Category Archives: Legal

Michigan Condo Owner Seeks to Replace Board Members and Access Association Records

J.T. from Michigan writes:

Dear Mister Condo,

This is in the state of Michigan: What percentage of signed owners (in agreement) are needed to release the current board members? And, replace? How does an owner or owners (#) demand to receive current and past (3 years) bills (invoices) for services, including the property management company and accounting?

Mister Condo replies:

J.T., since I am neither an expert in Michigan condo law nor an attorney, I posed your question to a group of friends who do practice community association law in your state. This is not to be construed as legal advice. It is just some friendly advice to guide you on your way. You may wish to seek your own legal opinion and/or hire an attorney to guide you on your path. Here is what my friend had to offer:

In Michigan, the ability to remove a director(s) is typically governed by the association bylaws a/k/a the corporate bylaws. Depending on the age of the governing documents, the condominium bylaws and the association bylaws may be merged into one document. Therefore, the first place to look would be in the association bylaws, which usually has a procedure to remove a director. In addition, most condominium associations are nonprofit corporations and the Michigan Nonprofit Corporation Act also has provisions regarding removing a director. See MCL 450.2511 and MCL 450.2514.

In order to demand current and past bills, the individual would need to send a demand for inspection of records letter. The letter can be sent under the 1) Nonprofit Corporation Act, 2) the Michigan Condominium Act and/or 3) the Condominium Bylaws. As an attorney, my firm routinely handles such requests.

That sounds like solid advice to me, J.T.! All the best!

Condo Board Commandeers Unit Owner’s Deeded Parking

E.M. from outside of Connecticut writes:

Dear Mister Condo,

Our water system needs to be fixed. The Board of the Directors makes a construction project in the garage area. The Management just simply posted that all the vehicles needed to be removed before the starting date of the construction without any meeting. After that certain date, all the materials on the deeded garage would be disposal. Do the Board of the Directors have the right to “order” the garage owners to move away from their deeded parking? Can the garage owners ask for the reimbursement of the maintenance fee during the unused period on the parking space?

Mister Condo replies:

E.M., that is a most unfortunate occurrence of events. It sounds like the Board did not to an adequate job of communicating the needs of the association before the project got underway. Deeded parking is owned by the unit owner, not the association. The association has no more right to simply commandeer your deeded parking than they do to take over neighboring land that they do not own. Compensating you for the use of your parking space may be one remedy available to you. However, suing the Board after the fact may hardly be worth your time or effort. I would make a point of finding out what the Board can and cannot do moving forward so this doesn’t happen again. If all of this work was done to update or maintain the community’s water system, I would think most residents would have willingly given up their parking for the duration of the project as the need for clean water trumps the need for a parking space. However, just as you must observe association rules, the Board must observe unit owner’s rights. I hope you can enter into a meaningful conversation with the Board to make sure they do not traipse all over the rights of unit owners like you when the next project comes up where they may need to store equipment or supplies in privately owned parking spaces. If they continue, a lawsuit may be in order. All the best!

Condo Board D&O Dos and Don’ts

C.V. from Connecticut writes:

Dear Mister Condo,

Can board members be sued along with the management company? Should board members carry extra insurance other than the standard policy already in force by association? Thank You!

Mister Condo replies:

C.V., that is a great question! I am not an attorney, so please accept my reply as friendly advice. You may wish to pose the same question to your association attorney for a proper legal answer. In today’s litigious society it is quite possible for Board Members as well as the Property Management company and even the Association as a whole to be sued. The association typically holds insurance policies that cover them for a wide range of possible lawsuits. Directors and Officers (D&O) is one of those policies and it covers Board Members for most typical lawsuits they might face in the performance of their duties. For most Board Members, that is enough coverage for peace of mind while serving as a volunteer member of Board of Directors. However, there have been cases where Board Members have made exceptionally poor decisions that can lead to criminal and/or personal lawsuits that are outside the scope of this coverage.  I am not sure if any additional insurance coverage would have helped them but it may be worth a conversation with your personal agent, especially if you are quite well off and concerned that a personal lawsuit would be a burden worth insuring against. I have personally served on Boards for most of my adult condo life and I have never sought additional coverage. Then again, I have never been sued performing my duties as a Board Member and I can’t imagine any of my actions as a Board Member not being covered by the association’s D & O policy. That being said, I wouldn’t consider serving on a Board where the D & O policy wasn’t in place and kept current. All the best!

Small Condo; Big Governance Problem!

J.P. from Florida writes:

Dear Mister Condo,

I live in a small condo association in Florida. While being a new owner, I have noticed that the whole board and the running of the property is out of control. The President has been in place for several years as I can tell since no one else wanted to be on the board. It is a 55+ community. He also put himself as the property manager. The budget is less than $100K, so no property management company is required. He does not pay any HOA fees as he says that is in lieu of his property manager position. The association never voted for this, he just took this over on his own. He bullies the owners who are old and some do not speak good English. When he gets mad at you, he is very vindictive and knocks on people’s doors late at night. This guy is in his 70’s and a heavy drinker. I voted myself onto the board recently as Treasurer to have a voice and he has yet to hand over the books, check writing, etc. Many people believe he is hiding stuff and he now refuses to answer his door or calls from me. He feels threatened and believes I will expose what he has been doing the past 5 years or so. What do you recommend the best course of action to get control of the situation? I have spoken to the association’s lawyer who says to file a complaint with the state (Florida), I plan to do so in hopes of getting the ball rolling to have him removed. We also have cameras throughout the property which he installed but he is the only one who has control of them as it is set up in his unit. Many people feel uncomfortable as he watches all day and approaches people when they get home. I have to assume that is not legal as when we ask to see a clip he does not allow it. As you can see this place is a mess and would be happy to hear any suggestions you may have before I contact the state. Thank you for your advice.

Mister Condo replies:

J.P., there is very little that I can add before you contact the state, which I hope you have already done. The association attorney can only do as much as the association (the Board) instructs him or her to do. You do need to review your governance documents (or have the attorney review them for you) to see what steps will be necessary to remove the President from office and from the Board. If funds are missing or misappropriated, there may very well be criminal charges as well. Right off the bat, I can tell you that the association should go after the unpaid common fees. Board members are not exempt from common fees and unless there is some kind of formal agreement between the President and the Association for him to serve as a paid Property Manager, he will have to make good on those unpaid fees as well as any late fees. Shame on your fellow unit owners who took no action until now. From what you have said, this behavior has been going on for years. Who knows what financial perils this person has brought upon the association. What about other Board members? Are there none? This situation stinks to high heaven and you are correct to pursue a remedy for you and all of the other unit owners are at serious financial risk as long as this individual has the association checkbook. The time for action is now. Good luck!

HOA Wants to Sell Parking Space to Home Owner!

H.G. from New London County writes:

Dear Mister Condo,

Can a homeowners’ association buy little stubs that in the past 50+ years have not been used and simply allowed easy access to parking on either side of two beach property homes and were either owned by no one or owned by the association and force the owner of the home to purchase it ($7k) or risk that someone else will buy it and use for parking between your homes and make parking for us nearly impossible?

Mister Condo replies:

H.G., that is a loaded question if I ever heard one! It is a question that would best be answered by an attorney, which I am not. Who owns the parking spaces? If it is the association, they can very likely handle the access to those spaces however they see fit. Even if they haven’t invoked their right to charge a fee for the past 50+ years as you state, it is still their property. If you own the property, that is a different story. If they are selling you the space for $7,000 and it is then yours to use or sell as you see fit, I would think that is a good investment. Otherwise, as you say, who know who else could buy it and prevent easy parking for you and your guests. Good luck!

President Asking Daughter to Fill in Violates Condo Governing Documents

P.S. from Litchfield County writes:

Dear Mister Condo,

The President of our association did not make it to the last meeting but sent a proxy regarding his daughter to vote AND stand in for president and run the meeting. Our governing documents state that if the president is unable to fulfill his duties as president, the secretary fills in. Who should have run the meeting? The daughter with the proxy or the secretary?

Mister Condo replies:

P.S., unless your documents allow the President to appoint a proxy (doubtful), the governing documents dictate your answer and from what you have told me, the Secretary should have run the meeting. Board members seldom have the right to give a proxy for their vote. If you miss a Board meeting, you miss your opportunity to vote. The real question here is what actions were taken at this meeting. Unit owners have the ability to question any actions taken at this meeting as it was held in violation of the governing documents. My advice would be to nullify the meeting and revote any items voted upon at the meeting so there is an official and legal accounting in the Association’s Minutes. And don’t allow anything like this to happen again. Education is available in our state for volunteer leaders through the local chapter of the Community Associations Institution. You can learn more at http://www.caict.org/. All the best!

Can Condo Association Evict an Owner’s Tenant?

G.Q. from New Haven County writes:

Dear Mister Condo,

Can a condo association evict an owner’s tenant?

Mister Condo replies:

G.Q., depending on the by-laws of the association, it is quite possible although it is not a simple process. State laws and local laws also come into play. The by-laws spell out acceptable use of condo units. Let’s say a unit is being used for an illegal activity, like producing drugs. The association has the right to protect itself from this illegal activity and can take actions that would lead to an eviction. If the offense is far less serious like the renter plays loud music, the association can take steps against the unit owner, which might motivate the owner to evict the tenant. Eviction is a serious matter and should be handled with the assistance of an attorney. If the association has an attorney, this is a perfect example of when to use him or her. Of course, the ideal situation is for the tenant to act in accordance with association rules, which the tenant typically agrees to when they sign their lease. All the best!

Insurance Runaround Leaves Condo Renter with Uncovered Losses

P.P. from New Haven County writes:

Dear Mister Condo,

I was a tenant in a condo that was damaged by water that entered the unit causing complete damage to 800 square feet of the hardwood flooring, Sheetrock and our personal property/furniture. Since owners’ insurance approved full compensation for damage, cause described as ice dam. Our tenants’ insurance declined claim because of owners’ insurance ‘ice dam’. Upon demo of floors and walls it was discovered that the damage was long term and was the result of gross negligence. It was discovered that incorrect installation of replacement windows which cause a gap under the windows causing water to enter the full length of the wall. Our furniture against that wall was no only water damaged, but infested with mold. A total loss. The condo association also received insurance money to pay the owners deductible and repair the gap and siding. Our tenant’s insurance refuses to revise the original decline. Neither the owner, who had the Windows replaced without a permit from the condo, nor the condo association is taking responsibility for the cost of our damage. We continued to pay rent during the three-months-time to repair, without access to the main level of the house. We’ve contacted the state of CT INSURANCE DEPARTMENT and representative simply sends us the original ice dam determination from Liberty Mutual. We are in contact with the association’s insurance who points to owner’s liability so points back at negligence of association. We have lost 50% of our furniture and damage to the rest. Where can we go from here?

Mister Condo replies:

P.P., I am sorry for all of your problems. As a tenant, your renter’s insurance should be your primary method of recovery for loss such as this. Unfortunately, your insurer is looking to shift the burden and has pointed a finger at the association, delaying your claim and leaving you stuck in the middle. For starters, I would not renew my lease when it is up. You have identified enough underlying problems that you would be wise to seek a new rental. Your claim of loss is most likely going to be against your Landlord and his claim will be against the association. However, before you get into the expense and ongoing legal battle with insurers, your landlord, and the condo association, you need solid legal advice from a local attorney who can tell you what to expect. I would think your insurer is going to be your best bet for getting money back. You paid them a premium and they offered you the coverage. You put in a claim with them and they denied the claim. They are the most direct path to recovering your money. Then, they can take on the expense of suing the association’s insurance company for damage caused by negligence, and so on. If you try to tackle all of these issues on your own, you could end up spending thousands of dollars with little to show for it at the end of the day. At least with your own insurer, you can demonstrate the coverage you had in place at the time of the loss. They have their own attorneys who may be willing to settle with you to avoid a lawsuit. Speak to an attorney today to get a legal opinion on your best course of action. Good luck!

There is No “Right to Smoke” at the Condo!

H.S. from Washington state writes:

Dear Mister Condo,

We have an owner who is objecting to his neighbor below, who smokes while sitting on her back deck. She even has a fan going outside to blow smoke away, so it does not go upstairs. We have rules saying no smoking within 25 feet of bldgs. But smoking is allowed on back decks. We only added in rules years back about 25 feet so not to put out cigarettes on flooring or drop onto walkways so not to burn coating. The property manager and president now want to have a lawyer draw up an amendment to prohibit smoking outside because of one owner whining. I feel they are taking away someone’s rights. I do not care for the smoke either, but I also hate having to close my windows when neighbors light up barbecues. That is more annoying to me, and lasts longer. I said maybe we should ban barbecues. I was only making a point about taking others rights away with barbecues. I believe we will have 4 against out of 7 on the board for having an amendment, but I will be gone this next meeting, so who knows? What is your feeling? It just seems like more, silly liberal “must not offend, take away rights, nonsense.

Mister Condo replies:

H.S., I can understand both sides of this issue quite well and while I agree with you that “less rules” is a simpler solution, nuisance-free living is a staple of most condo governing documents and the issue of smoke and foul odors needs to be taken quite seriously be condo association Boards unless they would prefer to defend their lack of action against such complaints in court by unit owners who wish to exercise their rights. Speaking of which, you use the word “rights” to describe smoking. There is no such right. Smoking is not constitutionally protected so no one has a “right” to smoke anywhere on association property. They also don’t have a “right” to barbecue and you have a right to claim the odor is a nuisance to you. The real question here is how far are the unit owners willing to go to protect their right to nuisance-free living. Non-smokers have the upper hand here although, their initial action is to ask the Board to restrict the activity. If the Board refuses, their only option is a lawsuit. If they are serious enough about protecting their own rights, they may just sue the association and they will likely prevail based on the current legal climate. You can search for local court records to see how the battle is going. My guess is you will see unit owners prevail against allowing smoking. Also, many state public health agencies are also encouraging smoking bans in all high-density housing (HDH) areas, of which your condo is likely one. With both condo governing documents and state agency policy on their side, non-smokers will likely prevail, in my opinion. Good luck!

Former Board Member Making Life Difficult for New Board and Condo Contractors

M.M. from Windham County writes:

Dear Mister Condo,

A resident is prone to harassing our contractors for landscaping and snow removal. He is very resentful that he is no longer on the board and sends us lengthy emails about their shortcomings. Years ago, he used to enjoy kickbacks from contractors who no longer work here. He also removes branches, shovels snow and blames us for his hernia. Our manager reminded him that he is not to do work on the common areas, and he is livid. So far, our new board is calm, but he is accusing us of horrible crimes, threatens to expose someone’s DUI arrest and demands to see contracts under CT’s FOI rule. We know FOI does not govern this, but what is the specific law that does govern a privately-held condo association? How do we protect ourselves?

Mister Condo replies:

M.M., it certainly sounds like you have your hands full with this unit owner. The Common Interest Ownership Act is very likely the law that gives him the right to inspect any and all association records, which includes contracts that the association has entered into. I am not an attorney so please accept my advice as friendly and not legal. While the association does need to provide information as requested, it does not need to do so for free. Reasonable fees for preparing and copying the documents can be charged. Again, there are limits so check with your association’s attorney before deciding how much to charge for the record copies. As for protecting yourselves, you simply need to practice good governance and realize that you are officers in a not-for-profit corporation. You are bound by your own governance documents and state law. I always recommend that Board members receive adequate training and in our state, the local Chapter of CAI offers an excellent program called “Condo, Inc.” where Board members can learn the basics of good community governance. In fact, there are three programs offered this next year. You can lean more by clicking the following link: http://www.caict.org/events/event_list.asp?show=&group=&start=10%2F31%2F2017&end=&view=&cid=18225 Good luck!