Monthly Archives: May 2015

Condo Board Lawsuit – What To Do?

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L.W. from Florida writes:

Dear Mister Condo,

We board members have been served with a lawsuit. I recently heard that two board members have been served with lawsuit papers individually as well. Apparently, I’ve been named in them but haven’t been served or given a copy. Am I legally okay to ask for a copy? My condo president says “no”. I live in Broward County in the state of Florida. Thank you for your time.

Mister Condo replies:

L.W., as you likely know, I am not an attorney so I cannot offer you legal advice here. I am also not an expert in Florida state law so I cannot tell you how the lawsuit process works where you live. You should most definitely consult with your own attorney to discuss your rights as they pertain to these multiple cases. Let me share some friendly advice as I usually do in this column.

The lawsuit against the Board, of which you are a member, is likely to be handled by the condo’s community association attorney, who is employed by the Board for just such matters. You need to be kept abreast of what the lawsuit is about and what damages are being sought by the plaintiff. For the most part, association’s carry insurance for Director’s and Officers (D&O Insurance) that may come into play and limit the Board’s liability if the plaintiff is successful. This is the only lawsuit that you have been served notice of at this time from what you have told me. You may also want to get an opinion from your own attorney as to what liability, if any, you may be facing. It is likely not any personal liability but, if it were I, I would want a legal opinion for my own peace of mind.

The other lawsuits are not aimed at you from what you have told me. You may be listed as a witness by the plaintiff (or defendant at some point) and, if you are notified that you need to make a court appearance, you should very likely consult with your own attorney before doing so. Again, this may be for no other reason that to provide you with peace of mind.

I am sorry that you find yourself in this position, L.W., but I am sure with some proper legal advice you will be well on your way to dealing with the litigation. All the best!

Must I Use Condo Board-Approved Contractors?

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A.W. from New London County writes:

Dear Mister Condo,

Can an owner hire a contractor to do condo repairs and refuse work from condo board-approved contractors?

Mister Condo replies:

A.W., it depends on the work and what authority the condo Board has on the items being worked on. For the most part, the association handles major repairs and renovations to the unit exteriors as upkeep and repair on common elements are the responsibility of the Association. Windows, decks, sliders, doors, and garage doors are often the exception, as the individual unit owner may own them. However, architectural compliance is still the duty of the board and, as a unit owner, you are bound by the Boards decision and/or approval of any repair or renovation on these types of elements. If, for instance, the Board has approved XYZ Window company for replacing sliding deck doors and, in particular, a specific model of sliding door, then, “yes”, you need to work with this contractor as no other contractor or type of sliding door has been approved by the Board. You are free to submit your own model of sliding door and contractor to the Board for approval but they are under no obligation to approve it. In fact, many Boards refuse to work with multiple contractors for the same service because it gets too difficult to monitor the exact type of item being installed.

If you are looking to remodel a kitchen or bath that is fully owned by you in your unit’s interior, you may still need to submit the contractors license and insurance information and show building permits if required but you likely have a choice with which contractor you will use.

I hope that explanation helps. All the best!

Leaking Condo Chimney Leaves Unit Owner Soaked

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E.J. from Hartford County writes:

Dear Mister Condo,

I reported a leaking chimney in May, 2014 to the manager and condo board. It wasn’t until December, 2014 that anything was done although I sent pictures of the rain getting in numerous times. They finally put a tarp, then plastic over the chimney. They did get a few estimates, but continued in this “process” until they got a cheap estimate. The Board never even came to see the chimney until 12/29/14. To date, it has not been fixed. I have asked over and over why the finding the cause for the leak wasn’t done last summer; they called it “Badgering.” They even threatened to have me escorted from a monthly board/unit owner meeting. They did send a company to see if there was mold. There wasn’t. They had some joker “waterproof” the outside, which didn’t work and the so-called contractor never even prepared the surface as per manufacturers directions. Do I have any recourse? I did not have use of my gas fireplace and my heating bills went up dramatically. I sent them a bill to have the gas tank removed since they didn’t fix the chimney, and they voted not to pay the company, as they were “held harmless.” Can you advise??

Mister Condo replies:

E.J., I am sorry for all of your problems. And I am further sorry that your frustration level with the Board and Management Company has escalated to the point where civil discourse is no longer the norm and you have been threatened with ejection from Board meetings. Clearly, there is a problem with the communication efforts on all fronts of this issue.

My advice is for you to consult with and hire an attorney to represent you and your best interests. You will very likely want to bring suit against the Board and/or the Management Company for not properly addressing your issue. It could very well be that the Board was doing their best to fix the problem but, clearly, the problem was not fixed and you feel they have violated their covenant with you as unit owner. A lawsuit is likely the best way to get everyone on the same page and focused on fixing your problem.

This is not inexpensive and I suggest you speak with your attorney about recovering your costs as part of the suit. Since they are using terms like “held harmless”, it sound to me like they have already spoken with their attorney. I strongly suggest you do the same or this could drag out for a long time and you may find yourself at odds with your Board and find your quality of life at your condo significantly diminished. None of that is necessary, E.J., and it serves no one that you are labeled as a troublemaker and threatened with ejection from Board meetings. Anger has no place here; this is a legal matter. Hire an attorney and go back to enjoying your condo and being civil to your Board and Property Manager. These folks don’t want this to be a personal matter. Let the attorneys, insurers, and contractors handle it. Good luck!

Board Secretary Regularly Absent from Condo Board Meetings

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J.H. from New Haven County writes:

Dear Mister Condo,

We have a Board Secretary who does a very good job transcribing the notes that are recorded during the meetings, but rarely attends a meeting. When she initially ran for the Board she stated that she would be able to attend the morning meetings even though she had a full-time daytime job. After a few meetings, she said she could not attend daytime meetings. I give her credit for continuing to transcribe the minutes, but this is not fulfilling the responsibilities of a board member. She is now coming up for re-election this summer. Can we deny her the right to run for the Board based on her lack of attendance? I see no information on Board Members attendance in Roberts Rules.

Mister Condo replies:

J.H., there may be no requirements of attendance in Roberts Rules but that doesn’t mean a Board Member, regardless of position, should regularly miss meetings. However, this is a perfect example of democracy in action with regards to how the body of unit owners will handle this person’s candidacy come Election season. Also, your own governing documents (not Roberts Rules) may have clauses on absenteeism and ability to serve on the Board.

Aside from being what sounds like an awesome Board Secretary, this Board member has a duty to attend Board meetings to cast votes on association issues. You can’t do that if you are not there. While the function of the Secretary to keep accurate Minutes and handle association correspondence may not require this individual to be at the Board meetings, the function of voting Board Member is being missed entirely. That is where the disservice to the members of the association comes into play.

Your bylaws may be silent on the matter as well. Some by-laws state that missing two or three consecutive Board meetings is grounds for dismissal from the Board. Some by-laws state that absence from 25% or 50% of the Board meetings is grounds for dismissal. Many say nothing about attendance, which may be your situation. If so, the Board can adopt a measure that adds the requirement or they can do nothing, which is my advice.

When your annual election for Board members comes up next, provided there are enough volunteers ready to run for office, the unit owners should be made aware of this Board member’s attendance record and make a decision on whether or not they want this individual to serve on their Board. Her past attendance may not be indicative of her future attendance and she should have the opportunity to state why she wishes to continue serving on a Board where she never votes. Chances are she will be voted off the Board, which is bad news for the Board who will need a new Secretary and may be hard pressed to find one as diligent, but great news for the association who needs a thoughtful, voting member in attendance at Board meetings to represent their best interests at future Board meetings. All the best!

Unlicensed Property Manager and Bullying Condo Board President

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D.J. from Hartford County writes:

Dear Mister Condo,

I would like to know how to deal with a management company that has not renewed their license through the state of CT. We have a shady management company that has not informed any of the owners that they have not been licensed since January, 2015. We cannot go to the Board because the president is a tyrant that bullies the other senior tenants and board members. Other owners are afraid to speak up about unkempt building changes and the discouragement to have meetings about our high-rise condos. How do we get the other owners to fight back?

Mister Condo replies:

D.J., it is illegal for a management company to practice on our state without a license. The Department of Consumer Protection (DCP) is the keeper of the license records and also the enforcement division. You can simply visit their website at http://www.ct.gov/dcp/site/default.asp and follow the instructions to file a complaint online, via mail, or via phone call. I can’t guarantee what steps they will take to correct the situation because the DCP covers a wide array of services for state residents.

Let’s talk about some of the other issues you have mentioned, in particular, your Board President, who you have described as a tyrant. A condominium association is a democracy where the unit owners have the power of the vote to determine who is elected to the Board. There is no reason to continue to elect any Board member who does not serve the other unit owners. Next election cycle, simply vote this person off of the Board and your problem is solved. Of course, other unit owners need to agree with your opinion and they need to take that resolve with them to the Annual Meeting when the elections are held. Simply be sure that there are enough other good candidates ready and willing to serve.

There is no reason that a well-meaning Board cannot address your building issues. There should be no discouragement to discuss maintenance and upkeep of your high-rise condos. If your association has a healthy Reserve Fund, it may be time to tap into it and complete the repairs. If not, it may be time to talk about raising common fees, special assessments or taking out a community association loan to handle your repairs. Whatever the scenario, getting the discussion going is the critical first step to solving the problem. I wish you all the best in doing so.

Major Flood Damage to Condo Unit Causes Ongoing Problems

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A.L. from New Haven County writes:

Dear Mister Condo,

About 2 years ago, we had a major rain storm in which the water from the roofs of the 3 connected units drained from their gutters down to where our limited common area is, which is our patio in the back of our unit. As we are the lowest elevated Unit of this set of units, the result of the water flowing to our patio not only compromised the structures of our back doors/windows, but also the foundation of the Unit, as the water seeped into our unit from the foundation below and went through our tiles. There are still significant water damage marks along all edges of the stone tiles (corrosion), which became visible shortly after the incident. The Management Company denied any damage and The Association’s Board of Directors did nothing to help us, or repair/restore the damage. The only thing they did was to create a tunnel system to redirect the flow of water from the gutters of the other units’, and we haven’t had a water seepage issue of the same magnitude since. However, the humidity has been an issue since the foundation we suspect has been compromised, and maybe contributing to serious mold, rust, and health issues. Who is responsible and liable for such damages and resulting damages? (Keeping in mind The Association’s BOD’s and The Management Company’s fiduciary duties and responsibilities, and negligence? They have also been denying and misleading and even misrepresenting/lying about what they are to do, which is contradictory to the By-Laws? Wouldn’t provide us copies of the master insurance policy and they’re seemingly redirecting and delaying us to get us past our rights within the statutes of limitations. It seems our HO-6 company wants them to be responsible, and want to waive their rights to subrogation. The statutes of limitations are 2 & 3 years applicable to each entity (The Management Company versus The Association BOD) correct?

Please advise Mr. Condo!

Mister Condo replies:

V.B., I am not an attorney nor am I an expert in Maryland community association law. It would appear to me that since this is an ongoing saga, it may be time that you brought all of the parties together to hammer out a solution that is in everyone’s best interests. The initial damage is done. The ongoing damage continues and unaddressed items such as mold remediation and structural damage may be unresolved. Liability is the key item here and no one seems to be stepping up to claim ownership of the problem. In those cases, it is not unusual for the unit owner to bring suit against the association. It is possible that your homeowner’s insurance company may also want to sue the association (or the association’s insurer) for contributing to the claims that they have had to pay already. This is work that is best left to attorneys and that is my recommendation to you. Hire an attorney that will look out for your best interests and see if you can’t get these problems solved. Good luck!

Condo Owner Seeing Red Over Damaged Greens

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V.B. from Maryland writes:

Dear Mister Condo,

My Association contracts with a landscaping company that cuts our grass. The landscapers damaged my grass over a period of time. The association acknowledged the damage and the landscapers came to re-seed my lawn. Unfortunately, they re-seeded it with a different grass, whose blades are much thinner and color a lighter green than the original grass in my yard. The lighter green appears to be moss. I take much pride in the appearance of my lawn, which is a reflection of my home, as well as its value. I have asked that I be made whole by the association replacing my grass and restoring the original grass so that it can be uniform. At the time (2012), they told me that I needed to wait until next year for it to fully mature and then it will look like the rest. Well, it has now been almost a full 3 years and the re-seeded grass does not look like my original grass. The blades are still thinner and pale. Is the Association responsible for the damage caused by Landscape Company? What recourse, if any, do I have? Thanks in advance for your response.

Mister Condo replies:

V.B., I am impressed with the pride you take in the grounds that surround your condominium. However, I think we may need to talk about Common Ground and who actually owns the grass and land at your condo before I give you my friendly advice. With very few exceptions, condominiums are comprised of the units where the residents live and the common elements that make up the rest of the condominium association. Generally speaking, unit owners own “from the paint on their walls and inward”. Unit exteriors are usually association owned, as are roofs, walkways, roads, parking lots, land, and any amenities such as pools, tennis courts, and clubhouses. There are also limited common elements, which are owned by the association but are for the exclusive use of a unit owner. A deck attached to the back of a particular unit would be a good example of a limited common element.

It is possible that “your” lawn is either yours or a limited common element if it is exclusively for your use. However, that is uncommon. Check your condo docs if you are unsure. If it is association property, all you can do is continue to request that they do a better job maintaining it. If it is your property, you can take whatever action you deem necessary to bring the yard back up to your level of good looks provided you follow any association rules and regulations while doing so.

Hope that helps. I wish you success in bringing back the green!

Squeaky Floor Causes Noisy Ceiling for Downstairs Condo Neighbor

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E.Z. from outside of Connecticut writes:

Dear Mister Condo,

I live on the 2nd floor of my condo. The 1st floor unit owner complained about the noise and is claiming it comes from my unit subfloor. I read the master deeds of my condo. It states: The boundaries of the each of the units are as follows:

Floors: the upper surfaces of the plywood sub-flooring.

Ceilings: the plane of the lower surface of the ceiling joists.

My question is: Is the repair of the sub-floor my responsibility? Does the sub-floor belong to my unit? I thought the subfloor is the responsibility of the condo, Please help! Thanks!

Mister Condo replies:

E.Z., noise complaints aside, the “guts” of the building are generally the responsibility of the association. However, determining where this particular noise is coming from has become a classic case of neighbor versus neighbor. In your case, it sounds like the complaint is the sub-flooring. But how would anyone know if it is the sub-flooring or the joists below that are causing the noise? This is very likely going to come down to an opinion from some type of building engineer to determine whose responsibility it is to correct the noise issue. You might do yourself a favor and reach out to a local building inspector and pay for your own opinion so you do not blindly accept what you are told by the association. If it gets serious or expensive enough, you might wish to also hire an attorney to make sure your best interests are looked after. This could be as simple as some lose nails on your subfloor. It could be as large as a defective or decayed joist, which could cost thousands of dollars to mitigate. The bottom line is that you need to protect yourself during this process and work with all parties to bring about a successful solution. All the best!

Who Pays for a Delay in Turning Over a Newly Built Condo?

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R.N. from outside of Connecticut writes:

Dear Mister Condo,

We only recently found out that the turnover of the newly built condo we bought would have a delay. However, because of the delay, I would not have a place to live for about a month, as my contract with an apartment rental is about to expire. We were told to expect January or February, and we even made allowances until April, but just recently the management tells us that we can only move in by June.

I really think they had a duty to inform us about this, so that we could have made appropriate preparations. But they firmly deny this duty on their part. They say it is our duty to follow up on the status of the condo. I think they ought to get me a place to stay as “just” reparation… What do you think?

Mister Condo replies:

R.N., I am truly sorry that your condo wasn’t ready for you to move into on time. It sounds like you did everything right and the developer just didn’t finish the job on time. However, this is a matter of contract law and unless you had a specific clause detailing what would happen should the developer miss the delivery deadline for the turnover, I am afraid you are more or less at the mercy of the developer. You may have grounds for breaking the agreement if you wish to back out of the deal but, most likely, you are just going to be on the short end of this transaction. Please keep in mind that I am not an attorney and my advice here is friendly and not legal. You may wish to speak with an attorney (I hope you used one when you made this purchase) who can better advise you if you have a legal leg to stand on. The good news is that you should be in by June. I hope you have a wonderful experience in your new condo once this turnover craziness is behind you.

Who Owns the Condo Parking Spaces?

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W.W. from outside of Connecticut writes:

Dear Mister Condo,

 

Is it ok that, in a condo association, my neighbor agreed to give me the liberty to switch my parking spot back to its original spot as I have a Handicap Placard and he doesn’t? They are new owners. Again, it’s a mutual agreement.

 

Mister Condo replies:

W.W., what a kind gesture of your neighbor to offer you the use of their parking space! However, unless the space is theirs to give, your Board may have the ultimate say in who is allowed to park there. In many condominium associations, the parking lots are actually common grounds and, as such, fall under the purview of the Board with regards to assignment and use. It is possible that the parking spaces are deeded (actually a part of the deed to the unit) in which case, the owner may be free to allow whoever they want to park in their space, including you. All that being said, review your deed and your governing documents to determine who owns the space and who can give permission for its use. It may be just as simple for you to petition the Board for a change in space or to designate a handicapped space that works just as well for you. All the best!