Monthly Archives: March 2014

Furniture Delivery Men Damage Condo Fire Sensor; Who Pays?

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R.G. from South Florida writes:

Dear Mister Condo,

My condo is Miami. While a delivery company was delivering my new furniture, a fire sensor was broken. The association is charging me $300.00 for the repair. I didn’t break it but the association said I am responsible because I was receiving the furniture. The association didn’t tell me in which statute this is based on. I read the association by-laws and it doesn’t say anything about this. Can they do this? Thank you.

Mister Condo replies:

R.G., congratulations on the new furniture! I am sorry you have been cited with a bill for the damaged fire sensor. I am not an attorney nor am I an expert in Florida state law but I am happy to provide a common sense opinion of your Board’s action. Since the fire sensor was working just fine before your furniture delivery men accidentally damaged it, you are the most likely to be expected to pay for the repair. I doubt you will find anything in your bylaws or state law specifically addressing this situation but the general principal of “fair is fair” comes into play here. To be honest with you, the delivery company should reimburse you for any damage they caused. They are very likely insured for such a loss or will simply reimburse you for the damage so as to avoid making a claim with their own insurance company. You have the reasonable expectation that they will deliver your furniture without creating damage to your property. Have you contacted them about the cost of the damage they caused? It may be as simple as that! All the best!

Can the Condo Board Change Due Date of Common Fees?

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K.P. from New Haven County writes:

Dear Mister Condo,

Can the board change the due date of the common charges in the middle of the year? They were due by the 15th of month (stated on the coupon). Now, letter we got in the mail states due by the 10th. Can they do that?

Mister Condo replies:

K.P., as a matter of practicality the Board can change the due date of common charges although I cannot imagine any reason why they would. However, adequate notice must be given to all unit owners and the Board may even need to amend the condominium documents to reflect such a change. Most documents specify what date the fees are due and what the penalties are for missing the date by a few days, if there is a grace period, and so on. Also, the Board must practice reasonable business judgment and notify unit owners of such a change in writing and provide reasonable notice. The coupon is a useful tool in collecting common fees and may need to be reprinted if the Board wishes to continue using them. Otherwise, if the existing coupons are incorrect, I would advise the Board to recall the coupons so as not to create confusion amongst well-intentioned residents like yourself who are used to paying on the 15th and have coupon books printed by the association that state the 15th is the due date.

The most important thing about common fees is that they are paid monthly by all unit owners. Whether it is the 1st, the 10th, the 15th or whatever day of the month is somewhat irrelevant. However, the documents almost always spell out what the date is and the Board and unit owners need to abide by the documents. If the date needs to change, for whatever reason, there is a proper way to do it. From what you are telling me, it would appear that this Board has not done a good job of communicating to unit owners why the date was changed and why it was done when coupon books were already distributed. Clearly, this is causing confusion for you and, my guess, other unit owners.

Condo Fire Creates Question of Need for Assessment

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B.S. from New Haven County writes:

Dear Mister Condo,

If my condo has an assessment for roofs and we have a fire and the roof is rebuilt in the fire, do we still have to pay the assessment?

Mister Condo replies:

B.S., I am sorry your condo experienced a fire. I hope all got out safely. An assessment is levied when the community finds itself significantly short of cash for immediate expenses or needed capital improvements. Provided the association followed the proper protocol, the assessment is levied and due by all unit owners as called for in the assessment. If the association then found itself in possession of unexpected money, in this case from insurance proceeds after the fire, the association could decide to repeal the assessment although this is quite unusual. As it stands, once the assessment is levied it is due so “yes”, you still have to pay the assessment. If the Board finds that the assessment is not necessary, it could take actions to vote to repeal the assessment or return the funds to unit owners. All the best and stay safe!

Condo Unit Owner Threatened with Towing for Backing In

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B.A. from Fairfield County writes:

Dear Mister Condo,

I got a warning on my car with a threat of being towed because I back into my parking space so I can pull straight out in the morning. Nowhere in my rules does it say I can’t do this. Is this legal? My tags and parking sticker are up to date.

Mister Condo replies:

B.A., no one likes to get a warning on their car with the threat of being towed, especially when parked in their own parking space. I am not an attorney but I can tell you that towing your car without proper warning would very likely result in you being able to sue your association for taking such drastic action without following proper procedure which is as follows. If you are parking your car in your own space but against the rules of the community (even if you are not aware of the rule, it may exist), you should receive a mailed warning to your home; not a threat attached to the car! The warning should inform you of what rule you have violated and offer you the opportunity to appear before the Board to discuss the offense. If the Board then decides to issue you a violation for breaking the rule they may then do so and they may also fine you if the rules allow for issuing fines for such an offense. They may also tow your vehicle upon repeated offenses provided the rules of the association state that they can do so. As you can see, it all really comes down to the rules. If the rule exists, you should comply to avoid further problems. If no rule exists, as you claim, they have no right to come after you and, in fact, you might be well advised to seek counsel and go after them for harassment. For the record, I do know of many associations that do not allow owners to back into parking spaces because when a car is started the noise and exhaust heads towards the buildings. This can create a lot of noise and create noxious and hazardous fumes for residents who are trying to enjoy their units with windows open. Don’t be surprised if your association has such a rule. Of course, if the rule exists, be a good neighbor and head into your parking space. Happy parking!

Change of Story in Condo Damage Responsibility Claim to Unit Owner

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(Editor’s Note: This is a follow-up question to a post that appeared on September 10, 2013. You can read the original question and answer at http://askmistercondo.com/leaking-air-conditioner-creates-a-mess-in-the-condo-insurance-coverage-even-messier/)

J.R. from New Haven County writes:

Dear Mister Condo,

Thank you, Mr. Condo, for reviewing my question. I just received a letter from the Property Management stating that I owe $500 (which will be applied to my assessments) for damage to my neighbors bathroom in July 2013, this $500 was a verdict from the board. Back in July of 2013, the head engineer and the Property Manager at the time said it was not my responsibility and I wouldn’t be responsible for any of the charges. Unfortunately, I did not get this in writing. When I received the letter I immediately had a meeting with the new Property Manager and the same head engineer. The Property Manager said there was nothing more in the file other than the incident report and the head engineer said he didn’t recall anything from the meeting back in July 2013, once again my fault for not getting anything in writing. Since my last meeting back in July 2013 I haven’t heard anything more about the incident and then the Board says I owe $500. I did get a copy of the condominium association homeowner rules and regulations. While reading it I discovered they did not follow rule 34.6 “The Board of Directors reviews Rules and Regulations’ violations or complaints. Fines may be assessed after the owner or resident has been given an opportunity to be heard.” I am writing a letter to the board to complain that I was not given the opportunity for them to hear my side. What other actions can I take? Are there any government departments I should report this to? Any assistance would be great!

Mister Condo replies:

J.R., I am sorry for your ongoing problem with your condo, your Property Manager, the engineer, and even your Board. I guess we can add Musical Chairs to the debacle as it would appear you now have a new Property Manager in the mix. Regardless of who is in the mix, the ultimate responsibility for the interpretation and application of the rules and regulations for your community lies with the Board. Both the Property Manager and the engineer work for them. The Board is further bound by CT state laws on community association governance, better known as the Common Interest Ownership Act (CIOA). Violations of the act can be reported to the Department of Consumer Protection and/or the state’s Attorney General. Neither looks kindly upon Boards that do not follow the law when it comes to carrying out violation notices and assessing fines or fees against unit owners without due process. You certainly could take your case to them if you are unable to resolve this issue with a little negotiation.

Let’s start at the beginning, J.R.. Do you disagree that there was damage to your neighbor’s unit? Do you agree that something in your unit that failed caused the damage? If not, the responsibility may, in fact, lie with you. If you feel that the engineer and Property Manager who told you that it was not your fault were correct and you wish to contest the finding by the Board that it is your responsibility you have the right to do so. That may involve you bringing suit against the Board which you may wish to hire an attorney to do. But let’s hold that thought while we look at the bigger picture…

Did you have homeowner’s insurance (HO6) in place at the time of the incident? If so, you may be able to put in a claim for the damage to your unit as well as your neighbor’s unit. That may be the more common approach to handling a situation like this. Air conditioners are certainly known to fail and quite often the damage that results is to neighboring units as well as the unit where the air conditioner leaked. If you didn’t have insurance in place at the time, this may be an expensive lesson on why you should always have HO6 coverage in place to protect yourself.

The bottom line is that it was your air conditioner that failed and created the leak that damaged your neighbor’s unit. Your Board needs to follow protocol for determining who is at fault and that may involve bringing you in for a hearing on the matter. However, it would appear to me that the same outcome is going to be reached. This is what insurance is for. If you didn’t have the insurance in place, you may be out of pocket for the portion of the damage you are being asked to pay. You may wish to get an attorney involved to make sure your rights are not being violated and that you are not paying more than you need to but since $500 is the sum of damages you are being asked to pay, I hardly think spending money on an attorney is going to be economically feasible. Good luck!

Can a Homeowner Request Association Employee’s Salary?

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D.B. from Massachusetts writes:

Dear Mister Condo,

I am the Property Manager of a self-managed property in Massachusetts. We have financials available at every monthly Board meeting, and at our Annual Meeting. Salaries are line items, i.e. Maintenance, Administration, etc.

My question is, can a homeowner specifically request the salary of any staff member on payroll? He says it is his right as a homeowner. I say (and the Trustees back me) that the privacy of the individual employee would be breached, and we are under no legal obligation to disclose individual salaries. (No, I have not gotten legal advice as yet.)

I do know that in some states, Florida for instance, individual salaries must be disclosed if asked. Thank you in advance for your friendly advice on this matter, and for providing a valuable service to condo dwellers, Board members and Property Managers alike.

Mister Condo replies:

D.B., thank you for your kind words and your question. As you know I am not an attorney so please consider my advice as friendly and not legal. For a legal opinion you should consult with a qualified community association attorney from your state, many of whom I know and respect. You will find many to choose from at the Community Associations Institute New England Chapter website at http://www.caine.org/.

Over the past few years, almost all states have passed legislation that adds transparency to association operations and governance. There are arguably advantages and drawbacks to complete transparency but the bottom line is that the governance of the association is quite comparable to the governance of a municipality. I have seen a few different techniques used to divulge information on salaried employees without divulging specific information about any one employee. For instance, if your association employed several groundskeepers and someone asked what does Groundskeeper Joe Smith earn? You could reply with a statement like groundskeepers at our association earn between $12 and $15 per hour and average a 40 hour work week. We have three groundskeepers, and last year we spent $90,000 on their collective salaries. In my opinion, that effectively adds transparency without divulging too much personal information on Joe Smith. That may or may not satisfy the person asking the question so I would use a little diplomacy including the right to respect Joe Smith’s personal information when delivering the reply.

The real issue that comes in to question is when there is just one employee of the association, for instance, you. I cannot think of any way to protect an individual’s salary information from inquiring unit owners who clearly have a right to know how their common fees are being spent. That being said, they do not have any business requesting any information that might put the individual at risk for identity theft, items like Social Security number, address, etc.. Strictly personal and private information is protected and should not be made public at the request of an owner. The examples of states with large condominium concentrations such as Florida and California that have enacted legislation that requires disclosure of such information as salary is very likely a harbinger of what will come to the rest of the country over time. As I said at my opening, my best advice is for you to contact an attorney who specializes in this area of law to make sure you are in compliance with any such request. Best of luck to you!

What is the Right Amount for Monthly Condo Reserve Fund Contributions?

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J.C. from Middlesex County writes:

Dear Mister Condo,

I just took over as President of a 5-unit condo by default. We own a unit but do not live there. The units (townhouses) were built in 2004. There is no common area except a paved parking lot. The exterior is vinyl and roof is asphalt. One unit owner made the accusation that we are underfunded. To my knowledge no Reserve Study has been done. I am still getting a handle on the expenses, but they are minimal. Current fee is $130/unit/month. It appears we add about $2,000/year to the Reserve, although the Reserve balance is only about $10,000. I am in the process of separating the Reserves from the Operating account and allocating a set amount to the Reserves each month. So the real question is when figuring reserves, it is essentially only the roof, siding, and pavement. Siding is good for as much as 50 years, so there is a useful life of 30-40 years. The roof should have a useful life of 20 years left and the pavement is technically used up, but it is in good condition and I figure it is unlikely to ever repave the ENTIRE lot. We would most likely spot patch. Maybe we would sealcoat to extend the life? Am I missing something on the life span? I think if we increase by a moderate amount $20/unit/month we are in good shape. Essentially, with the exception of the pavement (again it is in great condition – we do not even put salt down – sand only). The major capital items are realistically 20+ years in the future.

Mister Condo replies:

J.C., congratulations on your forward thinking and your stewardship of the condominium’s future. 5-unit condos can be as challenging as 500-unit condos when it comes to something as important as collecting reserves and understanding why the money is needed now for items that won’t wear out for years to come. I would say that you have a pretty good handle on the process although I might question how you came up with your $20/unit/month conclusion. Let’s work with what you have told me and I’ll see if I can help you get a more accurate number.

If you can find out what the likely costs will be to replace the common elements over time, you can then make a reasonable estimation of what the monthly contribution to Reserves should be. For instance if you determine that your common elements cost $20,000 today and will likely cost $30,000 in 20 years when they may need replacing, you could take $1,500 per year as your Reserve contribution. Assuming that all 5 units contribute equally, that is $300 per year or $25 per month. However, I am guessing that your actual numbers are significantly higher. The increase of $20 per month that you are proposing may be enough but not enough information is provided for me to give you any truly useful advice. I am an advocate of adequately funding the Reserve and if your fellow unit owners are in agreement that a $20 per month increase is acceptable, I would start there. Before next year’s annual meeting comes up, do the exercise I mentioned above and come up with a real number. Don’t be surprised if it is 2 to 3 times what we’ve discussed here. The $150 per month common fees you will pay this next year may not be nearly enough to adequately fund your Reserve. That being said, keep at it until you get it right. Far better to pay for future repairs in the form of proper common fees today than to assess large dollar amounts in the future or risk having your investment fall into disrepair due to inadequate Reserves. All the best!

Sitting on a Brick Wall Overlooking the Canal at the Florida Condo: Yes or No?

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E.V. from Florida writes:

Dear Mister Condo,

Hi! Because of recent complaints I filed with the Florida Department of Business & Professional Regulation, the President of the condo is retaliating against me. Due to a back condition, I sit on a brick wall by the canal which is about 4 feet high so I can receive the sun’s rays. I have a physical disability. The Presidents says that when I sit over there I am risking a fall that would result in me suing the association. I have been doing this for about two months. If I was looking to do something like this, I would have done it already. He put a sign by the wall which says “Caution: Do Not Seat”. Does he have the authority to do this? If I keep on sitting there, what could he legally do about it? I called the police and they said they cannot make me move from there. So far, he has not given me a written warning.

Mister Condo replies:

E.V., I am sorry for your back condition. I am sure your physical disability is a great burden to deal with. However, you really can’t blame someone who is trying to prevent you from injuring yourself with a fall from a wall. Further, the association president has to think about all of the other unit owners, not just you, with regards to the liability of the association in the event you did fall and get hurt. I am not certain what legal authority the Board President has to place a sign on a wall or what authority he has to enforce the “Do Not Seat” activity he is trying to prevent but I need to ask you is this a fight you really want to have? Is there no place else you can sit that wouldn’t put yourself in danger of falling and the association in danger of being sued if you do? From the tone of your letter and the fact that you have already filed a complaint against the president of the condo, I am guessing that you and he are going to continue to lock horns regardless of what advice I give you but here it goes: Stop sitting on the brick wall. Walls are not for sitting. Get yourself a nice outdoor chair that you can sit in. You’ll enjoy the sun and your Board president won’t have to worry about you getting hurt and suing the association. Seems easy enough, doesn’t it? Good luck!

What to Do About Bikes and Scooters at the Condo?

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M.R. from Fairfield County writes:

Dear Mister Condo,

What is your suggestion on handling kids riding their bikes, scooters, and electric cars into oncoming cars in the community? Kids in most cases are unsupervised.

Mister Condo replies:

M.R., my suggestion is to get the situation under control and quickly! Most associations have rules against such activity and for good reason. Loss of human life or significant injury of a child is a tragedy at many levels. The monetary risk to the association that such a loss or injury can bring is tremendous. You would think that common sense would prevent parents from allowing their children to do such things on the association grounds but I think it is fair to say that you cannot teach common sense. You can, however, enforce the rules and make it financially costly for the behavior to continue.

Almost all condos have rules about what can and cannot be done on association grounds. Most recreational activities are forbidden except for areas designated for recreation. Unless you have a bike path, scooter park, or other recreational venue as part of your common grounds your association probably has these rules as well. Check your by-laws to confirm. If you don’t have the rules, adopt then at your next Board meeting. Also, check with your insurer to see what coverage you have for such activity. You may be surprised to learn that your insurer doesn’t want any of these things going on at your property either. It’s all about liability.

Once the rules are in place and known, it is time to take action against the offenders. You will notice that your by-laws do not refer to “kids” as this is a discriminatory term. The rules are against the activity, not the age or type of person performing the activity. If you have a property manager, you can ask them to document the offenses as reported by unit owners. You can hire a security company to come document the offenses. Offenders must be notified in writing that they have committed a violation and invited to speak to the Board about the offense. If the Board is satisfied that the offense occurred, they can then issue a fine as outlined in the by-laws. Fines usually get the offenders attention and the behavior should stop.

At the same time, why not try and use some Public Relation skills to help alleviate the problem? Send out notices about insurance premiums that will skyrocket if someone is injured on association property. Send out safety literature about proper places to use bikes and scooters. Perhaps there is a skate park nearby? Many towns now provide these for recreation. Speed bumps, permanent or temporary, may also decrease the unwanted activity as they pose a physical barrier to bikers and skaters.

The bottom line is safety. As a volunteer leader of your community you want your residents to be safe. You want to protect your association from liability and you want residents to have a positive experience living in your community. No one wants to play condo cop and issue offense letters and fines to residents but you do need to correct the behavior. My guess is that if you employ some of these tactics, you’ll do just that. Good luck!

Can a Community Association Lose Common Grounds if Not Insured Properly?

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R.M. from New Haven County writes:

Dear Mister Condo,

If the proper insurance is not in place and the associations cash is not bountiful, can a homeowners park lose its common grounds (pool area, boat launch, playground, etc) in/to a lawsuit?

Mister Condo replies:

R.M., most associations require that proper insurance be in place at all times but, as your question points out, just because it required to be doesn’t mean that it has to be, especially if the association were not being properly governed or ran into significant financial distress and couldn’t afford to insure itself properly. Since I was uncertain of the correct response, I turned to a friend who practices community association law. Here is what the attorney had to say:

“If an association fails to maintain the proper insurance and does not qualify for the narrow exemptions for that obligation, the association may become susceptible to a court order directing it to acquire coverage or even direct liability for any loss which the insurance otherwise would have covered.  If that liability was significant enough, it’s theoretically possible that the resulting judgment could be secured by a lien against the association’s property and foreclosed.  However, common areas are only owned by the association itself in a “planned community” or cooperative, not in a condominium where the common areas are owned jointly by the unit owners themselves.  So the answer to your question is “no” for a condominium, but “maybe” for a planned community or cooperative which has no other assets to pay for a civil judgment against it.”

I hope that helps. All the best!