Monthly Archives: April 2013

Condo Water Damage Caused Over 8 Years!

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P.M. from New Haven County writes:

Dear Mister Condo,

I have a problem with my upstairs neighbor who is currently being fined $20 per day for non-compliance of the condo Bylaws. Two independent water testing studies have shown that repeated leaks into my condo are the result of eroding balcony doors and defective flashing underneath the sliding doors in his unit. The rules and bylaws dictate that thresholds are unit owner’s responsibilities but the neighbor is refuting the evidence blaming his terrace as the source of water entry. I have tenants in the condo who are tired of its leaking state and are threatening to leave. I had one other tenant leave because it has been ongoing since 2005. Now the source of the leaks is established. What happens next? I have suffered financial loss, stress and still he refuses to fix his problem. What do I have to do now that the fines have been implemented? This could go on indefinitely.

Mister Condo replies:

P.M., my best advice to you is to hire an attorney and sue the unit owner for not abiding by the by-laws of the condominium. You may be able to handle the lawsuit on your own in small claims court depending on the value of the damages you will be claiming. I strongly suggest you consult with an attorney as soon as possible to discuss your legal options. From what you have stated, you will very likely prevail and you may even be able to include your attorney fees in your lawsuit. If you simply wait for this unit owner to fix the problem on his own, I think you will be disappointed because, as you state, this problem had been ongoing since 2005. I certainly wouldn’t allow another 8 years to go by waiting for the owner to take corrective action. Good luck.

Contractor Damaged the Condo Floor. Who Pays?

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M.J. from Washington State writes:

Dear Mister Condo,

The property manager and board of my condo hired a contractor to work on some joists and beams that were affecting our front room. When the contractor pulled up the carpet, pad, and sub floor to do the work, he damaged the carpet, pad, subfloor, and tile. Are my property manager and board responsible if the contractor or his insurance does not take care of the damages?  I do not live in your area but I am trying to get some advice and hoping you can help.

Mister Condo replies:

M.J., I am hopeful that the contractor or his insurance will make good on the damages sustained to your unit during work performed by the association. Clearly, your Board had a responsibility to hire an insured and licensed professional to do the work of repairing the condominium floor joists. If, by chance, this contractor was not properly insured, you may have a bit of a sticky wicket to deal with. Your first line of attack is against the contractor and/or his insurance company. You may need to hire an attorney and you may need to sue. If that is the case, it is likely the attorney would advise you to sue the association as well. I hope it doesn’t come to that and you may be offered a settlement by one or more of the parties if it does. Hopefully, the repair to the joists was worth all of this hassle and inconvenience. It is just one of the occasional challenges of living in a community association where common elements that require maintenance travel from unit to unit. Good luck!

How to Stop Secondhand Condo Smoke?

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C.O. from Windham County writes:

Dear Mister Condo,

Hi! We have a nuisance policy concerning odors coming from other units. There are some smokers who live on the first floor of my condo building. Their smoke fumes/gasses enter into the upstairs condos. I have read that there is a 50/50 chance the courts will back the non-smoker and require the smoker to NOT smoke in their unit, as they have no legal protected right. Our Master deed states that the Board may adopt Rules and regulations when necessary for health and other reasons. Can the Board places a rule in the “Rules and regulations” stating that “If an owner has an issue with the second-hand smoke coming from the unit and entering the non-smokers unit that the Board will send that smoking owner a certified letter stating that smoking in their unit will not be allowed due to Owner health concerns.”?

Mister Condo replies:

C.O., the issue of secondhand smoke has come up at condominiums all over the country. In some states, smoking bans have worked in the favor of the non-smokers seeking relief. In Connecticut, the law may be on your side although there are specific steps you and your Board can take to ban smoking the right way. The CT Department of Public Health has published an excellent guide to help you along. Point your browser to their website at http://www.ct.gov/dph/cwp/view.asp?A=3137&Q=486714 and follow their simple steps. Of course, owners that are smokers are likely to oppose the action so don’t expect a simple passage of the new rule. There will be debate, likely heated, about what can be done in the privacy of one’s own home. However, with perseverance, I believe you can create a smoke-free environment for all residents. Good luck!

This Path Leads to Condo Controversy

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O.F. from New Haven County writes:

Dear Mister Condo,

A resident had a path made of pavers installed by the condo developer. This path was installed without knowledge or permission of the Board of Directors. In our complex, it is the only such path and does not conform to the overall uniform appearance of other units. Is this path allowable? Can the Board ask that it be removed?

Mister Condo replies:

O.F., I guess it depends on exactly when the path was installed and what the status of the Board was with regards to the property when it was installed. Since you used the word “developer” in your question, I will assume that the unit in question was under developer control at the time of the installation and that the unit was not part of the association at the time of construction. This is quite common in condo associations that grow in phases. For instance Phase I and Phase II are complete and Phase III, where this unit is located is still under construction. In this case, while not common, the developer may have made a concession to the unit purchaser to install this paver path. Depending on how the sales document is worded, the path may be owned by the unit owner or become part of the common elements of the association when the developer transition phase of this project hits. At that time, the association would either accept or reject the developer’s proposal that the association take over that phase of the condo, inclusive of this paver path. In all likelihood, the association would take on the new construction and the path would become common property even though it only seems to benefit this one owner.

However, if this is not the case and a unit owner has taken it upon himself to install a path on association property, the Board can simply order it removed, at the homeowner’s expense. Hope that helps.

Renters Causing Financial and Rules Enforcement Problems for Condo

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D.C. from New Haven County writes:

Dear Mister Condo,

Is our association allowed to add on a “management service fee” for units which are rented?  We have a large complex with a large number of rentals. Should the landlords expect the association to be used as a free on site management service? Many of these landlords are off site; some are even out of state. They cannot deal with their tenants, many of whom are not following rules & regulations. Our management now has to deal with tenants and the landlord. Why should this extra service be taken out of our fees? This should be something they should be paying for.

Mister Condo replies:

D.C., so many issues in a condo complex like yours! I feel your frustration. Let’s take a look at a reasonable approach to handling the management of these issues. First off, you asked about a “management service fee”. The short answer is “Yes”. As long as the association puts a rule in place describing the fees for units which are rented, there is no reason a “management service fee” couldn’t be assessed to units that are rented. Many condo associations have a series of fees for rental units. They include move in/move out fees which are collected every time the unit gets a new tenant. A monthly increase to common fees for rental units could be implemented as well. Of course, documentation is critical and the landlords should be required to provide copies of the lease and all of the relevant information about who will be living there, what pets, if any, they are allowed and what vehicles they will park on the property. As for rules and regulations not being observed by the tenants, the Board should follow proper procedures for documenting these offenses, offering warning letters and opportunities to appear before the Board to explain the violations, fines and even eviction for repeat offenders. Eviction is particularly tricky to enforce but as long as the proper procedures are followed, you can have problem tenants removed over time. Also, by pressuring the landlords to have their tenants comply with the rules you have a double-edged sword to wage your attack on the tenants who misbehave. It takes time, but you can correct the situation, compensate the community properly for maintaining a large number of rental units, and restore the peaceable enjoyment that all unit residents are entitled to. Good luck!

Common Elements Powered by Condo Owner’s Electricity

L.M. from Hartford County writes:

Dear Mister Condo,

I have lived in my condo unit since 2004. After moving in, I was told my unit was originally the office so certain items were set up in it. Since living here, I have found out that 3 Sump Pumps are running off my electric. Pump 1 is located in my bedroom. Pump 2 is a portable pump which is in my furnace room. Pump 3 is in the hallway of the building next to my unit but has been rewired so that it no longer runs off of my electric. When this was first discovered, an agreement was reached with the BOD that they would pay half of my electric bill and I would deduct that portion from my condo dues. A new BOD was elected in 2007. They no longer want that arrangement. They want no responsibility for the pumps. They feel they are my responsibility and felt that Pump 1 in my bedroom is solely mine. So, in 2007, I contacted the installer of the pump in my bedroom. The letter they sent me in part stated the pump in my bedroom has smaller pumps located in other units draining into the big one in my unit and the system is designed to control water penetration from the exterior, etc.. The BOD had an electrician come out who stated that the sump pump in my bedroom is a hazard. At that time, it was also discovered that the wiring for the gate (for the cars to enter and exit) is running through my unit as well! It is not running off of my electric, but I was told it was also a hazard. The BOD feels since the gate isn’t actually running off of my electric that the wiring going through my unit shouldn’t be a problem for me. It is now 2013. The issue was revisited with the current BOD who do not think the pumps are mine since none of the pumps were authorized by me. My question is do I have a right to ask them to remove the items?  Are they responsible for the upkeep and maintenance of the pumps?  Can I have them removed on my own?

Mister Condo replies:

L.M., what a tangled tale you tell! It is a real nightmare for you, I imagine. The good news is that no harm has come to you from the hazards identified by the electricians or pump installers who have looked at the situation. The real issue here is Board members who are uncertain or unwilling to do what should be done to remedy the situation and a questionable construction standard that likely was missed when the condominium was originally built. You may wish to hire legal counsel to guide you through this process but if the current Board is amenable to making things right, that may not be necessary.

Common elements that are owned by the association are the responsibility of the association. That means all of the sump pumps that were part of the initial installation or have been added by the association since the units were built are the responsibility of the association. That includes supplying power to the pumps as well as maintenance and upkeep of the pumps. If the only way they can supply power to the pumps is to tap into your wiring to do so, they can do that but only with your permission and your agreement as to how you will be compensated for the electricity used. If I were you or serving on your Board, I would want the pumps on association-owned electric service for the simple reason if you were to leave the association or the power service turned off to your unit, the pumps would become non-functioning and could cause huge water damage issues for the association.

As for dangerous wiring inside your unit, you have the right to have that problem resolved. However, it may take more than one electrician informing you that there is an issue. The association has the right to bring in their own electrician for an assessment of the situation. If that electrician agrees with the assessment you have already received, the Board would be wise to correct the situation before there is a problem. However, unless the wiring is deemed faulty, the Board may choose to do nothing as the original wiring was likely to local building code back at the time the condo was built. Again, depending on how the Board handles your request to have the wiring fixed, you may wish to hire an attorney to guide you through any legal action you might choose to pressure the Board to do the right thing. All the best!

Do We Have to Follow the Condo By-laws to Pass a Budget?

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R.H. from Pinellas County, Florida writes:

Dear Mister Condo,

Our condo is in Pinellas county Florida. We only have 4 units. No unit owners live there full time. Do we have to follow the condo by-laws on meetings for budgets or assessments? Or, can we communicate and vote by e-mail and phone?

Mister Condo replies:

R.H., I am not an expert on Florida condo procedures but it would hardly be possible for you to hold regularly scheduled meeting of the association if the owners aren’t physically together. Electronic communications, like email and even phone conference are probably fine for the routine meetings. However, I would be concerned about passing budgets and special assessments strictly by email. If you have unanimous consent of all owners on these important financial items, there should be no problem. However, if one or more of the owners decided to fight the budget or assessment, your by-laws and Florida state condo laws would come into play if one of those owners decided to take the Board to court. I would play it by ear. If no one is complaining, you are probably fine to do what you’ve been doing. Just be wary of any member pushing back against the budget or assessment. In that case, I would follow the letter of the by-laws and even delay a vote until all parties could convene for an annual meeting. Best wishes!

Is there a Mister Condo in Chicago?

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G.M. from Chicago writes:

Dear Mister Condo,

Is there a Mister Condo in Chicago, IL?

Mister Condo replies:

G.M., I may have a second cousin, twice removed, living in Chicago but I don’t think he goes by Mister Condo, so the short answer is “no”. The only Mister Condo I know of is me and I live here in the Constitution State of Connecticut. However, I have friends in the business all across the country. In Chicago, most of my friends are involved in the Illinois Chapter of the Community Associations Institute (CAI). They have a wonderful and fact-filled website for you to peruse at http://www.cai-illinois.org/. You can call them at (848) 301-750 or email them at CAI@CAI-Illinois.org. They also host one of my favorite programs for community association volunteer leaders called DCAL. This year’s DCAL program kicks off in May! You can read about it here – http://www.cai-illinois.org/Board-Member-Education-(DCAL)~458722~264.htm. You are always welcome to ask me a question here and I’ll get you the best answer that I can or you can simply reach out to your local CAI chapter and ask them for advice or guidance. Thanks for the question!

Question of Condo Collusion in the Sunshine State

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B.H. from Florida writes:

Dear Mister Condo,

My Southern Florida condo has a new manager. The condo Board Treasurer is good friends with this manager. The Board has voted on making an assessment at a recent meeting this past month making the assessment retroactive to January. Is this legal?

Mister Condo replies:

B.H., I get the feeling you feel there is some collusion between the new manager and the Board Treasurer. If you are suspicious of their relationship, I suggest you alert other Board members to the potential conflict of interest. However, it is not uncommon or unlawful for Board members to know and/or be friends with their Property Managers. In fact, it is quite common for Property Managers to make very good friends with Board Members as that is who they work for and who they attend many Board meeting with every year. As for the retroactive assessment, that strikes me as strange and unnecessary. What is the value in making it retroactive? Wouldn’t that make everyone affected overdue? My guess is that the assessment was passed and that homeowners now have to pay  the assessment to cover work that is either completed, being done, or in the planning stages. As long as the assessment was passed in accordance with your association’s by-laws, it should be legal. However, if the proper protocol was not followed, you may have grounds to have the assessment dismissed. You should consult an attorney if you feel the law was broken. Good luck!

Ooh, That Smell! Condo Reeks of Marijuana Smoke!

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C.C. from Hartford County writes:

Dear Mister Condo,

I’ve been dealing with a marijuana-smoking neighbor for 6 years. The smell permeates our shared wall and comes through the air vents. I spent a ton of money on air purifiers, fans and odor neutralizers – all to no avail. Another neighbor tried similar methods without success. We complained weekly to my condo board, they sent a letter to the tenant (who is the son of the unit owner) and to the father (the owner). The only thing that happened was retaliation in the form of the tenant standing in front of our doors (in the common hallway) with a bong and a small battery operated fan, blowing smoke under our doors (he was caught doing this on three occasions). The board did nothing. They told us they did all they could (sent the letter), and because it’s narcotics we should call the police. So we called the police. The police came three times, smelled the obvious smell and tracked it to its source (my neighbor), searched the unit and said they only found trace amounts and therefore they couldn’t do anything. (In our state the only thing the user would get is a fine.)

Here’s where it gets really personal: I am so fed up with the pot smell that I am attempting to sell my condo in a short sale (because I’m under water and can’t afford to roll my mortgage into a new mortgage on another condo). The smell of marijuana is so strong in the hallway that several would-be buyers didn’t even look at my unit. When the elevator door opened and they smelled the pot, they told my real estate agent they didn’t even want to get off the elevator. The few intrepid would-be buyers who looked at my unit cited the pot smell as the reason they won’t bid on it. The short sale value is already dropping to ridiculous pricing, but I’m now facing the bizarre situation of not even being able to unload my condo in a short sale thanks to my pot smoking neighbor. My real estate agent suggested legal action against my condo board and the tenant, but I know the tenant (and his father) don’t have much in the way of money – the pothead tenant doesn’t work, he claims he’s agoraphobic and therefore can’t work. He doesn’t collect disability and it is not medical marijuana. His father supports him financially. (The pot smoker is in his mid-50s and hasn’t held a job in 28 years – he bragged about this to another neighbor.) I don’t want to sue the elderly father just because he has a pothead loser for a son. As for my board, what would be the grounds for a law suit? Failure to uphold condo bylaws? The problem with that is that our bylaws do not specifically address narcotics. It falls under the nuisance clause, which is vague and IMO leaves a lot of wiggle room for the board to get out of responsibility for situations like this.

Mister Condo replies:

C.C., you hit the nail on the head early on in this question. The police need to intervene each and every time there is an issue with your neighbor’s marijuana smoking causing problems for you and your neighbors. Your Board has no legal authority to make the condo resident stop smoking marijuana. That is why they told you to call the police. This is a matter of law enforcement, plain and simple. As for who you can sue, I think that when you consult with an attorney you will find there are lots of culprits here who may or may not have legal liability. I appreciate your sympathy for not suing the owner of the unit as he may not have much money but where is his sympathy for you when it comes to protecting your rights to peaceably enjoy your unit. He and his pot-smoking son would be at the top of my list! You may have a case against your Board for not upholding the nuisance clause but I doubt you would prevail. I’d have the local police on my speed dial and I would be vigilant until I saw a change in behavior and a removal of the nuisance. As for your short sale woes, I suspect they will take care of themselves over time. Either a fellow smoker may care for your unit or a thorough cleaning of your unit may help alleviate the smell enough for you to make a sale. Good luck!