Monthly Archives: December 2015

Smoking Neighbor Ruining Condo Living Experience

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K.G. from Litchfield County writes:

Dear Mister Condo,

We live in a beautiful three-unit condo and have one of the neighbors from you know where! They smoke outside their unit and it fills our porch and waifs into our open windows. We have had guests ask, “Where is that smoke coming from?” while sitting on our living room sofa visiting. There is nothing in the By-Laws regarding smoking but there is the “Annoyance and Nuisance” section in the governing document. We have mentioned this to the owner and his response was, “There is no way you smell my smoke!”. We have called him and asked him to consider smoking from his other door. They now have a perpetual visiting guest who chain-smokes night and day! Our By-Laws state that we need to write a letter to the Executive Board. This man is the president, the third unit owner does not want to “rile” this man or his equally rude grown daughter for fear of repercussions. What course of action can be taken within the law? Isn’t there a law in Connecticut regarding everyone’s right to “Fresh and Pure air”? Thank you for your comments. We are at wits end.

Mister Condo replies:

K.G., you took the civil approach and were rewarded with nothing but grief from the offender. You tried the next logical choice of writing to the Board to enforce the Annoyance and Nuisance provisions of your by-laws and were told they would not do so. Next up, you sue! I am not an attorney so please consider my advice as friendly and not legal. You will most certainly want to hire an attorney to protect your rights in this situation and to make sure that you and your association follow the proper steps for ending this nuisance.

The President of the Board is not immune from following the rules of the association when it comes to nuisance. Your argument will be that smoking in the common grounds created a nuisance condition and you demand that the rules of the association be enforced. I am not aware of any state law on “fresh and pure air” but the Department of Public Housing has an excellent resource for you at http://www.ct.gov/dph/cwp/view.asp?A=3137&Q=486714. If you follow the steps outlined there, you may be able to have smoking stopped completely both inside and outside of the units in your association. Good luck!

Can the Condo Board Function Without a Secretary?

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K.K. from Fairfield County writes:

Dear Mister Condo,

It is legal for a board to run without having a member appointed as a secretary?

Mister Condo replies:

K.K, that is a great question. Your by-laws and governing documents likely outline the number of directors, the duties of the officers, and so on. But they probably do not state that the Board cannot function without a Secretary. However, minutes are the official record of every Board meeting and they must be kept and they must be made available to any unit owner requesting to see them. It isn’t so much a function of having a Secretary as it is of having accurate minutes of the Board meetings that is important. If minutes are not being kept properly any action that the Board takes can be called into question by any member of the association. In the eyes of the court, if minutes weren’t taken the Board meeting never happened. The Board Secretary is a critical position. If the Board cannot find a suitable volunteer to serve on the Board and act as Secretary, they must at the very least have a Board member or other person keep minutes, which the Board must vote and approve if they are to do proper business of the association. Good luck!

Leaking Condo AC Unit Causes Tremendous Damage

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R.K. from outside of Connecticut writes:

Dear Mister Condo,

I live on the second floor of a three-story condo complex. About a month ago, the AC of the unit above me started leaking water and created a two-foot diameter bubble in the ceiling in my dining area and started leaking water.

The owner came over the next day to inspect the damage and said he would take care of it. He told me that he has full coverage and that I should work with his insurance company. I worked with his insurance company for the past month trying to recover the cost of repairs and living expenses during the repair as my family had to live in a hotel temporarily. I paid nearly $7300 for the cost of repair and living expenses.

The owner’s insurance will not cover the expenses and they have found the owner not negligent. Should I take the owner to small claims court or file a claim with my own insurance?

Mister Condo replies:

R.K., you should absolutely take the owner of the unit with the faulty A/C to court and you should do so with haste. In fact, you probably should have done so at the very beginning of this process to expedite the proceedings. I am not an attorney so please consider my advice as friendly. For a proper legal opinion, you may wish to seek the services of an attorney to fully represent you. Depending on your state laws, you may be able to claim the attorney expense as part of your settlement agreement.

You should also document as much of the cause and effect as possible. Take lots of pictures showing the positioning of the A/C and the resultant damage caused by the leaking water. Document everything, including the actions of the unit owner who claimed he would “take care of it”. It’s funny how when his insurance company decides not to pay you may find him changing his tune. He may not have though of taking care of it as including paying for your hotel accommodations while your unit was repaired. This is where the services of an attorney may prove quite useful to you. Good luck!

Checks and Balances for Condo Board Expenses

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W.C. from New Haven County writes:

Dear Mister Condo,

Is there a way that the board can be checked on in reference to expenses when they are not being provided?

Mister Condo replies:

W.C., all invoices, bank statements, and such are records of the association. As such, they are subject to review by any member of the association who inquires. There may be a fee associated with inspecting these records and you may need to make an appointment to do so but the records must be made available to you. If you request to see these records and are denied, you have the right to sue to make the records available.

Typically, individual records are not provided to members as a matter of course. The Board is charged with keeping the expenses of the association in line with the Annual Budget, which was approved at the Annual Homeowners’ meeting. If the Board is spending more than that amount or you suspect dubious activity, you may wish to inspect he records. However, checking individual receipts may not show any impropriety. An audit of the books by an outside firm is your best bet to keep an eye on expenses and/or missing funds. If you do not suspect wrongdoing or missing funds, I might just tell you to trust the people you have elected to do their jobs and safeguard the association’s funds. All the best!

Do Condo Rules Prohibit Routine Automobile Maintenance?

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R.S. from outside of Connecticut writes:

Dear Mister Condo,

Can I open my automobile hood in the condo parking lot in order to check regular everyday maintenance? I would like to fill up all liquid levels of the reservoirs to start normal working condition moving of my car? Thanks!

Mister Condo replies:

R.S., the answer is “it depends” and what it depends upon is the wording of the rules and regulations regarding the use of the condo parking lot. As a general rule, unit owners are not allowed to perform any maintenance (routine or otherwise) on the common areas, including the parking lot. There are several reasons for this including potential damage to the parking lot surface from automobile liquids like antifreeze and oil. Associations want to discourage the practice of unit owner oil changes and car washes where the run-off is a potential eyesore and they certainly don’t want to see cars up on cinder blocks while new tires are installed. There is also the potential for liability as any injury that occurs on association-owned property has the possibility of incurring liability.

Your idea of simple maintenance may not fall under the “forbidden” list at your condo association so you may wish to consult your condo documents or speak with a property manager to see if simple maintenance as you described is allowed. If not, I am afraid you should likely visit your local service station to do such maintenance. Happy Motoring!

Must Condo Board Reveal Unit Owner Requests to Other Unit Owners?

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D.Z. from outside of Connecticut writes:

Dear Mister Condo,

In our condo association, we must request to plant a tree in our limited common area. I have been turned down for several requests, plantings, small water fountain, yet I see other condo owners doing what I want to do. My question, am I allowed to see their requests, either denied or approved?

Mister Condo replies:

D.Z., requests made of the Board are records of the association and, as such, must be made available to any member of the association requesting to see them. Further, the Board should have taken action on these requests at Board meetings where Minutes were kept. You are also entitled to review the Minutes of any meeting of the Board. Keep in mind that there may be an administrative fee to review these records and that you may need to make an appointment to do so but it is your right to inspect these records. Good luck!

No Condo Fees for 19 Years!

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V.C. from Massachusetts writes:

Dear Mister Condo,

I own one unit of a 2-unit condo townhouse. After 19 years without condo fees, my neighbor wants to start a condo trust, using their lawyer to run it. They blame me for the sewer problem we have had since we bought the house. I don’t mind the condo fees but I am thinking they are trying to push me out of my unit by having high condo fees and I think they want their lawyer to handle the HO trust, which will give him a percentage of the funds. I don’t know what else they have up their sleeve or what legally can they do. Is there a cap on how much the condo fees can be?

Mister Condo replies:

V.C., even 2 unit condominiums like yours have condo governance documents that outline everything from condo fees to who is eligible to vote. Most likely, you and your fellow unit owner need to be in agreement on any changes to the rules, annual budget items (including common fees), and even which law firm will handle the condo trust. If you are uncomfortable or uninterested in anything being proposed, my guess is you have the right to prevent it by simply voting “no”. If that is not the case, and your condominium agreement gives full power to set all of these things in motion, you may wish to speak to your own attorney to see what rights you have. I am unaware of any law capping the amount of common fees but I am also unaware of how your condo functioned for 19 years without any common fees. Did the condo hire no contractors for things like snow removal and lawn care? Did you simply split the bills with your fellow unit owner when they came in? If it has worked well for 19 years, you might just want to keep it that way. I doubt that this other unit owner is trying to force you out but you do not have to go lightly if they are. Review your condo documents, hire an attorney if necessary, and protect your investment and your rights. All the best!

15 Year HOA Property Maintenance Neglect Creates Today’s Problem

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W.H. from outside of Connecticut writes:

Dear Mister Condo,

Hi, having a problem with what amounts to a bit of a grey area on owner vs HOA maintenance responsibility on my front entry door. As you’re probably aware, most entry doors (with side glass, in my case) are all pre-hung doors purchased as a unit and then installed into the opening. In our covenant, the owner is responsible for replacement of both doors and windows…..no problems so far. However, all exterior maintenance on our units (cluster homes/PUDs) is the responsibility of the HOA, and the past Board really let things go… No exterior painting of our masonite siding for over 15 years, etc, with lots of rot and water damage. Well, I ended up with some improperly caulked and painted wood around my door and sidelight window, which I have documented (pics included) maintenance requests to please repaint/caulk/repair the small amount of wood rot around the exterior door/window frame before it grew into a huge problem, etc. The former HOA board put some ‘band-aid’ fixes on it dating back to 2008, which slowed it down for a time, but our new board hasn’t responded well to requests to fix expanding exterior water damage and rot. The VP finally verbally told me in April it was too extensive for our handyman, but that we’d get a window company out to assess the damage.

Well, eventually, our new outside management firm contacted me via an outside contractor they use, and told me “doors are the homeowner’s responsibility”, and that they weren’t liable for any repairs or damage remediation. My position is the lack of proper and timely exterior maintenance (with documented repeated requests, as well as a precedent of them at least doing partial repair in the past) point to the damage being caused by a lack of mandated exterior maintenance on the HOA’s part.

We’re at a standoff here, and Home Depot has priced a new door and installation at over $2200. So, question is: in your opinion, is the HOA’s responsibility to maintain the exterior (which wasn’t done property, causing damage to the door and side glass frame) the issue here, or is my responsibility to replace doors and windows at my expense the ultimate issue/responsibility here? I don’t feel I should be held up for over two grand to replace something that the HOA allowed to be damaged by falling down on their job in exterior maintenance.

Mister Condo replies:

W.H., while I agree with you that the cause of the problem was the HOA’s lack of timely maintenance, I don’t understand why you and fellow homeowners have waited until now to take action. The grey area here dates back more than a decade and is not going to have a very happy ending in my opinion. The reality is that the HOA likely didn’t charge owners nearly enough to cover the work that should have been done years ago. Monthly dues should have been much higher than they were so there was no need to apply “band aid” fixes. What’s worse is that my guess is the folks who set those common fees all that time ago are very likely no longer on the Board or even living in your association. They created the problem and are now long gone, leaving you and your fellow homeowners with the sourness of poorly maintained homes that now need lots of work.

I would probably suck it up and pay for the door and any other blatantly obvious defects that are going to further deteriorate your home. Repair first, remediate second. You may wish to consult with an attorney to see exactly what your rights are in this situation but hear me out before you rush to a lawsuit.

HOAs were intended to make life simple for residents. You get the lifestyle; they do the work. It is a great concept and when properly implemented can be quite nice. However, monthly maintenance fees need to be inclusive of all sorts of things not seen to the naked eye. Yes, the grass needs to be cut and the pool needs to be clean but each and every day, common elements are deteriorating. Money is the only counterweight to that deterioration and HOA members are the only source. A long-term budget should have been in place in the early days that took into account all of the maintenance that has been needed over the years. The very first time that this maintenance was neglected, HOA members should have been asking “why?”. At that time, common fees should have been raised so that the association had the money to perform this upkeep. Instead, my guess is that the fees were kept too low and the situation has escalated to this. Special assessments or a loan that will certainly increase common fees are about all that is left for your HOA to get the money it needs to perform the work it is required to perform. And if folks like you sue the association, they will need to raise money for attorney’s fees to defend. This is an ugly spiral that is very likely going to get worse before it gets better.

Your Board needs to work with an attorney and a Reserve Specialist to get a handle on how much money is needed now and how much money will be needed in the future. Common fees likely need to be raised significantly and special assessments may be needed to perform the “deferred” maintenance that has been overlooked for years. You and your fellow HOA members need to hold the association responsible for their actions and elect leaders that are willing to fix the problem. Otherwise, the deterioration is likely to continue. With a steadfast resolve to correct the situation, my guess is that your HOA can turn this situation around, W.R.. It might not be pretty along the way but if is not a hopeless situation. Good luck!

Risk Created By Condo Owners Friends Performing Remodel

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B.S. from Rhode Island writes:

Dear Mister Condo,

We live in one of four stand-alone condo units here in RI. Our neighbors have bought the abandoned fourth cottage and are setting about to do a total remodel on the unit. My question is, if they hire friends to do the work instead of a licensed, insured contractor, how can we protect the condo association from a lawsuit if an injury occurs on the job?

Mister Condo replies:

B.S., the answer is very likely in your condominium documents. There should be a clause in there that states who can and cannot perform remodeling work and what insurances need to be provided. If the work is to the interior of the unit, owned by the unit owner, the risk and liability are on the unit owner. If your condo required unit owners to have homeowner’s insurance, that might take care of it. That being said, if these folks are gutting walls and potentially damaging the structural integrity of the unit, they may need to have local building permits and such before they proceed. As a general rule, all work performed on behalf of the association requires a licensed and insured contractor. Work done by a unit owner on the portion of the unit that they own (the interior) is their responsibility. That being said, it wouldn’t hurt to check with your association’s insurer for their opinion. Better safe than sorry. All the best!

Condo Will Not Renew Leases For Tenants With Pets

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H.S. from outside of Connecticut writes:

Dear Mister Condo,

Recently, our board had the manager send out a letter informing all people who rent units in our condo that when their lease was up that, if they have a dog or cat in the unit, they will no longer be able to lease that unit when their lease runs out. Yes, our documents say that only owners may have pets but that rule has not been observed for many, many years (at least 10 maybe more). If they want to do this don’t they have to pass a new rule about it and aren’t the renters here who already have pets grandfathered in?

Mister Condo replies:

H.S., rules enforcement is at the discretion of the Board. Since the rule was already on the book, renters who entered the community with pets did so at the violation of the existing rule, even though there was no enforcement at the time. In fact, I believe the Board can begin enforcing the rule immediately by serving notice that the renter with the pet is in violation of the association’s rules. They are actually being quite kind by extending the notice to when the lease is ended. What the Board cannot do is indiscriminately enforce the rule so as to target one particular unit owner or renter. I am not an attorney and cannot speak to the legal aspects of refusing to allow renters with pets to remain after their lease has expired but there may be some cases where discrimination can be claimed. I would advise concerned renters to seek the legal opinion of an attorney to see if they have any housing or renter’s rights in your state. Other than that, renters with pets should consider finding new rentals so as not to face lawsuits and possible eviction from the association after they begin enforcing the rule. Conversely, if enough unit owners feel the rule should be removed, they could ask the Board to vote on removing the restriction. My guess is that the Board will not be willing to do that and that there has been some incident that is now putting this chain of events into action. Good luck!