Monthly Archives: January 2016

“55 and Over” HOA Seeking to Repeal “55 and Over” Status

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J.G. from outside of Connecticut writes:

Dear Mister Condo,

How do we repeal the over 55 designation for our community?

Mister Condo replies:

J.G., depending on the state and local government where your association is, you will have a series of legal actions and filings to make such a change. That is on top of the challenge of getting a majority or more of your current unit owners to agree to the change in the form of a vote. Further, if there are mortgages on any of your units within the community, the mortgage underwriters may also have a say in whether or not the association can change its designation. As you can see, there are many issues to consider and I would STRONGLY advise the association to seek legal counsel experienced in community association law before taking on such a major change. Keep in mind that the original documents establishing the community have legal ramifications that go beyond the current unit owners. I know of some municipal governments that are not eager to see general development of high-density housing like condominiums without the “55 and over” designation. This is because the “55 and over” demographic doesn’t burden the municipality with extra students for its schools. The demographic is also desirable because the “55 and over” market tends to be good taxpayers, many retirees who may be “snowbirds” that pay year-round taxes but do not require services from the municipality year-round. The municipality may not be interested in seeing the community convert its “55 and over” status. Like I said, there are many challenges awaiting you in this quest. Seek help before you undertake it. All the best!

Condo Board Asks Unit Owner to Remove Plants and Bird Bath

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B.C. from Florida writes:

Dear Mister Condo,

I have had a small flower garden with a small birdbath for 15 years in a courtyard shared by 3 other units. I maintain and keep the area neat. I just received a violation letter from the board, (which I am a member of) to remove the plants and birdbath. I am friendly with my neighbors and never heard a complaint. After 15 years can the board now require me to remove the plants and birdbath?

Mister Condo replies:

B.C., this is such an unfortunate situation and I am afraid you may not like my answer. Unless your condo documents state that unit owners are allowed to plant or decorate the association-owned common areas like your shared courtyard, then the association is quite probably correct to prohibit you and any other unit owner from planting or decorating any association-owned common area. That being said, they do need to enforce this provision unilaterally throughout the association. In other words, they cannot simply cite you for the violation while three or four other unit owners go about their business of maintaining another area of the common grounds. One possible solution is for you to acknowledge that you understand that the plants and birdbath are on association-owned property but you would like to offer to maintain the area free of charge to the association and open to any alterations of decoration and planting that the association desires. You might even offer to spearhead a Beautification Committee that would assist the Board in keeping the property nicely decorated. However, the Board is final authority on this matter and you will need to yield to their request, even after 15 years of maintaining the area as you like. When I have seen similar instances in the past, it is usually because a unit owner decides to get creative and install a garden gnome or LED light up lawn ornament or Pink Flamingo that another unit owner complains about. At that time, the Board needs to take uniform action to correct the problem. That may very well be what happened here. Good luck!

Condo Parking and Towing Insurance Issues

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B.M. from Illinois writes:

Dear Mister Condo,

My Board set up a committee to enforce parking rules. We have cars in our lot from folks who do not live in our complex. We have a sign posted that non residents will be towed. One of the 9 lot members is against towing a car because of legal ramifications saying committee members are not protected by the Boards D&O. Others think coverage extends to committee because the Board set them up as a charter. Can members of committee be sued if a non-resident car owner brings legal action?

Mister Condo replies:

B.M., I love a good parking and towing question. The good news is there is no need to guess whether the D&O coverage will protect the Committee members. Simply call your underwriter and explain the situation. They will be glad to let you know if you are covered and likely sell you additional coverage if you are not. In America, just about anyone can sue someone else for just about anything. We are a litigious society so the reality is there will likely be lawsuits. The bigger issue with towing is legality. You need to follow local and state laws before you begin towing. With signs in place, you are likely already taking the right first steps to enforce your common parking area. You want to make sure your governance documents also support the towing of non-resident vehicles. It is also good form to announce your intentions long before the towing begins. In other words send out notices, identify the unit owners who have guests parking overnight and ask them to stop breaking the rules. Offer a carrot before reaching for the stick. Parking is always tricky in a high-density housing area like a condo. However, if the association owns the parking lot, it can enforce its own rules. Good luck!

Condo Neighbor Cooking Up Some Bad Odors!

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J.R. from Hartford County writes:

Dear Mister Condo,

Is there any recourse for smells from cooking (or any strong permeating smells) that make the owners of the adjoining townhouse very uncomfortable? The new neighbors are renters. The complainants are long-time residents but now feel they cannot live in their unit because the smell is so strong. Nothing covers the odors. They are not even sure someone else would buy their unit.

Mister Condo replies:

J.R., that is an interesting problem. Most condominium by-laws have provisions that disallow nuisance, which can come in many forms, including noise, smoke, etc.. The real question is will the odor of strong food smells constitute a nuisance, and if so, can the association take steps to rid the nuisance? Most of the recent legal cases I have seen deal with nuisance odors from marijuana, which is now legal in many states for home consumption. Many condominium associations have brought suit against marijuana-smoking unit owners under the nuisance clause of their governing documents and have been able to prevent smoking of marijuana within their associations.

I am not an attorney but I think you would be well advised to seek a qualified legal opinion on this matter before you proceed further. Challenging someone’s cooking choices could lead to a discrimination lawsuit if the association is not careful. Get a qualified legal opinion before you take action. If you can’t solve the odor problem, at least you will know you did all you could to protect the offended unit owner. Good luck!

Reluctant Condo Landlord Flooded With Problems

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S.G. from New Haven County writes:

Dear Mister Condo,

I own a condo in New Haven. I used to live there but due to a job promotion and relocation, I moved to MA. Of course, I was unable to sell due to the market crash in 2008. I was able to rent it out with mixed success early. So you could call me a reluctant landlord. I have a good tenant now. But that’s a story for a different day.

My situation is the bank-owned condo above me had a water heater blow during winter, 2 years ago. It leaked down to my utility closet and caused some water damage. No biggie. Someone from the Condo Association turned off the water. This past May someone from the bank came to assess the condo to sell or rent. They turned the water back on and never turned it off. Of course, my tenant was away on vacation, the leak wasn’t found until her mom came to check on the condo like a week later. It caused quite a bit of damage to her sons bedroom (ceiling, 2 walls, insulation, carpet, paint & clean up). Now, I didn’t realize I should keep insurance on the condo (rookie mistake). So after being jerked around by the Condo Association that they may pay for it “but would have to check on it”. Meanwhile the clock is ticking for my tenant and me. Finally, I just said the hell with it, and paid out of pocket for it. But now I’m stuck with close to $3,000 I had to pay out of pocket expenses (repairs + discount off rent to tenant for damaged property and “inconvenience”). This is a huge hassle I live out of state and work crazy hours and don’t have time to go to court. What should I do to recoup my money?

Mister Condo replies:

S.G., I am sorry for your worries. Please understand that I am not an attorney so my advice here is strictly friendly. I strongly encourage you to speak to an attorney who can represent you in this matter as I suspect the only relief you will get will come in the form of a lawsuit, which you clearly will not have the time or ability to handle while living out of state.

Yes, you should have had insurance to protect your investment and your tenant. Also, your tenant should have had renter’s insurance although, in my experience, that isn’t all that common. Both of those insurances would have helped mitigate the immediate out-of-pocket expenses for you and your tenant. As you said, this is a lesson learned too late to help this time around.

The bank-owned unit is the responsibility of the bank and they are not without liability here. The association may also be on the hook as they may have a duty to you to repair the damage and file their own claim or pursue the unit owner (the bank) for the damage their negligence caused.

The bottom line is that you need to take action to get these wheels turning. “We’ll have to check on it” is not the response you should settle for. A lawsuit will get their attention. Yes, there will be additional expense to you for hiring an attorney to represent you in this matter. However, given your out of state and crazy hours work status, I don’t see what else you can do if you wish to recoup your loss. Best of luck!

Should Board Honor Mailing Request of Unit Owner’s Son Who Has Power of Attorney?

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S.E. from Tolland County writes:

Dear Mister Condo,

A unit owner’s son has Power of Attorney and is requesting that we send Association correspondence to his email and mailing address as well as his fathers. Is this required or with POA does he just have control over his father’s estate and will need to get the documents as they arrive at the unit owner’s community address? Thank you.

Mister Condo replies:

S.E., let me preface my response with the fact that I am not an attorney so please consider my advice as “friendly”. If you need a legal opinion on this matter, kindly consult with a qualified attorney. Power of Attorney has many applications; some quite broad and other’s quite specific. For the purposes of this answer, let’s assume that the unit owner’s son has power of attorney over all of his father’s legal matters, including his ownership of a unit within the POA. His request to have all correspondence sent to his email and mailing address is both proper and in everyone’s best interest in my opinion. How else can he handle his father’s business? How else can the Board be assured that all of the intended correspondence reached the right party? Is it the Board’s intent that the email and mail meant for the unit owner not be delivered to the person who has the power of attorney to take action on the Board’s requests? For the life of me, I cannot imagine why the Board would not wish to honor such a request. Is it postage cost? By all means, honor the request to have all correspondence from the Board sent to the requested email and mailing address of the unit owner’s son. Be sure to keep a copy of the request to do so on file as part of the association records. Good luck!

Can Condo Board Member Delinquent on Special Assessment Still Serve?

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M.L. from New Haven County writes:

Dear Mister Condo,

Can a unit owner serve on the Board of Director’s if they haven’t paid a $2000 special assessment?

Mister Condo replies:

M.L., unless your by-laws specifically state that eligibility to serve on the Board of Directors is dependent upon common fees and assessments being paid in full, the answer is most likely “Yes”. That being said, there is no reason to reelect any unit owner to the Board who is delinquent in fees or assessments. After all, you need Board members who will act in the best interest of the association when making decisions that will affect all unit owners. A Board member who is having a hard time keeping current on fees and assessments may tend to make decisions that are based on not costing him any additional money versus spending money that may be in the best interest of the association. All the best!

Florida Condo’s Rules on “Relatives” Allowed to Stay at Condo Changes

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J.P. from Florida writes:

Dear Mister Condo,

Can my Florida condo board state in the declaration that immediate family is considered to be someone related by blood or marriage and now say that they consider it to be children, parents, grandchildren or grandparents? I have none of these. My family is my sister, aunt & uncle and cousins, all who have been using my condo for the past three years. The board just keeps changing rules about everything without communicating the changes. My uncle stayed at my apartment a couple of months ago for several weeks. I emailed the building manager and cc’d all the board members and there was no issue. But, when I contacted them recently to advise that my sister will be staying in November and my cousin in February, I was told it wasn’t allowed. I queried this and they said it had always been the rule that immediate family was children, parents, grandchildren, grandparents and this was actually the legal definition recognized by courts. Hasn’t at least a precedent been set that they’ve allowed my relatives to stay for the past 3 years?

Mister Condo replies:

J.P., I can sense your frustration at what appears to be an ever-changing application of rules and the actual rules, themselves. I am not an expert is Florida community association law nor am I an attorney so please accept my advice as friendly and not legal. For a proper legal opinion, I suggest you speak with a qualified local Florida attorney. My understanding of the rules on who can and cannot stay in most Florida condominiums is the most recent iteration from your Board. That is, immediate family is often defined as Father, Mother, Son, and Daughter. Further, both the definition of “family” and the enforcement of the rules are at the discretion of the Board as long as they don’t discriminate against one single unit owner. In other words, they can’t ban you from housing your sister and cousin while allowing another unit owner to do so. Technically, they could have prevented your uncle from staying with you previously but they chose not to. There are lots of factors that go into the enforcement of these rules in my experience. Peak times of usage (December through April in many Florida communities) require a stricter adherence to the rules or the common facilities like parking lots, pools, tennis courts, etc., can become overused by too many guests. Enforcement of the rules in an “off” season may not be as big a priority as there isn’t as much demand on the common areas. One of my Florida attorney friends, Lisa Magill of Becker & Poliakoff likes to use the phrase “it depends”. You can read her response to a similar question on her blog here: http://www.floridacondohoalawblog.com/2011/05/articles/covenant-enforcementviolations/what-rules-and-regulations-are-enforceable/ Good luck!

How Often is the Condo Board Required to Meet?

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G.Y. from outside of Connecticut writes:

Dear Mister Condo,

How often is condo board required to meet?

Mister Condo replies:

G.Y., thank you for writing. Your condo association’s governance documents very likely spell out the governance details such as who is eligible to serve on the Board, election procedures, and frequency of meetings. A quick review of these documents will likely yield your answer. Typically, condo boards are required to meet once per month as prescribed in their condo documents. However, there are plenty of times when those rules are modified or changed to reflect the actual needs of a particular association. For instance, if a community is only active for half of the year (think of a ski resort community), the Board may only meet during the active season and conduct the association’s business during that time. Similarly, smaller community associations that have been around a long time and tend not to have too much business to conduct on a monthly basis may opt to go to a quarterly meeting schedule. Regardless of how often the Board meets, Minutes of those meetings must be taken, approved by the Board at their next meeting, and made available to any association member upon request. Minutes are the official documentation of the meeting and any business transacted. Hope that helps!

Condo Rules Unenforced for Many Years

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E.K. from New Jersey writes:

Dear Mister Condo,

I am the Vice President of a 45-year old, over-55 condo, where rules and regulations have not been in enforcement for MANY years. We are about to embark on a project to begin enforcing these things, and are looking for ways to engage the community ahead of time and to publicize the project. What advice can you give us? (I already have several bottles of Excedrin.) Thanks!

Mister Condo replies:

E.K., when enforcement of some rules has been lax at a community association, residents often feel that they do not need to follow any rules. When long periods of time elapse from when rules are not enforced to when they are enforced, education is often your best ally in helping residents realize that observing the rules will improve their quality of life at the condo. However, if you simply go from no enforcement to complete enforcement without an attempt to first get voluntary behavior modifications, my guess is that you will create a lot of unhappy residents. This is a great communication job for your community newsletter and website. It might also make sense to send out notices to owners and residents as well.

I would first begin by describing some of the problems that this lack of enforcement has caused. For instance, if the primary problem is parking lot chaos caused by not enforcing parking rules, notify residents that not enforcing this rule has created an unsafe situation in our parking lots, exposing the association to unnecessary risk. The rules about parking are as follows: there is no overnight parking allowed in visitor spaces, no parking in the Fire Lanes, no commercial vehicles allowed on the property, and so on. Beginning January 1, the Board has hired XYZ towing company to help enforce these rules. Between now and then, your voluntary compliance is expected. Unit owners violating the association’s parking rules will be cited, asked to appear before the Board to explain why they violated the parking rules and may be fined for doing so as in accordance with association rules. Cars parked in Fire Lanes will be towed at once at owner expense. Of course, you need to have clearly marked Fire Lanes and signage indicating that Fire Lanes at Tow Zones. Your local towing contractor will likely alert you of any other local laws about towing, including notifying local authorities when a vehicle is towed as they are the ones who will get the phone calls about missing cars from effected vehicle owners.

Do similar campaigns for other issues. Typically, the things that create problems for associations are pets, trash, improper storage of personal items, noise, and improper activities on association grounds. I would tackle each of these issues separately and enforce them as necessary. I would also tackle them one at a time until I was certain the rules were being followed. In each and every case you need to be certain that the rules are enforced uniformly. You can’t “let it slide” for one unit owner and not another. Otherwise, the Board could be accused of discrimination and subject to a lawsuit. In many cases, it is wise to speak with the association’s counsel for assistance in rolling out a rules enforcement program to make sure that the rules are legal and properly in place before enforcement begins. But if your rules are well written, widely publicized within the community, and enforced regularly, I see no reason you can’t restore order and improve conditions at your condo. All the best!