Monthly Archives: June 2017

Condo Maintenance Standards vs. By-Laws

J.J. from New Haven County writes:

Dear Mister Condo,

I have heard that maintenance standards overrides the bylaws. If so, what is stopping associations from just putting in what they want rather than changing the bylaws, which is very costly?

Mister Condo replies:

J.J., maintenance standards are generally enacted to ensure the community association insurance policies will protect the unit owners. Maintenance standards, or rather lack of, makes the association particularly vulnerable to damage caused by items that commonly wear quickly. Water supply hoses and water heaters come to mind. When either fail, tremendous damage can ensue. Without maintenance standards in place, the association could find itself uninsured for the liability. That being said these standards are still introduced and voted upon by either the Board or the full membership of the association before they are put in place. By-laws cover so many other areas of association governance that it is hardly fair to put them in the same category as maintenance standards. You couldn’t simply make a rule about something like “use of the clubhouse” and call it a maintenance standard. That would be a by-law change. Other associations feel that maintenance standards are important enough to actually create a by-law change. Either way, unit owners are bound to these standards once they are properly adopted. It is in the best interest of all association members that these standards are in place and enforced. All the best!

Do All Buildings in a Condo Have to Match?

M.K. from outside of Connecticut writes:

Dear Mister Condo,

We are replacing siding, roofs and doing repairs to buildings with structural problems in our condo. In our association, we have condos that face a busy street and others that face a forested area. We all have walls on our deck that will be removed. We were originally told that we would have frosted glass used to replace the walls. We have now been told we will have only metal railing. Those of facing the street are going to lose most of their privacy.

It was suggested we install the metal railings on the units facing the forested area and frosted glass on the units facing the busy street. All the buildings facing the street would be uniform in appearance and all the units facing the forested area would be uniform in appearance. We are now told that cannot be done because all buildings in the association have to match each other.

We have the funds to use the frosted glass but the board thinks we should install a security gate instead. There has never been a security gate here. I’m all for a security gate, but do not want to lose my privacy.

Do all buildings in a condo association have to match exactly?

Mister Condo replies:

M.K., the term architectural compliance is the standard that most associations use to determine what is and isn’t acceptable when it comes to any modifications within the association. Most association simply rebuild whatever they had when the time comes for replacement. Your association is contemplating a change and with that change comes more questions than answers as you are seeing first-hand. I doubt that there is anything in your condo governing documents that states “all buildings have to match each other”. However, that doesn’t mean that they should be altered too much from how they were originally built either. In fact, making some changes will require a consenting vote from wither a majority or supermajority of unit owners depending on how your governing documents allow. There is also the question of common, limited common, or unit owner responsibility for the new railings and frosted glass. My guess is that all will be common elements owned and maintained by the association. When the Board struggles with issues like this, it is my experience that a legal opinion can be quite invaluable so no costly mistakes are made. The community association attorney can advise you of the right way to go about making these changes so that no single unit owner can come back and challenge the decisions made. This is going to be an expensive project so why not dot your I’s and cross you T’s? My guess is you will get the finished product the association members are expecting and desiring. Good luck!

Condo Cleaning Contractor Petitions Unit Owners

B.B. from outside of Connecticut writes:

Dear Mister Condo,

Hello Mister Condo! Our Condo Board has a service contract with a cleaning contractor to provide cleaning services for our condo properties. The service contract has been uncontested for 15 years. One full-time on-site contract employee has been the same person for 15 years, the other part-time employee has not served as long. There has been an increase in complaints about the cleanliness of the properties, and after requesting a copy of the service agreement from the Property Manager, the Board realized the staff is not addressing all the tasks included on their contracted weekly schedule. The lead staff person is a nice person, and the President of the Board makes excuses for his not addressing his weekly schedule, by using snow, heavy rains, equipment breakdowns, unit owner issues, etc. as the reason. Complaints about housekeeping started to be mentioned at the monthly Board Meetings, and letters were written to the Property Management Office, which prompted a Housekeeping Committee to be created and a walk-through to be conducted of the properties. A revised cleaning schedule was recommended.

The President of the Board and Property Manager do not wish to change vendors as it would disrupt their schedules, and the Property Manager would be required to be on-site more often. The cleaning staff have become an extension of property management, and share responsibilities with the sole part-time maintenance employee, with maintenance tasks, plumbing, heating, issuance of parking passes, passing out flyers, etc. All the while, the properties are not being cleaned. Somehow, after much debate, we are now at a point where we are now entertaining new proposals from competitive cleaning contractors, of which the President of the Board is trying to diminish or do away with. The existing contractor has also been given the opportunity to revise their contract to put together a more realistic job description for their staff.

One week before the Board is to review the competitive bids for a revised or new cleaning service, the contract cleaning staff took it upon themselves to go door to door and camp out in the building lobbies, requesting signatures from unit owners to retain their services! What Unit Owner would feel comfortable not signing this petition? In the meantime, they are still not fulfilling their cleaning contract work schedule and their effort is minimal at best. Five Board Members have signed their petition, which means they are settling for mediocre services because they don’t want these employees to lose their jobs. In the meantime, the employees are stubbornly refusing to fulfill their work contract because they feel they have the support of the President of the Board and the Property Manager.

What does one do in this situation? What do you recommend? Some Board Members will not challenge the existing President, who is a bully. The cleaning staff are taking their lead from the President of the Board. They feel they have his support. This is more than frustrating. All we want is a clean building with staff that respect their positions and do their work. Property Management work is much more appealing than the actual cleaning that is required. Thank you for your time.

Mister Condo replies:

B.B., this is an unfortunate situation but not uncommon. Ultimately, the Property Manager and the cleaning service report to the Board. If the Board is unwilling to correct their behavior then nothing is going to change. Unit owners control who serves on the Board, including the President. If the Board is underperforming, it is time to vote in some fresh blood who will act in the best interest of the unit owners, and the unit owners only. A new Board may also wish to select a new Property Manager when the contract comes up for renewal, especially if the current Property Manager is underperforming as you have suggested. Of course, all this takes a willingness to serve from folks like yourself who are fed up with how thing s are being handled. If no new volunteers come forward, things are unlikely to change. Good luck!

No Common Fees Collected on Condo Unit for Six Years!

J.D. from New York writes:

Dear Mister Condo,

In New York, is there a statute of limitations applicable to a condominium where the entity claiming to be the holdover of the mortgage note has three times, without success, sought to hold a public sale? Now, more than six years have passed since the last payment was made (to a bank no longer in existence, having been absorbed into another bank, which – in turn – was merged by the federal government into the entity which has unsuccessfully thrice attempted a public sale). If such statute of limitations exists – would it be found in the CPLR, GOL, or some other statute, rule or regulation?

Mister Condo replies:

J.D., I can only hope this association has had some legal guidance from a qualified attorney during this lengthy period. I am not an attorney so I cannot offer any legal advice in this column. I am not sure how an entity can claim to be a mortgage note holder without providing some type of documentation. The Civil Practice Laws and Rules (CPLR) and General Obligation Law (GOL) may be a great place to start but I would also suggest that the association has a lien on the property enforced by the New York Condominium Act and that whoever owns the unit is liable for the back common fees as provided in the law. An attorney may have also advised that the association foreclose on the unit for unpaid fees due to the association. Clearly, this unit needs to be liquidated one way or another and the association needs to have a dues-paying unit owner using the unit as soon as possible. That may mean taking a write-off but it should get things back on track. Consult with a locally qualified attorney to see what your options are. All the best!

Delinquent in Assessments But Still on the Condo Board

M.K. from Fairfield County writes:

Dear Mister Condo,

Can members be on the Board who are delinquent in common charges or are in foreclosure?

Mister Condo replies:

M.K., unless the community association governance documents state otherwise, the answer is “yes”. However, unless there are no other candidates for their Board position, there is no reason the association members shouldn’t seek a member in good standing with the association to serve when the next election cycle comes up. Unit owners would be foolish to continue to elect any unit owner delinquent to the association for any reason. How can they expect that this individual will uphold the rules and regulations of the association when some of those rules are aimed at collection activity against the sitting Board member? There are some governing documents that preclude members not in good standing to serve on the Board but that is the exception and not the rule in my experience. Check your documents and see what yours say. And get ready with a replacement candidate for the next election. All the best!

Required Condo Reserve Study in Ohio?

R.D. from Ohio writes:

Dear Mister Condo,

 

In Ohio, can a condo owner act as Associate Treasurer and must there be a Reserve Study of the Association Made?

 

Mister Condo replies:

R.D., I am not an attorney so I cannot speak to specific laws in your state. You can see a graph prepared by the Community Associations Institute (CAI) of what states require Reserve Studies by Statute here. Ohio isn’t listed as a state that does. Additionally, I am not aware of any law that requires Ohio condominiums to conduct Reserve Studies. That being said, many association have rules in their by-laws that require the association to perform routing and preventative maintenance as well as keep the common elements in good working order. A Reserve Study is the perfect tool to keep the association on track financially as the years go by, the elements wear down, and the Reserve Fund is used to replace those worn elements. As for the role of any unit owner to serve as Associate Treasurer or in any other capacity on your Board, you should refer to your governing documents. Typically, Board members are elected from unit owners within the community. I am assuming that the person in question is serving either as a Board Member or as an Appointee of the Board to function as Associate Treasurer. To be honest, I am not that familiar with the title Associate Treasurer. I am assuming that is someone who assists the Treasurer? Do they have the ability to write checks for the Association? If so, the person should be vetted the same way the Treasurer or anyone else is who access to the Association’s funds. Dual signatures, routine audits, etc. should all be part of the Best Practices followed by the association. Best Wishes!

Condo Deck Spalling Project Creates Additional Unit Owner Expense

M.M. from outside of Connecticut writes:

Dear Mister Condo,

If the condo HOA has contracted with a firm, using funds from an assessment, to do spalling on your deck, is the condo owner responsible for paying for tile removal and replacement and also a sliding glass door replacement they say needs to be removed to do the spalling?

Mister Condo replies:

M.M., that is a tricky question. My gut instinct is to say that the unit owner is responsible for those items that the unit owner owns and the association is responsible for any common elements that it owns. In the case of a deck and spalling, my question is who owns the tiles? Are they your tiles (installed by you or a previous owner)? If so, it is likely that you own the tiles and would have to pay for the replacement. Who owns the slider? Again, that is typically unit owner responsibility but your documents may state otherwise. My best advice is for you to review your documents and see who owns what. If the documents are silent on the subject, you might ask neighbors who have faced a similar situation how it was handled previously. My best guess is that you will be responsible for the tiles and the slider. On the upside, you will have beautiful new deck spalling, tiles and a slider to come and go to enjoy your deck. All the best!

Condo Insurance Check Issued to Unit Owner for Building Damage

S.F. from Fairfield County writes:

Dear Mister Condo,

Insurance check for house damage was made payable to a condo owner, who is the brother of the president of the condo association. Why did the insurance company allow this? Check amount was substantial, for several thousand dollars.

Mister Condo replies:

S.F., there are a few reasons that the condo owner was reimbursed directly for an insurance claim. For starters, the policy holder typically designates the payee. Was this entirely association-owned insurance or was it homeowner’s insurance as well? Typically, the homeowner gets paid for claims made against their own policy. If the damage had already been repaired by the homeowner, the check may have been for reimbursement. A typical association claim for exterior building damage would go to the association, who would then hire the contractor to repair the exterior building damage. It the damage were internal (water damage for instance) and the association’s insurance were covering that damage, it would not be uncommon for the payment to go directly to the homeowner.

Keep in mind that insurance claims are also records of the association. As such, you have the right to inspect the claim. If you think foul play is afoot, I would suggest you review the paperwork to determine why the payment went to the owner and not the association. Good luck!

Noisy Condo Neighbor Ruining Renter’s Peace and Quiet

P.M. from outside of Connecticut writes:

Dear Mister Condo,

I am dealing with a neighbor at condo. I am a renter; she is not. She is loud and noise every night until at least 1:00 a.m. The owner I’m renting from is lazy. I can’t wait until May to leave next year. I tried talking to this neighbor and had to call police twice. The manager of the association says they will send a letter but the problem still persists. Recently, a picture fell of my wall and broke. She stomps on her floor on purpose and intentionally drop loud objects. I am so angry I can’t sleep. What can I do?

Mister Condo replies:

C.J., lazy or not, your landlord has a responsibility to provide you with a rental unit as outlined in your rental agreement. Most likely, that agreement included a copy of the rules and regulation for the condo association where you reside. Inside those rules, there are the steps for complaining about another unit owner or resident that isn’t following the rules. Typically, a report is made to either a Property Manager or directly to the Board. There are usually rules about acceptable noise levels, quiet hours, and peaceable enjoyment for unit owners. As a renter, you may or may not have the ability to directly lodge such a complaint, meaning it may need to come through your landlord. If your landlord refuses to support you in this effort, he may be breaking terms of your lease which may leave you the opportunity to end the lease early. However, if you decide to break your lease early you may be out of your deposit or create a legal battle between you and your landlord. My practical advice is for you to motivate your landlord or have him give you the power to work directly with the Property Manager or Board to bring about a resolution. Understand that it may take time and as the months go by towards the end of your lease, the simplest solution may be to not renew your lease. If you decide to break your lease, speak with an attorney to see what legal and financial consequences you may be incurring. It is an unfortunate circumstance to say the least. However, in tight living spaces as many condos offer, an unruly neighbor can make living there unpleasant. Good luck!

Informing the State of Newly Elected Board Members

C.W. from Florida writes:

Dear Mister Condo,

I need the form to inform the State of Florida of the newly elected board members. I cannot find it.  Can you help? Very important. Thank you!

Mister Condo replies:

C.W., I am not aware of a requirement of keeping the state informed of the Officers and Board Members of your condominium or a specific form to do so. I am aware of a certification form for newly elected Board members that they must file with the association secretary that they have read the by-laws of the association and that they will fulfill their duties of upholding those by-laws. A sample of that form can be found here: http://www.ccfjfoundation.net/CondoCandForm2010.pdf

Annual corporate filings with the state (tax records and such) may have a place to list officers and/or directors. Those forms are typically filed by the association’s accountant or Treasurer. I am not an expert on Florida community association law as I don’t live in your state but I would ask any of my regular followers to kindly give a more detailed answer if I have overlooked anything. Good luck, C.W.!