Condo Unit Owner Changes Locks to Block HOA Access

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M.A. from outside of Connecticut writes:

Dear Mister Condo,

The Association I belong to has a problem owner who has repeatedly changed her locks from the Association supplied locks to hardware from a home center. The building is on a master key system to ensure emergency maintenance and repairs can be done if she is not there. She claims this is illegal and lawfully we have no right to be able to access her unit even though our by-laws allow our entry in certain circumstances. We have drilled out the replaced locks, installed new hardware compatible with our master system and gave her the new keys only to have her replace the locks again. Is it legal for the Association to have access to her unit or is she right and we have no right to ever enter her unit unless she is home?

Mister Condo replies:

M.A., as is usually the case, you need to refer to the association’s governance documents on right of entry. Depending on your state, you may also need to refer to any local or state laws that may prohibit entry into the unit without the unit owner’s express consent. Both of those things being said, even if the association has the right to enter this recalcitrant unit owner isn’t likely to comply with the requirement and you may find the association needs to get a court order to make her comply. This is uncomfortable for all parties involved and can get expensive for both the association and the unit owner. My advice would be to speak to the association’s attorney and determine exactly what right the association has to access this and all units and make sure you aren’t in violation of local, state, or federal law. If not, then the Board needs to decide how important it is to have entry to the units and take appropriate action to secure that right. Good luck!

Sibling of Unit Owner Wants to Serve on the Condo Board

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M.D. from outside of Connecticut writes:

Dear Mister Condo,

Can a sibling of an owner who has been a resident for many years be on the Board of Directors?

Mister Condo replies:

M.D., that is entirely dependent on what your governing documents state as requirements for serving on the Board. Typically, but not always, the requirement is unit ownership. If that is the case and the sibling is not a unit owner, then the answer is “no”. However, if the governing documents are silent on the subject and there are no state or local laws that prohibit the sibling from serving on the Board then the answer may be “yes”. You need to look carefully at your documents and the requirements for eligibility to serve. All the best!

Publishing Delinquent Condo Owners Information in the Condo Newsletter!

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S.E. from outside of Connecticut writes:

Dear Mister Condo,

Have you ever written on the topic of Boards wanting to publicize the names and addresses of delinquent homeowners in their newsletter and if so where in your archives might I find your comments?

Mister Condo replies:

S.E., I have not written about Boards publicizing the names and addresses of delinquent homeowners in their newsletter or anywhere for that matter because that would be an improper practice! Condos and HOAs and their collection agents are subject to the rules and regulation set out in the Fair Debt Collection Practices Act (https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text) which would likely prohibit such actions. Further, if a unit owner who was “outed” by such practices decided to sue the association, they would very likely win which would cost the association much more than the unpaid assessments. I would strongly encourage your Board to speak with their own association attorney before undertaking such a practice. Depending on which state the association resides, there may also be state and local laws against the practice. Needless to say, there are better, more effective, and perfectly legal methods of collecting delinquencies from unit owners. Good luck!

Floods Tearing Apart Small Condo Neighbors

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V.C. from outside of Connecticut writes:

Dear Mister Condo,

A 2-unit condo driveway is part of the common areas. Due to grading problem, when it rains, the garage in my unit floods and if it the rain is severe the neighbor’s garage also floods and both of our porches flood. The driveway would have to be fixed to alleviate the problem. Do I have to pay for this myself or is it an HOA problem? The HOA is just myself and the other unit owner but this is also a health issue due to the standing water in my garage and the porch when it is bad. The other unit owners don’t want to help pay.

Mister Condo replies:

V.C., I am sorry for your flooding worries. Standing water is indeed a major health problem and the ensuing mold and mildew can create their own health risk. It sounds to me like you have already reviewed your condominium documents to determine who owns the driveway and it sounds like the driveway is property of the HOA and under control of whoever runs the HOA. In a small association like yours, the Board is likely the two owners. You want to repair the driveway and the other owner does not. This is a legal quagmire for both of you. You could sue the association to make the necessary repair but you will effectively be suing yourself. However, if the other unit owner doesn’t come around and pony up their share of the assessment, you may have little choice. If you pay for the repair on your own you may not have any recourse for collecting the fair share from the other unit owner. If you sue and get a court order for the repair, there is still no guarantee that the other unit owner will pay but at least you will have legal documentation to show that the other unit owner is responsible which may allow the association to sue the other unit owner for the assessment. When small condo unit owners don’t agree, things get ugly quickly. My advice is for you to work out an amenable settlement between the two of you so that you can get your units protected from future flooding events and make the necessary repairs from the damage already done. Good luck!

Condo Resident Seeks Board’s Assistance Stopping Thrown Glass from Above

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M.C. from outside of Connecticut writes:

Dear Mister Condo,

Resident on 1st floor condo said glass was thrown from above not fallen or blown over with wind. I asked if he saw this happen. He said no he just heard a loud noise and it wasn’t until the morning that he noticed the glass. No other resident heard it or saw it. He wants the board/HOA to assure his safety. Police came out they did not see anything that looked suspicious. As a Board, are we legally obligated to make sure all homeowners are safe. How do we control accidents if this was indeed one?

Mister Condo replies:

M.C., as you know, I am not an attorney so I cannot offer legal advice in this column. You should very likely pose the same question to your association’s attorney for a proper legal response. I will offer the following friendly advice for your consideration. If glass were thrown at this unit owner as claimed, the police are the appropriate responders to such a claim. It would appear their investigation yielded no evidence of assault against this individual. The association does have a responsibility to maintain and protect the common elements of the association and provide a safe environment for unit owners and guests to use those common elements. That typically includes such things as keeping the roadways, parking areas, decks, etc. in good working order without defects that could cause injury. If crimes such as assault were occurring on a regular basis within your association, the Board would likely take measures to increase security for residents. However, this would appear to be an isolated incident and while it is worthy of your attention, I am not sure what you could do to stop someone from throwing glass within your association, especially if it was not witnessed. Even the police could not turn up such evidence from what you have told me. If the glass incident were the result of an accident, you could use your newsletter or website or even send out a notice to residents asking them to be more careful when spending times on their decks, especially if their deck is above other decks as appears to be the situation where you live. Beyond that, you should keep vigilant for further accusations of thrown glass. If you have someone committing assault in your community, it is only a matter of time before there is some evidence or eyewitness that the police can use to take action against the perpetrator. Let’s hope it was just an accident that doesn’t repeat itself. All the best!

Condo Board Decides to Replace Decks That May Not Need Replacing!

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S.D. from outside of Connecticut writes:

Dear Mister Condo,

The board wants to replace porches that were built 11 years ago according to City Code. I hired an architect and discussed this with the city and they agree that they are not dangerous. Yes, codes have changed but this would be grandfathered in.

I keep asking the board why we are doing this and the only answer is that there are code violations but refuse to be specific. This venture will be paid for by 3 years of special assessments probably in the $50,000 – $70,000 range. They cite the porch contractors as the source of information.

Mister Condo replies:

S.D., taking a proactive approach to safety or unit owners and guests is a Board responsibility. Making this decision may be at the Board’s discretion if that is what your governance documents call for. If the Board’s only source of safety information is coming from the contractor who has a vested interest in being awarded this project, they are not being all that prudent with the association’s funds or, as is the case here, with the association’s lack of funds which will lead to a special assessment. I am not an engineer and offer no advice here on the safety or lack thereof of these decks but it would seem to me that before the Board spends a significant amount of money rebuilding an association asset that may be in perfectly good working order, they should likely have a neutral third party (like you did) offer a professional engineering opinion.

If you follow my column on a regular basis, you probably know what I’m going to say next. The Board members are volunteers from within your community. They are democratically elected by you and the other unit owners within the condo. If they aren’t doing a good job protecting the association’s assets, it may be time to look for new volunteers. Perhaps you would consider serving on the Board, S.D.. It would seem to me that you already understand the concept of stewardship and financial prudence that would benefit your association. Good luck!

Condo’s Handicapped Parking Only Available to Visitors

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M.M. from outside of Connecticut writes:

Dear Mister Condo,

My parents and sister live in a condo with 2 spaces allowed for each condo, the garage and the space in front of the garage. The rest of the spaces are for visitors. However, my father just got diagnosed with lymphoma and has been given a handicap parking space and he would like to use it to park in the handicapped parking space in the condos. The association is saying that he may not park there as they are allowed only the two spots and the rest are for visitors. Is this true for the handicapped spot? Can they really tell him he doesn’t have the right to use that spot?

Mister Condo replies:

M.M., I am sorry for your father’s illness. Condominium association parking lots are generally the property of the entire association and under the control by the Board via their powers granted in the governance documents. If the association rules state that visitor parking may only be used by visitors, then that is the rule of the association that all unit owners must abide by. That being said, you may wish to petition the Board for an exception and cite your father’s new disability. However, since the unit already has plenty of available parking right near the entrance of the unit, I doubt they would grant the request. Still, it is certainly worth asking. All the best!

Condo Flood Insurance Inadequately Provided

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C.C. from outside of Connecticut writes:

Dear Mister Condo,

My association refuses to increase its flood insurance. I want to sell my unit. the cost of individual policies are high. It would be more cost effective to raise the whole building cost but they won’t. Do I have any options?

Mister Condo replies:

C.C., I am sorry you find yourself in this unfortunate situation. My answer would depend on your state and even your own association’s responsibility to insure as spelled out in your governance documents. The fact that they are providing any flood insurance at all indicates to me that either the documents call for that provision or an earlier Board came to the same conclusion as you that the insurance should be provided as it was less expensive to provide it in bulk rather than numerous individual policies. Review your documents. If they state that the association is responsible to provide all related insurances to cover the units, then simply bring that fact to the attention of the Board. Check your state laws. Again, if your state law (as does mine in Connecticut) requires that the association provide the insurance, then bring that to the Board’s attention and ask them to provide the appropriate coverage. If either condition is true and the Board refuses to provide the insurance, you may have to sue the association. If neither is true, you may be on your own to provide the appropriate coverage. Your buyer will need it for their mortgage at the very least. All the best!

Can a Person Suing the Condo Association Serve on its Board?

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L.W. from outside of Connecticut writes:

Dear Mister Condo,

Our Homeowners Association is currently being sued by an individual who is neither an owner nor a renter. This individual is a live-in who lives with the owner of the condo in which they currently reside. The person who has sued the HOA now wants to join the Condo Board. Is this permissible given the fact that this individual is not an owner or renter and is currently suing the HOA?

Mister Condo replies:

L.W., lawsuits against an HOA can be initiated by anyone for any number of reasons. That is just the unfortunate reality of living in a litigious society. However, the right of eligibility to serve on the Board of the condo is usually spelled out in the association’s governance documents. Typically, Board members need to be unit owners. However, that is not always the case and you need to consult your own documents to determine what the eligibility requirements are for your association. If this person is eligible and interested in serving, I would recommend that the Board speak with its own attorney to determine if there is a conflict of interest issue that would make it unfavorable to the association if the person were to be on both sides of the pending lawsuit. I wouldn’t think it wise for the association to have a litigant against the association as a Board member. Talk with your own counsel for a more definitive legal answer. Good luck!

Borrowing From the Condo Reserve Fund: Is that OK?

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L.P. from Fairfield County writes:

Dear Mister Condo,

Can Condos in Connecticut use Capital Reserve Funds to pay for operating and general repairs? Can the Board borrow the money from the Reserve fund and then later pay it back with a Special Assessment?

Mister Condo replies:

L.P., “can they” and “should they” are two different things. They certainly “can”, they probably “shouldn’t” but many of them “do”! The Reserve Fund is used to fund those long-term items that are inevitably going to fail. The rood, the roads, the pool, the tennis courts, and so on and so forth. From the day commonly-owned items are installed they begin to age and race down the road for future replacement. The concept of the Reserve Fund is that a $1,000,000 item that will need replace in 20 years should have $50,000 set aside each year to cover that eventual replacement. That money is to be set aside in some type of interest-bearing account, only to be used when the time comes to replace the common element. That being said, that is in a utopian world where volunteer Boards always have all of the money they need at their disposal to make those everyday repairs that pop up from time to time. The reality is that it is just too easy to simply borrow from the Reserve as needed. At least your Board is talking about replacing the funds (Bravo!). Many simply take what they need and leave the problem for future owners who will inevitably get stuck with a special assessment when the time comes to make that $1,000,000 capital repair. You are wise to keep an eye on how and when the money is spent. A healthy Reserve Fund is a great sign that you live in a well-run community. As long as they are going to repay the loan from the Reserve Fund, and I would insist that they do if I were you, I would think the Special Assessment to cover this year’s operating budget and general repairs is a good idea. Also, the Board should be encouraged to increase common fees for next year’s budget less they want to find themselves dipping into the Reserve Fund again next year. All the best!