Category Archives: Governance

Can Non-Resident Unit Owner Serve on Condo Board?

L.M. from Pennsylvania writes:

Dear Mister Condo,

Our development has been condos since 1985 and this issue has never arisen before. Can a non-resident owner be on the Executive Board, and now that the issue has arisen, can the board discuss and adopt and vote on a resolution to clarify that a non-resident (investor; never resided in development) cannot be a board member as such positions are open to residents only?

Mister Condo replies:

L.M., I am not surprised to learn that this question has not come up before. Without reviewing your condo documents, I wouldn’t have any way of giving you a definitive answer. I will say that the first place you should look is your Declaration and By-laws. Typically, there is a section on governance and who is and isn’t eligible to hold a director or Board Member position. If your documents are silent on the subject, you would then turn to your state laws for common interest communities and/or corporations as those apply to your condominium. It is not uncommon to have an ownership requirement for a director to serve. A requirement to reside in the association is far less common and truly unfair as there are many times when an owner is not a resident. All owners, regardless of whether they reside in the condo or not, have a vested interest in the well-being of the community. If the Board passed a rule requiring residency that violated any non-resident unit owner’s rights, don’t be surprised if the association gets sued. I would advise speaking with the association’s attorney before taking any such action. Good luck!

Condo Board Should Perform Property Manager Review

J.B. from Hartford County writes:

Dear Mister Condo,

I am new to our condominium board. The previous board never reviewed our property management company. I would like to do that on an annual basis – to assess their work and performance for the year. Do you have any suggestions as to how to do that (quantitative, qualitative) and who should do it (Board only, homeowners)? Thank you.

Mister Condo replies:

J.B., reviewing the work and services of every vendor employed by the association is a great idea. The Property Management Company is just that – another vendor. However, unlike other vendors who perform work and leave, the Property Manager is with the association 24/7, 365 days per year. Generally speaking, if the Board is unhappy with the work or the price paid for the service, it is known immediately. Also, Property Managers have contracts, usually for multiple years. These are not easily broken unless clauses have been violated. If you were to review a management company at Year 2 of a 5-year contract and determine you were unhappy, you couldn’t simply break the contract without consequences. That doesn’t mean you shouldn’t review the work, just understand that you have limited options to remedy any dissatisfaction until the contract is up for renewal. The best review I know of is to pull out the management contract and assign a grade system for each of the functions that the Property Management firm is responsible for. Typically, that would include accounting and bookkeeping, customer service, and service to the Board. Additionally, many property management firms also handle interactions with vendors and contractors, and may even provide certain other property management services such as landscaping, snow and trash removal, handyman work, etc. While you may seek feedback from homeowners, the Property Manager works for the Board. The Board would be the appropriate group to review the work. Good luck!

What’s the Law on Allowing Solar Panels in the HOA?

R.G. from Hartford County writes:

Dear Mister Condo,

Are there any laws regarding solar panels in CT regarding HOA from not allowing installation of same?

Mister Condo replies:

R.G., there are no laws in Connecticut that require an HOA to allow solar panels. Generally speaking, HOAs are autonomous on this matter and the folks running the HOA make the decisions on whether or not the solar panels are architecturally correct for the community. That being said, if enough home owners within the HOA want them, solar panels are generally approved within the HOA but with certain governance restriction such as where exactly they may be placed, the responsibility of maintenance of the panels by the home owner and so on. Some states do have laws that prohibit an HOA from banning solar panels. As I write this column, Connecticut is not one of those states. I gave a similar reply last September. You can read that answer here if you would like: http://askmistercondo.com/shedding-some-light-on-condo-solar-panels/ Good luck!

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!

Condo Insurance Payment Made to Unit Owner for Building Damage

S.V. from outside of Connecticut writes:

Dear Mister Condo,

There was damage to the outside of our building. Insurance check was made payable in the name of a condo owner, who is the brother of president of condo association, in the amount of $6,000.00. I could not get an answer from either party and the insurance company why this was not made out to the condo association. Was this legal? I don’t know how the money was spent. This was several years ago. Is there a statute of limitations?

Mister Condo replies:

S.V., that is a strange way of processing an insurance claim at a condominium. However, it is not unheard of and without a full review of the insurance and the claim, it would be very difficult to prove whether anything illegal occurred. In fact, the insurance company would more likely be the one to have a claim if they were defrauded out of money. Was the building damage repaired? Was there further money paid for the repair by the association that the insurance should have covered? If there were no additional monies paid out by the association and the damage was repaired, it is probably best to stop worrying about it. I am not aware of a statute of limitations for you to investigate and/or file a complaint with your association on how the insurance money was distributed but to what end? If you weren’t harmed financially, this is really an item for the insurance company to worry about, not you. All the best!

Lack of Certificate Prevents Condo From Closing

J.V. from Manhattan, NY writes:

Dear Mister Condo,

My condo is in contract small 4-unit Brownstone in Manhattan. We are all on the Board, one man is the president that we all elected solely based on gender. Had I known that he was a very difficult person I never would have agreed. My issue is our management company whom has since been terminated never renewed our temporary c/o (that’s another horror story). I cannot close without it. The “president ” is not allowing me to move forward with an architect or an expediter (I’ll even pay for that first payment) to get the process started. It has been over a month. He wants proposals and very worried about money. We do not have very this important certificate which is dangerous. But I particularly need it to close. He may cost me my sale which gives me much stress and sleepless nights.

I’ve tried everything, talking, meetings. Now he’s in Italy for 2 months. What can I do as a Board Member with a pending sale to move forward so I can close? I don’t know where to turn. He is a blocker. Does he have this power to make me potentially lose my buyers? Also, my buyers are giving us 120 days (now less) to get the Temporary CO. They want my unit and I want to move!!!!

Can you advise or direct me to someone who can help?

Mister Condo replies:

J.V.,

Hello! Please understand that I am not an attorney and offer no legal advice in this column. From what you have shared with me, you will likely need an attorney to help sort these matters out. I am sorry to learn that your previous management company did not file the proper paperwork with the city to keep the building’s Certificate of Occupancy (c/o) up to date. You may have legal action against the association for allowing that to expire. That being said, unless you are able to file the appropriate paperwork to get your Certificate back in good standing, you are very much at the mercy of the Board President, who appears to be a difficult person and indisposed for two months. Typically, unless your governing documents specifically call for the President to take action, a duty such as filing for the Certificate could fall on any officer. Since there are only four of you on the Board, you may be as qualified as any other Board Member to handle the transaction. You should check out this web page for some insight: https://www1.nyc.gov/site/buildings/homeowner/certificate-of-occupancy.page

While your President is following a Good Business Judgment rule by getting bids for the architect or expediter needed to satisfy the CO requirements, if you are financially harmed by the lack of the CO, you may also have a case to sue your association. Again, speak with a qualified attorney before taking any action.

I am afraid I don’t have better news for you. The failure to have an active CO on file for your association is a most unfortunate event, caused by a series of other unfortunate events. If you do end up suing your association, it should serve as a wake-up call for them to not let the CO slide again. As you have said, it is a very important certificate in NYC. It should be treated so nonchalantly by the Board. Good luck!

Naked Man on the Loose in Condo Hallways!

J.R. from outside of Connecticut writes:

Dear Mister Condo,

There is a man nude using our common area bathroom. Our video tape shows him walking down our hallway nude. We know he lives here as a roommate to one of our owners. What can we do to stop this behavior? Is that indecent exposure?

Mister Condo replies:

J.R., it sure sounds like indecent exposure! Nudity is not usually addressed in condo documents and you really wouldn’t expect it to be. However, there are usually constraints that do identify unacceptable behaviors in the common areas and there are usually clauses about nuisance and prohibited illegal activities. The Board can also pass a rule about nudity being explicitly forbidden in the common areas that they could then enforce with fines and such. My first call would be to the local police to see if a crime had occurred. Keep in mind that condominiums are private property so they may say it is up to you to govern or they may simply speak with the offender and tell them to knock it off. If the behavior persists and there is video evidence that is easy to prove, summon the unit owner to a BOD meeting, explain the problem, and then fine for each future occurrence. Hopefully, the simple act of letting them know it is caught on videotape is enough to make it stop. If not, take action. Good luck!

Does Condo Support Animal Count as a Pet?

W.S. from outside of Connecticut writes:

Dear Mister Condo,

I am the President of our condo association. Our condo rules allow two pets under a certain weight limit. We have a person that presented a certificate stating their dog (overweight) is a support animal due to her husband’s depression issues. The dog was allowed but now they are bringing in two cats stating the dog is not a pet. The dog is clearly a pet. Can we stick to the two-pet rule?

Mister Condo replies:

W.S., I am sorry to say that a support animal is not a pet and, therefore, not subject to the total count of pets allowed. This is a bone of contention around the country and there are some instances where the courts are saying “enough is enough” with folks taking advantage of the support animal exemption that allows them to easily skirt rules. Perhaps you heard story of an emotional support pig recently kicked off of an airplane flight? It seems that this craziness isn’t going away any time soon. In the meantime, don’t get yourself or your association into a lawsuit you will likely lose over this. Speak with a locally qualified attorney that specializes in community association law. Ask about recent cases and how the local courts are likely to respond if a suit were brought. The overweight support animal may be the one you can challenge in court based on the animal’s weight – not it’s stated purpose as a support animal. If the attorney advises you to proceed, that is your call. Short of that, unless the laws change, my advice is to let these folks enjoy their two pets and let them have their support animal as well. Be thankful they didn’t bring a support pig into your community! All the best!

Providing a Copy of Condo Lease Agreement is S.O.P.

G.D. from New York writes:

Dear Mister Condo,

My question is “Are we, as owners, required to give a copy of our lease agreement with a tenant and her Social Services information to the board?” It’s not a co-op. We own our unit and I feel her information is not their business. Am I right? Thank you.

Mister Condo replies:

G.D., I do not think that you are correct in this matter. Keep in mind that I am not an attorney nor am I an expert in New York community association law. For a legal opinion, kindly consult with a locally qualified attorney. As a general rule, the Board of any common interest community has a right and a need to know who is living in their buildings. There are generally rules on leasing that require a unit owner who is leasing their unit(s) to provide a copy of the lease with all parties named to the Board or managing agent so that there is a record of who does and doesn’t belong on the property. There are sometimes restrictions on the use of common amenities on leased units as well and the lease is the legal document that may allow a tenant to use things like a workout room or community pool or clubhouse. The lease may also restrict the owner of the unit from using these same amenities during the time that the lease is in effect. There are also insurance issues, emergency contact issues, and more that require copy of the lease to be in the Board or managing agent’s possession. There are also restrictions on short-term rentals or AirBnB type arrangements. Providing a copy of the lease also shows that you are not in violation of the covenants you agreed to when you purchased. Finally, there are many common interest communities that place a cap or limit on the number of units available for lease at any given time. By providing a copy of the lease, you are demonstrating that you are not in violation of these provisions as well. If you find that the Board or managing agent has used any of the information in the lease in an inappropriate manner, you may have recourse. Other than that, providing a copy of the lease is really in the best interest of you, your tenant, and the association. Good luck!

Mentally Challenged Condo Owner Challenging Entire Community

A.P. from outside of Connecticut writes:

Dear Mister Condo,

About 1.5 years ago, a husband and wife moved into our 16-unit condominium. It was clear from the outset that there was something off with the husband. He looked disheveled, didn’t acknowledge people and walked around in a daze. Roughly 1 year ago, the wife moved out and left him alone in the unit. After he was taken away by ambulance several times, he began receiving daily visits from a visiting nurse. One time the nurse called police and he was taken away again and stayed away for over a month. At that time, a neighbor overheard the nurse outside telling police that she was concerned for her safety and did not want to go back inside. No one has seen her since. Now he has been yelling in the hall, slamming his door over and over and pounding on the door of another resident. As a trustee, I have reached out to the wife, who is still an owner and pays the condo fee. My question is, what recourse do we have other than repeatedly calling the police when he acts out? Can we somehow force them to sell their unit?

Mister Condo replies:

A.P., I am sorry for the commotion and disturbance of peace that your association is experiencing as a result of having this unit owner as a resident. There is very little that can be done on behalf of the association. The Board can enforce complaints when rules are violated. Your documents outline typical offenses (loud noises at off hours, and so on). Action can be taken that include warnings and fines. Other than that, disturbances that rise to the involvement of a crime are being handled correctly by calling the police. The Board is not the law and when laws are broken, the police are the right call. Unless your documents provide for a type of eviction (doubtful) there isn’t too much you can do about a resident dealing with mental health issues. If the common fees are not paid on time, you may have collection efforts that could lead to foreclosure and eviction but that isn’t the case here. The fees are paid on time. If you have an association attorney, this would be a great example of asking what else can be done in your state. From what you have told me here, I see no further action that the association can take at this time. All the best!