Monthly Archives: December 2014

Condo Leaky Pipe Draining Insurance Resources

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V.B. from Fairfield County writes:

Dear Mister Condo,

What are the laws concerning insurance? We currently have an issue where a leaky pipe from one condo caused damage in another unit. Is the unit owner responsible or the association? What makes that determination? Thank you!

Mister Condo replies:

V.B, back in 2010, the Connecticut legislature passed an update to the Common Interest Ownership Act (more commonly referred to as CIOA, pronounced like Iowa, with a “K” at the beginning). There were many updates to insurance regulations included as part of the law revision. Liability for interior condo damage was certainly affected. Claims that were simply handled by association insurance in the past came under closer scrutiny and associations were forced to either adopt maintenance standards for items that routinely wear and break such as water supply lines, water heaters, toilet supply lines, and such. If the association didn’t mandate and adhere to strict maintenance standards for these wear items, the insurer could reject the claim. That’s where your situation comes in.

If your association listed the item that broke as a routine wear item and no corrective action was taken by the unit owner, the unit owner may be on the hook for the damage or able to make a claim on his personal homeowner’s insurance policy (HO-6, here in Connecticut). If the item was not listed as a required maintenance item, the association’s policy may cover some of the damage but not necessarily as the insurer could still question how the leaky pipe began to leak. Was it damaged by the unit owner? Had it previously leaked but wasn’t properly repaired? Did the unit owner modify the plumbing without using a licensed contractor? The battle could go on and on.

Cases like this routinely require the intervention of the association’s insurer and/or attorney. Ideally, the unit owners involved in the water intrusion damage can each file claims against their own HO-6 policies. They may be out deductibles but that is just the nature of insurance. If they seek relief against the association, it is time to get the attorney involved.

Condo Board Allowed Unit Owners to Not Pay Common Fees!

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D.A. from Washington, D.C. writes:

Dear Mister Condo,

This is a D.C. issue. My condo association was run for years by the condo association, which didn’t bother to go after association payments from people who didn’t pay. It also didn’t get around to repairs until forced to do so. I had to file a lawsuit a few years back to get a leaky roof repaired. Now, the condo is run by a management company with a D- BBB rating. It neglected to pay a water bill, and our water was cut off for a couple of days. Now, I have a leak again that is not being taken care of. The condo is in D.C. and the management company is in Maryland. The condo association is not registered in D.C.. The management company refuses to tell me the name of its registered agent, and I’m trying to find out whether it is in fact registered here in D.C.. Please advise.

Mister Condo replies:

D.A., you have a lot of issues at your condo, to be sure! However, it is not a D.C. only issue I am afraid to say. The real problem here is a lack of a Board of Directors to step in and correct all of the issues which very likely stems from a lack of desire to increase and/or common fees which are the lifeblood of the condominium and the reason the Board can only attract a management company with a “D-” rating from the Better Business Bureau. If you owned a top-rated management company, would you want to manage such an association? Not too likely.

I think you have been on the right path in the past when you have brought suit against this association in the past. As is always the case in such scenarios, money is the true culprit. The association is run by the Board of Directors, not the management company. In fact, the management company works for and reports to the Board of Directors. The Board is tasked with making sure that ALL association governance practices are being fulfilled, including collection of common fees by unit owners who are delinquent. That includes placing liens and foreclosing on unit owners who are in arrears. By the way, if any of the Board members are in arrears, your governing documents likely requires them to be removed from the Board.

D.A., you may be a good candidate to turn this association around. You understand the problem and are eager to work towards a solution. Why don’t you run for the Board and find a few like minded unit owners to join you. My guess is that you could get the association back on track financially in short order. After that, it is time to recruit a property management firm that will implement the desires of the Board and keep those common fees flowing. After that, focus on building a healthy Reserve Fund so that there is money available when the roof and other common elements need to be replaced. It will be a challenge but you will be rewarded by living in a community you can be proud of. All the best!

Verbally Abusive Unit Owner Not Following Condo Rules

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P.M. from New Haven County writes:

Dear Mister Condo,

I’m on the board of our association. For the most part we have a very cooperative community. However, we have one unit owner who continually defies bylaws. He comes to the annual meeting and is belligerent, confrontational and just plain nasty. He parks in clearly marked no parking spots, let’s his dog off leash, refuses to submit required registration/unit info sheet and yet complains he’s the victim. Do we have to be verbally attacked during meetings? I get that some people get a little excited and that’s ok but this guy is brutal. Any tips on handling difficult owners?

Mister Condo replies:

P.M., the human condition lends itself to all types, doesn’t it? Community associations are made up of all types of people. For every association member who is pleasant, there is likely to be one who isn’t. Dealing with all of these various personalities can be a real challenge in an association meeting environment. It adds a level of people management to a volunteer leadership position that can be challenging enough without dealing with someone who is belligerent and nasty. Ideally, unit owners play by the rules they agreed to live by when they entered the community. From your description of this individual I am guessing he either never read the rules or couldn’t care less that he is in regular violation. It’s time to make him care and you do that by enforcing your association rules.

I would start with attempting to curb his rule breaking activities. If your association has a “fine” system in place and it is consistently and fairly implemented across the board to all unit owners and residents, I would begin documenting his violations, asking him to appear before the Board, and levying fines against him for each and every occurrence. If he fails to pay his fines you can always place a lien against his property. That may not get him to stop breaking the rules but it will certainly get his attention.

His behavior at meetings is another issue altogether. There is a difference between belligerent and nasty as opposed to verbally assaulting. If he breaks any laws, call the police and have him removed. No unit owner has the right to swear or make threats against anyone else. This isn’t a condo governance issue; this is a criminal matter for which the police should be called. As for keeping order at your meetings, may I suggest using Roberts Rules of Order? The process doesn’t allow for too much comment from unit owners except at designated times. If the unit owner refuses to keep quiet when not his turn to speak, you can ask him to leave. Again, the police may be needed to escort him from the meeting if he becomes verbally abusive and threatening. You should work closely with your association attorney to see what rights you have as a Board to ban him from any meeting where he exhibits this behavior.

So, you have a bit of a challenge before you, P.M.. If you do nothing, his abusive behavior will likely continue. It could even escalate into something worse where the verbal abuse becomes physical. I wish you good luck in correcting this behavior and bringing peace and order back to your community association.

Selective Enforcement of Condo Parking Rules

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S.H. from Litchfield County writes:

Dear Mister Condo,

My condo board seems to be selectively enforcing parking rules. The board has made it clear that condo owners may not use visitor parking for their own personal vehicles and have sent notices to some owners that do so, but the president and some others do not follow these same rules, stating that they were given permission by the board to not have to follow these rules. The problem is the rule does not provide for any exceptions, and unit owners are not provided with the reasons or criteria the board used in determining what and why these exceptions are granted, only stating they were given permission. Can the board just make what appears to be arbitrary exceptions to enforced rules?

Mister Condo replies:

S.H., in a word, “No”! If what you are saying is true, this Board could well find itself coming under a good bit of scrutiny in the not too distant future. Board members are volunteer members from within the community they serve. As such, they are subject to all of the same rules and regulations that all community members leave by. They are not members of the aristocracy who may exempt themselves from rules, parking or other, as they see fit. If they choose to enforce rules against some unit owners but not all, they have opened up themselves and the association to a discrimination lawsuit which could be quite costly to the community. Also, the Fair Housing Administration (FHA) does not look kindly upon associations that use discriminatory practices. A federal lawsuit could also be in their future if they don’t begin behaving properly.

I would alert the Board in writing that these practices are unfair and that they are breaking the law. If they do not cease this behavior you should get together with fellow unit owners and seek relief by filing suit against them. Of course, a far simpler solution is to remove them from office, either at the next annual election or by an emergency meeting of the membership for the purpose of recalling the Board members. Of course, you need to have new volunteers from the community ready to step forward and serve for that to happen. I wish you good luck in resolving this potential nightmare within your association as soon as possible.

Water from My Unit Damaged Downstairs Condo Unit

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D.S. from Fairfield County writes:

Dear Mister Condo,

Last week at midnight, I had a downstairs neighbor come banging on my door complaining about a leak from his bedroom ceiling. My kitchen is located right above so he thought it must have been our dishwasher or sink. I inspected all the areas and didn’t find any moisture. The next night, the HOA management sent a plumber for an inspection. He didn’t discover any leaks in my kitchen area, either. He mentioned that another unit has had a leak for ten days already. I decided to open my drywall the very next day just to make sure that the water really wasn’t coming from my place. Lo and behold, I found a hole in refrigerator line. I fixed it right away and let the board and my downstairs neighbor know. Now the neighbor who had the leak first, wants me to pay for all the damages in his unit, including new carpet, floorboards, drywall, ceiling, paint, etc.. I think I acted proactively in the situation and found and fixed a problem that even the HOA’s contractor wasn’t able to solve. On the other hand, the neighbor in question didn’t contact any other owners to ask to check their water lines. The only party involved was the board who, upon inspection of his place, said to “wait and see what happens”. Because of that, 10 days passed without proper addressing of a pressing issue, in my opinion. Doesn’t part of responsibility fall on the owner of the affected unit? Shouldn’t he have taken steps to prevent damage from spreading, such as lifting the carpet, putting dehumidifier to help with the moisture, etc.? I want to be a good neighbor but I don’t want someone to take advantage of me. Isn’t not acting and trying to mitigate damages considered negligence in this case? He argues that time wasn’t of the essence in this case and has his best friend of 25 years, who is a lawyer, drafting up paperwork.

Mister Condo replies:

D.S., that leaking water supply line to your icemaker sure caused a lot of trouble; for you and your downstairs neighbor. I am not an attorney so please accept my advice as friendly and not legal. For a legal opinion, I strongly urge you to speak with a qualified attorney. That being said I have only your side of the story to comment on so here it goes:

The water supply line that failed was yours. The resulting damage is your responsibility. If you have homeowner’s insurance (HO6 here in Connecticut) you may be able to put in a claim for the resulting damage. Since the downstairs neighbor has already retained counsel to bring suit against you, I would recommend that you do the same. Regardless of how the leak was detected it can be clearly traced back to your unit and I believe you will be found liable for all of the damage that was caused, even if some of it could have been prevented by swifter action on the part of your downstairs neighbor. The actions of the association, while not all that helpful in resolving this issue, seem adequate to me and they are very likely not culpable for any of this. This may not be the answer you were hoping for but I think this is how it will play out over time. Like I said earlier, I would invest some money in an attorney to help you either defend against the lawsuit or work out a settlement with your downstairs neighbor. Hopefully, your insurance will cover most, if not all, of the damage. Good luck!

Condo Owners Verbally Assaulted ; Call the Police!

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L.C. from New Haven County writes:

Dear Mister Condo,

What relief are condo owners entitled to from the association or property manager in a complex when another condo owner with a history of violence repeatedly yells threatening and abusive comments at them on a regular basis?

Mister Condo replies:

L.C., I am truly sorry that you find yourself in a living situation where you have an out of control neighbor creating a hostile environment for you and your fellow unit owners. It is important to draw the line between community association governance and management, which is the role of the Board and the Property Manager, respectively, and local law enforcement, which is the purview of your local police department. Threatening and abusive comments or behavior should be reported to the police department for corrective action. It would seem to me that the individual in question should be arrested. Neither your Board nor your Property Manager has any authority over that type of behavior. Now, if that same individual is violating association rules, those violations should be reported to the Board or Property Manager for appropriate action. Best wishes!

In the Dark Over Condo Emergency Lighting

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F.C. from Fairfield County writes:

Dear Mister Condo,

Hi, Mr. Condo! I am in a condo where the lights in the common areas (i.e. stairwells and hallways) are affected when there is a power outage in my area, which happens quite often. The Association is aware of this situation. I assumed that the emergency lights would come on, but they are defective. When I bring this up to the association, they take a non-nonchalant approach and do not seem to care about the fact that the residents have to go through the common areas in pitch darkness. There are young children in this building, some with special needs who should not be placed in an unsafe environment. Is there any law that would push the association to act especially since it is involving children?

Mister Condo replies:

F.C., sorry to learn that you are living in the dark during power outages where emergency lighting has failed. I can imagine that it is quite terrifying to try to navigate stairwells and hallways in pitch black. I am not an attorney and I do not know of any laws that will help you out but your local fire inspector might be an ally in your cause to rally the Board to take action. Additionally, a quick call to the association’s insurer might be in order to alert them to the HUGE liability that is being created by not providing proper emergency lighting. You can imagine the lawsuit that will result in someone falling down an unlit stairwell during a power outage. The insurer is very likely to demand that the emergency lights be kept in working order. Does your town have a building inspector? This is one other person who would likely not be amused to get a report of emergency lighting not working properly.

As for the Board that is unwilling to take the corrective actions to fix such a vital part of the community’s safety protection program I have some additional advice. Vote them out of office at your earliest convenience! Maintaining, protecting, and enhancing the association’s common elements is their only job. If they can’t see how keeping the emergency lighting system function properly is a top priority then they need to be replaced with volunteer leaders who do understand. Perhaps you should run for the Board. It seems to me you have a good understanding of how this problem needs to be solved and the importance of taking swift action. All the best!

Condo Living With Marijuana Smoking Neighbors

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D.B. from Massachusetts writes:

Dear Mister Condo,

Greetings from western Massachusetts!

We are a self managed Property with over 300 Units, with approximately 10 Units per Building. Our Rules & Regulations prohibit smoking in any interior Common Area (hallways, Laundry Rooms, Clubhouse, etc.) We are not a completely smoke-free property. Lately a couple has been complaining about the smell of marijuana smoke that they detect at certain hours of the night. They claim this smoke has infiltrated their Unit and has caused adverse health effects.  Maintenance sealed their Unit door, and around holes for the Common Area heating.

The Property Manager sent out a memo stating that while Management made no judgments about the use of marijuana for either medicinal or recreational use, the smell WAS offensive to some residents, and they were asked that they stop. This was followed up by a phone call to many of the residents in that Building. Two of these admitted to smoking pot, one said he would stop smoking indoors, the other swears he does NOT smoke indoors. The weekend passed and yet again, the original complainant went back to Management stating that they continued to smell marijuana. They seem sure that they know who the offender is, however there really is no proof WHO is smoking pot.

What else can management realistically do to resolve this issue? Thank you in advance for your friendly advice.

Mister Condo replies:

D.B., secondhand smoke of any sort is a common complaint among residents of any high density housing complex. Shared hallways, HVAC systems that allow for seepage of odors and just plain proximity to the smell drives many owners to consider lawsuits and more to seek relief. Most condominium associations cite nuisance clauses in their documents to thwart the activity. But, as you have seen firsthand, that doesn’t always work.

I am not an attorney but I seriously suggest you consider speaking with your association’s counsel about taking proactive measures to ban smoking altogether within your association. I say this for two reasons. You have already tried the nice way to put an end to this problem. The results would indicate that wasn’t enough. The affected unit owners are going to continue to seek relief (wouldn’t you?) and are very likely to speak to their own attorney who will likely file a suit against the association for not doing enough to curb the problem and protect the rights of the nonsmokers. Changing your association from smoking to non-smoking is no easy task. It requires an amendment to the Master Deed and, depending on your bylaws, a 2/3rds or more vote in favor of the ban by the unit owners. The ban may very well not pass but the act of trying to get it to pass may be enough to help the association defend itself in a lawsuit.

In a perfect world, smokers and nonsmokers would coexist with each getting the fresh air or smoke that they desired. In such close quarters smells and noises from your neighbors are just a part of day to day living. A smoking ban is very likely the only real solution to this problem and, depending on the make-up of the community, may not be possible to pass. It is possible that we will see local, state, or even federal law on this issue at some point but until then it is up to the individual community association to do its best to protect the rights of all unit owners. Good luck!

Condo Association Has No Bylaws!

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S.S. from Fairfield County writes:

Dear Mister Condo,

My condo association does not have bylaws! What are there requirements and how do I get them to produce them?

Mister Condo replies:

S.S., it would be highly unusual for a condo association to not have by-laws. Most certainly there is a Declaration of Covenants, Conditions and Restrictions (more commonly referred to as CC&Rs). There are also usually bylaws, articles, and rules that complete the set of condo documentation (more commonly referred to as the condo docs). These items are kept by either the association’s Property Manager (if it has one) or an association officer (Secretary) or may be offered electronically by a third party provider if the association has decided to offer that service. Condo docs are required as part of the resale package any time a unit within the association changes hands. There is generally a reasonable fee for producing these documents. You should have been provided with a copy of your condo docs when you purchased your unit. Quite often, they are sealed in cellophane for safekeeping. I know of many unit owners who have never opened their copies. At any rate, if you do not have a copy you should make a written request to your association secretary or property manager. I am sure they will send you down the right path. Good luck!

Canadian Condo Fee Increase Without a Vote

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Z.G. from Ontario writes:

Dear Mister Condo,

Unit owners need to know if Maintenance fee for upcoming 2015 could be increased over 11% without a vote.

Mister Condo replies:

Z.G., greetings to you, my Canadian friend! I am not an attorney nor am I an expert on Canadian Condominium law so please accept my advice as friendly and not legal. For a legal opinion, please consult with a qualified attorney who specializes in community association or strata law in your region. Here is my friendly advice.

The Board of directors is entirely in charge of the association’s budget, which makes sense since they are the ones dealing with the reality of paying the association’s debts. The unit owners do not get to vote on the actual budget. However, they do get to vote on who is serving on the Board. If the Board is behaving in an irresponsible matter with regard to the association’s finances, they would very likely find themselves being voted out of office.

The reality of the situation is most likely that the association’s expenses have risen and that the fees are justifiable. There is a tendency amongst many Boards to keep the fees low so as to keep unit owners happy but that is often a fallacy. Expenses for the association almost always rise and there is an ongoing need to properly fund the Reserve Fund, which is usually the first item left unfunded in the quest to keep fees low. This is very dangerous for the community in the long run as there will not be enough money for replacements of common elements that will have to be replaced over time. 11% may seem like a large amount for one year. However, unless the fees have consistently risen over the years, it is possible that the community is just catching up. A better policy would be to accurately adjust fees each year for the reality of inflation. I hope that helps! All the best!