Monthly Archives: April 2015

Verbal or Written Petition to Call a Special Meeting of Condo Unit Owners?

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K.D. from Litchfield County writes:

Dear Mister Condo,

To call a special meeting of the unit owners, do the condo owners need to sign a document, or is their verbal agreement enough?

Mister Condo replies:

K.D., thank you for your question. Special meetings of unit owners are generally called when there is a major problem or issue facing the association. Recall elections are the most common reason for a special meeting. Your by-laws should spell out how and when a special meeting of unit owners can be called. In most cases, written documentation signed by the owners will be necessary to show that the requirements were met for holding the special meeting. Verbal agreement would not suffice because there would be no written record of why the meeting was called and that the requirements were met for such a meeting to be valid. That can be very important in the case of recalling elected officials. Not following proper procedure could easily lead to lawsuits and further problems for the association. If you feel your association is in need of a special meeting of homeowners and it is for a serious matter, I strongly advise you to consult your governing documents and hire legal counsel to guide you if necessary. All the best!

Condo Video Surveillance of Private Areas

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R.H. from outside of Connecticut writes:

Dear Mister Condo,

Hello! Is it allowed to install a video surveillance system on private areas in a condo? Does someone need to monitor the picture? Can someone request to access the recordings? Thanks a lot!

Mister Condo replies:

R.H.,

Many condominium and homeowners associations install and use video surveillance systems in common or public areas of the association. These areas are owned by the association and should be managed and governed in compliance with association documents (which are often silent on the use of video surveillance) and local, state, and federal laws. Depending on where you are from, you may wish to ask a local attorney for an opinion as it relates to local and state laws. For the most part, condos and HOAs are free to install video surveillance in common or public areas of the association and many do so to deter crime and vandalism. Most also place signage alerting that video surveillance systems are in use so as to deter would be crimes from happening in the first place.

Your question, however, asks about “private” areas of a condo. I am not quite sure what you mean by private as the common areas are not private. Unit interiors are private and should not have video surveillance. Also, you didn’t mention if the video surveillance system was being installed by the association or a unit owner. Most states have laws about how and when video surveillance can be used by homeowners. They cannot be used to invade another unit owners privacy (for instance aiming a video surveillance camera at your neighbor’s front door or living room window is likely a violation of law, a matter for the police to investigate.

As for monitoring the recordings and/or asking to review the recordings, I am not aware of any such requirement. If a recording were being used as an association record, i.e. the Board is suing a unit owner for doing something they shouldn’t be doing on association grounds, the record would become a court record and, as such, would be available to anyone defending an action where the recorded evidence was admitted. For the most part, video recordings are kept for a week or two and then the files are erased or rewritten. If there is no crime being recorded the video records are not really useful to anyone. I would say the same about live monitoring. Watching a video stream of a parking lot would be pretty boring and quite expensive if the association were to pay someone to do it for them.

Thanks for the question, R.H.! All the best!

First Time Boston Condo Buyer Concerned Over Lack of Reserve Fund

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B.K. from Boston, MA writes:

Dear Mister Condo,

My wife and I are considering buying our first home just outside of Boston. The market is red hot so we have to move quickly if we are to purchase this unit. We found a condo we can afford in a small (12 unit) association. I was just provided with a copy of the 2014 / 2015 budget and I am a bit concerned that the association doesn’t seem to have a Reserve Fund. There is a line item from the 2014 budget showing a very small contribution. The 2015 budget shows an increase to common fees and that 10% of the common fees collected are budgeted to go into the Reserve Fund but I am worried that since this is an older condominium, won’t there likely be a special assessment for any repairs that the association has to make? We really like this unit but I don’t want to buy into a potential money pit. Do you have any thoughts on whether or not we should buy this unit?

Mister Condo replies:

B.K., welcome to the world of greater Boston real estate in 2015. I am hearing reports of properties selling for 10% to 20% ABOVE their asking prices! That is amazing but not real good news for new buyers like you and your wife. You are wise to ask about the financial status of the association you are buying into because you are not just buying a condo unit; you are buying your portion of this real estate association’s liabilities, which include aging buildings and common elements.

The lack of a Reserve Fund is a real concern. Even in small associations, there are going to be capital improvements and repairs that will cost real money. It could be a roof. It could be a siding or painting project. It could be a fence. It could be roadways or sidewalks. Whatever the expense, if there is no Reserve Fund to tap into, the money will need to come from the unit owners and it will do so in either a special assessment or increased common fees to service a loan to handle the repairs.

The 2015 increase in common fees is interesting to me. FHA-backed mortgages granted by banks to those who wish to finance their condos are subject the entire condo complex being approved by FHA. FHA requires associations to contribute not less than 10% of their common fees to their Reserve Fund as one of the requirements for FHA certification. My guess is that this association is just now taking that requirement seriously. If you are seeking an FHA-backed mortgage to make your purchase, you may find the property is not yet eligible for such a loan if the property is not already FHA certified. I hope that is not the case but be prepared to hear that from your mortgage loan officer. It has nothing to do with your ability to qualify for the mortgage. It is a function of the condo being eligible for FHA backed funding of mortgages.

Back to your original question: Do I have any thoughts on whether or not you should purchase a unit in this association? If you and your wife are happy with the condominium and you are aware that you may incur a special assessment for any capital repairs, I have no problem advising you to proceed. However, if you do buy into this unit and find out a new roof or other project is in order, do not be surprised when the special assessment is levied and keep in mind that it could be for several thousand dollars. In a hot market like Boston, that may not deter a buyer as they might have to pay more than the unit is asking for to begin with. Just make sure you have easy access to that extra cash in case the special assessment hits. At the very least, I would expect the common fees to escalate so the association can catch up to building their Reserve Fund to the level it should be funded at. All the best!

Why Can’t I Install Windows At My Condo On My Own?

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A.C. from Fairfield County writes:

Dear Mister Condo,

I would like to replace a window on my unit. According to the association I own the window. I have asked the association and know what kind of window they approve but they also told me that I must use a licensed installer. My uncle offered his help to replace the window and he is fully capable of carry out this job but he is not licensed. Can the condo association force me to use an installer and pay hundreds of dollars instead of having the job done by my uncle? What are the laws on this matter? Thank you.

Mister Condo replies:

A.C., almost all associations require that all contract work be handled by licensed and insured contractors. It is very likely spelled out in your condo’s governing documents. I am not aware of any state law that compels that the work be done this way but you can imagine the potential liability the association faces if your uncle or any unlicensed or uninsured person gets injured during this installation. This is the reason most condo documents explicitly spell out that all home improvement work be handled by licensed and insured contractors. I appreciate your desire to save some money but you need to be respectful of the governing documents of your association. Some associations go as far as to spell out which contractors you may use as well. That is because the element of architectural compliance is the job of the Board. They often select specific contractors who they have screened and approved to handle the job in a uniform and agreed upon manner. Enjoy your new windows!

Improper Notice of Condo Board Meeting Leads to Questionable Actions

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J.M. from Massachusetts writes:

Dear Mister Condo,

Our board chairperson sent an email on a Thursday for Board members to meet the next evening at 7:00 PM to go over the agenda items that would be presented at the monthly condo meeting of owners. The list of agenda items was provided. Of the 7 members, three could not make the meeting on such short notice. On the night of the meeting, the chairperson brought a motion to reassign the duties of one of the missing members to another board member. All four board members present voted for the change. According to our declaration of trust documents the chairperson can call a meeting with 4 days notice to all board members, which didn’t happen. On top of that they took a vote on something that was not on the agenda. Are the meeting and the vote valid? This is a Massachusetts condo. Would the chair be obligated to retake the vote at another meeting if the missing members demanded it?

Mister Condo replies:

J.M., I am not an attorney nor am I an expert in Massachusetts community association law. For a legal opinion on your question kindly consult with a qualified attorney. That being said, you have mentioned several items that would lead me to think that the actions taken by the Board were in violation of your association’s governance documents and, therefore, may be questioned and thrown out if action is taken against the Board for conducting business outside of association guidelines. The underlying question I have is what did they do and what kind of damage might be claimed against the association as a result of their actions? In my experience, many Boards function as they do because it is expedient and it achieves the Board’s goal of taking care of the association’s business. If the agenda item or the Board action were basically inconsequential then no action may be necessary. But if the Board took extraordinary action as a result of this improper procedure, association members certainly have the right to cry foul and demand that the proper procedure is followed. That may include discarding vote results that were conducted improperly and it may include holding a new vote after adequate notice is given. Good luck!

Condo Parking Lot Warning Stickers

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E.C. from outside of Connecticut writes:

Dear Mister Condo,

Where do I find samples of warning stickers to post on parking offenders car?

Mister Condo replies:

E.C., I did a Google search on “parking lot warning notice stickers” and found several vendors who sell such stickers. But before I send you on your way with the notion that applying stickers to cars will make all of your parking lot problems magically disappear, let me leave you with some friendly advice.

Condominiums, apartment buildings, and any other high-density housing properties are going to face parking lot challenges. Gone are the days of “one family, one car”, so the notion that providing one parking space per unit is both antiquated and inadequate unless the housing is such as it features one resident per unit. Check your by-laws and make sure they are adequate in describing both the parking for residents and guests as well as the rules for violations. Signage in the parking lot can go a long way to dissuade folks from parking where they shouldn’t (fire lanes, T-parking, etc.) and a very public notice of “towing enforcement” combined with actual towing when offenses occur can really help keep the order in the parking lot. If these other policies are followed, there may be no need for parking lot warning stickers. Folks who have had to deal with the cost and inconvenience of having their vehicles towed aren’t likely to become repeat offenders. All the best!

State Law Requiring Shoveling of Condo Walkways

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B.B. from Fairfield County writes:

Dear Mister Condo,

Are condo associations required by Connecticut State law to shovel walkways and other common elements? If so, which state law states it? Thank you!

Mister Condo replies:

B.B., I am aware of no such law. The reality is that condominiums and their common grounds like walkways, parking lots, and even their roads are private property and outside the realm of local and state law with regards to how they maintain their common grounds. This is why you don’t have city trucks plowing your property but, rather, a privately hired contractor who works on behalf of the association. However, most association governing documents require that the association be maintained in good working order for the use of all unit owners. Also, community associations have to answer to insurers when accidents like slips and falls are reported for insurance claims. Not keeping the roads and walkways reasonably clear of snow and ice could nullify the insurance policy and open the association up to quite a liability. For this reason, most associations take removal of snow and ice very seriously.

Ultimately, the removal of the snow and ice is the responsibility of the Board. The Board either hires the snow removal contractor directly or charges the Property Manager with doing so. If the snow removal contractor is performing poorly, they should be fired and a new snow removal contractor hired. If the contract does not specify how often the snow is removed or to what degree of snow removal is required, the contract should be written in such a way as to assure unit owners of properly cleared and maintained walkways in winter. If the Board is unwilling or unable to handle this charge, it is time for some new Board members who will take this issue more seriously. The ultimate power is with folks like you who have to make your concerns known and take action ta make sure those concerns are then addressed. All the best!

Condo Drama of the Highest Order

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H.H. from outside of Connecticut writes:

Dear Mister Condo,

We had a pipe freeze of our sprinkler system in a unit that was under foreclosure. The Property Manager took no preventive action prior to a severe cold snap to ensure the utilities were on in the foreclosed unit. The Property Manager resigned effective 4/30/15 during a heated Board meeting when he was trying to gain control over the repair and reconstruction of the common area and 5 damaged units. He reiterated his resignation in an unauthorized email he sent to all the owners and negatively spoke about some board members. He has since garnered supporters and shopped around a petition for owner signatures for two actions: 1) to remove 2 of 7 Board members who scrutinize his performance and 2) to retain his services. The President of the Board of Directors is suspected to be involved with the petition. The Secretary also involved with the petition gets periodically employed as a handy man by the association and has maneuvered to providing management of the freeze repair without going through any bidding or review process. There has been discussion of conflict of interest but little action to fix the situation. The Secretary refuses to share the petition and signatures with the other Board members. The President is refusing to follow the bylaws and hold a meeting to discuss the petition. We are in the middle of soliciting bids for a new management company. I’m the Vice President and I am one of the targeted Board members named on the petition. Do you have any advice on this craziness other than thank the owners who want my resignation and wash my hands of it?

Mister Condo replies:

H.H., that is quite a drama your association has going on there. Backroom dealing, conspiracies, political maneuvering, personal agendas… Get me some popcorn; I want to see how this movie ends!

Sorry to make light of such a serious subject but emails like yours always have me shaking my head in disbelief over how far astray basic community association governance can go when the wrong people get into office. Let’s start with the Property Manager. If he has resigned and broken his contract with the association then he needs to be out of the picture. Property Managers are not allowed to petition association members for anything unless under direct order from the Board to do so. Based on what you have told me, I’d contact an attorney and threaten with a lawsuit if he does not cease and desist at once any and all further involvement with this association unless he is offered a new contract. The old contract is now broken with his resignation. Depending on your state, you should also report him to the Department of Consumer Affairs or other government agency that oversees Property Managers. If you live in a state that requires licensing for Property Managers you may even ask that they revoke his license based on this behavior.

The impropriety exhibited by your Board Secretary borders on criminal and is another matter for an attorney. Awarding of jobs without bids is likely not allowed under your bylaws. The Secretary who is receiving money from the association for Handy Man work may be in violation of your bylaws and even local law. This is another item for an attorney to bring suit if necessary. I am not sure what your President has done exactly other than behave unethically if he is working outside of the association bylaws.

Legal action aside, this has become a political “battle royale” within your association. If enough association members are fed up with these shenanigans, a recall election should be sought. Depending on your state and your bylaws there is a specific procedure to follow. If typical residents aren’t fed up or they just don’t seem to care, I would resign from the Board and pay close attention to the dealing and actions of the Board. Clearly, I wouldn’t want to serve on such a suspicious Board and I would want nothing to do with this personal agenda-driven Property Manager. But you may be in the minority and there may not be too much you can realistically do about it. You can seek your own attorney to bring action against the Board for improprieties and violations of the association’s governance rules. If your state has an agency concerned with the dealing of Boards and Property Managers you should most definitely gather as much evidence as you can and report them. Condo associations are businesses and, as such, have to be run in an open and legal environment. If they are not doing so, well-meaning unit owners like you can bring them to justice. Good luck and please keep me posted.

Cited by the Board for Too Much Condo Noise

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T.M. from New Haven County writes:

Dear Mister Condo,

I am being fined every week for noise violations of “running, dropping, dragging, banging, stomping, screaming” between the hours of 7:40 am – 8:30 pm. I have a two year-old son who does run, jump, and occasionally scream but this is just normal behavior for a child. Just to let you know the quality of the condo, a person walking in slippers above can be heard. I take my shoes off in the condo and provide a sponge play mat for my son but I can’t think of anything else to do. I think they should invest in a sound proof ceiling. Thanks for your help, I have a hearing shortly.

Mister Condo replies:

T.M., neighbor versus neighbor noise complaints can be particularly difficult for any Board to moderate. The nature of having upstairs, downstairs neighbors creates ample opportunity for each to claim too much noise from each other. The Board cannot fine you for simply “running, dropping, dragging, banging, stomping, screaming” but they can enforce any noise or peaceable enjoyment rules as defined in your condominium governing documents. By your own account, you are aware of the noise and are doing all that can be reasonably done to mitigate the noise. That may be all that is called for in your by-laws or they may state a specific decibel level that is acceptable. Since you mentioned specific hours, I have to assume your documents do speak to hours of required minimal noise although I am surprised that they are daytime hours. Most residents demand quiet in the evening and overnight hours so they can get some sleep. Regardless, once you have read and understand the rights of your neighbor and yourself, you are in a far better position to defend yourself against the noise violation.

It is entirely possible that additional sound deadening measures need to be taken and you could propose that the Board consider allowing you or your neighbor to install such noise insulation. However, the Board may require that you pay for the work, as it is an improvement to your unit – even though it is for your neighbor’s benefit. Of course, if the floors are already carpeted with heavy padding, there may be little else to do. Without knowing the specifics of your condo’s noise rules, there is really little else I can offer at this time. Keep in mind that your Board needs to be consistent in their approach to handling this problem. They cannot single you out for having a child or any other reason. If that happens, contact an attorney who will likely suggest suing them for discrimination. You may also wish to consult with an attorney to review your rights with regards to how much noise you are allowed to make and the hours where such noise is permissible. I wish you good luck at your hearing and resolving this issue.

Condo Comment Box for Owners and Renters; Good Idea?

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D.L. from outside of Connecticut writes:

Dear Mister Condo,

A new comment/suggestion sheet has been written, so that homeowners who aren’t able to attend meetings will be able to add their input about items like safety, maintenance, tennis courts, pool, and garages. They also want renter input, too. Being a member of the association board, I don’t think this is a good idea. Is this even fair to the homeowners? The sheet hasn’t been shown yet to the homeowners, and renters in our building. Your thoughts?

Mister Condo replies:

D.L., when it comes to communications, I always say more is better. I think the more that unit owners and residents have the ability to express themselves the healthier the community will be. However, comments and suggestion sheets are just that – sheets of paper with thoughts from the unit owners, renters, and anyone else who has access to them. They are not governing documents nor will they supplant the efforts of the hard-working volunteer leaders of the community like you who serve on the Board and are the ultimate authority on what happens within the association walls. I, too, serve on the Board at my HOA. I receive input from unit owners and renters in a variety of ways, including phone calls, emails, text messages, door knocks (my favorite!), and casual bumping into of fellow residents whether it be at the mailbox or a nearby grocery store. I welcome the opportunity to have an informal discussion about what they like or dislike about the association and it does factor into my knowledge of resident opinion when it comes time to make decisions about the association. I liken this to how a local politician might hold a Town Hall forum to discuss issues. No decisions are made at such an event but it allows for meaningful dialogue and thoughtful consideration. Of course, I have to weigh each opinion differently. A renter, for instance, has no say in anything that the association does. That doesn’t mean I don’t want to hear their concerns about parking or pool pass use or whatever; it just means that they have an opportunity to be heard. I often instruct renters to discuss their issues with their landlord and explain that only their landlord has a vote in association business.

The real issue, in my mind, D.L., is how you and your fellow Board members may be perceived by the association if you don’t allow this harmless method of communication. Like I said, it is only a sheet of paper with thoughts and comments. There may be some good ideas that come of it. There may be some crazy suggestions, too! Either way, it is a low cost way of keeping residents happy that they have one more way to express themselves. In an HOA, it is important that residents feel they have a voice. Who knows, you might just find your next volunteer from amongst the suggestion-makers. That’s how I found a resident to chair our Beautification Committee. She didn’t like the plants we had chosen. Turns out she is an expert gardener and the community has never looked more colorful or vibrant with her planting choices. All because she had a way to communicate her ideas. Sounds like a “win/win” situation to me. All the best!