Monthly Archives: April 2017

Condo Work Contract Awarded Without Bid!

J.B. from New Haven County writes:

Dear Mister Condo,

Does the condo board have a fiduciary responsibility to obtain multiple bids for work completed on exterior? If so can they set a dollar limit whereby they must obtain bids?

Mister Condo replies:

J.B., it is a best practice to obtain multiple bids for any work done at the association. However, there are plenty of times that a Board will work with a contractor they trust or who has done previous work for them that they feel merits further hiring of the same contractor. That being said, if the by-laws call for a minimum of three bids before jobs above a certain dollar amount are awarded, then they should follow the by-laws. If not, they are setting themselves up for a lawsuit from unit owners who feel the Board isn’t following the rules on such purchases. You should take a look at your by-laws to see what it says on the matter. If it doesn’t describe the process, then the Board is likely free to hire as they see fit. All the best!

Condo Board Cites Unknown Parking Rules

S.V. from outside of Connecticut writes:

Dear Mister Condo,

I have a deeded parking spot within our garage. I was cited because I was “supposedly” parked in my deeded spot for 96 hours without moving my vehicle. The violation states ” vehicle has been parked in your spot for over 96 hours. Please move it on a regular basis” Nowhere in our Parking Rules/bylaws is this indicated. Can a board regulate how often my vehicle is moved? Its registered, insured and properly maintained.

Mister Condo replies:

S.V., the Board is the ultimate authority on use of the common areas which may include your parking garage. Even though you have a deeded right to park in your space, you still need to follow the rules of the garage which is under the Board’s control. Of course, their rules need to be voted into the rules of the association, properly noticed to unit owners, and made part of the condo docs to be enforceable. Ask for a copy of the rule and ask when it was added. Also, if you and enough of your fellow unit owners feel the rule is unnecessary, propose the rule be removed. If the Board refuses to remove the rule, consider electing Board members that are friendlier to your cause. Board members are simply volunteers who have been democratically elected from within the association to perform the work of the association. You get what you vote for. S.V.. Good luck!

Condo Deed Need, Indeed!

R.K. from outside of Connecticut writes:

Dear Mister Condo,

My parents are the original owner of the condominium where they have lived since 1966. I am their son writing this question. I’m in Chicago. Unfortunately, I cannot find the paperwork to see if the two parking spaces were “deeded” when they purchased in 1966. For the last 7 years, I have parked in their assigned spaces. My brother is also a legal owner of the condo but does not park his car in one of the spaces. When my girlfriend visits, she parks in one of spaces. It’s an indoor garage. Best as I can tell, another unit owner wants to take one of the spaces for me in exchange for his outdoor space. This is my best guess as I received a letter from a lawyer’s office that claims he represents the condo association. His letter has threatened to tow my car if I don’t give up space 34 within three weeks. I don’t want to give up the spaces for two reasons. First, since my brother is part owner of the condo, both my brother and I consider one of the spaces his. Also, if I want to sell the condo, I want to be able to offer the new buyer two of the indoor garage spaces as there’s benefit to me as the seller. Once again for the greater part of seven years my car is usually parked in the center of the two spaces and again one of the space is often used by my girlfriend. Based on reading other questions and appears I have to know how the spaces were deeded in that regard since I can’t find the paperwork. The condo board should have the original paperwork, right? I would appreciate your answer. And I will also be contacting my lawyer since the condo association never talk to me about the spaces before they had their lawyer send me the threatening letter.

Mister Condo replies:

R.K., in many ways, you have answered your own question. Your local County Land Office should have the original deed on file. It is highly doubtful that the Condo Board has a copy of the deed. What they do have is the Declaration and by-laws (so should you) that likely described the common areas, including the parking lots and spaces. Deeded parking is yours, association-owned parking is theirs and they can do with it as they see fit. Since you have already hired an attorney, my best advice to you is to go with what the attorney tells you. If you can produce a copy of the deed showing the two parking spaces as yours, this situation should be brought to an expedient close. If not, your attorney can best advise you of the steps you need to take to protect your rights as a unit owner. Good luck!

Condo Board Candidate Withdraws from Race and Assigns Votes to Another Candidate

D.C. from outside of Connecticut writes:

Dear Mister Condo,

My condo is in the process of elections. Ballots are out and are due in 11 days. One of the candidates decided she does not want to be on the board. So, she sent out an email informing the association and says she is putting another homeowner in her place. And noted that all her votes will go towards the new person. Is she allowed to do this? Or does she resign if she is elected and then the board decides on a new person? Or do the other 5 candidates automatically get on?

Mister Condo replies:

D.C., I am sorry that I cannot answer these questions immediately as I handle them on a first come, first served basis. Your elections are already over but here’s my advice in case this comes up again. Refer to your specific governing documents to see what it says about elections. Most are quite explicit in the methodology and include the requirements for becoming a candidate and the election process. My guess is that what this nominated candidate has done is not allowed or even addressed in the documents. She is attempting to provide and undue influence on the outcome of the election and while it may not make any difference to the outcome of the election, it is an unfair practice. As a candidate, you have two choices – run or don’t run. You don’t get to tell the electorate where your votes are going. They go to you or they go to an opponent. They are not “yours” to delegate to another candidate as if a vote for you is a proxy for you to do with as you see fit. Depending on how this election went and how satisfied or dissatisfied the association members are, they could either accept the results or challenge them (which could involve a lawsuit and/or another election). If everyone seems happy, my advice is to let things lie and don’t ever allow this person a chance to interfere in the democratic election process again. It is unfair and puts the association in a precarious legal position at the least, and at a possible lawsuit position at the worst. Instead of a win/win, it is a lose/lose proposition. Good luck!

Subletting the Condo is Against the Rules but Who Can Sue?

M.B. from outside of Connecticut writes:

Dear Mister Condo,

I am about to enter a legal dispute with the inspector that performed the inspection of my condo prior to purchase. I currently live in the condo with two roommates. The Master Deed states that any lease or occupancy agreement should be in writing and should apply to the entire unit, not merely a portion thereof. There are only 4 units in the condo association and they all know that I live with roommates. No one has a problem or intends to take action against me at this time. For legal purposes, can I get around this clause by creating a lease that encompasses the entire condo with a total rent due each month for the entire unit vs. separate bedrooms?

Additionally, can someone outside the condo association, such as the inspector, file a claim against me for violating the Condo Bylaws? Would that hold up in court if the other unit owners/Condo Association members do not wish to take action?

Mister Condo replies:

M.B., I am sorry you find yourself in this somewhat precarious situation. The term for what you are doing is subletting and many condo association documents do not allow for such activity. There are a variety of reasons for this but suffice to say that if your association has a clause that prohibits you from doing what you are doing, you are on shaky ground here. The good news is that it is up to the association to take action against you should they choose and, from what you have stated here, they aren’t interested in doing so. Unless there are local or state laws forbidding the action of subletting (uncommon, in my experience), you and your roommates should be fine. I am not sure how the inspector of your unit fits into this equation as inspectors are typically charged with the soundness of the structure and your issue has nothing to do with that. I am not aware of anyone other than the association being able to take any action against you that violates the condo’s governing documents as they would not have the authority. However, if local or state laws are being violated, that is another story. If you are sued by anyone, my advice is to hire your own attorney and counter the suit. From what you have told me, you would likely prevail against anyone other than the association. Keep in mind that I am not an attorney nor am I an expert is your local or state laws regarding leasing and subletting. For a proper legal opinion, seek the counsel of a qualified local attorney. Good luck!

Condo Board Voting Rights During Declarant Control Period

L.H. from outside of Connecticut writes:

Dear Mister Condo,

We have a new developer and my question is in regard to association voting rights. There are more undeveloped lots than what has been constructed. Does the new developer have a vote in the association for each undeveloped unit? This would give them the majority of the votes and complete control over any changes or issues including any changes to the master deed. Thank you for any information you can provide us.

Mister Condo replies:

L.H., during the developer or declarant control period, the Board is largely a Board in name only. If your association is rolled out in phases and each phase has its own Board, it is possible that the Board for your association may have already been given control to vote and help shape its own destiny. Other than that, the declarant has control over the association and will continue to develop and sell units (the developers primary interest) and likely keep common fees reasonable so as to cover common expenses and attract new buyers. The best advice I can offer any new association is to realize that the “association attorney” should not be the developer’s attorney, which I see far too often. The assumption of the new Board is that the attorney is looking out for their best interests, which simply isn’t true. The developer hired the attorney and that is who the attorney is working for. While mutual interests often align, there are times when an attorney representing solely the new association will take issue against the developer. Modifying the Master Deed is one of those instances where spending the extra money on an attorney now can have a huge impact on all unit owners, current and future. It means spending money now on the attorney but it could prevent lots of future expense. It does mean that the association also has a true fiduciary looking out only for their best interest. I hope your new condo development is turning out nicely (most do) and bring you and your fellow unit owners years of happy condo living. All the best!

Condo Lawsuit Revelation Shouldn’t Cause Issue for Selling Owner

J.P. from New York writes:

Dear Mister Condo,

I am planning to sell my condo soon. One of my fellow owners is deeply behind on HOA fees. There’s a law suit pending. I’m told this could hold up my selling. I’m in Brooklyn. Any help would be greatly appreciated!

Mister Condo replies:

J.P., I am sorry that your association is dealing with a delinquent unit owner. While lawsuits against the association might cause a potential buyer for your unit to shy away from the deal, a lawsuit initiated by the association against a delinquent unit owner should not. The association’s only risk here is that the unit owner doesn’t pay in timely fashion. The association’s risk is relatively low, seeing as they have a lien against the unit owner in arrears. It is a requirement that lawsuits that the association is involved in must be disclosed to a potential buyer, I don’t see where this suit should make them change their mind about purchasing your unit. This type of lawsuit is quite common and almost always won by the association. Good luck!

Condo Board’s Ability to Make Capital Improvements Without Unit Owner Vote

R.J. from outside of Connecticut writes:

Dear Mister Condo,

I am living in a condo where the condo board has decided that we’re getting the decks enlarged. They claim “everyone wants this done,” but no such formal vote of the unit owners was ever taken. I know that a number of unit owners do not want larger decks and most certainly do not want to pay for them. Our responses fall on deaf ears.

First, we can push for an actual unit owner vote on this matter and may need to hire an attorney to make sure such a vote is taken. BUT, since this is not a matter of “maintenance,” as in necessary repairs, nor are the back decks uniform now by any means (because of the topography of the land) should those of us who do not want larger decks be forced to have them and forced to pay upwards of $10,000 each for them? Even if they get a majority vote, this does not seem fair, nor is it in the bylaws that an optional aesthetic improvement must be paid for by everyone – as it does for repairs or common ground improvements.

Mister Condo replies:

R.J., this is an interesting problem. Board Members are elected to office by democratic election of unit owners. Yet, they are taking action that a number of unit owners do not want taken. The real question here is: What do the majority of unit owners want and what do your by-laws state about this type of improvement? Depending on your by-laws and any state or local law dealing with common interest communities, the Board is likely within its rights to consider this deck enlargement program. They may even have the ability to enact it, again providing the action isn’t in violation of the condo documents. However, they do have to follow all protocols as outlined in the documents or, as you correctly state, disgruntled unit owners will hire an attorney to bring action against the Board. Many associations would require a vote of the unit owners for such an improvement because the Board is considering such a major expense. Replacing worn common elements is one thing; creating new common elements is quite another. You are on the path to getting the right action. Also, consider getting some like-minded folks on the Board during the next election cycle. If it can’t wait, and you think you have the votes to hold a recall election, you could attempt to recall and replace these Board members. However, if the majority of unit owners are in agreement with the deck expansion and improvement project, your efforts may generate little less than a thorn in the side of the Board as they continue to push the project through. Good luck!

Can the Condo Association Issue Fines and Fees for Unpaid Condo Fines and Fees?

M.D. from Illinois writes:

Dear Mister Condo,

Can the Association impose fines for unpaid late fees, fines, etc., if they are not paid within a certain time period? For example, we have a few owners who have refused to pay late fees and fines, going back several months. Association wants to come up with a rule to impose a $25 fine per month to all individuals who don’t pay their dues (late fees, fines, etc.) within 3 months.

Mister Condo replies:

M.D., as long as the condo documents support the fines being levied and there are no state or local laws to the contrary, the association is allowed to collect fees and fines when monies owed are not paid on a timely fashion. In fact, the whole concept of fines and fees is the only power the association has to protect itself from non-payment of fees it is owed, short of taking very costly legal action against any delinquent unit owner. The motivation to the unit owner is to not get himself or herself in arrears with the association. Common fees are the lifeblood of any association. All of the common expenses are paid from these fees. When they don’t materialize on time, associations ca find themselves strapped for operating cash to pay the bills of the association. These bills are for services that directly, or indirectly benefit the unit owners. Why should they be allowed to not pay their fair share in the same timely fashion that all of the other unit owners are paying. By paying late, they are actually creating a burden on their fellow unit owners. The fine system is designed to keep the payments coming. If those payments are tardy, even late fees and fines, the association needs to continue to motivate them to pay on time. The fine system allows them to do just that. Honestly, these unit owners simply need to get caught up and not fall behind again. All the best!

Timing of Special Assessment Hampers Condo Unit Sale

W.L. from outside of Connecticut writes:

Dear Mister Condo,

My condo is under contract and set to close very soon. I just received a notice about a week ago of a meeting of the owners to approve/disapprove an assessment of $750,000 ($7,500/unit). I immediately notified the buyer’s agent and invited the buyer to attend the meeting. The assessment was approved last night (the buyer was out of town… supposedly). Is the buyer obligated to close? Note: I am willing to finance the $7,500 amortized over 3 years. Note 2: Closing attorney says buyer is obligated to close because he will ‘enjoy’ all the benefits of the expenditure.

Mister Condo replies:

W.L., congratulations on selling your unit. Special Assessments are ugly for so many reasons. The timing of this one as you are selling your unit is almost calamitous. The liability for the assessment is with the unit owner of record when the assessment was levied. So, depending on when the closing date and time and transfer of deed for your unit occurred, the assessment is on the unit owner of record at that time. The purchase and sale agreement you have with the new owner is a separate entity and your attorney can best advise you on what legal options you have if the buyer breaks that agreement, for whatever reason. So, in the simplest of terms, look at the date and time the assessment was levied. Look at who owned the unit at the date and time of the assessment. That is who owns the assessment. As for offering to finance the assessment for the new buyer, that is a decision you need to make. Personally, I would not offer that option as it isn’t your problem, but very well could be if the unit owner defaults on the repayment. Then you will need your attorney for a whole other reason. Good luck!