Monthly Archives: October 2016

Adding a Greenhouse to a Condo Unit

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D.W. from Hartford County writes:

Dear Mister Condo,

I am requesting our condominium board’s permission to build a “greenhouse” type outdoor structure to be able to go outside in the winter. I am planning to get all necessary building permissions from my town. Are there any legal or other considerations I should be aware off before getting a board approval? Also, what could be board’s concerns debating to give me an approval for building this external structure? Thank you.

Mister Condo replies:

D.W., while I wish you well in your quest for an outdoor structure to improve your condo living space and add extra value to your unit, I wouldn’t be terribly surprised if the Board denies your request based on architectural compliance guidelines that they need to enforce for each and every unit within your association. Variance from the original plan can create a myriad of problems for the association. My first question to you is are there other such modifications within the association? Has a style and type of such modification been previously approved? If either of these conditions are true, you might persuade the Board to allow your modification. If no such modifications have been previously approved, I would think yours will likely be denied. This issue for the Board is maintaining the property’s external looks as is. For instance, who will be responsible for the maintenance of your addition? What if you sell your unit and a new owner lets it fall into disrepair? How will having a “greenhouse” type addition on just one unit in the complex effect the overall appearance of the complex? If they approve your addition, how will it affect their ability to prevent another unit owner from adding the adobe hut to the back of their unit? That last one was a bit facetious but I think you catch my gist. Condominiums are built and presented “as is” and the governance documents usually have specific language prohibiting additions such as you are proposing without architectural approval from the Board. In my experience, most Boards are far-thinking enough to deny these requests as they often create more problems than they solve. As I opened, I wish you good luck but my expectations are that your request may be denied.

Condominium Hornet’s Nest Damages Unit Owners Furnace

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P.C. from Outside of Connecticut writes:

Dear Mister Condo,

Can I ‘force’ my association to pay for half my furnace repair? Furnace stopped heating my unit, due to intake terminations installed incorrectly, AND a hornet’s nest, hard as a rock, in said pipes which stopped the air from ‘pushing through’.

Mister Condo replies:

P.C., I am sorry for your problems. Whether or not your association has any liability for your damaged furnace likely lies in your condo documents. Intake terminations installed properly is a construction defect. The question is who owns the terminations? If they are your responsibility and you own them, the association is likely not liable. If they are common elements owned by the association, then it may be argued that they have some responsibility. The hornet’s nest is another matter and may fall under an insured loss to either your homeowner’s policy or the association’s insurance if such losses are covered and if the property in question is owned by the association. The bottom line is that your furnace is likely your exclusive property and your responsibility. The hornet’s nest was not an intentional act by you or the association. That is what insurance is for so I would advise you to speak with your insurer about a claim against your homeowner’s insurance first. If it is not covered, you might look to your condo documents to see who owns the intake terminations. If the association owns the terminations, they have the responsibility to repair the terminations. That may end their responsibility. I hope this all works out for you. Good luck!

Condo Trustees Decide to Stop Paying for Association Water and Sewer Services

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E.G. from outside of Connecticut writes:

Dear Mister Condo,

I own a private water and sewer system that provides these services for a flat fee to a condo association. The condo owners pay for water/sewer as a flat fee as a part of their HOA fees. There have been no increases for 10 years. This flat fee was stated in the condo docs. For the last 2 years the trustees have decided to not pay all of the invoices and now are $18,000 behind. Can the trustees on their own decide not to pay for all of the water/sewer services? Do they need special authorization to make these decisions? This authority is not granted in the condo docs.

Mister Condo replies:

E.G., that is an interesting question and it leads me to more questions than answers. The first question is why would you continue to provide water and sewer system services to a client that doesn’t pay its invoices? I would think terminating the water and sewer service for non-payment of invoices would get their attention quickly and get the invoices paid so as to restore the water and sewer service. Am I missing something here? If they stopped paying for electricity, the power would be shut off. If they stopped paying for landscaping services, the grounds would look in poor shape soon after. Is there a reason that water and sewer services should continue without payment? If the condo documents state that water and sewer services are paid for by the association and the association has failed to pay for these services, then the association is deficient in its duties to unit owners and the unit owners could make a claim against the association for failing to provide the service. If the documents were amended along the way, there may be a scenario where unit owners are now individually responsible for such bills. However, document amendments have their own protocol as outlined in your documents and even state law. If these protocols are not followed, any action taken by the Board to divest the association of responsibility for the water and sewer service is likely to be questioned by unit owners like you and may be headed to court or ADR for resolution. Trustees are bound by the governance documents and state law when it comes to making such important decisions. If they aren’t following the rules, you would be wise to call them on it. Good luck!

Noisy Condo Tenant Disturbing Unit Owner’s Peaceable Enjoyment

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R.B. from Massachusetts writes:

Dear Mister Condo,

I live in a poorly-insulated condo complex. There are three floors and six units per building (4 buildings total). The couple that lived above me recently moved out, but I experienced almost year of life disruption because of their noise. They had two small children that ran about and jumped all over the place like wild animals and the adults were constantly dropping heavy objects all day long. The husband seemed receptive when I complained, but they did not change their habits and the noise continued. They were renters and I did speak to the unit owner/landlord who barely did much to help the situation (he is a board member). The renters moved out in late June and the owner is renovating now because he plans to sell. I had hoped that when the couple moved out, I’d finally have some peace and quiet.

No such luck. The owner on the third floor is an elderly woman who keeps the volume on the television blasting ALL NIGHT LONG INTO THE MORNING. I tried approaching her, but she wouldn’t answer her door. I left her letters taped to her door that she apparently disregarded. I complained to the board and the property manager said he spoke to her. This woman’s behavior continues. I complained again to the board/property manager; two weeks have passed since I last said something and have not received any response. I can’t afford to insulate and at the moment I can’t afford to sell or move out either. There IS a rule in the condo’s regulations about noise, and they don’t seem to be enforcing it. I don’t want to have to be a pest or chronic complainer, and can’t afford an attorney.

What else can I do? Should I keep complaining until something gets done?

Mister Condo replies:

R.B., I am sorry that you are living with this unbearable noise. High density housing with upstairs and downstairs neighbors often comes with thin walls, floors, and ceilings that may require a tolerance for hearing your neighbor’s sounds at times when you desire quiet. Most associations have rules about acceptable noise limits and the hours when noise should be kept to a minimum. Have you reviewed your condo’s rules and regulations to see what the acceptable noise rules are? Are they strict enough that you would have a case if you seek legal help? My advice is that you review your association’s documents and see what your rights are with regards to peaceable enjoyment and what rules are in place to empower the Board to take action against noise offenders. Next, speak with an attorney to see if a lawsuit against the association is in order. I realize that there is an expense here but it is necessary if you are going to solve your problem. If the Board is unwilling to enforce the association’s rules about noise, you may need to force them to do so by taking them to court. Typically, this will motivate the Board to do the right thing, which may involve them issuing a warning and fines to the offending unit owner, who in turn should take action against the tenant. If an attorney advises you against a lawsuit because your case is weak, I am afraid the noise will likely continue. You might look at sound insulation or other possible solutions but from what you have told me, there is going to be sounds coming from above just because the building wasn’t designed to deaden sound between floors. It is an unfortunate situation to say the least. Good luck getting back your peace and quiet!

Condo Air Conditioner Expense Leaves Unit Owner Cold!

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G.M. from Fairfield County writes:

Dear Mister Condo,

I am member of a condo association. I have inherited a $10,000 Air Conditioner expenditure due to negligence and management by my condominium. I have presented my case to them and the claim. My family and I cannot afford this cost and we cannot afford to be without air conditioning again this summer. Who can I turn to?

Mister Condo replies:

G.M., I am sorry that you find yourself in this position and I apologize for not being able to get to your question before this past summer. I hope you got through the worst of the heat waves we experienced in August. I am not exactly certain how you “inherit” an air conditioner expense. If you own the unit (which is quite common) then it is yours to maintain. If the association owns the unit then it is their expense and responsibility to maintain. If a previous owner sold you a unit with a faulty HVAC, I am afraid that is likely going to be your expense. If you paid for a property inspection and the faulty HVAC was missed by the inspector, you may be able to seek some relief through the inspector but this is quite unusual. If you do need to replace the HVAC be sure you speak with the association to make sure you replace the unit with an association-approved model. Even though it may be expensive, typical modern air conditioning units will last for many years to come and may even pay for themselves in electricity savings due to modern efficiencies. If, for some reason, the association is responsible for the upkeep and maintenance of your air conditioning unit and they failed to do so, you may wish to speak to an attorney to see what further recourse you may have. Either way, I wish you good luck!

Association Tows Vehicle with ADA Placard

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J.H. from outside of Connecticut writes:

Dear Mister Condo,

My 39-unit building has 2 ADA spaces – one of which is constantly utilized by one resident – who does have an ADA placard – as a 3rd space for their unit. We are deeded 2 spaces each. HOA rules clearly govern the ADA spaces (Guest pass *and* ADA placard needed, 24-hour max), in order to address residents using them improperly. Multiple written warnings, and then a towing took place. Was the HOA Board within its rights to tow a placard-displaying vehicle from an ADA space?

Mister Condo replies:

J.H, towing is an extreme measure for any association. It is usually reserved for the worst offenders and those putting the safety of association residents at risk. For instance, a vehicle parked in a fire lane or obstructing the entrance or exit to the association or blocking access to another unit owner’s unit. From what you have told me, none of those things happened here. A unit owner with ADA placard violated the association’s rules on parking on more than one occasion and the association decided that enough was enough and towed the car. Whether or not the association was within its right to do so is very likely a matter for the courts to decide if this unit owner brings suit against the association. I am not an attorney and offer no legal advice in this column. The association should have spoken with their attorney before towing this vehicle to make sure they had the power to do so. My guess is that as long as the by-laws grant them that power and they followed all of the required protocol first (notice of violation, request to appear before the Board to discuss violation, fine for violation, and so on) then they may have also had the right to tow the vehicle. However, since there was no emergency situation in play here, towing was an extreme measure and may not have been the best way to get this unit owner to comply with the association’s rules on parking and use of the ADA parking spaces. The written warnings were a good first step. I’m not sure that towing should have been the next step. Ideally, unit owners will comply with association rules. When they don’t, it may be time to involve the association attorney to take the proper next steps of enforcement. At the very least, the association has set itself up to have a legal battle with this unit owner. At the very worst, they may be found to have taken unfounded action against the unit owner, who happens to have a handicap sever enough to merit an ADA placard. You had best hope the unit owner doesn’t claim discrimination against the association in addition to any complaints about having their car towed improperly. Good luck!

Condo Damage Caused by Unit Owner Suffering from Dementia

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D.M. from outside of Connecticut writes:

Dear Mister Condo,

Upstairs neighbor has Alzheimer’s/dementia, lives alone. Water leaking into downstairs neighbor’s, creating electrical fire danger. She won’t let anyone in.

Mister Condo replies:

D.M., I am sorry you and your association find yourself in this situation. Welcome to the world of court-ordered access! Even if your condominium documents allow for “right of access” to units within the association, it is usually best to do so with a court order. It is time to speak with the association’s attorney on this issue so you can get expert legal advice on the steps the association needs to take to get into this unit owners abode to address the problems as they occur. The association cannot discriminate against any single unit owners so it is not like you can say we think this unit owner has dementia so we need to enter the unit. You simply cite the problem (in this case, water damage caused by the unit owner) and the need to access the unit to correct the problem. Once you have your court order, a locksmith can help you enter the unit if the owner refuses. Again, don’t do any of this without legal counsel. Further remediation may be needed and your by-laws likely have clauses about unit owners not causing damage. You may be able to seek remedy against this unit owner for the damage caused and you may be able to seek relief from future damage if it is an ongoing occurrence. These are all items for the association attorney. Good luck!

Condo Elevator Replacement Causes Special Assessment for First Floor Residents

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M.J. from California writes:

Dear Mister Condo,

Quick question for you from California. Living in a condo building that needs a new elevator at some point in the future. The HOA wants to make a special assessment for the new elevator. Do the people living on the first floor have to pay for this special assessment, considering they don’t need to use the elevator?

Mister Condo replies:

M.J., generally speaking, yes, all unit owners contribute to the elevator repair, upkeep, and replacement if needed. The reason or this is that the elevator is most likely a common element of the entire condominium association and listed as such in the governance documents. Also in those documents is the percentage of unit ownership formula that dictates how expenses are allocated per unit. This includes your common fees and extraordinary expenses causing special assessments. As long as all of those conditions are true, and I’m betting they are, all unit owners will be subject to the special assessment for the elevator replacement. I’ve always said that condo ownership has its ups and downs. Here it is quite literally true! Good luck!

Years-old Condo Water Intrusion Leads to Mold Today!

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A.M. from Hartford County writes:

Dear Mister Condo,

I moved into this condo on October 27 of 1997. On November 1 of 1997, I noticed water pooling around the base of the downspout in a corner of the unit. I reported this to the board and they installed an extension to the downspout and then into a submerged pipe to carry the downspout water out to the catch basin in the street. In May of 2014, I noticed water gushing out of the top gutter onto the roof shingles. The top gutter was not attached to the bottom gutter, so all the rain water was overshooting the lower gutter and falling onto the roof. I took a picture of this and reported it to the Condo Board. An “elbow” was put in connecting the top gutter to the lower gutter. I noticed that while living in the unit, there was a mildew odor coming from a walk-in closet where the corner downspout problem was. I did not report this to the board, but used a dehumidifier to deal with the odor. Now the odor has been detected in the guest bedroom attached to the walk-in closet. I reported this to the board, as I suspect that the years of water spilling out of the gutter onto the roof before the elbow was installed may have seeped into the siding, under the fascia, in the insulation, etc. , which is causing this odor in this room.

I would like to have a licensed, certified roof engineer/inspector do an inspection to determine what water damage may have occurred to produce this odor. My condo board is reluctant to hire a certified engineer or whomever may be qualified to do an inspection. There is no access to the rafters or roof from inside the condo. No water stains are apparent on the inside ceiling or walls of the room where the odor is. However, there is a ceiling/wall water stain in an adjacent room which was passed off as “due to an ice dam from the winter”.

The board would like to have the maintenance person who maintains the gutters do this inspection. I do not believe that he will deliver an unbiased opinion or a qualified opinion in this matter. I maintain that a thorough inspection by a certified engineer/carpenter/roofing inspector is necessary to determine where the moisture is coming from which would result in the odor. This involves removing siding, shingles, etc. I would like to ask you what obligation the board is under to have this inspection done by someone other than the maintenance person and how I should proceed in this matter. Thank you for any assistance you may be able to give me.

Mister Condo replies:

A.M., mold and mildew are always a serious business in condominiums. The problem often takes years to fully appear and there is usually a lot of finger pointing and very little action on the part of the powers that be to mitigate the situation. In my experience, it is almost always time to speak with an attorney when the mitigation efforts stop. However, in your case, the Board has proposed a solution that I think you should at least let them try before you escalate the situation by involving an attorney. Once you do that, the Board will likely respond by hiring their own attorney and the matter will head to court for remediation. If there proposed solution does not work and you are still dissatisfied with their remediation efforts, it is certainly time to speak with an attorney and pursue a legal remedy to your problem. It is important to note that Board members are simply volunteer leaders from within your community association. They are not usually building experts, mold remediation experts, or legal experts. They are well-intentioned folks seeking to protect their community association from what they may consider unnecessary expenses that drive up common fees and may even require special assessments. In this case, it would seem they are taking the least expensive path to remediation, which is fine if it works. However, once you apply legal pressure in the form of a lawsuit, the matter is complicated and much more expense is added to the equation. That isn’t to say you won’t prevail and get what you want but it now becomes as much a legal battle between you and the association as it does a request to have the mold removed. Speak with an attorney, get proper legal advice, and be ready to take action if the problem isn’t resolved. Mold can be toxic and it may be more than just a smell coming from the mold; it may be deadly and the longer this drags on the longer your health is at risk. I am hoping for a speedy resolution for you. Good luck!

Common Fees May Need to Double, Maybe Triple at this Small Condo!

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D.J. from New Haven County writes:

Dear Mister Condo,

Mr. Condo, help! Our 6-unit Association is improperly managed and I’m looking for the best way to begin the process of getting us to more stable ground. Our Board is defunct, with no President, and our Treasurer takes care of all Association business to the best of her ability with some help from us paying bills. Our common fees fall short of covering our expenses during heavy snow years and we have no reserve fund. We are doing what’s needed through assessments, a new roof and paint but, with no reserve it’s only a matter of time before trouble hits.

Our Treasurer has now resigned – she’s tried several times – without any plan for who will conduct the Association’s business. We can’t blame her but, would rather see the Association hire a property manager or some other professional to help us work through all of these issues. Unfortunately, she and the other unit owners are refusing to hire a property manager due to cost.

Mister Condo replies:

D.J., this is a most unfortunate situation. Smaller associations like yours are often at the mercy of a very limited pool of owners to serve as volunteer leaders. The argument that they cannot afford professional help is not valid. Professional help is needed, regardless of cost, especially if no volunteers step forward to lead and do the work of governing the association and its finances. Otherwise, the association could fall into default, and worse, be sued by a creditor who would likely seek dissolution of the association. A default on that level would leave all unit owners liable for expenses and they could very well lose their homes in a long, drawn-out, and expensive process. Instead, they should bite the bullet now and either produce leaders from within the group of six or speak with several professional management companies about how much it will cost to have the necessary services provided to keep the association running. It is very possible that your common fees will need to be increased dramatically to cover this expense. The Reserve Fund must also be built as Special Assessments are a last resort and should not be the plan for replacing aging common elements that will fail over time. Again, common fees will increase to cover the expense. These new common fees may make living in your condo too expensive for some residents. Guess what? They would be right to acknowledge it is too expensive for them and move! You cannot keep common fees artificially low. A budget needs to be prepared including professional management and adequate funding of the Reserve Fund. Once those numbers are known, the true common fees will be in place and unit owners can decide for themselves if they wish to continue owning a unit in your association. This is a bitter pill, I know. But if the unit owners don’t take this course, the path to dissolution will be far costlier. Good luck!