Monthly Archives: October 2012

Falling Behind on Common Fees

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D.G. from Fairfield County writes:

Dear Mister Condo,

How many months can a condo owner fall behind in condo fees before legal action can be taken?

Mister Condo replies:

D.G., when a condo owner falls behind on their individual common fees, the whole community suffers. Therefore, it is in everyone’s best interest that immediate action be taken to remedy the situation. Depending on the community’s by-laws, initial action may be taken in as little as 10 days of a late payment. That would usually be a simple late fee added to the delinquent payment. At 30 days, a letter might be sent. At 60 days, many communities would involve a collection agency or attorney to pursue the delinquency. From there, it the common fees remain unpaid, legal action, up to and including foreclosure actions could be taken against the delinquent unit owner. Foreclosure is the harshest of these actions and can be expensive for both the unit owner and the association. In most cases, a simple repayment plan will be negotiated between the delinquent unit owner and the association.

Hurricane Sandy

I am saddened by the loss of life and property that has fallen upon the Northeastern United States this past week. Hurricane Sandy brought fear and panic into our lives before her devastating impact. Millions continue to suffer as the clean-up, rebuilding, and power restoration continue. While not as hard hit as our Northeast neighbors in New York and New Jersey, Connecticut also took a major hit and continues to struggle with its relief efforts. Now, more than ever, the best way to have a good neighbor is to be one. I encourage you to do what you can to make sure you your neighbors are brought safely through this ordeal. Donate blood, give to the Red Cross, or simply say a prayer for all of those affected. Mother Nature has dealt us a mighty blow. As always, we will persevere and repair our beloved home. Be safe and be good to one another.

Must I Pay Common Fees While Fire Damage is Repaired at my Condo?

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J.L. from New Haven County writes:

Dear Mister Condo,

Do I have to pay common charges while the building is being re-built after a fire? The entire building is condemned and will take 6-9 months to re-build?

Mister Condo replies:

J.L., I am sorry for your loss. Fire damage and the resulting cleanup can take quite a long time for most communities to recover from. The short answer to your question is “Yes”, you do have to pay your common fees during the rebuilding period, even if it takes longer than projected. Here’s why:

When the annual budget is prepared, annual expenses are broken down into monthly installments. These installments become your common fees. Even though you may not have full use (or any use, for that matter) of the common elements during the rebuilding process, the association incurs the same expense it always does. Common fees pay for insurance, utilities, future improvements and so much more. These expenses continue even while the property is being restored after a fire.

I hope your association had all of the proper insurance in place when this disaster struck. The good news is that the association’s insurance should cover all or most of the damage. I wish you and your community a speedy recovery and no more disasters.

Are There Laws About Condo Leases?

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S.N. from New Haven County writes:

Dear Mister Condo,

Does CT law mandate that a certain amount of units must be allowed to be leased by owners if they so desire?  Can the rules be written to not allow units to be leased at all?

Mister Condo replies:

S.N., thank you for the question. As you know, I am not a lawyer so I cannot offer a specifically legal answer but I am not aware of any law in our state that allows condominium units to be leased as a provision of law. Rules and regulations on leasing are usually spelled out in the community’s documents and can be modified by the Board of Directors or a vote of all unit owners. Many condominium communities have very specific rules about leasing, including the exclusion of leasing. Some even require that prospective tenants be approved by the association before the lease is granted.

As for writing rules that specifically prohibit leasing, I suppose it is possible but I would caution against a blatant “no leasing” rule as a owner who wishes to lease could argue that his or her rights as an owner were violated when the community put the new rule in place. It would be more common to discourage the practice of leasing by putting rules in place that make leasing financially unattractive. Examples might be “move in / move out” fees, additional surcharge to the common fees for leased units, etc..

Either way, I would advise speaking with an attorney prior to implementing these rules. Even though there may not be any rules specific to condominiums about leasing, there is a higher authority (in this case, the Fair Housing Administration) to be answered to. I wouldn’t want your community to find itself on the wrong side of a discrimination lawsuit that could prove far more costly than allowing leasing in your community.

Can the HOA Place a Lien on Home with No Deeded Obligations?

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D.W. from Fairfield County writes:

Dear Mister Condo,

I live in a single family home located in a homeowners association, with no deeded obligations to join the HOA. Can the HOA put a lien on my house for unpaid assessments?

Mister Condo replies:

D.W., I can only imagine your surprise, followed by your anger, over receiving notice that the HOA had put a lien on your home. My initial reaction was that I had never heard of a home being located in an HOA where there was no deeded obligation for a homeowner to participate. So I checked with one of my attorney friends who practices in this specialized area of law. Here’s what he had to say:

“If membership is truly optional, and nothing in the land records obligates the owner to contribute money to common expenses, the association can’t lien your property for unpaid dues without a court order. But check the documents to be sure because there aren’t many communities organized like this.”

D.W., a lien is a serious matter and I strongly advise you to retain legal counsel to assist you in getting this straightened out. Best wishes for a happy ending.

Landlord vs. Tenant vs. HOA in Florida

T.L. from West Palm Beach, FL writes:

Dear Mister Condo,

I live in West Palm Beach, Florida. Can the HOA make me move if I have lived on property for 6 months? The realtor moved me into this unit in March, 2012 and told me I didn’t need to apply to the HOA. Later, one of the board members asked me to apply and told me I would definitely be approved even with bad credit. So I applied in June in September they are saying I didn’t get approved because I turned in my application after I moved in. Yet they knew I was already living here. They are stating a bunch of lies like I have a dog (which I don’t) and that my daughter was fishing in the lake (even though everyone in here does the same). I received a letter from my landlord asking me to move out in 5 days. This is not an eviction just a letter. What can I do?

Mister Condo replies:

T.L., so sorry to learn of your troubles! As you know, I am not an attorney so I reached out to a friend with some expertise in Florida condominium law to lend a hand with this question. Fortunately for you, I know one of the best! I asked Attorney Donna DiMaggio Berger, one of the founding partners of the prestigious firm of Becker & Poliakoff, Inc.. Here’s what she had to say:

“The first issue for the letter writer is the fact that he or she relied upon statements made by the realtor. The realtor may or may not have a grasp of what the association’s governing documents say but to be absolutely accurate, T.L. needed to read same before moving in and discuss the association’s rules and regulations with his or her landlord.

It is possible that the association documents do give the association the right to pursue tenants who move in without being properly approved first and it is possible they do not. The tenant in this situation should be working with the landlord to determine if there are grounds for eviction or not. The landlord may be getting pressure from the association and may not be in agreement with the eviction but going along to prevent problems. The fight the tenant has on his or her hands is with the landlord and not with the association. The tenant has no standing to challenge the association but the landlord does; the tenant does have standing to bring a potential breach of lease agreement against the landlord. It would be advisable for the tenant to meet with an attorney to review the lease and the association’s governing documents.”

How Are Common Fees Determined?

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N.H. from New Haven County writes:

Dear Mister Condo,

How are common fees determined?

Mister Condo replies:

N.H., even though it may seem like a Magic 8 Ball has been consulted to determine a random dollar amount for common fees, I can assure you there is an excellent and highly reliable mathematical formula for determining the correct amount an association needs to charge its members for common fees.

It all starts with the annual operating budget for the condominium. Whether the association has 2 units or 2000 units, there are certain items that come up year after year that the association has to budget for. Items like insurance, maintenance for the common areas, managerial expenses, utilities and much more have a pretty good track record of what they will cost each year. Other items, such as snow removal, emergency damage repairs, and the like are variable but can be generally accounted for in a well-prepared budget. Finally, contributions to the Reserve Fund for those big ticket items that are going to appear in a few years need to be accounted for as well. Once all of the known and forecasted expenses are compiled, the balance is budgeted by offsetting the expense with income. That income is the money unit owners will contribute in the form of common fees.

The individual unit common fees are determined by a formula laid out in the condominium documents. The most common and typical is the % of unit ownership formula. Basically, the square footage of individual units is divided by the total square footage of all units. For instance, if there were 50 units in a condominium complex and each unit was 1,000 square feet. Using the % of unit ownership formula, each unit would be responsible for 1,000 divided by 50,000 or 2% of the annual budget. If the annual budget required $250,000 in income, each unit owner would have to contribute $5000 annually, or $416.67 monthly. This is a very simplistic example but I hope it offers some insight into how your monthly common fees are determined.

Condo Flood Damage Repaired but not Prevented!

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A.S. from Fairfield County writes:

Dear Mister Condo,

I own a basement level condo with four windows which I rent out. Water leaked into my apartment from a well with a drain pipe that is located just outside the condo a few weeks ago during a heavy rain. The condo association had the wood floor in the condo replaced. I want the Board to install a sump pump or some other alternative, to prevent additional flooding into my apartment if the drain floods again. I contacted the Board about it, but they have not responded. How can I get the Board to take action and install a solution that will prevent another flood?

Mister Condo replies:

A.S., I am sorry for your soggy situation. Flood damage has plagued many community associations in our state as of late. Your situation is not unique but I do want to commend your Board for repairing your wood floor. I can certainly understand your desire for the Board to take action to help prevent further damage and recurrence.

Basically, if you have asked the Board to consider your request, you may have already done all that you can do. The association is not under any obligation to make an improvement to your condo, such as installing a sump pump. Of course, if you continue to suffer water damage from association owned equipment as I assume was the case with the drain pipe, the insurance company paying the claims may insist that the Board take some additional action or have their future claims denied. In fact, if you know the name of the insurer who covered the loss, you may wish to write them a letter with your suggestion. Most insurers are eager to avoid future preventable losses and may even be willing to pay for the sump pump if it will save them money in the long run. Good luck and keep dry!

Security Door to Garden Style Condo Common Entrance Needed!

J.L. from Fairfield County writes:

Dear Mister Condo,

I live in a garden style condo where a front main door is shared.  No one in my building ever locks that main door and it doesn’t close or lock on its own. Recently someone came in and burglarized our storage units in the basement by coming in the unlocked front door. Are there any laws in CT regarding front doors to be automatically closed and locked for tenant protection? I put up a sign asking residents to keep the door locked but the condo association took it down. I am fearful for my protection at this point.

Mister Condo replies:

J.L., I am sorry for your loss and your ongoing concern. As far as laws about front doors being locked, I am not aware of any. I am concerned that none of your neighbors share in your concerns about being burglarized or worse. The easiest solution I can think of would be to have a self-closing door that automatically locked once closed. It is an inexpensive and elegant solution that wouldn’t require your neighbors to be mindful of shutting the door behind them. If I were you, I would send a letter to the Board asking them to add a discussion on the subject to their next Board meeting and you should offer to testify as to why the extra security is needed. If the Board agrees, all that is left is for them to hire a contractor to make the installation. Good luck!

New Condo Water Meters Leaves Owner Feeling Hosed

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A.G. from Connecticut writes:

Dear Mister Condo,

I’m hoping you can help me determine if I have a legitimate fight ahead of me or if I am doomed to the abused powers of our HOA. I received a letter informing me that water meters were going to be installed. When I signed our purchase agreement, it stated our dues will include water. Isn’t this an abuse of power to change the agreement?

If it is legal, are they allowed to keep our dues the same amount? If so I just don’t see this as being lawful.

Also in that same letter was an attachment that stated that our HOA was now incorporated? What does this mean?  There was never any posting of this beforehand asking the homeowners to vote on this.

I’m losing sleep wondering how we are going to afford to pay these new fees on top of our already very high monthly dues. Do I not have any legal right to fight this?

I should add that our board has left our Jacuzzi in non-operating status for over 6 months. They removed our grills from our pool common area and they have a pavement project planned for our complex. We were built in 2006!!  Something feels very wrong here. I’m thinking this new “Incorporated” status will give me less access to fight the goings on with this board and management company.

I’m hoping you can help me with understanding some of this. Thank you

Mister Condo replies:

A.G., sounds like your community has a lot on its plate right now. Let’s see if we can break down a few of these issues and make the situation more palatable. I asked one of my community association attorney friends for an opinion on the more legal portions of your question as I am not an attorney. Think of the following advice as friendly and not legal. If you need specific legal advice, kindly consult with an attorney.

Whether and how the Board can make the change to water meters depends on what your community’s declaration and bylaws say. Even if they say water usage won’t be separately charged, they can probably be amended as long as the proper procedures are followed. As for the grills and pavement project, the Board has the right to change common areas as long as any restrictions in the documents are followed – for example, some bylaws require the unit owners to approve improvements over a certain price. The law doesn’t dictate outcomes in this context, just the procedures governing how the decisions are made. You’ll need to read your community’s declaration and bylaws carefully or ask a lawyer to go over them to be sure. Finally, incorporating simply means the Board has registered the association as a non-stock corporation, like nearly all HOAs do. That won’t change your rights as an owner; it merely allows the corporation to sign contracts, open bank accounts, and otherwise conduct business for the whole community rather than by individuals. But to answer your question more directly: if you and your neighbors don’t like what the Board is proposing, you should speak out at the meetings, vote against the proposed budgets, vote out the board members at the next election, or petition to remove them from office. Of course, you also need to be ready to provide new community leaders. That means you and several of your other concerned neighbors need to be willing and able to volunteer your time to help provide the community leadership you seek. Best wishes!