Monthly Archives: November 2014

Condo Board Member Bullying Fellow Board Member

R.G. from New Haven County writes:

Dear Mister Condo,

Are there any state or federal laws that govern Board conduct regarding treatment of a physically impaired Board member by other Board members? For example, if a person has a hearing loss and is ridiculed or negatively referenced in couched terms in Board business because of it, is there any recourse? Can any accommodation be requested by the impaired member of the Board that would help that person participate better at meetings? Should a complaint be made? If so, how and to whom would be best? What if the rest of the Board and officers have been silent throughout this while one or two members are conducting themselves like this? Thank you.

Mister Condo replies:

R.G., that is a painful question you have posed. It is simply amazing to me that anyone, Board member or other, could be so cruel and insensitive to another human being. Needless to say, this is not a condo governance issue but rather a case of bullying or harassment. I am not an attorney but I would encourage you and the Board member who is being treated so abusively by these other people to seek an attorney’s advice regarding what steps can be taken to remedy the situation. My guess is that a lawsuit and, perhaps, even an arrest could be in line for the folks who have decided to harass or otherwise abuse the person with the hearing impairment. One place to start may be the State of Connecticut’s Commission on Human Rights and Opportunities (CHRO). This is the state organization that is charged with making sure state residents are not discriminated against. Their website is http://www.ct.gov/chro/site/default.asp.

From a condominium governance standpoint, these bullying Board members don’t sound like the kind of folks that are serving the best interest of the unit owners and should be voted out of office at the earliest convenience. If they are bullying this one individual, they may have a history of such behavior and I am sure the community can find better volunteers to fill their shoes. The Board members who witnessed this but took no action could have done something but have done nothing wrong, in my opinion. They were under no condo governance obligation to do anything and may, in fact, be victims of bullying by the offenders as well. There is likely nothing in the condo’s governing documents that deal with this issue as it is a legal issue outside the bounds of community association governance. So, too, is the obligation of the association to provide an environment for the impaired Board member to better participate. Ideally, the Board would address such an issue as it appeared. To date, it would appear they have done nothing. Again, the condo’s governance documents are very likely silent on the issue.

I hope your community can end this abuse and get this ugliness behind it. I wish you a more positive experience moving forward. All the best!

Changing a Limited Common Element to a Common Element

A.B. from Fairfield County writes:

Dear Mister Condo,

Our Board wants to change the stoops and steps from a limited common area to a common area which would make the association and home owners responsible for repairs and replacements. My question is: Does this need to be voted on by the whole community or can the Board vote to change it on their own?

Mister Condo replies:

A.B., there are very particular procedures for making such a change. My advice is for the association to consult with a qualified community association attorney before making such a change because a legal misstep here could cost the association a lot of money in the future. I reached out to one such attorney and asked for an opinion. Here is what the attorney had to say:

“Changing a limited common element to a common element available for use by all of the units typically requires amending the declaration by two-thirds vote of all of the owners plus the consent of the unit owner or owners to whom the limited common element is assigned.  However, your declaration may specify a different procedure or more stringent requirements. Your association should consult with an attorney before pursuing this change.”

Sounds like good advice to me, A.B.. Good luck!

Condo Snow Removal Causes Condo Debt to Pile Up

B.J. from Middlesex County writes:

Dear Mister Condo,

Our condo board has decided not to do an assessment for the overage in snow plowing last year and instead has opted to pay the company a little at a time. Our HOA is now operating in the red because of this decision which will affect my ability to sell my unit. We are approaching the winter and I am concerned that we will get even further in the red. Shouldn’t the assessment be levied automatically by the board so that we don’t operate in the red?

Mister Condo replies:

B.J., ah, winter in Connecticut. While it can be beautiful, more often than not, we get walloped with inches and feet of snow. Getting rid of snow is a major expense for condos in our region and many experience the same financial burden that your community has suffered. For the most part, the Board has discretion in how it conducts the business of the association. Removing the snow is required. How they pay for that removal is up to them and the vendor providing the service. I am surprised that the snow removal contractor is allowing the association to make payments over time. My experience has been that if you don’t pay, they stop removing your snow. That is a pretty effective way to make sure the client pays in a timely fashion. If the association has incurred so much debt that it is affecting potential buyers from purchasing or preventing mortgage companies from making loans to prospective buyers, then the Board need to evaluate if incurring this debt is truly in the best interest of unit owners. Board members are elected to serve the best interest of their fellow unit owners. When they don’t do that, they tend to be voted out of office. Perhaps you know of fellow unit owners who are experiencing the same issue as you. If so, it is time to band together. Otherwise, you will need to abide by the decisions made by the Board as they are the democratically elected representative of you and your fellow unit owners. Hopefully, this winter won’t be as severe as past ones. Here’s hoping we only get enough of the white stuff to make our holidays bright but keep our snow removal budgets intact.

Condo Board Voting on Items Not on Agenda

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A.D. from Hartford County writes:

Dear Mister Condo,

Our board has monthly meetings. They open with an Executive Session for 30 minutes. After that the open meeting starts. Sometimes they have another Executive meeting at the end. Recently, I attended one of these meetings. Residents were dismissed as the board went back into executive session. A month later, in reading the minutes, I found that they had an open meeting after the executive session. Presumably to vote on the topic of executive session and then went on to discuss a new landscape plan. I think this “second open meeting” was inappropriate. It appears to be effectively a closed meeting being called open. As a resident during the first open meeting we were dismissed and not told that the meeting would be reopened an hour later. The topic discussed was not on the agenda so there was no way for residents to know or guess that there was to be a “second” open meeting. This seems wrong, what do you think?

Mister Condo replies:

A.D., you are correct that the order of business is incorrect. Any vote that doesn’t fall under Executive Session should be made in an open meeting with unit owners welcome to attend if they wish. As you know, they don’t get a vote or a say in the proceedings but they are welcome to observe. Since the unit owners were dismissed, the portion of the meeting where voting would be held was effectively ended. A larger concern is the lack of the item being included on the published agenda. As you know, the Connecticut Common Interest Ownership Act (CIOA) requires that items to be voted on need to be included on the published agenda. This avoids “surprise” measures that the Board may vote on that haven’t been made known to the unit owners. All that being said, there is a measure of practicality that also needs to be considered and that is: Were the unit owners adversely affected by this vote or procedure? If so, there is a case to be made for challenging the Board’s actions. This is most commonly done by suing the Board. If, for instance, a special assessment were levied against unit owners in this fashion, a lawsuit might be worthwhile. On the other hand, if all the Board did was select a new landscaper and award a contract that was similar to the previous contract, no action may be necessary but the Board should be reminded that they need to conduct open meetings and not hold votes on items not on the published agenda. If the Board is unwilling or unable to comply then it is time for a new Board, provided there are other suitable and interested volunteers from within the community who are willing to serve. Perhaps it is time for you to run for the Board, A.D.? All the best!

Veteran Condo Owner Abused by Neighbor!

J.K. from Fairfield County writes:

Dear Mister Condo,

Thank you for your professional opinion on the Condo Parking Lot Obstacle Course problem. I also have another question about parking spaces. On purchasing the condo in 1987, two spaces were clearly marked with my condo unit number. Now, a disgruntled, much younger and newer unit owner wants my spaces reassigned to keep for her own use. Is this a common and legal action? I am a senior citizen and Korean War Veteran. I don’t need this harassment.

In March 2014, I found another condo unit owner parked in one of my clearly marked assigned spaces. Upon the owner exiting the car, I politely asked her to move the car, three times, to her own parking space. She said that there was broken glass in her space, so she decided to use my space. Turning her head away from me she then proceeded to walk to her condo unit, without saying another word. I then parked my car in my remaining space close to her car. A few minutes later, I received a threatening phone call that was recorded on my answering machine, telling me to move my car from my space so she can get into her car from the driver’s side. The passenger side was unobstructed to enter. A few minutes later, I happened to look out my condo window to witness her walking around my car with left arm outstretched and touching my car. It wasn’t until the next day that I noticed long scratch marks on the driver’s side, rear and right front fender. I then realized that she keyed my car in a fit of rage on condo property. I went to the police. The police came to question her and she denied everything. What recourse do I have? Do I bring suit to the condo association, her or what? I have photos of the damage and the recording. The car has since been repaired and painted.

Mister Condo replies:

J.K., thank you for writing again and thank you for your service to our country! I am sorry that you are having such needless problems with parking at your condo but I am here to offer some friendly advice as always.

Your deed to your condo very likely contains the information you are looking for. It is most likely that your parking spaces are assigned and included as part of your purchase into the association. As such, they are yours to use as outlined in the condo documents. If someone tries to take them or the Board tries to reassign them, you would very likely be able to sue to have them left alone or returned. You’ve owned your unit for almost 30 years. I can’t imagine why anyone would think they can simply steal or reassign your parking spaces.

As for the behavior of your neighbor, all I can do is shake my head. You have described borderline psychotic behavior and you may be dealing with a disturbed individual. My advice is to not confront her again as she has already exhibited extremely anti-social behavior and will likely only escalate over time. You did the right thing by calling the police. Since she was dishonest with the police and they chose not to pursue it further, your only other option may be to speak with an attorney to see if you can press civil charges against her for damage to your property. Of course, if you have insurance, it may just be simpler to process a vandalism claim and get your car repaired. You can and should document her behavior that is in violation of the rules and report each and every occurrence to the Board or Property Manager. Also, continue to document the violations. Photo and audio evidence are going to be on your side if it comes to “he said/she said”.

It is shameful that you have to live with such a difficult neighbor but that is the reality of how too many people behave these days. Where you deserve respect and thanks for your service, she will disrespect you and, likely, the rules of the community. There is no cure for incivility, J.K.. We must rise above it and live a life that we can be proud of, regardless of how others conduct themselves around us. All the best!

Condo Insurance Coverage Questioned by Condo Manager

R.M. from New Haven County writes:

Dear Mister Condo,

I am the president of the board at my condo. We had purchased insurance almost 10 months ago when the manager informed the board that it has a title of “business owner” on the common declaration along with form of business: association. On the second page of the policy it states residential condominiums. She does not like the agent and would like to change companies. I don’t see why we should change. The coverage is good at a lot less expense than our previous policy. Is there an issue with the title? She said they may not pay the claims. I don’t agree and would appreciate your advice.

Mister Condo replies:

R.M., congratulations on volunteering to serve your association and serving as President of your Board. I salute your service. Insurance for condominium associations is highly specialized and while I appreciate your sentiment of saving money, I am a bit concerned that your manager is raising a flag and questioning the validity of the insurance and the potential liability for the association if claims were denied because the wrong declarant were listed on the policy. Fortunately, this is easy to inspect and remedy if necessary. I am not an attorney nor am I an expert on insurance. For those specialized skills you should consult with a qualified attorney who can advise you on the legality and the liability to the association with the existing policy. There are a number of agencies in Connecticut that specialize in community association insurance products. You can find a list of those professionals at the Connecticut Chapter of CAI website (caict.org). If you are already doing business with one of these agencies, you are very likely fine to continue to keep them. If you have selected to insure with a different agency who has not decided to join or take training from CAI, you would be well advised to at least speak with one of them and ask for a review of your policy to determine if you are properly protected. Generally speaking, insurance rates have gone up year after year for many years. Flood insurance rates, in particular, have spiked. Many associations have opted to purchase insurance with higher deductibles or coinsurance amounts to keep their premiums low. That is fine as long as the association understands that it may be taking on more risk and may need to bolster its Reserve or Operating Funds to cover any potential loss. This is the area where a qualified community association insurance expert can be a major ally. Nothing sours the sweetness of savings like the sourness of inadequate coverage when a claim is made. Be sure you are serving the best interest of your association by having adequate coverage in place at the best rate you can find. All the best!

Condo General Manager or Condo Control Freak?

M.M. from Litchfield County writes:

Dear Mister Condo,

Our general manager insists on meeting every condo purchaser and renter before he approves the transaction. This seems illegal to me. He is a control freak but I think this goes too far.

Mister Condo replies:

M.M., it may go too far or it may not go far enough. Let me explain. The General Manager is an employee of the association. As such, he reports directly to the Board and may carry a considerable amount of responsibility in fulfilling his duties. I question whether or not he has the right to “approve” the purchase transaction but he may be fulfilling a responsibility of the association’s governing documents by requiring an application form be submitted. Depending on the rules of the association, it is possible that a face to face meeting is also required. This is a little more common in co-operative properties than in condos but it is not unheard of. It can even stave off potential problems. For instance, if your community was age-restricted (55 and over) and an applicant who is age appropriate announces in the interview process that he has his grandchildren spend summers with him and that is against the rules of the association, the general manager is actually doing both the applicant and the community a favor by conducting the interview before the purchase is made and it becomes a problem.

Now, if your community has no such rules and the General Manager is simply being a control freak and not representing the best interests of the community, you should complain to the Board and ask that he be replaced. However, my experience has shown me that concerned General Managers generally make for outstanding communities. Be sure that his performance is hurting the community before making a complaint. You might just find that what seems like “control freak” action to you is just an experienced professional applying his skills at making sure a person who wouldn’t properly fit in doesn’t enter the community. All the best!

Larger Condo Unit; Larger Common Expense

A.S. from Hartford County writes:

Dear Mister Condo,

I am and have been concerned how the monthly condo fees are determined. More importantly, I have been concerned about the manner in which special assessments are determined for the upkeep of common access grounds, buildings, etc.. Our association bases both monthly fees and special assessments on the square footage of the owner’s individual condo. I have told the board that this is patently unfair as the owners of the largest condos (there are 4 of us) pay considerably more each and every time there is a raise in monthly fees, or in the case on special assessments. Their answer is “well, you will get more when you sell your unit”. Are there are any regulations concerning this unfairness in either of the examples I have stated?

Mister Condo replies:

A.S., yes, there is but I don’t think you will like my answer very much. All common fees are based on a formula outlined in the condominium documents. You have described the “percentage of unit ownership” to a “T”. There are many things that can be used to determine the percentage of unit ownership but it sounds to me that your association simply took the total square footage of all units and then divided by the square footage of the individual units. In the case of you and your three fellow unit owners who own more square footage, you will always pay a larger share of any financial burden than unit owners with less square footage. The Board’s response that “you will get more when you sell your unit” is not necessarily true because market conditions dictate what your unit will be worth. A better response is that during the lifetime of use of the unit, you will enjoy more livable square footage than your neighbors, and for that privilege, you will shoulder a larger burden of shared common expenses and special assessments. Since the percentage of unit ownership formula you are describing is very likely part and parcel of the condo documents you and your neighbors agreed to when you purchased your unit, your argument of unfairness holds no truth. It was clearly identified as part of what you purchased. You are paying your share of the common expense as you agreed when you purchased your unit. No more, no less. Hope that explanation helps. Best wishes!

Who Can Use Condo Handicapped Parking Spaces?

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B.B. from Fairfield County writes:

Dear Mister Condo,

Can anyone with a handicap parking permit use any handicap parking space in an unassigned parking lot?

Mister Condo replies:

B.B., the short answer is “it depends”. Most condominiums are considered private property so they are free to make their own parking rules. They must follow guidelines for fire lanes but other than that, they can pretty much do as they see fit. The initial developer is usually responsible for the parking lot blueprints which assign certain parking spaces to certain units and define guest, visitor, and, if offered, handicapped parking spaces. The Board is bound by the rules and regulations of the community which may or may not address the use of handicapped parking spaces. If the rules address their use, then the unit owners should abide by the regulations. The Board is also able to change the rules by adopting new rules, which is not uncommon if unit owners who have special needs make a request of the Board to do so. If a handicapped unit owner requires an over-sized vehicle such as a van to come and go, that owner may request a larger space, designated as handicapped for their use. The Board is under no obligation to grant this request but, if space allows it, I think most boards would try to accommodate the request. If the spaces are truly unassigned and the rules do not speak to who can and cannot use the handicapped spaces, it would be difficult to prevent any user from using the handicapped spaces. As I usually suggest, it is time to look at the governing documents for your association to see what rules govern the use of these parking spaces. All the best!

Injured at the Condo; Who Will Get Sued?

J.A. from New Haven County writes:

Dear Mister Condo,

I am a tenant who rents a condo from an individual owner. I had a guest visiting me. When she left, she fell through the stair and hurt her knee really badly. The stair gave out when she stepped on it. This is the second time it happened. The same stair gave out last year and my landlord had the association fix it. I don’t think he was a licensed contractor. My question is: can I get sued? This was my guest; I do not have renter’s insurance. My friend had to go to the emergency room because she got hurt pretty bad. Not only did her knee swell right up, but she also got cut by the screw that is now sticking out. I know she already contacted her lawyer. I feel horrible. I contacted my landlord immediately and asked her to put in a repair order ASAP. I’m concerned with someone else getting hurt. The stair is currently broken and has screws sticking out of the wood. I have children and we cannot use the front door. We have to use the basement door. I’m frustrated because this same thing happened last year. Thankfully, my guest did not get hurt too bad but, unfortunately, this time around there is a pretty serious injury that occurred. Please tell me what to do from here. This just happened today and I am a nervous wreck. Thank you!

Mister Condo replies:

J.A., it is never a good thing to hear about an individual getting injured because of poor or shoddy maintenance as you have described here. I am very sorry that your friend was hurt and I am very sorry for the stress that this situation has already caused you and is very likely to cause you in the not too distant future. I am not an attorney so please consider my advice as friendly. You are very likely going to need legal representation in this matter, especially since your friend has already contacted an attorney who is likely to bring suit against everyone involved, including you, your landlord, and the condo association where you live. Your lack of renter’s insurance could prove to be a costly mistake if you are deemed liable.

If there is any good news here, it is that the accident occurred outside of your unit. Depending on how the governing documents were written, this may mean that the stairs are owned and maintained by the association and not under your responsibility. Again, speak with an attorney if you are named in a lawsuit but if that is the case, it may be your saving grace. If these stairs are considered your responsibility, in any way, you can bet you will be held liable.

Assuming these stairs are not your responsibility, there is still the very real issue of you having your primary access to the unit denied because these stairs are not being properly maintained. Again, you may need to speak with an attorney and sue the association for not properly maintaining the stairs. Because you are a renter and not the owner, your course of action may be against your landlord, who in turn may need to sue the association. The bottom line is that you need to have safe and reliable entry and exit from your unit. What if there was a fire? How would you escape?

I wish you good luck in solving these problems, J.A.. The state of Connecticut has a website with lots of information about the responsibilities of your landlord. You can review them at http://www.jud.ct.gov/lawlib/law/landlord.htm. Any knowledgeable attorney can guide you through the process of filing a complaint if the repairs aren’t made timely. Hopefully, this second incident will open the eyes of the association. If not, the high dollar lawsuit that is likely to ensue will certainly get their attention. Good luck to you and your friend!