Monthly Archives: February 2015

Condo Replacement Windows Require Board Approval

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M.K. from Fairfield County writes:

Dear Mister Condo,

Is it permissible under Connecticut condo law to choose a window replacement vendor (Home Depot) rather than the board pre-approved vendors (Renewal by Andersen & Marvin)? Of course assuming that the Home Depot window has the same exterior appearance as all other units (frame size, palette -color, etc.).

Mister Condo replies:

M.K., the short answer is “yes and no”. Please allow me to explain. The concept of architectural compliance as it relates to condominiums is outlined in your condominium documents. I am not aware of any law that supersedes the condominium documents with regards to architectural compliance so you are at the discretion of the Board of Directors for the condominium when it comes to choosing replacement windows and/or the replacement window vendor. That being said, there is a process for petitioning the Board to consider alternate window models, styles, and vendors to perform he installation.

For the most part, architectural compliance means replacing visible exterior wear items with items of an exact style as to the original product. This is done to maintain uniformity throughout the condominium complex. You don’t want Unit 1 with a Blue door and Unit 2 with a Brown door. Neither do you want white framed, tinted windows on Unit 1 and brown-framed clear windows on Unit 2. For that reason, unit owners are required to submit, in writing, any exterior (and in some cases, interior) replacement plans for approval from the Board BEFORE the replacement project begins.

Mister Condo has taken far too many questions from unit owners who get this wrong and end up having to remove their replacement or upgraded doors, windows, and decks because they failed to grasp this simple concept. The building exterior is the domain of the Board. They are the only ones who can approve these replacements and upgrades. They also have the ability to have these projects removed, at the expense of the owner, if they fail to follow the proper procedure.

So, if you have found a suitable replacement product for your windows and feel that Home Depot or Lowes is the place to purchase the product, my advice is to get all of the information on the product and submit it to your Board for approval. Keep in mind; you will also need to provide them with insurance and licensing information for the installer which is a whole other issue. My experience has been that once a Board has approved one or more replacement window vendors, they are not all that excited about approving additional vendors. They do this to protect the community from having 5 or 6 different styles or finishes on their building exterior appearances. By all means follow the proper procedure, M.K.. You want to avoid the disappointment of having to remove your new windows because you didn’t! All the best!

HOA Licensure for Foreclosure?

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R.C. from outside of Connecticut writes:

Dear Mister Condo,

Does the HOA have to be licensed in order to foreclose on a condo?

Mister Condo replies:

R.C., thank you for writing. I can only offer friendly advice here, so, please accept my reply as such. Consult with a qualified attorney if you require a true legal opinion on this matter. I am not exactly sure what you mean by “licensed”. Condominium Associations and HOAs are legal entities unto themselves and are established within the town, city, or county they occupy and are based upon state laws. Typically, when a developer wishes to create a group of homes or condos and wishes to form an HOA, a petition is filed with a local authority that either grants or denies the application. Once approved, the HOA is born. It is not a license; it is a non-profit corporation. I am not aware of any licensing requirements.

Professionals who manage HOAs, on the other hand, may or may not be licensed depending again on state standards. In my state of Connecticut, property managers are required to be licensed. The HOAs that they manage have no such requirement. HOAs often have filing requirements with the state to maintain their status as non-profit corporations. They also have to file tax returns, even though they are non-profit corporations.

The ability to foreclose on a unit owner within the HOA is generally granted by state law and reinforced within the HOA’s by-laws. If a unit owner within the HOA becomes delinquent, it may be necessary for the HOA to take foreclosure action against the unit owner to liquidate the unit so the HOA can be paid. There are times when this practice seems controversial but the details are usually spelled out quite clearly in the HOAs documents which the unit owner agreed to abide by when they purchased into the HOA community.

Condo Contractor Unlicensed and Uninsured

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D.S. from outside of Connecticut writes:

Dear Mister Condo,

I used the contractor who does work for my building (who said he was licensed) to install a floor in my kitchen. Unfortunately, he caused extensive damage to my kitchen. He is refusing to compensate me and the building refuses to get involved. Turns out I think he is unlicensed as he is not listed with the Department of Consumer Affairs (whom I reported him to). I have asked the building for a copy of his insurance information now that I need it and they have not responded even though they originally said I had to provide them with the contractor’s insurance info before I had the work done. But because I used the contractor who regularly does work for the building I assumed his insurance info was on file. My question is this: is the building responsible for the damages if he turns out to be unlicensed since they are using an unlicensed contractor whose status they did not reveal to me and additionally let him do the job on my apartment without the proper insurance?

I submitted a claim to my homeowners insurance and my claim was denied. This does not seem fair, my apartment is only 6 years old and was in excellent condition before the contractor damaged it. Do I have any options to obtaining compensation from the building, the contractor or the Department of Consumer Affairs?

Mister Condo replies:

D.S., this is a most unfortunate situation and right off the bat I am advising you to seek legal representation in this matter as it is very likely going to end up in one or more lawsuits. At the heart of the matter is the word “ASSUME” and like the old joke says, we all know what happens when we assume. At face value, I would say you made a big mistake when you hired this contractor and ASSUMED he was licensed and insured. Providing a copy of a license and proof of insurance is the first thing any reputable contractor does before they bid a job or begin work. Also, according to you, your association REQUIRES this information be put on file with the association before any work begins. This is standard operating procedure for all associations that I am familiar with (although all do not follow as closely as they should). You ASSUMED this information was on file with your association because this contractor already works for the association. While I can see where you would come to that conclusion, I do not think you will be able to get around the requirement to provide that information to the association (which you failed to do) for the work that was done by this contractor.

All that being said, you have now ventured into an area where an attorney may be far more helpful to you than I can be. I am not an attorney and only offer friendly advice in this column. You may find that an attorney will give you different advice and be able to assist you in recovering from your losses. In my opinion, your ASSUMPTIONS have cost you dearly and neither the association (they didn’t order or authorize this work) nor the Department of Consumer Affairs (they don’t compensate for faulty work; they do track and take action on licensing issues) are likely to compensate you. Your best bet may be going after the contractor but before you do, be sure to weight the expense of a lawsuit versus simply hiring another contractor (who is licensed and insured; NO ASSUMPTIONS!) to come in and make the necessary repairs to get your unit looking the way it should. Good luck!

Do Unrelated Co-Owners of Condo Need a Special Contract?

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N.P. from New Haven County writes:

Dear Mister Condo,

Does a condominium association have the right to require unrelated owners to sign a special contract with respect to their co-ownership of the unit?

Mister Condo replies:

N.P., that is an interesting question and I am guessing the answer lies within your condominium documents. Ownership of a unit by unrelated people is not that uncommon. I am not sure what kind of special contract we are talking about here. Generally speaking, regardless of the ownership of the unit, the listed owners on the deed are bound by the condo documents as they are part and parcel of the purchase of the unit. I do know of certain circumstances where people cohabitate and split mortgage payments, common fees, utilities, etc. and effectively treat it as if both are unit owners, when, in reality, only the person who signed the sales agreement is the owner, making the cohabitant effectively a tenant. Although the owner is the only person with true liability as owner of the unit, I can think of no reason an association would require a special contract with the cohabitant.

Owners of condominium units are generally required to keep the association apprised of things like their contact information. It is possible that the association is simply requesting this information. Again, this isn’t a contract; it is simply a need to know who the owner(s) of record are in the event of an assessment or a delinquency of common fees or special assessment. Owners are not allowed to remain anonymous because there is a legal relationship between the association and the owners of the units within the association.

If you would care to provide a bit more information, I might be able to give a more detailed answer. If this answer sufficed your needs, thank you for writing. All the best!

Condo Association Requires Vehicle Information

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W.D. from outside of Connecticut writes:

Dear Mister Condo,

May a Condo Association ask for Vehicle Information?

Mister Condo replies:

W.D., they sure can! Your by-laws most likely require that all vehicles on the property be registered. This is done to make sure the association doesn’t have any unregistered vehicles on their property which could be a potential insurance nightmare. I covered a similar question in January of 2013 which you can read here: http://askmistercondo.com/can-my-condo-association-ask-for-my-cars-registration/

All the best, W.D.!

Pay To Park in Condo Guest Parking

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D.Z. from outside of Connecticut writes:

Dear Mister Condo,

Can associations charge unit owners for unassigned guest parking spots? We purchased a condo over a year ago. We were told if we have more than one car we have to park it in an unassigned guest parking space and pay $15.00 extra on our monthly association dues. There was a few times around Christmas time I was not able to park my car on visitor’s parking space because they were all taken but still had to pay $15.00 extra. Also, I have noticed that budget for parking fees for a year 2014 was $300 for all 42 spots. I paid myself over $150. There are more unit owners that have more than one car and looks like I am the only one paying! Also, my coupon book with payments doesn’t claim anywhere that I have to pay this fee. My monthly association fee is $142. Last year I was sending association two checks one for $142 as I was supposed to and other one for $15.00. This month didn’t send a check for $15.00 and I got a late fee notice even though I paid $142.00 and that’s how much my bill was for. Please help!

Mister Condo replies:

D.Z., thank you for writing. As a general rule, parking that is not deeded to individual unit owners is the property of the entire association and, as such, under the control of the Board of Directors. It would appear that you have entered into a verbal agreement with the Board to pay $15 per month for use of one of the 42 spaces. For the most part, this agreement has worked for you and for the Board. Christmas time presented a challenge as the 42 spaces were in use by visitors, which is not uncommon. Since the budget for parking space revenue is $300 and you paid $150, I am lead to believe that there is one other unit owner with the same arrangement. If you are unhappy with the arrangement, you can certainly opt out of it, depending on the terms of the agreement. A verbal agreement would be hard for the Board to defend in court; if you have a written agreement, you may be bound by it. However, if your Board is uniformly enforcing its ban on resident parking in visitor spaces, you will need to find a new place to park your second vehicle. I know of many associations that ban unit owners or residents from ever parking in visitor spaces as these spaces are for guests of the other unit owners. It would appear to me that your Board is doing you and at least one other resident a favor by allowing you rental of one of the spaces for $15 month. My advice is to pay them the late fee and the monthly parking fee on time or stop parking your second vehicle on association-owned parking spaces. Also, it would be nice to get this agreement in writing to protect both you and the association. Good luck!

Right To Inspect Condo Association Contracts

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G.S. from Hartford County writes:

Dear Mister Condo,

Does Connecticut law mandate that unit owners have a right to get copies of contracts signed by the Association’s Board?

Mister Condo replies:

G.S., as a general rule, all unit owners within an association have a right to inspect any record of the association, which includes contracts entered into by the Board on behalf of the association. The Common Interest Ownership Act (also known as CIOA) is the law that gives this right. However, records are not necessarily free or always available so there may be a fee to inspect the documents and reasonable notice must also be given for the request to inspect the documents. This is out of practicality as most records are stored away in file cabinets and need to be retrieved and prepared prior to inspection. I want to point out that I am not an attorney so if you require a legal opinion beyond my answer here, I strongly recommend you seek out competent legal help to assist you. All the best!

Foreclosing on a Deceased Condo Unit Owner’s Estate

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B.B. from Litchfield County writes:

Dear Mister Condo,

How long should the association wait to file foreclosure action after a homeowner has died and his survivor stops paying the monthly fees?

Mister Condo replies:

B.B., I am sorry for your community’s loss of a member. When a unit owner dies there is usually a short period of time when probate matters are handled. How well the deceased’s personal matters were tended to in advance often dictates how smoothly and quickly the process will go. A tidy, uncontested will can zip through the courts and assets can be sold off. An Executor usually handles items such as common fee payments during the asset/estate disposal process. A unit owner who dies without a will could be subject to a long and drawn out probate battle. That being said, the association is under no obligation to simply wait to be paid its fair share of common fees or assessments. In fact, here in Connecticut, the association is only guaranteed up to 9 months of common fees and reasonable legal fees as part of its reimbursements should the unit be foreclosed on. Most associations have collection policies in place that trigger a letter of demand after 30 days and a turnover to an attorney or a collection agency at 60 days. If collections are not possible at 60 days I would instruct the attorney to begin a foreclosure action. However, if the attorney advises against doing so because an agreement with the Executor has been reached, I would yield to the wisdom of the attorney. There is no need to begin an expensive foreclosure process if the association will be paid in timely fashion. Of course, if it is month 5 or Month 6, the clock is ticking and I might rethink that decision. Any unpaid fees beyond 9 months could be a loss to the association. In that case, I would recommend proceeding with the foreclosure to minimize the loss to the association. Good luck!

Condo Board Member Elected V.P. Wishes to Serve At Large

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D.P. from Virginia writes:

Dear Mister Condo,

I live in a condominium community in Virginia. We have 5 Board positions. President, Vice President, Secretary, Treasurer and Member at large. At a recent Board of Directors meeting, elections were held for these positions. 1 Board member was absent, elections were held and the other 4 members filled the all of the positions except for Vice President. The absent member who in the past desired this position, was duly nominated and elected to fill this position. Now said Board member refuses to serve in this position but claims to want to remain on the Board. What recourse does the Board President have to fill this position and can the Board member who refuses to accept the position remain on the Board with the position open? The governing documents do not say what to do and do not provide for a second Member at large.

Mister Condo replies:

D.P., thank you for writing. I am not an attorney nor am I an expert in Virginia community association law. If you require a legal opinion, I would suggest you speak with a local professional specializing in Virginia state law for community associations. There are several chapters of the Community Associations Institute (CAI) in your state and there is a wealth of qualified attorneys practicing in your area who would be happy to offer a legal opinion. I will offer you my friendly advice.

Most associations that I am familiar with have very specific rules on how elections are held and who is eligible to serve in office. Many associations simply provide for the Board members to be elected as Board members. The Board members, in turn elect the various officer positions amongst themselves, usually at a Board meeting that immediately follows the Annual meeting where Board membership election occurs. The concept is that the volunteer leaders are all equally empowered to serve and the officer positions within the Board are best decided by those who are going to serve as the officers. That being said, if your documents describe a precise system for electing officers as well as Board members, the Board may not have any flexibility to allow a second “At Large” director because the individual was not voted into that role. As a general rule, the Board (not just the President) has the ability to make decisions on behalf of the association for just such a matter. If the Board is comfortable with keeping the Vice President role vacant until the next election cycle they may be well within their rights to allow the currently elected Vice President to resign his role as Vice President but retain his role as a Board Member “At Large” as “At Large” merely means that the Board Member is not an officer. I don’t know why this Board Member doesn’t want to serve as Vice President but that is another story altogether. Again, please consider my advice as friendly. If you need a legal opinion, kindly consult with an expert in your area. All the best!

Planned Unit Development Delinquency Rate Effect on Mortgage

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B.T. from outside of Connecticut writes:

Dear Mister Condo,

My clients live in an attached Planned Unit Development (PUD) complex; they are refinancing their home using and FHA-backed mortgage. There are only 9 units in the complex. Does the 15% delinquency rate apply? 2 of the units are late making the rate 22%.

Mister Condo replies:

B.T., thank you for writing, I am not an expert on Planned Unit Development (PUD) financing but in the past, FHA did not concern itself with PUDs, treating them as single family homes rather than community associations. If that is still the case, there will be no FHA requirement of the community with regards to financing. Of course, you may wish to speak to a mortgage loan originator to confirm this information but my understanding is that the delinquency rate of the PUD will not affect the availability of a mortgage that is backed by the FHA. Good luck!