Monthly Archives: July 2017

Who Replaces the Resigned Condo Board President?

R.L. from New Haven County writes:

Dear Mister Condo,

When the association President resigns, does the VP take over, at least until another board member is selected? are there any formal steps that have to be taken to replace the board member? I know that the final vote is determined by the remaining board members.

Mister Condo replies:

R.L., unless your by-laws state otherwise, that is exactly what happens. Although there is often a flurry of activity if the VP isn’t interested in serving and I have seen Boards hold special meetings where they then select from amongst themselves who will fill the various officer positions. The reality is that while the President of the Board does have some extra duties and powers as President, the primary role is to preside over Board meetings. Some volunteer Board members are simply uncomfortable in that role so if the VP isn’t up for the challenge, the community would be better served having the Board reelect the officers so that no role goes unfulfilled. Many association by-laws do not address what happens within the officer positions, only that the vote is held amongst the Board members following the Annual Meeting or such other time as the by-laws designate. If your Board is functioning well in between those assigned times, I suggest it is best to leave well enough alone. All the best!

Little Pink Condos for You and Me!

S.B. from outside of Connecticut writes:

Dear Mister Condo,

I bought my condo about five years ago and since then they’ve decided to renovate it. I didn’t find out about the plans until the last annual meeting when the paint colors and all the details were rolled out. The condo board member who’s in charge of the redecoration had a meeting with other unit owners to decide on the decoration details and didn’t include me. Each floor of the building is going to be a different color and the color chosen for mine is bright pink. I objected to the color at the last meeting and asked if I could change it. I was told no. The decision had been made. I decided to just stick with it but, honestly, it’s bugged me since then. Is there anything I can do?

Mister Condo replies:

S.B., John Cougar Mellencamp sang about “Pink Houses” but he never mentioned who chose the color! I think your association needs to get their act together about proper notice when they hold meetings. There should never be a meeting of the association that “didn’t include you”. Proper notice needs to be mailed (or emailed if you agree and your bylaws allow it) so that you never miss a meeting because you didn’t know about it. If you decide not to attend, that is your business. If you are not properly noticed, you can contest any decisions that are made in the meeting and even sue the association for not serving proper notice of their meetings. While it is unlikely that your attendance at this meeting would have changed anything, you did have the right to be there, to speak in opposition to the painting choice and even vote on the measure if that is what was done. Your question is about what can you do now. That really depends on how much it is bugging you and how much you are willing to do about it. If the color is something you can live with, I would likely do nothing. If you were truly incensed or this is part of a larger problem, you might wish to consult with an attorney to review your rights under your state’s laws and your governing documents. You might want to run for the Board to volunteer your time to help make decisions that are in the best interest of the community. After all, your Board is comprised of volunteers from your association who have done just that. Sometimes, it is better to join them than to fight them. Other than that, I might suggest putting on some John Cougar Mellencamp music and smiling about the Pink House? Your only other option may be to “fight authority” but as John Cougar will tell you, “Authority always wins”… Good luck!

Deeded Condo Parking Swap Sought

M.C. from San Diego, CA writes:

Dear Mister Condo,

How do we change our parking deed with our neighbor? We live in a high-rise condo complex in San Diego, CA with assigned underground parking. Thank You.

Mister Condo replies:

M.C., deeded parking, as its name implies, is linked directly to the deed for your unit. While you can simply verbally agree to park in each other’s spaces, the change to the deed will require a bit of work and likely the assistance of an attorney. Depending on mortgages or other third-party interests to the deed, it may require a lot of finagling and be far more trouble than it is worth. Unless your Board is keeping a watchful eye on who parks where, you might be able to work this out with your neighbor as a gentleman’s agreement. That agreement wouldn’t be legally enforceable in my opinion but it might be the simplest solution to your quandary. Good luck!

Condo Water Submetering Does Not Guarantee Lower Common Fees

M.B. from outside of Connecticut writes:

Dear Mister Condo,

My condo fee includes water. The Association wants to install individual water meters for us to pay for our own water but does not want to reduce our condo fee. Shouldn’t that percentage of the condo fee come back to us now that we pay our own water bill?

Mister Condo replies:

M.B., the decision to submeter water is gaining in popularity and makes perfect sense for many associations. Of course, the approval to move from an included amenity to a paid amenity usually requires a vote of the association unless the Board has the authority under the governing documents to make the decision. Once the decision has been made and properly voted upon, the submetering begins and the association is no longer responsible for providing the amenity. The reconfiguration of the budget and common fees resulting from this line item being removed from the budget is an entirely separate matter and one that should be addressed at next year’s budget approval time. In theory, lower common expenses to the association should result in lower common fees to individual unit owners. However, as you know, there are many other items that make up the annual budget. Just because the line item for water expense is diminished, there is always the possibility of another line item (insurance, for instance) increasing which could easily offset the savings from water submetering. In other words, the two items are not strictly related, Common fees are set as a result of total expenses, Reserve Fund contributions, etc.. The water expense is just one line item on a larger list of expenses. Be sure to keep a close eye on next year’s budget proposal and common fee schedule. If there is an opportunity for savings, that is likely where you will see it. All the best!

Condo Has to Purchase its Own Clubhouse!

L.P. from outside of Connecticut writes:

Dear Mister Condo,

When many of the first purchasers bought from the condo developer they were told that one condo unit on the first floor would be the owners’ clubhouse/fitness center. At some point (I’m unsure of when since I’m a new owner) the documents given to purchasers said that the clubhouse condo was owned by the developer and could, at some future time be sold. Now the building is nearly sold out and being turned over to the owners. The board is asking the current condo owners as to our interest in purchasing the “clubhouse” condo to ensure that the building continues to have this amenity. All of this is very early; we have an attorney who would negotiate the best price for us. However, I’m wondering what questions the owners should ask the board before they go further. Obviously, the price, how we would be assessed and for how long are questions but are there other considerations?

Mister Condo replies:

L.P., while it is unfortunate that the clubhouse/fitness center was not included as part and parcel of the development, I cannot say this is an uncommon practice. It sounds like the developer used a “bait” tactic of enticing early owners into thinking that there would be an amenity of a clubhouse/fitness center as part of their purchase but I am guessing no one has anything like that in writing. Again, this is not uncommon from stories I have been told from around the country. The unit owners will likely have to vote to add this common amenity to the association. Since it is almost certain that the unit owners will want this amenity, it is wise to work with the attorney to handle the negotiation. Aside from the purchase itself, you might want to ask about staffing requirements (if any) and insurance repercussions to the association from adding the amenity. There is also the issue of purchase and maintenance of fitness equipment, hours of operation, open to the public or just unit owners (or guests). Will it be rented out and to whom? The Reserve Study should be updated to reflect the new building and all costs should be considered. Like I said, it is likely to go through any way but I think it would be helpful for unit owners to know exactly what they are buying and what the real costs of owning it are going to be. Enjoy your new clubhouse!

Is Condo Board Responsible to Provide Onsite Parking?

S.K. from outside of Connecticut writes:

Dear Mister Condo,

Are condominium boards required to provide on-site parking for residents or renters?

Mister Condo replies:

S.K., no, on-site parking is a function of use of the common areas, which are under the control of the Board as they have been elected by the association to manage the common assets of the association. Many communities, especially urban-based associations, simply don’t own any land or garage space where parking can be provided, leaving the job of finding a or renting a parking space up to the unit owners or renters. Unless otherwise stated in your deed or governing documents, the Board is not obligated to provide this amenity. Good luck!

Small Condo Governance Issues

R.G. from Litchfield County writes:

Dear Mister Condo,

We live in a three-unit condo. One unit is held in a Trust and the President resides in this unit along with his adult son. Our governing documents dictate that one person from each unit is the “director” and is allowed one vote. My spouse is the secretary and we are told by the President that, therefore, I am not allowed to vote, only my spouse is. My first question is does this right to vote change from meeting to meeting? Or does the same person always vote? The son, who is a resident only, conducts the meetings, directs the contractors, is rude at meetings and also makes impromptu decisions that everyone is afraid to challenge. My second question is what rights does he have as a resident? Can he speak up at meetings? Can he tell other unit owners what to do? How would one go about this situation without hiring an attorney? Our personal situation does not allow us to move, although it is an obvious solution.

Mister Condo replies:

R.G., smaller associations like yours have all of the same rules and regulations found inside their governing documents as larger associations have. Without hiring an attorney, you should give a good read to your documents and pay particular attention to rules on voting and representation at meetings. One vote per unit is common but many times any owner of a unit can speak, just not vote. If your wife is acting as Secretary and therefore a voting Board member, you may be limited to attendance only at these meetings as she is the voting party for your unit. Whatever the documents dictate is what should be followed. It shouldn’t change meeting to meeting although there may be times when a souse cannot attend so the other spouse would have the duty and ability to vote. The same is true for your directors. Do the governing documents dictate who can serve on the Board? Unit owners only? If so, the son cannot run the meetings or serve as President. If not, no harm, no foul. If you don’t challenge any of his decisions, guess what? He will keep making those decisions. Rudeness says more about him than you but that can be pretty annoying. If his momma didn’t teach him to be polite, there isn’t too much you or I can do to help him. I realize that hiring an attorney may seem too expensive and I don’t think that you will need to if you study your documents and arm yourself with information. Sometimes the threat of a lawsuit is as powerful as a lawsuit. If he does anything too outrageous, let him know you are consulting with an attorney to question his decisions. If that doesn’t get his attention, then it may be time to actually hire the attorney. Let’s hope it doesn’t come to that. Good luck!

Condo “Marketing Fee” Forces Unit Owners to Use Condo’s Designated Realtor

S.Y. from outside of Connecticut writes:

Dear Mister Condo,

Our condo board discriminates against unit owners who want to list their unit for sale outside the condo realtor. If you list with the condo’s realtor, the realtors commission of 6% is paid from the condo’s 10% “marketing fee” levied when a unit sells. If you use your own realtor, you pay the 10% condo “marketing fee” plus 6% to the realtor.

Many of us want to use our own realtors because the condo’s realtor shows preference to Board members and their friends. If you’ve ever been in a disagreement with the Board, look out, your unit will never sell.

We have considered legal action but this will damage sales prospects for our units.

 

Mister Condo replies:

S.Y., damaged sales prospects aside, I don’t see any other way to remove this obstacle to using a realtor other than the “selected” condo realtor. That being said, I am not sure there is a true legal issue here. The 10% “marketing fee” is a condition for anyone who sells. While I think that 10% is an exorbitant amount to pay for “marketing fees”, from what you have told me it is a rule that has always been in place. Perhaps the Declarant wanted to monopolize all initial sales and resales so the clause was added? Whatever the reason, the 10% is currently the law of the land for your association. How do you and your fellow unit owners feel about this? If there is enough dissent, why not simply vote to have the rule removed? The fee paid by a seller to a realtor is typically negotiated by the seller. Here, the association has already negotiated a permanent seller’s fee of 6% to the realtor, which the association is essentially rebating back to the seller because it is coming out of a 10% “marketing fee” the seller agreed to abide by when he or she originally purchased in to your association. While I will agree that it is a bit questionable, I am not certain it is anything that can be undone by bringing a suit against the association. You have the power to correct the situation by simply eliminating the “marketing fee” or making it 4% (10% – 6%). Either method would leave the unit owner free to select their own selling agent at whatever fee they negotiated. 6% is common but I know of many markets across the country where listing fees are far less. Many times, the real estate market dictates what is a reasonable fee versus a “set in stone” flat rate. Good luck!

How To Enforce Condo Building Renovation Requirements

S.O. from outside of Connecticut writes:

Dear Mister Condo,

When a new owner renovates – without any discussion with the board/management and does things that should not have been done – what can board do? Can they make them halt, and make them put it back to the way it was, and if so how?

Mister Condo replies:

S.O., the short answer to your question is “yes” but it depends on the condo’s governing documents. Typically, interior renovations are subject to less scrutiny than exterior renovations but there are still rules that need to be observed. Common problems include replacing carpeted floors with hardwood or laminate flooring, creating an undue noise burden to unit owners above, below, or on either side of the unit. Regardless of the type of violation, the Board needs to issue a letter to the unit owner and explain which rules they are violating. If the unit owner complies, there is no problem. When they don’t comply, it is usually lawsuit time so get the association attorney involved. If/When the association prevails on court, a court order to return the unit to its previous condition is issued. If the homeowner still refuses to comply, the association attorney can then take further action to enforce the court order. It can be a quite a bit of ugliness but that is the nature of enforcing the rules at a condo. You can’t have unit owners deciding on building modification for their personal unit that effects the uniformity of the community and the enjoyment of neighboring units by their owners. Good luck!

Condo Sump Pump Requirement

D.H. from outside of Connecticut writes:

Dear Mister Condo,

Is each condo legally required to have its own sump pump? We are a 2-unit condo and there is only 1 sump pump for the 2 units. If the sump pump fails/backs up is each unit both liable or just the unit that has the sump pump in it.

Mister Condo replies:

Since I am not an expert in local building code for your neck of the woods, D.H., I can only give you a generic answer. I am not aware of any requirement to have a sump pump in each and every unit. In fact, it is quite common for multiple units to be services by a singular sump pump, in my experience. The sump pump is typically owned by the Association and is a common element meaning that if it fails, the liability should fall upon the association. However, it is not uncommon for the unit owner where the sump pump dwells to have some maintenance responsibilities for the maintenance / power supply requirements of the pump. These details should be spelled out in writing if they exist at all. If the unit owner where the sump pump is housed deliberately disabled the sump pump, the subsequent damage could be charged back to the unit owner. I have heard tales of unit owners fed up with the banging that can accompany some models of sump pump where they cut the power to the unit. In that case, the association may have recourse with the owner for cutting power to an association-owned asset and any resultant damage. My best advice is to make sure the pump is maintained regularly and keep an eye out if it fails at all. Good luck!