Monthly Archives: March 2013

Why is a Seasonal Condo Employee Getting Paid Year Round?

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P.K. from Fairfield County writes:

Dear Mister Condo,

We pay a seasonal employee $80,000.00 per year for work that is performed primarily to the common grounds and building exteriors. From November to April, he is inside the office space with no work. What can we do to remedy that?

Mister Condo replies:

P.K., I am not sure as to what the actual problem or question is. If the association has chosen to hire a seasonal employee then that employee is bound by whatever terms of employment he agreed to when he took the job. If that means working outside in the more seasonable weather and inside once the bad weather season hits, then it sounds like he is doing what is expected of him and getting paid quite well for doing so. November to April is a long time for him to be doing no work as you describe. Are you sure he isn’t prepping for the warmer weather? Perhaps preparing work plans for the common areas? I would think he would be quite bored with nothing to do for several months every year. I would also think the association has better things to do with its money than pay for a dormant employee. Is he on call for other items in the off season? Does he maintain the heating system or provide security? Does he answer calls for emergency repairs? All of these are jobs that can be done in an office in the “off” season and are certainly worthy of keeping him on the payroll. Perhaps you should ask a Board member for a clarification of the services rendered by this employee. I doubt he is being paid such a handsome sum just to keep a seat warm for months at a time.

Condo Governing Documents Violated – Who Can Testify?

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A.B. from Hartford County writes:

Dear Mister Condo,

Can witnesses be called to testify in a hearing relative to violations of governing documents?

Mister Condo replies:

A.B., if by “hearing” you mean a hearing before the Board, witnesses may be requested to either appeal or submit testimony for the Board’s consideration. If by “hearing” you mean a lawsuit involving the courts, then whatever rules of trial are in place at the court are the rules to be followed. These rules may include testimony from association members, Board members, or their attorneys if they have chosen to be represented. I checked with an attorney friend of mine just to be sure. Here’s the reply: “Yes.  In a court hearing, any party can call any person to testify about whatever information they may have about the issues in the case.”

There is also a wide range of violations of governing documents which vary greatly in severity. If someone forgot to call for a vote before adjourning a meeting and no harm was done, there would not likely be an actionable complaint. On the other hand, if a Board member did something as heinous as stealing money from the association, you can bet there will be a trial and witnesses will be called. I hope whatever is wrong in your community is fixed soon.

No Pets Allowed at the Condo, So Why Are They Here?

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B.B. from Fairfield County writes:

Dear Mister Condo,

Our Condo rules state, no pets. After sending a letter to the unit owner regarding this matter, they refuse to comply. How does the board enforce the condo rules? If we place a fine on the unit, for how long can this be done? What if they do not pay the fines? Do we now take the issue to our lawyers?  Now, we have found out there are more dogs living in to our “No Pets Allowed” community.

Mister Condo replies:

B.B., enforcing pet rules at a condo community is almost always in all unit owners best interests. It is difficult because unlike a rule that disallows commercial vehicles from the property, removing pets often comes with the personal challenge of creating heartbreak, disappointment, and potential impoundment of the pets. No one wants to be The Wicked Witch of the West and get “you and your little dog, Toto, too”!

Rules and by-laws are designed to keep the community safe and the property values at their highest. The Board has a slew of weapons in its arsenal to get unit owners to behave by the rules they agreed to live by when they moved in. Start with your condo docs. Undoubtedly, there are a list of fineable offenses and the steps that the Board can take to remedy rule violations. Slow and steady is the course here. Don’t try to take shortcuts. In addition to your own by-laws, be sure to follow the rules for levying fines as laid out in the CT Common Interest Ownership Act (also known as CIOA). Basically, notice must be given to a unit owner that they have broken a rule and that there is intent to fine them for this infraction. They must be invited to attend the next Board meeting to refute this violation if they so wish. After they have had their chance to speak (or not speak if they do not show), go ahead and issue the fine as outlined in your condo docs. Fines are usually set at $10 to $25 and are meant to distract bad behavior and not act as an income stream for the association. Don’t think of fining as a way to get pet owners to pay $25 per day. Think of it as a way to get them to respect the rules.

If the rule violation continues, it is time to seek association counsel. You can take owners to court to get them to comply with the rules but this should really be a last resort. The courts can take a long time to hear these cases and hiring an attorney can be pricy, even though you may be able to sue the offensive party for reasonable attorney costs brought about by their actions. Also, I am sure most attorneys would advise you to make sure you have uniformly applied these rules and fines. In other words, you can’t just go after one unit owner for breaking the pet rule. If there are 20 offenders, go after all of them. Anything less could find the Board facing a discrimination lawsuit and you don’t want that. Good luck!

Married to the Condo Board; Full Disclosure

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H.R. from Fairfield County writes:

Dear Mister Condo,

Can the super of the Condo be a member of the Board of Directors, being also an owner? Can the wife of the superintendent in the condominium (she is a unit owner) be a member of the Board of Directors?

Mister Condo replies:

H.R., both of your questions come under the category of what I like to call “full disclosure”. My answer may surprise you. As long as the unit owners that voted him into office were aware that he was the superintendant of the property, I don’t see a problem with him serving on the Board and being the superintendant. As long as the unit owners that voted her into office were aware that she was the wife of the superintendant of the property, I don’t see a problem with her serving on the Board and being the wife of the superintendant. Letting everyone know, in advance, of the possible conflict of interest from serving as a volunteer and having a spouse or one’s self get paid by the volunteer Board is full disclosure.

 

Anything less than full disclosure warrants a closer look and may be construed as an act of fraud, which brings me to my second observation. This is a potentially dangerous combination. Service to the association as a Board Member is done on a strictly voluntary basis. You run for election, you win, you serve. You are never compensated for your service. Employment is an entirely different circumstance. You apply for the job, you are evaluated, you are hired, your work is monitored and based on the success of your job performance you get to keep working. Serving on the Board for which you are employed creates a serious conflict of interest and is not ideal for the employee or employer. Further, the employer/employee relationship faces outside scrutiny from unit owners who may question the working relationship between the superintendant and the Board.

 

On the flip side, I do know of several communities where this type of husband/wife dynamic is in place and the community is thriving. The community benefits from having an active member of their condo association always on site and overseeing all of the projects. They basically have a 24/7 employee always ready to do the work of the association. You really can’t get a more caring worker than a resident and Board member who is working in the best interest of the community in which he and his spouse live.

 

So, there are plusses and there are minuses. As long as all parties involved display “full disclosure” and the Board keeps an active watch on the situation, I think all parties can find the relationship beneficial. However, if left unchecked, a community could find itself on the short end of bad behavior or collusion. As always, vigilance and diligence are crucial.

Condo Board Refuses To Enforce Small Dog Rule

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M.S. from Hartford County writes:

Dear Mister Condo,

I live in a condo on the 2nd floor. The upstairs neighbor is very disruptive and noisy when playing with their 85 lb., 2 year-old Lab (which is against the condo’s small dog regulation). Many emails, letters, meetings with the offending neighbors and still the problem continues. The Board has basically washed their hands of the matter and said there is nothing more they can do. I can’t take it anymore and have put my condo up for sale. My question: Do I have any rights if the real estate agent tells me the prospective buyer wanted to buy but heard the pounding, thudding noise of the dog at play upstairs and has changed his mind! What can I do???

Mister Condo replies:

M.S., I am sorry for your problems. Sounds to me like you have done everything you can to work with the neighbor and the Board to remedy this problem. It irks me to hear that the Board will not take action. They have a responsibility to protect the rights of all owners and that includes enforcement of the rules. However, from a legal perspective, I am not sure that you have personal legal rights as pertaining to your sale of your condo. You really do need to speak with an attorney, preferably one with real estate experience, to answer that question.

My larger concern for you is that your Board has proven to be ineffective at solving this problem. When you say they have washed their hands of this issue, I am not fully sure what you mean. I assume you asked them to enforce the community’s small dog rule and they have not done so. Rather than sell your unit, why not vote them out of office? There is no reason for any resident to vote for a potential Board member who refuses to enforce the community rules. Simply spread the word about what has happened and how the Board has refused to enforce the rules. Then nominate candidates who will enforce the rules and be sure to vote them into office. Perhaps, you would be a good candidate? Good luck.

HOA, LLC, Back taxes, My, Oh, My!

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L.S. from Hartford County writes:

Dear Mister Condo,

Hello, Mr. Condo, Our condo HOA has just received notice that the original developer never dissolved the LLC that was set up in order to sell the individual units approx 7 years ago. The document suggests that the HOA is responsible for the $250/year tax to have the LLC that the developer has not paid (perhaps he wasn’t aware of the need to dissolve the LLC?) Since he sold the last unit over 7 years ago (total amount over 7 years = $1750). Does this sound possible?  The president of the HOA was one of the first owners and members of the board and said that the HOA was never given anything but the condo docs.  How does the HOA dissolve the LLC? And is the HOA responsible for the tax on the LLC?

Mister Condo replies:

L.S., I am sure that was a disappointing notice to get in the mail. My gut instinct was that the HOA has no ability to dissolve the LLC and that is not responsible for this tax but I reached out to an attorney friend for some better guidance. Here’s what he had to say:

“Every LLC in Connecticut is obligated to pay the state an annual flat tax of $250.  Assuming that’s the bill you’re looking at, the condominium is not responsible for it.   A condo association is a separate legal entity from the developer’s LLC and does not inherit its debts.  Neither does the association have any obligation, or even the ability, to dissolve the LLC.  Instead, it’s simply joined the countless abandoned business entities which no longer exist except on paper.  Your board should explain the details to the association’s lawyer just to be certain, but based on what you’ve described here, the association can safely ignore the LLC’s problems.”

Sounds like you’re in the clear on this issue. All the best!

Condo Audit Question from New Jersey

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M.D. from New Jersey writes:

Dear Mister Condo,

Is there a law in New Jersey that you have to have an audit every year even if your condo is only 20 units?

Mister Condo replies:

M.D., I am not aware of any state that requires annual audits of condo association finances regardless of size. My understanding of New Jersey law is that the Non Profit Corporation Act, which governs Non Profit corporations like condo associations, has a provision that allows for annual audits to be requested by unit owners. I suppose that could be construed as a requirement depending on your interpretation of unit owner request.

While useful, audits can be expensive and time consuming. I know of several larger associations who conduct audits every two to three years. Not because the law requires them to do so but because the sheer volume of money involved makes it prudent to do so. These are condos with hundreds of units, not smaller associations like yours. My advice would be to speak to the Board, Property Manager, and/or the association’s attorney and inquire as to whether or not an annual audit is required. Best wishes.

Protecting an Assigned Condo Parking Space

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R.P. from New Haven County writes:

Dear Mister Condo,

If I have assigned parking, am I allowed to block off my space to insure parking available to me when I return home?

Mister Condo replies:

R.P., you should contact your Board or Property Manager to inquire but you are most likely not allowed to block off your space to insure parking is available when you return but there are other ways to accomplish the same goal. Most condos I know of do not allow anything but vehicles in the parking space. However, you may be allowed to place cones or some other deterrent in your space but why should you? Assigned parking is your deeded right and you have every right to have that space available to you 24/7. If you are finding culprits taking your parking space, take a picture of the offending vehicle. Call the property manager and forward the photo of the offending vehicle and ask to have it removed. If you don’t have a property manager, contact the Board and ask them how to have the offensive vehicle removed. Your local police may also offer assistance although many won’t venture onto the condo grounds as it is private property. If you document the offenses and have successfully had the offensive vehicle removed, I’ll bet the problem goes away. Good luck!

Board Is Voting by Email Between Board Meetings!

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H.A. from Hartford County writes:

Dear Mister Condo,

My condo board meets 10 times a year. However, time sensitive questions often come up between meetings.  Under those circumstances the secretary notes in the minutes that the board voted by e-mail. Somehow or other I think there’s more to it.  How can I lead the secretary to the correct information under those circumstances?

Mister Condo replies:

H.A., in my experience, very few time sensitive issues come up between Board meetings that can’t be dealt with at the next Board meeting. Impromptu votes amongst Board members, held by email or casual conversation, are not good practice and could land the Board in a good bit of trouble if the Board takes action on these votes and is then asked to defend their actions before a court. Impromptu votes are generally not allowed in the Association by-laws and they also violate state laws regarding notice of meeting, ability for unit owners to attend meetings, and written minutes of Board meetings. I would encourage this Board to stop holding votes by email and only conduct association business at the 10 scheduled Board meetings. The exception to making decisions between Board meetings should be limited to true emergencies – repairing a roof that has been severely damaged and is leaking, repairing a building that was struck by lightning, those types of things. Other decisions are best left to regularly scheduled Board meetings, with adequate notice of agenda and adequate notice to other unit owners.

Getting Pooped On By Neighbors At Condo Common Grounds

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T.L. from Fairfield County writes:

Dear Mister Condo,

Our condominium documents state that there is a 20 lb. limit is for each dog. I would assume that the reason is because of barking as well as dog waste. Residents of my condo appear to be following the rules but trespassers to the grounds often bring much larger dogs to our property and let them do their business on our grounds and do not pick up afterwards. Beside the poop issue, I have been attacked on two different occasions by large dogs from other neighborhoods when I walked my 20lb dog in that same area at the same time. My little guy is terrified and so am I.

Our property states “Residents Only” clearly and firmly at the beginning of our walkway. The Board (who do not have any pets) has turned a deaf ear and has ignored my requests that we install a fence to keep the trespassers out. The subject does not even get discussed at Board Meetings, however, one board member commented that it would not be “neighborly to restrict the Back area because we are on the water, etc. The fact that our “good neighbors” leave a pile of dog poop does not seem too “neighborly to me!

Do I have any “juice” to force the Board to restrict the “backyard” area based on the document restriction to residents that a pet’s total weight cannot be over 20 lbs? By allowing large dogs with no restrictions has the Board then, by that lack of action, rescinded their directive on a 20 lb. limit to one’s pet? Thank you for your attention.

Mister Condo replies:

T.L., thanks for writing. Sounds like your neighbors are not behaving very neighborly and your condo Board has turned a deaf ear to your complaints. I asked one of my attorney friends for some advice with regards to law as you asked a couple of legal questions in closing. This is not legal advice, just a friendly observation for your peace of mind. Here is a quick answer that should help.

State law gives condo boards very broad discretion in enforcing the rules.  In fact, boards can decline to take action against violations whenever they determine that doing so would not justify expending the association’s resources or would otherwise not serve the association’s best interests.  When they decline to act, state law specifically says that they have not rescinded or waived their ability to enforce the same rule later, so long as the boards are not acting in an arbitrary or capricious manner (such as flipping a coin, favoring their friends, etc.).   You should send your community’s board or manager a written complaint that concisely identifies specific examples and individuals.  If the board chooses not to act, your remedy is to vote to elect new board members who share your concerns at the next annual meeting.

I’ll take it a step further and encourage you to involve local law enforcement. Trespassing is an enforceable offense as is assault from a dog. If you are attacked, you can certainly call the local police to press charges. You may even be able to get a restraining order against the dog’s owner which would keep them off of the property. The bottom line is that you do not have to be a victim. Best wishes!