Monthly Archives: June 2016

Phantom Condo Board

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D.M. from outside of Connecticut writes:

Dear Mister Condo,

Our condo has more “lock and leave” owners and investors than residents. Our Property Manager is pretty slick at coming up with excuses that are blatant lies and puts out Board Minutes with these things in writing. Somehow we get a quorum to hold an annual meeting but it’s pretty tough to get a new board elected. Other than move, do you have any advice on how to handle the lying? Should I call out or keep quiet?

Mister Condo replies:

D.M., I guess my answer would depend on what you perceive as the problem. Does the condo look good? Is it well run? Are the Reserves being funded? Are the common fees going where they are supposed to? If the answer is “yes” to all these questions, there may not be a problem for you to call out even though it would appear you are not thinking the condo is being governed properly. Regardless of how “slick” you think your Property Manager is, this person reports to and works for the Board. The Property Manager may be delivering the Minutes but they must be reviewed and accepted by all Board Members and signed off on before being distributed to unit owners like yourself. The Minutes reflect votes taken by the Board. If they are being fabricated, then there are laws being broken. Again, if you suspect criminal activity, you might want to take action. The underlying question is how much risk is this behavior putting you at? Condo associations are businesses and the unit owners are shareholders with financial responsibility to the creditors of the business. If the Board is truly a phantom Board and no one other than the Property Manager is minding the association’s business, it is time to call a foul or get out. You could easily find yourself on the hook for a lot of money simply by owning a unit in such a complex. On the other hand, if everything is running smoothly and you are enjoying your unit, you might just wish to keep things as they are. Good luck!

HOA Board President Attempts to Restrict Service Animal

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J.B. from Colorado writes:

Dear Mister Condo,

My condos do not allow dogs. The HOA board president says service dogs are not allowed. I am looking into getting a service dog for my disability. I have owned my unit for almost 2 years. There are 48 units in the complex. Can the board prevent me from getting a service animal? Wouldn’t this be ADA discrimination? I am in Colorado. Thank you.

Mister Condo replies:

J.B., in my opinion, your HOA Board President is misinformed. The HOA Board cannot prevent a unit owner from owning and housing a service animal. If they persist in denying you a service animal or fine you for owning a service animal, you will simply hire an attorney and sue them. Given the prevailing court cases ruling in favor of service animals, I have little doubt you will win. HOAs can restrict pets. However, a service animal is not a pet and, as such, it cannot be governed by the HOA. You will need some type of documentation that the service animal is required and/or prescribed. Be sure to ask your health care provider for such documentation and provide a written copy to your Board at your earliest convenience. All the best!

Condo Renter Complaining of Loud Rooftop Air Conditioner Noise

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K.S. from outside of Connecticut writes:

Dear Mister Condo,

I am on the board of our association and we have been working with a renter on the top floor (3rd) of our garden community who is complaining of high levels of noise coming from the roof through her ceiling. Unfortunately for this unit, the Air Conditioning unit that serves several units in her area is centered directly over her unit. The owner of the unit lived there for several years without complaint, but since renting, the current tenant says its intolerable. We have tried several things over the last several months to reduce the noise, including replacing the pump and adding noise reduction elements around the piping, but when the unit runs, the sound of the water cannot be further dampened without severe measures, which would involve moving the unit or replacing the roof and adding sound dampening insulation, etc., none of which are budgeted. The tenant has spoken to the local government representative and is threatening to file an official complaint with the association. My question is whether we, as a board, have done our due diligence or if there’s more we should do. I am working with our property management to provide more information, but they are moving slowly and I fear a lack of response on our side will provoke the tenant to move forward with her complaint, which of course we all would like to avoid. thank you for any thoughts or clarity you can provide.

Mister Condo replies:

K.S., from what you have told me, you have done all that you can do. While the noise may be unbearable to the tenant, it is not a new condition the association created. The condition pre-existed before the tenant took possession of the unit and my guess is that the rule of “Buyer Beware” may come in to play here. In other words, since the noise was already occurring when the renter entered into the rental agreement, the renter knew what he or she was getting into when they agreed to rent the unit. Further, the association very likely has no obligations to the renter as the renter is neither a member of the association nor the owner of the unit. If the unit owner wishes to pursue the association for remedy and this condition has always existed, I would say they are not too likely to have success. That being said, this is one for the association’s attorney to handle. The fact that the association has already made some efforts to abate the noise may suffice but you really need a solid legal opinion here before you proceed. My guess is that the attorney will review the association’s documents as well as local noise ordinances if the noise is loud enough to qualify and then offer an opinion on how to proceed. Good luck!

Must I Provide Phone Number and Email to Other Condo Unit Owners?

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P.R. from Massachusetts writes:

Dear Mister Condo,

Am I obligated to share my phone number & email address with other unit owners within my condo association in Massachusetts?

Mister Condo replies:

P.R., when you purchase into a common interest community association like a condominium, you are purchasing your share or interest in the association. You are becoming a member of a non-profit corporation. Your information is most certainly needed by the Board of Directors of the association as you have certain rights that require them to contact you from time to time. While mail is the gold standard for doing so, there are many modern associations that prefer email, websites, cell phone text messages and such to keep unit owners informed. For the most part, you may opt out of these communications but I don’t suggest that you do. You are most certainly required to provide your name and address. I cannot think of any reason that you would have to provide your phone number and email address with any other unit owners within the association. Most of the laws in your state that I am aware of involve the records kept by the association that must be made available to all unit owners. Your question is about your personal information and I don’t have a firm answer for you as I am not an attorney nor do I live in your state. My guess is that you don’t HAVE to provide the information but you may WANT to provide it just so you keep all avenues of communication open between you and your association. If you feel it is a truly legal issue, I have to suggest you get in touch with an attorney in your state who is more familiar than I am with your laws.

Inspection of Condominium Records by New Board Member

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B.K. from outside of Connecticut writes:

Dear Mister Condo,

Hi! After years of dealing with an uncooperative Board that doesn’t communicate anything to the homeowners, I finally was elected to serve as a Board member. I was elected because the majority of the people in our development want change & communication. One of the first things I asked for was a copy of the Master Policy (including flood since we were severely damaged by Hurricane Sandy) and other insurance documents as well. The other Board members (who are not thrilled that I got elected) directed me to the management company who then in turn said I can view these documents in their office. Shouldn’t these documents be made available to all homeowners or is there a legal reason they need to be housed with the management company?

Mister Condo replies:

B.K., welcome to your condo board! I hope you find volunteering your time serving to be a rewarding experience. The storage of condo documents such as the Master Insurance Policy is the responsibility of the Board but is often handled at the office of the management company if the association has a management company. The likely reason for this is that the management company is a business and is likely to have the physical resources for storing such documents. Inspection of association documents is the right of any unit owner, not just Board members. However, associations and their agents like the management company do not have to allow for random inspection at any hour of the day or night nor do they have to allow these inspections to occur for free, meaning there may be a small fee for the inspection. Typically, management company personnel are needed to find the records and make copies if needed. That is what the fee is for. The same is true for other association documents such as contractor bids and contracts awarded to repair the damage left in Sandy’s wake. Association records are property of the association. If the Board should decide that a volunteer member of the Board be the keeper of these records, it should be noted that the records still need to be available to other unit owners. For this reason alone, most associations would elect to have their property management firm warehouse the records and monitor their inspection and distribution. Otherwise, a volunteer Board member could find themselves spending lots of time fielding document inspection records (likely in their own home) from other unit owners. I don’t know about you but I sure wouldn’t want that burden. Good luck on the Board.

Condo Handicapped Parking for Secondary Vehicle?

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M.F. from New Jersey writes:

Dear Mister Condo,

I’m a handicapped person who has two cars. Because I’m single and live alone. I mostly park my second car in over flow parking. Family with 3 or 4 drivers can park by their unit. Is there any law to help me change this condo rule?

Mister Condo replies:

M.F., in a word, “no”. I am not sure why or how a family with three or four drivers can park by their unit and you cannot but that seems somewhat irrelevant to your underlying question about changing the general parking rules. The nature of most condominiums is that their parking lots are privately owned and are managed at the discretion of the Board. The litmus test for the Board is “reasonable accommodation”. Due to the high volume of vehicles and the usually small number of parking spaces available, it is simply not possible to provide dedicated handicapped parking as the request doesn’t pass the “reasonable accommodation” test. Also, your particular case is about a secondary car. Clearly you have dedicated parking for your own use for your primary vehicle. If that weren’t the case, you would have a much stronger case for requesting a handicapped space. All that being said, it never hurts to ask. Write to your Board and tell them exactly what you have told me and see if they are amenable to offering you a dedicated handicapped parking for your secondary vehicle. You’ll never know, if you don’t ask. Good luck!

Smokey Robinson’s Condo Insurance Advice

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B.G. from Fairfield County writes:

Dear Mister Condo,

The insurance for our Association is extremely expensive. Do you know what the best companies are that are most affordable? We are a small Association.

Mister Condo replies:

B.G., I am reminded of the Smokey Robinson classic, “Shop Around”, where Smokey sings “My Momma told me: You Better Shop Around”… Seriously, community association insurance is expensive and there are many factors that go into the pricing of premiums for condo associations and HOAs. Your best bet is to work with a community association insurance specialist who understands not only your association but also the risk factors that tend to drive up premiums. In Connecticut, you can find a list of such insurance professionals right on the CAI Connecticut website at http://www.caict.org/?page=Directory#Insurance. In fact, you’ll even find one such company on the right hand side of this column in the “Sponsored by” section. Size of association has little effect on the cost of your insurance. The value of the property, the risk factors, and even the claim history all play a role in determining premium. I saw one recent list of recommendation for a Connecticut association that included banning grills from decks as the grills were seen as potential fire hazards. I have seen limiting association tree heights as a risk factor to prevent claims from trees falling into buildings. There are too many factors to list here but I do suggest you take Smokey’s advice and “Shop Around”. Good luck!

“Two For Tuesday” Condo Questions on Handicapped Parking and Late Payments

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M.M. from Fairfield County writes:

Dear Mister Condo,

Is the association responsible for supplying at least one handicap space in the parking lot?

Can the association not accept payment for late common charges?

Mister Condo replies:

M.M., it looks like it’s a “Two for Tuesday” today. Two questions for the price of one. FREE!

The association is not generally responsible to supply handicapped parking. This is because the condo is private property and not subject to the same rules as public parking lots. That being said, if you make a written request to the Board to provide handicapped parking, the Board must review the request and determine if there is reasonable accommodation available. In many associations, it is simply not possible to provide dedicated handicapped parking because there are too few spaces for too many residents and visitors.

I have never heard of an association not accepting payment for common charges or late fees. However, if the fees had accumulated to the point of turning the collection over to a collection agency or attorney, the late fees might actually have to be paid to the collection agent per agreement with the association. Also, when late fees are assessed, any payment of common fees goes to the arrearage before paying for current fees. In other words, if the fees were $250 per month and a unit owner fell three months behind, any fees collected would go to the latest month first. The same is true for late fees. A delinquent owner who owed $750 in late common fees and $75 in late fees who offered $300 as payment would likely see the money allocated to the oldest month first. In this case, that would mean $250 to the third month back and then the remaining $50 toward late fees on that third month back. Any remainder would be posted towards the second month back. This gets quite confusing quite quickly and it is always wise to keep your common fees current. After all, your common fees are going to pay for products that you and your fellow unit owners are consuming every month. All the best!

Condo Carport Can’t Be Used for Parking!

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A.B. from Fairfield County writes:

Dear Mister Condo,

When I purchased my condo, it was listed under MLS and sold as a one car garage and a carport. Now, two years later, I am being told that there is NO PARKING under a deck or any room (which is my carport). The by-laws were written three months before the listing and four months before I purchased this unit. Can I go after the listing agent or seller or condo? Please help, thank you

Mister Condo replies:

A.B., I am truly sorry you find yourself in this predicament. As I am sure you have realized by now, the Multiple Listing Service (MLS) is not a legally binding description of a property. While the MLS should most certainly get the details about the unit correct, the listing itself may have little bearing on the outcome of you being able to park in your carport. I am not an attorney and offer no legal advice on this website, so please accept my words as friendly guidance. You may well wish to consult with an attorney to see if you, in fact, do have legal remedy available to you. You need to look at two things, in my opinion. First is your deed. Does your deed spell out your parking arrangement? Many condos also allow for parking of one vehicle in front of the garage as well. Does the deed mention specifically another parking space? If not, you may be at the mercy of the association’s by-laws, which is the next place you need to check. What, specifically, do they say? You use the phrase “I am being told”, which is not the same as “the by-laws state”. You need to read and understand the by-laws as it relates to parking under a deck or any room and make sure that this situation applies to you and your carport. Also, you need to make sure the rules are being applied unilaterally across the entire complex. In other words, they can’t single you out for improper parking in your carport while others in the association are allowed to do so. If you read and understand your by-laws and are still not certain that you cannot use your carport, I would advise you to seek the advice of a qualified attorney. Good luck!

Upstairs Condo Unit Owner Allows for Potential Flooding of Downstairs Unit

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R.L. from Hartford County writes:

Dear Mister Condo,

My husband and I live in a two-unit Victorian condo. The attic and the 2nd and 3rd floors belong to another owner and are considered Unit 2. We own the 1st floor and the ground floor and it is considered Unit 1. Our heating system has been upgraded to gas and is well maintained. Unit 2’s heating system is about 40 years old and has never had any regular maintenance. Both systems use forced hot water. Our neighbor has a very old oil burner which has broken down. He is willing to pay for the repair, but the repair cannot be done without his heating company entering his unit to flush the pipes. The system uses forced hot water.

One year ago our neighbor moved out. He left his heat on. But now his oil burner does not function. Winter is coming and we live in the Northeast. It is not uncommon for the pipes to freeze in our neighborhood. Surely, his pipes which are on two floors above us will freeze without any heat and the flood will ruin his unit and ours. He is willing to pay for the repair but he is not willing to let the company enter his unit to drain the pipes. So the company will not do the work and the Unit owner is not willing to be present to open the doors and is not willing to let anyone enter his unit in his absence. What rights do we have? It is getting quite cold!! Are there no town agencies responsible for averting a disaster?

Mister Condo replies:

R.L., obviously as I answer this question in June, your situation has already played out. Since I answer 5 questions per week on a first come / first served basis, I apologize for the length of time it took to get back to you. I hope you got through this potential nightmare unharmed. Your story is one of common sense lacking in the unit owner above you. The refusal to not allow repair workers into his unit to handle the repair is an act of willful negligence. While there are no laws that I know of that require unit owners to keep their heat on and in good working order, there are legal remedies available to you should you incur a loss once the damage is done. I realize that it would make far more sense to force the prevention of such damage but that’s not how the system works. In fact, your best bet against financial loss is a great homeowner’s insurance policy. Be sure your policy has provisions for housing you away from your home if such damage occurs. You might also want to review your condominium’s governance documents to see if they address the issue. In a typical condo, right of egress is often granted when a common utility is housed in a particular unit. However, according to your statement, each unit owner owns its own heating system. As such, the association would have no right to enter the unit to maintain the system. Small condos often face the same dilemmas as larger condos when it comes to governing common sense – you just can’t force people to behave as responsible adults. However, if there lack of proper behavior causes you financial harm, there are often remedies like lawsuits that can make you whole, after the fact. All the best!