Monthly Archives: February 2014

Percentage of Unit Ownership and Size of Condo Questioned

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C.J. from Hartford County writes:

Dear Mister Condo,

The condo I just purchased isn’t as many square feet as the developer said it was. Some units in my building are larger or on a higher floor and have lower assessments. The declarations and by-laws have stated a percentage of floor space that my association manager doesn’t want to change. The square footage reported (therefore my assessment) are 12% higher than I’d expect. What is the proper course of action? Do I hire an attorney? Can I demand money back? Get it lowered for future? Sit out on monthly payments until its square?

Mister Condo replies:

C.J., I am sorry for your problems. I am not an attorney and you will clearly need an attorney to assist you if what you say is true. Let me share with you some of the basics that I am aware of and then you can decide what course of action suits you best.

Since your condo is brand new you made a purchase and sale agreement with the developer. You may or may not have had a realtor involved as well. You should have had an attorney review all of the documents with you before you signed the purchase and sales agreement. If you didn’t this could be an expensive lesson in why you should.

The condo’s declaration generally describes the entire community, all buildings, all amenities, exact property lines, so on and so forth. Somewhere in the package is the percentage of unit ownership formula that is used to determine the amount of common fee contribution each unit is responsible for. The formula is based upon relative square feet of your unit which may include garages, sun rooms, storage areas, utility rooms, etc. that are for the specific use of the unit owner and/or relative fair market value of the unit. For instance, shore front communities may assess a higher value to those units with water views than those units without even though the square footage of each is identical.

That formula is the law of the land and it is very unusual for the formula to be changed. For a change just to your unit, all units would be affected as they would need an increase to make up for any decrease in your fee. As you can imagine, other unit owners are not likely to agree to this and unless I am mistaken a change to the percentage of unit ownership formula would likely require a unanimous vote of the membership, which is highly unlikely. Rules about such changes are likely documented in your condo’s by-laws. Your association manager does not have the power to change the percentage of unit ownership.

If you can demonstrate that the unit was not built to the specifications that you purchased in the sales agreement, you may be able to demonstrate a defect on the part of the developer which may entitle you to some money back. However, as I suspect, you more than likely signed an agreement that sold you the unit as is. Once again, in theory, you had inspected the unit BEFORE signing the agreement and had a chance to walk away from the deal if you were not happy at that time.

Sitting out on monthly payments until you are satisfied is not an option for you, in my opinion. If you become delinquent in your common fee payments, the association or developer if developer is still in control at this point, will likely take action against you which can include foreclosure. Your purchase of the unit binds you to the rules of the association, of which timely payments of common fees is a provision. You will incur late fees and legal expenses on top of the common fees. Choosing not to pay will be a costly decision and could cost you your unit.

My advice is to hire an attorney and discuss your options. You can always decide to sell your unit and let this be someone else’s problem. If the developer truly did something underhanded and sold you a defective unit an attorney can best advise you as to what legal remedies are available to you. Sitting out on monthly common fee payments could be disastrous for you. I wish you good luck in getting this sorted out.

Right to Access Condo Unit with Unpaid Common Fees

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L.C. from New Haven County writes:

Dear Mister Condo,

Can you go back to your condominium that you still own if you did not pay the Condominium Association?

Mister Condo replies:

L.C., I have to assume that your question has been brought on by some sort of financial hardship. If so, I am sorry for your problems. As you know, I am not an attorney so please accept this advice as friendly. You very likely need some legal advice for this issue so I encourage you to contact an attorney to assist you properly.

Not paying the association your common fees is certainly a problem for both you and your association. However, there is a rather lengthy process involved before non-payment of common fees leads to the association preventing you from accessing your condominium. In Connecticut, the association can prohibit delinquent unit owners from use of some of the common areas and amenities until such time as their dues are paid. They cannot restrict access to the unit nor can they turn off utilities, even if those utilities are paid for by the association. For instance, you may be forbidden from using the community pool and clubhouse but you shouldn’t have your water turned off if the water is the association’s responsibility. You can still park in your assigned parking space but may be denied use of visitor parking. If you have a garage you cannot be denied use of the garage.

Of course, if you have become seriously delinquent and the association has taken foreclosure action against you then the situation may be a bit different. If the association is successful in their foreclosure action against a delinquent unit owner, the next step is eviction of the unit owner, which is usually handled by the local sheriff. After a foreclosure and eviction it is clearly not your unit and you have no right to go back.

If you are being denied access to your unit by your association and they have not taken the correct actions to do so, you would have a case to pursue your rights to access to your unit. I would strongly recommend that you contact an attorney and bring action against the association if they have violated your rights. Of course, if you can, simply paying your delinquency is the right thing to do. All of your fellow unit owners were counting on you to do so when they all made their payments to the common fund. In a non-profit organization like a community association, every penny counts when paying for goods and services that every resident consumes. Paying your common fees is simply paying your fair share, as you agreed to do when you purchased your unit. All the best!

Loss of Use of Condo; Who Pays for the Living Expenses?

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J.S. from New Haven County writes:

Dear Mister Condo,

If you lose use of your condo unit due to a pipe burst in the attic of the building that damages your unit and someone provides you with lodging, transportation, and food, shouldn’t they be reimbursed for their expenses?

Mister Condo replies:

J.S., if a unit owner has purchased a standard homeowner’s policy, (HO-6 here in Connecticut) there may be some coverage available to help with some of those expenses. It is typically found in the section of the policy called “Coverage D – Loss of Use” and its purpose is to cover costs associated with the loss of use of a condo, which is what you are describing here. Typical HO-6 policies offer coverage in the amount of 20% of the total amount covered in Coverage A also known as the “Dwelling Coverage”. For instance, if the policy provided $25,000 in Dwelling Coverage then Coverage D would typically provide $5,000 in Loss of Use coverage. Of course, like all insurances, there are limitations and specific events that need to occur for the coverage to take effect.

If the unit owner did not have an HO-6 policy in place at the time of the burst pipe, then there will likely be a lot of “out of pocket” expense. I would not expect that the insurance held by the condo association would be expected to pay for any of those things while the condo unit is being repaired.

I am a strong advocate for all condominium unit owners to maintain their own HO-6 policies. Many associations require that unit owners have it; some only suggest it. As your example illustrates; it is far better to have it and not need it than to need it and not have it. Thanks for the question. All the best!

Problems Mounting Up for New Condo Owner

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D.S. from Fairfield County writes:

Dear Mister Condo,

I have purchased a unit in a complex after three years of renting it. I have way too many questions so I’ll try to keep it as clear and understandable as I can. Just a few months after the purchase a special assessment to replace the common deck was agreed upon. It would have been funded by a loan. A friend of mine tried to place a bid on the project but he was turned down with saying that one bid has already been accepted and deposit has been paid. The construction was supposed to take three weeks. Two months in, project is far from being completed. On top of it, we are informed that the loan wasn’t processed because of some legal issues. The contractor is brought to the meeting where he shares his financial hardship due to lack of funds – and supposedly maxing out his personal credit cards to keep the project going. Another vote takes place to hopefully satisfy bank’s requirements to receive the loan.

Growing suspicious of what is going on, I ask for copies of proposals for the job and a signed contract. What I get is simply unexplainable. I wish I could attach a file here because there is no way you can get the whole picture. One, very professional PDF file, maybe a little expensive but I am sure there was room for negotiation. Second, the one ACCEPTED, is a copy and paste from decking manufacturer website, and then some numbers with dubious task descriptions that do not add up to the total cost. Also, it is not a contract so I ask for one once again – I’d like to see a copy of a signed CONTRACT. I am asked why and if I am trying to cause problems, I was already sent the proposal; all that’s missing is a signature. I say numbers don’t add up…oh, so maybe you weren’t sent the final proposal… The third bid cannot be found, supposedly it was astronomically expensive and dismissed right away. But if I really want it, she (the President) can dig through the emails and find it. I ask her to dig.

What she does instead is call a board meeting in regards to the (alleged) constant noise complaints she receives from our neighbors. I am not going into details; it’s an almost year-old issue which I actually might touch upon at a later time. If you want to know, just ask 🙂

Also, we get a notice to immediately stop parking our truck (Nissan Titan) in the parking lot – after three and a half years with no complaint – as it supposedly violates the by-laws: no commercial vehicle over one-half ton panel truck may be parked on the property. I am trying to figure out if my vehicle is “commercial”. It certainly isn’t a panel truck. Any thoughts on this?

What can I do to get to the root of this whole assessment issue? It seems the board is hiding something and isn’t cooperating at all. I am looking forward to your responses and thank you for your time!

Mister Condo replies:

D.S., I feel your frustration and I am betting you were enjoying being a renter far more than you are enjoying being an owner at this condo. That’s too bad because condos like yours certainly need owners like you to keep them honest in their dealings. There’s a lot going on here so let’s try breaking it down to a few more manageable items.

Let’s start with a few concepts that are integral to community association living here in Connecticut. The first is that there are laws to protect all unit owners in condominium and HOAs. I’ll be referring to the Common Interest Ownership Act, also known as CIOA, for a few of these answers. Under CIOA, boards must operate with great transparency. Minutes of Board meetings, bids and contracts are all available for unit owner inspection. If these items are not made available to you or any other unit owner you have the right to sue the Board to produce these documents. Hopefully it won’t come to that but please keep it in mind that you have the right to see these things. Please note there are some records that may have to pay to see (usually a small fee to cover the administrative work of preparing copies) but you still have the right to see these things.

Another key concept to understand is that Board members are fallible human beings. Most are well-intentioned but not all are fully trained or even ready for the full challenge that serving on the Board can be. Overseeing a major project like a full deck replacement can be quite complex and even the best-intentioned Board member can make a misstep or two along the way. Ideally, the Board would have prepared a Request for Proposal (RFP) and solicited bids from several vendors. The Board is under no obligation to accept a bid from any vendor, including your friend, especially if they have already selected a vendor for the job. It sounds like your friend was simply too late to submit a bid as the Board was already further along in the process. From the bids that were accepted, a vendor is chosen. The chosen vendor does not need to be the one with the lowest bid as the Board can take other factors into consideration when awarding the contract. Other factors may include a glowing review from a similar complex or previous satisfaction with other work provided by this vendor. Whatever the reason, once the contract is awarded and signed that agreement becomes a part of association records, along with the bids that were not accepted. As a unit owner, you have a right to see these records as provided under CIOA. It sounds to me as though your Board President is doing her best although her best may not keep her compliant under state law. Please be gentle with her. As I mentioned earlier she is a volunteer who is not paid for her service to you and your fellow unit owners. She is volunteering her time. Be sure to thank her for whatever help she can offer and don’t be afraid to ask to assist her if she needs additional help. I am sure she would appreciate it.

I can only imagine the noise and ruckus from the new decks being built and I can only imagine how annoyed and irritated unit owners feel with the work taking as long as you have stated. One of the joys of new construction is that there are no residents around to be annoyed with the sounds of building. Remodeling and rebuilding takes on a whole new set of problems with noise and construction debris. Not to mention that individual unit owners often interact with the contractor’s staff when they have no business doing so. The contractor works for the association as a whole and not any of the individual unit owners. The only interaction should be between the Board and the contractor during this phase. The Board president was right to call a Board meeting to discuss what can be done to help residents cope with the noise.

Your truck is a whole different topic. If your vehicle is truly a commercial vehicle and forbidden by association rules then you will need to comply with the rules for parking on association grounds. If you have a garage you may need to use the garage. It has nothing to do with how long they did not enforce the rule. If you can prove that your vehicle is not in violation of the rules, then you have no problem. Also, under CIOA, you cannot be singled out for this rule to be enforced. In other words, it can’t just be your oversized truck being cited. All non-complying vehicles need to be cited. Otherwise you would have a claim for discrimination against your Board.

Now that we’ve covered some of the specifics, D.S., let’s talk about what I really think is the underlying problem at your condo… Communication! It seems to me that you have a hard-working Board that is taking its job of protecting, maintaining, and enhancing your community association very seriously. They are to be commended for their volunteer efforts in guiding the community through a tough time both physically (I’ll bet that old deck system looked pretty bad) and financially (there wasn’t enough money to pay for the repair because previous Boards hadn’t budgeted for future repairs). They took the time to research financing options like a loan instead of simply slapping a special assessment (money immediately out of all unit owners’ pockets) on all unit owners. And they did all of this on their time, missing time from family or just relaxing after a long day’s work. Truly, a commendable effort.

What they lack is a medium for letting you and all of the other unit owners at the condo know what they do and how they do it. Do you have a community association newsletter? Is there a community website? When unit owners are not well informed they can quickly think the worse of the association. From your viewpoint it would appear that there are some shady dealings going on – contractors not allowed to bid, missing bids, loans that didn’t materialize, and so on. From their viewpoint, it is a very difficult project with not enough money in the Reserve Fund to pay for it. It has probably been a topic of consideration for years and they finally took action to fix but instead of accolades for their work they are being met with confusion, rumor, and innuendo. Instead of bringing the community together this project seems to be causing great stress and duress for the Board and the unit owners. What should be a “win/win” has become a “lose/lose”.

My advice is to support your Board but not blindly. Ask for a community newsletter. Volunteer to write it or ask they pay an outside firm to write it for them. The newsletter needs to go out regularly (monthly or quarterly) to keep unit owners informed of the Board’s actions. The Board will benefit from increased community involvement and knowledge and the unit owners will benefit from knowing exactly what is going on and what the association is doing to keep the community moving forward. Why not start with a story about the new deck? I am sure that when the project wraps, the community will have something beautiful to celebrate. Hopefully it will be the beginning of a harmonious relationship between the unit owners and the folks who govern the association. Believe it or not, you all want the same thing: a well-run community that is a joy to live in. All the best!

Is it OK for the Treasurer to be a Board Member at Florida Co-op?

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M.B. from Florida writes:

Dear Mister Condo,

Our longtime Co-op Treasurer has been elected to the board. Should a Treasurer be allowed dual roles? There is nothing in the Docs to say yes or no. Is it a good practice? Seems to me it is a conflict of interest.

Mister Condo replies:

M.B., please forgive my apparent ignorance on this topic. As I am not a resident of your state nor am I an attorney I cannot claim to be an “expert” on this subject. However, I must ask you how a non-Board member becomes an Officer of the association. My understanding is that folks are first elected to the Board and then elected to their officer positions by the Board members. At least that’s how it works here in Connecticut.

The underlying question you have is about conflict of interest and whether or not is it a good practice to have a Treasurer (the person with access to the association’s money) who is also on the Board (the governing body that decides how the association’s money will be spent). Provided there are ample checks and balances in place, I see no problem with this scenario whatsoever. I have to assume that to have been elected Treasurer this volunteer member of the community is trustworthy and capable of overseeing the funds of the association. I assume your Board meets regularly and that financial statements are reviewed as a regular part of the Board’s business. I also assume that your association requires two signatures on your association checks.

If these checks and balances are not in place then I would share your concern. Also, keep in mind that it would be a criminal activity for the Treasurer to steal money from the association. I found a great deal about Administration of Cooperatives online at the Florida Senate website at http://flsenate.gov/Laws/Statutes/2012/Chapter719/All If your by-laws don’t specifically show a problem with an individual serving as both Treasurer and Board Member you may wish to scour the laws to see if there is a law prohibiting it (I didn’t find any) or consult with an attorney in your region who specializes in community association law. There are many to choose from and you can find a directory of such firms at http://www.caionline.org/info/provider/Pages/CAINationalServiceDirectory.aspx. Simply search for an attorney in your area who can advise you. Good luck!

How Do I Know Condo Repairs Are Up To Code?

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M.O. from New Haven County writes:

Dear Mister Condo,

A sprinkler pipe burst in my unit and the association has hired a contractor to handle the repairs. After they have fixed everything, do I need to hire an inspector to ensure everything is up to code?

Mister Condo replies:

M.O., that is a great question! You certainly do not NEED to hire an inspector as the responsibility of the repair is clearly upon the association. Any faulty work performed by the hired contractor would be the contractor’s responsibility during the warranty period for the work. After that time, the association would take responsibility as they have now when they agreed to have the sprinkler pipe repaired. Any contractor hired by the association should have a current license and insurance. I would think it unlikely that any contractor would perform repair work that wasn’t up to current building code. Of course, if you suspect poor workmanship, you may wish to get a second opinion.

As for repairs to items within your condo unit, I assume you mean things like electrical circuits, lighting fixtures, and such. You may wish to get an outside opinion on the job for your peace of mind and to be certain that you don’t have lingering issues, in particular mold. Mold won’t necessarily appear right away but if you took water into walls or ceilings it may rear its ugly head in the future and you would want to protect yourself now by making sure that the remediation to your unit includes keeping it dry and mold-free.

All that being said, if you are satisfied with the work that was done in your unit, you might just want to leave well enough alone. Most times, contractors do fine work and you are left unharmed and your unit fully repaired. If you think shoddy work was done or the repairs weren’t up to code, you certainly have a right to have the work inspected – at your expense, of course. If you find defects or work not done to code, you should notify your Board and let them take action against the contractor. Remember that the Board hired the contractor, not you. Even though the work was done in your unit it was done so at the request and payment of the Board. You will need to work with the Board to make any corrections that may be needed. Hopefully, you won’t need to. All the best!

How Many Directors in Our Condo Owners Association?

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M.C. from Hartford County writes:

Dear Mister Condo,

How many directors can we have in our condo owners association?

Mister Condo replies:

M.C., believe it or not, the answer to your query lies within your condo documents. All unit owners are provided with a copy at the time they purchase their unit. You’ll find the condo’s declaration and by-laws inside. Included are the rules of governance for your association. Most associations would have a minimum of four directors but it is not uncommon for a much larger number to be called for. Depending on the size of the association, I have known some larger associations to have as many as twelve directors. I have known other smaller associations to have as few as one or two, even though their by-laws require that there be more. If volunteers do not agree to serve, their positions may go unfilled. For purposes of illustration, I will assume your by-laws calls for 5 directors, which is not uncommon for an association of your size. Provided five or more people agree to serve, an election is held at your association’s Annual Meeting where the directors are elected. After the meeting, typically the directors then meet and hold an election amongst themselves as to which director will serve in which office. Typically the offices are President, Vice-President, Secretary, and Treasurer. Directors that are not Officers serve “at large” meaning they have a seat on the Board and vote on issues before the Board. I hope that answer helps. All the best!

No One Will Pay For Condo Paint Job after Water Damage

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G.L. from New Haven County writes:

Dear Mister Condo,

The Board of Directors refuse to have a painter fix a rather small area in my dining room ceiling and wall that cracked open after last years snow and rain storms. They say the snow came down from the sliding doors of the apt. above, so it is that owner’s problem to pay for. I told them it had to go thru the common elements in the ceiling first to get to me but they ignore that fact. Do I sue?

Mister Condo replies:

G.L., I am sorry for your water-related condo damage. The short answer as to whether or not you should sue depends on a few factors for me. First off, I am not an attorney, so please think of this advice as friendly rather than legal. If you need legal advice, kindly avail yourself of the services of a qualified attorney.

Assigning blame for the water damage is key to the association’s action. If the water did in fact come through a neighbor’s sliding door, they may have a case to deny your claim and you may have a case against your neighbor and/or your neighbor’s insurance policy to cover the cost of repairs of associated damage to your neighbor’s unit. I think I would start there as it may be as simple as having a claim made against the neighbor’s policy and you’ll be all fixed up. Also, do you have your own homeowner’s policy? You might be able to make a claim against your own policy and call it a day. From what you have told me, this was an accident. That’s what insurance is for…

However, if neither the neighbor’s policy nor your own will cover your repair costs, you have a decision to make. Do you have a quote from a painter to handle the painting you seek? Is it a lot of money? If so, it may be worth hiring an attorney or filing a small claim and suing your neighbor, the association, and anyone else involved (insurers). If not, you may be throwing good money after bad. If the paint repair can be done for $100 or so, I think I might just hire the painter and get it done as a practical matter. Your time and effort in bringing a lawsuit may be worth far more than the cost of the painting job. Best of luck to you in clearing up this matter.

Damaged Condo Storm Shutters Brings Lawsuit

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M.J. from New Haven County writes:

Dear Mister Condo,

An owner has damaged a common area at our condo. Our 45 year-old building has storm shutters owned and maintained by the owners of each unit. Doing exterior common area maintenance it’s been found that the lintels on a few units have been damaged due to the attachment hardware. Those owners are suing for the association to pay for the repairs, claiming weather related damage. The Board has photos as proof of loose, rusted and missing mounting bolts. Our condo documents and State Statutes say the owners are at fault. What do you think?

Mister Condo replies:

M.J., once the word lawsuit is used I need to back off from giving you friendly advice and instruct you to hire an attorney who is verse in community association law. My guess is your association has a long-standing relationship with a qualified attorney who can give you solid legal advice so the association can defend against the lawsuit from the owners.

Since you have stated that you are certain that your condo documents state the responsibility as that of the owners and that you have photographic evidence to back up your claim that they were neglectful of their maintenance responsibilities, I would think the association will prevail in court. However, I am not an attorney nor do I know the exact nature of the lawsuit that is being brought against the association. That is why I strongly encourage you to speak with the appropriate counsel at once if you have not already done so. Good luck!

Another Burst Water Pipe Causing Condo Insurance Woes

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W.R. from New Haven County writes:

Dear Mister Condo,

I have a burst water pipe problem at my condo. It did a lot of damage. The condo master insurance won’t pay and my homeowner’s insurance won’t pay? What do I do?

Mister Condo replies:

W.R., I am truly sorry that you are dealing with the aftermath of a burst water pipe at your condo. As you may have noticed, there has been a great many questions similar to yours recently. The particularly cold winter has caused an increased number of burst water pipes at condos here in Connecticut and throughout the country. While most associations and homeowners have insurance, there seems to be a lot of room for insurers to wiggle out of which insurance company needs to pay for the restoration.

My best advice has been to get both insurers involved and let them duke it out. The condominium has a Master Insurance policy that should provide the primary protection. However, if they claim that negligence or willful misconduct occurred they don’t have to pay. Was the temperature in the area of the burst pipe at 50 degrees or higher? Did the unit owner (you) do all that you could do to prevent the burst pipe? If it was under a cabinet, was the cabinet door open to encourage heat circulation? And so on, and so on. The bottom line is that the insurance company only wants to pay for covered losses so it is in their best interest to show why the loss shouldn’t be covered. At that point, your homeowner’s policy should kick in but they may also try to claim that it isn’t covered under your policy as the primary coverage should be attributable to the condo’s Master Insurance. Do you see the problem here?

In a worst case scenario, you may need to hire your own attorney to sue either one or both of the insurance companies so that they come together and work it out. As if dealing with the burst pipe wasn’t enough, you are very likely going to find yourself in the middle of an insurance battle as well. I wish you good luck in settling this matter.