Monthly Archives: June 2016

Condo Unit Owner Seeking To Keep Visitor as a Non-Resident

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C.T. from Fairfield County writes:

Dear Mister Condo,

My condo board is insisting my boyfriend who comes over once a month fill out an additional resident application. I don’t want him to be a resident. We have a child together and he comes here to see his son but does not live here. I don’t want him to have any legal claim to be a resident here. Our rules are very vague on this. It says anyone who visits more than 14 times. The old board had no problem since I have been dating him for 4 years. This new board who took over a year ago has been the problem. There is a woman from my unit who lives above me who has only lived here for 3 years. I think that she got herself on the board to come after to me. Not sure because I have a toddler or because my boyfriend is a minority. I have retained counsel. Just don’t see how they can make visitors residents of your household or keep fathers from seeing their children. This takes being in someone’s bedroom to a whole new low.

Mister Condo replies:

C.T., family and neighbor drama aside, you have already taken the right step by contacting an attorney who will advise you of your legal rights. As a rule, providing a name of a friend, family member, or other acquaintance who visits your unit regularly has no legal bearing on that person’s ownership of the unit. Your ownership is determined by your name being on the deed to the property. They are not requiring you to amend your deed so I don’t see where he would have any legal claim to be a resident. He would be able to claim he has been identified to the Board as having residency, which may make him subject to things like parking rules for residents or amenity use (a pool, for instance) but it wouldn’t give him legal rights to your property outside of the walls of the association. Again, please speak with your attorney about the specifics.

As for your relationship with the Board member who lives above you, I wouldn’t give that too much credence. As long as you are living within the rules of the association, there isn’t anything she can do to make your life miserable. If you are ever targeted for being a Mom of a toddler or for having a minority for a boyfriend, you will speak to your attorney about bringing a suit against the Board. Believe me, you have way more power in that situation than any Board would care to deal with. Discrimination lawsuits are costly to defend and even more costly to lose. Go on living your life and enjoying your home. All the best!

Condo Minutes Reflecting Board Member Recall

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J.W. from Fairfield County writes:

Dear Mister Condo,

My association held a special unit owners meeting to vote on removing a board member. After the petitioner gave the rationale for wanting the board member removed, there were comments from individual owners either in support of the removal or not. Do these comments have to be set out in detail in the minutes or can there be a general statement that comments from both sides were given? Thank you.

Mister Condo replies:

J.W., I am sorry your association found it necessary to hold a recall meeting. Minutes of association meetings and the business conducted therein are meant to be a summary of what happened. They are not a transcript of the event so there is no reason to include testimony for or against the removal of the unit owner as Board member. Quite simply the Minutes should reflect that a meeting was noticed and held, a quorum was present, and the following business was handled. In the case of a recall meeting, the business at hand was the recall of the Board member. A motion was introduced, seconded, and discussed before a vote was held. The results of the vote resulted in the successful/unsuccessful recall of the Board member. There being no further business before the association, the meeting was adjourned. Unless your association’s governance documents require something different, that should suffice. All the best!

Law to Limit the Amount of Condo Common Fee Increases?

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V.C. from Hartford County writes:

Dear Mister Condo,

Does Connecticut have a law that regulates how high HOA fees can be increased in one year? The HOA fees were raised 15% for 2015 with the promise that fees would not increase again for 3 years. Then an ‘adjustment’ was made from what the association claims was a clerical error in calculating the new fee which increased the HOA fees again mid-year 5-15% depending on unit size. Now for 2016, fees are increasing again 25%. Thanks for your help.

Mister Condo replies:

V.C., common fees are typically set at the Annual Meeting when the Annual Budget is adopted and ratified. While it is unusual for there to be mid-year increases, it is not unheard of. I am unaware of any state law that dictates common fees increases or decreases and, honestly, I can’t see any reason for one. When the Annual Budget is adopted, the expenses of the association for the upcoming year have been planned and the unit owners have had an opportunity to vote and ratify the budget. The budget preparation is a combination of historical data and a few guesses as to what the upcoming year will bring. If last year’s budget called for $100,000 in expenses, then next year’s budget is likely going to be $100,000 plus whatever projected or known increases are coming. Major capital projects should be paid for out of Reserve Fund contributions that have been accumulating over the years. My guess is your community was deficient in Reserve Funds and had extraordinary expenses occur without the money properly budgeted to pay for the expense. The only source for raising funds is the unit owners so the Common Fee schedule was adjusted so the association could meet the financial obligations of the community. Promises of “no fee increases” from Board members are just as valid as promises from politicians to not increase taxes. They are worth the paper they are printed on! In my experience, many community associations are woefully underfunded. This is a result of a desire to keep common fees low while not properly planning for future expenses. A few years ago, the FHA mandated that condominium association contribute not less that 10% of their annual budget to Reserve Fund or the FHA would no longer back mortgages written for unit owners within the association. Not wishing to lose the ability for units to be sold to new owners seeking FHA-backed mortgages, many associations complied. A 10% Reserve Fund contribution may satisfy the FHA requirement but it is in no way, shape, or form an indication that a community is saving enough for tomorrow’s repairs. For this reason, stories like yours are far more common than you might think. If you have the opportunity, take a long hard look at the association’s finances. If the budget preparation process is faulty, you can expect this financial chaos to continue. If the Reserve Fund is inadequate, you may also expect Special Assessments when major repairs are needed. It would be better for you and your fellow homeowners to get the Board focused on getting the association back on solid fiscal ground if you wish to avoid this chaos in the future. Otherwise, you can expect more of the same as the Board scrambles to find money to pay for upcoming expenses. Good luck!

Condo Association Governance Review Questions

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M.F. from California writes:

Dear Mister Condo,

When we moved into our condo in November 2011, of course, we received the CC&Rs (master that applied to all 1000+ homeowners in the HOA) and the separate CC&Rs that applied to the condo SBA (special benefit area of almost 200 condos). We were told that condo homeowners have a 1/170 responsibility for maintenance (rebuilding of the condos due to destruction, i.e., earthquake). But now clarifying information has just come from the HOA attorney that the maintenance and rebuilding of the condos is actually based upon a division of five (5) different phases (or construction of parcels) in the SBA. That is, the original builder and the original bylaws specified this obligation based upon the phases, or roughly 34 units in each of 5 phases, but the parcel or phase sizes are not exactly uniform.

My question/concern goes to the issue of due-diligence, transparency, and accountability for who, what, how, when and why this information is only disclosed to homeowners long after the review, submission and vote of major CC&R changes in 2012 based upon the premise that the condo homeowners had a mutual obligation determined by the 1/170th ownership principle. On the issue of earthquake (EQI) insurance, a small group of 120 condo owners had to force successful mediation of the issue to rescind a wrongful and secret special assessment voted by the board without homeowner consent or participation in the process.

Mister Condo replies:

M.F., the HOA attorney is the right professional to offer a legal opinion on this situation. It would appear that the condo’s governance documents addressed the issue of maintenance and the percentage of unit ownership formula to be applied for common fees and special assessments. It would also appear that there was some confusion on the part of sitting Board members at the time of common elements, limited common elements, and the governance of the various phases of the association, which would appear to be several smaller associations functioning together as one larger association. This is not particularly uncommon but it is easy to understand how Board members with limited knowledge of such things could misinterpret the governance documents and lead the association down the wrong path. As you have pointed out, when the mistake was caught by a group of unit owners, they brought suit and won on the issue of Earthquake Insurance. The same process applies in all instances of wrongful governance. The burden is on the unit owners to bring suit against the Board to correct the wrongful interpretation of the governance documents. It can be costly for both the owners bringing the suit and the association that has to defend against the suit but that is just the reality of the legal system in action. It is also one of the reason that community association attorneys are an important part of every community association. Their expertise in these matters can prove invaluable and, while costly, will usually end up saving the association money in terms of law suit prevention. Of course, the Board is made up of volunteer leaders who were voted into their positions by the democratic vote of the community association unit owners. If they aren’t doing the job properly, it may time to elect some new leaders. At the very least, existing Board members should be offered the opportunity to get additional education on their roles as leaders. Your local chapter of CAI can be your best ally in getting them that education. Good luck!

Question of Leaking Condo Basement Responsibility

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T.M. from Hartford County writes:

Dear Mister Condo,

One of our residents has lived in his unit for approximately 2 years. The unit is 8 years old. Within the last 6 months, the owner has had an issue with roughly an inch of water in the basement. He never had an issue before that. Then, just last week, he had roughly 3 inches of water in his basement. The water was pumped out. The owner had a contractor come out who said that the perimeter of the basement must have the concrete jack hammered out for a foot then excavation must be done and pea stone and drainage pipe put in going to a sump pump which must be installed. The cost quoted is $5,800. The homeowner is asking the association to pay. I feel that this is something the homeowner should address. There is a possibility that the prior owner knew of the problem, however, it was not disclosed if this is true and can be proven. Someone is suggesting that the homeowner can take legal action against the prior owner. I would very much appreciate your opinion regarding this matter since I don’t know who else to consult.

Mister Condo replies:

T.M., the answer lies within your governing documents. Who owns the foundation? If it is the association’s responsibility and it has failed, then the association should pay for the work. If it is the unit owner’s responsibility, then the association is off the hook for the repair. If the previous unit owner knew about the issue and did not disclose it, that is unfortunate. However, the new unit owner claims the problem began only six months ago so how can the previous unit owner be on the hook for that? Had the water been there when the unit was purchased and the basement is the responsibility of the unit owner, the current owner might have a case against the previous owner but I doubt it after all this time. If the unit owner does decide to take action against the previous unit owner, it really isn’t any business of the current association. The association only needs to be concerned with whether or not the basement is their responsibility. If so, they should fix it. If not, they should not give the matter further consideration. If they are unsure, they get a legal opinion from the association’s attorney. All the best!

Condo Unit Owner’s Contractor Damages Temporary Fix on Neighbor’s Roof

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A.B. from outside of Connecticut writes:

Dear Mister Condo,

I recently replaced a new centralized AC system. My contractor stepped on someone else’s ceiling. We found out that the ceiling was damaged before and an on-site contractor put a temp fix e.g. a piece of wood on the hole. The contractor refused to repair the ceiling because it was already damaged before. The Condo Association demanded that I fix the damage and the other owner who caused the prior damage is not responsible to fix the issue period. Does this sound right to you? How do I find out what exactly the law says? Thanks.

Mister Condo replies:

A.B., this is a most unfortunate situation. I hope no one was injured. This is a classic “he says, she says” scenario, which will be very difficult to prove one way or the other. If the contractor who most recently damaged the roof has insurance (he should), it may be as simple as him placing an insurance claim to repair the area of damaged roof that he stepped on. If he can prove it was damaged before he further damaged it, he may be off the hook but that doesn’t help you necessarily as this roof was in working order before your contractor caused the current damage. Perhaps another temporary fix could be put in place until the original on-site contractor makes a better repair than the temporary repair?  Whatever the outcome, it is truly unfortunate that the initial repair wasn’t in place before your contractor stepped on the roof. This is exactly the kind of issue I would expect to head to court or mediation. Good luck!

Finding a Quality Property Manager for Your Condo

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C.D. from Hartford County writes:

Dear Mister Condo,

How do I find a quality property manager?

Mister Condo replies:

C.D., property managers come in all shapes and sizes. Some excel at managing large properties. Some excel at managing smaller associations. Some condo associations prefer a manager to be onsite to handle all of the day-to-day items that managing a condo entails. Others only need a manager on site every once in a while or for big projects. The real key to finding a quality property manager is to understanding what type of community you live in and what the needs of the association truly are. Then, it is a question of interviewing property managers who manage similar communities nearby or in neighboring towns. Provided you speak with enough qualified (and licensed, of course) property managers, you are very likely going to find a good fit. Don’t be afraid to ask for references and to check those references. If your condo has 50 townhouse units and you find a similarly sized condo who is happy with the manager they have hired, chances are that manager will be a good fit for your community as well. If you simply send out three bids and go with the lowest price, I guarantee you that you will not find what you are looking for. Also, be sure to check out the list of property managers and property management firms at the CAI-CT website at http://www.caict.org/?page=PropertyManager. That is absolutely the best place to start. Good luck!

Condo Waste Water Stack Floods Unit Owner’s Kitchen!

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C.W. from outside of Connecticut writes:

Dear Mister Condo,

I own a condo in a high rise building. The water waste stack supporting several units on the floors directly above me and directly below me became clogged and water backed up into my kitchen damaging my floor. Is the condo association responsible for the repair or am I? In a separate question, if my condo association hires a contractor to repair a pipe and it bursts and floods my unit, am I responsible for the damage in my unit? Should I file against my insurance and work directly with contractor?

Mister Condo replies:

C.W., it sounds like you’ve been getting it from all sides lately. Condo insurance claims can be a bit tricky and your homeowner’s insurance is generally where you should turn for damage inside of your unit. The insurer may seek remedy from the association’s insurer if appropriate but you should begin by placing a claim with your insurer. If they deny the claim or if there is a high deductible and you want to try to recover from the association, ask if a claim can be made against the association’s insurance as well. If the association’s insurance does not cover the claim, you can also sue the association for reimbursement. Of course, you will need to go to court and you will need to document your loss and your claim against the association as the cause of your damage. From what you have explained to me, that shouldn’t be too difficult. Good luck.

Not Happy With Contractor’s Work at Condo

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T.J. from outside of Connecticut writes:

Dear Mister Condo,

Can my unit owner board tell me not to talk to contractor’s or file a BBB complaint?

Mister Condo replies:

The Board may ask you to not speak with contractors while they are on site and they may ask you not to file any complaints with the Better Business Bureau regarding work done by a contractor on association projects. The reality is that these contractors are employed by the association and not you. You do not direct their work and you have not hired them to perform the work they are there to perform. Your speaking with contractors while they are on the job can be distracting to the workers and may cause a delay in work, costing the association more money. This is no different than you speaking with a state worker or local government employee about the work they perform. Yes, your taxes pay their salary, but you do not pay them nor do you have any authority over them. If you have an issue with the work being done by a contractor on behalf of the association, your line of inquiry is through the Board of Directors. You can write to them with your concerns and they can take action as they see fit. The Better Business Bureau (BBB) is another matter altogether. While the Board may not want you to post derogatory comments on the BBB website, you do have the freedom to do so. However, the contractor also has the freedom to pursue legal remedy against you if you slander them in any way. Again, keep in mind that you did not hire them to do the work they are doing. I would think you are simply inviting trouble by doing so. My advice is to make your concerns known to the Board of Directors and let the contractors do whatever work they were hired to do. Good luck!

Can I Repair My Own Condo Roof?

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F.C. from Hartford County writes:

Dear Mister Condo,

Our association needs to replace our roofs. It will require a 2 layer tear off. They did not save enough for the project and they need to borrow money to do so. They were supposed to be ready for next month but need to redo the bylaws so they can go for a loan. They need us to vote on the bylaw change. They did not complete the process and are pushing it to spring. There are units that have had water damage for a couple years in a row. 2010 ice dams cost us all lots of money. It is very clear by looking at them they need replacing. I asked them what happens if we get leaks this winter. I was told, hopefully we will not have a hard winter. I said, if we do, then we all have to pay assessments for repairs and that will be more money on top of new roofs. My question is can I reroof my own unit using an approved vendor and make myself exempt from incurring further repair costs? If I cannot do that and my roof does leak, will my insurance company pay for interior damage or a special assessment because they are negligent?

Mister Condo replies:

F.C., I am sorry your association, you, and your fellow unit owners find yourselves in this predicament. You cannot and should not reroof your unit. The association should not “approve a vendor” for such a job. You cannot make yourself exempt from incurring future repair costs. These are all the realities of owning a unit within a condo association. Your governing documents explain the proper procedure for making repairs to common elements such as the roof and the procedure for collecting the funds to do so. The association is not bound to take a loan. In fact, they can simply issue a special assessment using the proper procedures for doing so. If the roofing job would cost $250,000 and there were 50 units in your association, the $250,000 assessment would be divvied up to the unit owners using the percentage of unit ownership formula. For this example, let’s assume all units are equal and the assessment is $5,000 per unit. My guess is that unit owners don’t want to pay that kind of money “on the spot”. That means the community association loan is the next option. As you have seen, that takes time. The condo’s governing documents appear to not allow for the association to take a loan so they are being rewritten, voted upon, and adopted. Until that happens, there simply isn’t any money available for the project, which puts all unit owners at risk. Risk is what insurance is for and claims against insurance can carry their own set of costs in the forms of deductibles and/or denied claims. These, too, have legal recourse under the governing documents. The bottom line is that you need to follow the rules as outlined in the governing documents. Be sure you have plenty of homeowner’s insurance in place to cover any personal loss you might experience. Also, be sure that your fellow unit owners vote, either in person or by proxy, for the needed by-laws revision. Anything that delays the association’s ability to borrow money will delay this project further. Good luck!