Monthly Archives: March 2014

Condo Dog Battle Has This Owner Howling!

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J.B. from New Haven County writes:

Dear Mister Condo,

Hi! I have lived in a condo association for 12 years in New Haven. For 11 of those years I have had 2 dogs. I have unknowingly been in violation of the bylaws for these 11 years. Our by-laws state that we can only have 1 dog and 2 cats. I have 2 dogs, 0 cats. Just recently we received notification that they would be enforcing the pet regulations, and if we do not comply we will be hit with progressively increasing fines. I have tried to research this with regard to a grandfather clause. I understand that Florida has a law that after 5 years of unenforced regulation, they cannot require a person to give up their pet but they can enforce from any new owners/pets from a point forward. The notification went to all unit owners. I am not being singled out, but after 11 years of owning my dogs, without enforcement – knowing several other owners also have 2+ dogs, I would think I would be grandfathered. Could I get your thoughts?

Mister Condo replies:

J.B., as a fellow dog lover my thoughts are that this is a difficult situation for you, for the Board of your condo, and certainly for your pets. When you moved into your condo 12 years ago you were provided a complete set of condo documents that included, among other things, your by-laws. May I ask why the Board has had a change of heart with regards to enforcing these rules now? Are unit owners demanding that these rules be followed now? It seems awfully cruel to enforce a rule like this after 11 years of not doing so. Whatever their reason, there is no law that I am aware of that grandfathers in your pets or makes the Board’s action unenforceable. If other owners of multiple dogs are not also cited and fined for violating the one dog rule, you would have a case for discrimination.

I might suggest you propose your own version of a grandfathering rule that your Board may be amenable to. Why not allow those unit owners who currently have two dogs the opportunity to keep their existing dogs as long as they agree that they will not bring any additional dogs into the association until their current pets pass? While dogs can live a long time, they don’t live forever and the problem should take care of itself in just a few years time. The Board gets to enforce the association’s one dog per unit rule and the current unit owners don’t have to find new homes for one of their beloved pets.

As for their enforcement of the rule, you may be able to challenge the association in court if it comes to that. The Board does need to follow a series of steps as outlined in the Common Interest Ownership Act before they issue fines, escalating or otherwise. They must first provide written notice to any unit owner accused of violating the rule. They must invite any accused unit owner to a Board meeting to tell their side of the story. They can then issue a fine if they are satisfied that a rule was broken and a violation has occurred. The schedule of fines is also documented in your condo docs. They cannot simply escalate fines at their desire. They have to follow the rules, too.

I hope it doesn’t come to that, J.B.. I have one other thought for you to consider. If there are enough unit owners who feel as you do and the Board is not receptive to your idea of allowing the existing dogs to live out their natural lives in the condo, it may be time to vote some new Board people into office that will see it your way. Board members are democratically elected volunteers. They need to serve the best interest of the community and maintain the popular vote to do so. Be ready to answer the call yourself if necessary. I wish you all the best!

Sewer Assessment Has Unit Owners Underwater!

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A.J. from Hartford County writes:

Dear Mister Condo,

We live in a five unit condo and need to do a special assessment to pay for a new sewer connection.  The cost is going to be around $3,000 per unit when all is said and done.  The problem is that two of the unit owners are under water and are simply waiting for the bank to foreclose on their properties, so they refuse to pay the special assessment.  Is there any way or what would be the best way to get them to pay their share?  We can’t get a loan, so what happens if we can’t pay to fix it? Thanks.

Mister Condo replies:

A.J., I am sorry that your small community finds itself in such a dire financial predicament. Many banks refuse to loan money to small condos like yours because there just isn’t enough units to spread the risk around in the event of a loan default. That leaves a special assessment as your only tool to raise the needed capital for the project. It may sound a bit tricky but you might consider temporarily increasing the common fees versus levying a special assessment. The reason for this is that even though you are not more likely to collect the special assessment from the foreclosed upon units, the new unit owners (likely the banks) will be on the hook for the common fees, whereas they may be shielded from a special assessment. If this sounds difficult for you to orchestrate, may I recommend spending a little money on a community association attorney who can walk you down the proper path. There is a correct way to do this and you want to make sure that the courts are likely to side with you when the banks issue a challenge to the increased common fees. The bottom line is that the unit owners of record will need to pay. If the foreclosed upon unit owners don’t pay, that only leaves the unit owners in good standing to foot the bill. It would be nice if you could spread the burden to all units as all units will benefit from this new sewer connection. All the best!

A Little Less “Love, Love” at the Condo

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S.C. from Fairfield County writes:

Dear Mister Condo,

I am on the board and we are considering getting rid of one tennis court. What steps do we need to follow? Do we need to get approval from a majority of the owners?

Mister Condo replies:

S.C., as a tennis enthusiast I am sorry to learn there will be one less court in the state. That being said, tennis courts can be quite expensive to maintain and insure so I am guessing there just aren’t enough tennis court users in your association to merit the ongoing expense. I wasn’t exactly certain of the steps needed so I checked with an attorney who practices community association law in our state. Here’s what the attorney had to say:

If “get rid of” means converting this common element to another use, then the board can make this decision at a properly-noticed regular or special board meeting at which unit owners have the right to be heard on the subject but not to vote.  Except to the extent your declaration or bylaws say otherwise, the board has exclusive control over how the common elements are used.

Looks like your association may be enjoying a little less “love, love” if the Board decides to remove a court. At least now you know what steps need to be taken for them to do so. Good luck!

Term Limits for Serving on the Condo Board

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K.P. from Fairfield County writes:

Dear Mister Condo,

We recently held our Annual Meeting during which there was to be a vote on a new Board member. The current President of the Board has served for 9 years. I decided to run for the Board. However, the seated president decided to run against me, so there were only our two names on the ballot. I thought that CT state law mandated that the position be vacated by the individual holding the position, which would have meant that as I ran otherwise unopposed, I should have taken the seat. Was it legal for the board member to run for another term? And as a side question, are they allowed to pay themselves a salary from our condo fees? Thank you.

Mister Condo replies:

K.P., there is no state law that I am aware of that mandates a director vacate a seat on the Board. It is possible, but unlikely, that your by-laws have such a rule. I’ve never personally heard of such a rule but you can check your by-laws section on governance and election of directors to see what the rules for your community are. The fact that your current Board President has served for nine years makes me think there is no such rule in your by-laws.

I salute your courage to run for the Board and I encourage you to continue to seek volunteer opportunities to benefit your community. In case you are not aware, Officers of the Board (typically President, Vice-President, Treasurer, and Secretary) are usually elected by the other members of the Board after the Annual Meeting. That is why you run for a seat on the Board rather than run for Board President. Once seated on the Board you then express your desire to hold office before an election of Officers by the Board is held.

Your second question concerns me deeply. In a word, “no”, they are not allowed to pay themselves from condo fees. Serving on the Board is a volunteer position. That being said, I know of many associations who do have “perks” like an annual party or such for Board members and other committee volunteers as a way for the community to say “thank you” for their service throughout the year. Out of pocket expenses like postage can be reimbursed. Anything beyond that becomes questionable and is a conflict of interest. Most condo by-laws expressly prohibit Board members from paying themselves and for good reason. Since they are the folks in control of the budget, what is to stop them from taking large sums of money from the association? There are no “checks and balances” in place to protect the other unit owners within the association. Again, review your condo docs and check the section that details serving on the Board. You will very likely see the section that prohibits Board members from being paid or receiving any preferential treatments, goods or service for their service. Bring it to the Board’s attention along with a demand that the practice stop and any pay already received be returned to the coiffures of the association. I wish you all the best, K.P.!

Who Votes on How and When to Use The Condo Reserve Fund?

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R.M. from Fairfield County writes:

Dear Mister Condo,

Do all of the unit owners have to vote on the using of money in the Reserve Fund? Money was used from the Reserve Fund for cosmetic purposes when there are many projects have to be addressed like roofs and new paving.   The Board used Reserve money to put shutters only on some of the windows. What is the most a board can raise common charges and what is the Connecticut law about reserve funds?

Mister Condo replies:

R.M., the short answer is it depends and what it depends upon is your condo docs and the rules outlining the expenditure of funds from the Reserve Fund or other. Some associations have restrictions on the dollar amount. Some have restrictions on the use of the Reserve Fund. The bottom line is that the community does have a say in how the money is spent through their choice of elected officials who oversee the community and manage its finances. I am not aware of any Connecticut laws about Reserve Fund usage nor am I aware of any laws about how much a Board can raise common fees (Special Assessments for that matter, too). Every association has expenses. The only method of offsetting those expenses is revenue raised from unit owners which comes from common fees or assessments. If the Board is out of money to perform maintenance projects on the common elements then it is very likely because the common fees have been too low for too long a period of time. Does your association have a Reserve Study in place? Does the Board use the study to direct the fiscal stewardship of the community? These are the underlying issues in your question. My guess is that you are just scratching at the real problem here. It is quite possible that your community needs to raise its fees and maybe even secure a loan to handle the required maintenance. That will cost all unit owners over the months and years ahead. Good luck!

Does Medical Pet Count as My One Pet at the Condo?

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L.K. from New Haven County writes:

Dear Mister Condo,

If my condo complex has a one pet rule, does my medical pet count as that one pet or may I have another?

Mister Condo replies:

L.K., medical pets are still pets and my guess is that your condo association would prefer it if you would observe the one pet rule, if for no other reason than to prevent other residents from doing the same. It would be a much larger issue if your association had a “no pets” rule, which is not that uncommon. In that case, you would need to petition the dog to have any pet on the grounds although certain medical pets (seeing eye dogs, assistance dogs, dogs that alert to seizures, and such) are almost always allowed, there is a new type of doctor-recommended stress relief pet that some associations are challenging as medical pets. The bottom line is that where you live you do not face such a challenge and you should be fine as long as your total pet count, medical or other, does not exceed the association’s one pet rule. All the best!

Editor’s Note: Since this post was originally posted, I have had several readers (several attorneys as well) inform me that emotional service animals (ESAs) are generally not considered pets. Therefore, residents with ESAs may be able to skirt the “no pets” or “one pet” rule by claiming the service animal as an exception to the rule. As you can imagine, this is a contested topic and your results may vary.

Why Can’t I Long Term Park in the General Use Condo Parking Area?

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M.M. from Fairfield County writes:

Dear Mister Condo,

 

Is there a definition of “long-term” parking in CT? I travel a lot and have leases on my unit. I have one deeded space that is included in the tenant’s lease, and I park my vehicle in the general spots with my second parking pass. I have received a tow notice for violating the no “long-term” parking provision in the rules. I do use the car, but not daily. It’s more like every week or two. I feel I’m being singled out by the condo manager.

 

Mister Condo replies:

M.M., my guess is that you are not being singled out by the condo manager but that you have, in fact, violated your community’s rules about use of the general spots. Most community associations I am familiar with limit their guest parking areas to 24 or 48 contiguous hours. They do this so they don’t end up with unsightly cars abandoned in their parking lots. There is no definition of “long-term” parking as it applies to private property which is what the general parking lot of your community association is. In some ways you have answered your own question by alluding to the rules. You should review them and determine what your long-term parking options are. One thing you might consider is using your dedicated spot for your own use. There are no restrictions on how long you can park your own car in your own space. Then you could simply have your tenant use the general lot, being sure to advise your tenant of the parking rules so they don’t inadvertently violate the rules and end up having their car towed while they went away for a week’s vacation. One other solution may be to rent a permanent space from a unit owner who is not using their dedicated space. That may or may not be convenient but it may solve your dilemma. Good luck!

Falling Ice from Condo Garage Damages Guest’s Vehicle

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P.A. from Fairfield County writes:

Dear Mister Condo,

A car was parked in the parking space in front of the garage of my condo when ice fell from roof and damaged the car. Who is responsible for repairs?

Mister Condo replies:

P.A., I am not an attorney so please consider this advice as friendly and not legal. If you require legal advice kindly seek out the counsel of a qualified attorney. I am sorry to learn that a car was damaged from falling ice from the roof of your condo garage. I am thankful that your story did not include any injury to people. Insurance claims have really piled up this year due to ice damming, flooding, and such. Yours is the first question I have received about ice-related vehicular damage. The short answer is “it depends” and what it depends upon is the dollar amount of the damage, what type of insurance the vehicle owner had, and how much he or she is willing to pursue the damage claim.

For the most part, people have car insurance for the same reason they have homeowner’s insurance. It protects their investment from potential liability. Liability is a combination of replacement value for the damage caused and fault. A brand new Mercedes is worth a lot more than a 12 year-old Chevy so we need to begin with how much damage was done and how much the car is worth. Let’s assume there was $1000 in damage to a 5 year-old car for our example. If the car is insured against damage by the owner for $8000 and the owner wants to put in a claim for the $1000 he certainly can. His insurance company will likely honor his claim, less any deductible, and the claim is considered settled. The car owner may wish to sue third parties for the deductible in which case he would likely name the association and the unit owner (you). If so, you may need to appear in court or file a brief with the court stating that you have no control over the roof of your condo and that the building exterior maintenance is the responsibility of the association. The court can then do with that information what it decides.

If the dollar amounts are smaller, it is unlikely that anything will occur. The larger the dollar amounts, the more likely there will be legal action brought. That is what insurance is for. You may need to notify your own homeowner’s insurance carrier if there is a suit and you are named. Otherwise, the car owner will likely just let his insurance company handle the matter.

FHA Condo Accounting Question

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R.C. from New Haven County writes:

Dear Mister Condo,

The FHA requirement for associations to put 10% of the common charges into a separate Reserve account creates a problem with using a spreadsheet. The agency we are using to assist with our FHA compliance explains that the 10% value must be based on Common Charges, (what is collected in fees); that is what the FHA looks at.

Setting up the Expenses column to contain a line item for the 10% FHA Reserve, creates a “circular reference” in a spreadsheet by attempting to calculate the 10% line item in the expenses while referencing total common charges to create the 10%. Do you have an example of how a spreadsheet is set up avoid this problem?

Mister Condo replies:

R.C., I am not a CPA but I think you are just looking for a simple “how to” tip here. If I understand your issue completely you are using a spreadsheet program like Excel or such to produce your report to demonstrate your FHA eligibility compliance and you have included a line item for your Reserve Fund contribution that is based upon the total common fees. Since the total common fee includes the Reserve Fund contribution of 10% (entered as a percentage rather than a dollar figure) it creates a circular reference that continually compounds the 10% by 10% over and over again. Is that correct?

Well, the good news is that you are practicing due diligence by contributing a healthy amount to your Reserve Fund each year and that you are practicing good governance by keeping your association FHA eligible.  The only issue here is that the spreadsheet program is proving a bit tricky. I can tell you of the technique that my association uses that you may find useful.

We have our annual budget spreadsheet broken down by sections for each of the expense items. There are sections for insurance, common utilities, vendor contracts for landscaping and snow removal, legal and management fees, and any other fees that we anticipate for the upcoming year. Then we subtotal that section and base our Reserve Fund contribution as a percentage of the subtotal. That way we simply add 10% to the subtotal (which changes every year) and still make a proper contribution to our Reserve Fund that will keep us FHA compliant. If you were to follow the same formula, your spreadsheet might look like this:

Insurance                              $50,000.00

Utilities                                   $  5,000.00

Landscaping                         $12,000.00

Snow Removal                    $12,000.00

Management Fees               $ 5,000.00

 

Subtotal                                 $84,000.00

 

Reserve Fund at 10%         $ 8,400.00

 

Total Fees                             $92,400.00

 

This would solve your circular reference problem and also allow you to adjust your Reserve Fund contribution based on its percentage of common fees collected. This is an oversimplified example but I think you get the idea. All the best!

Wet, Overgrown, and Neglected in Hartford Condo

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M.P. from Hartford County writes:

Dear Mister Condo,

I have requested that our Condo Manager provide me with our insurance contact information as I have extensive ice damming damage and want to have an adjuster take a look. I also requested a copy of my account information because I have a concern that I was charged compounded late fees. I have made 4 written requests and have not received a response. This individual has been rude and sarcastic to me and to other unit owners. My adjoining neighbor and I have been writing and calling for over two years about having overgrown bushes trimmed or removed (they literally block our back entryway). I saw on your web page that property managers must be licensed by the state of CT. When I searched the state of CT web site using his name and company name, the site indicated that no records were found for that individual. Does the property manager need to be licensed in the state of CT? Do I have the right to request a copy of his license or license number? If he is, in fact, not licensed, what is my recourse? Thank you for taking the time to answer my questions.

Mister Condo replies:

M.P., you’ve got a few issues going on here and I am sorry for your problems. Let me break it down and give you some advice I think will benefit you. I’ll work backwards if you don’t mind and start with the issue of Property Manager licensing. You can read all about the law that was passed in 2012 that requires ALL property managers to obtain licensure from the State of Connecticut. If your manager is practicing without a license all you need do is report him to the Department of Consumer Protection for doing so. You can get all the information you need at the Connecticut Chapter of Community Associations Institute Manager Licensing Page at http://www.caict.org/?page=ManagerLicensure. Please note that it is possible that your manager is in the process of obtaining a license or that the website you are checking isn’t updated but chances are if you couldn’t find them on the site, they are not managed. Your report could get things moving to get this manager licensed or get them out of the business if they choose not to license.

Rudeness from a Property Manager need not be tolerated by you or any other condominium unit owner. However, the nature of Property Management is often fast-paced due to the chaotic nature of all of the responsibilities that a Property Manager has to deal with. Ice dams, overgrown bushes, barking dogs, insurance claims, neighbor versus neighbor complaints, Board meetings several nights during the week… it goes on and on. Most of the Property Managers I know are very busy people that work long hours and deal with putting out a lot of fires during the course of their week. That is no excuse for being less than professional when dealing with a client such as yourself but please cut them some slack if they are just dealing with you as quickly as they can so they can get on to the next emergency, especially this time of the year when ice damming and the resulting water damage are pervasive.

Speaking of ice damming, I am sorry that you are yet another victim of this winters pile up of ice and damage on our state’s condominiums. I have had countless tales of water intrusion from all across the state and region. Just too much snow and too much freezing as it melted turning harmless run off into condo flood nightmares. Your own Homeowner’s insurance policy (HO-6) is your first line of defense. Notify the Board in writing of the damage and let your Homeowner’s insurance folks go after the Board for any damage that may be the association’s responsibility. If applicable, the association will submit a claim to their insurance. The reality is that the association insures only the common elements. Your damage is to your unit’s interior which the association’s insurance does not cover. From what I have seen of insurer’s reaction to the onslaught of claims I would not be surprised to learn that you end up hiring an attorney to protect your rights and get one or both of these insurers to pay.

You may very well have been billed compounded late fees. You didn’t tell me how you were initially billed late fees (missed a common fee payment I assume) but you need to review your by-laws to determine how the fees are determined and what you actually owe. Also, are we talking about a large amount of money here? Late fees are usually $25 or less. If you paid your late common fee but not the late fee, most by-laws would allow the association to bill you a late fee for not paying your late fee. Unless we are talking about hundreds of dollars I would recommend that you pay your late fees in full and keep your common fees current to avoid further late fees. If you feel you are right and the association is wrong and no one will discuss the matter with you, you can bring action in Small Claims Court. That sounds like an unwise use of your time and resources to me but it is an option for you.

The ultimate remedy to your bushes being improperly tended and your desire for the Board to hire a different Property Manager is in your hands. The Property Manager works for the Board. You elect the people who serve on the Board. If your Board isn’t getting the job done for you then you need to elect new Board members. Perhaps you would like to tackle the issues facing the Board and volunteer your time to serve?

I know this is a very frustrating series of events for you, M.P., and I don’t think there are easy answers here. Living in a community association can be challenging when things don’t go swimmingly. There is often a disconnect between the billboard image of idyllic, peaceful living and the reality of damaged units, insurance claims, overgrown hedges, and hassles when dealing with the folks who should be there to help. However, with a little perseverance and some strategic thinking, my guess is you will get through all of this just fine and with a better understanding of how difficult a job your Property Manager has and how challenging it can be to serve on the Board. I wish you all the best!