Monthly Archives: July 2013

Big Dog, Big Fine in this Florida Condo

mc_pet

N.P. from Florida writes:

Dear Mister Condo,

I am searching for information regarding Florida. I have found myself with a $1000 fine and other punitive measures because of my dog being over the weight limit (per condo rules). He is a large breed dog. Without getting into full detail, it is a fact he is a support dog, and I will obtain a letter from my doctor. It goes two ways…I adopt senior dogs with medical issues, most are large. We drive from coast to coast, and spend an average of 4 months in Florida.  I have clear title on the condo.

In your experience, have you heard of such a case?

Mister Condo replies:

N.P., sorry to hear of your troubles. The short answer is “yes”, I’ve heard of similar cases at condos in Florida and around the country. While I admire your dog adoption efforts, I completely understand why your condo association would want to protect itself from allowing dogs that are over the association weight limit. My guess is that once you obtain the support dog letter from your doctor you will have a clear path to fight your association on your fine and your ability to house the dog at the condo. As you may or may not know, there is a lot of controversy about the definition of “support” dogs in Florida and how condos do not have the ability to prevent their presence inside their walls. Here is a recent Miami Herald article detailing the issue – http://www.miamiherald.com/2013/04/22/3358906/the-dogfight-between-south-florida.html

That being said, I assume you knew about the rules of your condo when you purchased there and you have simply chosen to disobey the rules. That is unfortunate and, as you have seen, can carry severe consequences. Even if you prevail in court (and you just might), you will very likely have to go to court creating expense for you and your association. That means your neighbors will be footing the bill for the association to defend against your suit. That certainly could earn you some ill will from your neighbors. Do you blame them? They are following the rules and peaceably enjoying their major investment. You are breaking the rules and looking for a way to continue to do so. That just isn’t being a good neighbor, in my opinion.

Again, as an animal lover, I salute your rescue work. I think it is a noble thing that you are doing in giving these animals a better life. Perhaps you should consider selling your condo and purchasing a home where your rescue saving activities will not have such a negative effect on your neighbors and fellow unit owners. That would be a win/win for all involved. All the best!

Tedious Fines for This Condo Dweller

mc_money

K.S. from Fairfield County writes:

Dear Mister Condo,

I am getting fined for small infractions. I mean really tedious infractions. I’m sick of it. I own my unit, and the mortgage is paid off. What could/would happen if I refuse to pay?

Mister Condo replies:

K.S., I am sorry to hear of your tedious infraction problem. Fines for infractions should be a community’s last resort to correct resident behavior. Not paying the fines once they are levied is one way to go but it could end up costing you more than money in the long run. All is not lost so let’s talk about a few things you can and should do.

The first thing is to stop breaking the rules of the association. I assume everyone who is breaking the rules is getting the same treatment so either the rules are overbearing and should be eased or removed or the people breaking the rules need to change their behavior. You didn’t get into specifics of what infractions you are being targeted for but two of the more common rules people get fined over are pet violations and parking. If Rover is barking and neighbors are complaining, you need to stop the dog from barking. Everyone is happy and the problem is solved. If you are parking in a fire zone while you unload groceries from your car, stop doing that and the problem goes away.

However, just because rules are being broken, the Board cannot simply issue fines. There is due process in our state that generally calls for a written warning to be issued, followed by a letter of intent to issue a fine along with an invitation for the offender to speak to the Board at an upcoming meeting. After hearing from the offender, the Board then decides to issue the fine or let the event go without a fine being issued. If these procedures are not being followed, you would have a case to challenge these fines in small claims court.

As to what can happen if you do not pay your fines, which really depends on the Board and how astute they are in their collections process. They could turn your account over to a collections agency. They could get an attorney involved who would seek relief through the Courts. That could mean you’d not only owe fines but even the legal fees incurred by the Board to take action against you. Of course, that also means that the association would have to win their suit against you. If they didn’t follow the correct procedures along the way, that isn’t very likely. Still, it is a hassle and inconvenience and stress for you to endure this process.

The best solution, in my opinion, is to simply follow the rules. They were in place when you moved in and they were put there to assure a safe and peaceful environment for all unit owners. You are well within your rights to contact an attorney t discuss this matter. If you feel you are being singled out or harassed, by all means, bring suit against your association. The fine system should be used as a last resort and only after all other remedies have been applied. The bottom line is that fines are as annoying to the Board as they are to the unit owner. Better that everyone involved simply voluntarily agree to abide by the rules of the association as they did when they purchased a unit within the association. All the best!

NYC Condo Facing Developer Transition Woes

mc_money

J.T. from New York City writes:

Dear Mister Condo,

I live and serve on a board that recently took over sponsor-control of a 3-year old 67- resident condominium. Our bylaws state that we have a live-in super. NYC indicates multi-dwelling residents have a live-in super or one that lives within 200 feet of the building. After recent review of the accounts, our operating expenses parallel our revenue. In the last six months, common charges were raised 25%. We have just hired a management company. The state of our finances is still under review. Now that the board has taken control of the building, we are now taxed with the choice to purchase or rent the Super’s Unit. Needless to say, there are a number of building issues that we have inherited. We are at a cross roads. With no resources available to purchase the unit from the Association should we increase common charges and establish a special assessment to buy the unit? Address the building issues now and continue renting the Super’s Unit? Establish financial stability before extending ourselves financially?

Mister Condo replies:

Big Apple Greetings, J.T.! You and the rest of your Board certainly have a lot on your plate right now. I know there are some considerable expenses facing the association right now but I am going to recommend one more expense for you. Hire a competent attorney to guide you through the process and to also see if the community has any recourse for how things were handled the past three years. Transition from developer to Board control of a condominium can be a complicated process and one where experiences professionals should be used. In the past, I have recommended association hire an attorney, a property manager, and an accountant to assist in this process. The attorney watches over legal matters; the accountant assists with financial concerns; the property manager handles the day to day business of the Board during the process and can be hired on as a permanent solution once the transition phase is complete. Since you have already undergone the transition phase, it sounds to me like you’ll be playing catch up and bringing your association into compliance moving forward.

You mentioned your annual budget basically being a balance between common fees collected and expenses going out. Clearly, that isn’t enough money to sustain the community for the long run. You will need to create a Reserve Fund and fund it through Common Fund contributions – either monthly or via a special assessment. Neither option is going to sit well with unit owners. The 25% increase to common fees in the past six months may have just been the first of many increases that will be needed once a true financial plan is revealed. As for purchasing the Super’s Unit, the Board may wish to speak to a community association lender and secure a loan to make the purchase. Of course, common fees may need to be raised to cover the monthly payments on the loan.

These will be trying times for Board members to be sure. You may face disgruntled owners. But, rest assured, once you get the community past these initial hurdles, your 3-year old condo will be on the right path for years to come. Best wishes!

Curious Case of the Missing Condo Parking Space

mc_parking

D.M. from New Haven County writes:

Dear Mister Condo,

I don’t live in the community I am inquiring about but in researching my question on Google, I came across this site.  I thought I would ask someone apparently knowledgeable.

Situation: Developer sells a unit to a purchaser with one garage space and one parking space. The parking space is a Limited Common Element. All parking spaces are assigned on the phase map(s). However, the parking space supposedly sold to the purchaser is nowhere to be found on the phase map.

Now the original purchaser wants to sell his unit. Buyer is attempting to force the HOA to assign a parking space.  All parking has already been assigned, and based on the phase maps for the community; no space was ever allocated for the unit.

Who’s responsible here?  The original developer?  The HOA?  The original purchaser? Any insight would be appreciated.

Mister Condo replies:

D.M., that is a most unusual situation. I am not an attorney so I will give you my common sense answer but also suggest you seek legal help. Purchase and Sales agreements are legally binding documents and I wouldn’t want you taking anything I say here as legal advice. With that understanding, let’s proceed.

It sounds like you are describing a multi-phase development where a builder has finished developing and turned control over to the association (HOA). There should be a deed filed at city hall or the equivalent depending on the town detailing what was purchased and how the parking space was assigned as a limited common element. There are a few ways that limited common elements work so the wording on that part of the deed may be tricky. For instance, if the unit were part of a group of 10 units that had use of Parking Lot A and each unit owner has use of 1 of the 10 spaces, it is still limited but unassigned. That would explain the confusion. More common is a large parking area where unit numbers are stenciled on the space or curb identifying the unit that has exclusive use of the parking space. Again, this is an area where a lawyer inspecting the deed may be able to quickly identify the situation.

Now comes my common sense question. What is the current owner doing for parking? Does he or doesn’t he have a space to park his vehicle? As a current owner he has far more sway and ability to make the Board take the proper action. The buyer really doesn’t have any clout or rights with the Board but this current owner certainly does. I would place this problem squarely in his lap as it could easily come back to haunt him after that sale, especially if his unit does not actually have a parking space, limited or other, and he represents it as such. My guess is a few letters from an attorney would settle this for him. Far better to get his settled before the new owner purchases. Good luck!

Condo Civility and Anti-bullying Measures Considered

mc_horrified

M.L. from Fairfield County writes:

Dear Mister Condo,

Hi! I’m on the board of a condo association in Fairfield County. We’ve been having some issues lately with some of our unit owners mistreating hired staff (gate house, maintenance, etc.). We currently don’t have a rule about civility or bullying and I’m wondering if you can point me in the direction of some examples of such a provision.

Mister Condo replies:

M.L., I am sorry to hear about your residents mistreating anyone, let alone the folks that have been hired by the association to maintain and protect the unit owners and the common elements. Honestly, you can’t create rules to create civility. However, you can educate your residents about the relationship between themselves, the Board and management company, and the contractors or workers that are there to work. They may not like hearing it but the reality is that no one works for any resident of the association. Unit ownership does not entitle you to anything more than ownership of your unit, enjoyment of the common grounds, and a vote at the annual meeting. The Board is the only governing body of the association and they are the ones that are elected by the unit owners to conduct the business of the association. A similar analogy would be the relationship between a taxpayer and a city employee. Sure, your taxes pay for the salary of that person but that does not make you their boss. They report to a supervisor or department head who reports to a Mayor of First Selectman.

Begin with education. Send out a newsletter or letter reminding residents that employees and contractors of the association are to be let alone to do their work while on association property. Residents are expressly forbidden from disturbing them in any way. If they are unhappy with observed work or behaviors, they are free and encouraged to contact the property management company and/or the Board to make their complaints known. Hopefully, that will curtail the problem. However if necessary, consider drafting a rule at your next Board meeting as follows:

The association shall, from time to time, hire individuals and contractors to perform work for the association. These workers report directly to the Board and/or Property Manager. These workers are not to be approached by any resident while on the common property. Any resident observed disturbing these workers will be reminded of this rule with a written warning. Subsequent offenses will carry a fine of $25 per occurrence. Depending on the seriousness of the disturbance, the police will be called. Verbal and/or physical abuse is punishable by law.

That should certainly suffice. You’ve asked nicely but you also have a stick to enforce the rule if you need to. Residents that cross that cross that line could find themselves in a different type of community association, the local jail. I seriously doubt it would come to that but you never know. All the best!

Penalty Fee for Not Cleaning Dryer Vent

mc_money

L.L. from New Haven County writes:

Dear Mister Condo,

Can the Homeowner’s Association impose a penalty fee for unit owners that do not get their dryer vent cleaned (as it could become a safety hazard and affect other units)?  There is nothing in the bylaws or rules and regulations outlining the dryer vent cleaning requirement.  Thank you!

Mister Condo replies:

L.L., as you mentioned, dryer vents are frequent safety and fire hazards at condo associations. Many condominium and homeowner’s associations do have rules and requirements about the frequency and the mandatory nature of proper dryer vent cleaning and maintenance. If your bylaws and rules are silent on the subject matter, then your Board may only be able to strongly suggest that owners practice safe dryer vent maintenance. However, if they have notified owners and placed rules in effect since the last published update of your by-laws, violators could be on the receiving end of a notice or fine if not corrected. The bottom line is that dryer vent maintenance can be life-saving by preventing fires. However, education is a far better remedy than imposition of fines to get unit owners to comply. If you feel you have been fined improperly, ask to speak to the Board about having the fine removed or reversed. In the meantime, if you haven’t already done so, get your dryer vent cleaned. Be safe and good luck!

Objecting to an Association Foreclosure

mc_money

V.W. from New Haven County writes:

How do I object to an Association Foreclosure?

Mister Condo replies:

V.W., foreclosure is a legal process by which one party takes action against another. If an Association takes the action of foreclosing against one of its unit owners it is usually surrounding an outstanding debt due to the association. An appeal for foreclosure is made to the court by the Association and a series of trial dates are set by the Court to hear the arguments from both sides. Provided the Court is satisfied, the foreclosure is either granted or denied. If you find yourself on the receiving end of a foreclosure lawsuit I whole heartedly recommend you retain qualified counsel so that you can defend yourself and your property. All the best!

California HOA Recordkeeping Query

R.B. from California writes:

Dear Mister Condo,

In California, how long must the condo HOA keep copies of the minutes on file?

Mister Condo replies:

East Coast Greetings, R.B.! I am a Connecticut person so my knowledge of California HOA laws is quite limited. I would suggest you contact a local expert for expert advice. My advice is for you to check out Community Association Institute’s website at http://caionline.org and search for your local chapter. That being said, most states require corporate records to be kept up to seven years. My guess is that is true in California as well although HOAs and condominium laws do vary by state. Interestingly enough, when I performed an internet search on the topic I found an interesting list at http://www.davis-stirling.com/MainIndex/RecordsRetentionPolicy/tabid/1573/Default.aspx#axzz3Lb5MpCqW, which would suggest minutes need to be kept forever. I found plenty of laws about transparency of recordkeeping and the rights of California HOA residents to inspect all kinds of HOA records. Best wishes!

Condo Parking Problems in the Sunshine State

mc_parking

S.A. from Florida writes:

Dear Mister Condo,

Hello Mr. Condo! I’ve just been notified by my condo association that I’ve been fined $100 for parking on a wrong spot. The owner of the spot doesn’t live there so I used the spot this morning. I knew I would be back by the afternoon to remove it. The association called me and told me they were going to boot my car if I didn’t remove it in the next 2 minutes. I was 2 hours away and couldn’t remove it in time. I realize it was my mistake but I’d like to know what my rights are. Are they required to leave a reasonable notice and give a hearing before making the decision on the $100 fine?

Florida statute 718.303 states:

(b) A fine or suspension may not be imposed unless the association first provides at least 14 days’ written notice and an opportunity for a hearing to the unit owner and, if applicable, its occupant, licensee, or invitee. The hearing must be held before a committee of other unit owners who are neither board members nor persons residing in a board member’s household. If the committee does not agree, the fine or suspension may not be imposed. How can this be enforced? Or do I just have to comply and pay the fine? Thanks for your time.

Mister Condo replies:

S.A., sorry for your problems! The process in Connecticut involves notice of intent to fine before fining but I wasn’t sure about the Florida law so I reached out to one of the best community association attorneys I know in Florida to get your answer. 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:

“Fines for rules violations in a Florida condominium association cannot be imposed without first giving the violator notice of the infraction and the opportunity to appear before an impartial fining committee. The writer can point out the flaw in the fine to the board or can ignore it until a valid fine is imposed. It would appear that this person will not park in the wrong spot again so the association’s only remedy would be to pursue a $100 fine in Small Claims Court which does seem likely to happen. If it does, the writer can use the flawed fine procedure as his defense.”

So it looks like Small Claims Court may be your best option, S.A., Good luck!

Condominium Leadership Conundrum

mc_horrified

T.G. from Middlesex County writes:

Dear Mr. Condo,

I don’t really have a question, per se, but more of an observation:

Boards and representatives from management can single-handedly influence the life of an association. Associations led with respect and neighborly values have a greater chance of prospering than one that is led by condemnation and bullying. I happen to live in an association that falls into the ladder category.

The Board and management are dumbfounded as to why they have such a sparse turn out at open meetings and a lack of community interest in affairs of the organization. During meetings, they search for reasons as to why things so important go unattended. A majority of the few who do attend the open meetings, are board/management “groupies” (many of whom are the spouses or significant others of the Board members) who nod in unison like bobble heads to whatever their demigods say. Things typically move forward uneventfully with Old Business. Then, invariably, there is a topic that turns our board, management representative and the groupies into what can be characterized as high school drama queens. For those brave enough to stand with a comment or idea, as a singular unit the Board and management rep quickly dismisses the idea or comment if it is not in line with proper ideology.

The management rep uses the opportunity through his monthly report to single out those who have offended or spoken critically of him. The rep will never call the offenders by name, rather, by some derogatory noun. He stands on his soap box of editorial and opinion as he whirls up a frenzy in the room. The groupies pounce on whatever is getting the board or the rep in a tizzy, neutering those who deign to challenge this machine. The gossip flows. It is never flattering. The meeting is then adjourned.

I know many people in our association who fear this board and management. The fright is such that the owners refrain from making suggestions, complaints, voicing concerns or asking for due process whether in person or by letter. I have been told by several that they have to mind their “Ps and Qs” because they need their decking replaced or their door painted and to speak at meetings is to jeopardize their project. Those who have been taken to task at an open meeting will never set foot in one again. Likewise, those who have heard of the Board’s and management’s demeaning treatment don’t want to take a chance of being put in either of their crosshairs.

I anticipate your suggested answer to our plight: If enough people feel as strongly as do I, you should unite and run for Board positions. The fact is that people are too apprehensive to run against this Board–owners have been kowtowed and brought to heel. To even support an “outsider” causes them concern for repercussion if anyone was to find out. We are familiar with the word oppression in the news, it is broad, it is vast, it chills free expression and it crushes the spirit. Oppression lives in my Association’s backyard; it has marked us all.

Mister Condo replies:

T.G., based on that account, I am certainly glad I don’t live in the type of condo environment you have described. I do have a few suggestions as to how you can improve your association but you are right in your anticipation of my initial response. You describe your Board as self-centered and not serving in the best interest of their constituents. Yet, as far as I can tell, the membership returns them to power year after year. Your assertion that people are too apprehensive to run for the Board makes no sense to me. Running for the Board is the right and responsibility of all civic-minded residents. It is a difficult and challenging volunteer career but can also be most rewarding. In the case of your association, I would think it would be quite easy for the sitting Board to be dethroned. None of them drew Excalibur from the stone to be deemed ruler. They all serve at the will of the electorate. Get out the vote and get them out of office. If you don’t you truly have no one to blame if things don’t change.

As for any other form of abuse that comes at the hands of a Board member or a Property Manager, I would suggest contacting an attorney to see what rights you have. Derogatory nouns on the public record like that management report may just find the property manager on the receiving end of a lawsuit. Unlike your Board who is a group of unpaid volunteers, your Property Manager is a business person with concerns outside of your community. Report them to the Better Business Bureau, file a complaint with the Department of Consumer Protection, go after them on websites like Google, etc… Unprofessional behavior as you have described need not go unpunished. In a severe case, it could even cost them their license or their job. You need not suffer silently at the hands of a bully, especially one that makes its living off of your common fees. Fight the good fight. Good luck!