Monthly Archives: January 2014

Complaining About the HOA Complainer

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C.P. from Hartford County writes:

Dear Mister Condo,

I am president of our HOA. We have one unit owner that is the busy body complainer. She has a problem with parking. She said that since the board will not employ a tow company she is working with the local fire department so that she can call the police and have people towed, basically, so she doesn’t have to ask the board for approval.  We have 13 units built in 1982 in an eighth utilities district.  Is this legal?

Mister Condo replies:

C.P., thirteen units and only one busy body complainer? Well, aren’t you the lucky HOA president? Sorry to poke fun but sometimes you just have to laugh to appreciate the local craziness that goes into running any HOA, even a small one like yours. Thank you for your service to your community.

First off, there is a difference between someone who has a problem with the parking plan at the HOA and a busy body complainer. For the most part, your parking is described in your HOA documents which very likely detail where unit owners can and cannot park. I assume that local building codes and fire regulations were taken into account when the parking plan was drawn up. As long as no laws or ordinances are being broken, your local fire department won’t have anything to say about how you park in your private property. And the local police department will be even less interested in hearing from your complainer about how people park on private property. As long as no laws are being broken, the police shouldn’t take action. They aren’t in the business of towing vehicles from private property.

I think the larger problem here, C.P., may be the relationship between your Board and your residents, and, in particular, your complainer. When people buy into a community association there is certainly an expectation that rules will be observed by fellow residents and enforced by the Board of Directors. In a small community like yours that often means, like it or not, you and your fellow Board members become the local sheriff. You don’t have to aggressively enforce the rules but you will almost always find critics amongst your community members. Too strict and you’re a “bully”; too relaxed and you’re “lazy”. It can be quite frustrating and is often the reason volunteers stop serving on their association Boards. Please understand that as long as you are doing the best that you can there will just be some people you can never please. The best you can hope for is they clam down and start enjoying the good aspects of living in your HOA. My advice is to treat the complaints as you have been. Acknowledge the complaint, state what can or can’t be done, and move on to the more important business of maintaining, protecting, and enhancing your community association, which is the charge of the Board and the HOA President. All the best!

I Want a Copy of the Condominium Master Insurance Policy

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V.S. from New Haven County writes:

Dear Mister Condo,

My condo manager will not give me a copy of the condo insurance master policy.  How can I get a copy?

Mister Condo replies:

V.S., have you asked a Board Member for a copy of the master insurance policy? They may be willing to show you a copy of the policy. Generally speaking, the condo Master Insurance Policy is kept in a safe place (like the manager’s office) since it is such an important item for the association. As a rule, unit owners are not provided copies of the association’s Master Policy. I am not aware of any law that allows for the individual unit owner to inspect the policy or requires the association to provide a copy. I imagine that the reason for this is that your by-laws should clearly detail what protections must be provided by the association’s Master Policy and require that the association keep such coverage in place. If the association was to underinsure or not insure according to those provisions and you needed to put in a claim against the policy, you would have the legal right to bring suit against the association for default under their covenant to all unit owner to provide required insurance.

If you still require a copy of the Master Policy, I might suggest contacting your association’s insurer. The insurer routinely provides copies of the insurance coverage page of the Master Policy to lenders and others who require that this coverage is in place before they will conduct business with the association. This document will detail the amounts of coverage in place and important items like deductibles and dollar amounts of coverage and limitations. Also, if you have purchased a homeowner’s policy, known as HO-6 here in Connecticut, your insurer has likely received a copy of this information and sold you your policy based on the coverage provided by the association. The idea is that the HO-6 policy, combined with the association Master Insurance, has you fully covered, less any deductibles, for likely losses that may occur in your unit.

Of course, if you don’t already have HO-6, I strongly recommend it. Many condo by-laws require that individual unit owners carry HO-6 coverage, and for good reason. It protects you and it protects your association. I wish you happy coverage and no losses. All the best!

Exterior Door Color from HOA Board has Owner Seeing Red!

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P.W. from Michigan writes:

Dear Mister Condo,

I am in dispute with my condo association with regards to my door color. They want all exterior doors to be a dark brown color.  My question is, when a decision is made for all co-owners to change their door color, does a vote need to take place with the co-owners or can the association just come up with this decision and everyone has to comply?  Thanks.

Mister Condo replies:

P.W., sorry to learn of your dispute. I wish I could say you are alone but there are many times where the association takes action that not all homeowners are in full agreement with. It is just one of the realities of living in a HOA.

As long as the Board followed proper protocol as outlined in your condo documents and prevailing state law, they are certainly within their rights to dictate issues of architectural compliance, which is the area that exterior door color would fall under. Other items in this category are exterior building colors, decks, windows, awnings, roof styles, and just about anything else that is visible from the curb.

Is the door color listed in your condo documents? If not, then a proper vote should have been held. The Board could have held this vote at one of the Board meetings or it may have been voted on at an Annual meeting of all homeowners. Either way, there should be a record of the vote for you to review. Unless you are able to get enough homeowners and/or Board members to bring the item up for another vote, dark brown doors is the law of the land and you will need to comply or face potential fines and action by the association to correct your non-compliance. Unless you are ready to do battle with your HOA over your door color, I think I’d go along with the association’s request. Good luck!

Architectural Problems Replacing Condo Windows After Fire Damage

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A.W. from Ohio writes:

Dear Mister Condo,

I need help with a looming situation regarding a design change due to code on some windows that must be replaced due to a large fire in a large 2-level building.  As you have mentioned, declarations & by laws require architectural conformity.  Hard to understand but code does not require all these type windows to have design change & yet code requires all smoke detectors be wired in entire building.  I can’t fight the county but I would like for insurance to understand our plight and cover ALL WINDOWS so at least that building will have same window design. If that doesn’t happen, might be hard to have others comply with by laws in future. We shall have to live with fact that one building will be different but this is still of great importance in the future for other owners in other buildings to comply with original design. Can you help us with thoughts to encourage insurance to pay? Six units will have design change in 2 windows each. We are asking for the remaining 6 units to also be covered for their 2 windows in each unit. The balance of windows will remain same as original design.

Mister Condo replies:

A.W., I am sorry for your community’s fire-related loss and I feel your frustration with your county’s building codes and policy coverage from your insurance company. It would seem to me that your association has a few options available given the facts as you have presented them to me. Please keep in mind that I am not an attorney so this advice should be considered friendly and not legal. If you need legal advice, please seek the aid of a qualified attorney.

For starters, your declaration and by-laws were most likely created by the original developer and adopted and ratified by the first seated Board. Depending on the age of your community, it is quite possible that none of those original adopters are even still unit owners. However, the current Board of Directors and unit owners are bound by those documents unless new by-laws are adopted. Therefore, it would follow that the community would abide by the by-laws and replace the damaged windows with windows that are in conformity with the architectural compliance rules, regardless of the dollar amount covered by the association’s insurance. Of course, building code supersedes architectural conformity so the association needs to purchase windows that are both architecturally compliant and up to code. That may be expensive but I am reasonably certain it is possible.

In other words, if the windows that best replace the damaged windows cost $50,000 and the insurance will only cover $25,000, the association should still replace the windows with the architecturally compliant and local building code-approved windows and pay the difference from association funds. This may lead to a special assessment or community association loan if the funds aren’t readily available for the job. Otherwise, the association is in violation of its own by-laws which creates a potential lawsuit from any unit owner who chooses to pursue the Board for not complying with the by-laws which is part and parcel of what every unit owner purchased when they bought into the association.

As for forcing your insurance company to cover the expense of the proper windows, all you need do is review the existing policy and consult with an attorney to see if you should be covered. My guess is that you are covered for the original windows only. Any upgraded windows the community needs to install will likely be at the community’s expense. Most policies would simply cover the cost or “like kind” of replacement, meaning if the windows were insured for replacement and the replacement cost is $25,000, that would be the limit of the coverage. Of course, there are going to be deductibles and other items that may come into play (cause of fire, age of windows, etc.). Trust me, if you pursue the insurance company to make a payment above and beyond what the policy likely covers, you will have to hire an attorney as the insurance company will most definitely fight to protect themselves.

The only other solution I can think of involves changing your association’s by-laws which may require a special vote of all homeowners. Again, you will need to consult your documents to determine what kind of vote (Board, majority of homeowners, super majority of homeowners, no descending votes from homeowners) is necessary to make such a change. Also, again, you may wish to consult with an attorney specializing in community association law to guide you with that process.

Either way, I encourage you to take proper action to maintain and protect your community. As you have noted, whatever action you take can implications for all unit owners for years to come. I wish you good luck in your endeavor.

Tax Implications of Converting Fire Damaged Condo to Investment Property

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(Editor’s Note – J.S. originally wrote to us in January of 2013. You can read the original post at http://askmistercondo.com/reduced-common-fees-after-a-fire/)

J.S. from Pennsylvania writes:

Dear Mister Condo,

Thank you for your explanation on the condo fees from my previous post. Here is an update. It has been 15 months since the condo fire in Wyncote, PA and very little has been done in the building of the 55-unit condominium building. They have secured a builder and architect and if all goes well, the new 55-unit condo building could be completed late 2014 or early 2015.  I am happy to report that I will not be moving back there. Once my condo is rebuilt I will sell it and now consider it as an investment property.

In spite of that, my monthly condo fees are still being paid faithfully on schedule. For many of the other residents who had insurance, their policies that covered their living expenses for 12 months after the fire ran out, leaving them with nowhere to go.  Several of the former owners have filed for bankruptcy and those who haven’t or who are unable to pay their condo fees since the fire are going to lose their condos to the Condo board. It is a very sad situation.

There were several condo units owned by investors who used them as rental units. I am aware that after losing their condos to the fire the investors can claim the entire loss year after year (including the monthly condo fees) for income tax purposes.  My question to you is this: Is there any tax relief that the rest of us can receive?  I was able to claim the loss of my condo on last year’s taxes but since it isn’t my primary residence anymore can I claim the loss of use and condo fees each year until it is rebuilt and sold? What about my neighbors who are still paying condo fees? Is there any income tax relief credit available to us? No one seems to know. I appreciate any information that you can give.

Mister Condo replies:

J.S., what you are describing is truly a horrific situation and I would encourage all unit owners affected to seek whatever legal remedy they can. It strikes me as appalling that unit owners who have already lost their homes are now also losing their investment in the form of bankruptcy.

As for your specific tax question, I had to turn to an accounting friend as I am not a CPA or remotely qualified to answer such a technical tax-based question: “The facts and circumstances you are describing beg many more clarifying questions to create a list of possible outcomes than we could answer here at “Ask Mister Condo”.  Our experts recommend to you that it is indeed time to seek the solid advice of a professional that can work through these possibilities with you and provide you with the best possible personalized solution.”

I couldn’t agree more, J.S.. I am sorry that you are not returning to your condo but, under the circumstances, who could blame you? You can find a directory of qualified CPAs online at the Pennsylvania Institute of Certified Public Accountants. They have a search form at http://www.picpa.org/Content/42910.aspx where you can enter your region and the type of specialist you are seeking. I entered “Tax – Real Estate” without specifying a county and came up with more than 400 names! Enter your county and narrow down those results for your needs. All the best to you, J.S..

Polar Vortex Blamed for Condo Pipe Burst!

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J.P. from New Haven County writes:

Dear Mister Condo,

I recently had a pipe freeze and then burst in my kitchen ceiling (no one lives above me). Heat was on, etc., but it was during the “polar vortex” – really cold! It caused damage to the ceiling and surrounding area. My question appears to be the opposite of most. I believe I am responsible, but I have purchased homeowners insurance for the interior of the unit and have appropriate coverage (for frozen pipes -their example in the coverage). My insurance company is denying the claim saying that the association is responsible (which makes no sense to me) and citing article 47-255 of CT law.

Does this make any sense to you and can my association really be responsible? It took several calls back to my insurance to have them finally agree that if it says it in the by-laws then it might be covered (my bylaws state I am responsible to repair and rebuild the interior of my dwelling in the event of a casualty).

Mister Condo replies:

J.P., when it comes to condo insurance claims and denials, nothing surprises me anymore. Here is a clear case of you having the proper coverage (HO-6 here in Connecticut) and the insurance company who gladly takes your premium every year is citing a law that allows some wiggle room for them to deny your claim. For the most part, damage to the interior of your unit is your responsibility and your insurer should make good on its policy and honor your claim. However, before they honor your claim they will make sure that your association doesn’t have a policy in place to cover the damage. Your association will not want to put a claim in against their master policy, especially if it is likely to be denied, because the more claims they put in the higher their premiums will be. Unfortunately, this practice is all too common amongst the insurers offering HO-6 insurance.

Honestly, I would waste no time on this other than to bring a small claim against the insurer. If the dollar amount in question is too large for small claims, I would hire an attorney and sue for the full amount plus legal expenses. I’d also shop around for a new insurer and let the state’s insurance commission know about this poor practice at http://www.ct.gov/cid/cwp/view.asp?q=254352. Insurers that have no problem accepting your premium but big problems when it’s time to pay a claim need to be held accountable. Good luck!

Volunteer State Condo Issues, Part 3

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(Editor’s note: The first two questions from this reader appeared in October of 2013. For a refresher please view these questions and answers at http://askmistercondo.com/volunteer-condo-leader-issues-in-volunteer-state/ and http://askmistercondo.com/volunteer-state-condo-issues-continue/)

C.P. from Tennessee writes:

Dear Mister Condo,

Here I am again! I appreciate the information you gave me before regarding our problems with the HOA board here in Tennessee. They had a meeting in October and only 7 people showed up. We have 152 units and 3 board members. They are having another meeting next week. I have realized that even hiring a lawyer won’t help if enough people out here don’t care to get involved and see to it that our documents are followed. Our charter and master deed require 67% of votes to make a change in either amendments or common areas. They said the amendment passed for them to be paid at 62%. And NO ONE got to see the votes but them! When they finally sent us our annual budget in October (that was due in July) I said we needed to be able to vote on it and they said we don’t get to vote on it, it is whatever they want it to be.

Everyone I know who lives in a condo gets to ratify their budget and elect their board. I asked them why we only had 2 board openings to vote on and they said they had decided to stagger the elections (which is not how it says in our documents and we never changed it). Then as soon as they decided they were the new board (no one else got to see those votes either) they said they get to CHOOSE the 3rd director, so there was no vote later on the 3rd director (who is also our treasurer). They have given gift certificates to members who have been volunteers for certain things out here (including me a couple years ago when I was doing the newsletter). I called them on it because I knew it was wrong but couldn’t get them to quit doing it. I quit doing the newsletter rather than deal with them. I wondered how people felt about that or if they even knew it and how it was put in our financial records. I managed to get hold of copies of a couple checks to Krogers for gift cards. One was on our financial report as “supplies” and another was on the financial report as “roof repairs”! They had to know it was wrong or they would have told the truth. If they lied there, where else have they lied on the books? Some of us have been trying to get them to do an audit but no response. I guess I know why.

Anyway, I (and some other ladies) will be going to all the neighbors this weekend with a flyer to try and get them to become involved in our HOA. If they aren’t willing, I guess I will just have to accept all this mess as they do, but it is so hard for me. I hate injustice.

Thanks for all your guidance and support. I get a lot out of reading your responses to others, too. I will let you know how things turn out.

Mister Condo replies:

C.P., grass roots efforts like you are describing may be your only method of rallying the unit owners to start participating in their community’s governance. There is clearly wrongdoing going on at your community association. It is up to you and your fellow unit owners to take the necessary actions to correct it or it will continue and go unpunished.

The good news is that you haven’t reported anything horrific so far. By horrific I mean things like large special assessments levied against unit owners, large amounts of cash missing from the common fund, contracted workers doing projects for Board members on the association’s dime, etc.. It seems the worst so far has been the improper ratification of the budget, some election shenanigans, and a cover up for some gift cards which I assume were for low dollar amounts. None of these are likely to be your association’s undoing but they don’t speak well of how the Board’s governance practices.

As I mentioned last time, you really need some legal guidance in the form of a qualified attorney to get the association back on track. From what you have described so far I still strongly recommend you get in touch with your local chapter of CAI at http://www.caitenn.org/contact.html. Good luck.

Condo Neighbor Remodeling Blues…

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B.J. from Fairfield County writes:

Dear Mister Condo,

I recently purchased a condo unit in a high-rise building (first time homeowner, very excited). The unit is over 20 years old so I decided to update the kitchen and bathroom before moving in. I’ve been complying with the condo’s HOA rules regarding renovation and noise level. I made sure my contractor is only working during the allowed hours which are 8-5 Monday thru Friday. Yet my neighbor will complain by banging on our shared wall during renovation to express her discontent. The next day I took the proactive action to write her a note thanking her for her patience and understanding during this time (and also apologizing for the noise) and assured her that my contractor will only work during the allowed hours per HOA rules. Any renovation is going have a level of noise. It is what it is. I even informed my neighbor of our expected finished date hoping she can bear with us for a few more weeks. She smiled and welcomed me to the neighborhood. Things seemed OK until I found out she filed a complaint to management. I’ve been really conscientious during construction and even wrote her a note. I’ve done everything I can think of to be courteous and kind. I hate to start off on the wrong foot with my next door neighbor. I thought about giving her a nice basket of fruits after the renovation is done to thank her, but I am afraid she will just throw the fruits back at me. Is there advice you can offer in terms of how to deal with such a sensitive (and or potential whiny) neighbor?

Mister Condo replies:

B.J., welcome to condo living! Congratulations on your first-time home buying experience. As long as you are following the rules of the HOA, there really isn’t too much you can do at this time. Renovations and remodeling projects require patience from your neighbors although there is no rule in the condo bylaws that states they have to be tolerant or polite. Your neighbor is doing what she can by complaining to the management company who will log her complaint and take appropriate action, which in this case, is likely none. If you and your contractor are following the rules you are both within your rights to continue as you are. You can remodel. She can complain. As you stated “it is what it is”. I’ll add that “this too shall pass” and after some time I think you would do well to extend another olive branch to your neighbor. There is no point in the tow of you not getting along. The noise will be over and you may be neighbors for years to come. Of course, there may a time when the shoe is on the other foot and you need to tolerate a new bathroom being installed next door to you. I hope you will remember what it was like when you remodeled and cut your neighbor some slack if that happens. You might also wish to invite your neighbor over to your place once the job is done so she can see how the remodeled unit looks. 20 years is a long time for a unit to go unchanged. I am sure your unit will be vastly improved because of these improvements. The visual show might be just what your neighbor needs to get over the inconvenience caused by the noise from the project now. Good job on being a good neighbor. I am sure it will come back to you richly. All the best!

Condo Super Careless With the Condo Keys

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C.L. from Fairfield County writes:

Dear Mister Condo,

Hi, Mister Condo! My careless superintendant, who resides on the premises, was not on-site when a unit owner accidentally locked themselves out of their condo unit. They called the superintendant for their spare key. He told this person how to get into the secured area where all unit owners spare keys are held, which they did. The only people allowed to access that area would be the superintendent and board members, I was told. Since this superintendent gave this person access to all keys, I have to assume the superintendent has done this for others, as well. So, for safety reasons, I would like my locks changed in case a duplicate key was made, etc.. The condo board doesn’t want to pay for my new lock. Do I have any rights? Aren’t they liable and shouldn’t they pay for a new lock for my personal unit door? In today’s world, you can’t trust anyone. The likelihood someone duplicated my key might be slim but is a risk I don’t want to take. I have no idea who else has been given access by the superintendent when he wasn’t around. It could have been contractors, other unit owners, and God knows who else. I hope you can help me! Thank you!

Mister Condo replies:

C.L., I am sorry to hear about the carelessness with which your association is guarding your and all your fellow unit owner’s keys. In most associations, those keys would be labeled and stored in a very secure lockbox with extremely limited access by just a few members. Your chief complaint is with the Board and you would do well to alert all of your neighbors of their carelessness. It is not a question of “if” but rather “when” a security breach will occur. It might be against you or it might be against your neighbor.

The city of Florissant, Missouri issued the following statement regarding a rash of burglaries in their city where entrance to condo units was gained by stolen keys. I think it is solid advice for any condo Board to follow if they wish to protect the sanctity of the keys and to avoid being taken to court for not doing so.

Improper attention to the issue of keys can lead to a burglary. The following are

suggestions to better insure keys are properly controlled:

  • When a new tenant or owner moves into an apartment or condominium, all exterior doors should be rekeyed;
  • Tenants and owners should keep their keys secured at all times. They should take their keys with them when they leave the apartment or condominium and keep them in their pocket or purse;
  • Keys should never be loaned, particularly where strangers are involved. Apartment or condominium keys should be placed on a dual key ring that will permit easy separation from the car key. When keys are surrendered in connection with service or valet parking, only the car keys should be left.
  • Keys and key rings should not be marked or identified in such a way so they can be traced to the owner. Some vehicle manufacturers and vehicle credit companies offer a lost key service that utilizes a serialized key tag. When installed on the key ring, postage cost to the service is guaranteed and upon receipt of the lost keys, the service notifies the owner of the recovery.
  • Finally, lost or stolen keys should be reported to the appropriate law enforcement agency immediately. The affected exterior door locks should be rekeyed as soon as possible —— particularly if the keys were stolen.

If your Board needs further convincing, show them this newspaper clipping. The article details a $600,000.00 theft from a highly secured condo where a stolen key was used to enter the unit. There is history of burglary from copied keys that are not properly secured. There is also history of courts awarding unit owners damages from improperly stored keys where the careless storage of keys leads to a loss.

http://news.google.com/newspapers?nid=1291&dat=19970131&id=dylUAAAAIBAJ&sjid=kI4DAAAAIBAJ&pg=6588,3717451

Diligence is your ally here, C.L.. The bottom line is that the Board needs to take action and sooner rather than later would be my advice. Hit them with the facts and take action if they don’t respond. My guess is that they will see the light and order the superintendant to be far more careful in how he guards the keys. All the best!

Can the Condo Board Fill a Vacancy on Their Own?

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S.J. writes:

Dear Mister Condo,

Can you please tell me if a Board of Directors can fill a spot on the board on their own, without unit owners voting, and where can I find the legal law stating this so I may argue this issue with the Board of Directors who think they own us.  Also, The Board of Directors decided we were going to get new siding on our 88 units. Unit Owners were told we had no say in it. They picked a contractor and told us we had to pay… and… that we can’t sell our house unless we pay them up front… whatever amount that may be. It is a one million dollar job. Help! Please!

Mister Condo replies:

S.J., sounds like your Board is causing you great concern. If you what you say is true I can’t say that I blame you for being upset and looking for what legal remedies you may have. Since you didn’t tell me what state you are from I am not sure where to direct you for state laws that might help you. Suffice it to say your condo documents are your first line of defense and I am certain they clearly outline the powers of the Board with regards to appointing directors to fill vacancies and their ability to enter into large capital projects like the one you have described with or without unit owners’ consent. Almost all condo documents address the Board’s ability to levy special assessments, either with or without a majority of unit owners voting to support the action.

Your statement that concerns me the most is “the Board of Directors who thinks they own us”. It is really quite the opposite. Boards are elected by the consensus of unit owners at the Annual Meeting. They are generally elected for a one or two year term of services. In some cases the term may be longer but almost all are subject to recall by the unit owners if they fail to perform their jobs adequately. Again, your by-laws clearly spell this out including the process by which Board members may be recalled and forced out of office. Of course, that means you need to have replacement volunteers ready and willing to serve as Directors to replace the outgoing volunteers.

My bigger question for you is how have these folks been elected and/or re-elected to serve on the Board if they are not acting in the best interest of the unit owners? Tackling a project like new siding installation requires a great deal of planning. Is this the first time you and your fellow unit owners are hearing about this project? Where is the money coming from? If it is a special assessment then there are very likely rules in your by-laws about how special assessments are determined and levied.

Your ability to sell your individual unit is affected by the special assessment in so much as it is not transferrable to an incoming unit owner. It is the responsibility of the unit owner of record when the assessment is levied. The Board cannot stop a unit owner from selling. However, they buyer is protected from inheriting the special assessment so it would have to be paid before the transaction was completed.

My advice to you and your fellow unit owners is to get much more involved in your association’s business dealings. Most states guarantee you the right to inspect the minutes from the meetings of the Board of Directors. All unit owners are allowed (and encouraged) to attend the Annual Meeting where two things happen. Directors are elected and the Annual Budget is adopted. The Board of Directors does not own you. They are, however, elected by the unit owners to conduct the business of the association. If that business includes purchasing siding and hiring a contractor they may be simply doing their duty as they see fit. They are your elected representatives and they are supposed to maintain, protect, and enhance the common elements of the association. If they are not doing so, you should vote them out of office and replace them with volunteers who will do a better job. However, if the Board needs to raise money to do the job they were elected to do, you can’t attack them just because they need to pass a special assessment to pay for that work. Most likely, the money that should have been saved to pay for such a project was not properly collected over many years, most likely in an effort to keep the common fees low. My guess is that your Board is simply doing the best they can with limited funds. All the best!