Monthly Archives: March 2015

No Money, No Meetings at the Condo

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T.J. from Fairfield County writes:

Dear Mister Condo,

The association secretary is not paying bills and won’t issue statement of our money’s whereabouts for over two years. Elevator company won’t come because of nonpayment. Snow plow man not paid and won’t come either. The committee members get paid for all supposed work being done and no meetings have been held or open to owners in two years. Who do we contact? Supposedly, we are always broke in our common charges and she won’t say where the money all goes. Who do we report this to?

Mister Condo replies:

T.J., I am sorry for the problems you find yourself and your condominium association in right now. I am not an attorney so I cannot offer legal advice, which it would appear you and your fellow unit owners are going to need. My recommendation is to contact a qualified attorney who will guide you through the steps of getting your association back in order. Let me offer a few pieces of friendly advice to get you started.

Condominium associations are governed by democratically elected volunteers from within the association. The condominium’s governing documents clearly spell out the process by which these folks are elected and what their duties are once they agree to serve. It sounds like the Treasurer isn’t paying bills or generating reports of where the money is and how it is being spent. If funds have been stolen, it may be time to call local law enforcement. Stealing from the association is a crime and is punishable with jail time if convicted.

The Board, as a whole, is responsible for the overall governance of the association. This includes managing the common assets. If the Board cannot or will not produce financial reports or hold meetings that are open to the general membership of other unit owners, they are operating outside of the law. The Department of Consumer Protection may be interested to hear your story of illegal governance. You can learn more at their website at http://www.ct.gov/dcp/cwp/view.asp?a=4302&q=529868. Again, an attorney can help you with the particulars.

From what you have described, it is very likely that you will need to find new volunteer leaders from within the community who are willing to volunteer their time and serve on the Board. Now is the time to rally new volunteers so that your association can hold a proper election and get back on its feet. If money has been stolen it is possible that the association has insurance to claim for reimbursement. It is also possible that special assessments or increased common fees may be necessary to get the community back on sound financial footing. As you have seen, contractors who don’t get paid will not be visiting your association any time soon. Your association will have to have money available to pay these workers if they are to perform the work needed by the association.

This may not be a pleasant experience for you and your fellow unit owners, T.J.. However, I am confident that once you have solved this problem you and your fellow unit owners will not tolerate a lack of openness and transparency from future Boards. I wish you all the best!

Condo Roof Snow Becomes Condo Ground Ice!

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S.S. from Hartford County writes:

Dear Mister Condo,

I pay over $200 a month in condo fees. Lawn upkeep and snow removal are included. The association had a man remove snow from the unit roofs. That snow of about 8 inches is still all over the sidewalk 7 days later. The snow is now ice and deadly to walk on. Now they’re claiming they don’t have to remove it!!! How can I get them to remove it? I called all over.

Mister Condo replies:

S.S., you have described all too common a complaint I have been hearing from local condo dwellers this year. There has been so much snow and it has been so cold that the snow hasn’t melted. Rather, just like in your case, it has solidified and become very dangerous ice on roads, on sidewalks, in gutters, and on roofs. Situations like yours often result in “slip and fall” injuries at condominiums which can cost the insurance money in the form of increased insurance premiums and even settlements. It is far better to have a better snow removal program in place to prevent such losses.

Snow removal contractors are hired by the association to provide their service. However, not all contracts are worded in the association’s advantage and not all work is performed to the satisfaction of unit owners. There isn’t too much that you can do about it this year as the season is rapidly winding down. What you can do is write to your Board with your displeasure and ask that they prepare a more thorough snow removal contract for next year that addresses this year’s deficiencies. For instance, if the snow removal from the roof did not include disposal of the roof snow from association grounds, ask that they not only remove the snow from the roof but that the snow they remove from the roof is then taken off property. This will cost the association more money, which may in turn cause your common fees to increase, but you will have the roof snow removal and clear walkways you desire. Of course, your fellow unit owners will also have to support such a measure and the Board would have to agree to spend more and raise fees if necessary. Many associations are already facing cash shortages for their snow removal budgets this year. However, spending more to insure safety and minimize association risk is a good call. All the best!

Faulty Plumbing in Florida Condo Causing Septic Nightmare

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M.T. from South Florida writes:

Dear Mister Condo,

I’m currently living on the second floor of a 5-story condo building in South Florida. I travel a lot for work being that I work for an airline, so I’m rarely ever home more than 10 days a month. I’ve come home numerous occasions after a 3 or 4 day trip only to find that my kitchen floors are flooded with water due to water backing up in the main water pipes inside the walls of the building. I’ve noticed debris that has settled on my kitchen sink, from something that has somehow come up the kitchen sinks drains. I’m rarely home when this happens but I see the remaining filth on and in the sinks sides after whatever has come up, is sucked back down the drain.

The other day while I was sleeping I heard a gurgling noise coming from my half bath and my guest bathroom. I went in to check what was making the noise. I was shocked to witness human waste, roaches and roach eggs coming up the half bath’s toilet, my guest bathroom’s toilet and the guest bathroom’s shower drain. The toilets would’ve over flowed had I not acted quickly and started using a plunger.

I don’t know if this is occurring in other units or to other unit owners in my building? I’ve made the condo board and the building manager aware of the situation but it seems as though my complaints fall on deaf ears.

What can I do to protect myself and my property? Should I contact my local or state Sanitation Dept. and report these incidents? Should I contact the Health Dept.? I’m at the end of my rope and don’t know what to do! I’m simply frustrated and disgusted. What can I do to make the condo board take action and remedy the situation?

 

Mister Condo replies:

M.T., human waste and roaches aside, what a terrible situation! Add in the human waste, roaches and roach eggs and I think you have the makings of a Sci-Fi Channel Horror Film! Pardon my silliness as what you are describing is anything but silly. In fact, it is downright disgusting and dangerous.

Clearly the pipes and plumbing that runs in your walls and between your neighbor’s units is not functioning properly and is the responsibility of the association, as governed by the Board of Directors. Further, Florida state law does require that the condominium be free of “sanitary nuisance”, which yours is clearly not. The Florida Department of Health (http://www.floridahealth.gov/) is likely going to be your biggest ally in getting “deaf ears” to take your complaint seriously. There are links to contact them at their website. You can read the text of the law here: http://www.flsenate.gov/Laws/Statutes/2012/Chapter386/All.

I am disappointed to hear that your Board and Property Manager aren’t more proactive on this issue. If word of this gets out, I would think property values could plummet. Not that you want that kind of publicity but a quick phone call to your local TV station or newspaper would likely draw a great deal of unwanted attention to the folks who should be taking corrective action. I would keep that piece of ammunition in my back pocket if they don’t move quickly to remedy the vermin infestation.

Finally, seeing as you travel quite frequently, you might want to either hire an attorney to represent you while you are away or work closely with neighbors who are almost assuredly facing the same issues. The Florida Department of Health claims they need to hear three complaints before they can take action. Be sure you mobilize a few neighbors to back your claim. These folks are likely not away as often as you are and might do a better job of applying ongoing pressure to the Department of Health, the association, and the Property Manager to get this sanitary nuisance cleared up as soon as possible. Good luck!

Settling Foundation Leads to Uneven Condo Floors

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R.B. from New Haven County writes:

Dear Mister Condo,

I recently removed carpet (anticipating hardwood) to find hump running from kitchen to dining room. Installer states the floor fell and is uneven due to settling. Who repairs for this fix owner or association?

Mister Condo replies:

R.B., I am sorry for your problems. I can only imagine your disappointment when you saw the uneven floor beneath your carpet. For the purposes of this answer I am going to assume that you had permission to remove your carpet without replacing it with similar carpet. Some associations do not allow unit owners to expose their subfloor and install anything other than new carpet.

The original builder very likely built the condo on some type of foundation (concrete usually in our neck of the woods) and that foundation has now settled creating uneven floor joists to which the subfloor is attached. If the subfloor cannot be brought into square or leveled and the floor joists need to be replaced, this can become a major project. Depending on how the units were built, multiple units may be involved for the repair. Once the repair spreads beyond your unit, you need to work with the association to handle the repair. Generally speaking you own from the walls and the foundation in and the association owns the rest. However, you may need to refer to your condo documents to see how the unit you own is defined.

The association may choose to repair your subfloor along with any other neighboring units that are affected. They may ask you to handle the repair and they may even tell you that the expense is yours. You may need to consult with an attorney if you disagree with their decision so don’t be surprised if this isn’t as easy as you notifying the association and them sending someone right over to make the repair. This wasn’t a problem until you attempted to install different flooring than what came with the unit. This dilemma is ripe with “gray area” that may be open to interpretation depending on how the condo documents are worded.

If you are intent on hardwood floors and you are not violating any of your condo docs to install them, by all means, get in touch with the Board and make them aware of the problem to see what they will do. If you are not allowed to change the type of flooring, simply install some new carpet and enjoy your unit. If you insist on having the floors brought level, don’t be surprised if it is a long and drawn out process. You will end up with level floors but it may be a while and at some of your own expense before you do. All the best!

Long Term Effects of Low Condo Common Fees Felt in New Jersey!

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L.F. from New Jersey writes:

Dear Mister Condo,

We have a 30-unit condo that has had minimal maintenance over the last 10-15 years. Routine stuff like snow plowing and lawn cutting have been done, but larger issues like lighting, painting, water heaters, and other electrical has been ignored. Most owners are current in fees with only about 4 really owing. The Management Company (for 17 years) has been focused on keeping costs low as that is what the President wanted. But a new board of newer owners (of which I am one) is very concerned that so much needs to be done. The Management Company has also been very poor at communication with the entire board and little has been put away in Reserves. As a new Board Member, we now find ourselves with many tasks and little money. The old President just resigned and so did the newer Treasurer after looking at the books. What should we do to get out of this mess? We need help and most likely a new management company, but we don’t know where to start. Thanks for any help.

Mister Condo replies:

L.F., Congratulations to you and your fellow new Board Members for volunteering to serve your community. You have a significant challenge ahead of you but one that is not insurmountable. In fact, the very fact that you have already addressed the problem is half of the battle. Now it’s time to put an action plan in place. Let me see if I can give you some advice I have learned from my own experience.

Let’s start with your Management Company. The Management Company works for the Board and it sounds like your current one was doing just that. The Board, under the leadership of the outgoing Board President made a decision to create a budget based on keeping the common fees low for unit owners. Clearly, this was not in the best interest of the long-term financial stability of the community but I’ll bet there weren’t too many unit owners complaining that their fees weren’t higher! The Management Company went along with the Board’s desire to keep fees low. That is all they can do. You can imagine had they pushed back and suggested raising fees they would probably have been let go. If there are other issues with the firm and you think you need a new one, by all means shop around but you really can’t blame them for the common fees being too low.

You say you have 4 unit owners out of 30 who are “really owing”. I am not sure what that means but you shouldn’t have any unit owners in arrears on common fees or assessments. Your by-laws and local state laws may need to be reviewed but generally speaking, at 30 days a letter of demand is issued and at 60 days, more serious collection efforts begin, up to and including foreclosing on unit owners who are delinquent. One of the first challenges for you and your new Board members is to fully understand the powers of the association with regards to timely collection of common fees and assessments and to embrace to need to collect all monies owed to the association. Most states have a statute that only allows for a certain number of months to be included as part of an association’s lien on a unit. My understanding is that in New Jersey you are limited to six months worth of common fees and legal costs to recover the delinquency. If you have unit owners that are already more than 60 days delinquent, you are putting the association in serious risk on not recovering those common fees, even if the association takes foreclosure action against the unit owner. It is always a good idea to keep your delinquencies in check and risk to the association as low as possible.

Now comes the task of assigning a real dollar value to your common fees and developing a plan to adequately contribute money to your Reserve Fund. You have already described that there seems to be enough money to handle the recurring bills and maintenance items but there is no money for the long-range capital repair and improvement projects. Many community associations will hire a Reserve Engineer to come to the property and conduct a full assessment of common elements and prepare a Reserve Study for the community. This study will include all of the “big ticket” items you detailed in your letter and probably a few that you didn’t think of. You mentioned “lighting, painting, water heaters, and other electrical” as items of concern. I might add things like roofs, parking lots, sidewalks, etc.. As you can see there are more long-term capital improvement projects lurking around the corner. Additionally, in New Jersey, I believe you have a law (New Jersey Statute 46:8b-14a) that requires associations to collect common expenses as well as monies for the replacement of common elements.

After a proper Reserve Study is conducted, some very real discussion will have to occur on how to fund the Reserve Fund which will be needed to address the items in the Reserve Study. It may not be feasible or practical to try to fund the Reserve all at one time. After all, it has been years since this was done properly at your association. However, I would recommend that you develop a plan to fund it immediately and add an amount to make up for the deficiency.

For example, if your common fees are $350 per month and the Reserve Fund would be considered as funded with a contribution of $30,000 per year, it would make sense to budget next year’s common fees at $350 per month plus $83.33 ($30,000 / 30 units / 12 months = $83.33) = $433.33 per unit per month. I would also recommend adding an additional 15% to 20% to make up for the lost years. Keep it simple and round the $83.33 to an even $100.00 (which is an additional 16.67% contribution to the Reserve Fund) to make it easy to understand. New common fees, in this example would be $450 per month.

Unit owners will not very likely be thrilled with this proposition and you can expect some boisterous meetings with unit owners. No one likes to pay money for future expenses. There is also the concept of fairness. What about the folks that lived there the past 17 years or longer who no longer live there and never paid their fare share to the Reserve Fund? Unfortunately, you cannot do anything about that. What you can do is explain how important it is for the community to regain sound financial footing if it is to survive and prosper in the years ahead. Their investments are better protected by a fiscally sound Reserve Fund and it may even affect their ability to sell their units to a buyer who requires a mortgage. Once the yelling dies down the community will be stronger and the Board can carry out its mission of maintaining, protecting, and enhancing the common elements of the association. All the best!

Lien Holder Notification in Condo or HOA Foreclosure

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D.S. from outside of Connecticut writes:

Dear Mister Condo,

How can I tell if the HOA or Condo Association either did or did not notify all other lien or mortgage holders of the upcoming foreclosure?

Mister Condo replies:

D.S., foreclosures are not usually left to HOA or condominium association volunteers. Generally speaking, they fall into the realm of work performed by community association attorneys who are well-versed in the intricacies of proper foreclosure proceedings. Please understand that I am not an attorney so please take my advice as friendly and not legal. The long and short of it involves conducting a search on the property’s deed, usually done at the local land records office to see who is listed as a lien holder. Liens are very specific legal filings attached to a property deed. The lien holders are notified by the party seeking the foreclosure and the foreclosure process begins. The foreclosing party, usually represented by an attorney, notifies the courts that all listed lien holders were notified of the foreclosure and may even provide proof with certified notice receipts that notification was made. I do not know of a court system that would not require that as a minimum guarantee that all listed lien holders were notified. However, it is possible that a lien holder is missed for several reasons. Depending on the age of the lien, it is possible that the lien holder has changed. This can happen when banks sell mortgages or change ownership. As a rule, the duty to update the lien is on the lien holder so if they didn’t update their lien, it is possible that they would miss notification. The party taking foreclosure action isn’t obligated to seek out unlisted lien holders. However, in the case of mortgages, the courts and local attorneys are generally aware of these changes and would likely send notification to the institution they suspected was the mortgage holder. Less common lien holders (a contractor who may have gone out of business, for instance) may miss notification for the simple reason they are no longer in business. Once the court is satisfied that listed lien holders have been notified and given adequate time to respond, the foreclosure action may begin. I hope that helps, D.S.. All the best!

What Steps Does the HOA Take to Place a Lien on Delinquent Unit?

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B.B. from Litchfield County writes:

Dear Mister Condo,

What steps must the HOA follow to place on lien on a homeowners unit for nonpayment of an assessment?

Mister Condo replies:

B.B., there are a few things in life that just happen on their own. Believe it or not, the HOA lien on a unit for unpaid assessments is one of those things! I asked a friend of mine who is a practicing community association attorney in our state for some additional clarification. Here’s what the attorney had to say:

“None.  Under state law, the lien is “inchoate” which means automatic and paperless; the declaration itself is notice to the world that unpaid assessments might encumber the unit.  As long as the assessment was properly adopted and listed in any resale certificate, it will operate as a valid lien against the unit for three years.”

So, there you go, B.B.. I hope that answer is as easy for you to understand as the lien process itself!

Bay State Small Condo Governance Quandary

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E.M. from Massachusetts writes:

Dear Mister Condo,

I purchased a newly constructed duplex unit in 2002 and the purchase and sale package included condominium association by-laws and documents filed legally within the county court. Between 2002 – 2009, an informal arrangement for maintenance of common areas took the place of a formal condo association. I paid to remove the snow in a circular U-shaped driveway and my neighbor performed all lawn care. When the front door required replacement we obtained three quotes and shared the cost of supplies and labor. The arrangement worked out rather well until he became ill and subsequently passed on. His unit remained vacant for two years until finally selling to a young couple with one child. This was their first home purchase. I am unaware if the realtor disclosed condo documents at the time of purchase. During the first lawn cutting season my son gladly cut the grass to allow the couple time to get settled and learn the ropes of homeownership. He continued cutting the grass weekly for two years until moving to his own apartment earlier this year. At that time, I proposed a landscaping company perform routine lawn care to my neighbors who did not wish to share costs. I assumed the full cost for the convenience and to insure the yard was kept up, eventually they agreed to share costs and it ended up evening out. Now winter has set in – the worst on record here in Massachusetts – they purchased a snow blower three years ago which never operates when needed because it is left outside year round. Meanwhile, I need to get to and from work and cannot shovel a foot or two of snow due to the driveway’s large size. I again retained plow services in November with my neighbor’s consent for plowing after 4 – 6 inches. Within the last 10 days we have received 53 inches of snow and a plow bill of $125 for six passes. The $25 fee per pass is extremely low in this area and the service was a necessity to the scope of the snow fall. The neighbors have complained about the service and do not wish to continue receiving plowing – this leaves me in a bind because plowing half the driveway is really close to impossible and I know their snow blower is not working. We have come to blows about it and I feel it’s time to re-establish the formal condo association, establish dues and prepare an agreed upon budget for property care. Do I need to see an attorney? Can I use the same condo documents first created in 2001? How do I enforce this? They have lived here for three years and our out of pocket costs have been less than $600 – but larger items will become necessary i.e. roof repair, driveway repairs, etc. HELP

Mister Condo replies:

E.M., as your snowy neighbor in nearby Connecticut, I can relate to your battle with the white stuff! Enough already, Mother Nature!

You truly have answered your own question. E.M.. Condominiums are legal entities and, as such, really shouldn’t be left to neighbors working out who does what. Massachusetts is home to some really small associations (2 and 3 units) which make it really easy to overlook traditional condominium governance methods in lieu to of a common sense approach to things like lawn care and snow removal. You really can’t blame the new homeowners for not playing by the rules seeing s the rules weren’t in place when they purchased. However, they were undoubtedly provided with condo documents when they purchased as they should have been part of the paperwork received and reviewed when they purchased.

You can do one of two things here. You can have a face to face meeting with them and explain the situation and set the tone for moving forward or you can go the route of hiring a community association attorney to assist and get the property back on track. Since you have already “come to blows”, the latter may be your only option at this time. It is unfortunate because community association attorneys are not inexpensive and you could end up spending a lot of money on legal fees when all that is really needed is a healthy conversation. You are obviously intelligent enough to understand that they way it was done in the past was wrong, even though it worked just fine without the formality. I would say those days are behind you. Your plan for the future is also critical. Does your association have a Reserve Fund or will Special Assessments be the plan for replacing the roof? If the other unit owner defaults, will you have to bear the entire expense yourself. These are all important questions and I think you will find there are bigger problems afoot here than who pays for the snow removal.

You have an excellent resource in your backyard, E.M., The New England Chapter of the Community Associations Institute is available online at http://www.caine.org/. You can find information on condo governance as well as a list of qualified attorneys should you need one. I would also recommend you attend one of their many educational seminars for some local information and to network with fellow small condo owners. With some perseverance you can work through this difficult period. The end result will be a better community living situation for you and your new neighbors. Good luck!

Unit Owner Paid For Condo Building to be Painted

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G.A. from Hartford County writes:

Dear Mister Condo,

Due to lack of funds, my condo association has not kept up the property. So, I paid out of pocket to have the common areas of my six-unit building painted. Only one owner in my building is delinquent in paying their fees, and already has a lien on their property. Can I personally sue that owner? Has that been done before?

Mister Condo replies:

G.A., paying for common element maintenance out of your own pocket is never a good idea. While I appreciate your desire to have the property looking good, you went about it the wrong way and you cannot personally sue the delinquent unit owner as you have no legal standing to do so. There are several items to discuss her but the real issue here is basic community association governance. Let’s discuss what needs to be done so you don’t put yourself at further risk.

The condo association is governed by a Board of Directors. Your condo documents spell this out as well as what happens when unit owners become delinquent in assessments or common fees. Generally speaking, once a unit owner falls behind on common fees, collection procedures begin. This can include placing a lien on the property and, if the lien is not satisfied, a foreclosure whereby the unit is liquidated and the association collects what it can of the delinquent fees and legal costs for pursuing those fees. Since the Board is comprised of volunteers, this process is usually turned over to an attorney who specializes in such matters.

The issue of painting and other building maintenance is the responsibility of the Board, and only the Board. As an individual unit owner you do not have any right to paint or alter the building’s exterior in any way. This is why you are particularly vulnerable for not getting reimbursed for the painting that was done. You entered into a contract with a painting vendor to paint the building. Unless you did so under express request from the Board, you did so on your own. You might be able to get the Board to agree to reimburse you for this but they are under no obligation to do so. The correct procedure for having the building painted would have been for the Board to vote to paint the building. If there was no money available to do so, all unit owners should have been assessed for the painting, following the proper procedure for levying a special assessment (unit owners get a vote). If the assessment passed, the building would have then been painted. The unit owner that was delinquent very likely would have voted against the assessment and will likely argue that if the association moves to collect an assessment from him after the fact.

So, in conclusion, A.B., this is an ugly situation at best. At least, you have new paint on your building. My advice is for you to never do anything like this again. Even if the parking lot needs to be repaved, even if the roof need to be repaired, even if the windows have clouded over and need replacement; do not reach into your own pocket to pay for it. Follow the proper channels as outlined in your governance documents. A Reserve Fund needs to be established and contributed to regularly. It would not surprise me if your common fees need to double or triple to do so. The Board needs to take collection actions against any and all delinquent unit owners and financial solvency needs to be resolved. I wish you good luck in getting this association back on track!

Condo Snow and Ice Removal Insufficient

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A.B. from Hartford County writes:

Dear Mister Condo,

In my condominium association, all the units are two-story attached townhouses in a number of separate buildings with about a half mile of roads and paths that are Common Elements around the complex. Each unit has its own stoop, and the stoops are Limited Common Elements that the Association is responsible for maintaining under the condo documents. In addition, almost half the units have garages in freestanding buildings. The garage interiors are owned by individuals and the buildings – and the roads between the condos and the garages – are common elements.

The contractor for snow removal has been doing a very poor job. Most of the units’ stoops, the paths to each unit, and the roads were covered with ice and snow well after the last storm a week ago and many of the garages were inaccessible. I and other residents notified the manager and the manager said he would “relay our concerns to the Board and the contractor.” The Board members refuse to discuss Association matters with owners who contact them outside of Board meetings, which are held once a month.

After this week’s storm, the contractor did an even worse job, and again I and other residents notified the manager, who again responded that he would relay our concerns. I have also sent him a number of photos showing the ice and snow in the common and limited common elements.

Today we received a memo from the manager titled Ice Dam Concerns that stated in part :

“Hanging Icicles – This is a common occurrence in weather conditions that we are currently experiencing and do not necessarily represent ice dams that will cause interior damage. Nonetheless, if you are able to knock these icicles down without exposing yourself to potential harm, please do so. For those areas that are beyond your reach, please contact our office so that we may remove these icicles from your entrance way if you believe they present a dangerous condition.

“Ice Melt – Undoubtedly, if current weather conditions continue, ice melt availability may be difficult. The Management Company recommends that you purchase a personal supply of this product to have on hand to maintain safe egress and access to your home. When possible, we recommend entering your unit through the garage area to avoid icy and slippery conditions.”

I seriously question the wisdom of encouraging residents to knock down icicles especially since the only place they would stand to reach them is on their icy stoops and driveways. In addition, fewer than half the units have garages from which owners can access their units directly. Also, many owners have dogs – which the Rules permit them to walk on the paths and roads around the Association – and into the dog pens.

By tonight, after today’s warm weather, the roads and paths are literally sheets of ice.

I do not understand why the manager would tell owners – many of whom are elderly – that it’s their responsibility to maintain common elements such as the roofs from which the icicles hang and the stoops, paths and roadways – since obviously if an owner or a service person or a postal worker or a guest or whomever is injured, their claim will be against the association as a whole (and three people did bring claims last winter – causing our insurance rates to skyrocket).

We will, of course, bring this up at the next Board meeting – which is three weeks away. In the meantime, if neither the manager nor the Board responds and if the snow and ice aren’t adequately removed by the contractor, if the owners hired an appropriately licensed and insured contractor to come in and plow the roads properly and shovel the snow from the paths and stoops, what’s the likelihood that we’d be entitled to get reimbursed by the Association? Should we retain a lawyer? Do we have any other alternatives besides sitting around and waiting for claims to be filed?

Thanks very much.

Mister Condo replies:

A.B., so many issues and so few easy choices! This winter has been brutal on all of us in New England, your community included. Of course, it is not the disaster that challenges us as much as it is the disaster response plan, or lack thereof. Let me break down a few of your issues and see if I can offer some friendly advice.

I will start with the immediacy of you and your neighbors hiring a contractor to plow the roads and then get reimbursed by the association. I appreciate the practicality of the suggestion but it is just a bad idea on many levels. For starters, the official voice of the association is the Board of Directors. They are the only ones legally eligible and qualified by your association’s governing documents to enter into an agreement with a vendor to do work on behalf of the association. Technically, the roads in question are not owned by you or your neighbors. They are owned by the association, which is a legal entity unto itself. It is a non-profit corporation with legal standing and a set of rules in place detailing who the directors are and how they are elected by the unit owners. Quite simply, you do not have the authority to hire a contractor to do work on property you do not own. If you do hire a contractor to do this work, not only is it likely you will not be reimbursed, you and the contractor could even find yourselves on the receiving end of a lawsuit for performing unauthorized work on association grounds. Please, do not do this.

Instead, consider the proper channels, which, it would appear you are following. When a contractor does a poor or unsatisfactory job for the association, it is the Board’s charge to correct the work and get it taken care of correctly. Without having access to the exact contract entered into, I have no way of knowing where the deficiency lies. Snow removal contracts are usually fairly straightforward and either carry a price per season or per snowstorm. The community may have additional clauses for sanding icy walkways, clearing foot paths, decks, areas around fire hydrants, etc.. If the contractor is not fulfilling the agreement, the Board, and only the Board, is free to take action to break the contract and hire another vendor. At this late date and with the snow removal folks working as hard as they can, that may not be practical for this season. However, the Board needs to consider all factors when breaking a contract, including being found liable for the full amount of the contract if the contract is broken for the wrong reasons. This is where the advice of the community association attorney becomes invaluable. The advice should also be sought BEFORE entering into a contract for next year.

The Property Manager can only do so much in situations like this. Relaying unit owner concerns is one of those things. Following the protocol as set out by the Board is another. I am not familiar with the practice of asking unit owners knocking down icicles or anything else as a best practice but they did also offer to knock down the icicles if a unit owner requested them to do so. That activity puts the association at risk for someone getting hurt, either by slipping while trying to knock down an icicle or from the falling icicle striking someone. The Board instructs the Property Manager on what items to send to residents, so you would do well to raise the issue at an upcoming meeting and suggest they cease this practice.

If there is a true shortage of ice melt, while unusual, I can see where the Property Manager is trying to offer a suggestion for unit owners to help themselves if they can who to prevent ice dams and slippery walks. It may not be feasible for elderly folks to assist with ice melt but the Property Manager is likely just trying to be helpful. Again, the Board can control what types of communication is sent out by the Property Manager.

What is likely the real solution here is a combination of items, A.B.. First, the Board is made up of unit owners just like you and your neighbors. I am sure they want what’s best for the community just as you do. The snow and ice removal program for your association may not be adequate for the harshness and severity the community is experiencing this year. In some ways, that was unforeseeable. However, a better plan can be put in place for next year and maybe even the balance of this year although by the time the Board meets again, we can all be hopeful that the worst of winter is behind us. Propose that in addition to snow removal from streets and walkways, a roof treatment program be put in place as well. Have the contractor agree to perform weekly property snow and ice inspections and have his staff knock down icicles if necessary. If that scope of work is too much for this current contractor to handle, then the association will need to hire a new contractor. Of course, you can expect an increase to snow and ice removal costs which will likely cause an increase to common fees which is never a popular option. However, if the Board isn’t given the option to spend more on snow and ice removal no one should expect any more to be done.