Category Archives: Governance

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!

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! 

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!

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!

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!

Condo Association Limits Number of Occupants per Unit

D.L. from outside of Connecticut writes:

Dear Mister Condo,

Our Condominium is all 2 and 3 bedrooms per unit. All bedrooms are in excess of 100 Square feet in size. The Condominium Association limits the occupancy to two members per unit. It charges $200.00 for each occupant over 2. There is nothing in our Declaration about this limit. Nor can I find any federal or state laws that would allow this limit. Have you folks ever heard of this? Thank You, DL!

Mister Condo replies:

D.L., yes, I have heard of associations placing restrictions on occupancy of their units. Typically, this is done to prevent overcrowding of the community and too many residents using the amenities and common areas. Too many cars, too many people in the health club or swimming pool, etc.. Is the $200 charge for additional occupants monthly or a one-time fee? If there is nothing in your Declaration, it is likely a rule that the association adopted previously. As long as the rule was adopted in accordance with the association’s governing documents and does not violate local, state, or federal housing laws, the rule stands. Good luck!