Monthly Archives: February 2016

Can The Spouse of a Condo Board Member Serve in Lieu of the Board Member?

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D.C. from Chicago writes:

Dear Mister Condo,

Can the Board Treasurer of our condo send his wife to represent him at a special owners meeting?

Mister Condo replies:

D.C., that is a great question. Your governing documents most likely address who is eligible to attend a special owners meeting. My guess is that either owner is allowed to attend to represent the ownership of the unit. However, if you are asking if the spouse of the Treasurer can attend the meeting and act as Treasurer and a member of the Board of Directors, the answer is likely “no”, unless the governing documents or state law indicate otherwise. After all, the spouse was not elected to the Board nor was the spouse elected to serve as Treasurer. There is also a question of practicality I would like to ask and that is why is there a special owners meeting being called and what role would the Association Treasurer play in such a meeting? Typically, special owners meetings are only called to replace Board members and have very specialized agendas. If there are tensions between the association and the Board of Directors that have lead to a special owners meeting being called, there may not be a role for the Treasurer to play at that meeting to begin with. As with most items dealing with governance documents, it may be time to get a legal opinion to make sure the rules are being properly observed for the special owners meeting. The attorney could also offer you a legal opinion as to whether any spouse can serve as a Board Member in lieu of the actual Board Member. I hope this all works out for you.

Previous Condo Owner Liable for Improper Window Replacement

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K.S. from outside of Connecticut writes:

Dear Mister Condo,

I just purchased a condo and have discovered that the previous owner installed windows whose color doesn’t’ meet with the requirement of the association. Can I go back on him for replacement costs.

Mister Condo replies:

K.S., most likely “yes”. However, the cost of pursuing a legal remedy may outweigh the benefits of doing so. I am not an attorney so please accept my advice as friendly and not legal. For a legal opinion, you should consult with a local attorney familiar with community association law.

If the previous owner improperly installed windows that the association didn’t approve of at the time of installation, the association should have taken action at that time. However, if the association is now coming after you for the improper windows, you may have to comply with their request and your only remedy would be to sue the previous unit owner. Where it gets tricky is in the value of the windows. Are they brand new? Several years old? Several decades old? Unless you are likely to claim thousands of dollars in window replacement cost, it may be more cost-effective for you to simply replace the windows in question with the correct windows. As long as you plan on owning the unit for years to come, you will benefit greatly from improved efficiency and the joy of owning beautiful new windows. Otherwise, you may still have to pay for the windows and then an attorney to chase down the previous owner for whatever percentage of the cost of the replacement (maybe 100%) can be attributed to the previous owner. This is an unfortunate situation to say the least but, at least, you will have brand new windows to enjoy at the end of the process. All the best!

It’s a “Lose/Lose” for The Underfunded Reserve Condo Owner

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B.B. from outside of Connecticut writes:

Dear Mister Condo,

Since August of 2014, I have been requesting that my front deck/steps be repaired and repainted. It is now one year later, and despite numerous follow up requests, my front steps are becoming unstable and are sore on the eyes. I’m trying to get my condo on the market to sell but the realtor has advised me that I’ve never going to sell with the steps in their current condition. They might not even pass inspection. The HOA is refusing to do any repairs due to lack of funds in the maintenance account. What steps can/should I take in order to get the repairs needed? I’m hesitant to contract any work on my own as that could open a new can of worms.

Mister Condo replies:

B.B., this is a most unfortunate situation. Your association, and your association alone, is the body responsible for making repairs to the common elements of your unit. Further, you cannot and should not make any alterations or repairs to the stairs in front of your unit as you are not the owner of the common element. Generally speaking, you have done all that you can do. You have made note of the poor condition and submitted your request for the repair to be made to the Board and the Board has refused to make the repair. Regardless of the reason, they are the responsible party.

Here’s where my advice can get a little costly. Your only other option is to sue the Board to make the repairs. You are being financially harmed by their willful negligence and they have not fulfilled their contract to maintain the common elements. You will have to pay for an attorney to bring suit unless you can do it yourself. The Board will have to spend money to defend against the suit (which they will likely lose) and then they will have to come up with the money to make the repairs, which will likely yield a Special Assessment for you and all other unit owner within the association. The reality is that your association hasn’t been collecting enough common fees for a long time and that has lead to the Board not having access to the necessary funds when needed for repairs like yours. Underfunded Reserves are a “lose/lose” situation for unit owners. It generally leads to run-down common elements and big problems when unit owners wish to sell, as in your case. Good luck!

Condo Tenant Creatively Tries to Skirt Parking Rules

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B.W. from outside of Connecticut writes:

Dear Mister Condo,

I am on the BOD for a condo association. Each tenant is supplied 2 parking places. We have a tenant who has brought in a 3rd car and was parking in visitor parking which is posted for guests only, no overnight parking. After he was approached on this in anger he went out and somehow obtained a handicapped sticker for the 3rd car. He is now parking in our handicapped parking place. Because he has 2 assigned parking places do we have the right to ask him to remove his 3rd car from the handicapped parking? His 2 parking places are right across from his unit. Thank you.

Mister Condo replies:

B.W., I just hate it when folks move into a condo complex and then intentionally violate the rules. Since you have used the word “tenant” to describe this person, I will assume he rents and does not own the unit, although for purposes of this discussion, it might not make that much difference, although the enforcement provisions you take may be against the unit owner and not the actual tenant.

First off, I am not an attorney, so please consider my advice as friendly and not legal. You may very well need to involve the community association attorney in your enforcement efforts and I do recommend that you seek legal counsel before you get involved with rules enforcement against a person with a handicapped placard. You don’t want to subject your association to a discrimination lawsuit.

It really boils down to the rules you have in place regarding parking and/or handicapped parking at your association. Generally speaking, the parking lots are under the jurisdiction of the association and the Board has the ability to enforce regulation already in place and draft new regulations if so needed. Handicapped residents have no different rights than non-handicapped residents and the Board needs only to provide “reasonable accommodation” to be in typical compliance with state and federal law. If your parking rules already provide for two parking spaces and it can be demonstrated that these spaces are usable by a handicapped person, then I would think that you have provided “reasonable accommodation”. An attorney could give you a better perspective on whether or not your current parking lot arrangements provide “reasonable accommodation”. If they do, you are all set and should be able to enforce your parking lot rules and prevent this resident from having three vehicles on property. If not, you might just have to acquiesce to this resident’s use of the handicapped space. Good luck!

Can the Condo Board Temporarily Reassign My Parking Space?

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N.I. from outside of Connecticut writes:

Dear Mister Condo,

I own a condo apartment in an Association that actually has four Associations. Association 1, 2 and 3 are independent condo Associations. The Association that manages the common elements is called the Recreational Association. The board of the Recreational Association made a decision to replace the swimming pool. I received a telephone call from the front desk person of the Recreational Association that I have to move my car to the Valet Parking for 4 months. I asked for the reasons and was denied answer. I asked if the board approved this movement and was told that she does not know. I asked if I had been sent an official letter from the board indicating the change of the parking space and was told that she did not know. I feel very lost in this situation. I contacted several board members and asked them if they know about this issue. They told me that they didn’t hear nothing about this and only president maybe know. I placed a call to the president but got no response. Should I move my car to the new temporary parking space without the letter from the board? Thank you.

Mister Condo replies:

N.I., the technical and legal answer may lie within your condo governing documents but the practical answer is that you should respect the wishes of the Board and honor their request to park elsewhere while the swimming pool is being replaced. I am not an attorney so, please, consider my response as polite and not legal. If you require a legal opinion, you should consult with an attorney.

Generally speaking, the parking lots at most condominiums are under the ownership of the association and subject to their governance. That means they can make rules regarding how and when the lots are used. They are not typically under any obligation to reveal their reasons for changing the rules but they must serve adequate notice when the rules change. Generally speaking, a telephone call is not adequate notice and you should have been notified in writing. That being said, if you were not notified in writing at the time but you now know of the rule or request that you vacate your usual parking place while the pool work is being done, I would recommend that you honor the request. After all, the work being done is for the benefit of the community, of which you are a member. This is not a permanent reassignment of your parking space, which the Board could very likely also do if they so decided. This is an opportunity for you to be a good community member and work with the Board to help them handle the business of the association. You may have a case to fight them Board for not providing adequate notice of the parking change but, honestly, that is more likely to get you branded as a troublemaker than it is to get you your space back. Work with them until the pool repair is complete. Then go back to enjoying your usual parking space and the repaired pool as well. All the best!

Declarant Leaving New HOA With Unfinished Roads

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M.K. from Middlesex County writes:

Dear Mister Condo,

We have an 8-year old condo community that is under Declarant (D) control who has recently hinted he is ready to relinquish control to an HOA. The problem is that the road paving is not completed with only a deteriorating base present and no top coat. Declarant has repeatedly stated he will not finish road until all lots built on due to fear of construction vehicle damage. I fear he will leave us with a road still needing finishing and no reserves for it. Issue is not addressed in our documents. Any recourse?

Mister Condo replies:

M.K., Declarant control issues are quite different from the vast majority of questions I receive at Ask Mister Condo. While I was fairly certain of the answer, I called in some help from an attorney who specializes in community association laws here in Connecticut. Here’s what the attorney had to say:

“The answer to your question will depend on exactly what the project plans, zoning approvals, and individual purchase contracts say, although usually complete construction of permanent roadways suitable for normal use is considered part of the implied warranties for each unit sale.  Get the association’s attorney involved to keep a close eye on the developer’s progress.  If it looks like the developer will disappear or become insolvent before the roads are completed, the courts may be able to offer remedies.  If a violation or even a potential violation can be proven, it might be possible to secure the money needed to complete the roads with an attachment, functioning like a lien, against the developer’s unsold units.”

Sounds like great advice to me, M.K.! Best of luck to you!

Records of Condo Common Fees Receipt Missing; Late Fees Ensue!

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T.P. from outside of Connecticut writes:

Dear Mister Condo,

We have a new Board of Directors. The old board did not turn in all the accounting records (according to them) so they are building the records of the payments. During this whole reconstruction of records, they are taking the date that my checks were deposited and not the actual date of my turning in of the checks. When they gave me the one-year statement showing late fees and non pay maintenances I was livid, since I was very much aware that I did not owe the association. I requested the seven-year history of my payments. That was even a worse idea because it wasn’t only $1000 I owed but now it was $2700! I sent the condo lawyer all the pertinent documents showing my checks with the correct dates, a letter from the previous president explaining how the payments where mailed after received to another city, etc. but they still refuse to honor the previous president’s explanation. I am desperate because they filed a lien against my unit. I contested the lien, but it is an ongoing thing. I am at the end of the rope because I am on disability and I do not have that amount and even if I did it is unfair to have to pay something I do not owe. Our family owns four apartments and we always pay at the same time and include the checks in the same envelope. Even some of my payments were made by my mother and I can show her checks and they were cashed at the same time but I am afraid to use this card because they can go against my mother who is 81… Please can you give me some clarity? Thank you!

Mister Condo replies:

T.P., in a nutshell, your current Board is making some really bad decisions that are likely going to come back to haunt them and may even end up in a lawsuit from you and other unit owners who are going to claim that they are being unfairly harassed and charged for fees they shouldn’t have to pay. I assume you are not alone in this fee dispute and that most of the other unit owners are just as upset as you are. If they have accurate records (not likely, from what you say) demonstrating late payment s for you and all of the other homeowners, they may be able to stick to their decision to collect the late fees. Since it is more likely that they cannot prove when the checks were received (due to poor recordkeeping), they should err on the side of clemency for previously made payments. If enough homeowners are effected and angered by their behavior, they may face removal from office the next time elections come up or the homeowners may move for a recall to get them out of office early. Either way, they are not looking out for the best interests of the homeowners and they are opening themselves up to some trouble.

If, on the other hand, you are the only homeowner facing these charges, there may be something else going on here. In this case, it would be a “you said, they said” scenario with the evidence weighing in the Board’s favor. If none of the other homeowners in your association have faced this problem, you may not have much of a case for challenging the Board. Unless you can prove when you delivered the check to the association (certified mail, for instance) you have no more proof to offer than does the Board, who is likely to refute your unsubstantiated claim. That would be most unfortunate and a scenario where I would advise you to speak with an attorney to see what other legal avenues you may be able to pursue.

I am assuming that you were not the only one effected by the Board’s decision to collect late fees based on dates of deposit. If that is the case and the Board doesn’t change their ways, my advice is for you (and others effected) to seek counsel and sue the Board. Be sure to include your legal expenses of hiring an attorney when you sue them. You shouldn’t have to bear the extra expense of hiring an attorney to protect your rights against their shameful behavior. Keep me posted and good luck.

Condo Board’s Attorney Expenses Against Renter Passed on to Landlord Owner

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G.P. from outside of Connecticut writes:

Dear Mister Condo,

We are condo owners who hired a manager to rent out our condo. He lied about a German Shepherd in our rental…above weight restriction. As owners, we had no idea the dog was in our rental. The condo association wanted the dog gone, hired a lawyer, etc… Back & forth for five months with renters. They got a doctor’s note and hired a lawyer, claiming the animal was an emotional support animal for depression. The condo association continued with the lawyer and lawyer’s fees after receiving the doctor’s note/lawyer’s letter. Now the condo association is coming after us for the lawyer fees…$1500! Our property manager & ourselves no longer have a contract. HELP. We are caught between the renters & the condo association.

Mister Condo replies:

G.P., the courts around the country have not taken kindly to HOAs aggressively going after condo dwellers who present doctor’s notes in support of animals that are classified as Emotional Support Animals (ESAs). I am not sure what you mean by “coming after us” for the lawyer’s fees run up by the association or if these fees predate the ESA letter presented by the tenants. Until that letter was presented, the lawyer’s fees may be justified and you may be liable. Rental agent or not, the association’s rules were being broken up until that point and the association has a right to pursue remedy for their legal expenses against you, the unit owner. However, once the doctor’s note was presented, all legal activities should have stopped. If the attorney’s fees the association is trying to collect are for bills from the attorney for hours spent after the note was presented, you should refuse to pay that portion of the bill. As a matter of contract, you may be able to sue the rental agent for renting the unit to a dog owner in violation of the rental terms, but only for the amount of damages in attorney’s fees levied against you before the doctor’s note was presented.

I realize that all of this sounds confusing and, since I am not an attorney, my advice to you is to hire an attorney if you need to. My first instinct would be to refuse to pay these fees and see how serious the association is about pursuing a remedy against you. Once all of the facts are known about the timeframe of these attorney fees, you will know whether or not you have a legal leg to stand on. Also, the amount in question may be easier to pay and write off than to fight. This is a business decision you can make once all of the facts are known. Either way, this should be a good lesson to learn regarding future rental of your unit. Allow no pets and make sure that any ESA that will reside in the unit is well-document so that the association cannot challenge the animal’s eligibility to live in the unit. All the best!

Deeding Condo Parking Lot Spaces

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D.E. from outside of Connecticut writes:

Dear Mister Condo,

We are a newer association – recently changed from contractor to an owner board. We have an opportunity through a recent development – to deed our parking spaces – but worry that we lose flexibility for piling snow and restricting daytime use from our 3 commercial units – they don’t get “formal” spaces. The question is – can we legally deed the spaces – but in practice – allow first come first serve? We don’t really have an issue with having enough spaces – but being downtown we often have people park for a haircut – ignoring signs – and its not really an issue – but if we hard assign spaces, it will be. So, we want the “deeded spot” for the value that brings to the property – but the “first come first serve” for flexibility (and reality that I can get someone towed – but where do I put my car in the meantime). I would like to offer this as a vote to our community – but not sure if it would be legal to do so – does having a defined deeded space mean we absolutely need to park in that space?

Mister Condo replies:

D.E., I would caution you against using the term “deeded” parking space unless you intend to amend the deeds of each of the units in your association. Having the association control the parking space is far more common and restricting the use to owners is a fairly simple task and easier to manage, in my opinion. The common grounds of the association are private property, that is to say, the association owns the parking lots and can control their use as outlined in the condo’s governing documents. You can number the spaces, designate visitor spaces, and so on. If the commercial units do not have assigned parking as part of the agreement, then the association does not have to provide parking for them. That being said, it is unreasonable to think a business shouldn’t have some parking available for their customers if they are to succeed and provide revenue for the association. My guess is that your condo documents mention general rules about parking. Since the Board conducts the business of the association, the Board can decide if more parking rules are needed and then follow the proper procedure for instituting those rules. You can add signage that defines certain spots for commercial use. You can add signs that instruct residents that other lots are for their use. What you cannot do is simply start towing vehicles without having a comprehensive parking lot program in place. That includes signage and a working relationship with your local police department who will let you know the proper procedures for towing vehicles. The local police will want to know why cars were towed and where they were towed to in the event the vehicle owner reports their car missing. Towing is an extreme measure and should be used as a last resort. Work on managing the parking areas and informing unit owners and guests of the parking rules. My guess is that you can get your parking situation under control in short order. Good luck!

Condo Developer Used “Bait and Switch” Tactic to Sell Units

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M.S. from outside of Connecticut writes:

Dear Mister Condo,

What can I do if the builder has started to sell more condos to investors as rental units than what the by-laws that he created state? We bought the very first one in the community and the by-laws stated no more than 2 rentals per building would be permitted. Each building has 12 units and there are 6 buildings. Some of the building have as many as 5 rentals. Is it legal for him to just do as he wishes? Or should I get an attorney? My property values have gone down $50,000 from the original purchase price in just 6 years. This is worse than the apartment complex that I left to be a happy homeowner.

Mister Condo replies:

Developers are not immune from the rules and regulations of the association. However, during the period of time that the association is under developer control (like now) the rules can be modified following a fairly simple procedure that the developer controls. In other words, you might not have a leg to stand on with what the rules used to say and what they say now as long as the developer followed the proper procedures for changing the rules. I would most certainly consult with an attorney to see if you have a case against the developer as far as your particular unit goes. You were sold a unit with a set of stipulations that have since been changed and, had you known then, you might not have purchased the unit. Further, if you can demonstrate fraudulent intent on the part of the developer, you may be able to seek some personal relief. Only a local, qualified attorney can give you proper advice in this matter and I strongly urge you to contact one and see what relief you are entitled to. All the best!