Monthly Archives: December 2015

Pet Owners Dismayed Over New Condo Rules

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D.R. from Fairfield County writes:

Dear Mister Condo,

The condo board at my complex is considering charging a monthly fee to anybody that has an “indoor/outdoor” pet because they appear to be upset about dog urine harming grass in the common areas. Our declaration and bylaws state that a single pet is permitted and that unit owners must pick up after the pet. Our condo has been around since 1980 and has always allowed pets and been pet friendly. Now the board is seeking to target dog owners to our dismay. Would it be legal for the board to begin charging unit owners this monthly fee? Would they be able to charge a fee like this through an amendment to the declaration or bylaws? Is there anything in the CT statutes that would prevent them from charging such a fee? It seems to me that the board can charge you for a violation (which a dog going pee is not), a common charge, or an assessment. As for the latter two, I believe that the declaration and bylaws state that they are allocated based upon % of ownership interest–not some category such as pet ownership. Thanks so much for your advice.

Mister Condo replies:

D.R., the common grounds are under the direct management and governance of the Board of Directors, who are the freely elected representatives of the unit owners. They can adopt rules that effect the usage of the common grounds provided they follow the proper procedure as outlined in your condo documents and in accordance with state law. Keep in mind that I am not an attorney and offer no legal advice here, just a friendly discussion of the topic at hand.

Rules are adopted by resolution at a Board meeting. Once the Board votes to accept the rule, it is adopted and proper notice is given to all unit owners. If there is enough “dismay”, unit owners are likely to ask the Board to reconsider or repeal the rule. If the Board refuses, the rule stands. If there are enough unit owners dissatisfied with the rule, it is time to elect new leaders who will; better represent the community members. Pet restrictions are contentious in many communities. If you have no pet owners or sympathizers on the Board, it is not uncommon to see new pet restrictions passed. Often times, these restrictions come from a unit owner complaint of pet waste found outside their unit. Both sides have a point and it is usually one or two irresponsible pet owners who cause the problem. The reality is that it is quite frustrating to legislate where animals can and can’t be walked on common grounds. It is even more frustrating to enforce the rules because those residents that don’t pick up after their pets rarely care about rules.

Common fees and assessments are completely different and really don’t need to enter this conversation. This is about the Board’s authority to create rules, which they definitely have. What they don’t have is autonomous power do disregard the will of the unit owners. If enough of you feel strongly that these rules are not needed or are unfair, you should petition the Board to remove them. Good luck!

Condo Buyers Inspection Report vs. Association Responsibility

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J.R. from Hartford County writes:

Dear Mister Condo,

Our association is working diligently to do maintenance projects as fast as we can in a complex built in 70’s without burdening owners more than reasonable. We raised fees $50 two years ago. We schedule needed common area upkeep at a responsible rate. We have had a few winter crisis interrupting the planned work. Question: when a unit is up for sale, is the board obligated to set aside the planned work to bring their unit up to the required inspector’s request when it is not a safety or leak issue? Example: Yes, we know the unit could use new gutters but it is not on the current list of priorities. It is on a list for next year, hopefully, but we cannot meet the closing date of the sale. It would mean assessing the owners again and since we are trying to get a loan for our long-term work list we don’t want an assessment, too. Thank you.

Mister Condo replies:

J.R., I am not aware of any requirement for the association to meet the requests of a buyer or seller based on an inspector’s report. The inspector’s report is for the benefit of the buyer and it is to alert them to potential problems or deficiencies in the unit prior to them making the decision to purchase. The report is also used as a tool for further negotiating the purchase price as there are often items highlighted in the report that may need to paid for by the buyer in short order. Perhaps some faulty plumbing was uncovered or a trash disposal unit not functioning correctly. If these items require repair at the owner’s expense, they may wish to ask for a few hundred dollars off the selling price to make the repairs. Association-owned assets such as gutters are another story entirely. Since the unit owner is not responsible for the upkeep of these assets, the inspector should still note them so that the buyer is aware of the situation and can take it into consideration when deciding whether or not to purchase. In cases of extreme neglect, I have known sellers to bring suit against the association for failure to maintain the building exterior that has caused a financial loss to the seller but these cases are rare. Also, since the association has a plan in place to make the repairs, it would be difficult for a seller to claim there was no plan for upkeep in place. Keep in mind that I am not an attorney and your association find itself being sued by any of the parties involved, the association would be well advised to seek qualified advice from a community association attorney verse in such matters. Good luck!

Condo Play Area Rules Discriminates Against Children!

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J.J. from outside of Connecticut writes:

Dear Mister Condo,

Last year our association was turned over from the builder to the owners. Our board consists entirely of older members (55+). Recently they have been making changes to the condo by-laws, which appear to be discriminatory against the younger owners. 1) Our development has two common areas. Our unit (we were one of first owners in the development) directly abuts one common area (the price of our unit was $10,000 higher than others to reflect this). We have two children who, infrequently (1-2 times per week, at extremely reasonable hours, 4:00-6:00 pm…they go to bed at 7:30), play in the common area. They have played here for years, without injury or incident (no damage). We recently received a letter stating that children were no longer permitted to play in this common area, but had to use another one further down the street, under high tension wires. We are one of 3 owners with children (one of the other owners has a son who is there infrequently as they are divorced). 2) In the same letter, we were informed that pets could no longer be walked in the common areas due to the impact of urine on the grass. Our grass is not maintained in any way other than cutting and a once-a-year fertilization (no watering whatsoever, other than rain). There is literally no grass in the area directly behind our unit. Instead two areas were termed “dog walking areas.” One is in the woods, near rocks, under high-tension wires, with zero lighting. The other is 1/4 mile down the street…a street through a wooded area that also has no lighting…nor does the actual area where dogs are to be walked.

I am wondering if you had any advice as to how to address these changes with the Board…as well as if any housing laws would outlaw either of these changes. Thank you.

Mister Condo replies:

J.J., as you know I am not an attorney so please consider my advice as friendly and not legal. For a legal opinion, kindly consult with a local attorney in your area who may be familiar with housing laws for your state. You mention that your Board consists of folks who are over the age of 55 but you don’t mention if your community is age-restricted (built exclusively for folks aged 55 and over). For the purposes of this answer, I am going to assume that the community is open to folks of all ages.

Community associations should not pass any rules that discriminate against any particular group, as the federal Fair Housing Agency (FHA) does not take kindly to discrimination. In other words, making rules that limit play areas is perfectly acceptable. Making rules that limit where “children” can play discriminates against children and may be unconstitutional. That being said, it is also perfectly typical for associations to ban playing on any common areas. In fact, many community association insurers insist that associations post rules prohibiting skateboarding, bike riding, ball playing, etc. in an attempt to limit potential claims. You might want to ask the Board why they chose to designate the common area near your home a “no play” zone. At the very least, the rules should be amended to remove the word “children” as that is discriminatory.

As for pet-walking restrictions, you will need to follow the Board’s rules on where you can walk your pet. The common areas are under the Board’s control. Of course, you and your fellow homeowners are the one who have elected them to conduct the business of the association. If they are not properly representing the interests of you and your fellow homeowners, it is time to elect some leaders who will. You mentioned that all of the Board members were over the age of 55. Why not elect some younger folks who can represent the needs of younger families. Perhaps you should consider volunteering to serve. If you don’t get involved in the Board, those in charge will continue to make rules that best suit their needs. Good luck!

Assigned Condo Parking Space Has Impediment

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P.R. from outside of Connecticut writes:

Dear Mister Condo,

My husband and I bought a condo with an assigned parking space. Included in the condo documents was a drawing of the condo parking space with each being the same size. When we tried to pull in, we noticed that there is a concrete column that projects into our space and our car cannot fit. This column is not depicted in the condo association drawing. Do we have any right to a new space?

Mister Condo replies:

P.R., in my experience, condo parking comes as is, regardless of drawings and diagrams. I am not an attorney and you may wish a legal opinion to confirm or see if you have recourse but my understanding is that you have an assigned parking space which has likely included an impediment since it was first sold as part of your unit. Assigned parking is at the discretion of the Board and you could certainly ask for a reassignment but the Board is likely under no obligation to honor that request and may not even have the available space to move you if they wanted to. Did you inspect the parking space before you made the purchase? It is a bit of a “Buyer Beware” situation. If the association built an impediment after you purchased and they took over your space you might have a bit more of a case. Also, if your parking is deeded (the exact space is part of the unit deed), you might have a case. Typically, this is not the case. The Board usually governs the common area, of which the parking lot is typically a part. Sorry I don’t have better news for you. Speak with an attorney to confirm. Good luck!

What is “Cash” On a Condo Financial Statement?

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L.P. from Fairfield County writes:

Dear Mister Condo,

What is the meaning of “cash” on a financial monthly statement? Thank you!

Mister Condo replies:

L.P., without seeing the actual statement you are talking about, I cannot give you a definitive answer. Also, since I am not a CPA my answer may not suffice your needs. That being said, “cash” usually refers to liquid money available in one or more bank accounts that is available to be used for typical, short-term expenses. For instance, if a condo has $100,000 in monetary assets, that entire amount may not be “cash”. There could be $50,000 in the Reserve Fund, likely in the form of Certificates of Deposit (CDs) or bonds. The money is there but it is not readily available so it is not listed as “cash”. There may be Accounts Receivable due to the condo (items like common fees), which may show up as an asset, but it is not “cash”. There may also be small funds for miscellaneous expenses (under $500), which are “cash” but set aside in an expense box. Basically, if it represents money in a readily available checking or savings account, the entry on the monthly statement is likely to show up as “cash”. Just because cash appears on a monthly statement doesn’t mean it is available. Insurance premiums, for instance, come due at different times of the year. $10,000 showing one month may be going towards a $15,000 bill the following month. Hope that helps!

42 Years on the Condo Board!

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J.M. from Massachusetts writes:

Dear Mister Condo,

We have a dysfunctional condo board of trustees where I live. It is a fourteen-unit condo and the self-managed board has been in place since condo was built in 1973. There was an attempt in 2009/2010 to hire a management company but the company dropped us after a year due to one board member who was rude, ignorant and treated the management company as if we were their only client. Issues at hand are:

  1. Certain trustees do not want to fine their friends.
  2. In the past year, the board has taken the lead from one board member who is now gone to not get involved with unit owner issues. The unit owners need to “work it out themselves”.
  3. Some of the trustees cannot follow the rules themselves. They give the rest of the condo the idea that anyone can do whatever they want but harass others who do follow the rules but don’t conform to their way of thinking.
  4. Discriminatory towards those on social assistance or lower class. I was a board member at the time and the renter was breaking the rules but they enforced the rules to get rid of the renter because they “didn’t belong” or “didn’t fit in” with our community. This forced the unit owner to sell his unit.
  5. We had a 15 minute parking spot that was removed because one unit owner continue to allow her son to park there for over the 15 minutes and when fined, the unit owner would complain and have the fee waived because of friends on the board.
  6. Discriminatory against women especially with those that could and would argue back. One male board member, who made himself the lead, thought it was appropriate to degrade the single women on the board by ignoring their request/issues but made sure that get his issues resolved before he sold his unit.
  7. The condo documents are over 30 years old and have never been updated since the condos were built. Trustees do not see the benefit.
  8. There is a bully mentality on this board. Pretty sad since one person is a senior citizen in her 80’s and the other is a school teacher.
  9. We do not follow Roberts rules or assign jobs like president, secretary, etc. The only one on the board that took any type of training was myself through CAI, which I am grateful for.

That is just the tip of the iceberg. I have consulted with a lawyer, which could cost a lot of money. Not sure where I can turn to. Any suggestions or ideas would be greatly appreciated.

Mister Condo replies:

J.M., I am sorry for your troubles. I am not an attorney and I cannot offer legal advice here but I think you have already nailed the answer with your comment about speaking with an attorney. Lawsuits are often the only way to reign in an out of control Board such as the one you have described. Some things they have done are illegal. Certainly the discrimination you have described is downright criminal and could end up costing the community huge sums of money if a discrimination lawsuit is brought against the Board. Individual Board members may also be at risk if it can be demonstrated that their actions were outside of their authority as Board members.

The Board is free to create rules and enforce rules and even waive fines or choose not to enforce certain rules. As a unit owner, you have elected these folks to their positions. You and your fellow unit owners can also unseat them from power by voting them out of office although in such a small community it would appear your talent pool for trustees is somewhat limited. If I understood you correctly, you are talking about folks that have served for 42 years on the Board! If they haven’t learned proper governance techniques in that amount of time, I think it is fair to say they never will. Vote them out and put some fresh talent to work for the association. 42 years is more than enough! Good luck!

$250 Pet Fee Instituted at Condo

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G.S. from outside of Connecticut writes:

Dear Mister Condo,

Our condo association just changed the bylaws and now is imposing a one-time charge of $250 per pet. We have an issue with people, primarily students, not picking up after their pets. Most of the year-round owners do pick up after the pets. Do we have any recourse other than to pay the $250? Can they use this money for anything other than pet cleanup? Also, we have a 30 lb. weight limit, which they do not enforce. Can we opt out of this program here because they do not enforce the rules? Thanks.

Mister Condo replies:

G.S., condo associations are free to create rules and regulations for the governance of their community associations as long as they do not violate their own by-laws, the deeded rights of the unit owners within the community, or local, state, or federal laws. Creating a one-time charge for pet owners is not unheard of and it has been argued that pets place extra wear and tear on properties, which create additional expense. As long as the rule is applied universally, there should be no issue with a one-time charge per pet. However, if the rule were to single out a class of residents, like students as you have mentioned in your question, it may be unconstitutional as it discriminates against students. It would be similar to forbidding children from riding bikes on association grounds while adults were free to do so. That’s a “no-no”.

As far as enforcement of the 30-pound weight rule, that is at the Board’s discretion. In other words, they may or may not decide to enforce that rule. However, again, they may not enforce the rule against some but not all residents. If they are going to enforce the rule, they must do so uniformly. Rules and regulations are in place to protect all unit owners. They are in place to assure a quality of life and give an expectation of reasonable enjoyment of the property without any unit owner deciding to do whatever they want whenever they want to. The rules are only as practical as they are enforceable. Collecting a one-time pet fee is practical. Weighing individual pets may not be as easy to enforce. The idea is that unit owners and residents will want to follow the rules so everyone has an enjoyable condominium living experience. Good luck!

Ridiculous Paperwork Fine Levied by Condo Association

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K.B. from Fairfield County writes:

Dear Mister Condo,

I have been assessed a fine for not mailing in an information form to the property manager by a certain date. Approximately 64 days later I received a statement that I owed $320 in fines ($5 per day) because the office claims it was not received. I completed and mailed this form prior to the due date but I was never informed it was not received. I have never received a formal notice of violation, nor given an opportunity for a hearing. What can I do?

Mister Condo replies:

K.B., I am sorry that the failure of the property manager to receive a form has lead to this unfortunate situation. Stories like this upset me on many levels. Let’s start with what went right and what went wrong and how you can remedy this situation.

Associations in our state are not allowed to simply issue fines to unit owner without proper procedure. From what you have told me, they did not follow that procedure, which should relieve you from any fine. When a unit owner is reported to commit an infraction, like not returning a form, the association must issue a written warning and a summons for the unit owner to appear before the Board to explain. After the explanation is offered (or if the unit owner does not appear), the Board may then decide to assess a fine for non-compliance.

A fine of $320 for not turning in a form on time is outrageous. In my opinion, no court would uphold that type of penalty for such a minor infraction. Fines are meant to deter bad behavior, not supplement the income of the association. If they refuse to remove the fine, I would file an action against them in Small Claims court. Further, your Property Manager should have known better than to issue this fine. Is your Property Manager licensed? I’d check with the state’s Department of Consumer Protection website to find out – http://www.ct.gov/DCP/cwp/view.asp?a=1622&Q=501002&PM=1. If not, file a complaint against the Property Manager for practicing without a license.

Finally, if the association doesn’t release you from this fine, I would do two things. First, I would hire an attorney and bring suit to protect your rights. Second, I would elect new leaders. If these folks aren’t following the laws on proper community association governance, they have no business leading your association. Rules enforcement is noble and required for community association governance. However, knowing the proper procedure for rules enforcement is the only way to govern an association properly and not harass the unit owners who have many rights when it comes their community association living experience. Good luck!

Managing Condo Trustee Not Sharing Records

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Z.Z. from outside of Connecticut writes:

Dear Mister Condo,

Our condo managing trustee does not send a regular itemized budget. I feel he consults with the lawyer when he wishes and it’s not necessarily in our best interest. What is the typical way information is shared about budgets and consults? I’d like to hear his conversations with the lawyer or receive an update. There are only a few owners in our building so we are all trustees. We recently had a massive fire and everything gets filtered through the managing trustee. How much is his right to be efficient and how much is this about trying to exclude us?

Mister Condo replies:

Z.Z., I am sorry for your loss in the fire. I am sure that was devastating to your small community. Smaller associations like yours face many challenges that are particularly challenging due to the size of the association. However, managing trustees are not given the power to operate in a vacuum. Budgets, minutes from meetings, contracts with the association, and much more are all records of the association. As such, they must be made available to any member of the association who wishes to inspect them. You may simply request a copy of the budget if you wish to inspect or you may request to view the budget wherever the records of the association are kept. There may be a fee to do so but the records must be made available.

As far as the lawyer’s consultation, it really depends on what is being discussed. Again, association business that is being paid for by the association should be made available to any member of the association. If the trustee has privately hired the attorney to advise only him, that conversation may be private. My guess is that it is the former. Simply ask to be copied in writing about these conversations. Keep in mind that having the lawyer offer written comments on all that he or she is asked could substantially drive up the fees, which are shared by all members of the association. That is likely the reason these conversations are between the managing trustee and the attorney.

If you feel the managing trustee is not working in the best interest of the community, it may be time for a new managing trustee. Your condo documents likely detail the governance process and election of the managing trustee. Good luck!

Condo Unit Owner Common Water Usage Bill Doubled

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M.M. from Litchfield County writes:

Dear Mister Condo,

We have a problem with the shared sewer. There are 19 buildings in our condo complex. We live in a building that has 16 units. I just found out we all share one common sewer pipe and that usage is divided up among the 16 units of our building equally. We paid $300 per year for the 4 years we have lived here. The new bill, for the past year’s usage is $720! The sewer commission said they did not raise fees; that is actual usage. We asked the association to pay the difference and they refused. Why are we responsible for someone’s use of extra water, or someone’s runny toilet or whatever the issue is, just because we live in the same building? We have no control over what the other people are doing. I asked the association why they did not send letters to alert the units to find and fix any plumbing problems as they once did years ago, and can they please send a letter now, they refused.

What if next time the bill is an extra $1000, or $2000? Why must we pay this because we live in the same building? To us, it as if someone broke their windows, and all 16 units have to share the bill to fix them. Thank you.

Mister Condo replies:

M.M., ah, the joys of sharing utility bills in condominiums! Regardless of how prudent and responsible the majority of unit owners are with their water usage, it only takes one running faucet or leaky toilet to drive up the usage for the entire building. Some communities have turned to submetering (individual meters for each unit) as a solution, which is the fairest in my opinion, but is a solution that comes with a price tag that many associations are not willing to bear. My guess is that your governing documents simply state that the utility bills will be shared in common and have a formula in place for dividing the usage by the number of units. Unless that language is changed, that is the law of the land. It may not appear fair but that was the language of the condo documents when you purchased your unit.

Your suggestion of either asking unit owners to be vigilant is reasonable and it is too bad that the Board didn’t agree to do so. Ask again and explain the reason. If they still refuse, you may wish to write a personal letter to your fellow building dwellers asking them to inspect their water usage and repair any leaks. After all, they are being hit with the same increased water bill that you are. Good luck!