Monthly Archives: February 2015

Slip and Fall Inside the Condo Shower; Who Gets Sued?

mc_horrified

J.R. from outside of Connecticut writes:

Dear Mister Condo,

A family member slipped and fell in my shower. He’s 63 years old. He has been unsteady on his feet for a few years and has fallen before. My sister said her insurance company called and wanted info on me. Can I be sued for this? Do insurance companies normally ask questions like that?

Mister Condo replies:

J.R., I am sorry for your injured family member and for you. While I appreciate the severity of what has happened to you, I cannot offer legal advice as I am not an attorney. If you are concerned that you will be named in a lawsuit, you should seek the qualified opinion of an attorney. Most condo associations require unit owner’s to obtain homeowners insurance for just such an accident. In my limited experience, guests that get injured while inside of your property do have the right to sue the unit owner, in this case, you. My best advice is to seek legal counsel and explain to them what you have explained to me. It is very likely that the only damages sought will be from your insurer but you should definitely get a legal opinion on the matter as soon as possible. Good luck!

Damned Condo Ice Dams!

mc_horrified

L.B. from New Haven County writes:

Dear Mister Condo,

I am looking for a great lawyer for not getting proper maintenance of my roof as every few years I keep getting damage from ice damming in the same spot.

Mister Condo replies:

L.B., I am sorry for your ice damming woes. It seems every winter my Inbox fills up with messages from condo residents like you who seem to get dealt a nasty blow every time winter deposits snow and ice on roofs that end up clogging gutters with ice dams and them flooding and damaging units as the ice melts and the water seeps in. An attorney may be able to help you but what is really called for are the services of a building engineer and a cooperative Board to take the necessary actions.

Ice dams are generally the end result of a poorly thought out winter drainage system. There are many factors, including building insulation and more that go into the ice dam creation. Here in the Northeast, we are going to get snow and cold weather every winter; that’s a fact. So it is important that our buildings are constructed with the knowledge that a beautiful-looking roof in the summer isn’t enough to t prevent ice damming in the winter. Attic space that isn’t properly insulated can cause just enough heat leakage to melt snow and ice and set up an ice dam as the water refreezes when it hits the gutter. Heated gutters, heated roofs, aggressive salting of roofs, roof rakes and more may all be needed as part of the solution. An attorney can’t do all of that for you but if you feel you need to sue the Board to get them to take action, you can certainly consult with one. You might even want to speak with your insurance company (the company that holds your homeowners insurance) to see if they will work with your Board to help prevent future ice damming and claims for damage inside of your unit.

The bottom line is that unless your Board takes corrective action to address the situation, you will likely be involved in a long battle with winter. It will be inconvenient and difficult. If you can bring the players together to take proactive steps at fixing or, at least, minimizing, the ice damming, I am confident that you can better manage the problem. All the best!

Sample Condo Board Minutes

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D.S. from New Haven County writes:

Dear Mister Condo,

Our Association’s meeting minutes seem sparse. Where can I find good information on what our board meeting minutes should include? Aside from votes on contractors for projects and the dollar amount of the project and votes on hearings, our minutes seem to lack information. There have been meetings where agenda items did not necessitate a vote or hearing, but discussions took place, and our minutes contain little more than who was present.

Thanks. We need help.

Mister Condo replies:

D.S., community associations are required to have a published agenda prior to any meeting of the Board or unit owners. The simplest method to produce minutes for a meeting is to take the agenda and then create minutes based on how the items were handled. Of course, the list of attendees should be included as well as any others in attendance – property manager, association attorney, CPA, and so on.

The Community Associations Institute (CAI) has prepared a helpful suggestion as part of their M-203 training program for community association leaders. You can download at: http://www.caionline.org/events/managers/pmdp/M203%20Readings%20and%20Samples/Additional%20Readings%20Resources%2008.12.pdf

On Page 99, you will find sample minutes.

Here’s what it looks like:

Sample Minutes

Peaceful Community Association

Board of Directors Meeting March 2, 200X

The regular monthly meeting of the board of directors of Peaceful Community Association was called to order at 7:06 p.m. at the Boxwood Recreation Center, Tuesday, March 2, 2009, by the president, Mr. Matthew Dunford. The secretary was present.

A quorum was present with the following directors in attendance: Mr. Matthew Dunford, Ms. Alicia Smith, Ms. Mary Falvo, Ms. Hailey Applegate, Ms. Elizabeth McNeil and Mr. Cal Robinson. Association manager, Dylan Bush, also was present. The following director was absent: Mrs. Hannah Tyler.

The minutes of the February 1, 2009 meeting (attached) were approved as written.

The treasurer, Caleb Robinson, discussed the financial report (attached) and responded to questions.

The association manager, Dylan Bush, answered questions regarding the management report (attached) and added to his report the fact that the maintenance building had been broken into, that equipment had been stolen, and that a police report and insurance claim had been filed.

The maintenance committee report was received (attached) and the committee was thanked for its efforts to present a proposal for painting the Boxwood Recreation Center.

Hailey Applegate moved to approve the maintenance committee’s recommendation (attached) to contract Professional Paint Company to paint the Boxwood Recreation Center at a cost of $5,200.00. Motion adopted.

The architectural review committee report was received (attached) and the committee was commended for its work.

It was noted that the recreation committee had not met and there was no report.

The newsletter committee submitted a request for purchase of a desktop publishing program. Hailey Applegate moved to expend $226.00 for the purchase of a Microsoft Publisher program for use by the newsletter committee. Motion adopted.

Mary Falvo moved to approve the recreation committee’s proposal to improve the playground (attached).

After discussion, Hailey Applegate moved to postpone action on the motion until the next board meeting in order to allow time for the committee to provide additional information. Motion adopted.

There being no other business, a motion was made, seconded, and approved to adjourn. The meeting adjourned at 8:26 p.m.

_______________________________                       _______________________

Mrs. Elizabeth Neill, Secretary                                         Mr. Matthew Dunford, President

Date: __________________________                       Date: ___________________

 

This is a great sample, D.S.. It is important that the Board keep good minutes about items they vote on because these minutes are legal records of the association. When they discuss but take no action, it’s as if it never happened. If they are discussing items not on the agenda and that they do not vote on, they are kind of spinning their wheels as these discussions are not actionable until they are published in a future agenda, at which time they may be voted upon at an upcoming meeting. I hope this helps. All the best!

Who Pays for the Condo Property Manager’s Cell Phone?

mc_money

U.S. from Hartford County writes:

Dear Mister Condo,

The Board of our condo association recently discovered that our Property Manager is billing us for cell phone used by the Property Manager. The Board asked why is this happening despite the fact that the Contract does not specify that Association is obligated to pay for such expense. The Property Manager answered: “As for the Telephone/Pager charges, I confirmed with accounting that this is the annual reimbursement for a portion of the Property Manager’s cell phone expense. The Management Contract does not contain any language one way or the other on cell phone reimbursement, however this is the way it is handled at the associations we manage, unless specifically stated otherwise.” Does this explanation have any legal merits? Thank you for your help.

Mister Condo replies:

U.S., as you know I am not an attorney so, please, consider my reply as friendly and not legal. If you feel you need legal advice, kindly consult with a qualified attorney. That being said, the contract between an association and a management company or manager is just that: a contract. Contracts spell out a great many things but, on occasion, leave room for interpretation which is where attorneys and, sometimes, the courts get involved. Since most management company contracts have a lot of information about communication requirements for the manager, it is a bit surprising that modern communication tools like cellular phones and smart phones aren’t outlined. However, just because they were overlooked doesn’t necessarily preclude them from being part of a reasonable expense on the part of the manager. I am guessing that the contract does allow for reimbursements to the manager for expenses made on the part of the association up to a reasonable amount (generally less than $500 without Board approval). Now that the expense of the cell phone is a known item that the property manager intends on charging to the association, my advice is to amend the contract upon its renewal to include either a set amount or stipend for the cell phone and specifically forbid any other cellular telephone expenses from association reimbursement. Also, I would detail the difference between paying for cell phone usage (the monthly cost for voice, text, and data services) as opposed to the cost of the cellular phone itself, unless the association would like to pay for the latest and greatest IPhone or Android phone hitting the market on regular intervals. If this plan is unacceptable to the association or the manager, either is free not to renew the management contract. Good luck!

Unapproved Condo Skylights Letting In More than Light!

mc_horrified

M.H. from outside of Connecticut writes:

Dear Mister Condo,

I bought a condo that has 3 skylights. I found out after I’d lived in the condo for over a year that the skylights were installed by a previous owner without permission of the board and that I would be responsible for cleaning and maintaining the skylights. I’m fine with that. However, yesterday the association powerwashed the roof of the condo and may have damaged the skylights (I found water and dirt on the floor beneath one of the skylights). If they did damage the skylights am I still responsible to pay for repairs?

Mister Condo replies:

M.H., you have just described the perfect scenario for the gray area between black and white. The previous unit owner violated the association’s rules and installed skylights. The Board of the association decides not to force the removal of the unapproved skylights but tasks you with the cleaning and maintenance duties of the skylights. Then, the association performs the cleaning and maintenance of the skylights which you had agreed to handle and may have damaged the skylights which they had already told you to clean and maintain. And since you didn’t mention that any of this is in writing, I assume much of this is a verbal agreement between you and the Board. Well, that is the perfect set of ingredients for a lawsuit, M.H.!

As you know I am not an attorney. You may well wish to seek legal opinion on this issue because it is quite convoluted and I am not 100% sure on how to advise you. In a perfect world the following would have happened: The previous unit owner would have sought permission to install the skylights. The Board would have reviewed the request and either granted or denied the request. Additionally, the cleaning and maintenance would have been included as part of the approval process. Since that didn’t happen, all sorts of question now hang in the balance.

If verbal agreements are set aside, the Board would have been well within their right to ask you to remove the skylights (at your cost) and restore the roof to working condition as if the skylights never existed. If they did that, none of this would have happened. Since they didn’t, I would argue that they gave you approval to have the skylights and asked that you maintain them, which you agreed to. They then took it upon themselves to power wash your skylights and created damage. In my opinion, they own the damage as they had no business power washing your skylights in the first place.

Now comes the interesting part of proving that they caused the damage. What if the previously unapproved skylights were installed improperly? Was the contractor licensed and insured? Can you prove that it was the power washing that caused the skylight failure? Can an insurance claim be made against the damage? If so, who’s insurance, yours or the association’s? And on and on it goes…

If it were me, M.H., and I wanted to keep my skylights, I would get in touch with a licensed and insured skylight installation professional and have the skylights looked at and flashed and sealed properly. I am not an expert in skylights but I have some in my unit that have never leaked in the 12 years I’ve lived here. I don’t know how they would stand up to power washing but they withstand monsoon like wind-driven rain. I would go through the proper channels of documenting the skylights with the association. That is, I would explain in writing, that the skylights were installed before you purchased the unit and that you would like written permission from the Board to keep the skylights. Understand that the Board is under no obligation to allow this. Depending on your local state law the Board may have quite a long time to require the removal of unauthorized additions like skylights so ask nicely. Be sure to request in writing the care and maintenance requirements as well. With all of this documentation you should be in a much better position moving forward. And, hopefully, next time they won’t power wash your skylights to the point that they leak. Good luck!

The Condo Board Controls the Condo’s Bulletin Board

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D.C. from outside of Connecticut writes:

Dear Mister Condo,

We have a community bulletin board but no rules governing its use. My husband and I recently settled a lawsuit with our association which had been in litigation for more than two years. We posted info regarding the settlement on the bulletin board since part of the outcome voided an amendment to the declaration. We are confident most of the owners are not aware of the lawsuit status and the $50,000 paid to us by the Association. The notice is being removed daily (and replaced again). I intend to keep posting for a total of 30 days since there are no rules. I would be interested in your thoughts.

Mister Condo replies:

D.C., congratulations on settling your lawsuit with the association. As you know I am not an attorney nor am I an expert on community association law in your state so please accept my advice as friendly and not legal. For legal advice, I must suggest you speak with an attorney who is familiar with community association law in your state.

That being said, the community association bulletin board is very likely the property of the association and is used at the discretion of the association, which is under governance control of the Board of Directors, the democratically elected volunteer leaders from within the association. Unless you have specifically received permission to post anything on the bulletin board you are likely not allowed to do so. The Board is well within their right to remove anything unauthorized for display on the bulletin board so the dance of you posting and them removing is likely to go on and on until one of you tires from doing so.

I assume that you are posting information about the voiding of the amendment. That information is now part of the association’s records. Anyone who wishes to learn more can do so by inspecting the association’s records, which is their right as unit owners. I am unaware of any right that you have to take it upon yourself to promote this awareness although there is nothing stopping you from discussing the matter with your neighbors and fellow unit owners. There is a good chance that minutes from a future meeting or even the community newsletter will mention that the amendment had been voided. Hope that helps, D.C..

Condo’s Bollard Lights Bollixed

mc_horrified

J.E. from Albuquerque, New Mexico writes:

Dear Mister Condo,

I live in a condo in Albuquerque. We have bollard lights between buildings (4 units in a building) that have been falling apart for over 7 years. They are being “fixed” with “pieces of metal” They are disgusting, wires are exposed. Bylaws say Board must maintain the property and that repairs and replacements must be of “first class quality”. It’s not happening. If the owners get an attorney, does the Board have to pay our attorney fees?

Mister Condo replies:

J.E., I am sorry that your bollard lights are not holding up and that the association hasn’t seen fix to apply an appropriate repair. It is even more unfortunate that you now have to bring suit against the Board just so they will take the appropriate action to fulfill the association’s bylaws. I am not an attorney nor am I an expert in New Mexico condo law so please accept my advice as friendly. The attorney you will consult with will give you the legal advice you seek.

As a rule, the prevailing party in a lawsuit can fold reasonable legal fees into the lawsuit they bring against the party they are suing. One of the issues with suing your Board is that you are, in reality, suing yourselves. Any money the Board uses to defend against your suit will come from association funds. Any award you receive as a result of the suit will come from association funds. Association funds come from your common fees and assessments. In other words, even when you win, you still pay.

I have to ask – do your bylaws actually state “first class quality”? Who determines “first class quality”? What a difficult thing to enforce! I am guessing that you and your fellow unit owners will be happy with a proper repair, regardless of class, right?

I can think of two solutions you might consider that don’t involve the time and expense of bringing suit against the Board. The first is to simply vote out the folks who are currently serving on the Board or at least those who have refused to take action on this issue. Board members are democratically elected volunteers from within the association. If they are not fulfilling their duties, they need to be replaced with alternative volunteers who will conduct the association’s business properly. If you have elections coming up anytime soon, your easiest solution is to simply elect volunteer leaders who will direct the proper repair. If you do not have election coming up soon, you can schedule a recall whereby you will remove sitting Board members and then have a special election to replace them.

The second is to get the association’s insurance underwriter involved. I can’t imagine exposed wires being considered anything but a liability and it is possible that the insurer will mandate that the Board make the repair. That won’t necessarily get you “first class quality” but it should get the threat of electrocution from exposed wires taken care of.

When you speak to the attorney be sure to ask about folding legal fees into the settlement. It may be as simple as a letter from the attorney to the Board that gets them moving in the right direction to make the repairs. If not, they will likely hire their own attorney (again at Association expense) and get ready for the lawsuit. This will make money for the attorneys at the expense of association members but it may get your bollard lights repaired to your satisfaction.

At the end of the day, you and your fellow unit owners should get the bollard light repair you seek. I am hopeful that you can save the association legal fees by working with the Board, current or newly elected, to make the situation right. I wish you and your fellow unit owners bright and safe evenings. All the best!

Distress for Condo Manager In a Distressed Association

mc_money

A.R. from New Jersey writes:

Dear Mister Condo,

Hi, thanks for taking my question. I have been managing a 20-unit condo building in NJ for last 3 years as a property manager. When I took over, almost every unit owner was behind on their common charges, and things are getting worse ever since. Almost 80% of people have not paid for more than a year. I am at the point that I want to resign but no one wants to take over. Board members are also behind on their payments. What should I do under these circumstances? Board members do not respond back to me. Any suggestions?

Mister Condo replies:

A.R., thank you for writing. I guess my first question for you is: are you getting paid? How can a 20-unit condo association without a reliable income stream afford the services of a professional property manager? This is one of those scenarios where I sit here and literally shake my head.

First and foremost is to recognize that this problem is that of the condominium and not yours. That being said, it will become your problem when vendors, including yourself, don’t get paid by this association because the money just won’t be there at some point. Be extremely careful when negotiating contracts for service with outside vendors for this association. You don’t want your signature on any contract where the association is likely to default as you could find your management company, or worse, you on the receiving end of a lawsuit seeking payment.

My advice to you is to get this association help in the form of education. The Board needs to learn how to govern and the unit owners need to accept their responsibility for timely payment of common fees. It is just a matter of time before this house of cards tumbles and when it does, the association will likely be court-ordered into a receivership situation where an appointed receiver will function as the Board should have and begin earnest collection efforts against the unit owners. My guess is that many will not be able to pay their delinquent fees and the receiver will then begin foreclosure proceedings against those that cannot pay. It will get quite ugly quite quickly as units go up for auction and the prices are driven low. The end result may be a fully liquidated association.

If this association takes corrective steps now, they may be able to avoid this scenario. The Board needs to begin collecting delinquent common fees right now, including the fees for which many of them are delinquent. I have no doubt that the condo’s governing documents require Board members to be in good standing with the association to be eligible to serve. It is also time that the Board enforce such rules against themselves, dismissing delinquent unit owners from Board service.

Your question to me is what should you do under these circumstances? I guess that is up to you. Do you think this association can turn itself around? Are you willing to ride this train without a conductor while they do? Is the management fee on 20 units worth the potential risk? Not in my opinion. I would sever my relationship with this community as soon as my contract was up. The community is on the road to failure and has been for some time from what you have told me. If I were a community association management professional I wouldn’t want my name associated with such an association. There are better associations out there to manage. This one will take you down with it when it fails. Good luck!

How to Handle Unruly Condo Unit Owners

mc_horrified

C.G. from outside of Connecticut writes:

Dear Mister Condo,

We have two unit owners who constantly try to create problems by making untrue statements about board members. Constantly look for things to complain about, disrupt meetings. It has been suggested by other owners that they move. Anything we can do?

Mister Condo replies:

C.G., there are few things as uncomfortable as dealing with difficult unit owners who have decided to make a mission of disrupting the general civility of community association living. I am fond of an old friend who has retired from the practice of community association law who used to joke to me that “I have come to the conclusion that there are a lot of jerks who live in condominiums. Thank God for them as they have helped me put two children through college”!

The reality is that there is little in the way of legislation that can help you deal with disruptive unit owners. Making untrue statements about the Board is not a crime against the community association. It is possible that they are committing slander against the Board members but that would be a matter for the Board member who was slandered to take action against these folks. Meeting disruptions can be handled with implementation of stricter rules and procedures at meetings. For instance, you might want to implement Roberts Rules of Order for your meetings. That won’t stop them from being disruptive necessarily but it will limit their time for doing so. If they do not observe the rules for participating in meetings you can take additional steps to have them removed from the meetings. Before you do any such thing, I have to insist you consult with your community association attorney to make sure you are not violating any laws or their civil rights. They certainly sound like the type who wouldn’t hesitate to bring suit against the Board if they were slighted.

May I ask if anyone has tried speaking with them outside of a formal meeting setting to find out why they are behaving like they do? My experience has taught me that such behavior is usually brought on by provocation and that provocation had to do with a personal experience where these unit owners felt they were mistreated by the association. For instance, did they have a request for modification of their unit denied by the Board? Did they purchase into the community and shortly thereafter get hit with some sort of special assessment? Chances are they feel they were dealt with poorly at some point and they are now acting out to “even the score”. Of course, this is childish behavior but there is nothing in your condo docs that prohibits them from acting out.

If they verbally or physically assault a Board member or other association member, you may be able to get local law enforcement involved. Other than that, they have the right to attend meetings and express their opinions during time allotted for unit owner comment. They do not have the right to break the law. It will be the job of the Board and the association’s attorney to keep order at the meetings. I wish you all the best in doing so, C.G..