Monthly Archives: July 2012

Required Operating Agreement for a Condo?

T. from New Haven County writes:

Dear Mister Condo,

I live in a condo with less than 10 units. Are all condo associations required to have an operating agreement even if there is no management company?

Mister Condo replies:

T., all condo associations have a Declaration which outlines how the association is to be governed or operated. As an owner, you should have been provided this documentation as part of your real estate closing transaction when you took possession of your condo. Even in a smaller condo like yours, the Declaration spells out what is owned individually by the unit owners and in common by the condo association. Condo owners routinely refer to the Declaration to understand how their condo is run, with or without a management company. So while condo associations may not be required to have an operating agreement, they most certainly are required to have a Declaration. Thank you for the question.

Damaged Wood, Damaged Relations…

C.T. from New Haven County writes:

Dear Mister Condo,

I purchased my condo last year. Before I signed the sales and purchase agreement, I insisted that some damage to the rear deck of the unit that was noted during a home inspection be repaired. I was assured by the realtor, who is also the condominium’s property manager, that the wood rot would be replaced before I took possession of the unit. Needless to say, a year later, I am still looking at rotten wood on the divider between my unit and my neighbor’s unit. How can I get this manager to make good on his promise to repair the damaged wood?

Mister Condo replies:

C.T., I am sorry that some rotten wood has hampered your condo experience. I detest stories of Property Managers not keeping to their word, whatever the reason. I assume you have been in contact with the property manager in question and that you feel you are not getting anywhere with him or her. Since the Property Manager takes his or her marching orders from the Board, I suggest you bring this problem to your condo Board’s attention so that appropriate action can be taken. Most likely, they will instruct the Property Manager to hire a contractor to fix the damage. If that doesn’t resolve the problem, I would suggest you hire an attorney or bring suit against the Property Manager/Realtor for breach of contract. And, please, learn a lesson from this transaction. Don’t take someone’s word for getting a repair done as part of a purchase agreement. Get it in writing! Best wishes!

Cross-Dressing in the Condo Lobby!

B.F. from Boston writes:

Dear Mister Condo,

I live in a very nice and upscale condo building along the beautiful Boston waterfront. As you can imagine, this highly desirable real estate does not come cheaply. For the past six months, one of the male residents of the building has been putting himself on display by wearing woman’s clothing and spending hours and hours in the condo lobby. I don’t know why he is doing this but his presence is upsetting me and several of my neighbors. Is there anything we can do to get him out of the lobby?

Mister Condo replies:

B.F., Greetings to you, our neighbor in the Bay State! That certainly is a colorful situation you have on your hands! Neighbor versus neighbor issues can be strongly divisive in any condominium. While I can’t say I’ve heard of the same problem here in Connecticut, I can tell you that even one unruly neighbor can disrupt a pleasant living experience for the rest of the well-behaved condo dwellers.

I guess it is best to start at the beginning. I assume you have by-laws and rules about who can use the common areas and for what purposes. A lobby that provides access to and from the units is likely classified as common area and not likely to have any restrictions on its use. However, a case could be made for modifying the use of the lobby strictly for coming and going, and not hanging out for several hours per day. Of course, that would require that the Board take action, adopt an amendment to the by-laws and face the scrutiny of such a decision.

Is the cross-dressing resident approachable? That is, can a simple conversation take place where he is simply informed that his lengthy visits to the lobby are of concern to other residents? Is he exhibiting this behavior as an act of protest against the Association? If so, perhaps a simple dialogue between neighbors could remedy the situation.

The bottom line may be as simple as any unit owner of your condominium having the right to spend as much time as they would like in your lobby. Common Interest community ownership can be tricky. No one resident can be denied rights that are granted to all residents. My guess is that this unit owner is making a point and unless he violates any rules or regulations of the community, there may not be much you or your neighbors can do about it. I am sorry I don’t have better advice for you but I do wish you all the best.

Condo Rules about Comfort Animals

D.L. from Fairfield County writes:

Dear Mister Condo,

My condo has a rule prohibiting pets. The only exception is a service animal such as a Seeing Eye dog. My doctor recommended that to help control my stress, I should consider getting a furry friend. Is a “comfort” dog treated as a service dog under CT state law?

Mister Condo replies:

D.L., I hope this answer does not cause you any extra stress. Without proof that a dog is necessary for medical or disability reasons, a condominium’s declaration or board is free to define or restrict “comfort” animals however it wishes. My advice to you is to alert your Board of your doctor’s suggestion and ask them for an opinion as to whether or not you can have a “comfort” dog and not violate your community’s rules.

Bouncing Ball Blues for Condo Owner and Cat

C.L. from Hartford County writes:

Dear Mister Condo,

I have a neighbor who often bounces a ball in the hallways late at night at my condo. The noise drives me and my cat crazy. What can I do?

Mister Condo replies:

C.L., unwanted noise in a condo common area is really unbearable for most residents. When neighbors behave in loud and unruly ways, the entire community suffers. In this case, you and your cat are both suffering. Let’s talk about a few ideas to keep the noise down and restore the quiet for you and Kitty.

If you are comfortable speaking with the resident who is bouncing the ball, I suggest a cordial conversation may also help. If the ball bouncer is a child, a conversation with a parent or guardian might help. If you are uncomfortable approaching the unit owner in question you certainly don’t have to. I just find that sometimes problems between neighbors are best settled between neighbors. If that doesn’t work, you may need to escalate your strategy for restoring the peace.

Undoubtedly, your condo has rules about noise and allowed activities. Assuming there are rules about noise and not using the common areas for anything other than coming and going to individual units, you need to document the offenses and report it to the Board or Property Manager. These folks are required to investigate your complaint and take corrective action. Don’t just call in the complaint. Write it down, take photos if you can, make a recording of the noise, etc… All of this “evidence” should be reported to the Board and/or Property Manager. If they do their job properly, your neighbor will receive a notice to appear before the Board to explain the complaint and then may receive fines for recurring offenses. Once a problem reaches the point of costing the offender money, the problem usually goes away.

If you simply suffer in silence, you and your cat will likely face more noise and more ball-bouncing. The ball is actually in your court now. Go ahead and score one for the good guys! Best wishes!

FHA Worries in New Jersey

G.C. from New Jersey writes:

Dear Mister Condo,

I live in NJ and own a condo. I need help. The condo association attorney has been giving me the run around on the FHA recertification. It’s been almost a year now since he states he did the paper work and he has been paid for the job already. No one on the board seems to care since they aren’t trying to refinance or sell their units. PLEASE HELP. I own a moderate income unit so FHA is needed.

Mister Condo replies:

Greetings to you, our Garden State neighbor, G.C.. FHA issues abound in condominiums all over the country right now. Sadly, yours is not the only tale of trouble with certification and recertification efforts on the part of condominium associations. We have similar problems here in Connecticut. The recertification process changes regularly as lawmakers and the FHA try to construct reasonable guidelines for condominiums. Unfortunately, that leaves condo owners like you and me in a bit of a bind.

I am a bit concerned that your Board is not taking more assertive action to bring the association into compliance and/or apply pressure to the paid professional to help the association achieve recertification. It is highly unusual for an individual resident to contact the condo association attorney. The attorney represents the association and not the individual unit owners. The correct chain of communication is for you to the Board and the Board to the attorney. You really need to get the Board to take your issue seriously.

You mention that you own a moderate income unit. I assume that your entire condo complex is comprised of moderate income units and that you are not alone in your FHA plight. I suggest you contact the Board via written correspondence that you need this FHA issue addressed ASAP and that you would like to see FHA recertification as a Board meeting agenda item at every Board meeting. The reality is that FHA recertification may be the only way that any mortgages or refinancing options will be available for current or future unit owners. You also need to be cognizant of the fact that FHA recertification is not a simple process. I am not sure why it has taken more than a year but there could be mitigating circumstances. You are entitled to an answer, not “the runaround” you have been getting so far.

If your Board is unwilling to do that, you really only have two other options. You can vote them out of office at your next election and replace them with unit owners that understand the importance of FHA certification or you could speak with an attorney to see if you can apply legal pressure to the Board in the form of a lawsuit. Keep in mind that bringing a lawsuit could further hamper the Board’s ability to receive FHA recertification but it may get them to work harder on your behalf. Replacing the sitting Board with elected volunteers that better represent folks seeking FHA recertification makes far better sense. Perhaps you’ll consider running for the board yourself. Good luck!

Public Offering Statement versus Declaration – Which Rules?

W.C. from New Haven County writes:

Dear Mister Condo,

The builder of our condominium published both a Public Offering Statement and a Declaration. The Builder transferred control to an owner board in March of 2003. These two documents have very similar text but there are differences. Which document controls our operation today? If they both are still relevant which controls in case of differences?

Mister Condo replies:

W.C., that is an excellent question! My instinct was to tell you that your Declaration would be the prevailing document but, as you know, I am not a lawyer. So I asked Attorney Adam Cohen of the Law Firm of Pullman & Comley, LLC headquartered in Bridgeport, Connecticut.  Adam is the Chair of its Community Law Section. He represents and gives seminars to condominiums, tax districts, and other communities in matters ranging from revenue collection strategies to commercial disputes.  He is also the author of regular newsletters with circulations throughout Connecticut called Special District Update and Condominium Update. Here’s what Adam had to say:

Those two documents serve different purposes.  The Declaration is like a “constitution” filed at town hall to tell the world that the community exists and how it operates.  It establishes the community’s name, type, and boundaries, distinguishes common elements from individual units, and so on.   The Public Offering Statement is a consumer disclosure for the benefit of each unit’s first buyer.  It includes a copy of the declaration but also educates the purchaser about construction details, closing fees, and the warranties, financing, and services provided by the developer.  If an original unit owner has a dispute with the developer over a construction defect, term of sale, or the like, then the Public Offering Statement governs the relationship between the two of them.    But the Association itself and its Executive Board aren’t parties to the Public Offering Statement; only the developer and his direct customer are.  For subsequent owners, issues internal to the community, and almost everything else after the developer is out of the picture, the most recent version of the Declaration filed in the land records, along with the Bylaws and Rules, will control.

Accused of Not Stopping!

Stopper from Litchfield County writes:

Dear Mister Condo,

I received two letters in the mail, each stating that I did not stop for a stop sign.  They had a description of my car, my plate number, and my gender.  They have the dates and times that these offenses allegedly happened.

I have never gone through a stop sign.  We have video cameras throughout the entire complex.  Is it possible I can make them pull the tape from that date and time to exonerate me?

If it is my word against someone else’s (perhaps a security guard who doesn’t like me), what will happen?

Mister Condo replies:

Stopper, I can appreciate your concern over being cited for something you claim you didn’t do. If video cameras were in use at the dates and times in question, it should be quite simple to get to the truth of the matter. In most situations like this, it would just be your word against another resident’s or security guard’s word. If there is video evidence, you have every right to request it be presented. Of course, you have to be prepared to own up to the charges if the video tape supports their claims.

I find that the truth is often somewhere in the middle. Perhaps you let a friend borrow your vehicle? Maybe a new stop sign was installed that you were unaware of? Perhaps the security guard or other person got there story wrong or has an agenda of “getting you” because they don’t like you? Whatever the reason, it would be nice to get to the truth.

You didn’t mention what, if any, the Board has decided to take against you? Have you been asked to appear before the Board? Have you been fined? If neither action has been taken, then I would either send a quick letter back to the Board stating that you have never gone through a stop sign and that you would like to see the video surveillance tapes from the dates and times in question.

If you have been asked to appear before the Board, politely ask to see the video surveillance. If you are fined for not stopping, you have the right to appeal the fine. Let’s hope it doesn’t go that far but it should be reassuring to know that you do have rights. Best Wishes, Stopper!

No Solicitors, Please!

E.B. from New Haven County writes:

Dear Mister Condo,

Who can we stop solicitors at our condo?

Mister Condo replies:

E.B., condominiums and apartments are often targets for solicitors because they can generally find large groups of people in a relatively small area. On more than one occasion I have asked unwanted solicitors to leave the grounds of my condo complex. We welcome visitors with invitations but have posted signs that soliciting is not allowed. Still, against our rules and wishes, some solicitors continue to knock on doors and ring doorbells disturbing residents and pushing their wares.

I think you should take a few easy steps to control the unwanted solicitors. If you don’t already have signs posted stating “No Solicitors”, you should definitely ask the Board to get some and install them prominently. A few well-placed signs will keep the majority away. You should also ask your local community law enforcement officer what the city’s policy is on unwanted solicitors. You very likely have legal rights to keep these unwanted guests off of your private property. Reporting the solicitors and the companies they represent to local law enforcement is a simple strategy. If they are fined or arrested for trespassing, they are likely to stop bothering you.

I have also found that solicitors stop trying to solicit if they know that they cannot sell anything on your property. It is incumbent on you and your Board to instruct residents to NEVER buy anything from an uninvited solicitor. No sales for them means they will need to go elsewhere to make some money. Good luck!

Breach of Election Charged!

L.G. from Hartford County writes:

Dear Mister Condo,

During our most recent election of Directors, a ballot was thrown away and another put in. Can we call a new election because it was breached? Thank you.

Mister Condo replies:

L.G., I am sorry to learn of inappropriate election processes at any condo association. The right to vote is of paramount importance in any democratic organization and is protected under your association’s rules as well as state law. Your question gives me cause me to have a few follow-up questions before I can offer some friendly advice. Electoral misconduct can be challenged, either locally through the association or via a lawsuit that would go before a court. Of course, there are circumstances which could cause a ballot to be legitimately discarded. For instance, a proxy ballot that is submitted without a signature or proxy designee to cast the proxy vote could be legally discarded because it was not submitted properly.

How do you know a ballot was thrown away? Was this witnessed by credible sources? Are these sources willing to testify in the event of a lawsuit? All three of these questions need to be answered truthfully before you can proceed.

Did this discarded ballot change the outcome of the vote in a significant manner? That is to say, would this one ballot have changed the outcome of the vote? If the answer to all of these questions is “yes”, then I would say you may have grounds to call for a new election.

Your claim of breach of election and request for a new election should be sent to the association secretary as well as the property manager if you have one. You may be asked to appear before the Board at an upcoming meeting to explain your claim. The Board should then take the appropriate action to correct the breach. If they do not and you are still unsatisfied, you may wish to bring a legal action against the Board. You can do this yourself or you may wish to hire an attorney with experience in community association law. A great resource and be found online at http://www.caict.org/?page=Directory#Attorney – Law Firms. Best wishes.