Monthly Archives: September 2014

Condo Resale Packages and Pending Litigation

K.L. from Fairfield County writes:

Dear Mister Condo,

Do personal injury lawsuits pending need to be declared in resale packages now under the 2010 new CT Statutes? Our attorney has previously said that these suits are private information just for Board Executive Session and not for other owners to know because of privacy issues. I read a recent article that said that under the new statutes, prospective buyers and current owners have a right to know what financial issues the Association has before them that may affect their common expenses and budget. Since owners pay a large deductible in such suits out of our common charges, do owners and buyers have a right to know of a personal injury (or other) lawsuit and does the name of the individual claiming injury have to be protected? Thank you!

Mister Condo replies:

K.L., you are correct that disclosure of such information must be made known as part of the resale package. In the event of a lawsuit, the parties named are public record (i.e. John Smith vs. ABC Commons). For further clarification, I asked a prominent community attorney to chime in on the subject. Here is what the attorney had to say:

“State law specifically requires every association to disclose the titles of all pending lawsuits and administrative proceedings in resale certificates to prospective buyers (other than nonforeclosure collection cases).  The board is also obligated to affirmatively notify every unit owner whenever most kinds of lawsuits are filed against it, including personal injury suits.  However, state law gives the board the option of whether to allow unit owners to inspect and copy records concerning further details about those lawsuits and administrative proceedings themselves, including attorney-client privileged records.  Other records that relate to litigation only indirectly must still be provided, such as liability insurance policies and annual budgets that itemize attorney’s fees.”

I think that clears that matter up. Good luck to you and your condo in your lawsuit.

Personal Information and the Condo Board

J.R. from New Haven County writes:

Dear Mister Condo,

Can the Board disclose your personal information?

Mister Condo replies:

J.R., the condo Board of Directors has a right to know a great deal about you and all owners, renters, mortgagors, employees, and anyone else with a vested interest in the condominium association. There are many reasons for this but the primary reason is for purposes of communications and serving notices, which, they are required to do by law for certain association activities. Annual Meetings, Special Assessments, and Collections procedures all come to mind as reasons that the Board needs your personal information. Along with that need for information comes a duty to protect that information as well. The Board may not disclose your personal information simply for the sake of doing so. In these days of data and identity theft it is more important than ever that condo Boards have policies in place on how they store and what they do with the data they collect during the course of conducting association business. It is also important to offer unit owners an “opt-out” feature for things like resident directories and community websites. They may use your name but you can certainly request that they withhold information such as your phone number and anything else that may be used to identify you. I know of some associations that will allow only first initials of residents so as they do not tip off that an inhabitant is male or female. This can be a particularly good policy in an area where crime or sexual predation might occur. There is no reason to tip off a criminal that a single woman is the only unit resident. If you feel your Board has disclosed more than it should or has misused your personal information you would be well advised to seek counsel from a qualified attorney to see that corrective action is taken. All the best!

Fines for Children Playing in Condo Parking Lot

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K.M. from Hartford County writes:

Dear Mister Condo,

Can the condo association restrict the use and give a fine to a condo owner for children playing in the condo parking lot?

Mister Condo replies:

K.M., as long as the association has the rule against playing in the parking lot, they can certainly enforce that rule. Of course, the rule can’t discriminate against children. The rule must ban playing by anyone and should likely define “playing” as well. There are many reasons that association don’t allow playing, skateboarding, bike riding, etc. in their parking lots and that is safety and liability issues if someone gets hurt. Parking lots can be very dangerous places in high density housing areas as residents move in and out of usually tight parking spaces. The rules are generally enforced by the Board issuing a warning and request for the unit owner to appear before the Board, followed by a fine if it is determined that the unit owner did violate the rule. The rule cannot single out children or any single unit owner and it must be uniformly applied so that no discrimination takes place. That being said, there are safer and better choices for play areas than condo parking lots. Stay safe and all the best!

Questionable Deck Listed in Plat and Plan of Condo Conversion

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S.C. from New Haven County writes:

Dear Mister Condo,

I bought my condo 10 years ago with an attached deck. The unit was new, since it was a conversion of a townhouse into a condo. In the description of the unit, and in the plat and plan, the deck is shown in my unit. It comes out that the previous owner of the town house built the deck without permission. My question is the deck still illegal even if is reported in the plat and plan of the condo conversion? Thanks!

Mister Condo replies:

S.C., I love a good challenge. I have to say I was challenged by your question as it is the first plat question I have ever received. Even though I am not an attorney, I know quite a few who practice in this area of law. Here is what one of my attorney friends had to say:

“The answer will depend on what the governing documents say and possibly the details of the “illegal” construction.  Sometimes the declaration will say that the written definition of which parts of the property are owned by whom will trump the maps and plans.  You should talk to the lawyer who handled your closing about whether the prior owner may have some responsibility to you, or a condominium lawyer about whether the association can take action against you now.”

That sounds about right to me. It isn’t that you’ve done anything wrong here, S.C.. It just sounds like you will need some legal guidance to get this unpleasantness behind you. Good luck!

Secondhand Smoke from Downstairs Condo Neighbor

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J.G. from Middlesex County writes:

Dear Mister Condo,

My son has cancer and can’t stand the smell of cigarettes, but the tenant below me smokes under my deck and the smoke comes in my unit. I have asked them to smoke away from the units they say no what should I do?

Mister Condo replies:

J.G., I am sorry for your son’s cancer and your careless neighbor’s behavior. The battle over secondhand smoke at condominiums, apartments and other areas where people live closely together has raged on for many years. I had a similar questions asked last year and dispensed the same advice I will be giving you. You can read the previous question and answer at http://askmistercondo.com/how-to-stop-secondhand-condo-smoke/.

In a nutshell, there are two steps you should take. You can petition the Board to make smoking not allowed on the property. This is generally quite difficult because the folks who smoke will certainly fight the measure. However, in Connecticut, the law may be on your side.  There are specific steps you and your Board can take to ban smoking the right way. The CT Department of Public Health has published an excellent guide to help you along. Point your browser to their website at http://www.ct.gov/dph/cwp/view.asp?A=3137&Q=486714 and follow their simple steps. Of course, owners that are smokers are likely to oppose the action so don’t expect a simple passage of the new rule. There will be debate, likely heated, about what can be done in the privacy of one’s own home. However, with perseverance, I believe you can create a smoke-free environment for all residents. Good luck!

Insurance Money Used By Board for Common Fee Delinquency

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N.K. from Hartford County writes:

Dear Mister Condo,

The building insurance paid out a claim due to a water leak from pipes. The board kept part of the money assigned to my unit due to unpaid common charges, I cannot find in the by-laws where it says they can do this. Is this legal? What are my options?

Mister Condo replies:

N.K.,

I am sorry that you find yourself in a situation where you have unpaid common charges. I am also sorry to learn that you had a significant enough loss that an insurance claim was necessary. I am not an attorney so I checked with a friend who is an attorney to see what advice might be offered to you. Here is what the attorney had to offer:

“Generally the law allows anyone holding money for someone else to “set off” debts owed before paying over the rest.  There is probably nothing in your bylaws about this, so you would need to talk to a lawyer about how this legal principle applies to the specifics of your situation.”

So it looks like your association may have been well within their rights even if your by-laws are silent on the subject. That being said, I think you are well advised to seek legal counsel if you feel you have been wronged. On the positive side, I am guessing you are no longer in arrears with your common fees. It would be proper of you to keep them current as the association relies on you and all of your fellow unit owners to pay your fair share of the common fees so that they can conduct the business of the association. All the best!

Improper Condo Governance Charged

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J.S. from New Haven County writes:

Dear Mister Condo,

Our Association BOD has announced unilaterally and unanimously at a Community meeting that all of their discussions on Association issues and business are now being held informally. No face-to-face meetings to discuss matters which require a quorum of Board members to be in attendance. Specific purpose is to discuss and take action on issues without any input or even awareness of the Council of Owners. One BOD member has said publicly that our Association is not a democracy. This is all in the face of the Open meetings rules to encourage BOD transparency rules contained in the HOA’s By-laws and resolutions. There are no public notifications or any meeting notes provided owners from these meetings. Votes, we have been told are also being conducted almost exclusively via email as is much of the discussions. Is this something the Board is allowed to do? Don’t the rules and by-laws prohibit this style of leadership? At the last quarterly meeting, owners were told by a member of a buildings and grounds committee that a $12,000 contract has been approved and signed by the BOD and work is scheduled to begin on building an extended concrete area outside building area plus complete landscaping with the work beginning in the next 30 days (4 weeks prior to the next scheduled quarterly community meeting). Adding insult to injury, the Property manager reports the budget for the last month was $11,000 over the scheduled expenditures with no explanation as to why? What recourse or approach would you recommend taking to delay the outdoor beautification project? If the work is completed prior to the next open meeting, is there any course of action that can be taken prior to the work getting underway and the next meeting occurring? Thanks in advance for taking the time to read and provide options for what can be done hopefully prior to the work being started and before the next open community meeting.

Mister Condo replies:

J.S., Wow! You have a lot going on here! Let me try to break it down into a few key elements and offer some friendly advice. The Board is free to hold meetings as they see fit provided the Board members agree on the methodology. They can make the meeting format as informal as they like. They are also free to vote by email, teleconference, even carrier pigeon if they so choose. They are not free to operate in the dark and they must take minutes of all meetings which must be made available to the unit owners. For this reason alone, most Boards will adhere to a regular meeting schedule where proper notice of meeting is given and proper minutes of meetings are taken. The emails between Board members are part of the public record and must be kept as such, especially if votes are being held by email. Again, for this reason alone, many Boards will opt not to use email for such votes. Transparency isn’t just a good idea; it is the law. The Common Interest Ownership Act (also known as CIOA) outlines the rules and regulations for how community associations are governed in our state.

The specifics of how and why this new project is underway are likely known only to the Board. If it is something that enough unit owners are not in favor of, you should seek an injunction against the Board for taking the action. You will most likely need to hire an attorney to file suit and seek relief. This can be expensive for the unit owners as they will need to find the money to pay for the attorney to assist in the suit and the Board will likely hire an attorney to defend against the suit. If the Board has signed a contract, there may also be expense for breaking the contract. Weigh the pros and cons of such an action before you proceed. It might be less expensive to just accept the improvement than to fight it.

The larger issue here is one of Board training and proper community association governance. I am guessing that this Board is largely untrained and would likely benefit from some education, which can be found at the local Chapter of the Community Association s Institute (http://caict.org/). In fact, they are offering just such a training course very soon. More information can be found at http://www.caict.org/events/event_details.asp?id=534367. The other option is to get some new Board members. Rally the troops and come up with select the folks from within your community who would best serve as Directors. At your next Annual Meeting, simply elect new people who will do a better job of governing the association. If you can’t wait until then, you can call a special meeting of unit owners to remove the Board and elect new Board members. However, you will need to refer to your condo’s governing documents to see how and when to do that. It would be simpler to just elect new Board members at your Annual Meeting. Good luck!

Condo Guest and Tenant Policies Questioned

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M.B. from Fairfield County writes:

Dear Mister Condo,

Our condo association has recently changed the guest and tenant policies. If you have a family staying at your condo while you are not there, they can ask for proof of family relationship, an affidavit as to absence of payment. If leasing, you have to submit the age of the owner and any tenants, tenant employment history, 2 personal references, and if they so desire, an “in person” interview! Is all of this legal? I didn’t think you could be asked your specific age, only if you are over 18 and able to enter into a contract. They also are requiring 10 days notice to the board if I decide to have my brother stay in my condo. Power has gone to their heads!!

Mister Condo replies:

M.B., I appreciate your concern but I haven’t heard of your Board doing anything too extraordinary in your letter. In fact, it sounds to me like they are practicing due diligence and following the spirit of the rules and regulations of the association, which is exactly why most people buy into an association. They expect the Board to maintain, protect, and enhance their property values by adhering to a fairly straightforward set of rules and regulations, which the Board can vote to modify over time if it helps them do their job. Keeping track of who lives within the association’s walls is paramount to getting that job done. If the association has rules in place about what defines a family member staying at the condo for prolonged periods of time it is likely that they are trying to prevent unit owners from claiming that a tenant is a family member, when in reality it is just a tenant and the unit owner is trying to avoid paying charges or providing documentation for the tenant. “Family” certainly isn’t “visiting” the unit owner when the unit owner isn’t at the unit! As far as enforcing leasing regulations, it sounds like this Board is on top of their game. There are state and federal laws regarding discrimination but the Board is well within its rights to require all sorts of information about any potential tenant. I am not all that certain on why they require 10 days notice your brother stays at the condo but as long as it is a universally carried out procedure (all unit owners subjected to the same scrutiny) it is very likely within their rights as well. I hope this clears up some of these issues for you, M.B.. All the best!

Condo Board Facing Developer Transition Mess

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A.L. from New Haven County writes:

Dear Mister Condo,

I have just been appointed to the Condo board. We are to the point now that the sponsors have relinquished their board seats and basically left a mess. We still have their management company and lawyer. What should we do as a first step in these unchartered waters?

Mister Condo replies:

A.L., I am not sure what you mean by a “mess” but even in the best case scenarios the period of time when an association transitions from developer to unit owner control can be challenging. It will take a lot of effort and thought to protect your association from future problems. It may even take a bevy of professional help including a Property Manager, an attorney specializing in community association law, an accountant, and even a Reserve Engineer to help take you down the correct path to successful community association governance.

Mister Condo has a list of previously “asked and answered” questions from folks in your situation. Take a look at http://askmistercondo.com/?s=developer+transition and see what has been suggested for an idea of which path best suits you. Good luck, A.L.!

Dogs No Longer Allowed at the Condo!

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M.G. from New Haven County writes:

Dear Mister Condo,

When I moved into my condo, it allowed dogs. At the time I had a dog, so this was very important to me. The condo association has since changed it so that no dogs are allowed, except for those that were on the property at the time the rule changed. I now would like to adopt a new dog and the condo association has informed me that I am not grandfathered in as a unit owner, only the dog was. Can the board take away rights that unit owners had when they purchased the condo?

Mister Condo replies:

M.G., I am not an attorney so please consider my answer as friendly and not legal. For legal advice, kindly consult with a qualified attorney. In a word, “yes” the Board can make rule changes that prohibit new animals from being brought into the community. As the elected officials of the association, they are charged with the community’s governance and, having been democratically elected by the unit owners, have the authority to do so. However, as a unit owner, you also have rights, including the right to vote them out of office if they are not doing their job of representing the best interests of the association. You also have the right to request that they reconsider their position on allowing dogs at the condo. If you and enough like-minded unit owners encourage them to do so, they might just do that. My guess is that they created the rule change due to neglectful behavior of existing unit owners. Was there excessive barking? Were some unit owners not picking up properly after their pets? Was there an altercation between dogs or people on the property? Something made them decide to change the rule. It will take unit owner encouragement for them to repeal the rule. Good luck!