Monthly Archives: September 2015

Illegal Harassment Outside the Power of Condo Board to Control

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J.H. from outside of Connecticut writes:

Dear Mister Condo,

Hello!! I’m an owner of my unit. Been here 8 years. My neighbor has been here 6 years and never had any major problems. However, her new boyfriend or husband moved in a year ago. January up until now, he has continued to aggressively knock, kick, and post notes on my door. He calls me a dyke, tells me that I think I want to be a man. Two week ago he assaulted me. The police had been to the apartment at least 10 times. My condo is doing nothing. Condo board says they don’t know what to do in a situation like this. Now he has an order of protection on him. However, the facilities are small and we still see each other in the hallways. With the order of protection he can still enter the building. I’m afraid for my life and my girlfriend’s life. This is truly a hate crime. Please. Can you help me! The DA and Condo Board are no help! Also, he is not the owner and his name is not on mailbox.

Mister Condo replies:

J.H., I am terribly sorry you are enduring such cruel and unusual behavior from a neighbor. This is clearly an issue that is beyond the scope or authority of your condo Board so you really can’t expect them to act in such a way as to protect you and your girlfriend. I have no idea why the DA is not interested in taking on your case but true hate crimes as you are describing here are a crime and a matter that is handled by the police on the local, state, and even federal level. If you are not receiving satisfaction from your local law enforcement professionals, I strongly suggest you hire an attorney who will help avail you of all your rights and, hopefully, bring an end to this abusive behavior. Good luck!

Right to Address Accuser of Condo Rule Violations

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J.T. from Massachusetts writes:

Dear Mister Condo,

I own a condo in Massachusetts, which I purchased in 2010. I lived there from the time of purchase until moving out of state in 2013 to accept a position in my profession. I decided to keep my condo and rent it, which is within the rules of the condo regulations. Over the years I’ve been an owner in this building, I have witnessed, and been subject to, property management issuing arbitrary threats and fines, that seemingly come out of the blue and are usually excessive in nature, given the situation. While this might sound subjective, the property manager, who is contracted, is the furthest thing from being a people-person. He is often terse, harsh, and accusatory.

Recently this manager has threatened me with fines because of noise complaints towards my tenants. There have been two complaints, to my knowledge, over the past year. I, and my tenants, have apologized for these incidents to the property manager, and have requested that he tell us who the complainants are, so we might contact them and resolve things in a civil way. My tenants are professional people and not troublemakers. The property manager is refusing to give us the names, and is responding to my requests in the manner described above with threats and anger.

While there are references in the condo association rules and regulations about noise, these references are general in nature. They describe being respectful of others and that sort of thing. Nowhere are fines and/or direct definitions of noise, described. I should also clarify that when I lived in the building I was a quiet, respectful and responsible owner/occupant, and now as a landlord, I take responsibility for my tenants and their actions and respond immediately when contacted by the property manager for any issue that comes up. In this case while I was attempting to resolve the issue through email, telephone calls, etc., the property manager lashed out at me with two strongly worded emails (the kind where people type full sentences in capital letters to show their anger). This is the level of professionalism I’m dealing with. It was within one of these emails that he issued the threat of fines if he got another complaint. That all being said, sadly, he has power, I think. And this is the basis for my questions.

Question One – What rights do I have to refuse to pay arbitrary fines assessed by the property manager? I understand my requirement to pay condo fees, and any special assessment. I have never been in arrears with these items.

And question two – do I have a right to know who is complaining about my tenants within the building?

Thank you very much for your help, Mr. Condo.

Mister Condo replies:

J.T., complaints that are logged by the property manager are records of the association, and, as such, can be examined by you or any other unit owner. So the short answer to your second question is “yes”, you do have a right to see the complaint. However, you do not have the right to confront the accuser or negotiate a settlement with them. Your issue is with the Board, the Property Manager, and their collective interpretation of what offense is worthy of a fine and your disagreement with their findings based on the association’s published rules and regulations. You have the right to sue the Board and/or the Property Manager for any and all arbitrary fines they levy against you. However, I would strongly suggest that you speak with an attorney before you do that just to make sure there are no rules in place that you have either overlooked or misinterpreted.

Most associations have rules and guidelines about noise. Most associations also have a punitive system (fines) in place to help enforce those rules. However, the Property Manager is not the decider of the fates of the rules breakers. The Board is the governing authority for such matters and they need to be informed of an infraction (letter or phone call to the Property Manager), review it at their next Board meeting and decide what steps if any are necessary. Some states require a notice of intent to fine to be issued as well as a request for the offender to appear before the Board to tell their side of the story before the Board decides whether or not to issue a fine (if the by-laws allow such action). If the Board decides to issue a fine, the fine should be paid even if the unit owner wishes to protest it. Fines are usually so small ($25 or so) that the unit owners pay the fine and the problem is dealt with. Repeat offenders can find themselves in the crosshairs for larger fines and/or legal action from the Board. Some offenses (parking in fire lanes and such) can be dealt with more immediately with the removal of the offensive vehicle by towing if necessary.

It sounds to me as though your Property Manager may be acting a little bit too independently. If he or she is doing this without the Board’s authority, you can end it quickly with a lawsuit. No Property Manager is above the law when it comes to harassment. Again, speak with an attorney if you feel your rights have been violated. You should also report your Property Manager’s unprofessional behavior to the Board so it can be taken into consideration when the management contract comes up for renewal. Massachusetts does not have a requirement for Property Manager licensing so there is no state authority for you to report the behavior. In neighboring Connecticut, the Department of Consumer Protection licenses all Property Managers and investigates questionable activity. If found to be operating improperly, a Property Manager in our state could find themselves without a license. Good luck!

The Case of the Missing Condominium Governance Documents

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D.C. from New Jersey writes:

Dear Mister Condo,

We are purchasing a unit in a two-unit condo building in New Jersey. Both units are in foreclosure so there is no condo by-laws or homeowners policy or paperwork regarding the condo. Where do we start? We are being told that we need to provide flood insurance and building insurance for the whole structure because the unit downstairs is bank owned. Not sure where to go with this because we are not being handed anything and basically appear to be forced to develop a condo policy on our own. Any help or advice is appreciated.

Mister Condo replies:

D.C., you should begin at your Town Hall or other place of public land records. You should find a copy of the original declaration for the condominium there as well as any other governance documents that were filed when the property was declared a condominium. It isn’t enough to just claim a building is a condominium; there are some very legal papers that were filed to make it so. During a normal sale or transaction, these papers are conveyed to the new unit owner, as they are part and parcel of what the new unit owner is purchasing. Even in foreclosure, someone has a title to the property and these documents should have accompanied the title. If they didn’t, you may need to do a little digging to find them, but trust me, they do exist. Once you locate them, you can simply follow the procedures for governance as the document describes. The association, even in a small one like yours, is the body responsible for providing the necessary insurances for the condominium. This includes the Master Policy and, in your case, it would appear flood insurance as well. The cost for these expenses is included in the annual budget and paid for from common fees, along with whatever other amount is deemed necessary for the association to conduct business.

Governing a two-unit condo is the same as governing a larger condo in theory. However, as a matter of practicality, it is most common for a small condo to be self-governed. However, if you find that this is too difficult a challenge for your first year, you might consider paying a professional property manager a consulting fee or management fee to help get you started. This might prove very expensive but it would get you through this difficult transition period. If you simply “develop a condo policy on your own” you may find yourself in court defending your actions, especially if governance documents turn up and you handled the procedures incorrectly. Good luck!

Who Pays for the Newly Added Condo Roof Structure?

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C.D. from New Jersey writes:

Dear Mister Condo,

I live in a 30-unit condo in New Jersey. We are having water problems. The Board has been advised that the awnings on the building are causing water to get in to some areas and want to replace them with a permanent roof structure. There are only 8 units that have awnings. They want the owners that have awnings to pay more for the new roof structure because they said we are getting more value added to our units. They said they could change the allocation of a special assessment by taking a vote to change the bylaws. We don’t see how this is fair because the other 22 owners are certainly not going to vote to have to pay more money. Can they change these rules?

Mister Condo replies:

C.D., in my experience, there is only one formula for allocating common expenses in a condominium association and that is the percentage of unit ownership formula that is usually detailed in the association’s governing documents. This formula is used to determine everything from common fees to special assessments. It can be based on square footage, desirability of unit location, etc. In a 30-unit association where everyone pays the same, the cost would simply be divided by 30. If larger units pay a bit more or smaller units pay a bit less, so be it.

It is possible that your governing documents make mention of the awnings as limited common elements or even owned by the individual unit owners. If that is the case, the math may be a bit different with the Board able to allocate the cost to the specific unit owners. It has nothing to do with unit owners’ want or fairness about who gets more benefit from the roof structure. If the roof structure is going to become part of the association common grounds, it is very likely going to be paid for by all.

Of course, if anyone were in disagreement with what the Board proposes, they would be well advised to seek an opinion from a locally qualified attorney. I have seen many condo documents where items like this fall into a grey area, as they were not anticipated when the association was initially built. Either way, I hope the new roof structure provides relief from the water damage. Decreased insurance claims from such damage will benefit all unit owners within the association. Good luck!

Condo Board President Targeting Unit Dog Owners

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W.N. from New Haven County writes:

Dear Mister Condo,

Hello, the board president is on a pretty serious power trip. He has been abusing powers, bullying, and all that good stuff. He is very anti-dog and has been creating/changing rules and bylaws based on personal interests. But long story short, can they tell us dog owners where we can or can’t walk within the association? Dogs on leashes is reasonable; pick up droppings is reasonable; but can we legally be fined for not walking on the outside perimeter adjacent to very busy road? It doesn’t seem right or fair. We have a list of 25+ owners who want him impeached. Is that enough? 20 units, each unit has 8 families, small % of renters. Please advise…

Mister Condo replies:

W.N., since you did not detail what other power abuses or bullying is going on at your association, let me address your first concern which is enforcement and adoption of rules regarding pets and their use of the common grounds. Your governance documents outline the procedure for modifying or adopting new rules. Generally speaking, your association by-laws very likely outline the number of pets and where or where not they can be walked on association grounds. You by-laws also clearly spell out how directors are elected and what powers they have to modify or adopt new rules. As long as the Board took the appropriate steps in modifying or adopting new rules for where pets can be walked, then the new rules should be obeyed until such time as they can be overturned. Failure to observe the rules can result in being summoned before the Board and/or fines if it is deemed that the rules were broken.

If your association is truly 20 units in size, then it should be rather simple to elect leaders who are more dog friendly. You can do this at your next annual election, or if you feel there is reason enough to do so, at a special election called by the unit owners to remove the Board President. Again, your condo governance documents describe in detail the process for doing this. A special meeting of the unit owners is called and if there are enough votes to remove a director, the director is removed and a new election is held.

If your association is 20 buildings that each house 8 units for a total of 160 units, then it would appear you do not have nearly enough votes for a recall or a special election. In that case, round up some new candidates and be ready to elect them to office at the next election. Also, write to the Board and show them all of the signatures you have from disgruntled unit owners who would like to see the rules changed for pet walking.

Condominiums are democratic places. Unit owners elect the leaders and unit owner can vote out of office anyone who isn’t cutting mustard. It seems to me that you have elected a leader who is out of touch with his fellow unit owners. The remedy, while not instantaneous, is simple enough. All the best!

Property Manager Licensing in Connecticut

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A.B. from New Haven County writes:

Dear Mister Condo,

Does a Property Manager have to be licensed to manage a condo association?

Mister Condo replies:

You betcha, A.B.! Connecticut has very specific laws about Property Manager licensing and anyone practicing condo association management as a management professional without a license in the state is at risk for being sited and fined by Department of Consumer Protection (DCP), who is charged with overseeing the licensure of Property Managers. The law was passed in May of 2012 and is routinely enforced when violation are reported to the DCP. You can read more about the law at https://www.cga.ct.gov/current/pub/chap_400b.htm. Hope that helps!

Lack of Agreement at Two-Unit Condo

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K.L. from Fairfield County writes:

Dear Mister Condo,

I have bought one unit of a two-unit condo, which operates on an informal basis with respect to managing the property. Prior to purchase, the owner of the second unit agreed that needed exterior maintenance (peeling paint, rotten trim boards, rotten siding boards, etc.) would be undertaken within the year. The condo does not have a Reserve Fund and the other owner is financially constrained. I have offered to lend money to the condo in order to see this work done before the damage spreads and becomes more costly. The other owner has refused the offer and is looking to push back the work 8-12 months. How do you suggest proceeding? Is there an obligation on the condo board to undertake required repairs and maintenance?

Mister Condo replies:

K.L., I am sorry to say that you have a bit of a sticky wicket here, indeed. You will need to review the governance documents for the condominium to determine what the next steps are. In theory, the Board of Directors of the association is responsible for the care and upkeep of the buildings and common grounds that make up the association. However, in such a small condo as yours, the voting power of each unit owner may be 50%. That means if you can’t agree, either owner may be able to block the other owner from taking action. Also, unless the by-laws authorize the association to enter into a loan agreement, you may not be able to properly lend money to the association with any guarantee of payback. You can hire an attorney and maybe even force a special assessment upon the other owner who is “financially constrained” as you so thoughtfully put it. The reality is that unless the two of you can come to terms and reach agreement on how to proceed, you may be looking at an ugly situation, both literally and figuratively. Try working out a plan with your fellow unit owner that you can both agree to. That plan may include one or the other of you selling your unit in a worst-case scenario. Good luck!

Leaky Windows Installed Years Ago Causes Hole in Condo Floor Today

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L.S. from New Haven County asks:

Dear Mister Condo,

I am hoping you can offer some guidance for an elderly friend of mine who lives in a condo. She has lived there for many years and she now has a hole in her floor. Repairmen went out to look at the damage and found that the wood surrounding the hole was bone dry. In their estimation, the hole was caused by old, unseen water damage caused by leaking windows that the association had replaced many years ago. However, the woman never realized the water was damaging the floor as it was covered by carpeting. She reported the damage to the property manager who told her she will have to pay the $1,000 to have it fixed. This woman is 92 years old and very sweet and it just seems to me that the association should have some liability here. Do you have any advice I can offer her?

Mister Condo replies:

L.S., it would appear that the Property Manager is not prepared to accept the association’s responsibility or liability for causing the damage that has lead to this hole in the unit owner’s floor. While I appreciate that at age 92, this is the last thing your friend needs to deal with, there may be only a few viable options available to her. Her condo documents should state what part of the building is her responsibility and what part is the association’s responsibility. If the hole is in the sub-floor directly under the carpet, that might be considered her responsibility and covered under her own insurance if she has homeowner’s insurance (HO-6, here in Connecticut). It is quite possible that her insurance will cover this damage or at least a portion (less her deductible). If she doesn’t have this insurance, the repair may be at her expense.

If the subfloor is the responsibility of the association, that is a whole different matter. She may wish to contact the Board of Directors directly to pursue a remedy or she may wish to hire an attorney if she feels the Property Manager is improperly denying her claim. In the Property Manager’s defense, the length of time from when the alleged damage occurred and today may make an insurance claim on the association’s policy all but impossible. That does not relieve the association from responsibility (if it is determined to be theirs); it just means the $1,000 for the repair will need to come directly from the association, not the insurer.

One other factor that may play into this solution is determining the exact cause of the hole. Damage that occurred many years ago may be difficult to prove for either side. The repairmen may need to provide written testimony as to their opinion as to the cause of the damage. The association may also wish to hire their own inspector to make their own determination. If the reports are in agreement and the association is at fault, the Board may have no choice but to make payment for the repair. However, if the reports are conflicting or inconclusive, this battle may drag on.

I hope that helps. Sorry for your friend’s troubles, L.S..

Condo Board Underinsures Association

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M.K. from outside of Connecticut writes:

Dear Mister Condo,

My condo has $25,000 worth of Fidelity Bond Insurance and the banks are requiring $29,700 of this insurance in order to sell or re-finance. My buyer’s mortgage is on hold until the association purchases more…(only cost is $50.00) but they are deliberating on this subject. If they decide not to purchase the bank-required amount, they are preventing 30 units from being sold. Any re-course?

Mister Condo replies:

M.K., the short answer is “yes and no”. Let me explain. For $50.00, it is unreasonable for this Board not to purchase the required insurance. Many states require that the association provide adequate insurance and liability protection for itself as well as all unit owners. Many association governance documents also state that the Board shall maintain adequate insurance coverage. This should not require any deliberation on the part of the Board; it is the law. However, not all states have this requirement and I do not know what state you live in or how your condo governance documents read. Either way, I would get in touch with a local attorney and threaten a suit if the Board does not act quickly to purchase the required insurance. It would be far cheaper for them to purchase the $50.00 in insurance than have to defend against a suit. Either way, you should prevail. Good luck!

Condo Board Issues Unreasonable Rules on Pet Walking Areas

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T.C. from Maryland writes:

Dear Mister Condo,

I have lived in my condo community for almost 2 years, and I have had 2 dogs the entire time. A Cocker Spaniel and a Maltese Poodle mix. There are rules in my county, Montgomery County, MD which state you have to pick up after your dog. I have followed this rule from Day 1. There are other dog owners in the community who have not followed this rule. It has bothered me as well, however, I never see them not pick up and cannot report which owner is being negligent. I came home one day and there was a sign next to our mailbox area, which says, “No pets are allowed on the grass or in the common areas. Dog waste transmits disease. Walk your pets off the property. Report owners who fail to cleanup after their pets to Montgomery County Animal Control.” I think this goes against some kind of law or rule. It is just like they woke up and decided to make rules to fit a part of the population in the community, not everyone. Not walk on the grass? That means in the entire community? What am I missing? Why is it just because they put up a sign I have to follow it? The rule is stupid, unfair and ridiculous. There is an area behind our building where my dogs run all the time. It is all grass. I truly believe they are trying to make me move or others who have dogs. Dog owners are being targeted in this instance. Is there anything I can do? Is there any type of law that I can look up so I can defend my fellow dog owners and myself? Thank you.

Mister Condo replies:

T.C., I am sorry that you and many of your fellow unit owners are now finding it difficult to maintain your dog-walking areas within your condominium association common grounds. The short answer to your question has less to do with local laws and everything to do with your own condominium governance documents and any rules adopted by the Board to eliminate the pet waste on property that is a problem for all unit owners. City and state laws trump your governance documents on matters of law but it would appear that your Board is implementing rules that are stricter than even the laws, which they are well within their rights to do. However, if these rules do not appear in your original condo docs, it is important that they were introduced, voted upon, and implemented in proper order for them to be enforceable. For purposes of this discussion, let’s assume that they were.

Directors are the democratically elected representatives of the unit owners of your condominium. They are charged with handling the business of the association, which includes making and enforcing rules about keeping the property clean and safe. It is possible that they have been too zealous in their efforts to curb the dog waste problem but unless you and your fellow dog-owning unit owners complain and ask for a reversal of the new rules, you will either have to comply or face notices and/or fines for violating the rules. Perhaps, you could suggest the Board install a designated dog walking area or dog run where the resident pooches could take care of their business? Or, you could ask the Board to remove the new rules but install video surveillance equipment to easily spot offenders who are not properly cleaning up after their pets. Some associations have gone as far as DNA testing of dog waste to catch the culprits. That may sound extreme but it leaves no margin for a unit owner to claim it wasn’t their dog when the DNA is a match. My advice is to speak with fellow dog owners and approach the Board with a collective solution. Good luck to you and your fellow dog-owning residents!