Category Archives: Legal

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 Denies Disability Parking Request

S.B. from outside of Connecticut writes:

Dear Mister Condo,

Can the condo association deny a request for disability parking especially since the condo is on private property?

Mister Condo replies:

S.B., you may have noticed that there are many questions and answers about disabled and handicapped parking on my website. It is a serious matter, to be sure, but the answer remains the answer. It depends. Generally speaking, since condominiums are private property, there aren’t too many restrictions on how they parcel out their parking lots. If the unit came with deeded parking (a specifically assigned parking space that is part of the deed of the property), then the unit owner has exclusive use of that space or spaces. All other parking is usually owned by the association and can be used as they see fit. If a request for a handicapped space is made of the Board, the Board should review the request and determine if it is reasonable to grant the request. For most associations, since parking is usually in high demand and short supply, they can claim that dedicating association parking for handicapped use creates and undue burden on the association. If the unit owner in question has deeded parking and is simply looking for additional dedicated parking, they are often out of luck. Of course, to be safe, I usually recommend that the Board consult with the association attorney to make sure no local, state, or federal laws are being violated if the Board decided to deny the request for dedicated handicapped parking. Handicapped parking seekers often cite the Americans with Disabilities Act (ADA) as their grounds for requesting the handicapped parking. However, the ADA does not deal with privately owned parking lots such as those found in typical condos. Exceptions are if the association is renting out the clubhouse or has amenities that are also open to the public for a fee. Then the rules change. Other than that, the Board is usually free to use the association-owned parking as they see fit. All the best!

Unapproved Remodel to Upstairs Condo Damages Downstairs Unit

L.S. from outside of Connecticut writes:

Dear Mister Condo,

The question I have is this, I live in a condo that has 4 units per bldg. I own mine. These condos were built in the late 50’s maybe early 60’s. Unfortunately, there is an HOA fee of 150 dollars a month and the outside of the buildings look horrible. They really need to be painted and new front and rear doors placed. The front porch is falling apart. The condos were not built like the newer ones are. Someone purchased the upstairs condo and decided that they would remodel the whole condo. There was a wall removed and other major repairs without a permit that has caused damage to my condo. I spoke to a contractor who looked at the damage and informed me that if we were to try to fix it, it would cause more damage. The upstairs condo would receive damage also. I am just wondering who should pay for the damage. The owner knows that there were issues and he wanted his handy man who caused the damage and himself to look at it. I am not sure what good that would do. Should I file a claim with my insurance company and let them fight it out or is there another way to deal with this? Am I going to be stuck with a huge bill?

Mister Condo replies:

L.S., you certainly have a lot going on inside your 4-unit building. Let me address each item separately. First up, the HOA isn’t maintaining the property as they should. There is no reason for painting to go undone other than there is no money in the Reserve Fund for the project. You mention a fee of $150. If that fee isn’t enough to cover operating expenses and set aside money for routine maintenance like painting and door replacement, there will need to be a Special Assessment and/or an increase to common fees. Neither option is popular but that is the only way to get the association back on track so it can fulfill its duty to maintain the building exteriors.

The remodeling project is another issue entirely. It sounds like the upstairs unit owner did some unauthorized and unpermitted work on their unit causing damage to your unit. It’s time to speak with an attorney about suing the unit owner for the damage. You should file a claim with your insurance if you have suffered financial damage worth filing a claim over. However, the fault is clearly with the unit owner who did the unauthorized remodel. You governance documents likely spell out what types of repairs and improvements can be made to unit interiors. If they knocked down a supporting wall, you could be looking at a very expensive repair, not to mention the potential danger you are in. I would want to get this taken care of immediately. If they are amenable to correcting the problem at their expense, you may not need to sue but, in my experience, once the dollars start adding up, a lawsuit is almost inevitable. You should be able to recover your damages though and I am hopeful that your upstairs neighbor will do the right thing. Good luck!

Withholding Repairs to Delinquent Condo Unit Owner

M.B. from outside of Connecticut writes:

Dear Mister Condo,

Can a condo board withhold unit repairs to an owner who is delinquent?

Mister Condo replies:

M.B., that is a loaded question with lots of possible answers! Since I am not an attorney, I must recommend that you speak with a qualified community association attorney from your area to determine if withholding repairs is within the association’s rights. Typically, my answer would be that the association has a duty to upkeep and maintain all common elements as they are property of the association and not the individual unit owners. The association’s governance documents clearly state what is the association’s duty to maintain. This would usually include parking lots, landscaping, amenities like pools, sidewalks, roofs and building exteriors. Now, if a unit owner became delinquent in their common fees and needed a roof replaced over their unit, the association would still have to maintain that roof because they own it, not the individual unit owner. Failure to maintain a common element would be akin to cutting off your nose to spite your face. It will still need to be done whether the unit owner living under that roof is delinquent or not. I think the more important question here is what steps the association CAN take to either bring this unit owner up to date with fees or force a foreclosure where by the association evicts the unit owner, and, hopefully, replaces the unit owner with a dues-paying owner. If you haven’t already done so, consult with your association’s attorney and make sure the proper steps are being taken. Good luck!

What to Look for in new Condo Property Manager

D.G. from New York writes:

Dear Mister Condo,

I saw you speak at a recent CAI Long Island chapter meeting. We are looking into a property Management company. What specific and important questions should we include in our Request for Proposal. Also, can you offer some suggestions on important questions to ask Property Manager company during the interview. Thank you for your assistance.

Mister Condo replies:

D.G., thank you for your question and I hoped you enjoyed my presentation. It was my pleasure to address the membership of the CAI Long Island Chapter. I hope to be invited to come back and speak with your group again. I have a new page on the website describing the program if you care to take a look – http://askmistercondo.com/mister-condo-live/

On to your questions. I am happy to learn you are seeking some advice BEFORE hiring a Property Management company. It is not like buying a T-Shirt, where One Size Fits All. There are many different types of Property Management companies and even Property Managers within the company. Obviously, reputation within the industry is important. You should certainly speak with other CAI Chapter members who have hired Property Managers and ask them how pleased they are with their choice. Referrals and reputation play a strong role in Property Manager selection.

Your request for Proposal should include all of the services you want the Property Manager to perform. Will they simply handle your bookkeeping needs? Will they perform on-site inspections? Will they provide Property Maintenance services like landscaping and snow removal? Will they need to provide on-site personnel? For smaller associations, the management needs can be fairly simple. For larger associations, the needs can be quite significant. You should work with your Board to answer the questions before you prepare your Request for Proposal (RFP). Additionally, I know of many community association attorneys who like to be hands-on in the RFP process as they would prefer to help in a pre-emptive manner rather than having to deal with a potential problem that could have been avoided. Something to think about.

During the interview, one of the questions I like to ask is if the Property Manager can describe a recent challenge and how they helped the community overcome it. While this may not be the same challenge your community will face, it may give you an idea of how this manager operates. If you are facing a current challenge, you might want to ask how they would solve the challenge. Again, this will give you an insight as to what to expect once you hire them. Of course, I am a big fan of hiring Property Managers that are active in CAI. That signal me that they are industry professionals and are keeping current on their training. As you know, laws change, technology changes, and the overall methodology changes as well. CAI Member Property Managers tend to be “in the know”, which is a tremendous benefit to their clients. Hope that helps. All the best!

Can the Condo Property Manager Sue Me?

M.Z. from outside of Connecticut writes:

Dear Mister Condo,

Has the property manager the right to fine me or sue in court?

Mister Condo replies:

M.Z., I am sorry you find yourself at odds with your Property Manager and now need to inquire if you can be fined or sued. The answer to both questions is yes, but with a few caveats. Property Managers work for the association and are granted their powers to enforce the covenants of the association by virtue of their contract with the Board to do so. They cannot make up offenses that you can be fined for. If you are in violation of your community’s rules and regulations, the Property Manager can issue you fines as outlined in the governance documents and in accordance with local and state law. In many states, unit owners who have been cited for violating rules must first be summoned to appear before the Board and state their case before the fine is issued.

Suing you is a different matter entirely. As an individual, almost anyone can sue anyone in this country. The Property Manager can follow the Board’s instruction to bring suit against a unit owner for a couple of reasons. The most common is that the unit owner is in arrears with the association. Delinquency of common fees or special assessments are the most common reasons an association would sue a unit owner. An ongoing dispute over architectural compliance issues is another. In both of these instances, the Property Manager is acting on behalf of the Board. If you and the Property Manager got into an altercation (I hope not!) and the Property Manager decided to sue you personally, that is certainly their right.

The bottom line is that you should speak with an attorney if you are being sued. Personally, and professionally, the Property Manager can bring suit against you. You will want to defend yourself. I hope it doesn’t come to that. Good luck!

Condo Bullying and Harassment

R.C. from Florida writes:

Dear Mister Condo,

What can unit owners in Florida do when bullied, followed, harassed, watched, threatened, etc. by condo association members and property manager? Especially when a lot of us are elderly and/or disabled physically in some way? Can you at least point me in the right direction?

Mister Condo replies:

R.C., I am sorry you and your neighbors find yourselves bullied, harassed, threatened or otherwise bothered by anyone, let alone the folks who govern and manage your association. True bullying, harassment, and threats are criminal offenses which should be reported to the proper authorities, including your local police department. Short of that, you might want to speak to an attorney who specializes in elder law to see what types of protections you are offered. The Property Manager works for and reports to the Board of the condo. You and your fellow unit owners have elected the Board to serve. If they aren’t doing the job properly, it’s time for a new Board. The condominium’s governance documents spell out the rules, regulations, and enforcement procedures for the condo. I guarantee you that bullying and harassment are not a part of those documents. In my experience, the best remedy for a condo bully is to stand up to him. That may mean removing him or her from his position of authority. It may even mean calling the police or bringing suit against him or her in a court of law. Bullies like victims, not folks who fight back. In Florida, you might want to check out the Department of Elder Affairs website to see if there are local resources to help you as well. You can find the information online at http://elderaffairs.state.fl.us/doea/report_abuse.php. Good luck!

Unit Owner’s Overgrown Shrubs Causes Condo Eyesore

C.L. from New York writes:

The Board of Directors self-manages (no community manager or management company) our very large condominium complex. A question/problem has come forward that I would like your opinion on. The Board inspects common areas around the entire complex. Our offering plan states no plantings are allowed on common ground without permission of the Board. The guidelines state you may plant in the 3′ area around your unit if you choose. Otherwise, the association simply plants grass and maintains the area. If we find a violation we send pictures and a letter stating the unit owner must conform with rules of community giving a certain time frame to correct or we will at a cost to owner.

We came across a unit that has a terribly overgrown shrub around the perimeter and other over grown shrubs all over the property adjoining the unit. We sent a letter with pictures of the violations to the owner requesting they remove the shrubs from the common area and trim in the 3′ area as the rules designate. The owner produced documentation that showed permission from the Board back in 1983 to plant small shrubs and claimed “it’s not her fault they grew so big”. The owner also stated she will not remove them.

We informed the owner that the rules require removal of the shrubs and as managers of the property we are enforcing the rules as per the offering plan guidelines. Either the unit owner removes and trims or the association will at a cost to the unit owner. The unit owner said she will get an attorney since she purchased it this way and “likes her privacy”. That is why she “bought that unit since no others are like it with plantings like that.” We have contacted our attorney as well. I would like your opinion on this.

Mister Condo replies:

C.L., thanks for writing. Since the unit owner has already claimed to be heading down the attorney path, the Board will have little choice but to involve the association attorney as well. I am hopeful that this unit owner’s attorney will instruct her that she would likely not prevail in a lawsuit but that is for the lawyers to decide. Keep in mind that I am not an attorney and I offer no legal advice.

My friendly advice for the association is that the condo documents likely spell out the role of the Board in enforcing guidelines and that the Board is likely well within its rights to enforce the standard. However, the Board does need to take care that it is unilaterally applying such enforcement measures, meaning to say that if the Board is enforcing this standard for ONE unit owner, it has to enforce this standard for ALL unit owners. Otherwise, the Board could be accused of discrimination and that could be a very expensive lawsuit, indeed.

From what you have told me, the owner’s argument of having “purchased it this way” and “liking her privacy” are not valid arguments. She would need to cite in the by-laws where she has the right to disregard the standards. I highly doubt she will be able to do that and her attorney will likely advise her of the same.

One other item to consider is any local or state laws regarding the matter. I doubt there are any that apply but there are some states (Florida, for instance) where by-laws that are unenforced for several years cannot be restated years later. In other words, if this violation has been in plain sight for a certain number of years (these shrubs didn’t grow so large overnight) and no action was taken, it may be too late to take action now. That doesn’t appear to be the case here but it is something to ask your attorney about if there are any questions.

Good luck. I am fairly certain you will prevail if it goes to court. However, my experience tells me this is likely to be settled well before then.

“Granted” Condo Parking Spaces Used to Entice Buyers Creates Long-Term Problem

 

P.G. from outside of Connecticut writes:

Dear Mister Condo,

When we purchased our units, many, but not all, came with parking spaces granted legally by the developer. Many owners/tenants are leaving their non-moving vehicles (we have 72-hour “must move” to a new spot rule). MANY others are having their “visitors” regularly use their space. They are not visitors, they are there EVERY day. It’s a sublet or extra vehicle of an owner (we have a maximum of 2 vehicles per unit). Did the developer have the right to grant spaces like that to some? For example, what was to stop the developer from granting ALL spaces to one owner? I’m fortunate, I have a space, but many do not. MANY who do are abusing it, or not even parking their car in that numbered spot “in case” they have a visitor. What can be done? Thanks.

Mister Condo replies:

P.G., I am not familiar with the concept of “granting” parking spaces. If the parking spaces are listed on the deed and were made part of the purchase, there isn’t too much the association can do about reclaiming the spaces for the general use of the association. If there is no mention of the spaces on the deeds and the only “claim” unit owners have is a verbal agreement they claim they had with a developer who is long gone, the Board may be able to use the association’s governance documents as claim over the common areas, which typically include the parking areas. If that is the case, reclaiming these spaces is Step 1. Reassigning them is Step 2. Before you try either, consult with the association’s attorney who will give you the correct legal advice to proceed. Understand that this is not going to be a popular decision with the folks who will be negatively impacted. However, fair is fair and right is right. If unit owners have no legitimate legal claim to their extra spaces, reclaiming them is the right thing for the Board to do. This can affect future unit owner’s enjoyment for years to come. Good luck!