Monthly Archives: October 2018

Board Member Involvement During Condo Association Developer Transition

K.W. from New Haven County writes:

Dear Mister Condo,

The Builder still has control over the association until which time a certain number of units are taken ownership of. However, it was allowed for one homeowner to have a seat on the BOD which consists of 4 in total at this time. My question is just how involved this HO BOD should be involved with our vendors, vendor RFQs and managing the community when we have hired and pay a management company to do this. Thank you!

Mister Condo replies:

K.W., developer transition periods are a very special time in the lifeline of a condo or community association. Board Members may have a representative seat on the Board but until the association is released from developer control they typically have very little to say in the day-to-day running of the association. However, neither does the management company unless the developer has empowered them to make those decisions. Involving a volunteer Board Member in the decision-making process is good politics and may even provide this Board Member a front row seat in seeing how the decisions are made. His or her involvement would be at the discretion of the developer. All the best!

Condo Association Looks to Remove Use of Common Elements from Delinquent Unit Owner

C.S. from New London County writes:

Dear Mister Condo,

If an owner who has NOT paid Condo fees for a considerable amount of time (4yrs), can the condo association revoke the owner from parking in their assigned parking spot? Also, can the association revoke the privilege of having a storage unit?

Mister Condo replies:

C.S., typically speaking, the association may not remove any of the delinquent unit owner’s rights. In fact, if the association takes such action against the delinquent unit owner, they will very likely be sued by that unit owner. Delinquent common fee collection is separate from unit owner’s rights. There is a process that the association should be undertaking to collect this serious delinquency. That involves collection letters, demands, liens, and, ultimately, foreclosure against the unit. There are many collection firms and law firms in our state to assist the association. Do it the right way, and you’ll get your money. Do it the wrong way and the association will likely end up getting sued. Step carefully and get the money. Good luck!

How Can I Buy a Deceased Owner’s Condo?

J.S. from outside of Connecticut writes:

Dear Mister Condo,

How can I buy a deceased owner’s condo?

Mister Condo replies:

J.S., deceased owners have their property disposed of according to either their will or the probate system. You would buy this property pretty much the way you would buy any other property. The challenge may be in determining exactly who the owner of the property is. If there was a mortgage on the property, the bank holding the mortgage may be the eventual owner. If there was no mortgage and the property were left to a family member via will or probate, the new owner will eventually be known through property records and you could contact the new owner to express your interest in purchasing the unit. If there were any other lien holders on the property (the association, for instance if there were unpaid assessments or common fees) the unit could end up in their hands. Again, you would contact them and let them know of your interest in purchasing the property. It is quite possible that any of these entities will simply use a real estate agent to sell the property. If you see the “for sale” sign go up, you know what to do. Good luck!

Unit Owners Informally Question Board Members in Condo Corridors

J.L. from outside of Connecticut writes:

Dear Mister Condo,

The president and I are new to the board. We live in a 12-unit building where the unit owners were used to freely going up to past board members doors and address whatever concerns they had. The president and I feel we have a management company that we pay and that the unit owners should address any issues with the management company instead of us. We’d like to post a note addressing the unit owners that going forward they need to contact the management company. Please let me know your thoughts?

Mister Condo replies:

J.L., since the previous Board had a very “open door” policy regarding unit owners addressing concerns, you have inherited their management style, like it or not. The way to correct it is to let all unit owners know that there has been a change in Board members and that new policy is in place. In fact, I would argue that the old policy was fraught with potential disaster, including Board members making “on the spot” decisions that could come back to haunt the association. The proper procedure for unit owners to bring their concerns to the Board is to contact the Board via the Property Management company or in writing so their concerns can be addressed at the next scheduled Board meeting. That way there is written action (Minutes) to document the concern and what action, if any, was taken. Casual conversation in the corridors of the building is nothing more than that. In a small association like yours, I would guess close to half of the unit owners serve on the Board so it is not surprising that such an informal approach was adopted. However, that doesn’t mean it was correct. I hope you can manage it to your liking in the future. Good luck!

New Condo Trustee Finds Evicting Long-Time Owner Uncomfortable

L.P. from Middlesex County writes:

Dear Mister Condo,

I am a first-time home owner. For the first 2 years I lived in my unit I tried to be active in my (small) HOA, but the main Trustee never had time for me and HOA meetings were always cancelled. When he sold his unit, he hurriedly gave me a “crash-course” on duties a week before the closing. It wasn’t until weeks after that I realized he had conned me. He left me with unpaid bills (some a year old!), angry contractors, and one unit egregiously in the hole to the HOA. After weeks of talking with my neighbors, I got them to agree to a payment plan: they agreed to pay a minimum of their balance every month for 6 months—enough time to figure something out—and after 6 months they had to pay in full every month. A year later they are still only paying the minimum and have become even more in debt to the HOA with back fees and Reserve Studies. A friend’s wife—who is a lawyer—is helping me out with the lien process, but my question is this: what should I expect? This family (a retired couple and their adult son) have lived here for 20 years and now I (this young newcomer) is going to be threatening foreclosure. We all live in the same small building, run into each other often, and share a common stairwell. I feel terrible that I’m the one that’s going to be “evicting” them, but obviously they cannot afford to live here—we have not been able to do basic, needed maintenance for years because of their finances.

Mister Condo replies:

L.P., heavy is the head that wears the crown, my friend. People who purchase into an HOA do so at their own choosing. They are aware of the fees and costs associated with owning a home, condo, or unit within an association. While you are the embodiment of the HOA as it takes action against them for defaulting on their duty to pay their fees in timely fashion, they are also the makers of their own destiny. They need only look in the mirror to see the folks responsible for their demise. In fact, it is you they should be thanking for carrying their weight as they neglected to pay their fair share over the years. Where did they think the money would come from if they didn’t pay? Did they not realize that they were in fact forcing their neighbors to pay more than their fair share because they weren’t willing or able to pay theirs? You asked what should you expect? That’s really hard to say at this point. My guess is if these folks are insolvent, they will eventually be foreclosed upon and you will sell their unit and hopefully find some new owners who will fulfill their obligation to pay their fair share of the common fees. Eventually, the association should regain financial strength and get itself back on track. That is the nature of HOAs. The HOA is a not-for-profit business, the key word being “business”. Business is conducted under the terms of business agreed to by all parties. As long as those terms are met, the business thrives. When/if a party defaults, the business protects itself by exercising the clauses that make it a business, no more, no less. You are on the right track to getting back to business. Good luck!

Sample Condo Co-Ownership Agreement

S.E. from outside of Connecticut writes:

Dear Mister Condo,

Hi I am looking for a sample co ownership agreement for two or more people owning a single condo unit.

Mister Condo replies:

S.E., co-ownership agreements are legal documents and they are not “one size fits all” as there are different laws in each state that would need to be taken into consideration before preparing such a document. Also, since I am not an attorney, I don’t offer any legal opinions or advice here. On a friendly note, I did a quick internet search of your query and found a great document at one of my favorite internet legal advice websites, nolo.com. Check out: https://www.nolo.com/legal-encyclopedia/joint-property-concurrent-ownership-32229.html. This article deals with various types of co-ownership and co-tenancy agreements. It might head you in the right direction. The best advice I have for you is to work with a locally qualified attorney who can give you the best answer for your part of the country. Happy Co-Ownership!

Condo Developer Refuses to Sell or Properly Maintain Association Amenities

R.M. from outside of Connecticut writes:

Dear Mister Condo,

My condo complex was built about 25 years ago. The developer plans to build housing on the site and has retained ownership of the amenities such as the clubhouse, pool and tennis courts. The clubhouse is an unusable disaster (even has boarded up windows) and the tennis courts are in very poor condition. The pool is questionable but is used and maintained in the summer months only. After that it is an uncovered green swamp I get to look at. My window overlooks the pool. The current condo owners fund these facilities (in my opinion way too expensive) and yet have no control over our amenities. Our management company also manages the amenities that we don’t own. I see this as a conflict. Can anything be done to make this developer turn over the amenities?

Mister Condo replies:

R.M., I am sorry for the lack of properly maintained amenities at your association. Unfortunately, since the association does not own the amenities in question, there is very little that can be done. You can review the governance documents and developer agreements to see if there are any dates by which the association needs to have these amenities turned over or sold to them. Or the association can try to buy these amenities from the developer outright. However, the developer may be under no obligation to sell them to the association (or anyone for that matter). These are all important issues for a new community and buyers into such a community should have a full understanding of what is and isn’t included. Clearly, access to amenities owned by a third party (the developer) may be included but are subject to the whims of the amenity’s owner. You can certainly speak with the association’s attorney to see what legal remedies are available to the association but unless there is contractual paperwork that has been violated I can’t think of any other legal grounds whereby the developer can be forced to turn over the amenities. All the best!

Condo Crime Unaddressed by the Condo Board

J.S. from California writes:

Dear Mister Condo,

We live in a condo complex in Newport Beach, California. We had number of incidents violated on our personal property, with 5 Police Reports so far. This included slashed tires, a window shot out in our office, my electric scooter stolen, my wife’s car broken into and everything taken, and most recently, all the air let out of our tires, even while parked in our private covered carport.

The Board and Management Company refuses to get involved, saying they don’t get involved in neighbor to neighbor disagreements. However, these are not simple disagreements, but vandalism.

Mister Condo replies:

J.S., I am sorry for all of the crime that is occurring in your condo complex. I should point out that the police are the people you call for crime, not the Board or Management Company. When laws are broken, it is the responsibility of law enforcement (the police) to handle the matter. You should also notify the Board and Management Company as they may wish to alert other residents of the dangerous activity occurring on association grounds.

Other condo complexes that have experienced high crime have done things like “Neighborhood Watch” or similar programs. I am curious as to why the Board and Management Company claim that these crimes are “neighbor to neighbor disagreements”. Is there proof that fellow unit owners are committing these crimes? Neither the Board nor the Management Company are law enforcement bodies, they simply govern the property as outlined in the governance documents. Depending on your local laws, they may have a duty to inform residents that crime is occurring on the property. Hopefully, the local law enforcement personnel can help you stop the criminal activity. Good luck!

Condo Unit Owner of Record has the Voting Privileges

L.S. from New Haven writes:

Dear Mister Condo,

When a unit owner turns ownership of their unit to a son or daughter but still lives there with life use. Who gets to vote on budgets or elections for that unit, the owner or the person still living there under life use?

Mister Condo replies:

L.S., typically the unit owner is the one who holds the power to vote. You need to look at the association’s governance documents for further qualification but most would state that the vote is assigned to the unit owner of record. It is also possible for the unit owner (son or daughter, in this case) to give proxy to the resident to vote. It is really at the discretion of the unit owner of record at the time any vote is taken. All the best!

Which Condo Governing Documents Take Precedence?

K.W. from outside of Connecticut writes:

Dear Mister Condo,

What do you do when you have conflicting master deed, bylaws, and R&R’s? Which one would take precedence?

Mister Condo replies:

K.W., that is a very interesting question and one which I have heard before. However, since I am neither an attorney nor an expert in community association law in your state, I must refer you to local counsel, preferably an attorney who specializes in community association law. It is most typical that the Master Deed would take precedence but if your by-laws are part of the Master Deed, there is a conflict within the Master Deed as well. As you can see this is a matter for legal minds to sort through. I think it would be a good investment for the community to get this matter settled with legal help as soon as possible. All the best!