Monthly Archives: January 2017

Condo Developer Refuses to Pay Common Fees After Relinquishing Declarant Control

L.J. from New London County writes:

Dear Mister Condo,

Our condo association was recently transferred from declarant control to owner control from the developer. There will be a total of 13 units WHEN completed. There are presently 8 units sold and the developer holds rights to 5 units (lots). These are individual unattached homes on lots. The new condo association has assessed an HOA fee to the developer for his development real property lots which is about 1/4 of the HOA fee for Sold Units. These fees are associated with landscape / snow removal / Insurance not related to dwelling coverage etc. The developer has refused to pay his HOA fees. What are the options available to the Condo Association?

Mister Condo replies:

L.J., condo association that are in developer transition are governed differently from associations that are fully under control of the Board. As such, the declarant often has special rights that are outlined in the governing documents and may need interpretation from a qualified attorney. At the very least, I would think the new Board should be working with its own attorney during this process as the developer’s attorney is working for the developer, not the association. I could get into all the potential pitfalls a new association like yours could face without legal representation during this crucial stage of association development but I think you are learning it first-hand with a developer that is refusing to pay his fair share of assessments to cover common services. I’m not saying that he has to; that is for your governing documents to dictate. And even if the documents state he must pay these fees, his refusal to do so may indicate legal action may be necessary. My best advice for you and your fellow unit owners is to make sure the association has its own attorney during this important phase of developer transition. It is the only way to have your own legal professional looking out for your best interests. Good luck!

Partial Unit Repair Leaves Condo Owner Vulnerable to More Damage

T.N. from outside of Connecticut writes:

Dear Mister Condo,

Hi, I have been having issues dealing with my association property management in resolving in what I consider emergency situations. Would you consider a roof leak an emergency situation? It is the HOA’s responsibility to maintain the exterior and roof of the condo complex. During a 2014 rain storm, the roof leaked. The association tore the wet walls down but failed to call anyone out to tarp or cover the roof resulting in further leak into the condo from the opened walls when the following storm arrived soon after. After some stressful and emotional fighting with the HOA they finally fixed the roof leaving me with the interior damage repair. About one year later another roof leak occurred and the association tells me that they cannot get anyone out to temporarily stop the leak while it is raining due to unsafe conditions and that I am not the only one waiting to get their roof fixed. It is forecasted to storm for a couple of days. They have the audacity to say that if it keeps raining they will not be able to get anyone out to do anything until it stops raining and if it rains for a week it will be a week before anything is done. They even have the audacity to say that any further damage resulting will be dealt with later. I had to call a roofer out myself and pay the up-front fee to tarp the roof to prevent further ingress of water into my unit. I feel like I am being bullied by my own association. I learned from the first situation to take photos and document all calls and summarize them. Can you provide any insight to the situation proposed?

Mister Condo replies:

T.N., I am truly sorry for the damage your unit has sustained. I am further sorry that your HOA did not do more to remedy your situation at the time of the intrusion and subsequent damage. Alas, this is what insurance and lawsuits are for. I am guessing your personal insurer was advised and paid for whatever damage occurred inside of your unit. However, insurance companies often draw the line at repeated claims for the same type of damage, especially when it could have been prevented had the association taken swifter action, according to your account of events. This is typically where the attorneys come in. You hire one to represent you, the association hires one to represent them and the two either reach a settlement or head to court. There are some associations and states that require mediation or alternative dispute resolution to resolve the matter but my best advice to you is to consult with an attorney knowledgeable about your state’s laws and get the settlement process under way. At the very least, it may be a wake-up call to your HOA Board of Directors to treat these types of urgent repairs with more speed than how yours was handled. Unsafe conditions may have made the remediation difficult but I think there is more at play here that merits further investigation. Good luck!

Condo Board Charges Rent for Deeded Parking

G.S. from Chicago writes:

Dear Mister Condo,

I live in an Illinois Condominium Community with deeded parking spaces. Can the association board charge rent for these deeded spaces?

Mister Condo replies:

G.S., as a general rule, deeded parking is just that, deeded. It is owned by the unit owner and, therefore, not subject to be rented out by the Board or anyone else. However, it is possible that the space is being maintained by the association (paved, blacktop sealed, snow removed, etc.) and the association is passing those expenses on to you and calling that “rent”. The real answer lies in your governing documents. Also, review your deed. Does it allow for a specific parking space or does it give you the right to a parking space? This is a subtle difference but if the association owns the parking lot then they do have the right to use it as they see fit, which may include charging rent for use of the space. If this is too confusing to figure out on your own, you might wish to consult with an attorney verse in local condo law. The money spent on an opinion could well save you years and tears worth of rent on a parking space you already own. Good luck!

Guidelines for Condo Visitor Parking

H.A. from Hartford County writes:

Dear Mister Condo,

Can you suggest some guidelines for Visitor’s Parking in Common Areas?

Mister Condo replies:

H.A., in most associations, the visitor parking areas are owned in common and are under the direct control of the Board. That means the Board is free to adopt rules about how the parking spaces are used. Many associations have basic rules in place that are more than enough to keep order in the visitor parking spaces. However, if your association is seeing abuses of these spaces by residents or their guests, it may be time to beef up the rules on how association-owned parking can be used. I have offered similar advice previously. Check out this post to learn more – http://askmistercondo.com/getting-a-handle-on-condo-visitor-parking-abuse/

All the best!

Condo Contractor Damages Irreplaceable Garage Door

J.R. from outside of Connecticut writes:

Dear Mister Condo,

I am a contracted snow plow operator for a condo association. While pushing snow in the parking lot, I damaged a garage door. The damage was isolated to the bottom panel of a steel door. there is no other damage to the doors other 3 panels of the garage door. The door is 15 years old and the company that manufactured the door is no longer in business to obtain and replace the one panel. How much of the door am I responsible to replace?

Mister Condo replies:

J.R., I am sorry that you find yourself in this situation but I am proud of you for standing up and admitting that you damaged the door. The answer really depends on local law. As a general rule, if you break it, you must repair it to like kind condition, meaning, you would have to have the damage repaired so that it didn’t look like the door was damaged. Also, this is often a matter left to insurers to settle out. I assume you have insurance for this type of event. You can submit a claim and let the condo owner do battle with your insurer to get what they are entitled to. If you are trying to avoid making a claim, then you may be at the mercy of the unit owner as to what they are willing to accept. That might include replacing the entire door seeing as they old style door is no longer available. It is a sticky wicket to say the least. You might want to look into local law or speak with a local attorney to see what liability you have. I wish you a speedy resolution.

Major Special Assessment Leaves New Condo Owner Shocked!

K.R. from outside of Connecticut writes:

Dear Mister Condo,

Owners have just been hit with a $650,000.00+- assessment at our condo. We bought just before this was announced. There was nothing in the minutes to indicate that there was anything wrong with the building. We were given approximately 1 month to come up with anywhere from $25 – $30K, depending on the size of units. Now, some owners have been served with foreclosure notices. What do we do?

Mister Condo replies:

K.R., this is an unfortunate situation to say the least. I have to assume you did not have access to any association records that would have indicated this special assessment was about to be levied before you made your purchase. Special assessments are not generally issued without some type of warning but unit owners of record when the special assessment is levied are responsible for their share of the special assessment. In your case, that looks like a very substantial amount of money. In response to your question of “what do we do?”, all I can tell you is that you must pay the special assessment or face the same consequences as other unit owners who are unable to pay, which is the association taking action against the unit owners that may culminate in a foreclosure. You may wish to get in touch with the attorney that you used for closing on the condo, and make sure there was nothing missed during the closing that might allow you to pursue the previous unit owner. This is unusual but since it is such a large sum of money, it might be worthwhile, especially since the levy of assessment came so close to your closing date. You can also check to see that the special assessment was levied in accordance with the association’s governance documents. This won’t stop the special assessment but it could delay the process if the assessment were levied without the proper notification to unit owners. I am sorry for your troubles but this is a risk when purchasing into any association. Good luck!

Questionable Actions By Strata (Condo) Board

S.O. from outside of Connecticut writes:

Dear Mister Condo,

Our strata president had her hardwood flooring upgrade secretly paid for by the ownership of our strata. How can we get her to pay it back? Her friends on council voted to pay because the president threatened to sue the strata.

Mister Condo replies:

S.O., I am sorry to hear that some impropriety may have occurred at your strata association. (First off, for my American readers, “strata” is another word for condo and “council” is another word for Board, commonly used in parts of Canada or Australia.) I am guessing you are from one of those two places. Regardless of where you reside, abuses of power by Board members, including the President, should not be tolerated and usually lead to removal from office and/or legal action. Your strata governing documents likely outline the procedure for taking action against the offender. That being said, there may be some mitigating circumstances to consider before any action is taken. You mention that this president was threatening to sue the strata. Was it because of another incident? Was the hardwood flooring offered as settlement for that suit? Without first-hand knowledge of what actually transpired, it is difficult for me to give you solid advice. If this was a simple case of the Board approving an expenditure that it shouldn’t have, then the Board needs to be held accountable. For most associations, that would lead to a recall of the sitting members and replacement with new members who will do a better job of looking out for the association’s interests. The new Board would likely seek help from the association’s attorney to recover the money that was spent improperly. That may include bringing suit against the President, who would have been voted out of office at that time. For many associations, the cost of pursuing the remedy may outweigh the cost of the damage done. In that case, simply vote out the Board at the next election and replace with better council members. Good luck!

California Condo Parking Confusion

J.B. from California writes:

Dear Mister Condo,

If the residential parking for my condominiums is first come first serve with no assigned parking, can the leasing office reserve parking for themselves and other residents in that building? Do they have to provide handicap accessible parking for residents also?

Mister Condo replies:

J.B., almost all condominium parking is controlled by the Board of Directors for the association. Rules about who can park where and when is their purview as is enforcement of those rules. If the Board has allowed the leasing office to designate a space for their exclusive use and the use of other building occupants, there isn’t too much you can do about it. If the leasing company did this without the Board’s approval, the Board can and should intervene to protect the rights of the association. If a resident makes a request for the use of a dedicated handicapped space, the Board is obligated to review that request and decide if it puts an “unreasonable burden” on the association to provide the space. For many associations, there is such limited parking that it is unreasonable and the request can be denied. However, there are circumstances such as the rental of a clubhouse or other common amenity that subject the association to rules about handicapped parking access where they must comply with the Americans with Disabilities Act and provide access to all. So the short answer is it depends on your association and the level of access they are required to provide. For many associations, they are just fine leaving well enough alone. All the best!

Bay State Condo Owner Questions Sunshine State Condo Laws

S.B. from Massachusetts writes:

Dear Mister Condo,

My husband purchased a condo in Florida. I do not wish to occupy the condo at any time. I may visit for a weekend. However, I don’t see it happening more than once or twice a year.  The condo association is now mandating I complete a background check saying I am an occupant. The docs do not define occupancy so we went to Florida law. It does have a visitor’s policy which I will abide if it happens however they are now threatening legal action if I don’t give them my name, social and birthdate. My husband refused to give them that information. Our only option is to sell or me never visit. This is crazy, isn’t it?

Mister Condo replies:

S.B., you were wise to consult the Florida condo laws because, as you know, condo laws vary from state to state. What flies in Massachusetts doesn’t necessarily apply in Florida and vice versa. Association by-laws are also binding in different ways between states but the bottom line is that you do need to be in compliance with the state law for the state where the condo dwells. Florida has decided on some fairly stringent condo regulations for the simple reason they don’t want to fall victim to short-term rentals or condo units being sublet to “family” members. These laws were enacted to protect the associations, not the unit owners. I can’t honestly see why you would have a problem supplying the association with such basic information as your name, social security number, and birthdate as these are public records anyway. Perhaps you are concerned with identity theft but I think you are more likely to have a problem using a credit card to make a purchase online or at a store than you are in providing this basic info to the association. As winter sets in here in the Northeast, I am betting a visit to the Sunshine State is sounding pretty good. If all they want is your information to allow you to freely use the condo, I think you should offer it. If you find your personal data was mishandled by the association you can always deal with that after the fact. I doubt you will have any problems. All the best!

Condo Owner Seeks to Beautify Common Grounds

D.D. from Texas writes:

Dear Mister Condo,

I own a condo. In the front of my unit, all you see is the garage and one window, then a small flowerbed and sidewalk leading to my walkway. How can I make the flower bed look good?

Mister Condo replies:

D.D., generally speaking all plantings in the association’s common areas are planted and maintained by the association. There are some association’s that allow unit owners to plant in particular areas near their units with the caveat that the property is still owned by the association and the unit owner needs to follow the association’s prescribed guidelines on what can and can’t be planted there. For instance, you might think a lovely sunflower would look good but the association may think it is too tall or might attract squirrels. The bottom line is that you should ask before you do anything to the planting area. If the association says it is OK for you to plant there, make sure you ask what types of ground cover are allowed. Then, of course, do your best to keep it looking good. I am sure you would do that anyways as it leads you and your visitors right to your front door. Happy Planting!