Monthly Archives: November 2016

Condo Board Treats Itself to A Night Out at Owner’s Expense!

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J.C. from outside of Connecticut writes:

Dear Mister Condo,

I am an owner in a condo building. The Board of Directors decided to treat themselves to a “Special Meeting” at a Steak House and invited non-board members. The total was over $2,000 for the dinner with drinks. As an owner, do I have the right to post this on the condo bulletin board letting other owners know where our money is being spent?

Mister Condo replies:

J.C., I take it you and I weren’t invited to this Steak House extravaganza? How rude!

As bad a taste this dinner has left in your mouth, unless your by-laws allow for unit owners to post whatever they want on the community bulletin board, my guess is that you are NOT allowed to post anything on the association-owned bulletin Board. Why? Because the association owns it; not you. Any more than you can write an article for the community newsletter or post stories on the community website. These are all owned by the association and are for the association’s exclusive use. For your information, your association is not alone in providing meals, celebrations, and other “perks” to volunteer Board members and guests for their service to the association. I am not saying I condone or condemn this practice but I am saying it is not uncommon. Volunteering for an association can take up hundreds of unpaid hours over the course of a year and some associations have decided that a reward is in order. Since they cannot pay themselves for their service, they offer a party such as the one you have described and partake of some enjoyment at the association’s expense. This is not illegal but it does border on the questionable and can certainly outrage the association members who were not invited but still had to foot their share of the bill in the form of common fees that were used to pay for the party. The best way to stem activity like this is to find Board members who will truly volunteer their time and remove this type of expense from the association. While you cannot use the association-owned resources to spread the word, you can mail other unit owners and you can have conversations with other unit owners and get a feel for how they feel. If enough unit owners feel these parties should stop and they are willing to back those feelings with their votes, these parties can be stopped. Pasting unauthorized messages to the community bulletin board won’t do anything but get you a fine and labelled as a troublemaker. You need to understand the problem and gather support if you are to make a change. Good luck!

Self-Managed versus Poorly Managed; A Sad Condo Tale

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E.E. from Hartford County writes:

Dear Mister Condo,

I have been here for 15 years and dealing with corrupted Board of Directors of self-managed Condo Association past year who clearly overstepped and abused its powers led by the personal interests of its members. Without any warning, they changed the setup of our parking places, affecting the 11 unit owners of one building and benefiting the building (of the board members) that never had spaces on our parking lot. How are we affected? The parking places are shifted two places to the side, made smaller and we lost visitor spaces that were there for last 35 years. This decreased the value of our property because before we had spaces in front of our door, but not anymore. Traffic is increased and safety decreased. The paper with the new set up was just thrown at us, the evening before they painted the new spaces, telling us to put this in our By-laws. The manager conveniently left to vacation, so my 3 letters to the Board were left without response. Then we went to the unit owner meeting, and then spoke at the Board meeting about the issue and how we were not informed about the changes. We also went with a petition signed by all the owners in our building. Now the Board is hiding behind the lawyer who we ALL pay, by the way, against its own unit owners that they affected badly. Who to complain? This is self-managed Condo Association and is obviously out of control. We can’t complain to the Department of Consumer Protection because this is private, the lawyer would be too expensive when we school a college kid. What to do? Please give advice if you can. Thank you. I appreciate it very much.

Mister Condo replies:

E.E., I am sorry that you are having such issues with your Board of Directors and that you feel powerless to change the course of your condo association. Let me address a few of your issues here as best as I can, keeping in mind that I am not an attorney and offer no legal advice in this column. The very first issue I see here is one of trust between unit owners and the Board. The Board is elected entirely by the members of the association. If you and others feel they are overstepping and not doing a good job representing the best interests of the association, why would you continue to elect and reelect them to hold their offices? When the annual meeting comes around, are there no other hands that go up and offer to serve on the Board? If not, you have identified your primary problem. Condo associations are run by volunteer leaders. Your governance documents were designed to give each and every unit owner a say in who serves on the Board. It sounds to me like you need better volunteers. Perhaps you and some of the other unit owners who have signed this petition can either run for the Board or find candidates from within your ranks who will do a better job. It really is that easy to effect change. In extreme circumstances, your governance documents outline a procedure for recalling Board members. This is more involved but can bring about immediate change if the masses cannot wait until the next scheduled election.

As for the reassignment of parking spaces, it is quite possible that the Board was within their right to do so. I am not saying they should have done it or that their decisions to modify the parking spaces were sound but the parking lot is usually owned by the association and, as such, is under the purview of the Board to do with as they see fit. Promoting personal agendas as they seem to have done is usually a surefire formula for getting thrown out of office at the next election but you must replace them with right-thinking individuals.

If the unit owners are pursuing any legal remedy against the Board, i.e. a lawsuit, then the Board is quite correct in engaging with the association’s attorney. That is what the association attorney does – protects and defends the Board and the association from lawsuits. The attorney can also be used for legal advice, which the Board might benefit from if they are passing by-laws changes improperly. There really isn’t any one to complain to about issues like this. Yes, lawyers can be expensive but you can always represent yourself in court if you can point to a specific violation of your rights as a homeowner. Of course, you will face the association’s attorney if you do so and that attorney gets paid from the common fees that you contribute to so think twice before instituting a lawsuit. From what you have told me, there isn’t anything illegal going on here, just some poor judgment on the part of the Board. Your best bet is to replace the Board at the next election with better representatives of the unit owners. Good luck!

That’s Why You Carry Home Owner’s Insurance for Your Condo!

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D.L. from Fairfield County writes:

Dear Mister Condo,

My upstairs neighbor’s bathroom leaked into my unit causing damage to my bathroom ceiling and walls. Now his home owner’s insurance refuses to pay because they claim that they are not responsible because the leak was not because of the owner’s negligence and my insurance should pay for the repairs. This does not seem fair to me since I notified the management company and the owner two months ago and the leak has still not been repaired. Is this really correct — do I now incur the expense? Not to mention my premiums going up based on a claim!

Mister Condo replies:

D.L., I am sorry that you find yourself in this unfortunate situation. You should most definitely make a claim on your homeowner’s policy so that you can get some relief from this problem. That’s what insurance is for. It will also get your insurer involved in its own recovery process where they might decide to go after your neighbor’s insurer claiming your neighbor’s negligence was, in fact, at fault. This is the business of insurance company attorneys and not your concern. Your rates may go up because of this claim but not necessarily. If they do go up and you feel you have a claim against your neighbor for causing the increase, you should speak to an attorney to see if you should bring suit against your neighbor for the increased premium. In my experience, the increased premium isn’t enough of an expense to justify a suit. However, it is imperative that you keep your insurance in place to protect you from further events and because your association governance likely requires that you keep the policy in effect. Good luck!

Condo Association-Mandated Energy Audit

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J.F. from Hartford County writes:

Dear Mister Condo,

Can our Condo Association require Townhouse owners (we are owner-occupied with 19 units in four buildings) to submit to an energy audit and then share in the cost for the audit and to repair for all owners? Some have already had energy audits done and made the recommended changes. I have very efficient heating and cooling, separate zone on second floor with programmable thermostats. The Association does not own or maintain any common elements. All limited common elements are outside, although they are now saying that the attic space is not the owner responsibility. Our Board is being controlled by our property manager.

Mister Condo replies:

J.F., whoa on your closing sentence! You buried the lead! Property Managers work for the Board. They don’t control the Board unless the Board lets them and, even then, the Board can fire them or choose not to renew their management contract when the time come for renewal. I realize you have a small association but that is no reason to not have strong leaders that use the Property Manager to assist them in the day-to-day running of the association. Under no circumstances should they surrender their ability to govern to the Property Manager.

Now on to your original query… At first blush, my answer is that the Board cannot force unit owners to submit to an energy audit. The attic space may, in fact, be owned by the association. You really need to read your documents to see who owns that space and who is responsible for the maintenance of the space. If the association owns the space and wishes to insulate to save money for the unit owners, they are free to do so. If they don’t own the space, they may request unit owners insulate to save money and, perhaps, prevent ice damming, which does cause the association money in insurance claims and deductibles. Unless the association’s governance documents state otherwise, the Board is responsible for all common elements which are usually all of the building exterior components. Individual HVAC units are typically unit owner owned and maintained. If you require a legal opinion on this matter, it may be well worth it to speak to an attorney to advise you if the association has overstepped its authority. If they have, a quick court filing may prevent them from imposing further requirements that are beyond their scope. I think they mean well but they may be getting some bad advice. Also, you should consider running for the Board and getting a first-hand look at how the Property Manager behaves. If it is as you suspect, it may be time for a new property manager. Good luck!

Sensitive Condo Information Needs to Be Password Protected!

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T.F. from outside of Connecticut writes:

Dear Mister Condo,

Should a condo association post both Monthly Financials and Monthly Board Member Meeting Minutes and other Committee Meeting minutes on its web site? And if so, should any of that info be available to non-residents (i.e. the general public) or should the information be password protected for residents only? Thank you.

Mister Condo replies:

T.F., that is a great question! Monthly Financials and Meeting Minutes are records of the Association. Both contain proprietary information that should not be divulged to the general public for lots of reasons. Password protecting such sensitive information is a solid idea and a best practice for well-meaning condo associations. Can I let you in on a secret? One the sponsors of this site offer just such a service and I highly recommend it. Click on the banner link for Condo Ally on the right side of this column or visit them here and tell them Mister Condo sent you. You’ll be glad you did! Good luck!

Vacant Condo Needs to Be Emptied of Previous Owners Items

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S.D. from Texas writes:

Dear Mister Condo,

How can I get volunteers to get rid of a treadmill and large boxes from a now vacant condo?

Mister Condo replies:

S.D., well I’m not available to help if that’s what you mean! 🙂

When condos become vacant, it is incumbent upon the current owner to maintain the unit in good shape so that they will be able to sell or rent the unit. The association may also have some safety rules about what can and can’t be stored in units. This usually relates to hazardous materials but even boxes of old papers and clothing can become flammable if left in place for too long. Volunteers may be available to assist if you are donating the items and they are in good shape. Look for local organizations that accept exercise equipment and inquire if they will come retrieve the treadmill. If you cannot move the large boxes, consider repacking the stored items into smaller boxes. Donate what you can and make a dump run if you need to with the rest. Alternatively, there are some companies that will come in and remove all items for a fee. This isn’t volunteer help but can be really useful if you need to get everything out quickly. Hope that advice helps. Good luck!

Chicago Condo Parking Blues!

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B.D. from Chicago writes:

Dear Mister Condo,

My building has 3 total units and on the purchase agreement it lists 1 assigned parking space. One assumes 3 total units, 3 total assigned parking spaces. The parking spaces are part of the Common Element. The Condo Declaration nor the By-Laws say anything about parking. The three spaces are parallel to the building and we are at the end of an alley with a building to our south and west. Recently the condo next door changed its parking from 2 cars to 3. Access to our spaces became much tighter to reach.

So my condo President has the furthest assigned space away from our building and parks 2 cars there in assigned space 3. Assigned spaces 1 and 2 each only park 1 car (as more cars in space 1 would block the rear door, more cars in space 2 would block access to space 1). The two cars in space 3 take up the entire rear property line and limit my access to space 2. Spaces 1 and 2 are totally dependent on the building next door to offer us enough space to reach our parking spaces. I have asked our Condo President to stop parking 2 cars in 1 assigned parking space, especially since the condo next door added another car to its parking area. He says parking is the entire depth of the property (32′), he is free to do whatever he wants with his parking space, and the building next door is blocking my access.

I say no. An owner cannot do anything he or she wants with Common Element space. As there is no documentation about parking in the Declaration or By-Laws parking, it is to be defined by the City of Chicago code, which is 8′ x 18′. The Declaration also states no owner is allowed to block access to Common Element space. I say he is blocking my access by taking up the entire rear property line that could be used for exit. I also own 40% of the Common Element space, the other two owners each own 30%. And to make things more complicated is our property’s parking cannot hold 3 cars. The Condo President’s 2nd car is parking 1/2 on the property to our west (I have asked that building owner to request him to stop doing such, but no action so far).

So who is right? The Condo President or me? If he parks 2 cars then we all can, I mean I own the majority of the Common Element space.

Mister Condo replies:

B.D., from the length of your question and detailed description of the events, I can see that this is an issue that is not going to be decided amicably amongst the three unit owners of your condo building, which means you are likely heading to court or Alternative Dispute Resolution to settle this. If your purchase agreement states one assigned parking space (and your deed is in agreement with this), then I don’t see why you should have a problem with your one assigned space. The person parking two cars is not doing the correct thing assuming his deed also grants him only one space but he seems to have little respect for such things seeing as he is parking two cars in one space and has already told you that he is “free to do whatever he wants” with his parking space. You cannot control the actions of the building owner to the west and if he is not going to enforce the parking restriction that encroaches on his property, that is not your battle. Common elements are not owned by percentages. So your argument that you own 40% is invalid. Common elements are owned 100% by the association. Your argument that “if he parks two cars then we all can” is also invalid unless your goal is to have everyone break the rules so that parking chaos ensues and the situation escalates. If your governance documents do not address parking, then you won’t have too much of a legal leg to stand on should you decide to sue the association as there are no rules to refer to that they are violating. My best guess is that your argument about City of Chicago code is the most useful to you and you may need a police officer or city inspector to come see the situation and issue citations for parking abuses. I can’t imagine the City Code enforcers agreeing with the unit owner who claims he is “free to do whatever he wants”. I am guessing a ticket or two from the city will send the message loud and clear. Good luck!

Board Fines and Assesses Unit Owners for Improper Irrigation

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T.A. from outside of Connecticut writes:

Dear Mister Condo,

I was called to defend myself in front of the board because they said I failed to irrigate my plants (not true) and that the association had to replace my plants several times. I had an emergency the day of the hearing and could not attend. The board decided to impose a special assessment to a few owners. I notice they replaced the landscape of some units (NOT Mine, my shrubs were only trimmed as usual). Can they do that? Can they assess only some owners? It is very hard to prove if every single owner is complying with their plant irrigation or not so they call in a hearing. The fact that they replace the plants or not it does not solely depend on irrigation and it’s under their duties to do it.

Mister Condo replies:

T.A., this is a most unfortunate situation for you and other owners who are being singled out and fined or assessed for not maintaining plants and greenery in your assigned area. I have more questions than answers here so let me give you some friendly advice that you can do with as you wish. Are the plants on common ground? My guess is that they are and are likely the responsibility of the association, not the individual unit owners. If that is true, then the Board is quite mistaken in their ability to fine or assess individual unit owners for the cost or maintenance of these items. The Board should either add an association-owned irrigation system (usually expensive), consider alternative landscaping (no flowers or items that require irrigation), or simply accept the fact that some greenery is going to die each year and will need to be replaced and adjust the budget accordingly. If the plants are located in an area that is owned by the unit owner (highly unlikely), then the Board may be pursuing a proper remedy if the by-laws give them the power to do so (again, highly unlikely). I would suggest that you review the by-laws of your association, especially with regards to landscaping maintenance and responsibility and then submit your findings to the Board, along with a request that you and your fellow unit owners have your money returned. Common element maintenance like landscaping is the responsibility of the association, not the individual unit owners. If the Board doesn’t agree, you may wish to file an action in Small Claims Court (I’m assuming this is a small claim). That would likely get the Board to rethink their strategy of singling out unit owners for maintaining common property. Good luck!

Is a Condo the Perfect Gift? Maybe Not…

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E.E. from Fairfield County writes:

Dear Mister Condo,

Do I have to apply like a buyer to the HOA if a condo was gifted to me but I just plan to sell?

Mister Condo replies:

E.E., congratulations on being gifted a condominium unit! I am going to have to rethink my Christmas list this year as all I have asked for are new socks!

On a more serious note, it really depends on the rules of the association with regards to transfer of ownership. The previous owner, in theory, went through an approval process with the association as prescribed in the association’s by-laws and as a term of purchase within the association. The documents do not likely address a condo unit being gifted because it such an unusual occurrence. My guess is that you would have to submit to the new owner application although I don’t think there is too much the association can do to prevent you from taking legal ownership of the unit. If your plan is to sell, I would get it listed as soon as possible so that you can additionally demonstrate to the Board that you have no intention of living there. However, if you decide to rent the unit out, you would still have to follow the association’s rules for doing so and, it could then be argued that you are, in fact, taking ownership for more than a transient period of time and may be subject to the application (and acceptance) of the association as outlined in its governance documents. While you may be able to tread through this transaction without counsel, I sincerely recommend that you consult with an attorney. You will likely need one to assist with the eventual sale of the unit anyway, so it might be easier to involve the attorney from the beginning of the process to avoid any potential legal hassles you might encounter. All the best!

25-Year-Old Condo Garage Rack No Longer Allowed

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K.P. from outside of Connecticut writes:

Dear Mister Condo,

My overhead garage storage rack was installed 25+ years in accordance with the then-current Rules and Regulations. Two years ago, the Board of Directors changed the R&R which now state said racks are no longer allowed. This week a notice was posted in my hall saying my rack must be removed or I will be fined. Since 20+ years of inspections by fire department, Boards, property managers, insurance people have never before mentioned an issue with this rack, shouldn’t allowance be “grandfathered in”? How can current Board decide to now overturn so many years of Rules with no safety threat? Shouldn’t these Rules pertain to going forward and not back 20+ years? Thanks.

Mister Condo replies:

K.P., I am sorry you find yourself at odds with your Board. Since I don’t know exactly which state you live in and since I am not an attorney, I would think you might want to have a quick chat with a locally qualified legal professional who could give you a quick synopsis on how the law reads in your state. From a pure governance standpoint, the democratically elected Board is in control of the Rules and Regulations and are free to modify them as they see fit, provided they follow the proper guidelines for doing so. Assuming they did properly adopt the new regulation and proper notice was served (you mentioned that the rule change occurred two years ago), then unit owners are bound by the new regulation provided state law doesn’t trump the change to the regulation. Technically, even though the garage storage rack was in plain sight and passed inspections for the past 25+ years, the rule has only been in place for two years, which would put the Board’s enforcement of said rule well within most state statutes. The real question is whether or not your garage rack is “grandfathered” and my best guess is that it isn’t unless they passed the regulation in such a way as to offer “grandfathering” for preexisting units. Have you asked what the reason was for changing the rule? Did one fail and cause a problem? Did the association’s insurer come in and claim they wouldn’t cover losses incurred by faulty garage racks? You may also be able to petition the Board and ask for an exception as your unit has been functioning fine and was previously in line with community association regulations. I sense your frustration, K.P., but my best advice is to find another storage alternative that doesn’t conflict with the regulation. Good luck!