Tag Archives: Attorney

Condo Board Lax in Enforcing Leasing Covenants

S.A. from outside of Connecticut writes:

Dear Mister Condo,

There are 17 out of 80 condos that are rented or have rooms rented out with no permission or application submitted by any of these owners or tenants. I have a list supplied by the former maintenance man. I got this when he still worked there. They have refused by request to rent mine out. I am recently widowed and am hoping I can arbitrate based on selective enforcement rules. Also, there seems to not be a census though president claims to mail it in. Do I have a good chance to win?

Mister Condo replies:

S.A., typically, condo governance documents require landlords to disclose who their tenants are and to provide a copy of the lease to the Board or Property Management Company, acting as the Board’s agent. Like any governance provision, it is only as effective as it is enforced. From what you are telling me, your current Board is uninterested in enforcing the regulation. Therefore, chaos rules and it puts unit owners such as yourself in a precarious situation with regards to leasing their own unit. When your case comes to arbitration, it will force the issue with the Board as to why there are so many undocumented rentals in the community and why are they choosing to enforce the regulation only against you. This could put them in a potential discrimination lawsuit position and they may be eager to see it your way and allow your lease. However, when it comes to Boards, attorneys, and arbitration, it is difficult to predict which way the wind will blow on any given day. I would encourage you to seek the arbitration and I wish you the best of luck. I do think that if what you have told me is true, you have a very good chance of prevailing.

Condo Owner Suffers 9 Years Without Kitchen Hot Water!

K.D. from outside of Connecticut writes:

Dear Mister Condo,

I have no hot water pressure in my kitchen. It is a building problem for several units and is on the “to do” list. I have asked about getting a reduced HOA fee as I am not receiving the same amenities as other condo owners. This has gone on for 9 years!!! Whenever I bring it up they assure me it is the next priority. Can I put my HOA payments in an escrow account until the problem is fixed?

Mister Condo replies:

K.D., I am sorry for your problems and your Board’s ineffective management of the repair. No, you cannot withhold your common fees or the Board can foreclose on your unit for unpaid fees over time. What you can do is sue the association for not providing the hot water. Ultimately, that will get you the hot water, which is what you really want here. Saving money on the common fees doesn’t help. Hot water will fulfill your expectation of what the association is supposed to provide. 9 years is far too long to wait. Speak to an attorney and see what you can do to get a lawsuit against the Board in place. They will likely find it less expensive to get your hot water running than to defend against a suit. Good luck!

Curtain Wall Responsibility Questioned by Condo Owner

L.S. from outside of Connecticut writes:

Dear Mister Condo,

Do you know of any condominiums where the unit owner is responsible for curtain walls?

Mister Condo replies:

L.S., I am sorry to say that I do, most commonly where glass is the building material in question. I am not an attorney and offer no legal advice here and my guess is that you will most certainly need one to interpret your condo docs to determine who actually owns the curtain walls. I have seen court cases ultimately make the final determination when associations and unit owners disagree over the curtain wall ownership. Even the state your unit is in will have an impact on the final decision as condo laws vary from state to state. Depending on whether the curtain walls are common areas, limited common areas, or specifically owned by the unit the responsibility will be determined. This litigation process can also be quite expensive so make sure you speak with a locally qualified attorney for an opinion before you proceed with a lawsuit. I hope this all works out for you and your fellow unit owners. Good luck!

Board Cites “Attorney/Client” Privilege in Questionable Condo Document Amendments

E.C. from outside of Connecticut writes:

Dear Mister Condo,

Our Board of Directors are amending our documents without the required 75% of the membership. I was told that two legal opinions were obtained by the BOD stating they have the right to do so. When I requested a copy of the legal opinions, the Management Company said they were invoking Attorney/Client privilege and I was refused. I am an owner of this Corporation and believe these opinions were obtained and probably paid for with my money. Should I be entitled to see these documents?

Mister Condo replies:

E.C., the short answer is “yes” but there are certain caveats in place to protect the Board. In other words, they have the right to withhold the documents during the period in question. I doubt it has anything to do with “attorney/client” privilege as much as it is an action they are taking as an Executive Board, which your governance documents likely give them the ability to do. Either way, if your documents or state law don’t allow them to amend your documents without a 75% vote, these amendments can and should be challenged by you or any other member of the association. You will want your own legal opinion, if necessary. Also, and more importantly, feel free to vote these folks out of office at your earliest convenience. Amending documents should not be done secretly, covertly, or improperly. Regardless of “legal opinion”, the will of the unit owners needs to be respected. These folks were elected to serve, not clandestinely revise the amendments to the association. I would interfere loudly with their plans and then prepare to vote new Board members in to office who will do a better job serving the will of the people. It may very well be that your association needs to revise its bylaws. Holding a meeting and involving the majority of unit owners as outlined in your governing documents is the way to do so. Good luck!

Family Not Welcome in Older Condo Community

D.S. from outside of Connecticut writes:

Dear Mister Condo,

My husband, me, & our preschool child live in a privately-owned condo rental. A senior neighbor advised me that there are no kid bicycles allowed here as well as toys & they will be disposed of. Next, the condo manager came by and accused us of not supervising our child and that he was in the street, also parking lot. Allegations not true. Then another Senior resident came knocking with the condo rules. I read them and gave them back. I received a copy of my own rules and did note it stated there are to be no bouncing balls or bicycles in the common areas. My son and I have been yelled and screamed at by neighbors for absolutely no reason at times so it’s obvious they have a problem with us but we are pretty good people who keep to ourselves. I was told by a senior resident that all the neighbors here do not like us living here. He stated it was because of our little boy. Our car broke down on a Saturday and we went to take the bus, I noticed that I was being followed part way to the bus stop by one of the neighbors. I also noticed that she was on the phone. I told my husband I’m sure she was calling the association and letting them know that our car was broke down. I can’t prove that but we did within about 48 hours receive a notice that we were going to have our car towed within 24 hours because it was not running. There are several other cars in our area that are out of compliance with their rules, they have not received any notification to move their cars and they are also good friends with management. Is it legal for them to tow our car only and not tow other cars that are not following the same rules? We were told to just move if we didn’t like the rules, this was by the manager. We never said this and my husband has responded to them via letter. They have now been threatening to tow the car for 2 weeks at least. But they still have not. We are in process if attempting to sell it as per our mechanics advise. Any help would be appreciated.

Mister Condo replies:

D.S., it certainly sounds as though you and your family are not being welcomed in this particular community. Is this an age-restricted community, meaning it was designed for older residents (aged 55+)? If so, I can see where the presence of a child and a young family is not welcome here. Regardless of the reason, you are on the enforcement side of rules violations and I am guessing that will continue unless you are able to fully comply with the association’s rules. That can be quite the challenge with a young child and a broken-down vehicle. As for the enforcement of the rules, that is the association’s duty. Rules are typically enforced at the request of a fellow unit owner who complains about the violation or by the Board or Manager if so empowered. If you observe other violations, you would likely notify your landlord who would inform the association. The association could then take action against the rule violators if they so choose. It is possible that may have a discrimination complaint against the association but I cannot offer legal advice in this column. If you feel you have a case for discrimination, you should contact a local attorney who could better advise you of your options. If I were in your position, I would speak to my landlord and let him know how you are being treated. I certainly wouldn’t renew my lease and I would consider moving out as soon as possible. There is no reason for you to not enjoy your rental home and I am sure you can find a more family-friendly community. All the best!

FHA Not Satisfied with Condo Reserve Fund

T.S. from outside of Connecticut writes:

Dear Mister Condo,

I am having trouble getting this Condo approved for mortgage financing. I was told that if the current budget does not have a line item for the Reserve Fund, that would make the HOA ineligible. Can you give an example of a budget that shows a Reserve Account? Why is a savings account on a balance sheet not sufficient? The HOA is saying this is the Reserve Account. Please help.

Mister Condo replies:

T.S., when reviewing the condo’s eligibility to qualify for mortgages that are backed by the FHA, the lenders look to see that there is a Reserve Fund and that the association is making at least the minimum amount of annual contribution (Currently 10% of the budget). Local mortgage lenders typically require this stipulation because they want their mortgages insured or underwritten by the FHA. Typically, condominiums maintain FHA approval status as it makes it easier for units to be bought and financed by owners seeking FHA-backed finance options. However, there is no legal requirement that forces the condominium to comply or even maintain FHA approval status, leaving mortgage seekers like you in the lurch. There are mortgage companies that specialize in dealing with FHA approvals and this association might be well served by working with one to achieve FHA approval, making it possible for mortgage seekers such as yourself with better access and option when it comes time to take a mortgage on one of the condo units within their association. It isn’t as simple as having the association claim an association-owned saving account is the Reserve Fund. Good luck!

Bank Still Owns Condo Parking Spaces

Z.A. from Illinois writes:

Dear Mister Condo,

I live in Cook County Illinois. I am currently the President of our Board. The parking spaces in our building are deeded, and 24/26 spaces are currently owned by Unit Owners. However, the Developer was unable to sell all of the garage spaces, even though he already sold all the Units. The bank just foreclosed on the remaining two garage spaces and has stated that they will try to sell the garage spaces to someone outside our building. We would like to create a rule that requires the sale, exchange, or leasing of any garage space must be to a Unit Owner, and not to anyone outside our building. Would you recommend we do this with a simple Rule/Regulation, or do we need to amend our Declaration for this? Thanks in advance.

Mister Condo replies:

Z.A., I am not sure you can do this at all! Since I am neither an attorney nor an expert in Illinois condo law, I need to refer you to someone who can help. There are various stages of a condo. Developer Transition sounds like the one you are in right now. If the bank owns the land, you may not have the jurisdiction to make a rule over their land. You may need to purchase the land from the bank before making any rules about how the spaces will be used. Frankly, I am surprised one or more of the 24 existing unit owners hasn’t pounced on the available spaces seeing as parking is at such a premium in your region. I would recommend that the association consider purchasing the spaces from the bank and speak with your association attorney about what to do with them. My guess is they will provide income for the association over time. Good luck!

Condo Restricts Renters Use of Rooftop Amenity

V.S. from Boston writes:

Dear Mister Condo,

I own a condominium in Boston, MA. The Condominium Association amended the Condominium Trust document with a 67% vote of Unit Owners and recorded it at the Registry of Deeds. The amendment prohibits renters from having furniture on the roof deck. Owner occupants are allowed to have furniture on the common roof deck but renters are not allowed to have furniture on the roof deck. Renters are allowed to use the roof deck but cannot leave furniture up on the roof deck. Can the Condominium Association enforce such a provision or is this discriminatory against the renters? Thank you for your guidance.

Mister Condo replies:

V.S., the answer is “Yes” to both questions. Yes, the association can discriminate against renters regarding the use of the roof. Yes, they can enforce the rule seeing as it was passed properly. The real question is can you now sue the association for discrimination seeing as they have created a “class” of residents called “renters”. I am not an attorney nor am I an expert in Massachusetts state law but your question really needs to be posed to a local attorney to see if it has merit. You are not being denied access to the amenity; you are simply being denied access to have furniture placed on the roof. I wouldn’t think such a case has merit but if you think it is worth pursuing, I encourage you to do so. All the best!

Condo President Refuses to Relinquish Association Checkbook

T.C. from New Haven County writes:

Dear Mister Condo,

We recently changed management companies because they violated CT laws. Our President dragged his foot for 4 months before receiving a letter from the state ordering us to change companies. He was given the check book until we found a company. We found a company and he refuses to turn over the check book. Is this legal?

Mister Condo replies:

T.C., I am not an attorney and offer no legal opinions here. If you are asking me what I think of the President holding on to the checkbook and refusing to turn it over to the management company, I would say that is not a very friendly gesture and not stepping off on the right foot with the new management company. Is it criminal? Not in my book but it isn’t very sportsmanlike either. The great news is that your Board President can be voted out of office at the next Annual Meeting. Why don’t you and a group of like-minded unit owners volunteer to serve on the Board? That way, after you are elected, you can determine who will hold the various offices of the Board. If, on the other hand, the Board President has held the checkbook because there is evidence of missing money or such in there, and he has done something criminal, it is time to call the police. Stealing from the association is a crime. Work with your new management company to see what, if any, wrongdoing has occurred. If there is no harm, there is no foul. Either way, it sounds like it is time for a Board President who will act in the best interest of the association. Good luck!

Condo Board Seeks Solution to No Money for the New Roof

P.B. from Hartford County writes:

Dear Mister Condo,

My Board wants to get a new roof. They set up a meeting for owners to vote on whether to take a 250K loan or not. At the meeting an attorney hired by the board to do the closing showed up and was practically running the meeting and trying to convince owners to give approval for the loan. I objected on the grounds that it was a conflict of interest to have the attorney there running the meeting since no vote was taken and not enough owners showed up for the meeting. Now the attorney instructed the board to go door to door to get proxies filled out. Is that ok?

Mister Condo replies:

P.B., not only is that OK, it may be the only way to get the necessary votes for the loan so the new roof can be purchased. HOA loans or Special Assessments are rarely needed by community associations that plan for the future and build a proper level of Reserves to handle something as common as a roof replacement. But, as is too often the case, the desire to keep common fees low wins the battle for fiscal responsibility. The end result is no money in the Reserves when needed. In this case, the Board has decided to seek out an HOA loan. The reason the attorney is needed is that it is very common that the association’s governing documents do not allow for the Board to take out a loan on behalf of the association. The proxy votes are the Board’s attempt to get the authority to negotiate the loan and obligate the association to the repayment of the loan, which is required from the bank before the loan is granted. As you can see, it often plays out as a comedy of errors before the final vote is taken and the money is loaned. The real question is how will you support the association moving forward? Will you be the one to suggest that common fees are raised 15%, 20%, 25% higher than they are right now? Will you be the one to insist that the association build a proper Reserve Fund and that Reserve Study be conducted so that a proper level of funding can be achieved? Without support for the unit owners, the Board’s hands are tied. If you need a new roof, the money will need to come from somewhere and that somewhere is the unit owners. Whether it comes in the form of a loan, a Special Assessment, an increase in common fees or a combination of any of the three, the unit owners will pay. Good luck!