Is It Up To The HOA Board To Decide What Is or Isn’t Acceptable?

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C.B. from outside of Connecticut writes:

Dear Mister Condo,

If something is not specifically allowed or disallowed in our HOA bylaws (we are a site condo), does that mean it is up to the board to decide whether it is acceptable or not?

Mister Condo replies:

C.B., the short answer is “it depends”. What it depends upon is the governance document of your HOA, which in your case is further defined as a site condo. It also depends on local, state, and federal law. The HOA Board, generally speaking, is charged with enforcing existing rules and regulations as well as adopting new rules and regulations as situations develop that require additional governance. However, that doesn’t mean the Board has unilateral powers to simply pass rules as they wish. They must follow the rules for making the rules. Also, the unit owners within the HOA have the power to vote leaders into and out of office at Annual Meetings. The HOA Board is made up of democratically elected volunteers from within the association. They are there to protect, maintain, and enhance the community association’s common elements and quality of life for unit owners. If a Board were to push a new rule onto the community that was unpopular enough amongst unit owners, Board Members who supported the rule might soon find themselves voted off the Board at the next election. That is HOA democracy at its finest. Good luck!

Condo Board Requests Removal of 40-Year-Old Decorative Gates

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B.S. from outside of Connecticut writes:

Dear Mister Condo,

I have had decorative gates on my front door for 40 years. Does the condo board now have the right to force me to remove them?

Mister Condo replies:

B.S., the decorative front gates that have adorned your condo for the past 40 years fall under the guidelines for architectural compliance for your association. Enforcement of the architectural compliance guidelines falls under the jurisdiction of the Board so, technically, the Board has the right to “force” you to comply with guidelines that you agreed to abide by when you purchased a unit within the condo association. However, since these guidelines have not been enforced for 40 years, you may have protections outside the condominium’s rules and regulations. In California, for instance, the courts have held that associations have 5 years from the date the violation was discovered or should have been discovered through the exercise of due diligence to enforce the rules. If you live in California, I would think you could successfully argue your decorative gate has been in clear sight for more than 5 years! You should speak with an attorney knowledgeable of community association laws in your state to see what rights you have to keep your gates. If you have no additional protections, you may have to succumb to the rules of the association if the Board chooses to enforce them. Good luck!

Condo Parking Lot Repairs Leaves Unit Owner Without Nearby Parking

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R.L. from outside of Connecticut writes:

Dear Mister Condo,

I have lived in a condo for four years and was assigned two parking spots; one in the front, and one in the third row assigned numerically. They just assessed the owners for repairs on the parking lot. After they finished they reassigned my spots with none in the front and my second spot the furthest away from the apartments. In most cases, both owners had two spots assigned in the front. They gave me the worst spots available. I called the president of the Board. He made believe it was no big deal. Please advise. This is inconsolable. I pay my dues on time, and try to stay away from the hassles which are numerous.

Mister Condo replies:

R.L., for the most part, parking lots are private property owned by the association and under control of the Board of Directors of the condo association. There are rare exceptions where specifically numbered or ordered parking spaces are deeded and are actually part of the condominium unit but those instances are rare. You should consult your deed to see if particular parking spaces are assigned or if it alludes to a more general concept of two parking spots. You have been given two parking spots, just not the two that you want. Since the designation of the parking spaces is most likely at the Board’s discretion, you have very little choice but to accept the new arrangement. Calling the Board President has not proven helpful and I suggest that you write to the entire Board so that you can have your complaint noted in the record. It is possible that you are not alone in feeling that you have been treated unfairly and if enough unit owners complain, the Board may take action to return the parking spaces to the way they were assigned before the repairs were made to the parking lot. Remember that your Board members are democratically elected by you and your fellow unit owners. If they are not getting the job done to your satisfaction, you might want to look for new leaders that will. Maybe you should consider running for the Board, R.L.? Good luck!

Does the HOA Have a Say in Who I Hire for My Own Basement Repair?

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B.R. from outside of Connecticut writes:

Dear Mister Condo,

Can a condo HOA force me to use their maintenance person as a contractor to repair something inside my own unit? I have a problem in the basement with moisture on the wall. It is not clear whether it is coming from my unit, another unit, or a common element. It’s not a very big spot, but I am concerned that it be repaired correctly and safely as to not create a bigger problem. I’d prefer to hire a licensed contractor that I trust to investigate the problem. The HOA keeps acting like they can tell me I can’t do this or that I need some sort of approval unless I use their person. It is my understanding that as long as my investigation/repair doesn’t involve something clearly indicated as a common element, they really have no say in this? Am I mistaken?

Mister Condo replies:

B.R., determining who has ownership of the basement and all of the components that go into a basement within an HOA can be challenging. Does your basement abut to a neighbor’s basement where you share a wall? Do common utilities run through your basement? Do you have a sump pump that dries more than your unit? Depending on the nature of the work being done, it is possible that the HOA does not have a say other than to require you to provide a license and proof of insurance for the contractor before work begins. Sometimes, it is just simpler to use their preferred contractor because the contractor has inside knowledge of how the buildings were built and how they run best. Your water spot may be something their contractor has seen a dozen times and knows what the likely culprit and remedy are. In that case, they HOA may actually be doing you a favor by having you use their contractor. One final caveat is to review your HOA governance documents. It should spell out when you need to use an association-approved contractor. My final piece of advice is just practical. If this is not a very big spot and likely a small repair, if any, why not just go with the HOA’s suggested contractor? I can’t imagine this is going to be a very big deal one way or the other. Hope it all works out for you.

Condo Unit Owner Damages Garage Door. Who Pays?

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B.C. from outside of Connecticut writes:

Dear Mister Condo,

If a unit owner damages his own garage door and the rails hinges or moving parts is he responsible for his own repairs?

Mister Condo replies:

B.C., the short answer is “it depends”. Typically, any owner who intentionally damages any common element id liable for the cost of the repairs. If the unit owner has insurance that covers the damage, the insurance might cover the cost or there might be a deductible expense to the unit owner with insurance picking up the rest of the tab. I am assuming that the damage to the garage door was accidental, meaning a unit owner or guest pulled in to close and hit the garage door and damaged the door and the hinges. There are now a few different insurance claims going on here so let’s think about what happened. Driver error caused the damage. The driver is responsible. If the driver has insurance that covers this driver error and resulting damage, the automobile insurance might pay. If there is no insurance and the unit owner is still responsible for the damage, the unit owner is likely to have to pay, less any homeowner’s insurance coverage (not too likely as the damage is outside of the unit). The association may have control over the building exteriors and insist that they handle the repair and bill the unit owner for the damage. It is possible that the association has a preferred vendor for their garage doors and require that vendor to work for them when doing this type of work. I am sorry that a unit owner did this damage to their own garage door. I hope it all works out and no one was injured. Good luck!

Condo Association Repairs Damaged Patio – Kind of…

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J.I. from outside of Connecticut writes:

Dear Mister Condo,

If my board hires and pays a contractor to repair my patio, and I am not happy with the work that was done, can I withhold payment and refuse to reimburse the Board?

Mister Condo replies:

J.I., the short answer is “no”, you cannot do that. If you withhold an assessment from your association, they will very likely put your account into collections from an attorney or other collector who will have the power to file a court action against you, perhaps damage your credit rating, and even get a court order to foreclose on your property in the most extreme of cases. I am guessing you don’t want any of these things to happen so you should pay your assessment. If your unit was not returned to the like condition it was in before the repairs, you should first speak with your Board about your dissatisfaction with the work and ask for further remediation. If they refuse, and they might very well do that, your only other option is to seek legal help to see if you have a case against the association for not adequately repairing your unit. Keep in mind that repairing to your level of satisfaction is not the standard used to determine if the repair was adequate. If the repair created a functional level of use to you, it is quite possible that was all the association was obligated to do. If you believe that use was not returned to you as a result of the repairs and the Board refuses to do anything else for you, you may wish to seek legal help to see if there is anything more you can do. My guess is the association has already fulfilled its obligation to repair the patio and that any additional upgrades to that repair may be on you and with the association’s permission if there are any architectural compliance items to consider. Good luck!

Condo Trustees Overstepping Their Authority

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J.P. from Massachusetts writes:

Dear Mister Condo,

Elected trustees are taking actions opposed by a majority of owners and claiming a fiduciary responsibility. Actions which require extraordinary special assessments.

Mister Condo replies:

J.P., when condo Trustees or Directors overstep their authority and make decisions or spend money that they aren’t entitled to spend under the association’s governing documents, the usual remedy is for the unit owners who are unhappy with this behavior to call them on it and/or bring a lawsuit to prevent the action. However, lawsuits are expensive and the end results of these decisions are usually what have to be taken into consideration before deciding to sue the association. If a majority of owners are in opposition to the actions these Trustees are taking, the majority could simply vote them out of office or hold a recall election to remove the Trustees in question. Your governance documents detail the procedure for doing this. The more common approach would be to find Trustees willing and able to serve to replace the current Trustees at the next annual election. If it can’t wait until then, stronger measures may be needed. Even the levying of a special assessment has a proper procedure. If the Trustees aren’t following the proper protocol, the assessment can be challenged (again, in court). Sounds like it might be time for you and your other concerned unit owners to speak to an attorney to see what steps you should take to protect your rights as unit owners. Good luck!

Who Hires the Contractor Paid for with Association Insurance?

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K.G. from New Haven County writes:

Dear Mister Condo,

I had interior damage from ice dams not taken care of by the condo association. The association filed a claim and was paid. They are now saying that I have to allow them to repair the inside damage and that I cannot get my own contractors and them pay me the claim monies from my unit? Can they do that?

Mister Condo replies:

K.G., I am sorry you experienced a loss from ice dams. What you have described to me is exactly how the insurance claim and repair should be handled. The association took responsibility for the damage. The association’s insurance has agreed to cover the damage and made good on the claim. This was not your insurance and this is not your money. This is the association’s money and the association’s insurance. The contractor works for the association so, yes, they will select the contractors who will perform the work, even though the work is being done in the interior of your unit. That’s how association insurance works. Any of your own personal belongings that were damaged may be covered under your homeowner’s policy. If you filed a claim and you received an insurance payment because of it, that money is yours to go and replace your lost or damaged items. I am glad that the association had adequate insurance to cover your damage. All the best!

Does Condo Board Need to Report Burglaries to Unit Residents?

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M.S. from Florida writes:

Dear Mister Condo,

Is a Palm Beach County, Florida condo board prohibited from informing residents about burglaries?

Mister Condo replies:

M.S., in my opinion, quite the opposite is more likely true. An attorney friend of mine from Florida, named Lisa Magill from the prestigious community association law firm of Becker & Poliakoff wrote an article in 2012 that addressed a similar situation. Kindly give the article a good read at your convenience – http://www.floridacondohoalawblog.com/2012/02/articles/operations/association-liability-for-criminal-attacks/

I am not an attorney and I offer no legal advice in this column. However, it would seem to me that if burglaries are occurring with any frequency within the condo and the condo Board and/or property management was aware of these crimes and did nothing to communicate the potential danger to condo residents, they would run the risk of being sued by a victim living in the condo who was never warned by the association that such activity was occurring. That was certainly the case in the story mentioned by Attorney Magill.

My advice would be for the Board to speak with their community association attorney about this issue and get a current legal opinion. Case law often dictates what the best policy is. Of course, the Board should want to do all that it can to protect the unit owners and reduce association liability. A qualified legal opinion from association counsel should help them do just that. Good luck!

Changing Unlimited Condo Trustee Term of Service to Limited

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M.C. from Massachusetts writes:

Dear Mister Condo,

Our condo docs provide for an unlimited Trustee term of service. Some owners want to change this to a fixed term (let’s say 24 months). The condo docs require 75% owner approval to do this, if 75% of owners agree and make this change how does it affect the current Board of Trustees that were elected with no fixed term? Are they subject to the change made after they were elected, or does the change only effect newly elected Trustees?

Mister Condo replies:

M.C., modification of condo documents can be a bit tricky as you are experiencing. There may be no better time to consult with your community association attorney than right now. If you enact changes that are not congruent with current state law or not in accordance with your governing documents, the association could easily find itself defending against a lawsuit from an irate owner. This is one area where community association attorneys truly earn their keep and should be thought of as a valuable player on your team. Yes, there will be cost but the cost is nothing compared to the expense of defending against a lawsuit in the future. My non-legal opinion is that once the rule is properly enacted and the by-laws are changed, the new by-laws will dictate the behavior of those Trustees who were in office before the rule was changed. Again, that is my friendly opinion and not a legal opinion. I am not an attorney and offer no legal advice in my column. Good luck!