Monthly Archives: January 2015

Condo Dog Fight With No End in Sight

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S.N. from Westchester County, NY writes:

Dear Mister Condo,

Hi! I have a downstairs neighbor in my Westchester, NY condo who, for the past two years, I have been asking them to control their constantly barking dog. I have sent them a multitude of letters and tried talking to them face to face. I even offered to buy them an anti-barking collar. Each time they comply for a week or two, then the barking starts up again. I finally wrote to the condo board and they issued a warning letter. Again, the dog was quiet for a couple of weeks then started up again. After my second complaint to the board, they issued a small fine. All was good until last week when I received a letter from the board stating they were rescinding the fine and they cannot get involved with personal issues between neighbors.

As it turns out my neighbors wrote to the board somehow convincing them that the issue was a personal vendetta I had against them. So my question is: what recourse do I have to get the condo board to enforce the “pets cannot create a disturbance” bylaw (which is clearly stated in the condo bylaws) and this is not a personal issue between me and my neighbor? I already sent the board copies of all the letters I sent my neighbors over the last two years addressing the barking, so I would think that would be enough proof that this is a real issue. What can I do next? The dog continues to bark…

Mister Condo replies:

Hello, S.N.! I am sorry that your neighbor’s dog has caused so much trouble for you. Barking dogs are a real nuisance for any neighborhood. It is usually much worse in condominium associations like yours where walls and floors and ceilings are often shared. Your neighbor’s lack of cooperation and inability to silence the dog has become the real issue here and my advice would normally be to do what you have already done. Your Board is the right place to complain and they almost did the right thing when they issued the warning letter, followed by the fine. I am not sure what made them back down but your next action is to bring suit against the Board for failing to take the required action of enforcing the noise covenants of the community. You will likely need to hire an attorney to assist you but they are required to enforce the provisions and they have left you no other option. My guess is that you will prevail and they will once again have to go through the motions of warning your neighbor, fining your neighbor, and maybe even evicting your neighbor or the dog if the barking cannot be controlled. This could take a long time and escalate into all sorts of ugliness but you do have the right to peaceable enjoyment of your unit as outlined in your condo documents.

I have a follow up question for you. Do none of your other neighbors hear this dog barking? Are they not willing to verify your complaint of the noise? In my experience, barking dogs are only silenced when the community as a whole speaks up against the offensive unit owner who is not following the rules. Sole complaints from one neighbor to another do have the appearance of petty vendettas and they pit neighbor against neighbor. But when two or three neighbors complain about something like dog barking, the Board has all of the evidence it needs to take action. Can you not get a few of your immediate neighbors to file complaints as well? That may solve your problem a lot quicker and give the Board the fortitude to handle the complaint correctly. Keep in mind that even if the Board does what it is supposed to do and warns and fines the neighbor, the barking may continue. The real problem here is your neighbor’s lack of interest in being a good neighbor and in following the community’s dog noise rules. All of the warnings and fines in the world can’t teach people the Golden Rule of doing unto others. I am hopeful that if your Board takes strong action, you will get the results you seek. Otherwise, you just might find yourself needing to move away from this association when the market conditions allow you to do so.

Good luck, S.N.. I hope you find the peace and quiet you are seeking.

Condo Owner with Reverse Mortgage Can Still Be Foreclosed

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B.G. from outside of Connecticut writes:

Dear Mister Condo,

I have a reverse mortgage on my condo and have not been able to keep up with the condo fees. I have a hearing with the board this week .Can the board take my condo?

Mister Condo replies:

B.G., as yesterday’s column about the association’s right to foreclose on a unit will explain, there is a process by which the association (not the Board, per se) can bring foreclosure action against you or any other unit owner who does not pay their common fees. I am not an attorney and my best advice to you is to consult with an attorney at your earliest convenience to get the legal advice you are very likely going to need soon. I am sorry that you find yourself in this predicament but my best advice to you is that if you cannot afford the common fees and cannot make a satisfactory repayment schedule with the Board, it is time to seek legal counsel and see what steps you have available to you to prevent a foreclosure by the association.

Reverse mortgages are becoming more common in condominium associations and can provide needed cash for folks like you who have them. However, they can also provide a double edged sword when it comes time to collections and foreclosures. It is a legal battle between you, your mortgage holder, and your association. There may be some wiggle room for negotiation but, for the most part, if you do not pay your common fees on time, and you cannot reach an arrangement with the Board, their hands are tied and they must foreclose. You may be able to file a bankruptcy or stall the foreclosure (consult with your attorney) but I do believe that the Board will ultimately prevail. Common fees are the lifeblood on any association. You agreed to pay them when you moved in and your reverse mortgage does not excuse you from paying them now. All the best, B.G.!

Delinquent Condo Fees and Foreclosures

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P.D. from New London County writes:

Dear Mister Condo,

I read a lot in your blog about foreclosure when a condo owner is delinquent with monthly fees. Two questions: Can foreclosure be initiated over an unpaid special assessment? What level of delinquency are we talking about? Would it be a certain proportion of the value of the condo unit?

Mister Condo replies:

P.D., as you know I am not an attorney so please accept my response as friendly and not legal. Foreclosures are quite legal proceedings and I strongly encourage your association to seek proper counsel if faced with the type of action against a unit owner. I certainly hope you don’t have to take as drastic a measure as foreclosure on any of your association unit owners to collect common fees or assessments but if you do there are a few factors to keep in mind and guide you on your journey. Your by-laws have provisions on when common fees and assessments are due what actions the association can take to collect those monies due to the association from unit owners. Typically, most associations have clauses that provide for penalties for late payments. These penalties are usually modest and typically kick in after 10 days. For instance, if common fees are due on the 10th and are not paid until after the 20th a $10 late fee may apply. This is a simple tool to keep the common fees coming in to the association on a regular basis. At 30 days, a collection action usually begins. It could be a letter demanding payment and it could be issued by the association, its property manager, its attorney, or an outside collection agency.

Special assessments are a bit different and are typically handled as due within a certain number of days they are issued. Some associations offer payment plans on assessments; others simply issue the assessment and expect payment. In many cases, the condo by-laws simply state that special assessments are due when levied. If the payment is not made in timely fashion, the process is similar to collecting overdue common fees as mentioned above.

In either case, it is possible that a unit owner is unable to comply with the demand for payment at which time the Board may choose (or the by-laws may require) more aggressive actions. Typically, if the collection efforts have escalated to the attorney level, 60 days is the common time to begin a foreclosure action. The amount in question is not the issue; it is the length of delinquency. There is significant cost to the association up front to collect this money and those fees are typically added to the delinquent amount that will be sought through the foreclosure action. Because of the amount of the investment, it is not uncommon for the amounts to be significant. In other words, if the association is owed $50 because a unit owner forgot to remit an extra $25 per month when the common fees were increased, a foreclosure action isn’t too likely. However, if the same unit owner hasn’t paid any common fees for two months, the foreclosure action may be completely warranted.

As a matter of practicality, the association will often wait for a mortgage holder to lead a foreclosure action and the association will tag along and wait for the disbursement of funds that the foreclosure will bring. It is quite common for a unit owner to forego mortgage payments before common fee payments so this approach makes for a logical choice. However, the association does not have to wait and can, in fact, be the initiating claimant in the foreclosure. In the past few years, there has been a slowing pace for mortgage holders to foreclose on delinquent mortgage borrowers. This has lead to more associations taking actions against unit owners in an attempt to minimize their losses. In the association where I live, such an action was taken against a seriously delinquent unit owner. The association prevailed and foreclosed on the unit and regained all but a few hundred dollars of the thousands it was owed.

So while there may not be a specific dollar amount that triggers the decision to foreclose, there are clear factors that weight into the decision. The foreclosure is the final and ultimate tool in the association’s arsenal when it comes to collecting its monies from delinquent unit owners. It isn’t pretty and it can be costly for all parties involved but it is the ultimate measure the association can take to protect itself and all other association members from losing money and providing the delinquent owner with all of the services and protections of being a community association member. Good luck, P.D.!

Workmen’s Compensation and Condominium Insurance

 

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P.D. from New London County writes:

Dear Mister Condo,

I know you’re not a lawyer but I pose this question because officers of other condo associations may be exposed to this same problem. Our modest size condo association is required by our insurer to carry workman’s compensation insurance even though we do not have employees of any sort. The rate is low, of course. Our “staff” is all volunteer as you know they must be. I have been told that having this sort of sub-coverage covers us in case a subcontractor of a hired contractor happens to not have such coverage or may have allowed it to lapse – or any of the many possible variations of that theme. As do all condo associations, we hire outside people of several disciplines to perform general maintenance on our facilities.

Here’s the problem:
We recently received our annual audit questionnaire from our insurance company. This year they wanted copies of the 1099s that were turned in with our taxes for each contractor who had done work for us over the past year – and copies of their insurance certificates *showing their workman’s comp coverage*. BUT… we were warned by our insurance agent that if we submitted records of work performed by an independent sole proprietorship (i.e.: a guy who works by himself and does did not have workman’s compensation insurance because he has no employees of his own) then the insurance company would back-charge us the workman’s comp rate for that person in their job category.

Understand that we have had work done by contracting companies that do carry workman’s comp insurance, but they are not the issue. Over the course of the year there were some sole proprietors who did minor painting and odd jobs for us. We reported those that had earned 1099s (>$600) but we were sorely tempted to not to do so, because this seems entirely unfair both to us and to the small, single person contractors who, because of this back-charge, we feel we simply can’t hire in the future. In discussions with our agent there were implications that this is a “Catch 22” inadvertently imposed by Connecticut law. I have no idea if that is factual.

Are we being singled out for some sort of revenge or is this happening to all of us? Does it seem as perverse to you as it appears on the surface?

Mister Condo replies:

P.D., when it comes to state laws about any type of insurance, I am never surprised. The laws regarding insurance requirements for condominiums in our state have changed significantly in the past few years, most notably in 2010 when the Common Interest Ownership Act (better known as CIOA) was overhauled and many new requirements added. Since I have heard arguments for and against Worker’s Compensation insurance as it applies to Connecticut condominiums, I turned to an expert in the field for some clarification. I asked Rich Bouvier, Certified Insurance Counselor, and principal of Bouvier Insurance for his opinion on the matter. Here’s what Rich had to say:

“P.D., protecting associations like yours from possible liabilities is the job of the community association insurance professional. Part of that protection is making sure your association has coverage for all laborers that do work on behalf of the association. For the most part, associations require all workers that enter their property to have proper worker’s compensation coverage in place before they begin work and routinely require that a copy of the proof of coverage be placed on file. Requiring that your association carry a low-cost worker’s compensation policy as a matter of practice is fairly common from insurers. The reason is simple. If a worker is injured and brings a suit against the association, the worker’s compensation policy kicks in to provide liability coverage. Without this policy in place, the association could find itself open to liability. Since the premium for such coverage is fairly inexpensive, it just makes sense for the association to purchase the protection.

The insurance company audit is an entirely different situation altogether. To make sure the proper coverage is being provided, insurance companies routinely audit associations that they insure. This is for the association’s protection as well as for the edification of the insurance provider. The insurer is looking to see that the association hasn’t left itself vulnerable to liabilities. From what you have described in your question, it would appear the audit is finding potential liability in the form of contractors who do not carry worker’s compensation insurance on themselves. Have you asked what might happen if such a contractor were to get injured while working on your property? If a lawsuit resulted from the injury and there was no insurance in place to protect the association it could prove quite costly. The insurer is looking to protect the association from an uninsured or underinsured scenario. It really is in the best interest of the association to have the proper coverage at all times. Worker’s Compensation claims could easily run into the tens and hundreds of thousands of dollars. It is better to be covered, in my opinion”.

That sounds like good advice to me, P.D.. All the best!

HOA Board Paints Homes Twice in Five Years

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N.M. from Nevada writes:

Dear Mister Condo,

Where I live just outside of Las Vegas, my HOA painted our homes five years ago with paint that was supposed to last ten years. Now (only five years later) they are spending our money to paint again. They did not inspect nor did they allow us to vote to repaint and our dues are going up. Are they allowed to do this? If the paint failed it could be the painters fault, but it didn’t.  Perhaps the new painters are “close relatives”?

Mister Condo replies:

N.M., if the Board has offered no reason for painting buildings 5 full years before they were due to be painted again, I can see why you are upset. Without knowing the full history of your community it is difficult to ascertain why they would spend all that money a second time when the paint that was applied just five years ago. I am not from your part of the country so I have no local expertise on how long paint should last. Here in the Northeast, I usually hear that paint and stain needs to be reapplied every 5 to 7 years before it fades and fails. It is possible that baking in the famous Nevada sun wears the paint quicker and, even though it may not look to have failed, there may be a history to the paint fading or failing in less than 10 years. Perhaps the Board is taking proactive measures to see if they can get a longer life out of the paint by applying a second coat before the first coat has failed.

Regardless of why they have painted the buildings again so soon it would appear they need to do a much better job of communicating with HOA residents like yourself. At first glance, I am inclined to say that it sounds to me like your Board is doing a very good job of protecting the homes in your community but a poor job of explaining why they are taking the actions they have taken. Most complaints that cross my desk are from unit owners who complain that the Board waited too long (until the paint was actually showing signs of failure) before the buildings were painted. That leads to additional costs such as replacement of rotting wooden boards that were left unprotected. Those communities then have wood and carpentry costs to add to the expense of paint maintenance.

There are many items that need to be replaced or repaired even before they fail. This may fly in the face of conventional wisdom as some individual homeowners do not repair items until they fail. For instance, if you own your own home and the roof isn’t leaking, you may well wait 25 or 30 years to replace the roof. In an HOA, if the roof carries a 20 year warranty and it fails on Year 21, the insurer covering the resulting damages is very likely not going to honor the claim because the HOA would have failed to replace the roof after its useful rated life. It is a matter of proper association governance, minimization to risk exposure, and just proper maintenance that your HOA makes the decisions to tackle capital improvement and maintenance projects like the painting you are describing.

Association dues routinely go up year after year, just as the expenses incurred by the association go up every year. It is a matter of simple inflation. Everything costs more and dues from the unit owners within the HOA are only one revenue source for the association. Instead of criticizing their behavior and making accusatory statements like the painters may be “close relatives”, may I suggest that you volunteer your time to serve on a Committee or on the Board of your community and get a first-hand look at what the requirements of governing such an association entail. It is an important job. It is, sadly, sometimes thankless. However, without volunteer leaders to serve the association, the community would perish. Perhaps a “thank you” note to those volunteers is more in order than an accusation that they are hiring “close relatives” to perform the work of the association? Something to think about, N.M.. All the best!

Condo Unit Owner Refusing to Accept Mail from the Association

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P.D. from New London County writes:

Dear Mister Condo,

I am facing a communication challenge with one of my residents who is refusing to accept mail from the association regarding common fee increases and other news of importance. My association offers electronic notification as well but this unit owner has refused to participate in that option. Any ideas how we can communicate with this resident?

Mister Condo replies:

P.D., you are not alone in your communication challenge with this recalcitrant unit owner. In fact, there are many folks living in condominiums and HOAs who refuse to acknowledge that they are part of a community association at all. They prefer to simply be left alone and not participate in the association. That is their right and is fine and dandy until such time as money or rules violations enters the mix. If this association member isn’t communicating with the association and refusing to receive mail it won’t be long before the raised common fees will become a problem. I am sure your association has a delinquent common fee collection program. Once the unit owner becomes delinquent in fees for a few months, the collection process should kick in and the letters won’t be coming from the association but from a collections attorney. If this unit owner still refuses mail, the situation could escalate to foreclosure action on the part of the association. I certainly hope it doesn’t come to that but that is the extremity to which it could escalate.

The reality is that there is something more going on here, P.D.. The vast majority of community association members do not behave this way. Refusing to receive mail is an anti-social behavior. My guess is that this unit owner is acting out for whatever reason. My advice is to consult with your association attorney to make sure that you have followed the law with regards to attempting to deliver the common fee increase via mail so that if this ever becomes a legal matter you will have sufficient documentation to make your case that adequate notice was attempted. In the mean time, if this unit owner wishes to remain recalcitrant, please understand that there is little anyone can do to change that. All the best, my friend!

Condo Board Reassigning Parking Spaces After 18 Years!

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J.T. from outside of Connecticut writes:

Dear Mister Condo,

Thank you for your input on the following! I received a flyer from our condo president on Friday last showing a hand-drawn rough sketch of where each condo owner is now going to park. Our current marked and assigned spaces have not been changed since its construction 40 years ago. I’ve parked in my assigned space for the past 18 years. Each unit has one numbered parking space, however, one of the new unit owners has 3 cars & another owner has 2 cars. There are 5 guest spots which were recently rearranged in the following order: 2, 1, 2 scattered between the 6 units. Each of those unit owners having more than 1 car got parking spaces close to their units away from the road, 3 others also were reassigned spaces close to their units. My original space was reassigned to another, and I was assigned a space further from my unit and closer to the road. As I am unhappy with the location of my new assigned space, I met with the president of our association to discuss 2 options that would be a better situation for me. I told him that what he had done concerning my space was unfair given that there were 2 more suitable options, none of which would create a deficit for the other owners. I sensed that he, the condo president, could see that the space he assigned to me was rather not the best choice he could have made. Again, I told him what he had done Unfair to me. He didn’t like hearing that & began to get a little loud, which in turn evoked me to join the shouting match telling him again that what he did was UNFAIR! He just walked away & said take it up with the new board in February? This of course is happening under his watch, so it ought to be his concern. My question is: is this unfair treatment as in my described situation, have any legal teeth against the association? Those condo owners who got what they wanted were men; I’m a 78 year old woman living alone, an easy target, so he thinks!

Mister Condo replies:

J.T., I am sorry for your parking problem. I am especially sorry that this is a “created” problem, meaning there was no problem until the Board took unnecessary action and created the problem for you and, I suspect, numerous other residents at your association. Both you and the Board President are wrong to get into a shouting match over this. I have never known that approach to solve anything.

Now that cooler heads can prevail, let’s talk about what happened, why it happened, and how we can fix it. Community association laws vary from state to state. Condominium governing documents vary from condo to condo. Let’s start with your condo documents. I expect that there are plans that were filed when the condo was built that detail unit number and/or assigned and visitor parking. Condominium parking lots are largely private affairs so the developer is usually the one who sets all of that up in the planning stages of the development. Once the units are sold and the governance of the association is turned over to the elected Board, the Board controls what is done with the common areas, including the parking lots. Unless the individual units are sold with a particular deeded parking spot, the Board may be free to reassign designated parking areas.

The Board is a democratically elected group of unit owners who are charged with conducting the business of the association. They handle budgets, maintenance, capital improvements, and such, usually with the assistance of a Property Manager. From time to time, condos need to make new rules, amend existing ones, and tackle other issues. Your parking lot reassignment is one such issue. They are not free to do whatever they wish and they are subject to state and federal laws. Your age and status as a 78 year-old woman has not gone unnoticed by me. You may be able to bring a discrimination suit against the Board if worse comes to worse.

Your Board President made an interesting statement that you can take it up with the new Board in February. You certainly can and should. In fact, you should make it a point to not elect anyone who isn’t willing to revert the parking lot assignment back to its previous incarnation which has stood the test of time for the past 18 years. If there is a legitimate reason for reassigning parking spaces, I would like to let the Board present it. If they can’t legitimize what they have done, it is time for some new Board members. Reassigning parking spaces is the kind of malarkey that divides communities and drives resentment between unit owners and the Board. That is exactly the opposite of what they were elected to do. Good luck!

Fired Up Over Condo Smoke Alarm Inspection Fee

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N.O. from Litchfield County writes:

Dear Mister Condo,

My condo association forced a smoke alarm inspection on until owners last spring. Now I have a bill to pay a Fire Marshall $25 for the inspection regardless of outcome (which I passed). Is this legal for them to bill me for this?

Mister Condo replies:

N.O., there are two different things happening here. The first is the right of the association to require a smoke alarm inspection. Not only can they require this but they may have to have all units inspected in order for the association’s master insurance policy to be in effect. If the local Fire Marshall is the inspector they used and the fee is $25 for the inspection, that fee can be passed on to unit owners. After all, you did receive the services of the inspector. Honestly, $25 is a small price for such peace of mind. You might suggest to the Board that they incorporate an annual inspection of smoke alarms into the annual budget (which may increase common fees a few dollars each month) but either way, you will end up paying for the service, N.O.. All the best!

Shining the Sun on HOA Solar Rights

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J.T. from Hartford County writes:

Dear Mister Condo,

Can a Planned Community where Homeowners own their individual lots and dwellings restrict or regulate the installation or maintenance of Solar Panels on their individual homes or lots?

Mister Condo replies:

J.T., as you can imagine there has been a growing interest in solar panel installation all across the nation over the past decade as traditional energy rates have risen and solar panels have become more affordable. Homeowners associations are often challenged as to what action to take to keep their communities looking great but allowing residents the options to choose how to power their homes and, in some cases, sell extra energy produced from the solar panels back to the local power supply utility. It is a state by state issue and you can learn a great deal about what different states have already regulated by visiting the following page at the CAI National website –  http://www.caionline.org/govt/Pages/SolarRightsandEasementsbyState.aspx

It really is a mixed bag of states that protect, deny, or are silent on the subject. You will see that Connecticut is one of the 10 states that do not have provisions to address solar rights issues within HOAs like yours. That means it is currently up to the Board to restrict or regulate the use of solar panels within the community. In other words, it is in your best interest to make sure a majority of association members want the option to install solar panels before you petition the Board for your own installation. Good luck!

Condo Board Member Slanders and Defames Fellow Board Member

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A.D. from Hartford County writes:

Dear Mister Condo,

My Condo board has an alternate board member who, after our annual meeting, sent out an email to all board members. One of this alternate board member’s concerns was regarding something she thought she saw another board member do. Her accusations were slanderous, and considered defamation of character. As this is an alternate board member, what can our board do to correct this alternate’s bad behavior? Can we sanction and what can you suggest?

Mister Condo replies:

A.D., most association by-laws have clear rules about what actions trigger sanctions or removal from the Board. Regardless of the status as an alternate Board member, if your by-laws allow and your Board is willing to take action against the individual, they can be removed from the Board via the due process of the Board voting to do so. Further, if the unit owners are so inclined and the by-laws allow it, they can organize a recall election to have the alternate Board member removed from office. Neither of these options is simple and both require conviction and action by the folks involved. The Alternate Board Member does not have to go quietly either and you may have a fight on your hands.

Terms like “slanderous” and “defamation of character” are subjective and usually reserved for legal matters where one party brings suit against another party for the assault. The courts hold a different view of what “slander” and “defamation of character” are. If the party that was slandered or defamed wishes to pursue a legal remedy they are free to do so but that is not an issue of community governance. That is a personal lawsuit between the two parties involved.

In an ideal setting, the alternate Board Member would simply be asked by the President or other Board leader to apologize for the remarks and step down form the position as alternate. In exchange for doing so, the Board can get on with the business of the association and not have to deal with such trivial issues. All the best!