Tag Archives: Attorney

Young Couple Seeks Entry Into 55+ Condo Community

S.M. from Florida writes:

Dear Mister Condo,

We are a young couple interested in a condo that at the moment is not an over 55 age restricted community, but the tenants are trying to make it a 55+ community. If we purchase the condo now, and it becomes a 55+community later, what does it mean for us? We live in Florida. Thanks.

Mister Condo replies:

S.M., I would recommend that you speak with a local attorney about what would happen to you if the community decided to become a 55+ association. I am not an attorney so I cannot offer you legal advice. From a practical standpoint, I am not sure why you, as a young couple, would want to live in an age-restricted community. I am going to assume that once you are an owner, any rule or covenant changes such as becoming age-restricted are subject to “grandfathering” of current unit owners, meaning you wouldn’t be forced out of your home just because the age restriction went into place. The bigger challenge for the association may be adhering to Florida’s 80/20 rule which basically states that 80% of the units must be occupied by a person of the stated age group. There are a few other requirements as well, which you can read about in this excellent blog article: http://www.floridacondohoalawblog.com/2010/04/01/55-over-housing-what-is-the-8020-rule/ The bottom line is whether or not you will find life in a 55+ community to your liking. If you think it is the lifestyle you want and there are currently no restrictions in place, you may be just fine in making your purchase. However, you might also consider nearby community associations without these restrictions as you find the lifestyle there more compatible to folks in your age group. Whatever you decide, I wish you an enjoyable new home

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 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!

Outside Condo Stairway Being Treated as Unit Owner Responsibility

J.L. from outside of Connecticut writes:

Dear Mister Condo,

I just received a letter stating that I have to replace the rug on the outside stairway of a four-unit condo. The building has a first-floor landing and stairs that go to the two second floor units that are in open air under the building roof. Isn’t the stairway considered a common area?

Mister Condo replies:

J.L., generally speaking, any shared portion of a condominium such as an externa staircase as you have described would be considered a common element, owned by the association. But, just because you and I think it should be a common element, small condos like yours often come with unusual wording in the condo documents which might cast some doubt as to who owns what. You need to look at the condo documents and see if the staircase is described as part of your unit or a common element. If the documents are unclear as to the ownership of the stairs, you would do well to question the cost of the carpet replacement. You might wish to hire an attorney to review your documents and give you a proper legal opinion. I would certainly push back before simply paying for the carpet. Good luck!

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!

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!

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!

Condo Association Not Paying Bills!

H.F. from Hartford County writes:

Dear Mister Condo,

Help! My condo association is not paying its bills! What can be done?

Mister Condo replies:

H.F., that is shocking! If your condo association is unable to pay its bills, it is likely a sign of a very large problem. The annual budget should take into account all of the likely expenses for the year and offset that expense with common fees and assessments if needed. If many unit owners default on their common fee or assessment payments, the association could find itself out of money when the bills come due. That can lead to many problems for the association, especially if a vendor sues the association. A court of law could order the association into receivership, where a court-appointed receiver (usually an attorney) takes over the finances of the association and will issue assessments and take other actions to get the association back on solid financial footing. Let’s hope it doesn’t come to that. Ask to see the books of the association and see if you can figure out what has gone wrong. Encourage the Board to raise the funds they need to pay their bills. The alternatives are dire. Good luck!

Noisy Neighbor Making Condo Life Unbearable for New Owner

A.M. from outside of Connecticut writes:

Dear Mister Condo,

I know you get a fair amount of questions about how to deal with noise in condo living situations. Here’s another one. I just moved into a unit in a rather large building, back in February. On the night of the walk-through I noticed that in the master bedroom I could hear the next door neighbor’s television. The former owners joked at the closing that the neighbor was fond of westerns and classical music (meaning they were familiar with the noise). Said former owners slept in the guest bedroom and used the unit as a weekend home, so they were not here very often nor did they sleep in bedroom with noise.

I do sleep in my master bedroom. The neighbor is an eighty-five-year-old man who has owned here since the seventies. (I know this because on the only occasion I have had to actually address my concern about his loud television in the middle of the night, he told me that he had lived here for forever and that I should sleep in my master bedroom…) I expect quiet, to the degree that I can get it. I had not expected that I would have to deal with loud television sounds in the middle of the night. The neighbor is pretty deaf and perhaps unaware (?) of how loud is his television. He definitely has a sense of entitlement because of his length of ownership. Are there tools that can assist an elderly person with knowing if they are going above a certain decibel level with their noise?

I am in communication with the management company. So far, they have done nothing about the issue. Instead, they suggest that I have someone come into my unit to ascertain if I am truly hearing something. Considering that I am a light sleeper and have really good hearing, and that their suggestion is based on a truly subjective meter, I’m pretty sure I will not allow someone in my unit at 1:00 a.m.. So, mostly I write emails that don’t get a response and call the door person and don’t get relief.

Any suggestions?

Mister Condo replies:

A.M., I am sorry that you find yourself in this position within your own home. Some condo governance documents are quite specific on acceptable noise levels; many are silent on the subject and simply call for peaceable enjoyment of the premise, which leaves a lot of wiggle room for both the Board and the unit owners. The vast majority of unit owners live by the Golden Rule: Do Unto Others as You Would Have Done Unto You. However, if you have neighbor that is hard of hearing and is unresponsive to your requests to keep the noise down, you now have to look at other options. While your Property Manager may not take action, your Board doesn’t have the luxury of ignoring your formal request to take action and enforce the association’s rules on noise, whatever they may be. Start with reviewing your condo documents to see what they say about acceptable noise levels. Make a formal complaint to the Board, in writing, and site the by-laws that support your complaint. Then, follow up with the Board to make sure they do take action. If your neighbor is violating rules, they can fine him. He will resist and play the “I’ve been here forever” card but that has no legal importance whatsoever. If the Board thinks he is violating the noise rules, they can take action to correct his behavior. You need to continue to document each time he breaks the noise rules and report to the Board when he does. In other words, be a squeaky wheel. Make your problem their problem. If you still get no relief, speak with an attorney to see what other legal actions may be available to you. My guess is it won’t come to that but that would be your path to relief. Good luck!