Monthly Archives: August 2012

When Condos Attack! Falling Masonry is a Hazard!

G.S. from Middlesex County writes:

Dear Mister Condo,

My condo association provided external repairs to the brickwork and balcony throughout my condo 16 months ago. Shortly after the repairs, chunks of concrete fell onto my 3rd floor balcony from the unit above. Thankfully, no one was hurt. Other balconies have experienced similar problems. The association has promised that the mason would be back in the fall of 2011, then when winter set they said spring, then summer and now it is 1 year later and no repairs have been made. Their response is that the mason used has fallen ill and they are awaiting his recovery and cannot give a date for repair. What can I do?

Mister Condo replies:

G.S., I am thankful that no one has been injured during this masonry debacle. It seems to me that your Board could use some guidance and you and your fellow unit owners could use some relief. No one should have to live with the possibility of injury from falling building debris. First and foremost, your Board would be well advised to hire another contractor to complete the repairs and secure resident safety. I am actually a little surprised that the association’s insurance underwriter hasn’t been alerted about this falling debris. To limit their liability and the risk to human life, they would most certainly demand the repairs be made post haste.

As for the Board’s decision to wait until the contractor has recovered from an illness, I couldn’t disagree more. While it is admirable to offer the contractor the opportunity to complete the job, it is not the Board’s place to allow risk to unit owners from falling debris. The correct business decision is to secure the buildings, complete the repair, and sue the contractor for defect of contract. Even in illness, this contractor has a business duty to the association to complete this repair timely and safely. It sounds like neither has been done. I assume the Board hired a contractor who is licensed and insured for the work performed. This is exactly what insurance is used for. It insures the work done by the masonry contractor. Lawsuits can take time and resources to pursue but it is the logical conclusion to this transaction. Feel free to share this friendly answer with members of your Board. Good luck!

Conflicted Over Conflicts of Interest

J.T. from New Haven County writes:

Hi, Mister Condo! How should I handle concerns over the conflict of interest of board members paying themselves to complete projects in our complex, as well as their hiring relatives to complete projects, without disclosure of the bidding process involved?

Mister Condo replies:

Hi, J.T.! Those are some serious accusations of wrongdoing by members of your Board! If you feel your allegations can be proven true, I would encourage you to shed as much light on the wrongdoing as possible. Board members should never be hired for project work in a condo. Hiring of relatives for project work is also a questionable practice although it is not precluded as long as a full disclosure of the relationship between hired contractor and Board member is disclosed.

You didn’t mention how much money was involved so it is difficult for me to give you specific advice. If the monies are significant, you may wish to seek legal counsel to discuss appropriate actions. Otherwise, I would advise you to speak with your association’s property manager and write to your Board, explaining that you would like some answers to how these projects are being bid and how the association’s money is being spent. As a unit owner, you have the right to know and you have the right to speak with neighbors about these allegations. If you don’t get proper answers, begin a campaign to make sure the misbehaving Board members are not reelected. If you find that laws have been broken, contact the Attorney General. Best wishes!

Special Election to Replace Board Members

A.V. from Middlesex County writes:

Dear Mister Condo,

My Neighbors and I are fed up with the Board of Directors at our condo. How can we force an election to replace the entire Board?

Mister Condo replies:

A.V., I can’t imagine what has made you and your neighbors so upset that you feel you need to force an election to replace your entire Board but suffice it to say that if there has been wrongdoing by the Board, there are steps to take to call for their removal and hold new elections. A far simpler route would be to simply vote them out of office at your next Annual Meeting. Of course, that means having a roster of willing and able volunteers to replace the Board members voted out. Are you and your neighbors ready for that challenge?

If you consult your condo’s governing documents, you will find the process for removing officers from the Board of Directors. It can vary from condo to condo but it usually involves a special meeting called by the Association Secretary giving all unit owners reasonable notice (usually 2 weeks) to attend the meeting. Your condo’s governing documents should describe the exact procedure for recalling Board members and electing new ones. Again, this is not a common practice as most communities would simply remove the Board member at their next election. That is the common democratic practice and the easiest to accomplish. Best wishes.

Pet Peeve Over Rules for Renters

M.C. from Hartford County writes:

Dear Mister Condo,

Can a board create a rule that denies renters from having pets but allows for unit owners to have pets?

Mister Condo replies:

M.C., as a pet lover, myself, I am not a fan of condos that don’t allow pets. However, as a condo dweller, I appreciate the need to regulate the size and quantity of pets in a community association. As to whether the Board can create rules that apply only to renters, there is a fair amount of precedent that indicates that they can. Additionally, since renters are not vested owners in the community, there is little recourse they would have if such a rule were put in place. Many apartments and even most homes that are available for rent routinely disallow pets. The argument is that pets cause additional wear and tear on the common elements. It can be challenging enough to get unit owners to comply with pet rules. That challenge is often doubled with renters as they do not share in the same vested interest of the community’s well-being as a unit owner. Having a rule against renters owning pets simply makes the rules enforcement much simpler, and cost-effective, for the entire community association.

Special Treatment for Board Member’s Green Causing Red!

S.D. from New Haven County writes:

Dear Mister Condo,

A Board member is having the association’s lawn care company do extra work for her at her home after making a statement that no unit owners can get extra work done. She is stealing hours from our lawn company and getting extra work done at their home. It was confirmed with the lawn care company and they are afraid if they don’t do all of this extra work, they will be replaced by her at the end of the contract. No one likes her on the Board. She is miserable, rude to others, and causes havoc with other board members. Can we remove her due to her irresponsibility with fiduciary responsibilities having the lawn care company do all this work at her home and no others? Can we kick her off the board for this?

Mister Condo replies:

S.D., that is quite an accusation and so many players to keep track of! Let me try and break this down into a few simple statements and see if I can offer some practical advice. If a Board member is receiving preferential treatment for her lawn and has threatened the lawn care company with cancellation of the association lawn care contract if they don’t give her that service, she is breaking the law. Not the association’s rules but the state law. As long as the lawn care company is willing to testify against her, she can be charged and likely arrested. A quick call or email to the State’s Attorney office may just bring you the justice you seek. I’m guessing it won’t be quite that simple.

If no one on the Board likes her, how does she continue to run for the Board and win at election time? If she is as unpopular and unlikeable as you claim she is, simply nominate a better person to run for the Board and remove her from office at your next election. Of course, be prepared to fill that Board vacancy with a concerned and conscientious candidate. Perhaps, you would like to volunteer your time to serve your community?

Finally, I don’t want to overlook the lawn care company. You’ve accused this Board member of stealing from the community by forcing the lawn care company to do extra work on her property. The lawn care company has said they are complicit in this scheme. S.D., it takes two to tango. While I admire the lawn care company for admitting that they are uncomfortable with the arrangement, by providing her extra service at association expense they are actually the ones who are stealing from your association. Their contract is most likely quite specific as to what services they will provide and how those services will be delivered. It sounds to me like they are also breaking rules just to keep the contract. Does that sound like the kind of company you want your association to do business with?

S.D., I hope your community looks beautiful and that the lawn care company is doing their job keeping it green and attractive. I think you need to do a little weeding of your own, though, and remove the offensive Board member at your next election and contact the authorities if you are certain the law has been broken. Good luck!

Condo Board Member Must Go! But How?

F.B. & L.G. from New Haven County writes:

Dear Mister Condo,

How do unit owners get a board member off the board with a special meeting with good cause found?

Mister Condo replies:

F.B. & L.G., unit owners who wish to remove a Board member from service commonly vote that person off of the Board when their term is over. However, there are circumstances when a Board member may be removed before then. You will need to review your condo docs for specific details but it would generally involve the Board member violating the condo’s governance procedures as outlined in the condo docs. Since you state that good cause has been found, I am going to assume that this Board member has been accused of some type of wrongdoing that violates the rules of the association’s governance.

It would be more typical and far simpler for fellow Board members to simply ask for a resignation than it would be to force the association to take action. I encourage you to pursue that remedy instead of bringing an action on the part of all unit owners. Again, refer to your condo docs about calling a special meeting of all homeowners. Also, keep in mind that your community’s documents may be superseded by the CT Common Interest Ownership Act (CIOA) that also spells out the specifics for calling a special meeting of all homeowners. Generally speaking, the Secretary of the Board needs to provide two week’s notice to all unit owners before the meeting can be held. Also, the meeting agenda must be clearly spelled out and no other business can occur at the meeting except what appears on the agenda. This is a lot of effort just to get one Board member removed.

Also, please keep in mind that removing one Board member will likely empower the Board to appoint another to fill the vacancy until the election at the next Annual Meeting.

Unapproved Deck Installed! In Hot Water Over Hot Tubs!

M.A. from Fairfield County writes:

Dear Mister Condo,

I serve on the Board of my condo. We have a new resident that asked for and received permission from the Board to construct a sunroom addition on to their Unit. Unfortunately, they went ahead and added an unapproved deck off the approved sunroom without permission or knowledge of the Board. The Board has given them 2 weeks to take it down. They haven’t and now they keep coming up with new ideas and plans to make it work. What shall we do?

Also, another new owner wants to install a hot tub on their deck.  We have nothing in our bylaws or rules and regulations about hot tubs.  The Board does not want the hot tub but we are unsure how to tell them “no” and what legal grounds we have to stand on.

Mister Condo replies:

M.A., ah, yes, the joys of serving on your condo Board when it comes to making decisions that affect your neighbors in a negative way. Thank you and the rest of your Board for your service. Let’s talk about sun rooms, decks, hot tubs, and other things that condo owners want but can’t always have.

Architectural compliance is the term most commonly associated with how the Board decides what is and what isn’t allowed. Almost every condo has the clause in its documents and it is what empowers the Board to keep the community in uniform shape. It covers everything that is part of the buildings, including the materials which can be used and what, if any, modifications are allowed. It is also where the Board gets its authority to grant permission or deny requests for modifications. In the event of the unapproved deck, the Board has every right to stand its ground and demand that the deck be removed. That isn’t to say that the homeowner will comply. They may try to stop the Board’s action, hire an attorney to bring suit against the Board, and so on. It can get quite ugly so get ready for a bumpy ride. The bottom line is that the deck wasn’t part of the approved sunroom addition so, legally, the Board is on solid ground. That being said, your new neighbor is likely to be out a good bit of money for the new deck which they will have to remove. They are making every effort to bring that deck into compliance and there may be a “win/win” scenario available so I would definitely hear them out. However, the wisdom of the Board and architectural compliance will be the ultimate deciding factors.

As for your deck-mounted hot tub-seeking resident, architectural compliance may or may not be your ally here. If your documents do not expressly address the issue, you are facing a bit of a sticky wicket. I understand hot tubs can be quite heavy when full of water. That weight could cause an undue amount of stress on the deck, creating a potentially dangerous situation. Check your local ordinances. It may be against your town’s building code to install a hot tub on a deck. If so, problem solved. If not, consider putting the item on an upcoming Board meeting and cast a vote as to whether or not to allow them. If there are enough votes against it, you can pass a rule that bans hot tubs. That rule can be questioned by the resident at the next Annual meeting or they may choose to sue the Board over the decision but both of those things require a lot of effort, which the resident may not wish to exert seeing as he can’t go relax in his deck-mounted hot tub when he is through. Pardon my joke.

The bottom line is that architectural compliance is in place for a reason. It assures all condo residents that the standards they purchased when they moved in will be enforced. It keeps the common areas uniform, safe, and appealing. Building modifications, in any form, run the risk of losing the ability to assure architectural compliance. It is one of the Board’s most important responsibilities. Good luck!

Interest on Funds Borrowed from Reserve Fund?

M.O. from New Haven County writes:

Dear Mister Condo,

Can you charge interest to the association for a loan from the reserve to fund a big project?

Mister Condo replies:

M.O., at a time when many associations are finding it very difficult to find the funds to pay for much-needed repairs to their common areas, it sounds like your community did a good job saving enough money in the Reserve Fund to go ahead and loan it back to the association for the actual repair. Congratulations to your Board for practicing good fiscal responsibility by being ready for this expense.

I checked with my friend, Sam Tomasetti, CPA of Tomasetti, Kulas & Company, P.C. to give us a proper answer. Here’s what Sam had to say:

“From a purely financial point of view: If it is all within one association’s funds (and does not have a tax district or special services district separate entity implication), the interest income and interest expense would offset in terms of the cash flow requirement as it would impact someone’s regular condo fees so I am not sure why an association would want to do it.  If they still want to do it, I would have to do some research on whether self-charged interest would be taxable and secondly, if it is taxable, I would think that since you are allowed to deduct the cost of earning taxable income against the income, the self-charged interest expense might be deductible as an offset and therefore there would be no tax effect.”

Dad Wants to Buy Us a Condo!

J.H. from New Haven County writes:

Dear Mister Condo,

My wife and I are newlyweds and my father wants to buy us a condo. Is there anything we should know before he does?

Mister Condo replies:

J.H., Congratulations! A new wife and now, maybe, a new home! There certainly are a great many things you should know before your father purchases a condo for you. I could ask you a whole bunch of questions here or I could give you a website link I often refer people to: http://www.sphinxlegal.com/products/articles/should-you-buy-a-condo-decide-if-condominium-living-is-right-for-you-before-you-sign-the-papers.html

The author is Denise L. Evans and she is an authority on the subject and a very successful real estate attorney. If you pass her aptitude test for condo living, then give Dad a big hug and let him purchase that condo for you. If not, you might be better off asking Dad to invest in a house for you instead. It would be far better for you and your new bride to live happily ever after in the right kind of home for you. Best wishes!

Management Company Charging Us For Copies of Our Documents

K.P. from New Haven County writes

Dear Mister Condo,

We are requesting documentation and our management company states per state statute they are required to charge 50 cents per page. Is this correct?  I cannot find anyone under www.ct.gov for condos.

Mister Condo replies:

K.P., searching for specific condo laws can be a real challenge. As you know, I am not an attorney but this is a question that is often raised. The statute is C.G.S. 47-260(e), but its actual wording is this: “The association may charge a reasonable fee for providing photocopies of any records…”  Many associations and managers interpret this law as meaning either the actual out-of-pocket expense of having a vendor make copies, or if the copies are made in-house, fifty cents per page.  They borrow that figure from the amount state law permits local government agencies to charge for photocopies of records under the Freedom of Information Act, since that’s the statute which inspired this part of the condominium law. So Connecticut’s statute probably does permit the manager to charge fifty cents per page, but it’s not exactly accurate to say that this specific amount is “required”.

I hope that answers your question. All the best…