Monthly Archives: January 2014

Keeping Copies of Condo Common Fee Checks – Good Idea or Bad?

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W.S. from New London County writes:

Dear Mister Condo,

As a backup to condo recordkeeping, is it a good idea for the board to maintain copies of maintenance fee checks?  And if so, are there any privacy issues associated with those copies?

Mister Condo replies:

W.S., I suppose I could make an argument in favor of AND against keeping copies of checks. Let’s look at some of the pros and cons. On the “pro” side, you would have an indisputable hard copy of every check that came in which would make rectifying the income side of your ledger fairly simple. On the “con” side, as you mention, there are privacy concerns. Where will these records be kept? With the rise of identity theft, will unit owners feel safe knowing that copies of their checks which include their personal information as well as their bank’s routing number and checking account number readily available? I think the cons far outweigh the pros in this situation and my advice would be to NOT keep copies of these checks. I don’t know of any bookkeepers who do this. And in this day of Automated Check Handling (ACH) there are many times when there is no physical check to keep a copy of. My follow-up question would be how many times is this an issue? If the association claims a unit owner did not make a payment, it is up to the unit owner to provide proof that they did. Far easier and safer for them to simply produce an archived check from their bank than for the association to put all the other unit owners at risk of identity theft over the rare time when a unit owner’s records don’t match the association’s records. Hope that helps!

Getting Soaked Over Condo Water Meter

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P.G. from New Haven County writes:

Dear Mister Condo,

Our condo is 3 years old. The outside water meter is not working. HOA is saying we have to replace the meter. We feel that it is not our responsibility to replace. Please advise.

Mister Condo replies:

P.G., unless the water meter is still under some type of warranty you and your fellow unit owners may be on the hook for the repair. I am curious as to who actually owns the meter. If it is property of your local water company, they may be more than happy to pay for it. How else would they know how much to bill your association for water usage? If you are talking about individual water usage meters for each of the units or buildings then the meter may be your responsibility. Your condo documents very likely spell out who is responsible for limited common elements and/or individually owned items like utilities. All the best!

Second Shot at Collecting Unpaid Condo Legal Fees

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A.G. from New Haven County writes:

Dear Mister Condo,

Can the association collect legal expense and attorney’s fees from a prior foreclosure when the unit owner paid all but those legal fees and the treasurer inadvertently deposited the unit owner’s check? Now, the unit owner is in arrears again for almost a year’s worth of unpaid assessments. We have begun legal proceedings again to foreclose. To make it more clear, can we collect the prior unpaid legal fees as part of this pending foreclosure?

Mister Condo replies:

A.G., unpaid assessments and uncollected legal fees can cost any community association dearly. Once the courts intervene and the judge makes a ruling and the monies are disbursed, that chapter of the saga is over. I checked with an attorney friend of mine for a clearer answer for you. Here’s his advice:

“If the previous foreclosure was withdrawn otherwise terminated, it’s unlikely a judge would award any attorney’s fees incurred in it now.  Talk to the association’s attorney who is handling the case about any other options, but don’t get your hopes up that these expenses will be reimbursed.”

That sounds like great advice. Good luck with this next round of legal wrangling. I hope your association attracts a new unit owner who will be a good dues-paying member of the community. All the best!

Remodeling My Condo; What Role Does the Board Play?

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M.S. from New Haven County writes:

Dear Mister Condo,

I’m going to remodel my unit. Which papers should I present the Association from my General Contractor? For instance do they need to see the contractor’s insurance or license?

Mister Condo replies:

M.S., most condominium rules state that the Board will require both the license and insurance for the contractor before any work begins. Also, and this is just as important, they will likely need full plans for what specific renovations you are considering. They have the right to review plans, materials, and potential impact on neighboring units and or the association. If you attempt these upgrades without Board approval, you could easily find yourself on the wrong side of a lawsuit brought by the Board to make you return your unit to its original condition. Let me give an example. Many folks prefer hardwood flooring over wall to wall carpeting these days. That’s great unless you live in a high-rise condo where every footstep you make sounds like tumbling boulders to the unit below yours. There is also the architectural compliance issue. Perhaps you are thinking of installing new French doors on your deck when the rest of the units have sliders. Guess what? The Board will likely deny your request.

My advice is to be smart and work with either your Board or Property Manager to make sure you have full approval before you hire any contractor or make any change. You’ll be glad you did. All the best!

Burst Sewage Line at Condo; Who Is Responsible for the Clean-up?

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A.J. from New Haven County writes:

Dear Mister Condo,

My condo flooded with sewage and clean water after a water main break. Who is responsible for clean up and repair? Lodging while unit is uninhabitable? And where can I find CT statutes regarding this issue? Thanks!

Mister Condo replies:

A.J., with the temperatures plummeting across the state and country your question is becoming all too common. I am truly sorry for your loss. I can only imagine the mess a sewage line brought and I am sure the water main damage was equally devastating. First and foremost is your homeowners or HO-6 insurance policy. I sure hope you had one or this could be an expensive lesson for you to learn. Secondarily, your association’s master policy may provide coverage to protect the association from damage done to common elements and, in some cases, your unit as well. As for lodging while your unit is uninhabitable that may depend on how the insurers classify the loss and who they claim is responsible. This is an area where you may need to seek the help of either a personal insurance adjuster (not the association’s adjuster; an adjuster who will look out for your interests) and/or an attorney in the event you need to take either the insurers or the association to court (worst case scenario). I am not certain that there are state statutes regarding this particular situation. The Common Interest Ownership Act (CIOA) does define some of the insurance requirements of the association with regards to maintaining adequate insurance to cover the replacement value of the buildings and common elements but I am not aware of there being insurance requirements for the association to protect against “acts of nature” or other events that might describe a water main or sewage line break. On the other hand, individual homeowners insurance is always a best practice to protect unit owners and renters. If you did not have HO-6 insurance before this event, I am sure you will purchase it moving forward. If you did have it, I would start with that insurance to see what coverage you have in place to help you clean up and get back to normal. Good luck!

Car Wash Bay Designated Next to Assigned Condo Parking Space!

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D.L. from New Haven County writes:

Dear Mister Condo,

Can my condo board create a car wash bay next to my designated parking spot?

Mister Condo replies:

D.L., by “car wash bay” I assume you mean a designated area for unit owners to wash their cars. You’re not talking about a commercial car wash bay with power washers, vacuum cleaners, car matt washers, etc. are you? Community associations often respond to the needs and requests of unit owners for a wide variety of matters. If your community is one that allows car washing on the grounds (many do not), then they may just decide to have that car washing done at a spot near where you park. If you are not happy about this, I would suggest you review your by-laws to determine if, in fact, car washing is an allowed activity. I imagine the biggest inconvenience for you will be splash back from the dirty cars getting all over your car. Perhaps you can ask for a different parking space? If not, you may just have to join them and wash your car in the space as well. Of course, if your vehicle is damaged in any way (scratched by a hose that was carelessly dragged, for instance) you would be well within your rights to complain and even bring action against the association in small claims court. Lawsuits usually get the attention of Boards and they may just decide to ban car washing on the grounds altogether if you prevail. Good luck!

Too Many Pets, Too Many Lies at this Condo!

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M.M. from Fairfield County writes:

Dear Mister Condo,

There is a one pet per unit policy in the condo documents.  We have units with 2 & 3 pets. When confronted they deny this.  What is the best way to enforce the pet issue?

Mister Condo replies:

M.M., pet policies and condo rules are enforced by the Board of Directors who are charged with interpreting the rules and taking action when they deem appropriate. Enforcing these rules is often frustrating and complicated as most pet owners are in love with their fur babies and will do just about anything to protect them. It takes a steely resolve to do what is right and in the best interest of the community to solve a problem like this.

It starts with a notice of violation that the Board needs to present to the unit owners or other residents that are violating the rules. If any of the rule-breakers are tenants then the unit owner/landlord is also notified and cited. The unit owner is invited to meet with the Board at the next Board meeting to accept the violation or deny the violation. The Board is then free to take further action in the form of a fine or, in some cases, eviction of the unit owner or pet. Eviction is a lengthy legal process that will likely require the Board to hire an attorney to prosecute the offender.

Here is a word of warning to the Board if it decides to go after the rule breakers. Tackle the whole problem and not just a select few. If a resident feels they are being unfairly selected they could claim discrimination or harassment, especially if they are aware of other community members (or Board members) who also have too many pets. Ideally, the community will simply agree to follow the rules they agreed to live by when they purchased their units. However, as is too often the case, I would not be surprised if legal action becomes necessary.

I have attended Board meetings where residents have openly wept at the thought of giving up a second or third pet even when they knew their by-laws only allowed one. I have also seen savvy unit owners seek “Companion” or “Emotional Service” animal certification for their beloved pets so that they can claim a “right” to keep the animals. There is no doubt this is a sensitive issue which can be quite challenging to enforce, especially if residents are willing to lie about the pet’s existence in order to continue to house it. Good luck!

Utility Submeters for Individual Condo Units May Provide a Better Solution

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G.N. from Nevada writes:

Dear Mister Condo,

I live in a very small condo; there are only 12 units. There is only one electric meter for the property. Electricity is provided in common and is included in the monthly common fees. Unit owners have an option to own a freezer which would is installed in the unit owner’s garage but if they wish to operate the freezer they pay a personal fee of $5.00 per month to keep the freezer running in their private garage. Only those owners that are using this electricity to keep a freezer are being charged this fee. However the electricity is part of a common usage. My question is the legality of the request and how the charge is determined. All garages are private, heated and have automatic door openers.  I believe there are only 4 owners of 12 that have freezers. I do not question the fee amount only the legality of it.

Mister Condo replies:

G.N., I am not an attorney so I cannot offer a legal opinion on this matter. However, as a question of practicality I can only see this situation being handled in a few different manners. Ideally, each unit owner would have their own meter so that they paid only for their use of electricity. If I work from home and keep the lights on all day and my computer running as well as my TV and air conditioning, I am going to consume far more electricity than my neighbor who leaves the house and uses almost no electricity during the day. Why should my neighbor pay for me? Since there is only one meter for the complex a decisions was made to make electricity a commonly provided utility. There are companies that will install submeters so that individual units can be billed for their portion but that would require an investment from the community to install and maintain the submeters. If everyone seems to be happy with the current arrangement of an extra $5.00 per month for freezer owners, I don’t see a problem with it. However, I would much rather see the submeters installed so that all unit owners would be encouraged to conserve electricity and only have to pay for their fair share.

Here’s a great article for your consideration http://www.nytimes.com/2001/07/08/realestate/your-home-the-case-for-electric-submetering.html. Most studies have shown that while the initial expense of submetering is substantial, the long-term benefits are worth the investment. All the best!

ESAs and ADA at this NYC Condo

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E.C. from Bronx, NY writes:

Dear Mister Condo,

I own a condo in the Bronx which I would like to rent out. The tenant I would like to rent to has 2 dogs that are registered as Emotional Service Animals (ESA). My condo board just changed the bylaws to 1 dog. Federal law states a landlord cannot deny this person rental. I, the owner, don’t mind at all, but my board is telling me no. Do I have a legal leg to stand on to rent it to her anyway?

Mister Condo replies:

E.C., you have touched upon a subject that is quite controversial, not just in New York, but across the country. As a landlord you have to be particularly careful as to how you handle the rental request so that you don’t end up on the wrong side of a discrimination lawsuit. As a condo unit owner, you don’t want to create a problem between your tenant and the Board which could end up in court with you being charged with numerous violations and fines from the Board. I think you would prevail under current trends but do you really want to fight that battle?

As you know, I am not an attorney and I really must advise you to speak with an experienced attorney before you make your decision. At the heart of this issue is ESA certification of the dogs and how does the condominium association need to respond to that certification. There are plenty of articles and court cases about the validity of ESA certification and if the Americans with Disabilities Act (ADA) applies. If the courts were to decide that your tenant and both of the dogs were protected under ADA, there is little the Board could do to prevent your tenant and both dogs from residing in the condo. That being said, that doesn’t mean they won’t try and their attempts to prevent the tenant from housing two dogs on the property, against condo rules, may prove trying and expensive. I imagine there will be fines and hearings, even possible eviction actions against your tenant depending on how determined the Board is to enforce the one dog rule. Of course, you will either need to defend or hire an attorney to defend against these actions. Provided the courts find in favor of you and your tenant, you may be able to recoup these costs by suing the Board for damages.

I am not saying you should not rent to this particular tenant. If they are tenant-worthy on all of your other criteria (credit check, references, etc.) you may well wish to take them on as their landlord. Please enter into the transaction with your eyes open and realize that the debate is still raging over ESAs and their rights to protection under the ADA. If ESAs are not deemed protected, you may find this a very costly rental. At the very least, I think you will find it a challenge. Good luck!

New Condo Unit Owner Cited for Previous Owner’s Modifications

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L. from Hartford County writes:

Dear Mister Condo,

I received a Notice of Violation from my HOA’s lawyer stating that I am in violation of certain modifications/remodeling done in my unit without HOA’s permission. Apparently these were done by two owners prior to me and the Condo was foreclosed once before I bought the unit. Am I responsible for this?

Mister Condo replies:

L., nobody likes to receive violation notices about their condominium unit. I can only imagine your dismay to receive this letter about modifications that were made to the unit before you even took possession. It was an interesting question that I felt merited a look by one of my community association attorney friends. Here’s what the attorney had to say:

“If all of this work was done by a previous owner and not you, then it’s very unlikely you could be held directly responsible for any violations. Nevertheless, you might be obligated to allow the Board to enter your unit to remove the unauthorized modifications if it wishes, depending on what kind of work was done and what your HOA’s documents say. Doing so would be in your interest if the Board’s concern is that the modifications are structurally unsafe or put other units at risk. On the other hand, if the modifications are innocuous and you bought the unit relying on their legitimacy, it may be too late for the Board to take them away from you. Talk to the Board to work this out, and if that fails, ask your own lawyer for advice on what to do.”

That sounds like perfectly sound advice to me, L. All the best!