Category Archives: Governance

Delinquent Owner Causing Big Mess at 3-Unit Condo

S.B. from outside of Connecticut writes:

Dear Mister Condo,

I live in a 3-unit condo that was converted from a single-family home 2 decades ago. When I closed on my condo, I was required to give the HOA a sum of money to cover my share of an estimated driveway repaving that was planned in a year (I have this in writing in my P&S and the closing papers). Before that could happen, and almost right after I moved in, the roof sprung a leak. Being tapped out on my recent purchase, I told the Trustee they could use half the money I put in for the driveway and I would pay half out of pocket for my share for the roof; when time came for the driveway in the next year, I would pay the difference. As it turned out, my half share of the roof and the whole share of the driveway amounted almost perfectly to what I put in at Closing. Now that it’s time, I’ve been asked to pay the whole amount of my share for the driveway out of pocket. The Trustee is saying she used the rest of my sum to cover a unit that couldn’t pay for the roof (they’re on a payment plan but it’s going to take them 2 years to pay the HOA back!). I asked if I would be reimbursed and was told no. I’m arguing that I was assessed at Closing and paid my share. She’s arguing that once the money went into the HOA reserves it became common funds for her to use as she saw fit. Can she really make me pay twice and not reimburse me given that the offending unit is paying back the funds albeit slowly?

Mister Condo replies:

S.B., ouch! Small condos like yours can have some mighty big problems when unit owners don’t have the money to sustain maintenance and repair items equally and as outlined in the governance documents. You may very well have the right to sue your association to get your money back but the real question is one of value. Would it be worth it? Probably not. As the funds from the delinquent unit owner come in, the association is made whole. In theory, that would be the time for you to pay for your driveway as originally agreed, less the money you already paid for the driveway. Your trustee is wrong in assuming that any money put in the Reserve Fund can be used at the Trustee’s discretion. However, to enforce your rights as a unit owner, you will have to sue. Again, it is a question of value. In a small association like yours there is rarely any tangible amount of money in the coiffeurs to make a lawsuit worthwhile. It is in everyone’s best interest that you get along. Play nice and ask for fairness. If you can’t get the trustee to play nice, consider selling. It would likely be easier in the long run than doling out good money on a lawsuit that may not yield any money to you at the end. It’s your choice. Good luck!

Validity of Condo Proxy Vote Process Questioned

J.B. from outside of Connecticut writes:

Dear Mister Condo,

I received a proxy for election of the condo board. Seven positions. Eight names with no blank spaces. Seven for re-election. One new. In a conversation with a current board member she told me that the eighth name did not want to be on the board, but a different person did. Asked the management company, without success, how members are elected? Simple majority? A percentage needed? Quorum needed? What happens to the votes cast by proxy of the owner not wishing to be on the board? Does this not disenfranchise the owner wishing to run? Answer I received “You can cast your vote anyway you wish”. Is this proxy election valid?

Mister Condo replies:

J.B., without knowing the rules for proxy voting for your state and how your declaration, covenant, rules and regulations read, I can’t give you a definitive answer. Proxies are handled differently and can vary from association to association. I will say that the spirit of the proxy looks to be intact. It is up to you to look up your association’s rules on proxy voting to see if the rules were followed. Typically, candidates are either nominated or self-nominated in advance of the Annual Meeting where the election vote is held. A nominated candidate who wishes not to server can most certainly remove themselves from the ballot. If there were no other properly nominated candidates, it would follow that there would be a vacant slot for the seat running without a nominated candidate. It would also follow that you could write in whoever you would like although there is no guarantee that your write-in candidate would win or even choose to serve if elected. Typically, the elected Board members have the right to appoint a director to fill a vacancy until the next election. Whether or not the proxy is valid may be moot if there were only seven candidates for eight offices. I would encourage any interested candidates to let their intention be known to the Board and that they run for office during the next election cycle. All the best!

Making Condo Unit Owners Comply with Architectural Compliance

M.D. from outside of Connecticut writes:

Dear Mister Condo,

I’m on the Board of a 118-unit high rise condo building and wondering if you’re aware of any effective strategies to enforce compliance with our “white only” exterior appearance of window treatments?

Mister Condo replies:

M.D., if the association has published and properly adopted architectural compliance guidelines that indicate “white only” exterior appearance of window treatments, it is as simple as citing the unit owners who have violated the guidelines. Typically, the Board would send a letter notifying the unit owner of the violation. If the unit owner complies in short order, no problem. If not, follow your documents as they pertain to rules violations. Typically, the unit owner is summoned to appear before the Board and offer defense/explanation. In this case, there isn’t too much to say. The window treatment is either white or it isn’t. The Board can then decide to fine the unit owner or not and use whatever methods it has at its dispose for correcting rules violations. My guess is the unit owners that are out of compliance have done so without knowing they were breaking the rules. A simple notice will likely suffice. If not, you have other options. Work with the unit owners to get them back in compliance. Time will heal all. Good luck!

Condo Renters Threaten Lawsuit Over New Parking Arrangements

S.G. from New York writes:

Dear Mister Condo,

I’m a board member of a 150-unit condo association. The property was built with only 120 parking spaces back then. We just reconstructed additional spaces on the property for the first time in over 50 years. We have unassigned spaces due to near 50/50 owner/renter ratio but have now given Priority parking for Resident Owners only and have designated spaces for renters on the other side of the property – a short walk. Prior to restructuring, renters parked closer to their units which also meant owners having no space at all. Our new lot however, now has about 10-12 unused preferred spaces every day where before restructuring, we never had a single open space.

A few renters have threatened to file a discrimination lawsuit based on 2 things: 1) they used to be able to park closer to the building and have now been assigned to the other side of the property/walking a longer distance, and 2) these 10-12 Preferred spaces which are sitting open every day magnifies the question: why can’t the Board make some of these spaces for renters?

We realize it’s the summer season with many vehicles off property/out of town and believe we may see a smaller number of empty spaces after Labor Day, but we really want to know if this would be a case of discrimination in NY or if a court would simply throw it out as the renters do have spaces, they just don’t like where they are now versus prior to the restructure.

Mister Condo replies:

S.G., unless the governing documents read otherwise, the association is free to do what they please with the association-owned parking lot. That being said, in a litigious society such as ours, you might want to run the scenario by the association attorney to see if any residents would have a case. In my opinion, they don’t but I am neither an attorney nor an expert in New York condo law. You will always have malcontents when you rearrange parking. There will be winners and losers but that doesn’t mean they have grounds for a lawsuit. Run it by your association attorney. My guess is you’re fine. All the best!

Condo Board Members Attribute Storm Damage to Unit Owner’s Son

S.J. from outside of Connecticut writes:

Dear Mister Condo,

Today I received an email from our property manager company stating that I was going to be assessed fees for repairs to the siding on our building. Attached was a picture of my 19-year-old son standing outside with a lacrosse stick. The claim was that my son had damaged the siding. My son did not damage the siding and the claim is completely unwarranted.

Two years ago, we had storm damage to many of our units and the old property management sent out notices to co-owners that repairs were being made. At this time, our board decided to change management companies and the repairs to our unit were never made.

I was able to obtain the original incomplete work order from the old company as proof that my son did not damage the siding. My concern is will they be able to charge me for this and what is the best way to handle the inappropriateness of a board member taking pictures and claiming something that is not true.

Mister Condo replies:

S.J., I am sorry you find yourself having to do battle with your Board. Any unit owner, including a Board member, is allowed to make a claim of damage against another unit owner. They can even take photos when warranted. The Board is then charged with informing the unit owner (you) and offering you a chance to address the Board to present your defense, denial, or acceptance of the claim against you. Clearly, you are denying the claim and you have your own evidence to support your denial. After you make your counterclaim, the Board is free to do as it sees fit within the bounds of your governing documents. Can they deny your rebuttal and claim your son caused the damage? Yes. Can you then sue them for their actions? Yes, again. Let’s hope it doesn’t come to that and that cooler heads prevail. It seems only logical that since your building’s storm damage was never repaired that these repairs need to be made. The claim against your son is scurrilous at best but may be taken seriously be the Board. You may wish to speak to an attorney if they proceed to charge the repairs to you and you will likely prevail from what you have shared with me here. If there is a pattern of harassment from this one particular Board member that took the photo, you might just want to sue them as well. That should get their attention so they can focus on the more important job of repairing the storm damage to the building and not look to saddle individual homeowners with their responsibility. All the best!

Condo Revokes Renters Pet Ownership Privileges

K.L. from outside of Connecticut writes:

Dear Mister Condo,

I rented a unit in a condo building with a lease that allows me to have a dog (under a certain weight limit). I waited months to adopt a dog and a week before the dog arrived the condo association posted a notice in the Common Area announcing that only OWNERS were allowed to have pets. I promptly talked to my landlord about this and he said he would talk to the Condo Association. Fast forward several weeks and I now have the dog. The landlord informed me days ago that the “condo association” won’t allow him to bring the matter to the Board. I’m frustrated and confused and ready to break my lease. What recourse do I have?

Mister Condo replies:

K.L., I am sorry you find yourself in this unfortunate situation. The association has the right to regulate who can and cannot have pets on the property. Of course, they need to follow the rules for passing the rules but let’s assume that they did everything right and the rule now stands. Your beef is with your landlord who contractually allowed you to have a pet as a provision of the lease. He can no longer fulfill that provision of the lease which may give you a valid reason for you to break your lease, provided that is what you want to do. Hopefully, your landlord will not challenge your breaking of the lease based on this provision but you may need to speak to an attorney to protect yourself from a suit from your landlord for breaking the lease. Your landlord may be in a position to sue the association or ask for a grandfathering of the pet clause but this will cost him more time and trouble than simply replacing you with another tenant. It is an unfortunate situation to say the least. I wish you and your landlord a happy parting of the ways and a fast turnaround in you finding a new apartment and him finding a new tenant. Good luck!

Condo Property Manager Offends Unit Owner

P.J. from outside of Connecticut writes:

Dear Mister Condo,

If an owner contacts the PM regarding an issue and the PM’s response is that “I am a pain in the ass and a little prick” is there any formal rights I have to request his replacement with another agent from his Firm? Thank You!

Mister Condo replies:

P.J., I am most sorry to hear about such rude and unprofessional behavior from a Property Management professional or anyone for that matter. It reflects the general lack of civility that seems to be far too common in today’s society. As for “formal rights”, I don’t think you have any. The Property Manager is hired by the Board. You should most certainly complain to the Property Manager’s supervisor if he or she has one and you should complain in writing to the Board who can pressure the Property Manager to behave better or be replaced. But the reality is that you were insulted, not assaulted. Anyone who uses such terms when dealing with a client is saying far more about their own behavior and upbringing than yours. Take the high road, P.J.. Good luck!

Condo Unit Owners Sluggish to Return New CC&R Ballots

J.G. from outside of Connecticut writes:

Dear Mister Condo,

We drafted new CC&Rs and mailed ballots to owners late last year, but we’ve only received 51% of the ballots, which the management company can’t even open until we reach 67%, and even then, we don’t want to open them because once we do, we can’t count ballots that continue to arrive, plus because we need 67% in favor to pass, it’d have to be unanimous if we started counting. So, we really need more like 85% or greater ballots. We’ve sent out additional letters and ballots using different wording, short and long, but only coaxed one more ballot back. Our management company said some other HOAs try enticements to vote, like a free $15 certificate at a store or ice cream, etc.  What enticements or wording have you seen work to get reluctant owners to vote?

Mister Condo replies:

J.G., how sad is it that we have to entice unit owners to avail themselves of their right to vote on something as important as an amendment to their CC&Rs? I am not familiar with your provision that once you start opening any ballots that you cannot continue to collect and open more. I have never heard of that before. Kindly check with your association attorney to make sure you fully understand the ballot process. Typically, you can review and keep track of where you are as you go along. That should help speed up the process significantly and let the Board know exactly how many more ballots they need to achieve the acceptable 67% quorum needed to ratify the CC&R change. That being said, there really aren’t any reasons you couldn’t encourage unit owners to submit their ballots. I am not a fan of gift cards but community get-togethers can be quite effective and offer all community members a chance to socialize. You could bring in a local politician or celebrity to encourage attendance. You could certainly offer food or entertainment at the event. As long as you aren’t in violation of your governance documents, the sky is the limit. The good news is that you shouldn’t have to do this again any time soon. CC&Rs aren’t rewritten very often. Hopefully, this is a “one and done” event for the Board. All the best!

Florida Condo Owner Needs to be Home When Family Stays Overnight

G. from Florida writes:

Dear Mister Condo,

Hi! After 13 years at my condo I was told that my family members could not stay at my condo for a few days unless I was there. Is this legal? I had people stay there several times throughout the years for a few days and was never told I couldn’t do it. Your answer would be appreciated. Thank you.

Mister Condo replies:

G., your answer lies in your association’s governing documents. My gut instinct is that you will likely find that you are required to be in attendance with any guests, especially if they are using any amenities, such as a pool, tennis courts, clubhouse, etc.. Many associations have added such rules in recent years to prevent unit owners from subletting using services like AirBnB or VRBO, where they are actually making income from their units when they are not home. Check your documents. If there are provisions prohibiting you from having people stay in your unit when you are not at home, be thankful you weren’t fined for past violations and follow the rules moving forward. Good luck!

Condo Documents Dictate Double Late Fees and Fines

I.G. from Middlesex County writes:

Dear Mister Condo,

Our By-Laws stipulate a late fee of interest plus prime rate if a payment is 30 days past due. The Rules and Regulations stipulate a $100 fee after 15 Days. Which prevails? One or both?

Mister Condo replies:

I.G., hopefully, every unit owner pays on time and you don’t have to implement late fees. It is not uncommon for governing documents to have conflicting terms. It is up to the Board to correct the documents and implement a proper late fee policy. Since one dictates a fee after 15 days and the other dictates a fee after 30 days, you could make the argument for both being applicable. However, it would make more sense to have just one fee and a detailed collection strategy for what happens at 30 days and what happens at 60 days, with 60 days being the time the matter is turned over to the association’s collection agent or attorney. I hope you never need to do that. Good luck!