Monthly Archives: June 2018

Florida Rental Condo Sold with Previous Owner Keeping Future Rental Deposits

S.C. from Florida writes:

Dear Mister Condo,

We recently bought a condo in Florida. The previous owner has booked rentals through to next year. Is he entitled to keep those deposits even though he does not currently own the condo?

Mister Condo replies:

S.C., it depends on how you negotiated the sale and purchase of the condo. Are you physically living there or is it a rental property for you as well? Are the future leases in your possession or the previous owner? I can’t imagine any situation where an attorney handling this transaction would have let such a potential problem go unanswered during the closing process. If you handled this transaction without the advice of an attorney, you will very likely need one now as the folks expecting the rental property to be available for them will most certainly expect that their deposits will be used towards payment of their rent for the property. My advice is to review the purchase and sale agreement and see what it says about these previous deposits. If it looks unfavorable to you, you should get in touch with a qualified attorney who can best advise you what your next steps should be. Good luck!

Can the Board Enforce a Weight Rule Against Tenant With an ESA?

A.G. from outside of Connecticut writes:

Dear Mister Condo,

I am on the HOA Board of our 11 unit complex. One unit is being rented out to a tenant with a pit bull. The HOA knew the tenant had a dog but only recently started receiving complaints about the dog. It has jumped on other residents, barks all day, and has tried jumping on other resident’s dogs. The HOA also was informed the dog is over our weight restrictions. When served with a violation notice the tenant gave a letter stating they are allowed one ESA. Can the HOA continue to pursue action against the dog being over weight limits? And can the HOA do anything about the dog being a nuisance? The owner of the unit is siding with the tenant and wants them to keep the dog. But now other residents, including the neighboring unit, are afraid of being attacked by the pit bull. I don’t think the ESA is exempt from all HOA rules but it seems the tenant is hiding behind that ESA letter.

Mister Condo replies:

A.G., the winds of change are blowing on Emotional Support Animals and your tenant may be on the losing side of the latest court rulings. Also, the HOA may be able to enforce rules about breed or weight restrictions based on your local laws. However, this is not a “do it yourself” project. Violating the rights of any unit owner or tenant with a legitimately documented ESA is a potential lawsuit waiting to happen. You are very well advised to seek the advice and guidance of a locally qualified attorney who is verse in this area of law. Otherwise, your small association could find itself on the receiving end of a lawsuit. Based on what you have shared with me so far, it sounds like both the tenant and unit owner are ready to do battle so tread lightly and get the legal advice you need before you take any action. Good luck!

Is Condo’s Shared Stairwell a Limited Common Element of Common Element?

L.B. from Hartford County writes:

Dear Mister Condo,

My building has 16 units and the units are ranch style so there are units above and below. For every 4 units (2 up and 2 down) there is a shared stairwell behind the build for the 4 units to use as a rear exit. Note this is the only 2nd exit for the upper units but is a 3rd exit for the 2 units below as the lower units also have a walk out garage. Is the shared stairwell considered a limited common element or is it considered a common element?

Mister Condo replies:

L.B., regardless of how the stairs are used, they are a common element of the association. The stairwell is not owned by any one unit owner and are the association’s responsibility. Unless the condo docs state differently, they should be treated as a common element in my opinion. Is there a reason for the distinction? Is there a question of who pays for the maintenance and upkeep of the common element? I am not really sure I understand why it matters as the association is charged with the maintenance and upkeep of the stairwell. All the best!

Condo Roof Leak Creates Insurance Mess for Unit Owner

G.G. from outside of Connecticut writes:

Dear Mister Condo,

Our condo roof is over 20 years old (I believe 23 years). Was already patched once when we first started getting water two weeks ago. With more rain it has begun to leak into the ceiling and wall in our kitchen/dining area (shared with a neighbor who currently isn’t having any water issues). The ceiling drywall was so saturated it began pouring into our unit through the seams of the drywall. We tore out the drywall. Damage appears to be very extensive. Our association doesn’t want to file a claim with their insurance. They called roofers (for the second time) to come patch the flat roof over the area. We called contractors for water damage out for an estimate. Who is going to pay for all of the damage? As of now it looks as though the wall behind our cabinets is damaged, cabinets are wet, and the subroof is also saturated and water is still pouring in. Since this wasn’t caused by a storm or anything we did as the unit owner, does that make the building/association liable?

Mister Condo replies:

G.G., I am sorry for your troubles. Water intrusion is a nasty, messy situation that requires professional help to remedy. Typically, your insurance would pay for the damage done to the interior of your unit. In fact, your insurer may be the ones who go after the Board to help pay for the damage, especially if it was caused by negligence to maintain. The Board is not under any obligation to submit an insurance claim. However, that does not free them from the responsibility of repairing the roof (which they did) and the possible claim against them for the damage caused to your unit. My best advice to you is to work with your insurer to collect as much money as possible to cover your loss. You might also want to involve an attorney to see what other legal rights or claims you may have against the association. My guess is that this might take some time to remedy but you will get your damage repaired without too much more than your deductible as an out of pocket expense. Good luck!

2 for 1 Condo Parking

H.Y. from outside of Connecticut writes:

Dear Mister Condo,

Can I park my car and a small motorcycle in my underground parking spot?

Mister Condo replies:

H.Y., it depends on how your parking lot rules read. This is a common issue all across the country. Unit owners feel they can park more than one vehicle in their parking space. If the Board allows it, no problem. However, if the association’s rules on parking state that only one vehicle may be parked in any one space, and the Board elects to enforce that rule, then you cannot. If your parking rules are silent on the subject or have no limits on how many vehicles are allowed per parking space, you might be within your rights to do so. However, the Board can simply institute more specific parking rules that would limit your ability to do so. Typically, one vehicle per spot is the rule. If you and enough fellow unit owners wish to change the parking rules in favor of allowing multiple vehicles per space, you can ask the Board to pass a rule allowing you to do so. All the best!

Condo Money Dries Up, Irrigation Sprinklers Turned Off!

G.O. from outside of Connecticut writes:

Dear Mister Condo,

My condo association decided to turn off the sprinklers because they went over budget with other maintenance. Now I am losing valuable plants that I’ve put in over the years. Can they do this?

Mister Condo replies:

G.O., I am sorry that you are losing your plants and I am sorry that your condo association has decided to save money be turning off the sprinkler irrigation system. As the democratically elected leaders of the association, the Board often finds itself in a difficult position when it comes to managing the association’s finances, especially when those finances are tight. I am guessing that the underlying problem here is common fees that are too low. There really isn’t any other reason that a maintenance project should cause a deficit to something as basic as operating a sprinkler system. The short answer is that, yes, they can make the decision. As a unit owner, you can petition the Board to rescind that decision but there may simply be no money to operate the sprinkler. Ideally, you will encourage them to raise the common fees so there is enough money in the budget for the Board to fulfill all of its duties and provide all of the services unit owners expect. Good luck!

Who’s Responsible for Noisy Condo Air Conditioner in Newer Condo?

E.H. from outside of Connecticut writes:

Dear Mister Condo,

I purchased a new condo in 2014. The HVAC unit is situated above my condo. Recently, the unit vibrated and produced a pounding sound such that I thought that there was a rock band playing on the roof! This pounding went on for four days. The vendor indicated that this vibration was caused by twin compressors that exchanged power from one to the other during the summer season to ensure that the HVAC system functions properly. This did not occur last summer. Because I was not told about this occurring when I purchased the condo, does it appear that I have any leeway in pursuing this issue with the builder.

Mister Condo replies:

E.H., I am not an attorney so I cannot offer any legal advice here. I am sorry for your problem but I am doubtful that you will have any success in pursuing this issue with the builder. Have you looked at the warranty for the air conditioner? Chances are that it is already out of warranty but you should still check. Next up is looking at solutions to the sound problem. You may need to have an HVAC engineer make suggestions and you may need the Board’s approval to implement any changes that will change the exterior appearance of the unit. Are you the only unit owner with this problem? If others are experiencing the same issue, it might make sense to coordinate the repairs / replacement of these noisy units. HVAC, like many technologies, advances at a rapid rate. Your 4 year-old unit may have a smaller, quitter, more efficient replacement that might just save you and other unit owners money for years to come. Good luck!

Where Do I find Lawyers Specializing in Community Association Law?

D.C. from Fairfield county writes:

Dear Mister Condo,

Is there a listing to find lawyers who specialize in Condos in my area?

Mister Condo replies:

D.C., you bet there is! Your friends at the Connecticut Chapter of the Communities Association Institute (CAI-CT) have published a great directory I am happy to commend to your use. The section on attorneys is here: https://www.caict.org/page/Directory?#Attorney%20-%20Law%20FirmsFollow the link and see the many qualified legal professionals in your are who specialize in community association law. Happy hunting!

Condo Board Depletes Reserves Without Plan for Replacement

K.C. from Long Island, NY writes:

Dear Mister Condo,

I live in a 40-unit condo community in Suffolk County, Long Island that was built 8 years ago. The sponsor upon his departure left $25,000.00 in Reserves with the recommendation that we continue to increase our Reserves to $35,000. Our present Board recently depleted all Reserves for the rehabbing of the wood on 2 buildings. According to our By Laws, the Reserves are to be used for roofs, roads, curbs, bulkhead. Living in an area susceptible to storms, floods and hurricanes – this makes me extremely nervous. Is there a source I can go to for laws & information on HOA Reserves for NY condos?

Mister Condo replies:

K.C., you are right to be concerned about how the Board is using the Reserve Fund and any of the association’s resources. A substantial Reserve Fund, or lack thereof, is often the difference between success and failure in condominium communities like yours. Unfortunately, the state of New York has been largely silent on the issue, leaving unit owners such as you, to review the association’s governance documents to make a determination as to what, if any, provisions exist that require the association to conduct and maintain a proper Reserve Study and to then properly fund the Reserve Fund so that the unit owners are protected against future maintenance costs which will surely arrive. When the community is not prepared for those expenses, unit owners get his with Special Assessments and/or increased common fees to carry the debt created by an HOA loan used to fund the repairs. It is truly a “pay me now or pay me later” scenario for unit owners. My best advice is for you to review your governance documents and see what they say. Most allude to having a Reserve Fund but few have a required contribution. You may suggest the association adopt a Reserve Fund annual contribution either based on a Reserve Study or even 10% of revenues collected. This will require an increase to common fees but it will help the association survive in the years ahead. You might also suggest the association hire a Reserve Study specialist who can best advise the association of how to plan ahead and save now for tomorrow’s known expenses. It might be an additional expense to the association today but it will provide great peace of mind and fiscal stability to the association in the future. All the best!

Neglected Condo Roof is Only the Tip of This Problem

M.L. from Massachusetts writes:

Dear Mister Condo,

I’m in a condo association of two just outside Boston. We split common expenses 60(upstairs)/40(me). We need a new roof and upstairs neighbors are stalling and finally admitted they don’t have the money. This repair is long overdue and I am concerned that deferring could lead to damage. What are my options?

Mister Condo replies:

M.L., I am sorry for your problem. 2-unit condos like yours can be the perfect arrangement for some and a horror show for others. Your situation, I am afraid, is a bit of a horror show. I am not a lawyer and offer no legal advice here. However, I suggest you speak with an attorney from your area to see what other legal remedies you might have available to you. Your only real option, in my opinion, is to sue the other owner. But that won’t necessarily solve your problem seeing as you already know they don’t have the money. The truth is they can’t afford to live in this condo since they can’t shoulder the financial burden of doing so. In my opinion, your best bet is to sell and leave this problem to someone else. If you wish to fight the good fight and stay, you can either live with the problem roof or you can begin a lawsuit that will likely end in them losing their home through foreclosure and might still not get you the new roof you need. That is a very ugly, complicated, and nightmarish way to live for the next year or two that this would take to unfold. If it were me, I’d put my unit up for sale and spend my time and energy elsewhere. Good luck!