Category Archives: Governance

Hardship Case Causing Condo Rental Cap Chaos

H.S. from outside of Connecticut writes:

Dear Mister Condo,

Our association passed an amendment to the CC&R’s capping the rental of units at 17. We have 66 units. This was done in 2006 to help us keep FHA funding. Our last management company let it slide, so our new management company has gone through the hoops and we are now FHA approved again. We have a clause that allows a temporary hardship case which allows renting of a unit out for 1 year and 2nd extension of 6 months. Someone has married and his wife has 3 kids and lives in a house. He bought the condo just before the big collapse in prices. Now he cannot sell it for what it is worth. His wife was laid off. He wants to claim hardship to rent for a year. He said we had until a certain date to give him an answer for a court filing. Well we finally decided to let him do it after conferring with our lawyer. But we waited past his deadline. We have a rental list that he could get on. He has not signed up. If the current person who is number 17 on rental list and cannot get his unit rented within 60 days, he falls to bottom of the rental list. The next person on the rental list moves up to rental position. This person with the hardship case, if he signed up, would now be able to rent the 1 bedroom unit as a regular rental now, if the other 4 folks on the list allowed him to skip over them to be 1st on the rental list. Then we would be back to 17 units rented and no hardship case. This way we won’t lose FHA funding. Some folks are saying FHA is now allowing up to 50%. We are considered the old school rule of condos. I don’t want to take a chance of going over 17 units if I can help it. Will we be in trouble being over the 17 units with this hardship case?

 

Mister Condo replies:

H.S., your adherence to FHA rules while trying to accommodate a unit owner who has fallen on hard times is admirable. However, since you have already involved the association attorney in these proceedings, my best advice is to continue to seek legal advice to guide you through these murky waters. While hardship cases tug at my heartstrings, condo associations are businesses and do not have the luxury of caring about individual unit owner’s unique situations. It sounds to me like you have some very reasonable rules in place about rental restrictions. They have been in place since 2006 and, I am assuming, are in compliance with your state laws on rental caps within community associations. The unit owner’s lack of ability to sell the unit for what it was purchased for is not the business of the association. The collection of common fees from that unit owner and the enforcement of the rental restrictions and other rules of the association are the concern of the Board. If your true concern is FHA funding eligibility, you would be wise to speak with an expert in that area. I am not an expert but I would agree that the current standard of 50% is accurate as of the time of this writing. As your question so easily points out, the FHA changes the rules so today’s answer may not be true tomorrow. There are other reasons for maintaining rental caps, including quality of life for unit owners. Additionally, if you do wish to change the rental cap restrictions, you will need to hold another vote on the matter.

Confrontational Condo Owner Seeks Chair Lift for Condo Pool at Association Expense

J.S. from New York writes:

Dear Mister Condo,

Hi, I met you and your wife at the Long Island Chapter of CAI meeting last month. We have a homeowner who has lived in our association from the start about 14 years. He can be very confrontational. There have been numerous incidents involving him and the board and he and his neighbor. He has developed several health conditions. He still shops on his own and he drives on his own. He has veiled threats against the community to call the Americans for Disability and force us to put in a chair lift in the swimming pool for him. He does enter and exit the pool on his own now and there will be issues in about a month when he wears his same outdoor dirty sneakers into the pool and occasionally has unhealed sores. My question is: can he force us after all these years to construct a chair lift for him which could run up to one hundred thousand dollars?

Mister Condo replies:

J.S., I hope you enjoyed the presentation in Long Island. It was a pleasure to meet so many Chapter members and share time and stories with you. You certainly have an interesting situation on your hands. As you know, I am not an attorney nor am I an expert is New York Community Association law. However, I will offer you some friendly advice. The Americans with Disabilities Act (ADA) is designed to protect people with disabilities and allow access on public properties. Most condominium associations are private properties and are not subject to the same requirements that public businesses are. Although, there are exceptions. If your pool or club house are rented out and used “for profit”, the association may be subject to all the provisions of the ADA. So, you have a bit of a sticky wicket here. It is most certainly time to speak with your association attorney who can give you a legal opinion. Of course, a unit owner who threatens to sue is quite different than a unit owner who actually does sue. If the unit owner makes a formal request for the pool chair, contact the association attorney to determine your legal options. If you are not bound by the ADA rules, you can likely do one of two things. You could simply deny the request, citing the expense as being an unreasonable request or you could allow the installation at the unit owner’s expense, keeping in mind that the unit owner would also be responsible for the maintenance of the chair as well. You can also have pool use rules added that prohibit bathers from wearing shoes (or any footwear) in the pool and prohibit use of the pool by anyone with open soars. Check with your local Health Department for suggested rules on pool use restrictions as well. I hope that helps and I look forward to seeing you again in the future.

Florida Condo Homeowners Insurance Requirement

V.B. from Florida writes:

Dear Mister Condo,

I’ve lived at my condo in Orlando since 2009, when it was vetoed that unit owners are required to have insurance for condo. Are unit owners required to have condo insurance?

Mister Condo replies:

V.B., I am not an expert in Florida community association law so please consider this a friendly answer and not a legal one. You may wish to check with a local attorney for a legal opinion. Generally speaking, unit owners should have a homeowner’s insurance policy at the very minimum, regardless of requirement, to protect themselves from potential losses. Many association governance documents require unit owners to hold such policies but I am not aware of any legislation that requires unit owners to hold policies. In fact, my understanding of the Florida Condominium Act is that it does not require the insurance but it does state that the interior damage is the unit owner’s responsibility. As long as it is unit owner responsibility, the unit owner should want to have that risk insured, regardless of the law. That being said, if your original documents did call for a requirement to carry the insurance and the association voted to discontinue that requirement, there may, in fact, be no requirement for unit owners to do so. However, most mortgage companies would have a requirement for the unit owner to carry homeowner’s insurance and it is certainly a best practice to do so.  All the best!

Condo Owner Request to Store Car on Association Grounds Denied

P.D. from outside of Connecticut writes:

Dear Mister Condo,

We have 3 cars, 2 of which are in our garage and the third is properly registered with the association with a sticker and is parked in the assigned common area. Recently, we purchased 2 new vehicles (which are still in the garage) and asked for permission and a sticker to park the extra vehicle (which is working) until it can be transported (3 months) to its new location. The common area is fully capable of sustaining this request, we were refused and told that the Bylaws (which have not been fully utilized or legally refreshed for our entire 23 year residence here are under legal consult). Please advise, thanks in advance.

Mister Condo replies:

P.D., the short answer is the Board is right in its duty to maintain the rules of the association. You can make the argument for common sense to prevail but if the Board grants your request, they then open themselves up to other unit owners making similar requests. Parking is difficult to manage in most associations. Few associations would want to open themselves to future requests by approving your request to bend the rules, even for a short period of time. Sorry, P.D., but I have to side with your Board on this one. Congrats on the new cars.

Mentally Ill Child of Condo Neighbor Creating Noise Nuisance

D.E. from outside of Connecticut writes:

Dear Mister Condo,

We have been living in our condo for three years and love it. Recently new owners moved in next door with their 9-year-old child. Come to find out she bangs her head against the wall and screams bloody murder at all times of the day. Unfortunately, she has mental illness – bipolar, OCD, etc. I have spoken with them nicely 3 times and when we have asked it does stop so it seems like it is in control and they are just lazy. They came from a 3800-square foot home to a 1450-square foot condo. Knowing there are issues like this I would think you would investigate your surroundings first before buying this type of place. My brother was mentally challenged so I certainly have compassion but this really has to stop – I am on the verge of calling 911 every time this happens. What is my recourse?

Mister Condo replies:

D.E., you are kind to be considerate and compassionate to understand the challenges your neighbors are facing. However, all unit owners, including you, have a right to peaceable enjoyment of their units. Clearly, this noise, regardless of the source, is violating your right to peace and quiet. Your recourse is to file an official complaint against your neighbor with the Board who will then take appropriate action. Typically, that involves summoning your neighbor to appear before the Board to address the rule violation. The Board then can take further action which is typically a fine or whatever else is outlined in your governing documents. If the noise continues, you continue to report it to the Board in writing (usually via the Property Manager). Your complaints are records of the association and, as such, are subject to review by any association members, including your neighbor. For this reason, some unit owners are reluctant to file a formal complaint. However, you have already tried the nice route and only received temporary reprieve. It is up to you to take the next step to restore the peace and quiet you are entitled to. Perhaps your neighbor will do a better job of restoring the calmness or perhaps they will realize that this close living quarters just isn’t the proper environment to raise a child with these types of special needs. Either way, I hope you get your peace and quiet back. All the best!

Condo Garden Greens Causing the Blues!

A.V. from Florida writes:

Dear Mister Condo,

My husband and I moved this townhouse community that has a HOA. We have a small garden with our unit that other units don’t have. I have a legal survey that shows these green areas. My husband has spent a lot of time and money keeping a nice yard and we have some garden ornaments and statues and some furniture. We have received compliments about our garden. The garden is surrounded with bushes. Since we moved, we have received letters that these green areas are common areas. I sent the survey and other documents to the HOA and they did not bother us for a while. However, about a week ago, we received a letter from the lawyers representing the HOA that we need to keep the aesthetics of our garden with the rest of the units and this means to keep the vegetation not so more than 5 foot (I agree with this) but we need to remove all the garden ornaments, pot plants and even furniture. I checked most units and they have pot plants and ornaments in their little green areas, including the President of the Board. We are very upset at this and we think is so unfair. If we are violating the aesthetics of where we live, then everybody is doing the same. I just learned that the President of the HOA removed 2 Royal Palms from a neighbor’s backyard without a proper permit from the City and she only notified this neighbor. Is this illegal? As owners, are we entitled to have notification in writing about what is happening where we live. They said we are not following guidelines but she is not following permits either. Is there a way we can use this as an argument versus our garden? Maybe the Board will back off. Let me know what you think. Thanks.

Mister Condo replies:

A.V., you would think the Board has bigger fish to fry than taking on garden ornamentation. However, the Board is well within its rights and has a responsibility to enforce the architectural guideline of the association, which include gardening regulations. However, they cannot selectively enforce these guidelines only against you without opening themselves up to a discrimination lawsuit, should you choose to file one. In other words, if your garden gnomes must go, all gnomes must go! My advice to you is keeping pushing back. Cite other instances where the rules are not being followed and threaten with a discrimination lawsuit if the Board persists in targeting only you for these rules violations. Also, consider running for the Board or electing Board members that are friendlier to the lifestyle choices of the community. Rules and guidelines are important but it is also important to know when to take action and when to let things lie. It sounds like you have made some nice improvements that the community is enjoying. No need to take a wrecking ball to a celebration. Good luck!

Weight Limit for Pets in the Condo

C.J. from outside of Connecticut writes:

Dear Mister Condo,

We would like to have a weight limit for dogs at our condo. We have discussed anywhere from 20 – 40 lbs. per dog. This is our preference to listing “dangerous breeds,” as we know that is harder to defend in court. Do many condos restrict dogs by weight; and, if so, what is a good weight-per-dog rule?

Mister Condo replies:

C.J., that is a great question! Many condominiums have simply chosen to restrict pets so as to avoid the great debate about which is more dangerous – an untrained dog or an untrained owner! You are wise to avoid the battle of breed classification with regards to the danger they present. Simple weight restrictions are far more defendable and fairly easy to enforce. In my experience, 20 pounds seems to be the most common but there are certainly no rules on weight restrictions and an aggressive Dachshund can be far more trouble than a gentle Great Dane. The real trick is getting buy-in from your current unit owners. What is the current make-up of the pet population in the association? Pet owners with pets larger than 20 pounds are not too likely to vote in favor of a weight restriction that could stop them from replacing a current pet when the time comes. If your community is serious about adding these restriction, you may want to speak to your association attorney about the proper procedure to do so. Also, keep in mind that assistance animals and Emotional Support Animals (ESA) may be immune from your rules. Good luck!

Can Husband and Wife to Serve On Condo Board Together?

M.H. from Florida writes:

Dear Mister Condo,

Can a couple owning 2 condo units be on the HOA board at the same time in Florida?

Mister Condo replies:

M.H., thank you for your question. As you know I am not an attorney nor am I an expert is Florida community association law so please consider my advice here as friendly and not legal. If you think you need a legal opinion on this matter, I strongly suggest you speak with an attorney in your area knowledgeable of Florida Community Association Law. That being said, your question has two possible answers that I am aware of. Start with your governing documents. My guess is that the documents are either silent on the issue or prohibit two owners from the SAME unit serving on the Board. Since there are two different units involved in your example, I don’t see why there would be a prohibition of the husband and wife serving as long as they were each representing one of the two units they own. While I am not an expert in Florida law on the matter, I have read that the laws in Florida that pertain to condominiums – the Florida Corporation act and the Florida Condominium Act – do not prohibit co-owners who own more than one unit from serving. The Florida Condominium Act does address the issue but also allows for an exception if there are no other unit owners willing to serve. You can read an interesting article on the subject here: http://www.floridacondohoalawblog.com/2016/01/articles/qa/can-husband-and-wife-serve-on-the-board-at-the-same-time/. All the best!

Board Declares No Parking in Condo Driveways!

P.W. from outside of Connecticut writes:

Dear Mister Condo,

The declaration states and the plat shows that the driveways are limited common elements. There is a driveway pad outside the garage. The condo association states that the bylaws say that there is no parking on any street or common element so they don’t want anyone to ever park in their driveway.

The deed says that there are no restrictions and the limited common elements are listed in the declaration. But it also has a comment that the bylaws are to be followed. I’m confused, please clarify.

Mister Condo replies:

P.W., and this is why we have community association attorneys and courts to interpret poorly worded declarations. The concept of a limited common element means that the area is reserved for your use. That certainly makes sense for a driveway as you need exclusive use to come and go to your garage. If the bylaws state that there is no parking allowed on any common element, the Board needs to decide if that includes limited common elements as well. It sounds like they have made a determination that the parking ban extends to limited common elements, too. They may be correct but that doesn’t mean they can’t be challenged. You should speak with a qualified attorney in your area to determine if it is worth challenging the Board’s assertion that cars cannot be parked on limited common elements. Also, you should speak with the Board and fellow unit owners about the restriction. You could certainly modify the by-laws to keep the no parking ban in effect but not include limited common elements. All the best!

Condo Maintenance Standards Enforcement

R.P. from Fairfield County writes:

Dear Mister Condo,

How common is it for Condominiums to have and enforce Maintenance Standards, whereby Unit owners are suggested / told how they should maintain their units to avoid issues or problems?

Mister Condo replies:

R.P., since the Common Interest Ownership Act (a/k/a CIOA) was passed in our state in 2011, maintenance standards have become quite common. Without issuing and adhering to maintenance standards, association open themselves and their members to denied insurance claims for items that commonly wear. If these standards are ignored by unit owners, they could find themselves on the hook for any damage that occurs due to a neglected item on the list. Among the more common culprits are water heaters. If a water heater failed outside of its useful life as determined by the maintenance standard and then flooded several units, the unit owner of the neglected water heater could be sued for the full amount of damages. Another common culprit is water supply lines for toilets and washing machines. They need to be replaced within the maintenance standard window or any damage caused if they fail would likely not be covered under the association’s insurance. I hope you don’t have any such failures. Good luck!