Monthly Archives: February 2016

Condo Owner’s Special Assessment Voting Rights Questioned

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R.B. from Massachusetts writes:

Dear Mister Condo,

I am an equal Trustee of a 4-unit self-managed Condo Association. Units 1 – 3 are in a converted house; unit 4 is detached. Special assessments for the house cannot be charged to unit 4 and the same with special assessments for unit 4 cannot be charged to units 1 -3. In a situation where capital improvements require a 75% majority with special assessments to be charged to units 1 – 3 only, does unit 4 have a legal vote? Without unit 4 having a monetary stake in the special assessments, unit 4’s vote could override a dissenting owner of a unit 1, 2, or 3 who is on the hook financially. Can this be legally challenged?

Mister Condo replies:

R.B., the condominium’s governance documents should address this very specific issue. Since Unit 4 cannot be assessed for the special assessment on Units 1-3 for the house, it would logically follow that Unit 4 should not have a vote. However, logic does not come into play as much as the governing documents do and you must abide by the rules on voting as outlined in the governance documents. While it may cost money, this is an area where a community association attorney that specializes in Massachusetts law should be consulted for a legal opinion if the documents are sketchy or fail to address the matter properly. If the rules need to be modified, there is a procedure for that as well, also outline in the governance documents. Good luck!

Potential Condo Landlord Needs To Know When Unit Can Be Rented

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V.A. from outside of Connecticut writes:

Dear Mister Condo,

I want to know the renter’s history for our condo for the past several years. How many units were rented each year and how many of them were hardship exemptions and illegal renters. I asked the Board and Property Management company for this information and they said they cannot provide it because of privacy. I feel like I have a right to know this information. Am I correct? I mainly need this information to estimate how long it will take me to be able to rent my unit (I am on waiting list right now). I also don’t need people names or the unit numbers. If I do have right for this information, what actions would you recommend me to take?

Mister Condo replies:

V.A., as a unit owner you do have the right to association records. In an association that maintains a maximum percentage of allowable rental units, that information can be vitally important to you as a potential landlord. I agree with the withholding of personal information of renters names and I can see no value in providing you with “hardship exemptions” and “illegal renters”. For instance, if the association has 100 units and limits the rental to 20%, you need to know if/when that number changes so that you can legally rent out your unit. If the association refuses to release that information to you, I would likely bring suit against them for release of the information. What about the other folks on the waiting list? How do they know when the wait is over? Depending on your state laws, you may have additional tools at your disposal. If you are uncertain how to proceed next, may I suggest the services of a local attorney who is experienced in this area of law? It seems a simple enough matter to me. You are a unit owner within the association, you have a right to know what’s going on. Good luck!

Condo Owners Use of Facility when Unit is Rented

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J.H. from outside of Connecticut writes:

Dear Mister Condo,

Can a condo owner use the condo facility when his/her condo is rented?

Mister Condo replies:

J.H., usually speaking, no. As a general rule, the rights to use the condo facility that are inherent with the occupancy and ownership of the condo are given to the renter as a term of the lease and in agreement with the condo’s governing documents. However, there are exceptions and you should take a good look at your association’s governing documents (a/k/a the “condo docs”) to see what they have to say about it. If that means the use of the pool is part of what has been rented to the tenant, the landlord may have to go elsewhere to take a dip. All the best!

Condo Responsibility for Ice Dammed Roof Engineering

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H.M. from New Haven County writes:

Dear Mister Condo,

My unit was damaged twice extensively due to ice damming within four years. The Board said they will hire a roofing consultant to review the situation. So far I’ve not heard anything definite concerning the consultant. I’m very concerned that time is going by with no answer as to how they expect to alleviate the problem. My emails to the management company and the board go unanswered. Are they obligated to respond to my inquiries? I’ve stated to them I have no intention of usurping their authority but my unit is directly involved with the problem, it’s not as though I’m just prying into their business.

Mister Condo replies:

H.M., as long as the association is making good on any insurance claims for the damage you are experiencing, H.M., they are likely doing all that is required. I am truly sorry for the damage you have experienced. I can only imagine the heartbreak of enduring that hardship repeatedly. The wheels of governance often turn slowly at condominiums and all sorts of factors, including coming up with the money to pay for the engineering study and possible repair, often come into play. I have found that the squeaky wheel does get the grease though and you are well advised to keep on top of the situation by continuing to write and document your requests for remediation to the Board. If nothing else, it should keep your issue on their agenda. Also, I would suggest you attend an upcoming Board meeting, which is your right. You don’t have to say anything. You can simply observe the meeting and see if your issue is discussed and what the possible resolution might be. If you cannot attend the meeting, you should request a copy of the Minutes of the meeting so that you can see what action, if any, was taken on the issue. Slow and steady usually gets the best results.

You are wise not to try to usurp the Board’s authority in this matter. Honestly, there isn’t much you could do even if you wanted to. The roof is a common element and under the association’s control. Their obligation to you ends at protecting the unit via insurance. Anything else is above and beyond what you can “force” them to do. Ice damming is a condition caused by nature and roofing engineering practices that have long been considered acceptable throughout New England. The Board did not construct the roof for your unit, they merely maintain it. You may wish to consult with an attorney if you feel you have legal grounds for a suit but my guess is that, from what you have shared here, your Board is not doing anything improper here. Good luck!

Condo Dog Owner Responsibility

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R.M. from New Haven County writes:

Dear Mister Condo,

What is a dog owner’s responsibility at the condo? Who do I complain to if I see dogs behaving badly?

Mister Condo replies:

R.M., condominiums that allow dogs often do so with a list of accompanying rules that is the responsibility of the Board of Directors to enforce. It is common for associations to limit the number and/or size of allowed dogs so as to keep the peace within the association. Among the more common rules are that pets must be kept on leash at all times in the common areas, unit owners are responsible for cleaning up after their pets, and barking is to be kept to a minimum. As long as unit owners are responsible pet owners, dogs and condos often coexist quite comfortably. However, all it takes is one irresponsible owner who doesn’t follow the rules on pet ownership and many challenges can ensue. Dogs left unattended during the day while their owners are at work can bark uncontrollably for hours. Dog waste that is not properly disposed of creates a health hazard and a sanitary nightmare for many associations. Aggressive dogs that are not kept leashed can bite or intimidate other unit owners. All of these are problems that should be addressed by the Board of Directors in the form of warning letters, fines, and even eviction of dog owners who refuse to follow the rules. If your condo has a property manager, the job of enforcement may also fall under the property manager’s job description. As a unit owner, you may report any rules violations you observe to the Board and/or the Property Manager. It is then their job to take enforcement action. Hope that helps!

Condo Rules on Number of Dogs Allowed Changed

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L.I. from Massachusetts writes:

Dear Mister Condo,

I bought a condo 11 years ago I was assured you could have 2 pets. They changed the pet policy to 1 pet 5 years ago or so they say. I assumed that I was grandfathered in for 2 dogs which is 1 reason I purchased this condo as I new I would have 2 dogs. Well, I just added my second dog and was told no. I am not grandfathered. Is this correct? Can the rules be changed just like that? 2 dogs is a lifestyle choice. Like 2 kids would be. Do I have to move out?

Mister Condo replies:

L.I., I am sorry you find yourself in this predicament. Associations are free to change the rules about how many animals are allowed within the units of the condominium. Of course, they need to follow the association’s rules on governance as outlined in the condominium documents as well as state and local law. As far as I know, there are no rights to have dogs and there is no grandfathering clause inherent in the fact that the rules were a certain way when you purchased your condo but have since changed. Also, the term grandfathering as applied here would refer to the existing dog’s at the time of the rule change. Once one of the dogs had passed, there would be no need for grandfathering as you would then have been in compliance with the one dog rule.

All of that being said, let’s talk about how your Board behaves with regards to making and enforcing rules. Condominiums are governed by a Board of Directors (Trustees, in your state) These folks are elected by their fellow unit owners to handle the business of the association and to make governance decisions that are in the best interest of the community. When rules are changed, community members must be properly notified. Also, accurate records of the meetings where rules changed must be kept by the association and made available to unit owners like you upon request.

When people write to me and use terms like “I was assured” and “so they say”, I get concerned over the proper governance of the association. Rules, Minutes of Meetings, and other governance documents are in writing. There is no need for someone to “assure you” or “tell you” anything. You can request these items and read them for yourself. If you feel your rights have been violated, you would be wise to seek the counsel of an attorney who could better advise you if you have a case to be allowed more than one dog as is your desire. If not, you may just have to live with “so they say” and either agree to one dog or find another place to call home. Either way, I wish you and your furry friends the best of luck.

Who Hires the Condo Contractor to Repair Unit Interior?

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L.T. from outside of Connecticut writes:

Dear Mister Condo,

I have damage to my bathroom ceiling from a water leak from the condo above me. The condo association will fix it but I don’t want to use their maintenance team because from past experience they do shoddy work. Can I hire my own contractor to do the job and have the condo association pay for it? They said “no” but is it legal?

Mister Condo replies:

L.T., as long as the association is responsible for the repair and is hiring the contractor you may not hire your own contractor and expect the association to pay for it. Selection of the contractor is at the association’s discretion. They are the employer of the contractor and they are the ones responsible for making the repair. If you are not satisfied with the repair, you may seek a better resolution or bring suit against the association for not properly repairing your unit but unless the work is so shoddy that it would bear bringing suit, the contracted repair will suffice the needs of the association’s obligation to maintain your unit. All the best!

When Condo Trustees Don’t Get Along…

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J.W. from Massachusetts writes:

Dear Mister Condo,

I live in a 2-unit condo. 19 years ago, the two condos were bought at same time. Condo documents stated a set Trustee Account. We went 50/50 on all expenses. Recently, we had a disagreement not related to condo. Other unit owner hired a lawyer for a Trustee Meeting, our first Trustee’s Meeting ever. I hired a lawyer to represent me after the money we spend on lawyers could have been for condos maintenance. Can they force condo fee after all these years?

Mister Condo replies:

J.W., please understand that I am not an attorney nor am I particularly verse in Massachusetts condo law, so please accept my advice as friendly and not legal. Since you have already hired an attorney to represent you, I am guessing you already have a legal opinion from the attorney. In my experience, all condo documents spell out items like common fees and how expenses are to be paid. In your state, the directors of the association are called trustees. In your two-unit condo, each owner is a Trustee and must abide by the condo documents. Regardless of the fact that you didn’t do it right for 19 years, there is no reason to think you are not bound by the legal agreement which accompanied the purchase of your condo 19 years ago. The bottom line is that if common fees are the called for method of collecting the monies needed for the common expenses, then you should pay your common fees. Further, a portion of those fees should have been collected and set aside for future common area repairs so that large special assessments are not necessary when expensive items, like a roof for instance, have to be replaced. If you are unclear as to how your governance documents work, it might be worth your while to spend some time reviewing them and even hire a qualified attorney to provide guidance on any areas where you are unclear. Good luck!

Abandoned and Foreclosed Condo Unit Ruining Neighbor’s Condo Life

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A.C. from outside of Connecticut writes:

Dear Mister Condo,

The next door unit to my condo has been in foreclosure for over three years. The empty and decaying property is affecting my unit. What are my legal options?

Mister Condo replies:

A.C., I am not an attorney so please accept my advice as friendly and not legal. For a legal opinion, you need to consult with a local qualified attorney. Lengthy foreclosures are bad for lots of reasons, not the least of which is how long-abandoned units such as the one neighboring your unit can damage the remaining units and the quality of life for all unit owners. However, there is little you can do to hasten the process. Most likely a bank holds a mortgage on the unit which is now in default and the bank doesn’t see any reason to move the foreclosure along as it will not yield the money necessary to payoff the bad debt. The courts are often backed up with such proceedings and delayed foreclosures result. However, your association is also one of the creditors looking to get paid and it is possible that your Board of Directors can initiate their own foreclosure action if they so desire. They may also have the ability to take control of the unit while the bank is taking its sweet time and clean up and rent out the unit while the foreclosure lingers. Have you written to the Board of your association yet? I would make that my first option and explain the situation. They are the governing body representing the best interests of the association and unit owners such as you in this situation. If they decide to take action, they may be able to alleviate your problem and even earn some revenue for the association in the process. However, they may not be under any obligation to do so and would have to weigh the pros and cons of investing association money into rehabilitating the unit for the prospect of collecting rental income. A local attorney may offer you some additional advice so I strongly recommend you speak with one experienced in situations like yours. Good luck!

Condo Ice Dam Damage Improperly Repaired

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R.F. from Middlesex County writes:

Dear Mister Condo,

I had water leak into my condo from ice dams. My insurance had the adjuster come down and access the damages. Downstairs, the ceiling popcorn was damaged in the kitchen and hanging along with the upstairs bedroom ceiling. He later notified me I had to go through master policy. My association then had their adjuster come down and they said they would be fixing it and the claim didn’t have to go through my insurance. Now when both adjusters were at my condo they both said that the whole downstairs would have to be fully scrapped even the living room as the kitchen ceiling flows into it so it would all match. My condo management company said they would be hiring their own contractor to fix the damages. When he came (the contractor) he even said the whole downstairs would have to be scraped in order for it all to match. At this point I got a breakdown on what will be fixed and they’re now telling me that they will be only scraping the damaged parts of the ceiling and resprayed and that it would match and to not worry. I feel as if they’re taking the easy route along with probably pocketing insurance money as I’m sure they were paid to have the whole downstairs fixed as both adjusters measured it and said it would have to be done. Is there anything that I can do to make them fix my condo the correct way?

Mister Condo replies:

R.F., this is an unfortunate situation to say the least. If what you are claiming is true, there may even be some fraudulent insurance claim activity to boot. Your first job is to document with pictures and in writing as much as you possibly can. You use the phrase “said” to describe lots of these transactions and that is where your case is weakest. Adjuster don’t just “say” things; they write reports. You need to get copies of these reports if you are going to challenge the association and to back your claim of “pocketing insurance money”. That may be what happened but you can’t prove it with “said”. Also, these adjusters were not in your employ. You may not be able to get the report from the association’s adjuster but you should be able to get the report form your own insurance company. Armed with that written information, you should write to the Board and ask that the repair be made properly. If they refuse, and it sounds like they might, your next remedy is a lawsuit. You should consult a local attorney to see what further rights you have and to bring suit against the association for failing to make the adequate repairs. If the association / management company / contractor “pocketed insurance money” as you allege, the party who should take action against them is the insurer, not you. If you know the name of the insurance company and wish to alert them of your concern, you may do so. However, that isn’t likely going to help you in your quest to get the repairs made properly to your unit. Good luck!