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Condo Cannot Enforce Rules on Land it Doesn’t Own

J.J. from Michigan writes:

Dear Mister Condo,

Our condo association rules state “No Signs of any kind with the exception of one For Sale sign”. With that being said, since all of our roads are county roads and not private roads, can the association stop me from putting political signs in the county road right of way in our subdivision? This is property that is not owned by any association member but the county right of way that is owned by the county road commission. Thank you! I need a quick answer.

Mister Condo replies:

J.J., quite simply the condo can only enforce rules on land that it owns. If you are certain that they don’t own the land you wish to plant signs on then they cannot enforce their rules on that land. However, the land owner of the land in question may have their own rules about what the public can and cannot do on that land. Have you checked with the county road commission? Violating your condo rules can get you a warning or a fine. Violating municipal rules could get you arrested. Better to be safe than sorry. Find out who owns the land and what the rules are for posting political signs before you take any other action.  All the best!

No, the Condo Reserve Fund is not the Board’s Cookie Jar!

B.C. from outside of Connecticut writes:

Dear Mister Condo,

Is a Reserve Fund to be used for only the intent that describes the Reserve Fund or can the money be taken and used elsewhere for replacement of an item normally taken care of by maintenance. This item is an accessory item and has no bearing of the intention of the Reserve Fund. It is just that this particular fund has an excess in it therefore has become the resource for the project.

Mister Condo replies:

B.C., thank you for the question. By it’s nature a Reserve Fund should never have “an excess in it”. Reserve Funds are for wear and tear that is occurring on the common elements each and every day. There should always be money in the Fund as the wear and tear occurs daily and the common element replacement is a known future expense of the association. Having money in the Reserve Fund to pay for those expenses is critical and vital to the financial well-being of the association. However, it is tempting for Board members to “borrow” from the fund to pay for other items the association needs now. Such would seem to be the case for your association.

As you can imagine this is a really bad idea. For the most part there are no laws protecting the Reserve Fund. They are an asset of the association and, as such, under the Board’s control. While the Board has a duty to protect the association, which includes protecting the Reserve Fund, they also have to be practical when it comes to the association’s expenses. It is unfortunately quite common for Boards to tap into their Reserve Fund to pay for non-Reserve Fund items. It’s just too easy and too tempting to do so. If the Board has an immediate plan to return the money, there may be no harm and no foul. However, these good intentions are often overlooked when it comes to increasing common fees or asking for a Special Assessment to cover the money borrowed so it doest get replaced and the association’s once healthy and adequate Reserve Fund becomes underfunded, creating a swath of problems for future association members.

The best policy for the reserve Fund is one of custodial guardianship. The Reserve Fund should be used only for the items it was designed to protect and maintain. Any extemporaneous projects that arise should be paid for with other funds, i.e. special assessment or increased common fees. If your Board has no plan to return the money to the Reserve Fund, you would be wise to raise the issue at an upcoming meeting. If your Board members are not willing to perform their fiduciary duties of protecting the association’s assets, such as the Reserve Fund, it is time for some new Board members. All the best!

Condo Parking Space Promised but Not Delivered

S.S. from New York City writes:

Dear Mister Condo,

I live in a 6-unit new construction condominium in NYC. The builder who I purchased my condo originally told me that even though my unit does not come with parking spot, there was a spot on the side of the building that could be converted to a legal parking spot. Recently I wanted to do this and told the board I would incur all the cost associated with the legalizing that spot.The condominium board of directors voted and denied me a spot. Can I still legally do it without their approval by hiring an attorney or something?

Mister Condo replies:

S.S., I am sorry for your predicament. I can tell you that most questions I get that begin with someone telling you something without you having it in writing don’t end well. The statement that “your unit does not come with a parking spot” is a second telltale sign that this isn’t going to end well for you. You can certainly hire an attorney and see what can be done but, from what you have told me, it doesn’t sound like you will have a case to make the Board release the parking space to you. Perhaps you can rent the space from the association? That might make more sense than spending money on a lawsuit that, to my eye, shows little merit. I am not an attorney and offer no legal advice in this column. You should certainly speak with an attorney for a legal opinion but if the attorney says you don’t have a case, I wouldn’t be too surprised. Always, always, always get it in writing. Good luck!

Noisy Condo Neighbors Refuse to Be Quiet 

P.C. from Maryland writes:

Dear Mister Condo,

I am a renter who receives a government subsidy. The neighbor above me owns her condo. She is loud. Stomps over my head drop objects constantly. Every night until 1:00 am. I sent an email to manager of association, who contacted the owner of my unit. I complained to housing i really want to break my lease. The owner refuses. The association manager says she’s going to,send a letter. I have a police report. I have to go to court to process my complaint to have a noise ordinance enforced. I have a disability. Should i call legal aid? Get a case going? This association i heard is not good. They have issues keeping up the property. I cant wait to leave next year. It wont come fast enough!

Mister Condo replies:

P.C., I am sorry for your troubles. It sounds to me as though you are doing just about all you can do. If your upstairs neighbor is an inconsiderate person and refuses to obey the association’s rules on noise, your next steps are legal, which it sounds like you are taking. Understand that the association can only enforce its own rules. If you have made a complaint of a rules violation, the next step is for the Board to review the complaint and take whatever action they can against the violator as outlined in the association’s governance documents. This is typically a warning letter, followed by a fine or fines for multiple violations. That is really all they can do. If laws are being broken, i.e. noise ordinances, then you can follow through with legal action, which you are doing. While your disability may impede the ease of making such a complaint, you are free to hire an attorney to represent you if need be. If Legal Aid will handle that for you, by all means, have them do so. Ultimately, I think your plan of leaving the association is a good one. Hopefully, your new home will come with better neighbors. All the best! 

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!