Monthly Archives: May 2016

Smoked Out by Renting Condo Neighbors

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J.M. from New Haven County writes:

Dear Mister Condo,

We have a rule at our condo that states “no noxious or offensive activity shall be carried on in any unit or in the common areas; nor shall anything be done willfully or negligently which may be or become an annoyance or nuisance to the other unit owners or occupants. No unit owner or occupant shall do or permit anything by such persons that will interfere with the rights, comforts or convenience of other unit owners or occupants.” The tenants in the unit next to mine are chain smokers. We asked the management company to start the process to call the owner of the other unit to a hearing but she said that she checked with the lawyer and he doesn’t think the board can do anything about smoke so she advised the board to wait until she asked him a second time. She is stalling and the board follows everything she says to do. How do you force a board and management co. to follow their own rules of enforcement? We just don’t want their smoke in our unit, we don’t care if they smoke outside. If a rule is enforced the board can fine the owner $25 a day but of the 5 board members, one board member is a relative of that unit’s owner and 2 smoke. We are stuck because the infraction rules state that the board has the right to fine not that it’s mandatory. Just today after a month we got the management company to send out a letter requesting a hearing but some of the board members don’t want to enforce this. We have to wait two months because they meet every other month. At that point they can vote to wait or do nothing again. Any ideas?

Mister Condo replies:

J.M., smoking at condominiums is a hot button issue for many associations. Some have gone as far to ban smoking completely, including common areas and unit interiors. However, it does take Board action to implement such measures and it would appear that you do not have Board members that are going to agree with your position and are likely to obstruct any corrective actions you seek to have them apply. Unless you can get these Board members to take action, you will very likely have to bring suit against the Board for not enforcing the rules on nuisance. This is not simple or inexpensive and you will likely have to hire an attorney to help you draft the lawsuit. However, this will keep the conversation going and bring the issue to a close. If you prevail, you will get your smoke-free environment to which, in my opinion, you are entitled. If you do not prevail, you may need to look at other ways opf protecting yourself, up to and including selling your condo to live someplace else.

I strongly urge you to review the State of Connecticut document entitled “Smoke Free Housing for Condominium Owners and Homeowner Associations at http://www.ct.gov/dph/cwp/view.asp?A=3137&Q=486714. It details what steps need to be taken to eliminate smoking, which is NOT a right, in your association. Of course, I wish you clean air and the best of luck.

Co-op Tenant Unhappy with Unit Condition and Lack of Maintenance

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T.R. from Fairfield County writes:

Dear Mister Condo,

I have rented a unit in a Co-op for 10 years and all the windows leak causing major damage over the years. In addition, the bathroom has had a leak since before I rented and still exists. Due to the leaks, I have never been able to paint or decorate, there is water stains, mold and rot and any attempts at repairs were just cutting out damage and replace with new wallboard. Hence every room looks like in state of repair with all the damaged areas gooped in spackle. Last band aid fix was done in 2009 after air conditioner caught fire because of all the water pouring into socket and wall from major window leak. Nobody ever came back to sand spackle and paint because leak wasn’t fixed. Landlord has hidden behind argument that exterior problems and internal plumbing are the board’s responsibility to fix. At the end of the day, I am a tenant not an owner. At some point isn’t my landlord responsible to make necessary repairs for me? Even if its the board’s responsibility? I would think he has to fix them and then sue the board for reimbursement. Why should I go without? What about mold and health issues? In addition, I repeatedly asked landlord to check electrical wiring for reverse polarity and other issues. All my electronics got fried despite surge protectors and sometimes half the place would have no power despite no blown fuses. I’ve been out a lot of money replacing TVs, computers, phones, etc. I finally had health department come and they found almost 30 violations, some criminal. Do I have any recourse?

Mister Condo replies:

T.R., while I realize that packing up and moving is never as simple as it sounds, I have to ask why you would continue to spend your hard-earned rent money on a unit that is in such obvious need of repair? Surely, there are other places where you could live that would not have all of these problems. I am not an attorney and you may be well advised to seek legal advice if you plan on continuing to lease this unit. Since it sounds like you are determined to stay put you will likely have to apply pressure to your landlord who in turn will likely have to apply pressure to the Board of the Co-op to get these issues addressed. I know of many successful co-ops in our state that would never allow for such problems to exist for so long as these problems are very likely going on in multiple units and causing a serious devaluation of the individual units within the co-op. As for the specifics of the repairs and who can do what is largely an issue for your landlord and the co-op to haggle over. It isn’t so much a question of who is going to pay as it is a question of who has jurisdiction and responsibility. As a general rule, from the walls in are the unit owner’s responsibility. Everything else may fall on the co-op to repair. As a renter, your relationship is strictly with the landlord. You should review your lease and speak with an attorney to see what remedies are available to you. Also, you should protect yourself and your belongings with renter’s insurance. That might help you mitigate any future losses of personal property caused by damage that you cannot control or predict. All the best!

Condo Insurance Deductible Payment Required Before Repair Work is Completed

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A.S. from Massachusetts writes:

Dear Mister Condo,

Hi! The condominium’s insurance is covering the repairs to my kitchen after a flood in the upstairs unit resulted in my kitchen being taken down to the studs. The work has not yet been completed, but they have already billed me for their deducible and are pressing hard for payment now. My preference is to wait until it is finished given that one of the cabinets does not open due to their design, the paint is incomplete, and the appliances have not been hooked up.

Mister Condo replies:

A.S., I appreciate you wanting to make sure the repairs are made to your liking before the job is finished but you are not the one who negotiated with the contractor to do the work. You are bound by whatever terms the insurance company negotiated with the contractor. You certainly have a right to speak to your insurance company about those terms but if they agreed to pay for the work upfront, so did you! Actually, you are not paying for the work as much as you are paying for your deductible. It may feel you are paying for the work because the work is being done inside your unit. The reality is that the insurer is paying for the work and you are just paying your share by covering the deductible. The good news is that the association had insurance in place to cover these repairs and you are getting a lot of new materials installed that should add value to your home. My advice is to pay the deductible as asked and reserve action against the association if the work is not performed as required. Good luck!

HOA Board Governing but Not by The Rules!

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D.C. from New Haven County writes:

Dear Mister Condo,

There are 29 homes in my HOA. The board refuses to get training and dictates policy based on their judgement. They have dictated that we have to clear the snow from sidewalks in front of our lot. My lot front has a 10 foot set back. Shouldn’t all sidewalks be labeled common areas and therefore cleared along with the sidewalks in front of open spaces which are undeveloped? The board has failed to operate using the CT state statutes updated in July 2010. Members to the board were elected by show of hands. That allowed TWO votes per household instead of ONE / household. Robert Rules of order were not use!!! What can I do to get the board to comply with the CT Statutes? I placed my common fee in escrow and am being sued. Many Thanks

Mister Condo replies:

D.C., I am sorry for your problems. As you have seen, placing your common fees in escrow is not a good idea and you should not continue that practice as you can not only be sued but even foreclosed upon for continued nonpayment of common fees. Let’s talk about a better approach.

Your HOA has governing documents as part of the establishment of the HOA. I assume you have a copy of these documents and have ready them thoroughly so you have a starting point to explain your points to the Board. While there are no requirements that your Board receive training, there are requirement, under the law, that they observe the HOA’s governance documents and that they abide by any state and federal laws that may supersede those documents, such as the Common Interest Ownership Act (CIOA), to which you have referred.

I am not an attorney so please accept my advice as friendly and not legal. Your Board needs a bit of a wake-up call if they are not following proper governance. They must abide by the HOA’s governance documents. If that calls for one vote per home in the HOA then that is how the votes should be held. If snow removal is defined in the governance documents, then they should follow the proper procedures for snow removal. They can dispense with Roberts Rules of Order at any meeting but they must first hold a vote to do so. In very much the same way the Board has sued you for nonpayment of common fees, you may need to sue them for not keeping the covenants as outlined in the governance documents. For that, you will most likely need an attorney, which will cost you money, but will get the Board behaving in better form in short order. You may also wish to speak with other homeowners in the HOA about running for office. The folks that serve on your Board are elected volunteers. If they aren’t getting the job done, it may be time for some better volunteers. Good luck!

Condo Renter Exceeds Allowable Cars and Gets Towed!

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C.C. from New Haven County writes:

Dear Mister Condo,

Under my lease I am allowed 2 parking spaces. We are a family of 4 and have 4 cars. I registered all with “the board” and parked the extra 2 in visitors. They got towed. So I requested to park them in visitors, the board said no!

Mister Condo replies:

C.C., parking lots within community associations like condominiums are routinely owned, governed, and managed by the association’s Board of Directors who have the right and the responsibility of managing the association’s common elements, such as the parking lot. As you have noted, under your lease, you are allowed two parking spaces. Unless you have the ability to magically fit four cars in two parking spaces, you can’t possibly expect that the association will allow you to park more than two cars on the property. You will need to seek an “off property” solution for your extra cars. All the best!

What Type of Condo Insurance Covers an Arbitrated Dispute?

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R.J. from New Haven County writes:

Dear Mister Condo,

My condo association was involved in a lawsuit this past year which was recently settled through arbitration. The association’s defense was funded by the association’s insurance company. The dispute was over the assessment of cost to repair retaining wall and meaning of association’s declaration. The finding split financial responsibility 50/50. The Board unanimously voted to allow the Association’s insurance carrier to settle the complaint against the association as recommended in the arbitrator’s decision.

What type of insurance covers this claim? Was this a D & O claim? Was this some other “Liability Claim?

Mister Condo replies:

R.J., when it comes to advanced insurance issues like yours, I turn to an insurance expert for an opinion. I shared your initial correspondence to me and here is the response offered:

“If there was a lawsuit against the Board for failure to properly follow the declarations or failure to enforce rules and regulations, then this would be a claim against the Association’s Directors and Officers policy.  If the nature of the complaint involved bodily injury or damage to real or personal property owned by the Association, then the Association’s package policy would likely respond.

Generally, the D&O policy will come into play when a third party (typically unit owner) is harmed in some manner, other than physical injury, as a direct result of an action or lack thereof by the Board of Directors.  In this case, costs to repair real property that is not covered by the Association or that the association chooses to self-insure can be assessed by the Board of Directors to the unit owners but such an assessment must be levied in accordance with the Association’s declaration.  A dispute arising as a result of the Board’s failure to properly implement such as assessment would likely be handled by the Association’s D&O carrier as this involves a failure to properly adhere to the Association’s governing documents.”

That sounds like a good answer to me, R.J.. All the best to you and your association!

Texas Condo President May Need Some Training and Guidance

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B.S. from Texas writes:

Dear Mister Condo,

I live in a 118-unit condo consisting of numerous townhouses. Recently, our president struck parking restrictions, unilaterally. They were allowing one car on street, the rest in your double garage. Worked well for 15+ yrs. Within 1 year, our landlord properties went from 8 to 25 because of his restriction removal. The net effect of enforcing the prior restriction was to preclude the dormitory style rental units we now have. Occupancy allowable 3 or more folks per bedroom. 3X3 bedrooms means a lot more cars are now on the property. When I challenged this change, he responded that the prior restriction was “unconstitutional”. Given the fact that this is all private property and governed by 118 homeowners/Board, how could that be? Who or what is being discriminated against?

Mister Condo replies:

B.S., I am not an attorney nor I am an expert in Texas community association law. Please consider my advice as friendly. You may require a legal opinion and I encourage you to seek the assistance of a qualified attorney to give you legal advice. For starters, no one Board member, not even the president, can unilaterally strike any rule, including your parking restrictions that were in place for 15 years. Go back and look at the Minutes from the meeting where this was done and see if a proper vote was taken. If not, you should ask that the old restrictions be restored immediately. That will create a problem for the landlords in your association but should alleviate the parking problem you are describing. As far as violating anyone’s constitutional rights, I am at a complete loss as to what your president is referring to. Folks who purchase condo units with the intention of renting them out have rights as outlined in the association’s governing documents. They have the same constitutional rights as do you and me but they have no other constitutional rights with regards to condo ownership that I am aware of. Their tenants need to follow the rules of the HOA, including parking restriction or the landlord is subject to fine and further actions as outlined in your governance documents. I am thinking that based on your comments, your condo board president may be misinformed about what is and isn’t allowable or enforceable at your condo. The president could likely use some training and maybe even some legal guidance before he/she makes any more unilateral decisions that could have major legal consequences for the association. Good luck!

How Many Condo Meeting Agenda Items on One Proxy?

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V.C. from New Haven County writes:

Dear Mister Condo,

Can you add Budget approval to your annual meeting proxy, along with the board member names that are up for re-election? or do you need to send out a separate ballot for budget approval?

Mister Condo replies:

V.C., that’s a great question and one which I sought guidance from an attorney who specializes in Connecticut community association law. Here’s what the attorney had to offer:

“You can add these things to either a ballot or a proxy, but remember that those two documents serve very different purposes. By mentioning them in the proxy, you’re just giving the unit owner an easy way to direct the proxyholder how to vote on those questions when the proxyholder attends the meeting. The only way the unit owner can personally cast a vote on paper without attending a meeting would be if the association conducts the vote by ballot instead of a meeting using the procedures laid out in CIOA.  State law does not allow for “absentee ballots” to count as votes on these issues at a live meeting.”

There’s your answer, V.C.. Good luck!

Personal Use of Condo Unit Owner Mailing List

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L.D. from outside of Connecticut writes:

Dear Mister Condo,

Can Board members utilize the association’s official unit-owner mailing list for personal communications? And if so, must they give individual unit-owners likewise access to the mailing list on-demand?

 

Mister Condo replies:

L.D., the short answer is that the association’s official list of unit owners should NEVER be used for anything other than association business. It is not a commercial list or a list for marketing. It is a legal record of unit owners who require notification of association business. It is to be used for serving notices, issuing newsletters, rule changes, notice of meetings, and any other official use by association governance and management folks. The list should never be offered out for sale, rental, or use to anyone outside of the association for any non-association related use. Hope that helps, L.D.. Best wishes!

Condo Board Not Following Master Deed or By-Laws

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D.V. from outside of Connecticut writes:

Dear Mister Condo,

What course of action can one take if the board does not follow bylaws and Master Deed?

Mister Condo replies:

D.V., condo Boards are made up of volunteer members from within the community association. They are elected or appointed to office (to fill vacancies) and are charged with functioning as the will and voice of the association. Some states require training for taking on such a task. Others require nothing more than getting enough votes to hold office. The easiest thing to do when these volunteer leaders don’t perform as they should, is to vote them out of office at the next election cycle. However, in extreme cases of poor performance or malfeasance, it is sometimes necessary to hold recall elections where current members are voted out and new members are voted in. This requires close adherence to your association documents and state law to pull off and is generally saved for the worst of scenarios. There is also the legal option of filing a lawsuit against the Board. Again, this is challenging because of the potential expense to the community to defend against the suit and the cost of brining the actual suit. My advice is to evaluate the damage the community may be experiencing because of the Board’s performance. If it can wait until the next election cycle, start rounding up better volunteers who are willing to serve. If it can’t wait until then, consult with an attorney to see if a lawsuit or recall are in order. Either way, always be sure to elect the best-intentioned folks to your Board. It is an important job and has real world implications for those that accept. Good luck!