Monthly Archives: September 2015

Unattached Houses to Condominium Conversion Sought in Maryland

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P.R. from Maryland writes:

Dear Mister Condo,

I own three detached homes, each with individual tax id, and over their history independently owned. Can I convert the ownership of these three, as they are three in a row neighbor detached houses, into a condominium? If that is theoretically possible, perhaps it is worth investigating said conversion more. Thanks!

Mister Condo replies:

P.R., that is an interesting question and my answer involves you seeking the advice of a locally qualified attorney to assist you in your efforts. Of course, the first question that jumps into my mind is why would you want to do such a thing? A condominium is as much an idea as it is a physical place. Typically, permission is needed by the local municipality or zoning authority that may choose to restrict condominium development or deny your request, in which case your quest is ended. Provided there are no local obstacles to your plan, the next step would be to file the proper papers and form the non-profit real estate corporation that will become the association. In Maryland, that is known as the Establishment of Condominium Regime, which is a real fancy way of describing the process of filing papers. You can read all about it in the Maryland Condominium Act – http://www.sos.state.md.us/forms/CondominiumBooklet.pdf

As you know, I am neither an attorney nor an expert in Maryland condominium law, which brings me to the best piece of advice I can offer you. Speak with a locally qualified expert is this subject before undertaking such a legally binding undertaking. If you understand all that is involved and still feel that the venture is worth your time, effort, and money, then, by all means, go for it. All the best!

Unilateral, Not Selective, Action Against Condo Rule Breakers

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L.C. from outside of Connecticut writes:

Dear Mister Condo,

The Board was notified of a non-compliance issue by a unit owner regarding another unit owner. Since we don’t have a management company & the Board doesn’t police the area, are we able to address this one complaint even if other owners are also in non-compliance?

Mister Condo replies:

L.C., a Board that takes selective action against single unit owners who are not in compliance with association rules and regulations while allowing other unit owners to behave in the same manner is playing with fire, in my opinion, as they are very likely going to be sued for discrimination by the unit owners they take action against. The Board may selectively choose not to enforce each and every rule of an association but they must do so in uniform fashion. For instance, if two unit owners decide to install hot tubs and the association doesn’t all hot tubs, both unit owners should be pursued to remove their hot tubs. If only one unit owner is pursued while the other unit owner is not pursued, discrimination has occurred and the unit owner could sue. More commonly, I see Boards go after pet owners who violate the one or two pet policy rule. They can enforce their rules but they must do so unilaterally so that all unit owners are treated equally.

The Board does not need to police an area of the condo to enforce the rules. If rules violations are reported the Board should take action. That action may include a walk-through and inspection of the area in questions where more violations may be noticed. Again, once the violations are noticed, they should be acted upon (or not) in a unilateral method. You can’t go after one unit owner for a ripped awning when the neighboring unit also has a ripped awning but is not cited for it. It really is as simple as treating all unit owners in the same manner. Good luck!

Condo Board Lays Off Condo Superintendent; Unit Owners Unhappy

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H.B. from outside of Connecticut writes:

Dear Mister Condo,

How do the owners reinstate the assistant superintendent after the Board of Directors laid him off and never said anything about it?

Mister Condo replies:

H.B., unless your condo governance documents allow for the unit owners to vote on the hiring or firing practices of the Board of Directors, which would be highly unusual, I am not aware of any method for the unit owners to reinstate any association employee. Typically, association employees work for the association, not the individual unit owners. If the Board has followed proper procedure for hiring and/or firing any employee, their decision stands. If you and enough of your fellow unit owners are unhappy with how the Board conducts the association’s business, you may wish to elect new Board members at an upcoming election. If the newly elected Board members wished to reinstate a former employee, they would be free to do so. Otherwise, the decision is solely the Board’s. All the best!

Condo Board President Accused of Election Hampering

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B.M. from Hartford County writes:

Dear Mister Condo,

We have a condo board president who has conflicts of interest in that he and relatives have investment units within the complex. He has also acted as a listing real estate agent for a unit within the complex. He has also directed contractors to do certain work on trees around investment unit and directed the manager to keep cost under the $5,000 cap before we have to make unit owners aware of expenditure.

At our most recent Annual Meeting, there were 2 Board positions open. (I’ve kept track of them for a long time.) He denied the 2nd one was open, because if that position was lost by one of his buddies on the board he would lose control of the 3 of the 5 votes on the board and lose his position as president. The Property Manager sat there and didn’t say a word.

How do you rectify this kind of situation? It’s odious.

Mister Condo replies:

B.M., I am always disheartened to hear tales of dishonesty, perceived or real, from condominium unit owners about their democratically elected leaders. If your governing documents call for a 5-person Board, then your Board president has no right to not allow for election of all 5 Board members as their terms come up for election. The Property Manager, by the way, works for the association by way of the Board. The Property Manager’s job is to sit there and observe, not take action. In fact, it could be seen as a breach of duty if the Property Manager does interfere with the business of the election of Board Members so let’s agree that the Property Manager has done nothing wrong here.

Your first assertion is that the Board president has a conflict of interest. I am not sure that I agree. It is quite common for investors and family members of investors to own multiple units within an association. It is not a conflict of interest to do so. It is also not a conflict of interest for the Board president to act as a listing or purchasing agent for units within the association. As Board president, he is the executive in charge of the Board and may be responsible for hiring contractors. If keeping the cost beneath the $5,000 cap is his way of getting work done and it is not in violation of the governing documents, I really see no foul here at all.

What concerns me the most is that you feel the elections were hampered or hindered by the Board president in that he refused to allow the proper number of candidates run for vacant seats. If true, this is a violation of the association’s governance rules and you, as a unit owner, can bring suit against the Board and demand that the elections be held as soon as possible. Speaking of elections, why in the world would the majority of unit owners continue to elect this unit owner to serve on the Board? If he is doing half the things you accuse him of, why doesn’t someone point it out the next time he is up for election and simply vote him out of office? The same is true for his “buddies” who also serve on the Board. They are volunteers from within your association who have been democratically elected by you and your fellow unit owners. If they aren’t doing their jobs in the best interest of the association, vote them out and replace them with volunteer leaders who will. Of course, if they continue to get reelected, association members have no one but themselves to blame for their continued poor performance. Good luck!

Small Condo Justice Most Unjust!

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K.G. from Litchfield County writes:

Dear Mister Condo,

We are having difficulties with our neighbor, and President, who is literally harassing everyone in our three-unit condominium complex. They do not comply with the By-laws themselves, yet send nasty emails to the other two units if they see someone outside and they “suspect” they are doing something wrong. We agree and vote at meetings where all four unit owners and the troublesome daughter of the harassing unit owner, attend. But then when we go ahead with what is voted on and they say we changed the rules. It just is not true and we are at our wits end. How does one deal with unhappy unit owners so that the other two units can enjoy their lives in this lovely setting? There must be some way to deter them from future attempts to harass everyone.

Mister Condo replies:

K.G., extremely small condos like yours face extra challenges when it comes to everyday items like rules enforcement and governance. In an ideal situation, everyone behaves neighborly and lives in accordance with the rules and regulations. In a situation like yours, one Board member has decided that he will serve not only president but also as judge and executioner. All parties need to understand that while there are rules of the association that should be obeyed, there are also rules of governance and state and local laws that must be obeyed. Harassment and the sending of nasty emails can be construed as abuse and the Board president could actually find himself on the receiving end of a lawsuit if a unit owner’s rights have been violated. In a worst-case scenario, it is possible that the police could be called by a unit owner who has received nasty emails or has been yelled at.

If any unit owner observes another unit owner violating a rule, a complaint is registered with the Board for action at the next Board meeting, whenever that is. At that time, the accused unit owner has an opportunity to address the accusation and offer defense. After hearing the unit owner’s side of the story, the Board may then vote to take action as outlined in the association’s by-laws. That may mean a fine or a letter demanding that the rule-breaking stop. If the rule-breaking continues there may be an escalation of fines but that is about all the Board can do, short of bringing a lawsuit against the unit owner, which is unusual unless the rule being broken is outrageous, such as deciding to change the exterior of the building or other flagrant architectural modification of the physical building.

No association has “on demand” rules compliance. It is never acceptable behavior for one unit owner to harass another unit owner. If the community cannot get along on its own then it may be time to bring in the hired guns. Consult with an attorney about your specific rights. If necessary, bring suit against the Board president for violating your rights as a unit owner. Personally, I would sell and move out. I am sure there are other properties in your community that would be far more enjoyable to live in. Even if you get the President to behave better as a President, you still have to live with him and his “troublesome daughter” as you put it. Who needs those kinds of neighbors? Good luck!

“Visitors Only” Handicapped Parking Replaces General Use Handicapped Condo Parking

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W.C. from Florida writes:

Dear Mister Condo,

Recently, my Florida Condo Association changed one of the handicapped spaces to a “Visitor Handicap” space. They have notified the residents that only handicapped visitors are allowed to park in that spot; handicapped owners can not. The community has more handicapped spaces than are required. As an owner, can they prohibit me from parking in that “Visitor Handicap” space?

Mister Condo replies:

W.C., while I cannot imagine why your condo Board decided to convert the space from general handicapped to visitor’s handicapped parking, they are most likely completely within their rights to do so. The common parking areas are owned by the association and their use is governed by the Board. As long as they followed the proper procedure as outline in your governance documents for changing the parking designation, they are well within their rights to do so and enforce the parking rule. If I were you, I would ask them to consider transitioning the space back to general handicapped use but understand they are under no obligation to do so. Good luck!

Shutting Off Cable TV to a Delinquent HOA Member

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J.F. from Florida writes:

Dear Mister Condo,

Can you shut off the cable service to a delinquent homeowner?

Mister Condo replies:

J.F., I am sorry to learn that your association is dealing with such delinquency from a homeowner that it is thinking of taking as drastic a measure as turning off the cable service to this person’s home. I am not an attorney nor am I an expert in Florida HOA law but I suspect the answer lies in two places. First and foremost is the law, which differs from state to state, as to what common amenities may be discontinued by the association to delinquent unit owners. The second factor is your own governance documents which likely detail what can and can’t be done by the association in an attempt to collect delinquent dues. If the association provides utility service such as cable TV, it is possible that discontinuing it is within the association’s rights if outlined in the association’s governance documents. However, my advice is to tread lightly here and seek counsel. Many unit owners count on their cable service for more than just TV. It may also be their internet and phone service you are interfering with. You can just imagine what would happen if the association turned off a unit owner’s phone service and then there was an emergency where the unit owner couldn’t use their association-provided cable service to make an emergency phone call.

You should consult with a local qualified attorney before turning off any unit owner’s association-provided utility. A far better solution, in my opinion, is to institute fines and other collection activities, including but not limited to foreclosure against unit owners who are in serious arrears with their common fees. All the best!

Disagrees With Condo Board’s Decision to Ban New Type of Window

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T.Z. from outside of Connecticut writes:

Dear Mister Condo,

Hello! I would like to replace my condo windows. Unfortunately, I am having trouble getting approval from Condo Association because I have chosen different type of window operation. It is a Tilt and Turn window, which are three windows in one. Depending on the handle position, they can be operated as a fixed window (handle in 6 o’clock position), inward casement window (handle in 9 o’clock position) or hopper window (handle in 12 o’clock position).

They provide excellent ventilation control. The tilt position opens the sash inwards at the top to provide indirect ventilation while maintaining security and safety. This angle allows air to come through the sides while hotter air can escape through the top. Other owners have the sliding windows. Though both types of windows look absolutely the same from the outside, condo association does not agree with the installation tilt and turn windows. Condo Association doesn’t mind color or window material, just the window operation. Is there any possibility how to change their mind? I understand that association must approve the size, glass, color etc. but the operation system? I would highly appreciate any advice. Thank you in advance.

Mister Condo replies:

T.Z., they certainly sound like nice windows and I can see why you want them. However, in all matters of architectural compliance, the Board has the final say on which window products can and cannot be installed in the individual units. The Board is very likely sticking to their guns on the windows, as they don’t want to open the door to folks changing other elements of the exterior design. However, you have every right to ask for an exception or variance and ask the Board to reconsider your request. You also have the right to seek like-minded unit owners who might also like to install the type of windows you are proposing. However, unless the Board approves their installation, you may not install them. If you do, the Board will likely sue you for violating the architectural compliance rules and you would be forced to remove the windows and install association-approved windows in their place. That would be a costly lesson for you, T.Z.. Speak with your neighbors and see if you can find a dozen or so folks who feel as you do that the new windows would not affect the look, just the function. Ideally, win over a Board member or two on the idea as well. Good luck!

Buying a Nice Condo With A Badly Worn Roof

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H.L. from outside of Connecticut writes:

Dear Mister Condo,

Hello! I am looking to buy a condo. Upon the inspection, the roof needs to get redone very soon. I am concerned that the condo association will increase condo fees or require its residents to pay for the new roof or that they will not fix it and it will damage the inside of my condo if it leaks.

What would you recommend? The condo is in almost perfect condition besides the roof.

Mister Condo replies:

H.L., for the most part, the roof is the responsibility of the association. Leaks need to be repaired by the association although you had best have homeowner’s insurance for any possible damage to the unit’s interior caused by a possible leak. You would do well to ask when the last roof was installed and when the association plans on replacing the current roof. If the association has done a Reserve Study, they know exactly when this will be done and how much it will cost. If they have been saving properly for their Reserve Fund, the monies will come from that account to pay for the roof. If not, there will either be a Special Assessment or a loan needed to pay for the roof. The Special Assessment will hit you all at once (could be quite a bit depending on the size and type of the roof – $5,000 or more is not uncommon) or you could see your common fees raised to cover the debt service on the loan. If I were buying this condo I would want an answer to these questions before I purchased. Then, even if I knew I might get hit with a Special Assessment, if I truly liked the condo, I would buy it knowing full well that the purchase price was not the only expense I would likely have in the first few years of ownership. Good luck!

General Rule of Thumb for Condo Reserve Fund?

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L.K. from Tolland County writes:

Dear Mister Condo,

I am looking to buy into a condo association that has been around for about 10 years and presently has 50 plus units and is still building. Is there a general rule of thumb in terms of what the HOA should have in its capital reserve fund?

Mister Condo replies:

L.K., the short answer is “no”. Reserve Fund needs are as unique as the communities they are used to upkeep. The FHA has made a policy of not offering to insure mortgage loans for communities that do not set aside a minimum of 10% of their annual common fees as a Reserve Fund contribution. While that number may be easy to measure, it does not tell the story of what that money will be used for, which is to repair or replace all of the association’s common elements and long-term capital improvements. In an association that offers few or no amenities, there will still be monies needed for roofs, sidewalks, decks, and paint or siding maintenance. Depending on the amount of money that will be needed, a 10% Reserve Fund contribution may only scratch at the true needs of the association, which are quite often closer to 25% or more! Add in amenities like pools, clubhouses, tennis courts and such and that number could climb closer to 30% or higher. Of course, higher Reserve Fund contributions mean higher common fees. Higher common fees can cause potential buyers to go elsewhere so it is not uncommon for associations to keep their fees artificially low so that there is more demand for their unsold units.

I have no problem advising you to purchase into this association as long as you do so with your eyes wide open. A healthy Reserve Fund is impossible to determine from just looking at how much money has been saved or what current percentage of common fees are being contributed. You need to look at a Reserve Study which forecasts what the cost of repair and replacement to the common elements is likely to cost and then determine if the Reserve Fund is properly funded. Good luck!