Monthly Archives: November 2014

Homeless Relative Making a Home in Condo Carport

J.C. from Hartford County writes:

Dear Mister Condo,

There is a relative of one of our home owners whom is homeless by choice and sleeps in her car in the homeowners’ carport for the winter. How can we stop this?

Mister Condo replies:

J.C., Yikes! That is most unfortunate. Homelessness is an epidemic all across the nation and condominium and HOAs are certainly not immune from the problem. I hope this person gets the help they need but I can understand the concern of you and your neighbors as to how best to address this issue. As I usually suggest, you need to begin with your condominium’s governing documents. My guess is that they spell out how the carport can and cannot be used. Clearly, the intention of a carport is to house automobiles. The documents may not explicitly spell out that people are not allowed to sleep in cars housed in the carport but your Board can add language to the documents to clarify the rule. I would recommend that the association consult with an attorney who specializes in community association law so as to make sure that the language used doesn’t discriminate against any one unit owner. The association doesn’t want to end up defending itself in a discrimination lawsuit because it targeted one unit owner. Whatever rule is passes needs to be universally applied to all unit owners. I am guessing that won’t be a problem unless other unit owners are sleeping in their cars in the carport.

I assume that this relative is aware of this person sleeping in their car. The bigger question for me is why aren’t they inviting them into their home to sleep? It seems awfully cruel to ask a human to sleep in a car and it seems cruel to offer only limited assistance to a relative who is down on their luck to the point they have become homeless, even if it is by their own choice as you have stated. The association has every right to insist that they sleep elsewhere and not on association-owned common ground. Good luck to this individual and your association!

How Can I Follow “Ask Mister Condo”?

L.H. from New Haven County writes:

Dear Mister Condo,

Can you tell me how I add my e-mail address to follow your blog? Thanks!

Mister Condo replies:

L.H., I am humbled that you would even ask. Thank you! Our website does produce a feed that can be subscribed to using any third party blog reading program. You can find these links at the very bottom of the page. The link to the page feed is http://askmistercondo.com/feed/. It doesn’t look like much without the blog reading software. These are fairly common to folks who frequent blogs and prefer a more straightforward reading experience. Feedly, My Yahoo!, and AOL Reader are some common ones. Alternatively, more and more internet users follow us on Twitter at https://twitter.com/askmistercondo where we post all of our daily questions and a good bit more. Facebook has also proven quite popular for fans. You can follow us on Facebook at https://www.facebook.com/AskMisterCondo and even chat with fellow fans. Thanks for the question. I look forward to hearing more from you!

Can Board Raise Common Fees So High as to Force Owners Out?

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J.G. from Litchfield County writes:

Dear Mister Condo,

Can a condo board raise fees so high that owners are forced out?

Mister Condo replies:

J.G., common fees are determined by a number of factors. Some are within the Board’s control; most are not. The basic concept is that the Board reviews the known and likely expenses of the association in the upcoming year. For a really simple example, let’s say that a 100-unit association was likely to need $300,000 to operate for the year. Provided all units were the same and paid the same portion of fees, each unit would pay $2000.00 per year, or $250.00 per month. A budget is prepared and presented to the unit owners at the Annual Meeting where it is either ratified (approved by the unit owners) or rejected, in which case the previous year’s budget and common fee schedule is used. That doesn’t mean the Board cannot raise fees in the form of special assessments. In fact, if the approved budget and common fee schedule does not meet the demands of the association, that scenario is very likely. However, most associations have rules about how and when special assessments can be levied so, again, the Board must comply with the rules for levying special assessments.

Forcing unit owners out by raising common fees would be just about impossible for most Boards. Further, I cannot fathom a reason that they would want to do so. Boards are democratically elected volunteer leaders from within the community of unit owners. They are subject to the same common fees as all other unit owners so they would suffer the same consequence. It is much more likely that costs have escalated and the Board is simply passing those costs along to the unit owners. For instance, I know of some shoreline communities where flood insurance premiums have skyrocketed causing common fee increases in excess of $1000 per year per unit. That equates into just less than a $100 per month increase! I suppose an uninformed unit owner might think that the Board was indiscriminately raising fees but the reality is that rising costs were the real culprit. I suggest you investigate what the true cause of the fee increase is. If it turns out the Board has just randomly decided to raise fees, it is time for a new Board. But, if, as I suspect, the reason for the fee increase is escalating costs, at least you will know why the fees were raised. That may not stop unit owners from having to sell but the blame can be placed where it properly belongs, and not on the Board who is simply reacting to the harsh reality of increased expenses for the association. All the best!

Self Managed Condo; Self Managed Board President

B.K. from New Haven County writes:

Dear Mister Condo,

Is it legal and/or appropriate for the President (a voluntary position held by a NON owner) of a self-managed mid-sized complex to spend allocated funds from an approved budget without board approval? Example: The current president is spending funds without board approval on just about anything & everything. He is also submitting bills for repayment on “cash” deals also not approved or voted on by board members who are unit owners.

Mister Condo replies:

B.K., I am guessing you already know the answer to the question, but in a word, “NO”! I am sorry that you and your community find yourself in this perplexing predicament. I am a bit confused as to how someone who isn’t an owner has been elected by the Board or community to serve as the president. As I usually advise, you need to take a look at your condo documents that clearly outline the governance of the association, including who is eligible to serve on the Board and how the officers of the Board are selected. Generally speaking, the unit owners elect the Board members from within their own ranks, meaning unit ownership is generally a requirement to serve on the Board. The democratically elected Board then selects officers from amongst its members. This is not always the case but unless your documents allow an outsider to serve on the Board, the person serving as president may not even be eligible to serve on the Board, let alone act as president.

For the purposes of this discussion, let’s assume that your by-laws allow for an outsider to serve on your Board and that this person was elected by the Board to serve as president. Since you are self-managed, it is not uncommon for the Board and/or the president to have some discretionary control over the association’s money. This is both practical and necessary to conduct the business of the association. Bills need to be paid; goods and services need to be purchased; and contractors need to be hired and paid. However, unless the Board has charged the president with complete control over all such things, the Board has a say in how much discretionary expense can be made (usually $500 or less) and what things can be purchased with association money. Reimbursement for cash expenses is allowed as long as full receipts are provided and the items paid for with cash were part of the expected purchases for the association.

Self-managed condos face interesting governance challenges. A strong Board is needed to handle the day-to-day duties of running the association and the long-term duties of fiscal responsibility and accounting to the association members. It would appear to me that the Board needs to take a look at their policies to see if there is room for improvement. From what you have described to me, there would appear to be a rather large room. Keep in mind that you haven’t described anything specific here and I am not saying that your Board president has done anything wrong or illegal. As you mentioned, he is a volunteer and the community should be grateful for his service. He may be doing his duty as he sees fit and the Board may be thrilled that he is doing so. That being said, in a self-managed community such as yours, it is very important that the Board have as many safeguards in place as possible to assure unit owners like yourself that your common fees are being used appropriately and as intended. Best wishes!

Can We Change Our Condo Fees?

W.B. from Litchfield County writes:

Dear Mister Condo,

Hello, Mr. Condo. I live in a community with 60 units. Condo fees have always been split evenly; all 60 units pay the same fee. Unfortunately, almost every unit has a different square footage. Someone on the board continually brings up that she should be paying less as she has less square footage and keeps proposing the fees be changed to include this. My question is, in order to change what condo fees are based on does there have to be a unanimous vote among owners legally? I believe this to be the case but am unsure. I see nothing in the docs that help with this issue. Is something of this nature covered by CT condo law or is it still within each association’s bylaws differing between communities? Thank you for your time and insight.

Mister Condo replies:

W.B., I am not an attorney so please consider my advice as friendly and not legal. If, in fact, your association decides to revise its common fee schedule, I strongly encourage you to seek guidance from an attorney who specializes in community association law because the consequences of doing it improperly could be disastrous. Common fees are typically determined by the “percentage of unit ownership” formula. It is unusual for units of varying square footage to all pay the same common fee and I can see where folks with smaller units feel that they are being slighted while the folks with larger units are benefitting from the arrangement. However, the percentage of unit ownership formula is not based solely on square footage. Items like unit desirability (water views, ground level entrance, etc.) can all go into the formula. The documents clearly spell out this formula. Even something as simple as all units paying the same, as is the case in your condo, can be the rule of the land.

Changing the formula is most unusual and will certainly require a vote of all unit owners. Again, your documents should spell out what is required but there are several scenarios to consider. It may require a 100%, unanimous vote of all unit owners and even third-parties who hold interest in the property, i.e. mortgage firms. After all, they based their decision to lend money based on the common fee structure in place at the time. It may require a majority or supermajority of unit owners to agree to the change.

A change to the common fee structure will require a good bit of documentation and will undoubtedly cost the association a substantial amount of money. I can see where owners of units with less square footage seem slighted but my advice is to leave well enough alone. Unit owners knew exactly what they were getting into when they purchased into the community. There should be no expectation that their share of common fees should change, regardless of the square footage of their unit. The difficulty and expense of making the change is very likely not going to be worth the cost and effort. All the best!

Handicapped Visitor Parking Versus Paid Condo Parking

C.B. from New Haven County writes:

Dear Mister Condo,

I live in a 200+ unit condo with 1, 2, or 3 garage assigned spaces. Condo docs specify all residents must park in garage; extra cars need to rent in garage. We have an 80-unit “visitor only” parking lot with 6 handicap designated spots. I have lived here over 20 years, am a paraplegic and 6 years a former trustee. The new chairman has the opinion that all people with handicap plates or placards can park in guest only parking and not have to rent in garage. Closest parking lot space is further distance (over 100 feet) than any underground garage spaces reserved or trust owned. Is he right?

Mister Condo replies:

C.B., I am not an attorney so if you are seeking a legal opinion on this matter, I must suggest you speak with an attorney. But if you are just looking for an opinion, I’ll gladly offer mine.

Condos can be a bit tricky when it comes to how much and where handicapped accessible parking is made available. Unless the buildings are used by folks outside of residents, the grounds are generally not subject to the Americans with Disabilities Act (ADA). They are considered private property and don’t have to conform to that particular law. However, they do have to comply with Fair Housing and it sounds to me like they are doing so. If a handicapped resident made a written request of the Board to park in guest parking because it was closer to their entrance, I can see where the Board might grant that request. If the handicapped resident is simply trying to avoid paying a garage fee by parking in the guest lot and the Board has approved the parking arrangement, it would seem to me that there is no issue either. If the Board is allowing just this one handicapped individual special treatment and denying others the same treatment, then a foul has been committed and a lawsuit would be the likely remedy.

Condo Board Refuses to Mandate Older Water Heater Replacement

F.B. from New Haven County writes:

Dear Mister Condo,

I am recommending that my condo board make mandatory periodic replacement of in-unit water heaters. We had a few leak causing water damage to surrounding and lower level units. My board said they cannot make it mandatory as a preventative item. Is that true? Have other associations made the water heater replacement mandatory after a certain number of years?

Mister Condo replies:

F.B., yes, other associations have mandated the replacement of aged water heaters after a certain number of years and for good reason. Revisions to the Common Interest Ownership Act allow insurance companies to deny claims on outdated equipment. That has forced numerous associations to revise their policies regarding scheduled maintenance and replacement on common wear elements, even those inside of individual units and owned by the unit owner. The lesson is learned the hard way, more often than not, when the Board puts in a claim and the insurer denies the claim based on the age of the faulty element. If that hasn’t happened at your association yet, there is still time to avoid the “school of hard knocks” method of learning. Your Board has the power and authority to publish a full list of items that unit owners are responsible for maintaining and replacing on regular intervals. They also need to inform unit owners that the consequences for not doing so can be severe. For instance, if a unit owner refused to replace a water heater that later failed, they would be on the hook for the resulting damage. That could be thousands of dollars to the unit owner, especially when neighboring unit owners are forced to sue to have their damage repaired. Instruct your Board to work closely with the association’s insurer to make the additions necessary to the by-laws to protect the association and the unit owners within. Best wishes!

Condo Board Member Passes Away; No Agreement on Replacement

N.T. from Florida writes:

Dear Mister Condo,

We have a 5 member board and one has died; we cannot agree on a replacement. It is a 2 to 2 vote. Our election is not for 5 months, what do we need to do?

Mister Condo replies:

N.T., I am sorry that you have lost a Board member. I am sure that the death of a neighbor and volunteer has upset many in your community and I offer my condolences to your community and the family of the Board member who has passed.

As for the governance of your community association, your by-laws spell out how to handle the loss of a Board member. The fact that the Board has not agreed on a suitable candidate is unfortunate but it really doesn’t need to change anything. Generally speaking, the remaining Board members can appoint an interim Board member but if the Board doesn’t have a majority of members agreeing on the candidate, I would simply not try to select a replacement. The Board can continue to function as a 4 person Board until the election in 5 months. That may lead to some other split votes where action cannot be taken until the 5th Board member is elected but it is unlikely that the 4 person Board would disagree on everything that comes up for a vote between now and then. After the 5th Board member is elected, it is back to business as usual. All the best!

Board Action Required to Add Condo Entrance for Disabled

J.G. from New Haven County writes:

Dear Mister Condo,

Can the board vote not to make doors and the ramp in building accessible for disabled people?

Mister Condo replies:

J.G., the short answer is “it depends” and what it depends upon is a few different things. If the building has any other function than to house residents, it may be considered private property and not subject to the Americans with Disabilities Act (ADA). If there were general public access required to the building like a club house that was rented out or a gymnasium where memberships were sold, then the building would have to comply with the ADA and have accessible entrances.

If individual homeowners make a request of the Board to have an entrance for a disabled resident, the Board needs to review the request and then decide whether or not to grant the request. In most cases, the Board would have to grant the request as a reasonable accommodation. However, the Board is under no obligation to pay for the disabled entrance modification. In other words, the ramp, automatic door, etc. would be at the expense of the requesting homeowner. Also, the Board can assign maintenance and repair expense to that unit owner to make sure that the entrance continues to work. The Board would have the final say on the plans so a licensed contractor would have to be hired and then submit plans for the Board to approve before work could begin.

Ideally, the Board would simply review the request and weigh it against the number of residents who would benefit from a building that is friendly to folks with disabilities and the potential increase to property value for offering a disabled-friendly entrance. If the benefits outweigh the cost it would make perfect business sense to install and maintain a disabled-friendly entrance system. As the population ages and mobility challenges become more common, that might be the right path for the Board to take. My advice is to ask nicely and see what action the Board takes. If the Board denies the request outright, it might be time to seek legal counsel and see what outcome that brings. Good luck!