Monthly Archives: May 2014

Can a Declarant Levy A Special Assessment on New Unit Owners?

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M.K. from Middlesex County writes:

Dear Mister Condo,

We live in a condominium development where the declarant is still in charge and there is not yet a managing HOA. The declarant has been remiss in his maintenance of our common properties with no painting despite exposed wood, inadequate reserves, etc.. Presently, the Board that he controls is planning to levy an assessment on the owners. It has always been my belief that this can only be done by an HOA and that the declarant needs to take care of any cost overruns above and beyond our maintenance while he is still in charge. The documents do mention the ability of a “Board” to level an assessment, but does not specifically address whether it must be after the declarant is no longer in charge. I would appreciate any guidance you might have. We are debating retaining council. Any suggestions?

Mister Condo replies:

M.K., I am excited for you and your fellow owners of your brand new condominium units. However, as you are seeing first-hand, the birth of an association and the transition from developer to Association control of the property is not without significant challenges. To make matters worse, the rules that apply during this transitional phase differ from the rules of government that will be in place once the transition is complete. For that reason alone, I cannot stress how important it is that your Board consults with a qualified attorney who will represent your best interests during this transition period. It may not be inexpensive to do so but it may save you far more than it costs you in the long run.

I did reach out to an attorney friend of mine who practices in this specialized area of community law. Here is what the attorney had to say:

“The board can propose a special assessment at any time, even while it’s controlled by the declarant. Unless the declaration says otherwise, the special assessment will be valid so long as it is noticed properly and a majority of all the unit owners does not vote to reject it. Nevertheless, it’s possible that a declarant-controlled board which proposes a special assessment to make the unit owners pay for fixes which violate the declarant’s own construction warranties or for undeclared portions of the community may be violating the board’s legal duties of care and loyalty to the association.  The unit owners should definitely talk to an attorney about the situation.”

I hope that helps. If you need a list of qualified attorneys, may I suggest the list of CAI member attorneys and firms found at the CAI-CT website – http://www.caict.org/?page=Directory. These firms specialize in community association law. I am sure you will find the qualified legal assistance your association needs to help guide you through the developer transition period. Welcome to the growing number of Connecticut community associations. We’re here to help. All the best!

Oversized Handicapped Vehicle Not Allowed at the Condo

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J.T. from New Haven County writes:

Dear Mister Condo,

I rent a condo that has roughly 700 units. I have a townhouse that has a small garage and a driveway. I am being told that I cannot have a guest park in my driveway because he owns a pickup truck. This is not a commercial truck just a new Chevy. So I said OK, where is the guest parking and I will have him park there? I was told no; he has to park in the road outside of the complex. He is disabled and cannot walk down a large hill nor walk 5 blocks to get to my condo. I don’t want my landlord to get fined 25 dollars a day. What can I do?

Mister Condo replies:

J.T., I am sorry for your parking problems. Unlike public grounds or city parking lots, condominiums are considered private property and are not required to allow vehicles beyond a certain size the ability to park on their grounds. The rules of the association are in place to protect all unit owners and to establish the guidelines by which unit owners choose to purchase and live within the community. The fact that your parking issue involves a guest who is not a unit owner within the condominium truly negates any reasonable accommodation you could seek through the Board. If you allow your guest to park on association grounds with an oversized vehicle, the unit owner (your landlord, in this case) will very likely be summoned to appear before the Board and eventually be assessed fines. There are very likely rules that will allow the Board to tow the vehicle from the property after repeated offenses. Clearly, simply disobeying the rules will create a hardship for your landlord who will very likely pass that hardship on to you and may even evict you for the offense.

So, the easiest solution is for your visitor to visit but without his oversized vehicle. Perhaps you could offer to pick him up when he comes to visit or meet him at the street and drive him to your home so he can park correctly and you can drive him to your unit. If he has a second vehicle that is within the size restrictions of your condo, he should use that when visiting. You can ask your landlord to petition the Board to allow the oversized vehicle on the property but my guess is that they will deny the request because it opens them up to no longer being able to enforce the oversized vehicle rule which is not wise for most condos because of the typically small garages and driveways that are so common to them. I wish you and your friend all the best in solving this problem!

Noisy Upstairs Condo Neighbor Prevents Unit Owner from Sleeping

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S.W. from New Haven County writes:

Dear Mister Condo,

Help, please! This is the first time I’m encountering noise from upstairs unit which prevents me from getting enough hours of sleep. Thank you.

Mister Condo replies:

S.W., upstairs condo neighbors can often create a lot of noise without even realizing they are creating a problem for the unit owners who live below them. High-rise style condos often have rules in place to help minimize the problem but not always. The first step would be to meet your upstairs neighbor. If you do not already know them, a quick letter will suffice. As politely as possible, explain that you are their downstairs neighbor and you are experiencing a noise problem from your ceiling which is their floor. Depending on the nature of the noise that is bothering you, they may be able to help by turning down a TV or stereo volume, moving a piece of exercise equipment, placing a throw rug on a hardwood floor, or just agreeing to keep it down during hours when you are trying to sleep. Of course, just because they are your neighbor doesn’t mean they have to behave neighborly and your request could fall upon deaf ears.

Now is a good time to review your condo documents and see what peaceable enjoyment measures are in place to help keep things quiet at your condo. Many times there are provisions for what type of floor coverings are allowed. For instance, carpet can help deaden noise and may be a required floor covering. If the upstairs neighbor has removed their carpet and installed hardwood or laminate flooring, which is quite popular these days, they may be in violation of condo rules and you can ask the Board to take action and have the problem remedied. If your by-laws state that there are hours designated as quiet time (10:00 p.m. – 8:00 a.m., for instance) then you may inform the Board that your upstairs neighbor is violating the rule and request that action be taken. Generally, the Board will issue a notice and ask the unit owner to appear before the Board to explain their side of the story. If the noise continues, the Board may fine the unit owner. Let’s hope it doesn’t come to that.

Like all neighbor versus neighbor issues in condominiums, it really comes down to how people behave when faced with a “good neighbor” issue. I hope your upstairs neighbor is considerate enough to work with you to remedy the problem. If not, you will have to take action to correct the situation. All the best!

How To Battle Condo Ice Dams?

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A Property Manager from Connecticut writes:

Dear Mister Condo,

Thought I would use your help via Ask Mister Condo. Ice damming is a problem and we are trying to determine if there are any condominiums complexes in CT that have installed “heating cables” in gutters to melt ice/snow in the winter to avoid ice damming problems.

Mister Condo replies:

Thanks for writing! Always happy to assist a fellow Nutmegger! I have heard crazy stories of ice dams at condos, especially with the last couple of winters we have had here. I do not personally know of any condos that are using anything other than a salt mixture on the roof and gutter and the occasional roof rake to get rid of the snow before it becomes ice. I hear the stories of unit owners banging their gutters with everything from brooms to hammers and I think we all know how disastrously those stories end! So, let’s ask the readers of our website; are any of you using “heating cables” or any other type of “heating tape” to keep the water moving off the roof and prevent freezing in the gutters and forming damaging ice dams? Please write in and share your stories. Thank you!

Condo’s Common Fees and Taxes are Too High To Sell!

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A.C. from Fairfield County writes:

Dear Mister Condo,

I am having an awful time trying to sell my condo. In the five years that I have lived here, the prices have dropped and the common fees have almost doubled. My realtor says the reason my place isn’t selling is because the common fees (almost $400 per month!) and the taxes (almost $500 per month!) are too high. What can be done?

Mister Condo replies:

A.C., as a fellow condo dweller with high common fees and high taxes, I can feel your pain. The reality of higher taxes is completely out of our control as the taxes are set by the local municipality. You can check your assessed value and dispute it with your city hall or tax collector but that isn’t very likely to change anything. Your common fees are also out of your control. Your association sets the fees at the Annual Meeting and the fees represent the operating expenses and Reserve Fund contribution which is made each year to offset the decay of the common elements which will someday need to be replaced. The good news is that a well-managed and well-funded condominium can actually be quite attractive to the informed buyer. You might want to ask your realtor if explaining the financial strength of a community association is part of the sales presentation. To a well-informed buyer, that is far more important than the sweetness of a low common fee. After all, who wants to buy a condo unit that is very likely going to face special assessments for lack of a properly funded Reserve Fund? Not me, I can assure you. Good luck selling your unit to the right buyer!

Charged Up Over Condo Electricity Used to Charge Unit Owner’s Car!

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E.L. from Middlesex County writes:

Dear Mister Condo,

Do you have any wording for our rules to prohibit an owner from using the common electrical outlet in garage (110 volt) to charge their electric car?

Mister Condo replies:

E.L., electric-powered cars have been a hot topic at HOAs all across the country. Some states, like Hawaii and California, have mandated that community associations allow electric charging station be installed at condominium provided the unit owner installing the station takes responsibility for the station’s installation, maintenance, and cost of electricity sent to the station. This is done through submetering, a separate meter that keep track of the specific electricity that flows to the charging station. Connecticut has no such law and the association is already providing power to the garage where the unit owner is charging the electric vehicle so your situation is different.

The conventional wisdom would be to install a submeter, at the unit owner’s expense, to keep track of the electricity being used by the unit owner for vehicle charging purposes. The association would continue to provide the electricity but this unit owner would receive a separate utility bill for the electricity consumed. In the interest of fairness, all units could have submeters installed and all unit owners could pay for their own electricity but that solution may not be practical and may require a modification of your Declaration.

However you decide to handle it, I suggest that the Board take a look and discuss the following items:

  • If the association provides electricity for all of the unit owners as part of the common fees, maybe it is time to look at submetering for all units. In every community, there are folks that use a lot and folks that hardly use any. Is it fair that everyone pay the same? Submetering could resolve that problem.
  • Electric cars are likely to be more common. Would it make sense for the association to install a charging station? Can the association come up with a way to provide the charging station and satisfy the needs of unit owners?
  • Will these changes require an amendment to the Declaration? If so, it’s likely time to consult with the community association’s attorney to discuss proper procedure for doing so. Let’s face it; electric cars weren’t really under consideration when most condos were built in our state. Maybe it’s time to look to the future and plan accordingly.

All the best!

Board Mandating Brand New Condo Windows Be Replaced!

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B.R. from Washington, D.C. writes:

Dear Mister Condo,

Mr. Condo!  Hello from our Nation’s Capital! I have a quick question about an issue I’m having with my condo. I purchased in November, 2013. The 240-unit building was built in 1987 and most people still have the original steel frame windows. My windows were completely shot, letting in all kinds of cold air making it very uncomfortable to live there. So, I spoke with two different people from the building management team who stated that windows were the owner’s responsibility and gave me a few references of companies that other people have used to purchase conforming windows.

So, I went forward, got bids from two of the frequently used companies, and had my windows replaced at a cost of $3,200 (3 windows total @ 1k each).  Fast forward 3 months and now enough people have finally complained about the windows that the association began looking at possibly replacing all the windows in the building. I believe the bylaws were vague about who owns – classified as a limited common element? Great news if I hadn’t just replaced mine at the discretion of building management. I would estimate there are about 50 people who have already replaced their windows to conforming new windows.

My question is this: can the condo association FORCE each unit owner to pay for new windows if they already have conforming windows? I hope there is a way they would need to have an “opt-out” option for people that have already replaced theirs and some kind of reimbursement, but it’s sounding like they are hoping to force replacement of every window in the building. They’re consulting with attorneys as several other residents have threatened lawsuits over this so I hope you can shed some light on this!

Mister Condo replies:

B.R., greetings to you as well. While I never like to hear about lawsuits regarding unit owners versus association Boards, I think your fellow unit owners are on the right path by threatening a lawsuit. Please keep in mind that I am not an attorney so please take this advice as friendly and not legal. For a legal opinion, I suggest you speak with a qualified attorney.

It sounds like the Board is well-intentioned but may not have all of the facts they need to take proper action. Regardless of who owns the windows, the Board does have a right and a duty to keep the property “maintained, protected, and enhanced” and to enforce the architectural compliance standards of the association. That includes mandating replacement of worn out windows like the ones that you have described. That does not include forcing repairs to windows that are not worn out or past their useful life. The proper procedure would be for the Board to investigate on a unit by unit basis, the age of each of the windows and determine if the windows need to be replaced. In my opinion, they are overstepping their authority by mandating ALL windows be replaced, especially in cases such as yours where you can clearly document that your windows have already been replaced and are in compliance with association architectural standards.

All of that being said, the powers of your Board are clearly outlined in your condo documents. I am not surprised to learn that there is some grey area with regards to who owns the windows (“limited common element at the expense of the unit owner” seems to be the interpretation by the Board and owners at this point) but even so, the Board is wrong to require that unit owners who have already updated their windows do so again. Once this is pointed out to them, even at the threat of lawsuit, they are likely to change their tune. Keep in mind that your Board is populated by well-meaning volunteers and they are likely doing the best as they know how. This issue hasn’t come up since 1987, long before any of them were at the helm of the association. I would allow them a mulligan and give them a second chance to properly address this situation. All the best!

Condo Notices Delivery Disagreement

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T.B. from New London County writes:

Dear Mister Condo,

We are a 12 unit association. During our last annual meeting we asked the residents if they would like any newsletters, board meeting minutes, notice of meetings, etc. hand delivered. All but one unit owner agreed. We have been mailing all news to the one unit owner who disagreed. Now we are considering having a separate mail box on the front of each unit just for association use. Can the one unit owner legally refuse to have the association communications hand delivered? Thank you!

Mister Condo replies:

T.B., I would first like to congratulate your association for doing such a great job keeping unit owners informed with newsletters, minutes, notices and more. That’s a lot of work for such a small association!

The answer likely lies in your by-laws and my guess is that you are very likely required and best served by using the postal service for any unit owner who requests that you do so. In fact, I routinely suggest that associations put a stamp on it just in case they ever get hauled into court over a lawsuit that claims the unit owner was never sent the appropriate documentation that the association is required to provide. The cost of that stamp compared to having to defend why required communications were not mailed is minimal. It protects both the association and the unit owner by doing so.

That being said, as long as there is documentation from other unit owners that they are willing to forego mailed communications for hand delivered communications, I see no reason you can’t hand deliver to those unit owners that have agreed to that method. Keep in mind that any unit owner has the right to request the conversion back to mail at any time. Also, using the U.S. Mail service has advantages for your unit owners who may go on vacation from time to time or need mail forwarding for whatever reason. Hand delivering a notice that doesn’t get read in timely fashion by the recipient will not serve the best interest of the association or the unit owner. All the best!

Condo Toilet Repair Project Might Stink!

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G.H. from Fairfield County writes:

Dear Mister Condo,

Our 80-unit mid-rise condo was built in 2008. It is fully owner occupied and the reserve fund is 70% funded. The building is designated a 55+ community by local zoning regulations. It is a highly desirable, very well built (steel, 9 inch concrete floors and steel wall studs).

For the last two years, over a dozen leaks have occurred in the ceilings above the toilets causing drywall damage in the unit below. It has been determined that in each instance the underlying cause was a defect in how the pipes were connected in the space between the units making this issue the responsibility of the Condo owners association, which has paid just under $1,000 for each repair to date. Three different professional plumbing companies who have done the repair work have told members of the Board of Directors that since the pipes in every unit where a leak has occurred so far were cut short where the toilet connects to the main building sewer line, there is a strong likelihood that all of the toilets will require repair at some point in the future.

Does the Board have a fiduciary responsibility to build extra funds for plumbing repairs into the Reserve Fund to cover these repairs since it is a recognized systemic problem? Should the repairs be done several at a time over a certain number of years to obtain a savings on repairs by using the same plumbing/dry wall repair companies who could do this work based on when they have a slow scheduling time period (the repairs take two people 3 hours)?  Is making repairs on an as needed basis a fair way to address this problem in the best interests of current and future owners?

Mister Condo replies:

G.H., congratulations on having a properly funded Reserve at your condo. At least running out of money for future known expenses shouldn’t be an issue for your community. However, dealing with your current toilet leak flooding issues is a completely different challenge. My first blush is to suggest you speak with a community association attorney to see if, in fact, your association can bring suit against the developer for what sounds like a construction defect issue. The challenge may be that the failure is so far along into the life of the condos. From what you are telling me, only some of the toilet lines have failed. There is a very strong possibility that many of them will not and that is where the challenge in seeking a construction defect suit may arise. Still, if your association has an attorney, it is certainly worth pursuing as your association will need to foot the bill for the repair on its own if no remedy is sought.

You seem generally happy with your Board’s performance overall; it is just this specific issue where you are questioning their handling of the repairs and the finances to fund the repairs. I think it is fair to say that the Board is in the best position to make the call on this. You can certainly suggest they set aside additional funds for the project. You can even suggest they hire an engineer to get a professional opinion as the extent of the repairs that will be needed. However, if all they do is respond to the damage and make the repair, they are certainly doing their duty. The good news is that not all of the units are failing at the same time. Without an engineering report to back their decisions, I don’t really see what else they can do. If they simply plan to replace plumbing that hasn’t failed (and may not) they could be accused of wasting association resources by literally flushing it down the drain!

That being said, I think you are well within your rights to ask if these items have been considered. Keep in mind that these Board members are volunteers from within your community who are likely doing the best they can. With everything going so well for your community from what you have told me, I would think it best to work with them to get these repairs taken care of in timely fashion and politely suggest they consult with an attorney and an engineer so that they have all of the facts available to them to make the best decisions possible. All the best!

For the Dogs – HOA Rules or City Ordinance?

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J.M. from New Haven County writes:

Dear Mister Condo,

If a City Ordinance says dogs must be leashed/tethered, can the HOA enforce you to only have dog on a leash and not securely tied up outside.

Mister Condo replies:

J.M., depending on local laws and the rules of the HOA, the city ordinance may not even come into play. For the most part, you are talking about private property. If the HOA owns the lands that make up any common areas, the city ordinance may not apply. However the rules of the HOA most certainly do so they should be obeyed or face the consequences of breaking the rules (fines or worse for repeated offences). Most HOAs do not allow dogs to be left unattended for the fear of a tied up dog barking and disturbing the peace for the other residents. Leashes are the general rule unless there is a designated dog run or dog park as part of the community. Of course, proper clean-up of dog feces is always required and there may be other restrictions as well. The rules are very likely outlined in your HOA documents. Happy dog walking!