Monthly Archives: July 2015

90% of the Condo Unit Owners Want a Dog Run

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C.S. from New York writes:

Dear Mister Condo,

What qualifies an adult (over 55) condo community to get a dog run. We have 192 units and 90 per cent of unit owners have dogs. Thank you!

Mister Condo replies:

C.S., I am not aware of any rule or law that requires a condo association of any kind to install a dog run. As a fellow dog lover I can relate to the desire to have a safe place to exercise a dog but unless there was a dog run installed as part of the initial condominium, it is quite possible there just isn’t space or desire for the association to build one.

My suggestion is that you speak with fellow unit owners with dogs and draw up a petition for the Board to consider adding a dog run. Depending on the sentiment of the Board and the available resources of the community, the Board would very likely consider your request and grant it the due diligence that it reserves. That may mean speaking with a company that installs dog runs, fences, and such about the cost to install and maintain. That may mean speaking with the association’s attorney and insurer about liabilities posed by adding a dog run. That may mean adding the dog run discussion to a vote amongst the unit owners once these new costs and liabilities are known. Ultimately, it may come down to a vote about who is willing to pay the increased common fees that the dog run will cause. I can think of 10% of unit owners who might not be too keen to spend more money on an amenity they will not use. Be ready to sell those unit owners on how beneficial the dog run will be and how much cleaner and safer the property will be after it is installed. Good luck!

Paying Interest on a Non-Existent HOA Loan

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D.H. from outside of Connecticut writes:

Dear Mister Condo,

Our HOA Board requested the community to approve a $1.1M Special Assessment, with the board having right to obtain a $1.9M Loan. The Board stated they went to a lender and the lender turned down the HOA Association for the $1.9M Loan. The Board started collecting the Special Assessments in January. Since no loan is in place the homeowners are paying a special assessment for work that cannot be completed due to the HOA cannot obtain a loan. The payment we make monthly includes interest and there is no lender loan in place. Is it legal or illegal for a HOA to impose interest on a special assessment if they don’t get a loan?

Mister Condo replies:

D.H., as long as the rules for levying a Special Assessment were followed, I do not see where the association has done anything wrong. In fact, if the association cannot obtain financing for the project they are trying to fund, there may be an additional need for further assessment. It appears that your association needs $3M for a capital improvement project and that the monies were not set aside in the Reserve Fund for this major repair or improvement. An HOA loan may be the best way to pay for this project now but if the association isn’t creditworthy enough to attract a lender, I can see where another special assessment may be in the near future.

Your question about interest being paid as part of the Special Assessment that is currently being collected is interesting and may have merit on its own with regards to you seeking a legal opinion. It seems unwise to collect “interest” on a non-existent loan. However, just because they don’t have a loan in place now does not preclude them from collecting the interest on the anticipated loan, which may still be in the works, and which the unit owners have voted for. My own experience with HOA lending has taught me that time is on the side of the association and that just because they didn’t qualify with their first loan application, they may very well qualify the second (or third) time around, especially if they get their financial house in order in the eyes of the lender. That may include paying off other loans, reducing common fee delinquencies, and even having the first $1.1M in special assessments collected and in the bank.

My guess is that your association will end up with a loan of some sort. Whether or not it is for the full $1.9M that the Board seeks will be a matter for the lender to settle. Either way, your association is going to need the money that it is currently collecting to pay for this project. If it were I, I would continue to pay the interest but keep a close eye on the finances when the time comes to pay for the project and the loan. Sometimes, funds have a way of moving from one account to another. The money that was earmarked for interest should be used for interest. Otherwise, unit owners should be able to vote on how else to use that money, including returning it to unit owners if it turns out it wasn’t needed to pay interest. All the best!

Condo Board Encourages Satellite Dishes to Common Exterior

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D.S. from outside of Connecticut writes:

Dear Mister Condo,

I own and live in a condominium. My building is a row of one-bedroom condos, two stories high. I live on a corner unit. Recently, satellite dishes were permitted to be installed on the outside of the wooden staircases. There were two satellite dishes on my unit attached to the side; one for my unit and one for the unit below me. Recently, the staircases had to be replaced and the HOA told the owners of the dishes that their dishes had to be attached to the building itself and not the staircase. Now I have three dishes total right on the trim of my unit. The other buildings that had their staircases replaced have dishes on their staircases again. I called the HOA to complain about having three dishes within 3 feet of each other right outside my unit. It looks awful. The HOA said that what the homeowner did that ordered his dish to be placed on the outside of my unit is right to have done this. I read somewhere else that a dish owner can only install a dish as long as they have exclusive use. I don’t want any more dishes installed on my building. Do I have a legal right to ask for the third dish be removed and reinstalled back on the staircase near their home when the staircases are finished?

Mister Condo replies:

D.S., as you know, I am not an attorney nor am I familiar with the laws in your state regarding the installation of satellite dishes. Please consider my advice as friendly and not legal. For a legal opinion, I kindly ask that you check with a qualified attorney in your area.

As a matter of entertainment delivery, many people (including you) prefer satellite television. I have to agree with you that the dishes themselves are ugly and do not add to the overall good looks and curb appeal that most condominium associations strive for. However, the popularity of the satellite dish television reception cannot be denied and people are enrolled in record numbers around the country. Your question doesn’t deal with whether or not the satellite dish should be allowed but rather where can it be properly installed.

In the early years of satellite dish installations, many condominiums and homeowners associations attempted to ban their use by citing their size and ugliness and their lack of architectural conformity. The Federal Communications Commission and Congress fired back with the Telecommunications Act of 1996 which created the rule you referred to that overrides an HOA’s authority to prevent the installation of a satellite dish in a limited common area that is under the unit owner’s control. In particular, the Act mentions balconies and patios.

What the rule doesn’t do is preclude associations like yours from adding to the areas these dishes can be installed. In other words, the area outside of your unit isn’t yours. It belongs to the association and if they choose to allow satellite dishes to be installed there, so be it. You can ask for the dishes to be moved and the Board may grant your request but I do not believe they are under any legal requirement to do so. Again, I advise you to check with an attorney to get a full legal opinion on this matter. All the best!

Absentee Condo Board Member Hurts the Association

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J.H. from New Haven County writes:

Dear Mister Condo,

Are there any requirements regarding attendance at Board meetings by a Board member? We have a Board member who was elected to the Board, but rarely attends meetings. Our concern is that this sets a precedent whereby other potential Board members may run for the Board, get elected, then attend when it is convenient for them.

Mister Condo replies:

J.H., attendance by all Board members at all condo Board meetings is important for the democratic process to work effectively at any community association. However, seeing as service to the Board is unpaid and voluntary, it is pretty easy to understand how even a well-meaning Board member could be called away at a time when the Board meets and thereby creating an absence from a Board meeting. Once or twice may be understandable but repeated absences should raise a flag as to whether or not this individual is serious about his or her service on the Board and to the community.

Some associations do have rules about attendance at Board meetings, with a certain number of absences during a set time is an automatic remove from the Board. For instance, if the Board meets 12 times per year and had a requirement that Board members attend at least 75% of the scheduled Board meetings, a Board member who missed 4 of those meetings within a year would be removed from service. This is not uncommon but it is only as strong a provision as the Board that enforces it.

What is far more common is for the will of the people to be served. Minutes of each Board meeting are records of the association and are available to all association members. If the Minutes show repeated absences by a certain Board member, the association should simply replace that Board member at the next election. Board members are democratically elected and democratically removed by a vote of the unit owners. Underperforming Board members are not good candidates for re-election, as they are not performing the will of the unit owners. Missed Board meetings mean missed votes on items that may be of great importance to unit owners. A more serious candidate for the Board could easily cite the Board member’s poor attendance as the best reason not to return them to office. Hope that helps.

Condo Neighbor Parks Three Cars In Two Spaces!

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K.B. from outside of Connecticut writes:

Dear Mister Condo,

(1) Each unit (there are two in all) has two parking spaces. My condo neighbors want to squeeze in their visiting son, for the summer, into two spaces, making it three cars in a two-car space. This would take up too much space in the common area and make it difficult for us to pull out of our parking spots. Are there any condo laws concerning this? I can’t find anything specific in the Master Deed Policy.

(2) My neighbor says that my vehicle is too large (15-passenger van) and should not be parked on the premises. Does she have the right to tell me to find street parking?

Mister Condo replies:

K.B., multiple vehicle and oversized vehicle parking will always be challenging issues for residents of condominiums, apartments, and any high-density housing property. It is human nature and convenience for residents, including you, to park their vehicles, whatever the size or quantity, as close to their front door as possible. Your neighbor’s attempt to put three cars into a two-car space or your example of an oversized vehicle that is not ideally suited for a small lot are just two such examples.

Your condo by-laws may address some of your concerns. The Master Deed Policy may describe which spaces are assigned to which units but it is very likely silent on the exact use of those spaces with regards to how many vehicles or what size vehicles are allowed on the property. For those types of rules, I suspect you will need to review your association’s by-laws and/or rules and regulations. If these documents are also silent on the parking rules, it is time for the Board to review the matter and issue some rules. Otherwise, parking chaos will ensue.

For the most part, parking rules include the proper use of parking spaces. This will include rules such as only one vehicle per assigned parking space. Unit owners are not free to convert two spaces into three simply because it is convenient for them. Rules about the size and type of allowed vehicles are also common. For instance, commercial vehicles are often banned from overnight parking on common grounds. Livery vehicles, like limousines are often banned. Rules can be as specific as to overall length or height of allowed vehicles. If your 15-person passenger van doesn’t violate any of the association’s rules then your neighbor has no right to tell you to park elsewhere. To be perfectly frank, your neighbor has no right telling you anything. Rules are enforced by the Board of Directors of the association; not the individual unit owners. If she thinks you are violating a rule, she should report it to the Board and let them issue you a warning or a fine for rules violations.

The bottom line here is that there are a few places to look for your answers. If the documents are silent on all of these issues, you are pretty much free to do what you want until such time as the Board adopts proper Rules and Regulations regarding parking. My guess is that those rules are already in place but you haven’t looked for them in the right place. All the best!

Can the Condo Board Vote by Email?

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R.G. from Hartford County writes:

Dear Mister Condo,

May the board vote via email?

Mister Condo replies:

R.G., please keep in mind that I am not an attorney so please consider my advice as friendly. If you feel your association Board has conducted improper voting by email you would be well advised to speak to a qualified attorney who can give you a more thorough answer and remedy. Here’s my friendly advice:

The short answer to your question is “it depends”. And what it depends upon is a few things. First, do the association’s governing documents allow for electronic communications for voting? Most do not but the Board can adopt a rule enabling it. Second, what is the item being voted upon? If they are simply trying to select a date for the next meeting or reviewing bids on a project that have been submitted, then they are not voting but simply planning. On the other hand, if they are conducting formal votes on things like special assessments, new rules for parking, or anything that unit owns have a right to be present for and observe, it could be argued that they cannot vote via email for such items. Finally, since votes are permanent records of the association and must be made available for inspection by any members of the association, they need to provide an email archive of the votes. Many Boards choose not to vote via email just because of that last clause. If a unit owner questions the validity of the vote, the Board may not simply say the vote was held by email; they need to produce the results of the vote (as well as the motion to vote on the issue as well).

There is a practical application for voting by email; it is convenient. Board members are volunteer leaders of your association and many have obligations that require much more time than they have available to run the association. Keeping each other informed by email is the modern equivalent of calling each other on the phone (another method of voting that requires recordkeeping). For the most part, Boards are well advised to conduct business only at face to face, regularly scheduled Board meetings where the Board Secretary can take proper notes which can be made available to interested unit owners within the association. The Common Interest Ownership Act (CIOA) in our state requires a level of openness that is sometimes difficult to achieve with votes that are not held in person. That being said, there are times when decisions are better made between these meetings. In those cases, the Board may choose to meet or vote via email, provided their association documents allow it, but they must still provide full transparency and documentation of those votes that are held.

Hope that helps. All the best!

Condo Unit Owner Can’t Get Out of the Sun!

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W.L. from New Haven County writes:

Dear Mister Condo,

Our condo unit faces West. We have no trees or plants at the rear of our condo to provide shade. The sun generates so much heat, that our wood floors and furniture and fading in color. We had to buy black out curtains to keep the intense sun rays blocked. The association refuses to let us buy a sun setter awning, and an offside umbrella is not tall enough to block the sun from our slider. What can we do? The patio area is completely useless in the summer months and we don’t want to live in a cave.

Mister Condo replies:

W.L., I am sure that the glorious sun flooding your unit made it very appealing when you purchased. I have a similar situation in my own unit and I know how enthralled I was when I saw how much natural light enters my unit. Flash forward to a few electric bills later and I see how much air conditioning is needed to combat that glorious sun. And my blue leather sofa faded after one year and has been replaced with beige as it seems to handle the sun ray’s deterioration better. Like you, my association also has rules against awnings and I find my blinds drawn quite often during the daylight hours in summer when the sun does its most damage.

At issue for the association is architectural conformity. If the developer had installed awnings or Sunsetter-style shades when the units were first built, there would be no problem. However, as you know, they are not inexpensive and developers aren’t generally concerned with how you will live in the unit after it is sold. The only way you can get your awnings is to ask the Board to consider allowing awnings for all units. The awnings would have to be of a standard type (Sunsetter, for instance) and of an approved color (Unit 1 can’t have white, when Unit 2 has blue, etc.) and would need to have a maintenance standard applied (unless you want to allow faded or torn awnings around the complex). For all of these reasons, it is very unlikely that the Board will approve awnings for you or any other unit owner. It is certainly worth asking and also getting as much support from other unit owners. In my complex, only 1/3 of unit owners face the West and desire awnings. Is it any surprise the measure to add awnings was defeated by a margin of 2 “No” votes to every 1 “Yes” vote? You may have a similar issue where you live.

If you cannot get the awnings you desire approved by the Board, you may have a few hard choices to make. It sounds to me like you are already doing all that you can do. I have resigned myself to using my front balcony patio only during the cool hours of the evening. I am fortunate enough to have a back deck as well so I can always get some fresh air and keep one set of sliders open to the natural light and the other side shut down to keep out the heat and the furniture and rug damaging rays of the sun at bay. Your only other choice is to move and make sure that your next unit has better protection from the sun. All the best!

Trickle Down Effect of Multiple Condo Unit Foreclosures Within an HOA

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S.O. from outside of Connecticut writes:

Dear Mister Condo,

I’m considering buying a condo. But I noticed that it is having a foreclosure problem (due to not paying HOA fees). Should I not purchase the condo? What is the immediate or potential impact of foreclosure in an HOA if other units are foreclosed upon?

Mister Condo replies:

S.O., as you know, I am not an attorney so I cannot offer you a legal opinion on this matter. I must insist that you speak with a qualified attorney from your own state who is familiar with how unpaid HOA fees might affect your condo purchase. As a practical matter, HOA fee delinquency is handled quite differently in different states. In my state of Connecticut, for instance, the HOA has a priority lien for up to nine months worth of common fees on a unit that is foreclosed upon. If a unit that was 12 months in arrears is sold at a foreclosure auction, the HOA is granted 9 months of fees plus reasonable attorney costs for the collection efforts as part of the foreclosure sale process. I know of some other states where the purchaser of the unit may be liable for the owed common fees. If that is the case where you live, you had best know that before your make the purchase. I can’t think of a worse surprise than spending a lot of money on a condo only to find out you then also owe $10,000 or more in unpaid common fees associated with the unit!

If other units within the association are foreclosed upon, the liability to you can be significant. The annual budget of the association is generally derived by looking at the likely expenses of the association. Those expenses are offset by the expected income to the association, which come in the form of common fee payments. If half of the units in an association are in foreclosure, theoretically half of the expected income is not being generated, causing serious delinquency in the association’s ability to pay its bills. In such cases, the association may find it necessary to raise additional revenue from the unit owners who are not in default which they can do as a Special Assessment or a an increase to common fees for the next year. Either way, that money is coming out of your pocket.

I am not suggesting that you shouldn’t purchase this condo, S.O.. I am suggesting that you go into the purchase with your eyes wide open and the advice of a capable attorney on your side advising you of what might legally lie ahead for you. Good luck!

Half Million Dollar Condo Loan Has Unit Owners Worried

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J.F. from Fairfield County writes:

Dear Mister Condo,

My condo wants to take out a $500,000 loan to pave and redo carports. This is a loan we are to pay for the next 10 years. I am worried. Should I be?

Mister Condo replies:

J.F., I am happy to learn that your association is investing in new pavement and carports. Depending on the age of your condominium association, this project may be desperately needed. Capital improvement projects such as this are usually paid for in one of three ways. If the association has been allocating a sufficient amount each year to the Reserve Fund, the money can be used from that fund to pay for the capital improvement. Sadly, almost 70% of association in our country do not have adequate money in their Reserve Funds to handle these repairs and find themselves in the same situation that your Association is likely in. The second option is to levy the dreaded Special Assessment against all unit owners. If I assume you have 100 units in your association that would amount to roughly $5,000 per unit. That large amount could be devastating to some unit owners and might cause them to go into default or even foreclosure. That leaves the third option, which your association has pursued, the community association loan. Borrowing the $500,000 gives the association the money it needs today to get the job done and gives unit owners and extended period of time to repay the loan. Yes, it will increase your common fees as they now need to include the loan repayment as part of the monthly fees but the 10 year time frame means it may hurt less by now having to come up with $5000 all at once. Even if fees go up by $75 per month, most folks can swing that easier than they could having to come up with $5,000 all at once. Yes, there will be interest associated with the loan, which drives the total cost up, but it may be an easier pill for unit owners to swallow in the long run.

You are wise to be concerned but I don’t know if I would go so far as to worry. There are downsides of having increased common fees, which may include a drop in market competitiveness with similar condominiums when it comes time to sell and some folks may have difficulty in adjusting to the higher common fees on a monthly basis. However, if your paving and carports were in disrepair, that could have a far more damaging effect to unit owners who were seeking to sell their units. Plus, the new improvements will offer value every day in increased curb appeal and user enjoyment. Good luck!

Asked to Keep Dogs Off Unit Owner’s “Front Yard”

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M.B. from Ohio writes:

Dear Mister Condo,

Our Ohio condo bylaws state that we can have 2 dogs (total weight not to exceed 70 lbs.). The dogs must be on a leash when outdoors, must be with a responsible person, and droppings must be picked up. Nothing is stated as to where the dogs can or can’t be walked. Our condo area consists of one street (not a thoroughfare) and a walking path around a nice, large pond. We moved into our unit 10 months ago. Well, I’ve just been approached that some neighbors are complaining that as I walk our 2 dogs down the street they are doing their business in their “front yards” (which I pick up). I was told to perhaps walk them away from the curb and take them to & around the pond walking path … all of which sounds nice, but the bylaws don’t specify this. Also, one of our dogs is 15+ years of age, arthritic, and has a difficult time walking the pavement (vs. grass) to the pond area to relieve her aging self. I can somewhat understand where they’re coming from, but those “front yards” – in my opinion – are common areas. And, again, I point to the condo bylaws, which do not restrict where animals can/cannot be walked. (I’m walking the street; they’re up on the grass at times.) With an annual/open board meeting approaching in June – which I/we plan to attend – I’m betting a loud complaint will be raised. How best to respond? By the way, I’ve altered when/where I walk the dogs … but at the same time I’m horrified that this was even brought to my attention. As a new owner, I followed the bylaws. Now what? Any suggestions? Thanks!

 

Mister Condo replies:

M.B., as a dog lover myself, I can relate to your desire to do right by your pets and also do right by your neighbors. If your governing documents are silent on where or how your dogs can be walked, you may well be within your rights to do as you see fit. You mention that you were “approached that some neighbors are complaining” but you didn’t tell me by whom or with what authority you were approached. Needless to say, some neighborhood busybody adding their two cents to the conversation is worth exactly that. If you are being cited by the Board for violating your association’s rules, you should receive notice from the Board that you have broken an association rule. They should identify the rule and issue you a warning along with a possible fine or an intent to fine if the violation continues. Short of that type of citation, there is no harm, no foul; just neighbors chiming in and imposing imaginary rights to imaginary front yards. Unless the property is assigned to a particular unit (highly unlikely) then the common grounds are just that; common! You are free to use them as prescribed in your condo documents. If there are rules that you are unaware of, this meeting may be a place to seek clarification. You may also see unit owners ask for additional rules about how and where pet walking may occur. Unless that happens, it sounds to me like you are doing everything correctly to make sure you and your dogs are being good neighbors and following the rules of the association. All the best!