Category Archives: Buying

Must I Reveal Possible Special Assessment to a Condo Buyer?

R.R. from Hartford County writes:

Dear Mister Condo,

I recently was advised that our Board has started to address and extremely large repair required by the state. It has been mentioned in the Condo Minutes but no formal acknowledgment or assessment has been determined. I would like to run for the hills without telling the buyer and sell my unit before the news if official. Can I do that?

Mister Condo replies:

R.R., special assessments are very official and legal levies placed against the unit owner of record once ratified by the Board and the association. Once levied, they are the responsibility of the unit owner of record at the lime the assessment was levied. As a unit owner, you would receive notice and a payment date or payment schedule depending on how the assessment was levied. A “mention” in the Condo Minutes about an upcoming assessment is not the same as a levy of assessment. You would need to reveal (and pay off) an assessment as a term of your sale. You are not bound to reveal the possibility of an assessment. However, if the assessment has been announced and ratified and is not revealed to a potential buyer, you would very likely be sued for the assessment by the new buyer. If you are using an attorney for the sale, you would do well to explain what is going on and make sure you don’t set yourself up for that to happen. Good luck

Pre-Sale Special Assessment Assigned to Current Condo Owner

K.K. from Florida writes:

Dear Mister Condo,

When I purchased my condo in 2014, I was told no upcoming assessments. Surprise! Last August, I was told assessments for work done will cost me $15k or $155/month for 10 years. Now, I am selling my condo, can the remaining monthly 155 be transferred to buyer?

Mister Condo replies:

K.K., I am sorry you got hit with a “surprise” Special Assessment. In my opinion, there are no “surprise” Special Assessments unless the community experienced an unexpected and/or uninsured loss or a lawsuit that requires an unforeseen infusion of cash. If the assessment were for something as common as a replacement of a roof or to repair old decks or sidewalks, it was no surprise. That being said, the assessment is made against the unit owner at the time of the assessment. That was you. The association has an interest in you making the payments, not the new owner. You will very likely have to pay off the assessment before you can sell the property. It seems unfair but that is how it works. I hope your new home has no surprises like this for you. Good luck!

HOA Board Ain’t Fixin’ Nuttin!

R.M. from outside of Connecticut writes:

Dear Mister Condo,

4 months ago, I purchased a duplex which has 3 buildings and 6 owners. I had a hard time getting documents during the sale and did not understand the dynamics involved. The first email I got from the treasurer was on the day the fees were due. Our first meeting when I met the other owners was a nightmare. The president has been in position for 20 years and has Alzheimer’s so her daughter had appointed herself to the position. The treasurer was appointed by her, not vote, and the secretary had been behind 6 months in fees which they were trying to cover up. When I brought up concerns about the outside of our building, I was yelled at by the President’s son-in-law and told “we ain’t fixing nuttin, we got no money!” Then my neighbor brought up a repair not done properly and he stood up screaming and swearing at her and everyone started fighting. I asked for the bylaws and I was told by the president to find them myself. She doesn’t have them.

A few weeks ago, the fascia that needed repair was hanging off of my roof. I called the president and son in law started screaming and threatening me and said we have no money to fix it. I mentioned the Reserves that we should have had when I moved in, and both him and the treasurer admitted it was fudged to make the sale happen and accused my realtor of fraud. I had her call them and the next day the son-in-law apologized and paid out of pocket to have the fascia repaired.

They had previously called a special meeting to discuss the budget so I told them I did not want the son-in-law there as he has no business there; they agreed. The meeting started off ok until we brought up questions about missing payments from a couple of owners. We started getting bullied again. When the argument was brought up about the fascia I defended myself telling what the son-in-law said to me. He came running down the stairs screaming and swearing and threatening me again and threw me out of his mother-in-law’s house. I called the police.

I want to have the President, Treasurer, and Secretary removed by law for keeping false books, hostile environment, favoritism, harassment and negligence. If I have solid proof (which I do), will I be able to charge the association for the attorney since it’s in the best interest of the owners? It’s the board who caused all of these problems.

Mister Condo replies:

R.M., your tale of woe reads like a comedy of errors. I am glad you got your fascia replaced but the rest of this tale is a nightmare! This is a small homeowner’s association (6 units if I understood your opening statement). Small associations face the same challenges as larger associations but have far fewer resources to handle the issues. A functioning Board is a good start but there are legal remedies available to you. I want to ask you about your own purchase into this association. Did you use an attorney? Did the attorney review the governance documents? They can’t go missing as they are part of the closing process. Of course, if you somehow waived your right to these critical documents in an eagerness to make the purchase, you are experiencing a major case of “Buyer Beware!” It sounds to me like there is awful lot of impropriety going on here. You need to speak with an attorney, which I am not. I offer friendly advice; an attorney will offer you legal advice. You may end up suing the association, individual officers, anyone else associated with these misdeeds in an attempt to get the association back on sound footing. By the way, 6 owners don’t guarantee deep enough pockets to do that. In fact, you may be throwing good money after bad in an attempt to correct this problem. Your attorney can better advise you if you can include your own legal fees in any litigation but winning the litigation is just the beginning. You need to collect from these folks, who clearly don’t have the money from what you have told me. If it were me, I think I would try to sell and cut my losses. Otherwise, be ready to deal with an ongoing problem for months and even years to come. Keep the police on speed dial because these folks clearly have no idea what they are supposed to be doing and will likely continue doing what they have always done. Good luck!

Condo Developer Transition Litigation Nightmare

N.P. from outside of Connecticut writes:

Dear Mister Condo,

I am in a large condo association that was in litigation with the developer when I purchased many years ago. We were never told of the litigation, and strangely enough had no problem getting our mortgage, which was not the case with many potential buyers from what I have been told. Over the years, the board, which is a veiled one, never fully disclosed the extent of the deficiencies until 6 years after the litigation ended. Now every member has been told we will be assessed potentially over $60,000! (They have not done bids yet for the work.) The board will not allow us to see a cost breakdown as to how the engineering company got to this amount. The property manager has also said that in times of litigation open meetings are not required even to ratify any binding action. The minutes of open meetings cannot be accessed because this management company has said anything before their time (3 management companies in 7 years) is missing. To top it off, there was a recent election in which the property manager was bad mouthing certain people running as write-ins to people just turning in their proxies. Faced with this huge looming bill, I am feel like this community is in huge trouble. I fear numerous foreclosures and the association going belly up! What can we do?!

Mister Condo replies:

N.P., I am truly sorry for your situation. The developer transition period is a unique time in an association’s history and it is a time that requires all unit owners to be wide-eyed, leery, and as well-represented as possible. I have written numerous columns on the subject which you can read by following this link: http://askmistercondo.com/?s=developer+transition

I would love to say that your situation is unique but that is hardly the case. The dollar amount in question is unusually high but I have heard of worse, especially when the transparency is lacking between the developer and unit owners. It is not too late to take corrective actions but the underlying financial damage is likely to remain and perhaps intensify if the association needs to take legal action against the developer. Here is what I would recommend you and your fellow unit owners do to protect yourselves.

First and foremost, speak with a qualified community association attorney (NOT the Developer’s Attorney!). You need legal guidance here and each state has its own version of condominium and incorporation acts that will likely come into play. Construction defect lawsuits are not uncommon, can be very expensive, and tricky to pursue. However, money invested in a construction defect lawsuit that may yield millions for the association is money well spent, in my opinion.

You need to understand which phase of developer transition your community is in. Has the developer relinquished governance of the association to the Board or is the Board only functioning as outlined in the development stage, meaning the developer still has large control of the Board? If the developer is no longer in control, different rules apply. This is another discussion to have with your community association attorney. If the Board is in full charge of governing the community, it is also likely time for a new management company as the one originally in place had the best interests of the developer in mind and not necessarily the unit owners. From what you have described, this management company is working for the developer, not the association. 3 management companies in 7 years is not a good thing. Be sure to thoroughly interview thoroughly to make sure the next management company is a better fit for the association.

Finally, consider selling before it gets any worse. This is going to be an expensive and drawn out process. If you don’t have the constitution for it, get out while you can and consider moving into another condo without these problems. Even if you talk a loss to sell your unit, you may be coming out ahead of a $60K special assessment and who knows what else if a legal battle ensues. When money is needed from a community association there is only one source: the unit owners. You might just do better to cut your losses and move on. Good luck!

When Do Monthly Condo Common Fees Begin?

G. from outside of Connecticut writes:

Dear Mister Condo,

Good Day, Mister Condo! Do I need to pay monthly dues even if I sign the certificate of acceptance but have complained (fixture of toilet bowl is not working)? I don’t have a key yet but I have signed an agreement. What will I do?

Mister Condo replies:

G., I am sorry for your situation. Quite honestly, your best bet would have been to not sign any contract until the unit was in good working order and to your liking. Once you have signed the agreement to purchase the unit, you are on the hook for the common fees that accrue from that day forward. So, even if the toilet bowl isn’t working properly, you still have to pay your common fees. If you don’t, the association will be forced to take collection actions against you which can be quite costly. You don’t want that to happen. Pay your fees and work with the association to get your toilet fixed. Hopefully, you’ll be able to enjoy your new unit once that repair is made. All the best!

Condo Let Lapse FHA and VA Certification

C.W. from New Haven County writes:

Dear Mister Condo,

Our complex has always maintained FHA/VA certification. This certification certainly can be viewed as either a positive or negative by some. As I understand it, last fall the government separated the two, requiring two separate certifications. My complex let the certification lapse and then chose only to renew the FHA certification. Now, the FHA cert costs about $1800 with attorney’s fees and is only good for a limited time (I believe 2 years), the VA certification is a lifetime certification and a one-time expense of approximately the same amount. There was nothing in our complex financials reflecting payment or budget for either. There was no notification from the board regarding maintaining or dropping either. I only found this out because I had put my unit for sale and was notified of the lack of certification. After going to the Board, they said they were unaware of the separation of certifications. I lost my first buyer because it was during the lapse of either, and then lost my second buyer because of the non-VA renewal. The board originally asked if I would front the cost and they would reimburse me at the closing, which I agreed. They then reneged and asked me to pay half, then they said they would not reimburse me at all but would supply the attorney with the paperwork. I have lost both buyers because of this. I am now 4 months later with no buyers and multiple price drops. Do I have some sort or recourse because of the lapse and non-renewal and no notification or owner vote regarding this? Certainly, I would think that this certification has a reflection on our unit value. Thanks.

Mister Condo replies:

C.W., I am certainly sorry that you have lost a few buyers for your unit while this debacle unfolds. I should point out that I am not an attorney and offer no legal advice in this column. You should speak with qualified counsel to see if you have any type of legal remedy worth pursuing. You are correct to point out that there are differences between FHA and VA certification. Generally speaking, FHA certification is required for the condominium association for any mortgages that are FHA insured (most are these days). VA certification is specific to the VA-backed loan program and has a different set of requirements. If your complex had VA certification at one time, I am not sure how they lost it. FHA certification is a renewable program so it does have to be sought and reapplied for from time to time as required by the FHA. To optimize mortgage opportunities, many condominium associations opt for FHA certification. Not all bother with VA certification as it is a much narrower pool of buyers who require such certification. Neither are required to be carried by the association, which is why I question your ability to claim an association-caused loss because of the lack of the certification. Your pool of potential buyers is certainly smaller without the FHA certification but you are still unencumbered by the association when you do sell. The Board should take the best interests of all unit owners into consideration when deciding to renew or let lapse FHA certification. Ultimately, if the unit owners want it and the Board refuses to get it, it is time for a new Board. All the best!

Timing of Special Assessment Hampers Condo Unit Sale

W.L. from outside of Connecticut writes:

Dear Mister Condo,

My condo is under contract and set to close very soon. I just received a notice about a week ago of a meeting of the owners to approve/disapprove an assessment of $750,000 ($7,500/unit). I immediately notified the buyer’s agent and invited the buyer to attend the meeting. The assessment was approved last night (the buyer was out of town… supposedly). Is the buyer obligated to close? Note: I am willing to finance the $7,500 amortized over 3 years. Note 2: Closing attorney says buyer is obligated to close because he will ‘enjoy’ all the benefits of the expenditure.

Mister Condo replies:

W.L., congratulations on selling your unit. Special Assessments are ugly for so many reasons. The timing of this one as you are selling your unit is almost calamitous. The liability for the assessment is with the unit owner of record when the assessment was levied. So, depending on when the closing date and time and transfer of deed for your unit occurred, the assessment is on the unit owner of record at that time. The purchase and sale agreement you have with the new owner is a separate entity and your attorney can best advise you on what legal options you have if the buyer breaks that agreement, for whatever reason. So, in the simplest of terms, look at the date and time the assessment was levied. Look at who owned the unit at the date and time of the assessment. That is who owns the assessment. As for offering to finance the assessment for the new buyer, that is a decision you need to make. Personally, I would not offer that option as it isn’t your problem, but very well could be if the unit owner defaults on the repayment. Then you will need your attorney for a whole other reason. Good luck!

Purchasing a Condo Parking Space

B.W. from Tennessee writes:

Dear Mister Condo,

I currently own two condos in Knoxville. The building is adjacent to a university and I purchased the condos for my kids to live in while in college. Each came with one deeded parking place. When the building was originally sold, buyers could choose to purchase an additional parking place. One owner who did so recently sold his unit and wants to sell his extra parking place. We have agreed on a price and I need to find a bill of sale. Also, I need to find out if there are any tax assessments on the parking spot. Any advice would be most appreciated. Thanks so much.

Mister Condo replies:

B.W., congrats on the kids heading off to college and congrats on the purchase of the two condo units. You would need to check with the local real estate records office to see what this unit owner actually owns before you negotiate a purchase price for the parking space. Generally speaking, if there are no improvements on the space (garage, carport) the parking space may be owned by the association and sold to the unit owner. Have there been any sales of such spaces since the original unit owners purchased? You might want to check with the Board or Property Management company to make sure these “parking space purchases” are transferrable or that the Board doesn’t have the right of first refusal on the sale. There should also be a title, and, just like any piece of real estate, a local land record can tell you more and you can likely check the tax status once you have the land record. Bottom line is to be careful. Just because someone sold you a bridge doesn’t mean you own the bridge! Good luck!

Condo Owner Resident Surrounded by Renters

A.C. from Florida writes:

Dear Mister Condo,

I am in Florida and one of 2 owners in a 45-unit building. The other owner has turned the building into rental units what can we do to get out of our mortgage and make him pay?

Mister Condo replies:

A.C., thank you for writing and I am sorry you find yourself in a less than desirable situation. I am not 100% sure I understand your predicament. If there are only two owners in this building and an investor has purchased the remaining units, there isn’t too much you can do outside of reviewing the association’s governing documents to determine if any rules or by-laws have been broken by the owner who is renting out his units. It is possible that there is a limit or cap to how many units can be rented out at any one time but I doubt there are any restrictions on the owner that forbids him from renting units in general. As for your mortgage, that is between you and the bank who holds your mortgage. Mortgages are not the business of the association so you are on your own there. As for getting the multiple unit owner to pay, that sounds unlikely in my opinion. You may wish to speak to a community association attorney in your state for additional clarity but unless rules have been broken, you may just need to either put up with the renters (who still need to follow the rules of the community) or sell your unit to get out of your mortgage and out of the community. Good luck!

Developer Delivers New Condo Unit with Clogged Toilet Lines

F.M. from Hartford County writes:

Dear Mister Condo,

I bought my condo in a development which is still under construction. I closed on and occupied the unit in October 2015. I have had ongoing issues with the toilet in my unit (there are 2 bathrooms, the other toilet is in proper working order). The builder/seller has replaced the toilet, had a “camera guy” inspect (contractor of his choosing) and claims there are no visible issues. In the meantime, the toilet still clogs at least once a week and the flush is hardly ever smooth (lots of non-normal sounding water flow). My question is about what my options are other than continuing to work through the builder and the contractors of his choosing, if any, since the condo is still clearly under warranty. I do not want to pay for service/repair that is clearly some form of issue with the plumbing from the beginning. However, I also do not want to void any warranty. The builder is not wanting to take responsibility for this or other issues that have been raised since I moved in (paint and other accommodations). Because the development is still building new units, the condo association is still under his control. This is a new experience for me so I want to be sure I handle it properly.

Mister Condo replies:

F.M., the developer control period of a condominium is an exciting time as construction is ongoing and brand new units like yours appear and the association takes on new life, new common areas, and new amenities. The developer’s primary job is to get the units built and sold at a profit. That often means saving pennies wherever possible. In your case, that may be with the plumbing that is causing an ongoing toilet clogging issue. You are wise not to attempt any repair on your own because you would void any warranty between you and the builder. Unless you are willing to undergo the expense of hiring an attorney to possibly bring suit against the developer for a possible construction defect claim, there is little else you can do. There is no association to complain to and this would not typically fall under the association’s responsibility. You may be able to hire your own plumbing or building inspector to get a second opinion but, even if you do, you will likely need legal guidance to assist if a defect claim is warranted. Speaking with an attorney to determine your rights is my best advice. During that conversation, bring up any other construction defect issues you are experiencing. Good luck!