Condo Resident Refuses to Stop Smoking!

J.H. from Massachusetts writes:

Dear Mister Condo,

I am president of the Board for my condo. The son of a unit owner and his girlfriend living in the unit are extremely heavy smokers which is causing the unit owner next door great consternation as the smoke seeps through the common block wall between units. We have been dealing with this for some time, and have sent letters to the owner and offending parties, but they are addicted and won’t cease.

The offended party is tearing off walls to try and smoke proof the area and wants to send the condo association the bill for perceived indifference. We are limited in what we can do about this. We have by-laws that cover being a nuisance to your neighbor, but are unsure of how to enforce them given that these people are very addicted and I doubt simple fines will be the answer. In your opinion what is the next step?

Mister Condo replies:

J.H., smoking is a very serious concern for many condominiums around the country. You need to speak with your association attorney to determine what legal steps you can take to make your community “smoke-free”. I am not an attorney but I do know of several who are quite knowledgeable about this subject matter in your state. Two of them have published articles that you need to read:

https://www.goldmanpease.com/secondhand-smoke-and-your-condominium-how-to-navigate-the-changing-legal-landscape.html

https://meeb.com/uncategorized/condominium-smoking-war-heats-up-in-massachusetts/

The bottom line is that second-hand smoke can be considered a nuisance. Clearly, for your non-smoking unit owner who is battling this fight first-hand, nuisance barely begins to describe what he is living with. I find it unlikely that he can charge the association for repairs and changes he is making to his own unit but, in court cases where laws are often interpreted, you never know. I think it is more likely that your association can ban smoking, which will protect the association. Further, beyond fines, it may be possible to evict those who repeated refuse to follow the rules. In some states, smoking in a high-density housing area where smoking is prohibited can be considered a crime. I am not saying that you will have the local police come out to get your smokers arrested but you can make their decision to smoke a lot less appealing. There is no constitutional “right to smoke” so if the association passes a “no smoking” rule, it would very likely stand up to a legal challenge. My hopes for you would be that the smokers would realize this is not the community for them to live in and that they should consider relocating to a “smoker friendly” environment, such as a private home. Best wishes!

Previous Condo Trustee Allowed Unit Owner Delinquency to Go Unchecked!

M.C. from Middlesex County writes:

Dear Mister Condo,

Our trustee just sold her unit making me the new trustee. After she left, I found out one of the Unit owners wasn’t paying their HOA fees and that the former trustee had used funds I put in the Reserve Fund for my share of assessments to front for them. We were about to hold off on a planned assessment because of this when the city slapped us with a fine so now we have to move forward or rack up more fines! I asked a lawyer for a consultation hoping he could give us some advice on how to proceed and he practically laughed me off the phone saying the situation wasn’t worth a lawyer. But the unit owners still aren’t paying and the city is expecting us to move forward with the assessment! What do we do?

Mister Condo replies:

M.C., for starters, you get a new lawyer! I don’t know of any lawyer committed to community association law that would “laugh you off the phone” for such a potentially serious and clearly legal matter. You have three very separate matters to attend to here. The city slapping you with a fine is likely your biggest fish to fry. Get your association in compliance with the city so no further fines result. The city likely has powers to make your life quite uncomfortable depending on the nature of the offense. If they find your buildings are uninhabitable due to a safety issue, they could actually forbid people from living in your units. You certainly don’t want that and I am hoping that the fine is for something easily remedied. If a Special Assessment is needed to bring the association into compliance with the city’s requirements, it may be time to levy that assessment. Be sure you do so in accordance with your association’s governance documents and state law. Second, you need to take legal action against the unit owner in arrears as allowed by your governing documents. Typically, this is the work of an attorney or collection agency. Do not take matters into your own hands. Collections is a delicate and legal process best handled by professionals. Collection efforts may even lead to a foreclosure action by the association against the unit owner in arrears. This is not a matter to be taken lightly. Finally, the previous Trustee has acted inappropriately and, perhaps, even illegally. The decision to let another unit owner to forego paying assessments was very likely outside the scope of their authority. At the very least, it was a dereliction of duty. An attorney can best advise you if it is worth seeking criminal or civil charges against the previous trustee in an attempt to collect the delinquent common fees. Once you get all of these problems behind you, M.C., you can focus on running the association like a business, as it was intended to be. Good luck!

Condo Board Unwilling to Maintain and Upkeep Common Grounds

J.W. from outside of Connecticut writes:

Dear Mister Condo,

The association refuses to repair muddy spots in my lawn. They are from the clay dirt and require maintenance.

Mister Condo replies:

J.W., maintenance and upkeep of common areas are the purview of the Board. I assume the area you are describing as “my lawn” is, in fact, common ground. The Board is not actually under any obligation to do anything although most would want the association landscaping to be in good shape so as to increase curb appeal and unit owner enjoyment of the property. If your Board has no interest in the maintenance or upkeep of the property, it is time for a new Board. Perhaps, you would like to serve? Ask the Board to make the repair, not just to the portion of the common grounds that abut your unit but to all of the common grounds. If they are unwilling, find better candidates to serve on the Board and vote the current Board out at your next election. All the best!

Noisy Condo Neighbor Serves On the Board and Doesn’t Follow Rules

W.T. from outside of Connecticut writes:

Dear Mister Condo,

I have been having a problem with the owner of the Condo above me. I have asked him several times to try and cut down the noise on his floor (walking, dropping heavy objects, etc.t) which makes noise come down into my condo. He also has a Doberman dog that sometimes barks 30 or more minutes at a time. Yesterday, I talked with him and asked if he would try to cut down on the noise. I have done this before with some results. Yesterday when I asked the question, he came unglued, telling me not to speak to him again and a few other choice words. I feel that if he continues to make excessive noise, I should be able to ask him to try and keep the noise down. What else can or should I do? Also, this person is one of our directors and the other two goes along with him.

Mister Condo replies:

W.T., I am sorry for your problems and for your inconsiderate upstairs neighbor. I am going to give you two answers for your consideration. The first is to write to the Board with as much supporting documentation to describe the noise and the rules violations being committed by your upstairs neighbor. Almost all condos have rules about noise and the rights to a peaceable environment for all residents. Further, almost all have rules about pets and the acceptable noise level and noise curation that other residents have to tolerate. A 30-minute session of any dog barking is sure to be a rule violation. In the past, you have taken a neighborly approach with some success. Speaking with an agreeable neighbor is a great start but that is no longer an option. Your neighbor has made it clear he has no intention of keeping the noise down. Your recourse is with the other members of the Board, his fellow Directors. If they are reluctant to take action against your neighbor, you have two practical options. First, you can sue the Board for neglecting to enforce the noise covenants of the association. Your second option is to move out of this community. It is unfortunate that it has come to this but having a jerk for a neighbor is not only annoying, it can be downright dangerous. Having a jerk like this neighbor on your Board is equally dangerous, especially if his fellow Board members are reluctant to enforce the rules against him. I am sorry I don’t have better news for you. Keep me posted and good luck!

Condo Grease Trap Back-up Leaves Unit Owner Footing Amelioration Costs

K.K. from Illinois writes:

Dear Mister Condo,

My condo sustained water damage from a backup in the sink drain line shared by three units, in a three-story building. My unit is on the first floor, and when the exterior grease trap backed up, water was forced up through my kitchen sink and into the unit. I was out of town at the time, and by my return there was a significant amount of water, slime and mold in the unit. The amelioration bill was $2,300. My insurer covers everything except this, and the condo board refuses to file a claim with the association’s insurer. Also, this happened before to the previous owner of my unit, and to other first floor units. Doesn’t the association have the responsibility to file a claim rather than deny responsibility? The condo is in Illinois.

Mister Condo replies:

K.K., they don’t necessarily have to file a claim but they are likely still responsible for the damage seeing as it was caused by a common element. Your homeowner’s insurance is always your first line of defense and it looks like they paid for the worst of the damage. If your association is refusing to file a claim or pay for the amelioration, it may be time to seek the advice of an attorney. Personally, I would file a suit (most likely Small Claims although I don’t know what your local laws dictate for a $2300 claim). If the association doesn’t want to file a claim, they don’t have to. However, if they are liable, they still have to make you whole. I am sure finding your condo water damaged was stressful enough. Getting the association to pay for the amelioration shouldn’t be. Good luck!

Noisy Condo Tenant May Get Evicted!

N.A. from outside of Connecticut writes:

Dear Mister Condo,

I have been a noisy tenant in my rental condo. I used to work nights, and I would be unwinding at odd hours. Due to complaints, I even switched my hours to work in the daytime. I still have my night time tendencies. I have been paying tons of fines, but the condo board “will be discussing my issue”. I have been trying really hard to walk on eggshells (keep the TV down, etc…) What can they do to me? Can they kick me out?

Mister Condo replies:

N.A., a noisy tenant is a big problem for a condo association. Unit owners and neighbors complain to the Board and the Board must take action against the unit owner and the tenant of the unit owner – you. Being aware of the problem is half of the battle and you seem to know that you been violating association rules for some time and have paid a “ton of fines”. The idea of the fine is to correct the behavior. In other words, fine the offender a few times and the offender should stop violating the rules. To accrue “tons of fines” means that strategy hasn’t worked with you which puts the Board under pressure to take further action. Without knowing the full details of what options are available to the Board, I will say you and your landlord may find yourselves on the receiving end of a lawsuit seeking eviction. If that happens you will most definitely want to contact an attorney to defend yourself. I have to ask you why you would want to continue to rent in this community where your lifestyle clearly doesn’t fit with the community as a whole? Why not rent in an apartment that doesn’t have as many rules or rent a single-family home where you can live as you see fit. Changing work hours and walking on eggshells doesn’t sound too appealing. You have every right to express yourself as an individual and live as you see fit. However, residing in a condo comes with rules that you voluntarily agree to. If you can’t follow them, you are asking for the kind of trouble you are receiving. I suggest you rethink this particular condo as your home and consider living somewhere more appropriate to your lifestyle. All the best!

Are Condo Trustees Exempt from Association Rules?

S.B. from outside of Connecticut writes:

Dear Mister Condo,

Are trustees supposed to follow the same rules that home owners get letters for? And do all condo places have to center their cars from side to side and from front to back but trustees don’t have to?

Mister Condo replies:

S.B., unless your association has some very unusual clause that exempts trustees from following the rules of the association, they most certainly do have to follow the same rules and by-laws as every other member of the association. However, unlike everyone else who resides in the association, they are often the ones who decide if rules have been broken and what action, if any, should be taken to enforce those rules. In other words, there exists a potential for selective enforcement of the rules where they may decide to be more lenient with themselves. The good news is that trustees are voted into office by association members. You and your fellow association members can simply vote them out of office at your earliest convenience, usually the annual meeting. For truly bad offenders, the recall election can also be employed to throw them out of office sooner. The decision to serve as a trustee is an altruistic one. The good of the community and the protection of association assets is at stake; not the ability to supersede rules and practice preferential treatment for one’s self. Of course, you need to also find and elect trustees that have this altruistic spirit. If you can’t find the right people you will continue to have what you have now. Perhaps you will answer the call to server yourself, S.B.? I wish you good luck!

Neighbor Versus Neighbor Over Condo Common Walkway Use

P.C. from outside of Connecticut writes:

Dear Mister Condo,

On a common walkway, I have had a small table and 2 chairs to sit outside of my condo of 25 years. My new neighbor of 2 months, who rents at a highly discounted rate, wants my spot because it is in front of his living room windows and the absentee owner is threatening me with the police. Help! (My door is one foot from the table) it is a corner area.

Mister Condo replies:

P.C., I am sorry for your situation. Without knowing more about the particulars, let me focus on what I do know from what you have told me. Common walkways in most community association are just that, common. That means they are for the entire community’s use, not just any one member. Regardless of how long you have had a table and chair set up in this location, it wasn’t “yours” to begin with. The association, not the neighbor’s tenant or absentee neighbor, is the only entity that can ask you to remove your table and chair as the association is the owner of the common walkway. The fact that the neighbor rents at a highly discounted rate and that the owner is absent does not come into play at all here. The police will have no interest in where you set up your table and chair because you are on private property and aren’t breaking any laws. If the neighbor continues to harass you in such manner, you may be the one calling the police as they are harassing you and have no right to do so. If the neighbor has a complaint against your improper use of the common walkway, he should complain to the Board or Property Manager. It is then up to the Board to take action against you (they would likely ask you to remove your table and chair). Once you comply, you would be well within your rights to complain to the Board if anyone else set up in your previous area. The bottom line is that common walkways are not owned by unit owners; they are the property of the association and, as such, are under direct control of the Board; not other unit owners. My guess is that unless the Board is willing to implement an association-wide enforcement of the rule, nothing is going to happen. If the neighboring unit owner or renter threatens you in any way, call the police. Harassment is illegal. Good luck!

Condo Board Making Rules for Public Road!

D.C. from Pennsylvania writes:

Dear Mister Condo,

Our condo association’s declaration and rules require residents to park in their garages and driveways and prohibit them from parking on the public road in front of their unit. This public road serves only the community. Guests of residents may park on the road. Is our Executive Board on safe ground? The condo association is located in Pennsylvania.

Mister Condo replies:

D.C., when you say “public road”, I have to assume you mean a road that is open to the public, not owned or maintained by the association, and subject to local laws. In other words, it is not a private road and the land on which it sits is not owned by the association. If so, the association likely has no jurisdiction over how the road is used. So, if parking on the public road is legal for all, there isn’t too much the association can do about it. If the association owns the road, they are in control of how that road is used and can make whatever rules they wish as long as they are legal. One other consideration for a public road is whether or not it is a local, state, or federal road. I know of association that are built on either side of state highways where not only local laws but also state laws apply. For these associations, it is next to impossible to control how these roads are used. My advice is to find out who owns the road and then advise the association Board whether or not it is in their jurisdiction to make any rules about how that road is used. If it isn’t their road, they can’t make the rules. All the best!

Condo Antenna Lease Renewal Quandary

E.M. from outside of Connecticut writes:

Dear Mister Condo,

We are looking for an advisor to help us understand the market value of an antenna lease we have with a major carrier. Sadly, the lease revenue is being used to offset operating expenses and not just going to build reserves. Therefore, the homeowners have become used to this “operating subsidy”. The long-term contract with the carrier will soon expire and we need guidance. Any ideas for resources?

Mister Condo replies:

E.M., utilities such as renewing or changing carriers for services like an antenna lease are the purview of the Board. The use of the lease revenue to help fund the Reserve Fund is noble but not likely required. If a previous Board diverted the lease revenue from the Reserve Fund in to the Operating Fund the current Board can take steps to remedy that. However, if there is a desire to keep common fees lower by using the revenue for the Operating Fund, there may be little motivation for the Board to make the switch back. Concerned Unit Owners like you can ask the Board to make the switch. As for renewing the antenna lease itself, the Board does have a few options depending on the competition for services in your market. Their best bet would be to see what their options are and solicit bids, just like they do for any other service they buy on behalf of the association. Good luck!