Monthly Archives: March 2017

Who Pays to Repair a Water Pipe Leak in Concrete Slab Floor of Condo?

P.H. from Florida writes:

Dear Mister Condo,

Our condo is over 30 years old located in Florida. We had a water pipe leak located under the concrete slab in the kitchen. Who is responsible for repairing and paying for work done? I had to hire a company to locate leak, remove concrete, repair leaky pipe, replace concrete. Total cost was: leak detection $395.00, plumber repair $300.00.

Mister Condo replies:

P.H., I am sorry you had a water pipe break in your unit. The answer to who should pay for the repair lies in your governance documents. If the association owns the concrete slab and/or the plumbing running through the slab, it may be their expense. If you own the slab and plumbing, it is your expense. For many associations, plumbing is considered a common element because it services multiple units. Have you asked your Board? My guess is you should have notified them of the leak and they should have hired the contractor and assumed the expense. Since you did this on your own, you may be on the hook for the cost or the association may offer a partial reimbursement. The good news is that your pipes are repaired and it only cost $695. It could have been far worse. Check your documents and see who owns the plumbing. That should prepare you in case this happens again. Good luck!

Condo Association Wants to Temporarily Take Back Handicapped Parking

L.J. from Litchfield County writes:

Dear Mister Condo,

We are a community of 400+ units with no “assigned” parking with a major portion of the homes being secondary homes. Each unit is allowed one space per unit. We have 20 handicap parking spots that were provided to those with handicap permits. The problem is that some of these handicap spots can be empty for periods of time with other full-time residents frustrated that they cannot use these empty spaces for additional family vehicles. Management has offered a solution of providing these spaces to other residents who are here by placing a “temporarily available” sign over the existing sign. When handicap residents are to arrive back, they can simply let us know to remove this sign. Are we breaking any ADA or Connecticut/Federal Laws?

Mister Condo replies:

L.J., to say parking is at a premium in your association would be an understatement. I am not an attorney so I cannot offer any legal advice here. Unless your association is bound by ADA limitation because of public facilities on the grounds, the association may be free to use its parking lot however it sees fit. There are exceptions so please speak with your community association attorney to make sure you aren’t in violation of any laws. The basic concept is that the association-owned common grounds are private property. That means they common grounds, like the parking lot, are under the management and control of the Board. The 20 handicap-assigned parking spots have been provided for the use of unit owners who have requested them and provided handicapped permits to back their request and the Board decided to grant the request. I applaud your Board for doing so, however, it is too bad they didn’t consider the needs of the 400+ non-handicapped unit owners when doing so. There may be no issue with doing what you have proposed. The only problem I can foresee is if a handicapped unit owner can’t find an available handicapped parking space when one is needed, they will likely complain to the Board, local officials, local television stations and anyone else who will listen. Whatever the Board decides it would like to do, I strongly suggest a quick phone call to the association’s attorney before creating a rule that could come back to haunt the community. Parking is and always will be a challenge for condos because too many residents have too many vehicles for too few spaces. Most condos were developed with one or two spaces per unit allotted. The reality is that many residents try to park three or four cars on association grounds creating congestion and frustration. Good luck!

Coast to Coast Damage – Florida Condo Unit Damaged by Neighboring Unit Owner from California

B.C. from Florida writes:

Dear Mister Condo,

I live in Seminole County, Florida and own a condo which my family and I occupy in a community of 150 units. Many of those units are owned by out-of-state or even out-of-country owners and managed by local property management companies. Our unit was damaged by the unit above us two months ago when that unit’s A/C air handler (original air handler, dating back to 1984) had its drain line back up (horribly clogged and not maintained), overflow and leak a considerable amount of water into our unit’s ceiling, walls and floor below. The unit is owned by someone in California, but it is managed by a local property management company. That company had initially agreed to pay for the damage to our unit, but has since reneged on that promise. Can I sue the management company in small claims court or do I have to sue the California owner? If it is the owner whom I must sue, can I have the process service done on the management company instead of having the owner served in Southern California? Please help if you can! Thank you!

Mister Condo replies:

B.C., I am sorry your unit took damage from an improperly maintained air handler from a neighboring unit. I am not an attorney or an expert in Florida state law so I can only offer friendly advice here. Your claim should be against the unit owner. The unit owner needs to be served papers according to your state’s laws on such matters. My guess is that will require a certified letter from you (or your attorney should you decide to use one) and the owner of record according to your local real estate authority. After that, it is simply a question of working through the legal process of a hearing, which, from what you have told me, you would likely prevail. Ideally, the expense and inconvenience of a lawsuit can be avoided by the unit owner simply paying for the repairs or issuing a claim against any insurance they might have to either pay the claim or a portion thereof. In my opinion, you cannot have process service done against the management company because they don’t own the unit. Good luck!

Role of the HOA Board versus the Property Management Company

E.P. from outside of Connecticut writes:

Dear Mister Condo,

Grateful to discover this resource! Looking for material that outlines the role of management versus the role of the HOA board. As president, I’m raising it as a priority for this year to seek balance, lessen frustration and increase communication between the two. We have a hi-rise with 24/7 staff. Our largest budget expense is the management contract and salaries and benefits. It’s also our largest source of waste if people aren’t clear on their roles. Direct me to best practices, please!

Mister Condo replies:

E.P., congratulations on taking charge of this issue. I am glad you found this resource as well. The basic information to impart on your unit owners and residents is that the management company acts as the Board’s agent in enforcing the rules and regulations of the association. The Board is the governing body that is responsible for all aspects of association governance and directs the work of the management company. The Board is solely responsible for the policies and rules that the management company enforces at the Board’s request. It is important to note that the Board is made up of democratically elected volunteer members of the HOA. The Management Company is employed by the Board. The best resource I am aware of discussing these roles is the Board Member Toolkit, a free download from the Community Associations Institute. Get the download here: https://www.caionline.org/_layouts/15/download.aspx?SourceUrl=/HomeownerLeaders/ResourcesforHomeownerLeaders/CAI.BoardMemberToolkit_2014.pdf I think you will find it perfect for what you are looking for! All the best!

Developer Delivers New Condo Unit with Clogged Toilet Lines

F.M. from Hartford County writes:

Dear Mister Condo,

I bought my condo in a development which is still under construction. I closed on and occupied the unit in October 2015. I have had ongoing issues with the toilet in my unit (there are 2 bathrooms, the other toilet is in proper working order). The builder/seller has replaced the toilet, had a “camera guy” inspect (contractor of his choosing) and claims there are no visible issues. In the meantime, the toilet still clogs at least once a week and the flush is hardly ever smooth (lots of non-normal sounding water flow). My question is about what my options are other than continuing to work through the builder and the contractors of his choosing, if any, since the condo is still clearly under warranty. I do not want to pay for service/repair that is clearly some form of issue with the plumbing from the beginning. However, I also do not want to void any warranty. The builder is not wanting to take responsibility for this or other issues that have been raised since I moved in (paint and other accommodations). Because the development is still building new units, the condo association is still under his control. This is a new experience for me so I want to be sure I handle it properly.

Mister Condo replies:

F.M., the developer control period of a condominium is an exciting time as construction is ongoing and brand new units like yours appear and the association takes on new life, new common areas, and new amenities. The developer’s primary job is to get the units built and sold at a profit. That often means saving pennies wherever possible. In your case, that may be with the plumbing that is causing an ongoing toilet clogging issue. You are wise not to attempt any repair on your own because you would void any warranty between you and the builder. Unless you are willing to undergo the expense of hiring an attorney to possibly bring suit against the developer for a possible construction defect claim, there is little else you can do. There is no association to complain to and this would not typically fall under the association’s responsibility. You may be able to hire your own plumbing or building inspector to get a second opinion but, even if you do, you will likely need legal guidance to assist if a defect claim is warranted. Speaking with an attorney to determine your rights is my best advice. During that conversation, bring up any other construction defect issues you are experiencing. Good luck!

Forcing a Unit Owner to Sell to Make Association Fannie Mae Compliant

M.B. from Southern California writes:

Dear Mister Condo,

There are 51 units in my building in Southern California. I am aware of a Fannie Mae Guideline that states that no one owner can own more than 10% of the units. In my building, there is an owner who owns 13 units which is 25%+. Because of this, several sales (5 in the last 3 months) have fallen out because the buyers cannot get financing. Question is: is there a legal way for the HOA to sue that unit owner to get him to sell his units until he owns only 5 since he is preventing the sales of any units in the building which, in turn, is also preventing the prices of our units from going up (depressing the building)? Do the other unit owners have any recourse?

Mister Condo replies:

M.B., as you know, I am not an attorney nor am I an expert is California state law so please accept my advice as friendly and not legal. For a legal opinion, you need to consult with a local attorney who is verse in your state’s laws regarding HOA and condo association law. My first blush answer to you is that this owner has not done anything wrong. Unless your by-laws state that no one person may own more than 10% of the units, you likely don’t have a leg to stand on. The unit owner didn’t cause Fannie Mae to set its guidelines. In fact, Fannie Mae could change its rules tomorrow to 5% and then other owners would be effected. Unless you could prove that this unit owner was maliciously trying to prevent sales of other units within the HOA, I don’t think there is too much you can do. Non Fannie Mae mortgages do exist. They aren’t as easy to find and they don’t always have as favorable a rate but that really isn’t the concern of the unit owner who simply purchased units as he saw fit. I am sorry I don’t have more positive advice for you but I don’t think there is too much to be done here. Good luck!

Ooh That Smell! Condo Sewage Pipes Leaking!

S.S. from Illinois writes:

Dear Mister Condo,

The condo I live in was originally an apartment building. They were built in 1968 and converted to condos in 1978. My husband has lived here in our unit since 1978. Recently I have noticed a ‘sewage smell’ coming from the main bathroom. I smelled the drain in bathtub and sink but the smell is stronger coming from the cabinet where the hole for the pipes are. What can I do about it? My husband can’t smell very well but he CAN smell this.

Mister Condo replies:

S.S., I am sorry you are living with a sewage smell. That stinks! If you were to take a look at your condo’s documents, I am guessing that you own from the walls or the paint inwards, meaning leaking pipes and such that are part of the building’s inner guts are owned by the association. If an association pipe has failed, the association needs to make the repair. You report this to the Board or the Property Management company if you have one. What you are describing is not uncommon but it may be a new problem for your building. There are plenty of contractors in your area who will know just how to fix the problem. Your management company or Board simply needs to get one in there and fix the leak. There are times in older building where pipes have to be retrofitted or rejuvenated which can be quite costly but that cost is a shared expense of the association because it is a common element that needs the repair. I hope they get that fixed for you soon. Good luck!

Condo Executive Board Passes Special Assessment Without Meeting of Unit Owners

S.R. from Fairfield County writes:

Dear Mister Condo,

Our Executive Board has imposed an assessment on the unit owners without calling for an open meeting to discuss the reasons for the assessment. Cited is the CT statute that allows the board to impose the assessment without an owner’s meeting if the assessment is less than 15% of the annual budget. However, the state statute, in its language, gives precedence to the declaration and by-laws of the association and makes no mention of the 15% rule but requires an open owner’s meeting and a vote to approve the assessment. Does the declaration and by-laws have precedence in this matter?

Mister Condo replies:

S.R., it sounded to me like there may have been a misinterpretation of the statute by the Board if the declaration requires an open owner’s meeting. But since I am not an attorney, I checked with one of my friends who specializes in community association law in our state. Here is what the attorney had to offer:

“Section 47-261e(b) of the Common Interest Ownership Act says that the executive board may propose a special assessment by giving a summary of it to all unit owners within 30 days after the board adopts it.  The statute says that, “unless the declaration or bylaws otherwise provide,” the special assessment is deemed automatically approved if it does not exceed 15% of the association’s last approved budget for that calendar year when combined with all other special and emergency assessments for the same calendar year.  Only if those amounts would exceed the 15% trigger does the statute require that a meeting of the unit owners be called (and even then, it still passes automatically unless a majority of all of the units vote to reject it).  So, this is a “default” statute that explains how to adopt a special assessment when the declaration and bylaws do not say otherwise.  A community’s declaration or bylaws might raise or lower the 15% trigger, or require some other vote threshold for owner approval, or impose a different procedure entirely.  Many community documents do not mention the procedure for approving special assessments (as opposed to annual budgets), and when they are silent, the statutory procedure will control.  But if your community’s declaration or bylaws do say something different from the statute, such as by requiring unit owner approval even for smaller special assessments, then yes, those documents will supersede the statute on this issue.”

Based on what you have told me here, S.R., I am inclined to think that the Board may have made an error in their methodology. Of course, the bottom line is how much this money was needed and what it is being used for. If you feel strongly that the special assessment was unfair, you may have grounds to challenge it or it may be as simple as bringing this article to the attention of the Board so they don’t make the same mistake in the future. Either way, I wish you all the best!

Purchasing Neighboring Condo Unit in Foreclosure

L.J. from New Haven County writes:

Dear Mister Condo,

I live in a 3-unit Condo Association. One unit is in foreclosure. I own one. Can I purchase the other that is in foreclosure?

Mister Condo replies:

L.J., unless the condo’s governing documents prohibit the purchase of more than one unit, I don’t see why not. However, I would have to ask you why you would want to? If your plan is to knock down a wall and make one large unit out of the two, that is very likely not allowed. If you are going to be a landlord and rent out one of the units, I see no problem. Or perhaps you are thinking of purchasing the distressed unit to turn around and sell it? Again, I see no problem. Just understand that you will be fully liable for the common fees and any other assessments that the association gets hit with and that you will have not one, but two, obligations to pay. As long as you go in with your eyes wide open, I see no issue. Good luck!

Condo Guest or Condo Resident?

J.A. from outside of Connecticut writes:

Dear Mister Condo,

What is the general description of a guest versus resident in a condominium?

Mister Condo replies:

J.A., I am not aware of a generalized description for the term guest versus resident in a condominium. In fact, state and local laws also vary on the subject. As it pertains to condominium ownership, there are usually two classifications. There are owners (the folks who hold the legal deeds to the individual units). There are renters (the folks who hold a valid leasing agreement with an owner). All other folks would likely fall into the category of guest with regards to their relationship to the association. While you didn’t get into specifics of why you are asking, there are several areas where the “guest” versus “undocumented tenant” come into play, including those “guests” who never seem to leave. An owner or renter has a long-term “guest” who for all intents and purposes is a de facto resident of the condominium unit. There is no formal documentation between the unit owner and the association documenting this person’s right to use association facilities, park their vehicle on association grounds, etc. There is also no clear path to cite this person for rules violations and such. This puts the Board at odds with the unit owner, who is, in fact, the only responsible party for the actions taken by tenants or guests of any unit. States like Florida have gone further in defining guests and even family members with regards as to who is eligible to use association facilities. 3rd Cousin Jimmy can’t stay at the Florida condo for a week and take a vacation there if the rules forbid it. As you can see, defining the roles of residents can be very important for successful governance of a condominium association. If your documents are unclear about the roles, it may be time to add some definition. Good luck!