Monthly Archives: November 2016

Condo Owners with Offsite Addresses May Be Undocumented Landlords

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J.D. from outside of Connecticut writes:

Dear Mister Condo,

I live in an older condo complex, and it appears that we have a pretty high percentage of units (40%) where owners have “offsite addresses.” In some cases, they are clearly renting the units out, but in other cases it appears that owners are living elsewhere and allowing family members to live there (whether the family members help with the mortgage, essentially paying rent, I don’t know). It seems that whoever is living in these units, to a large degree, are not following the CCRs, and I have to wonder if the owners are even having those living in the units review and agree to abide by them.

My question is this…if an owner is allowing a family member to live in a condo, is that a form of a tenancy? Can we compel the owner to have the family member acknowledge and sign a copy of the CCRs promising that the family member will be abide by them?

Mister Condo replies:

J.D., you have identified a few items of concern for you, your Board, and everyone living in or owning a unit in your condo association. Let’s start with the governance documents. Most define ownership and residency as ownership of the unit and leasing as the ability of the owner to have others live there. Some go as far as to identify family members and some states, Florida, for instance, even goes so far as to identify family members that are considered Immediate family (Second Cousin Elroy isn’t immediate family, Sorry, Elroy!) for purposes of who can live in the unit and be considered family. Those issues a side all residents need to be abide by the rules and regulations, regardless of whether they have signed anything form the landlord (real or imagined). When rules are violated, the unit owner of those violating the rules is cited by the Board and asked to appear before the Board to defend against the accusation. The Board then takes the next step which is usually a fine against the unit owner. These fines are fully collectable by the association and, if left unpaid, can lead to further collection action and even foreclosure as outlined in the association’s documents and in accordance with state law. You had better believe unit owners, regardless of where they actually live will pay attention to the fines and instruct whoever is living in their unit to follow the association’s rules. As for legal action against unit owners who are, in fact, acting as landlords and not playing by the rules, speak with the association attorney about how to deal with them. Many associations have strict guidelines and rental caps that prohibit such activity without accurate reporting to the Board. Just because they don’t physically reside within the walls of your association does not give them a free ride to do as they wish. They are bound by the governance documents just like everybody else. Of course, those documents are only as good as they are enforced. Time to take action, my friend. Good luck!

Condo Parking Rules Are Useless Without Enforcement!

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A.S. from Florida writes:

Dear Mister Condo,

Each owner in my condo association has an assigned parking space, deeded and specified in the Declaration. The stipulated rules are each car (after being approved) must display a DECAL and all guests/visitors must display a parking pass to be displayed in their windshield. These rules are not being carried out or enforced by required and appropriate identification but strange UNIDENTIFIED cars are being parked all over our private lot. The world is not a safe place today and more reason to enforce the governing rules. Please give your advice.

Mister Condo replies:

A.S., I agree with you. Parking lot rules are among the most important for an association to enforce. However, enforcement is every community member’s responsibility as the only way the rules violations can be known is if an inspection is conducted or a complaint is registered. Some communities choose to cut expenses by reducing or eliminating inspections. That’s when the system falls apart and pits neighbor against neighbor. It may be time to suggest to the Board that a more rigid inspection and enforcement program be installed or reinstated. This may cause costs to escalate and, in turn, raise common fees but it may be the only way to enforce the parking rules and help keep the community safe. Good luck!

Informing Unit Owners of Air Conditioner Rule Violations

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R.M. from outside of Connecticut writes:

Dear Mister Condo,

I need a suggestion for the wording of a letter to residents of my condominium to remove illegal installation of air conditioners.

Mister Condo replies:

R.M., thanks for writing. I am assuming that your association has rules that either prohibit or restrict air conditioners and some unit owners have disobeyed the rules and you would like to send out a notice of some sort reminding them that they need to obey the rules and remove any air conditioners that are in violation of the association’s rules. Here goes:

Dear Unit Owner or Resident,

It has come to the attention of the Board at XYZ Condominium Association that several units are exhibiting air conditioners installations that are not allowed as per our association rules. In particular, Rule 16, Paragraph a, which reads, “no unit owner shall install any type of portable air conditioning unit in a window of any unit”. Quite simply window mounted air conditioners are not allowed here and the Board is requesting their immediate removal. Failure to remove these unapproved air conditioners will result in a summons to appear before the Board and a daily fine of $XX as outlined in our association rules.

If you are one of the majority of unit owners who do not have a window-mounted air conditioner is place, thank you for obeying the rules. If you do have one, kindly remove it immediately to avoid further action. Thank you for your attention to this important matter.

Sincerely Yours,

The Board of XYZ Condominium Association

Hope that helps, R.M.. Good luck!

Unfortunate Encounter Between Condo Neighbors Has Board on Edge

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J.D. from outside of Connecticut writes:

Dear Mister Condo,

This is another neighbor-neighbor noise issue. We have one tenant who is complaining that his upstairs neighbors are noisy and disruptive and are harassing him. Upstairs neighbor say that they have not even heard from their neighbor after an initial, and unfortunate encounter. None of the other neighbors surrounding the upstairs owner are complaining. Does the tenant even have standing to bring a complaint to the board or should it be the unit owner? We do have a noise nuisance clause in our bylaws.

Mister Condo replies:

J.D., neighbor versus neighbor complaints are usually quite the headache for the Board. The renter’s complaint is to his landlord, the unit owner. The landlord should then either issue the complaint to the Board or empower the tenant to work with the Board through a power of attorney letter. Absent that, the renter really has no business interacting with the Board. Let’s assume the complaint comes in through the proper channel. What is the Board going to do?

If there has been an assault between neighbors, this is a matter for the police, not the Board. Ongoing noise complaints can be investigated and the offending unit owners can be brought before the Board to defend against the complaint. The complaint needs to come from the unit owner and be against the offending unit owner. This is an official record of the association once the complaint is made and the Board does need to review the complaint before deciding whether or not to act on the complaint. Action can include a warning letter, a summons to appear before the Board, and a fine if the Board appearance does not satisfy the Board and the by-laws allow such action. If the unit owner is not satisfied that the Board has done enough to protect the unit owner’s rights, he has the right to bring suit against the Board. The tenant also has the right to sue the landlord for not fulfilling the rental agreement which should have a peaceable enjoyment clause as does the condo docs. This has the potential to be a legal nightmare so keep an eye on what goes on between the players. However, from a more practical standpoint, it is more likely that the initial confrontation has died down and the residents are behaving better towards each other. If not, consult with the association’s attorney and look at the risk to the association and see what steps can be taken to enforce the association’s rules. If appropriate, encourage the landlord to have the tenant call the police if the neighbors threaten or intimidate him. Condo Boards are not law enforcement. When laws get broken, get the police involved. Good luck!

Validity of the Vote on Condo Annual Budget and Loan

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R.G. from Hartford County writes:

Dear Mister Condo,

 

Is voting on a budget, the borrowing of money require on ballot only the percentage of ownership, and if otherwise an illegal method and would be invalid in a court of law?

 

Mister Condo replies:

R.G., I am not sure I follow your question but let me address a few of the points to see if I can add some clarity. Also, since I am not an attorney, please consider my answers as friendly advice. If you have “court of law” questions, I must advice you to seek the advice of a qualified attorney.

The Annual Budget is presented and voted upon at the Annual Meeting, where all unit owners are invited and a quorum must be achieved before any votes can be taken. Your by-laws and state law spell out the rules for quorum so as long as quorum is achieved, the outcome of the vote would hold up in a court of law, in my opinion. Some associations have the ability to borrow money as part of their governance documents; many do not and require a vote of the membership in order to be able to do so. Again, the rules for modifying documents are spelled out in your governance documents and state law. As long as quorum is achieved and the rules are followed, I see no reason the vote wouldn’t hold up in court. The percentage of ownership formula does not generally come up in voting, meaning all unit owners votes are equal – one vote per unit. If you feel your Board has wrongly passed an Annual Budget or taken out a loan on behalf of the community association, you have the ability to question it. Unless you are knowledgeable in the law in these matters, I would highly recommend consulting with an attorney to see if you have a case. Unless either is contested in court, the budget and the loan would be considered valid. For what it’s worth, I don’t know of any community association banks that will issue a loan to an association that didn’t get the proper approvals from the association before issuing the loan. Chances are, all was done in proper method. All the best!

Getting a Handle on Condo Visitor Parking Abuse

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M.B. from outside of Connecticut writes:

Dear Mister Condo,

Do you have suggestions on ways to keep residents out of visitor parking?

Mister Condo replies:

M.B., with the holiday season upon us, I find your question most timely. The short answer is “yes”, but it takes a lot of due diligence on the part of the Board and association members if the effort is going to be successful. As you know, parking is at a premium in most condo associations. Too many vehicles per unit leads to residents helping themselves to extra parking spaces. Add adult children and college students with their own vehicles coming home for the holidays and you have a recipe for vehicle saturation. You need to start with your existing parking policies to see if they are adequate for the needs of the community. If you need more rules, the Board needs to review and approve the rules and distribute that information to unit owners and residents. Chances are the existing parking rules are pretty basic with rules about not blocking fire lanes and the use of assigned and visitor spaces. Next up, look at your signage. Are your visitor spaces clearly marked “Visitors Only”? Signage can help alleviate confusion amongst residents. The idea is to have unit owners voluntarily comply. However, if they don’t, you need to have a fine system in place so that you can enforce your rules. When a unit owner violates a parking rule, a complaint is made to the Board or Property Manager. The unit owner is summonsed to appear before the Board at its next meeting and explain why they did or did not violate the rule. The Board can then fine the unit owner off appropriate or let them off with a warning if the message was received. This is at the Board’s discretion but I recommend following the letter of the rule unless the Board wants to explain why Unit Owner A was fined but Unit Owner B was not. If you are going to fine any one, be consistent. This usually clears up the problem but, as you can see, it is neither simple or easy. However, with diligence and perseverance, you can regain control of your visitor parking problem. Good luck!

Condo Association’s Right to Inspect Chimneys and Furnaces

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G.G. from outside of Connecticut writes:

Dear Mister Condo,

Can a condo association require inspection of chimney and furnace?

Mister Condo replies:

G.G., they sure can. Protection of the entire community association and the assets of the association is one of the responsibilities of the association. In fact, if you review your condo governance documents I’m guessing you’ll find a whole lot of language on the association’s right to review anything potentially hazardous to the well-being of the buildings and resident’s health. Depending on your state, there may also be state law that comes into play with how those inspections are done. In some states, the association has the right to enter the unit at any time for routine maintenance and inspections. Others require proper notice or even allow for the unit owner to refuse the inspection or offer an alternative like an inspection from a qualified HVAC technician provided to the association upon request. The bottom line is that neither the association or the unit owners want the potential fire hazards associated with clogged chimneys or improperly maintained furnaces. I’d like to add dryer vent inspection to that list, too. Lint build-up is a top fire hazard at condos! Inspection of such items is a best policy for condo associations to follow. All the best!

Denver Condo Owner Getting a Snow Job from the Association!

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K.A. from Denver, Colorado writes:

Dear Mister Condo,

Hello! My HOA piles all the snow from our parking lot directly behind my parking spot making my spot unusable until it melts, which can be 2 days or 2 weeks, depending on how much it has snowed and the temperature. My spot is deeded and I own that spot. They have said there is nowhere else to put the snow. I disagree; there are options but just not as convenient. My dad owned the unit since 1981 and rented most of them time for a very small amount so the tenant who lived there about 20 years just dealt with it and never brought it to his attention as her rent was VERY low. I only became aware after I bought the unit from his estate after he passed away. Parking on the street is very difficult after about 7pm as I live in a dense urban area so it can take a while to find a spot and it’s not very close at times. We have a company that we pay to deal with HOA issues and the man who does our building acts like I just need to deal with it. My question is, do I have ANY legal recourse??? To me it seems to be a right of way issue- like if I had a driveway and some blocked it. Any info or advice would be greatly appreciated!!

Mister Condo replies:

K.A., thank you for your letter and I think you have already answered your own question. Yes, you have legal recourse against the association for taking over your deeded space with their excess snow. Yes, it will cost them more to remove the snow in proper fashion but neither of those problems are yours. Speak with an attorney, threaten the association with a lawsuit, and, if they don’t change their ways, sue them! They will need to modify their snow removal arrangements to make sure your space is as free of snow as everyone else’s space. The extra cost of snow removal may cause a need for extra money in the snow removal budget but that expense is shared by all unit owners, not just you. Please keep in mind that I am not an attorney nor am I an expert is Colorado community association law so please speak with a qualified local attorney at your earliest convenience for a proper legal opinion. Good luck!

Condo Neighbor Reluctant to Submit Insurance Claim

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E.L. from Middlesex County writes:

Dear Mister Condo,

Water damaged condo below mine. Work done in the bathroom by the previous owner of my condo was done improperly. There was no negligence on my part. My insurance company is denying the claim and wants the unit owner with the damage to file the claim with his insurance company, which he is refusing. What do I do?

Mister Condo replies:

E.L., this is a most unfortunate situation with lots of finger pointing and no action. The bottom line is that the claim may need to head to court or alternative dispute resolution (ADR) before the matter is settled. In my opinion, the unit owner with the damage should file a claim with his own insurer so that the damage can be remedied in timely fashion. I realize that this may cause his premiums to rise but that is what insurance is for. An accident happened and the insurance should pay for the mitigation. As for the actual cause of the damage, that is a case for the insurance companies to battle out. At the heart of the matter is money. Neither your insurer nor the unit owner with damage want to open their wallet to pay for the repair. The unit owner below is the most affected by this and could seek relief from his insurer who will pay for the repair, less any deductible, and then come after you or your insurer for the money. This is what insurance is for. Your neighbor’s only other option is to sue you for the damage which may cost far more than simply putting in a claim. I think I would wait and see how this plays out. You may wish to consult with an attorney for a legal opinion but I think that you have done all you can do at this point. Your neighbor’s refusal to seek relief through his own insurance is not a good idea. Good luck!

Condo Neighbor Sells Parking Space or Did He?

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H.L. from outside of Connecticut writes:

Dear Mister Condo,

I brought a condo that originally had two parking spaces. I was told that the last owner sold his parking space. My understanding is that all condos with two bedrooms in my complex have two parking spaces. How can I find out if the parking space was sold legally or if it was just taken?

Mister Condo replies:

H.L., it seems a week doesn’t go by where I don’t get a condo parking question. It is a thorn in the side of many condo dwellers like yourself and the answer is as different as the association in which you live. Deeded parking (parking that is part and parcel of the actual real estate deed) is owned by the unit owner. Assigned parking is when the association owns the parking lots and assigns the spaces as they see fit. Both are common so you need to check your condo documentation to see which scenario describes your property. Unit owners do not typically “sell” their deeded parking spaces as it now effects the title and deed to their unit. A mortgage company listed on the deed wouldn’t allow it because it decreases the value of the property. They may sell “use” of their space if they don’t need it and want to make some money from a neighbor with three vehicles and only two spaces. This is a private transaction and no one’s business but the two owners involved in the transaction. If someone parks in one of your deeded or assigned spaces, you should report it to the Property Manager or Board immediately so corrective action can be taken. If someone parks in someone else’s space, it really isn’t any of your business whether it was sold or taken. It is up to the unit owner whose space is being used to file a complaint if one is merited. All the best!