Monthly Archives: November 2017

President Asking Daughter to Fill in Violates Condo Governing Documents

P.S. from Litchfield County writes:

Dear Mister Condo,

The President of our association did not make it to the last meeting but sent a proxy regarding his daughter to vote AND stand in for president and run the meeting. Our governing documents state that if the president is unable to fulfill his duties as president, the secretary fills in. Who should have run the meeting? The daughter with the proxy or the secretary?

Mister Condo replies:

P.S., unless your documents allow the President to appoint a proxy (doubtful), the governing documents dictate your answer and from what you have told me, the Secretary should have run the meeting. Board members seldom have the right to give a proxy for their vote. If you miss a Board meeting, you miss your opportunity to vote. The real question here is what actions were taken at this meeting. Unit owners have the ability to question any actions taken at this meeting as it was held in violation of the governing documents. My advice would be to nullify the meeting and revote any items voted upon at the meeting so there is an official and legal accounting in the Association’s Minutes. And don’t allow anything like this to happen again. Education is available in our state for volunteer leaders through the local chapter of the Community Associations Institution. You can learn more at http://www.caict.org/. All the best!

Can Condo Association Evict an Owner’s Tenant?

G.Q. from New Haven County writes:

Dear Mister Condo,

Can a condo association evict an owner’s tenant?

Mister Condo replies:

G.Q., depending on the by-laws of the association, it is quite possible although it is not a simple process. State laws and local laws also come into play. The by-laws spell out acceptable use of condo units. Let’s say a unit is being used for an illegal activity, like producing drugs. The association has the right to protect itself from this illegal activity and can take actions that would lead to an eviction. If the offense is far less serious like the renter plays loud music, the association can take steps against the unit owner, which might motivate the owner to evict the tenant. Eviction is a serious matter and should be handled with the assistance of an attorney. If the association has an attorney, this is a perfect example of when to use him or her. Of course, the ideal situation is for the tenant to act in accordance with association rules, which the tenant typically agrees to when they sign their lease. All the best!

Insurance Runaround Leaves Condo Renter with Uncovered Losses

P.P. from New Haven County writes:

Dear Mister Condo,

I was a tenant in a condo that was damaged by water that entered the unit causing complete damage to 800 square feet of the hardwood flooring, Sheetrock and our personal property/furniture. Since owners’ insurance approved full compensation for damage, cause described as ice dam. Our tenants’ insurance declined claim because of owners’ insurance ‘ice dam’. Upon demo of floors and walls it was discovered that the damage was long term and was the result of gross negligence. It was discovered that incorrect installation of replacement windows which cause a gap under the windows causing water to enter the full length of the wall. Our furniture against that wall was no only water damaged, but infested with mold. A total loss. The condo association also received insurance money to pay the owners deductible and repair the gap and siding. Our tenant’s insurance refuses to revise the original decline. Neither the owner, who had the Windows replaced without a permit from the condo, nor the condo association is taking responsibility for the cost of our damage. We continued to pay rent during the three-months-time to repair, without access to the main level of the house. We’ve contacted the state of CT INSURANCE DEPARTMENT and representative simply sends us the original ice dam determination from Liberty Mutual. We are in contact with the association’s insurance who points to owner’s liability so points back at negligence of association. We have lost 50% of our furniture and damage to the rest. Where can we go from here?

Mister Condo replies:

P.P., I am sorry for all of your problems. As a tenant, your renter’s insurance should be your primary method of recovery for loss such as this. Unfortunately, your insurer is looking to shift the burden and has pointed a finger at the association, delaying your claim and leaving you stuck in the middle. For starters, I would not renew my lease when it is up. You have identified enough underlying problems that you would be wise to seek a new rental. Your claim of loss is most likely going to be against your Landlord and his claim will be against the association. However, before you get into the expense and ongoing legal battle with insurers, your landlord, and the condo association, you need solid legal advice from a local attorney who can tell you what to expect. I would think your insurer is going to be your best bet for getting money back. You paid them a premium and they offered you the coverage. You put in a claim with them and they denied the claim. They are the most direct path to recovering your money. Then, they can take on the expense of suing the association’s insurance company for damage caused by negligence, and so on. If you try to tackle all of these issues on your own, you could end up spending thousands of dollars with little to show for it at the end of the day. At least with your own insurer, you can demonstrate the coverage you had in place at the time of the loss. They have their own attorneys who may be willing to settle with you to avoid a lawsuit. Speak to an attorney today to get a legal opinion on your best course of action. Good luck!

There is No “Right to Smoke” at the Condo!

H.S. from Washington state writes:

Dear Mister Condo,

We have an owner who is objecting to his neighbor below, who smokes while sitting on her back deck. She even has a fan going outside to blow smoke away, so it does not go upstairs. We have rules saying no smoking within 25 feet of bldgs. But smoking is allowed on back decks. We only added in rules years back about 25 feet so not to put out cigarettes on flooring or drop onto walkways so not to burn coating. The property manager and president now want to have a lawyer draw up an amendment to prohibit smoking outside because of one owner whining. I feel they are taking away someone’s rights. I do not care for the smoke either, but I also hate having to close my windows when neighbors light up barbecues. That is more annoying to me, and lasts longer. I said maybe we should ban barbecues. I was only making a point about taking others rights away with barbecues. I believe we will have 4 against out of 7 on the board for having an amendment, but I will be gone this next meeting, so who knows? What is your feeling? It just seems like more, silly liberal “must not offend, take away rights, nonsense.

Mister Condo replies:

H.S., I can understand both sides of this issue quite well and while I agree with you that “less rules” is a simpler solution, nuisance-free living is a staple of most condo governing documents and the issue of smoke and foul odors needs to be taken quite seriously be condo association Boards unless they would prefer to defend their lack of action against such complaints in court by unit owners who wish to exercise their rights. Speaking of which, you use the word “rights” to describe smoking. There is no such right. Smoking is not constitutionally protected so no one has a “right” to smoke anywhere on association property. They also don’t have a “right” to barbecue and you have a right to claim the odor is a nuisance to you. The real question here is how far are the unit owners willing to go to protect their right to nuisance-free living. Non-smokers have the upper hand here although, their initial action is to ask the Board to restrict the activity. If the Board refuses, their only option is a lawsuit. If they are serious enough about protecting their own rights, they may just sue the association and they will likely prevail based on the current legal climate. You can search for local court records to see how the battle is going. My guess is you will see unit owners prevail against allowing smoking. Also, many state public health agencies are also encouraging smoking bans in all high-density housing (HDH) areas, of which your condo is likely one. With both condo governing documents and state agency policy on their side, non-smokers will likely prevail, in my opinion. Good luck!

Leaky Toilet Noise Disturbs the Condo Peace. Shoddy Repair Work Disturbs the Owner!

N.H. from Alberta, Canada writes:

Dear Mister Condo,

I had issues with a continuous flow of water from my toilet. Although the flap is closed, it’s not filling water in the tank. I did not know that flowing noise had affected the units below me, & made complaints to the manager. Got a call ” someone is coming to check your water between 9-10am” That’s all. I thought they are checking each unit of our building due to murky water issues as posted in our mailroom & elevators. I let the guy in. I was surprised why he went to my bathroom fixing it. I told my kids, how did this guy knew about my toilet? Two days later, a lady phoned me if my toilet was fixed. I said No, it started to run again unless I close the rubber flap manually with my finger. She asked if she can send Environment ??? to come fix it. I said No, my son can fix it. Then I got an invoice to pay the condo a back charge of over $500.00 for 5 hours labor including 1 hour travelling. I relayed the message to the manager that I am not paying. I was not made aware of the complaints made, & did not specify what that guy was doing. Then for the weekend, I intentionally let the water run again all night to prove that the plumber’s work was not successful. They got complaints again. One lady came up & told me to shut off my toilet. Then the caretaker phoned that I should shut off the switch underneath my toilet which I did. Few days after, my son came & fixed it in 10 minutes time. I also read in their March 31 board meeting minutes that they found where the noise came from & the owner will pay. This is totally without my knowledge what was happening. My manager just went ahead & did her thing without telling me anything. Today, my manager left a phone message that it is a by law. Is she right? If not, I`ll fight it in court & go to the media Go Public. Thank you very much for your kindness on helping a senior like me. Thank you for responding & for your advice.

Mister Condo replies:

N.H., thank you for your letter and let me express how sorry I am that your situation was not handled better all the way around. You seem like a reasonable person who meant no harm and was very willing to use a “common sense” approach to fix a problem that you were largely unaware of having an effect on your neighbors. That being said, “common sense” and common interest communities don’t always exist together. Your by-laws define what is and isn’t acceptable. The reality is that you had a faulty toilet valve of some sort creating a noise nuisance for your fellow unit owners, who have the right to a peaceful environment as defined in your by-laws. The neighborly way to approach this would have been to alert you to the problem and ask you to fix it or offer to have a repairman come fix it at your expense. While I don’t agree with the customer service or lack thereof that you received during this little fiasco, it sounds like the problem is now resolved. That the good news. The bad news is that you are being stuck with a $500 repair bill for a repair job that didn’t work and that you don’t want to pay for. Here is where “common sense” goes out the window and the association’s governance documents will come into play. It is quite possible that the association has the right to dispatch a repairman to your unit at your expense. The only way to know for sure is to check your by-laws and see what they say about handling unit repairs, especially those repairs that cause damage or nuisance to neighboring units. It may be cheaper to simply pay this bill than try to fight the association. Perhaps you can offer to split the bill with them or ask them for a refund from the repairman since he didn’t actually fix the problem. The bottom line is that the repairman was hired by them but at your expense, as per association documents. They should expect that the repair was done properly and at a reasonable price. Neither are true. If they can negotiate a lower bill or a waiving of the bill for failure to perform the repair, you might benefit from the savings. If the dollar amount were a good deal higher, I might suggest you hire an attorney and fight it but at $500 it would cost more to fight it than just pay it. And keep your son handy for any other repairs that he can make so quickly. If his handyman skills had been made at the beginning of this problem, none of this would have happened. I wish you all the best!

Condo Parking Blocks Sidewalks

P.D. from outside of Connecticut writes:

Dear Mister Condo,

I own the upper condo with a renter in the lower condo. She threatened me with police and association complaint of me parking in my parking slot in front of sidewalks. 95% of parking slots are in front of the sidewalks. Does she have a leg to stand on?

Mister Condo replies:

P.D., I am sorry that you and your neighbor are at odds over the parking in your condominium. Surely, there are rules from the association as to what is and isn’t allowable. I can’t imagine the police getting involved on what happens on association property that the local municipality has no control over. If you have somehow blocked the entrance to her unit with your parking, she may have reason to call the police but other than that, this is an association matter. If you are violating association parking rules, then, yes, she has a leg to stand on and you may be fined and/or towed for violating the parking rules. If not, this is just an unfortunate situation between neighbors. If you can’t work it out amicably, you may be in for a contentious relationship with your neighbor but that may say more about her than you. Good luck!

Property Manager Running Condo Board Meetings

K.M. from Hartford County writes:

Dear Mister Condo,

Can/should a manager chair Board of Directors meetings. The Board of my Condo in Florida asked our manager to chair the meetings because they believe he can do it more efficiently.

Mister Condo replies:

K.M., that is a good question and I could go either way with my response. First and foremost, it is clearly the role and responsibility of the Board President to conduct and preside over the Board meeting. Governance documents require it and it is usually right in the description of duties for the role. However, perhaps the Board president is not familiar or comfortable with Roberts Rules of Order, has no interest in becoming a parliamentarian, or just isn’t comfortable actually chairing the meeting. I can see no reason that the manager could not assist the President by taking on the duties of running the meeting without actually having any authority or ability to cast votes. The authority is granted to the Board. The ability to vote is a Board right, not a Property Manager right. So, while I would be careful to keep a close eye on the situation, I have a hard time telling you the practice should not be allowed. It is quite possible that the Board could not properly carry out its duties without the Property Manager’s assistance and guidance at the Board meeting. However, if there is any sign that the Property Manager is influencing vote outcomes or doing anything else that is preventing the Board from truly functioning independently, I would suggest ceasing the practice. Additionally, I would hope the Board President is learning from the Property Manager’s leading of the meeting and can, at some point, resume the duties of running the meeting. Running a Board meeting is such a rudimentary duty of being Board President that I would have to question the long-term leadership ability of a Board President who wasn’t eventually up to the task. All the best!

Former Board Member Making Life Difficult for New Board and Condo Contractors

M.M. from Windham County writes:

Dear Mister Condo,

A resident is prone to harassing our contractors for landscaping and snow removal. He is very resentful that he is no longer on the board and sends us lengthy emails about their shortcomings. Years ago, he used to enjoy kickbacks from contractors who no longer work here. He also removes branches, shovels snow and blames us for his hernia. Our manager reminded him that he is not to do work on the common areas, and he is livid. So far, our new board is calm, but he is accusing us of horrible crimes, threatens to expose someone’s DUI arrest and demands to see contracts under CT’s FOI rule. We know FOI does not govern this, but what is the specific law that does govern a privately-held condo association? How do we protect ourselves?

Mister Condo replies:

M.M., it certainly sounds like you have your hands full with this unit owner. The Common Interest Ownership Act is very likely the law that gives him the right to inspect any and all association records, which includes contracts that the association has entered into. I am not an attorney so please accept my advice as friendly and not legal. While the association does need to provide information as requested, it does not need to do so for free. Reasonable fees for preparing and copying the documents can be charged. Again, there are limits so check with your association’s attorney before deciding how much to charge for the record copies. As for protecting yourselves, you simply need to practice good governance and realize that you are officers in a not-for-profit corporation. You are bound by your own governance documents and state law. I always recommend that Board members receive adequate training and in our state, the local Chapter of CAI offers an excellent program called “Condo, Inc.” where Board members can learn the basics of good community governance. In fact, there are three programs offered this next year. You can lean more by clicking the following link: http://www.caict.org/events/event_list.asp?show=&group=&start=10%2F31%2F2017&end=&view=&cid=18225 Good luck!

Condo Association Not Paying Bills!

H.F. from Hartford County writes:

Dear Mister Condo,

Help! My condo association is not paying its bills! What can be done?

Mister Condo replies:

H.F., that is shocking! If your condo association is unable to pay its bills, it is likely a sign of a very large problem. The annual budget should take into account all of the likely expenses for the year and offset that expense with common fees and assessments if needed. If many unit owners default on their common fee or assessment payments, the association could find itself out of money when the bills come due. That can lead to many problems for the association, especially if a vendor sues the association. A court of law could order the association into receivership, where a court-appointed receiver (usually an attorney) takes over the finances of the association and will issue assessments and take other actions to get the association back on solid financial footing. Let’s hope it doesn’t come to that. Ask to see the books of the association and see if you can figure out what has gone wrong. Encourage the Board to raise the funds they need to pay their bills. The alternatives are dire. Good luck!

Can the Board Temporarily Restrict Use of Parking Spaces?

S.L. from outside of Connecticut writes:

Dear Mister Condo,

We have 8 parking spots on the side of our units. We need them to be vacated for snow removal and sometimes for landscaping. We give them notice about having the work done or that the snow removal is coming to move snow. Those units are getting upset that they are the only spots that are always affected. One of the units stated they are going to sue the board. Can they?

Mister Condo replies:

S.L, in the litigious society in which we live, just about anyone can sue the Board. Whether they will prevail or not is the question. My guess is that they would lose if it came to that unless they actually own the parking spaces, which is highly unusual in most condos. Assuming the parking spaces are commonly owned by the association and under the direct control of the Board, they can be used or taken out of service as the Board sees fit. Check your governing documents to be sure but my guess is that the Board is correct to use the parking spaces as they see fit. All the best!