall be void ab initio
(i.e., null and void from the beginning, as if the Agreement had never been signed or otherwise agreed upon).

AANC-TAA-Progress Energy Roundtable An Unqualified Success!

On November 4th, the AANC and the Triangle Apartment Association partnered with Progress Energy to stage a ½ day Apartment Energy Conservation Roundtable Discussion; the purpose was for owners to relate their energy realities and challenges and for Progress to explain its conservation programs - with both groups learning more about the others' culture and situations. The multifamily owners were thoughtful and diverse and included: Drucker and Falk, Camden Property Trust, Trammell Crow Residential, ALA Properties, Blue Ridge Property Management, Crosland, and General Services Corporation. Attendees learned about the Energy Star appliance program, lighting retrofit opportunities (including fluorescent lamp and exit sign upgrades), insulation, window, and weather-proofing methods, and state goals for renewable energy. One continuing challenge is the hybrid commercial/residential nature of multifamily rental housing and the motivation of owner/resident interests. AANC's goal is to continue to work with Progress Energy and other utilities around the state in order to promote apartment industry energy-conservation interests.

AANC Lease Usage and Copyright

Copyright Infringement. It is illegal to duplicate any AANC copyrighted forms or printed Materials. Copyright infringement includes any direct reproduction/photocopying of the AANC Lease or forms, or having/using such AANC Leases or forms (including computer-generated versions) that are obtained from ANY source other than an authorized licensee of AANC. Copyright infringement also pertains to any AANC Leases or forms that are obtained from unauthorized sources with slight editing to the AANC Lease or forms. The maximum statutory penalty for copyright infringement is $50,000. A significant copyright suit by the Texas Apartment Association resulted in the Association receiving a $10,000 settlement from a printer who plagiarized the TAA lease. Use of AANC-copyrighted forms is an exclusive benefit of membership in an AANC-affiliated Apartment Association. If you are no longer a member of an AANC-affiliated Apartment Association, you no longer have the right to use AANC Leases or forms.

Association Membership Requirement in Current AANC Lease
In order to execute an AANC Lease Agreement or to sign any additional document memorializing an AANC Lease renewal or extension, Lessors attest to their current membership in good standing in the Apartment Association of North Carolina and of
an AANC-affiliated local apartment association. If a Lessor is not a member in good standing of the AANC as above, then the AANC Lease Agreement can become voidable and unenforceable (at the option of the Lessee), subject to certain conditions.

National Apartment Association Seeks CAMT ANSI Accreditation: Implications for N.C. Maintenance

The National Apartment Association Education Institute (NAAEI) is actively pursuing accreditation for the Certified Apartment Maintenance Technician (CAMT) education program through the American National Standards Institute (ANSI). In North Carolina, this gives us reason for optimism in the wake of current state law and local enforcement (in a number of counties) to require apartment maintenance personnel to be licensed in the professional trades like plumbing, HVAC, and electrical. Apartment maintenance personnel are generalists and not specialists in nature. Their skill-set and compensation levels are appropriate for our industry. Obtaining ANSI accreditation for the CAMT program (made up of dozens of classroom and hands-on hours of training in all aspects of apartment maintenance) may be viewed quite favorably by the important State Boards of Examiners for the trades. It is the goal of the AANC to have the Boards of Examiners recognize that apartment maintenance is a professional field, but it is a professional field that does not necessitate the grueling training needed for the specialist trades. The NAAEI received a preliminary Commendation from ANSI that reads:

The evaluation of learner attainment is designed , developed and delivered by qualified personnel. The level of due diligence exceeds training industry practices.

They cited that NAAEI conducted a Maintenance Job Task Analysis and validated this analysisand developed CAMT Skill Standards. NAAEI plans to submit revised policies over the next few weeks and it is their hope that theywill receive ANSI accreditation for CAMT by June.

Accessible Parking Standards Proposal to Go Before N.C. Building Code Council

In South Carolina, Virginia, Tennessee, or Georgia, an apartment developer (following IBC) has a duty to deliver 8 accessible parking spaces for a 200-unit apartment development. A proposed North Carolina amendment would require the developer deliver 14 accessible spaces. Similarly, in our neighboring states, for a 300-unit apartment development, the developer has to deliver 11 accessible parking spaces, but the proposed N.C. amendment would make the developer deliver 20 accessible spaces. In recognition of the N.C. approach to fully accessible apartments (TYPE A) which generally requires the developer to deliver 3 more Type A apartments than are required by the IBC, the AANC supports IBC + 3 for accessible parking requirements. In the examples above, we support a requirement for 11 such spaces in the 200-unit development, and 14 such spaces in the 300-unit development. The N.C. proposed amendment is overly generous, with all due respect to all parties.

Fair Housing Accessibility Retrofit Mandates for Owners: North Carolina Fares Better Than Most

By Ken Szymanski

The experience over nearly two decades that North Carolina apartment developers and owners have had in complying with accessible design requirements under the Federal and State Fair Housing Acts has been difficult and complex. But regarding the regulatory response to non-compliance, Tar Heel State apartment operators have been somewhat fortunate. This is my perspective as having served in my role since 1986. As many members know, Federal law mandated that multi-family rental housing built for first occupancy after March, 1991 have certain design and construction requirements with modest accessible design features. The main requirements were: an accessible entrance on an accessible route; accessible and usable public and common use areas; usable doors; accessible route into and through the covered unit; light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; reinforced walls for grab bars; and usable kitchens and bathrooms.

But even though the Fair Housing Amendments Act was adopted in 1988, and the duty to design and construct accessible apartments was effective in March of 1991, the U.S. Department of HUD wrestled with and struggled in issuing clear design rules throughout the 1990's - meaning apartment developers had no clear "safe harbor" for accessible design features, characteristics, and standards for most of the decade, in North Carolina and throughout the nation. The first "Fair Housing Act Design Manual" was prepared for HUD in August of 1996 by Barrier Free Environments out of Raleigh, NC, but the manual was revised in April of 1998. In the 1990's, the standards were in flux and importantly, were not part of the N.C. Building Code. Thus, there was no public official charged with reviewing plans or inspecting construction from a Fair Housing Accessibility viewpoint. No one to point out compliance problems with drawings, plans, or in the field. In a number of states outside of North Carolina, Fair Housing advocacy groups and enforcement agencies have sometimes sued apartment developers for designing and constructing apartment communities in the 1990's for a failure to include certain features of accessible design (as unlawful discrimination). Large cash settlements (as much as $44 Million) or mandates to retrofit apartments resulted. But in North Carolina, the North Carolina Fair Housing Center and other HUD endorsed enforcement agencies have never sought cash settlements or retrofit solutions when property surveys indicated that apartment developers fell short of delivering optimal accessible design features. Instead, the N.C. Fair Housing Center and others have sought affirmative approaches from apartment owners in dealing with disabled residents, such as delivering accessible parking spaces as a Reasonable Accommodation.

Fire-Safe Cigarettes

A smoldering cigarette butt in a trash can sparked a fraternity fire that killed five students at UNC Chapel Hill in 1996. And smoking materials may have caused a 2007 Brunswick County beach house fire that killed
seven S.C. college students. Fire safety officials believe legislation now in effect requiring tobacco companies to sell "fire-safe" cigarettes in North Carolina will lead to fewer smoking-related fire fatalities, serious burns and property damage. North Carolina's law, passed in 2007, is one of more than 30 laws taking effect with the new year.

"The whole purpose of this legislation is not to tell people you can't smoke but if you are smoking there's a safer way to do it," said Ernest Grant with the N.C. Jaycee Burn Center at UNC Hospitals in Chapel Hill The "fire-safe" cigarettes are made with different paper that slows ignition, making them more likely to go out if left unattended. The standards require cigarettes to burn out at least 75 percent of the time when not in active use. The cigarettes can be lit again. North Carolina is one of 12 states making the change here in 2010 to require all cigarettes to meet standards first implemented by New York in 2004. Every state but Wyoming now has a similar law that is in effect or will take effect.

N.C. ranks #4 of states in NAA Network, by unit count

North Carolina's apartment unit count is now ranked #4 of the states in the NAA network, trailing TX, FL,
and GA. Here's AANC's current unit count in the context of the leading state apartment associations:

Texas 1,746,382
Florida 367,834
Georgia 366,642
North Carolina 275,924
Arizona 199,551
California 196,540
Indiana 192,736