Monthly Archives: May 2016

Who Is Responsible for Shared Condo Driveway?

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J.F. from New Haven County writes:

Dear Mister Condo,

I share a driveway with another unit. The driveway needs resurfacing. The association says my neighbor and I are responsible for the cost of this repair. I have been told that CT condo law requires the association to pay for driveway repairs. Is this true? Thanks.

 

Mister Condo replies:

J.F., I am not aware of any law that requires the association to pay for driveway repairs. However, the condominium association is responsible for maintenance and upkeep of the common elements, of which, the driveway is usually one. Generally speaking, the unit owner is responsible for what happens inside their unit and the association is responsible for what happens outside of the unit. It is possible that your association documents dictate the expense of the driveway to the two unit owners who share the limited common element but this is not terribly common. A quick review of your condo docs should provide clarity. If not, you should seek guidance from a qualified attorney who could offer you a legal opinion on the matter, which I cannot. Good luck!

Condo Unit Owner Seeking Refund of “Unused” Common Fees Upon Sale of Unit

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R.G. from Litchfield County writes:

Dear Mister Condo,

We live in a small condo complex. One unit owner is selling his unit. He has been a very ineffective President of the condo Association since its conception. He claims that the gardener did not complete his work and we have a few things that have not been done (ie. Power washing, tree trimming etc.) to date so he should get his HOA fees returned because there will be a surplus in funds when he moves. We say, sorry, once that money is deposited it belongs to the Association. You don’t get a refund! Please advise. It seems ludicrous to us!

Mister Condo replies:

R.G., ludicrous, indeed! Regardless of how effective this unit owner was as condo association president, unit owner contributions to the common fund are not refundable when the unit owner moves. I am a bit unclear as to your use of the word “deposited” but monthly common fees are the lifeblood of any condominium. They pay for everything from insurance to maintenance to Reserve Fund contributions to management fees and more. They are not a deposit to an individual unit owner’s account. They are deposited to the association’s bank account to be used as budgeted and voted upon at the annual meeting by all unit owners and by the Board of Directors at Board meetings throughout the year. A unit owner who served as president should most certainly know that.

Condo Trespassers Bringing Their Dogs to Condo Grounds

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P.B. from outside of Connecticut writes:

Dear Mister Condo,

I have a question on fines. We are fined if our dogs go on the grass or common areas within our condo area. However, people often come from outside areas and their dogs go but nothing happens to them. Can the condo board fine it’s own members while letting outsiders off with nothing?

Mister Condo replies:

P.B., why would the association allow trespassers on association property? That is the real question here. Yes, the Board can and should fine unit owners who violate the rules. Trespassers should be reported to the police. The Board should put up signs instructing the general public that trespassing is not allowed and then work with local law enforcement to enforce the trespassing restrictions. The condo Board has no jurisdictional governance power over the general public. That is the work of local law enforcement. Maintaining the order within the community association and its own members is the job of the Board. Living in a community association means living by the rules of the association. No rule breaking equals no fines and a happy community. All the best!

Minutes from Private Meetings of Condo Board Members

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L.K. from outside of Connecticut writes:

Dear Mister Condo,

Can homeowners read minutes of private meetings by board members only?

Mister Condo replies:

L.K., minutes are official records of associations. As such, they are open to be inspected by any member of the association requesting to do so. If you think about it, it makes perfect sense. If you were a shareholder in a corporation, wouldn’t you want access to minutes of Board meetings to see how your money was being spent? It really is no different at a condominium or HOA other than the business is not for profit. Directors are still charged with proper operation of the association’s assets and all unit owners are entitled to review association documents. If the meeting is held in Executive Session, the minutes may only reflect the outcome of the Executive Session so there may not be any notes of the actual discussion from within the Executive Session. However, the outcome of such meeting is still in the minutes for all unit owners to read. Hope that helps.

Condo Parking Lot Abused by Renters and Overnight Guests

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C.C. from outside of Connecticut writes:

Dear Mister Condo,

We have a Visitor spaces that are taken up each evening by overnight guests and renters on a frequent basis. The spaces are for occasional short term visitors staying less than 24 hours. No resident parking is allowed. What should we put on the sign to properly correctly inform illegal guests not to park in those spaces? We tag them now but want to legally start towing repeat offenders.

Mister Condo replies:

C.C., towing vehicles from association-owned parking lots is an extreme measure. I don’t know what you mean by “tagging” vehicles but you should be identifying the units that these vehicles are from, issuing warnings, and ultimately, fines to the offensive parkers. You can also implement a towing program but I recommend you begin with a better enforcement program first. The goal is not to tow away vehicles; the goal is to get unit owner compliance. Renters are no different than unit owners although you will be fining the unit owners and not the renters. The unit owners need to get their renters’ parking behavior under control. Fines usually do the trick. I would also like to recommend you read an article I wrote in October of 2015 dealing with parking lot abuses. I think you’ll get some good ideas from it – http://askmistercondo.com/parking-lot-abuses-are-out-of-control-at-this-condo/. Planning and perseverance are your allies, C.C.. Good luck!

Condo Board Issues Fines Without Warnings

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J.C. from Massachusetts writes:

Dear Mister Condo,

Can condo board issue fines without a warning first?

Mister Condo replies:

J.C., that depends on two things. What do the by-laws state? What do the state laws state? In Connecticut, where I live, the Board is required by law under the Common Interest Ownership Act (CIOA) to issue a warning first and offer a meeting with the unit owner to discuss the rule breaking. After those two things are done, the Board is free to follow its own rules about issuing fines. I do not believe you have the same law in Massachusetts but the Board is still very much limited in how and when they issue fines. Also, they must be consistent. In other words, if you park where you shouldn’t and get a fine, so should everyone else who parks where they shouldn’t. No single unit owner should be singled out and fined for a particular behavior while other unit owners behave the same and are not fined. That would open the Board to charges of discrimination. Massachusetts Community Association Attorney Mark Einhorn of Marcuse, Erico, Emmer, Brooks, P.C. has written an interesting piece about the subject at http://meeb.com/rules-enforcement-should-be-consistent-but-not-inflexible/ that I highly recommend you review. Good luck!

Condo Unit Owner Suing Association for Deductible on Vehicle Vandalism

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D.L. from outside of Connecticut writes:

Dear Mister Condo,

An owner in our condo claims part of his fender was stolen in our parking lot. There is no video surveillance of this event and he has been paid by his insurance company. He is suing in small claims court for the deductible. Our attorney cannot make the court appearance. Does he have a case or not?

Mister Condo replies:

D.L., for the most part, condo parking lots are owned and insured by the condominium. Automobile owners have their own insurance to protect their vehicles in the event of theft as in this case. The deductible, generally speaking, is the expense of the insurance holder, in this case the unit owner. Small Claims court is the place for such a small claim and the unit owner is certainly welcome to sue the association (or anyone else for that matter as that’s how it works) but he is not likely going to prevail, in my opinion. That being said, it is never a good idea to leave a lawsuit undefended against. Your attorney should have sent another attorney or legal representative to protect the association in the event the claimant made outrageous claims against the association (negligence, lack of security cameras, history of crime without preventative measures taken) that might influence the outcome. I am not an attorney so please do not construe anything I have said here as a legal opinion. I must say I am surprised the association’s attorney did not represent the association in court. That is a primary duty of the community association attorney. Best wishes!

Condo Association Denies Parking for Renter

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L.M. from outside of Connecticut writes:

Dear Mister Condo,

Hello! I live in a condo where there is no parking area. The building is inside the compound. I normally park at the ground floor in front of the building. However, things have changed when the landowner requires us to pay a parking fee. Since I am normally the one who parks in the building, do I have the right to use the right of way of the building owner and use it as my parking space? I spoke with the building owner who advise me that I can use it as she has a right of way. It got more complicated when the landowner built a Gate and locked the Gate Area where a car can pass and leave the small Gate open. Our building is located at the end Corner so I need to pass one house before reaching the building. For not to have conflict, I park outside the compound before and now a tow away zone. What should I do?

Mister Condo replies:

L.M., it seems that there have been several rule changes with regards to parking at your rented condo. As a tenant, you need to observe the parking rules or face the consequences of towing and/or fines being levied against your landlord, who may, in turn, pass along to you. Your landlord is the person who needs to speak with the management of the association to determine where you may park within the association. If the unit he owns comes with assigned parking, that is very likely the only place where you may park without fear of being towed. If there is no parking assigned to the unit you are renting and your lease does not specifically provide you with parking, you may be out of luck and need to park offsite as you are doing now. That may be inconvenient but it may be your only option. Speak with your landlord and see what steps the landlord can take to secure your parking inside the complex. Good luck!

Condo Chimney Liner Improperly Installed; Who Pays for Repair?

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C.G. from outside of Connecticut writes:

Dear Mister Condo,

We had our chimney cleaned recently and the company that did it found that the prefab liner is constructed of an insulated metal chimney pipe, the metal chimney pipe was improperly connected to the fireplace unit and the HOA says is our responsibility to fix it. We asked the company that did the cleaning how could that happen? They said when they were installing it that the person that did it didn’t know what they were doing. Any thoughts? Help please.

Mister Condo replies:

C.G., improperly installed items such as your chimney pipe are a construction defect. The real question is who owns the element. If it is owned by the association, you may have a case for getting them to make the repair. If you own it, the repair may fall upon you. The other question, of course, is expense. If it isn’t terribly expensive, I would suggest you simply pay for the repair and get the problem solved. If it is terribly expensive, you may wish to track down the original builder and see if they will make good on the installation or you may need to sue them to make good on the installation. All of these solutions cost time and money. If the repair can be made for a few hundred dollars or so, I would advise you to just get it done and move on. All the best!

Is Overhanging Condo Roof “Immediately Adjoining”?

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G.B. from outside of Connecticut writes:

Dear Mister Condo,

I live on a fourth floor, end unit. The third floor roof extends beyond the dimensions of my unit. I am preparing to request a grant from our trustees for exclusive use of the limited common space on the rooftop above the third floor unit, adjacent to mine. Is the third floor unit considered to be “immediately adjoining”, thus requiring the third floor unit owner’s consent?

Mister Condo replies:

G.B., unless your condo documents offer a clear definition of “immediately adjoining”, I am not sure you will have an easy time getting your exclusive use request granted. From your description, it sounds like the roof is immediately adjoining but “sounding like” isn’t the same as “being”, which is why we have many attorneys practicing in the area of law dealing with such things. If you don’t anticipate an objection from the other unit owner involved, I think it would be wise to seek the third floor unit owner’s consent before making your request. That way, either immediately adjoining or not, the Board should be able to review and grant or deny your request. Good luck!