Tag Archives: Attorney

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!

Jersey Co-op Unit Owner Strong-armed into Questionable Repairs

L.S. from New Jersey writes:

Dear Mister Condo,

I have unit in a large co-op (almost 500 units) which is rented out. The Manager of the co-op is pushing me into renovation of 2 bathrooms in this unit. The claim is that high moisture reading in adjacent hallway is caused by my bathroom. The reading of moisture is provided by co-op engineer who does what Manager wants. The Board doesn’t want to help. The Manager has only 2 approved contractors who do all work in co-op and gets paid from them (no proof, all cash). The Manager has same bullying background and law suit from previous work place (co-op) requesting unit owners to do unnecessary repairs and getting kickback.  Both bathrooms have no visible defects and look perfect from inside. What can I do? The Board doesn’t respond to my complaints. I wrote to them showing Manager’s background. All correspondence goes through Manager. Is there any organization that protects unit owners in co-op in NJ?

Mister Condo replies:

L.S., thank you for writing. I am sorry for your situation. I am not an attorney so I cannot offer you legal advice. You are describing a particularly legal situation that may very well require legal action to settle. Further, since the Board isn’t amenable to take your side and question the tactics of the Property Manager, that leaves you alone in your battle. If you can’t afford an attorney to represent your best interests you may have little other practical choice but to sell the unit and buy elsewhere.

In NJ, the Department of Community Affairs is tasked with investigating allegations of HOA abuse, which this may fall under. Their website is http://www.nj.gov/dca/divisions/dhcr/ and I encourage you to look there and see if there isn’t a resource to assist you. Good luck!

Condo Deed Need, Indeed!

R.K. from outside of Connecticut writes:

Dear Mister Condo,

My parents are the original owner of the condominium where they have lived since 1966. I am their son writing this question. I’m in Chicago. Unfortunately, I cannot find the paperwork to see if the two parking spaces were “deeded” when they purchased in 1966. For the last 7 years, I have parked in their assigned spaces. My brother is also a legal owner of the condo but does not park his car in one of the spaces. When my girlfriend visits, she parks in one of spaces. It’s an indoor garage. Best as I can tell, another unit owner wants to take one of the spaces for me in exchange for his outdoor space. This is my best guess as I received a letter from a lawyer’s office that claims he represents the condo association. His letter has threatened to tow my car if I don’t give up space 34 within three weeks. I don’t want to give up the spaces for two reasons. First, since my brother is part owner of the condo, both my brother and I consider one of the spaces his. Also, if I want to sell the condo, I want to be able to offer the new buyer two of the indoor garage spaces as there’s benefit to me as the seller. Once again for the greater part of seven years my car is usually parked in the center of the two spaces and again one of the space is often used by my girlfriend. Based on reading other questions and appears I have to know how the spaces were deeded in that regard since I can’t find the paperwork. The condo board should have the original paperwork, right? I would appreciate your answer. And I will also be contacting my lawyer since the condo association never talk to me about the spaces before they had their lawyer send me the threatening letter.

Mister Condo replies:

R.K., in many ways, you have answered your own question. Your local County Land Office should have the original deed on file. It is highly doubtful that the Condo Board has a copy of the deed. What they do have is the Declaration and by-laws (so should you) that likely described the common areas, including the parking lots and spaces. Deeded parking is yours, association-owned parking is theirs and they can do with it as they see fit. Since you have already hired an attorney, my best advice to you is to go with what the attorney tells you. If you can produce a copy of the deed showing the two parking spaces as yours, this situation should be brought to an expedient close. If not, your attorney can best advise you of the steps you need to take to protect your rights as a unit owner. Good luck!

Condo Board Candidate Withdraws from Race and Assigns Votes to Another Candidate

D.C. from outside of Connecticut writes:

Dear Mister Condo,

My condo is in the process of elections. Ballots are out and are due in 11 days. One of the candidates decided she does not want to be on the board. So, she sent out an email informing the association and says she is putting another homeowner in her place. And noted that all her votes will go towards the new person. Is she allowed to do this? Or does she resign if she is elected and then the board decides on a new person? Or do the other 5 candidates automatically get on?

Mister Condo replies:

D.C., I am sorry that I cannot answer these questions immediately as I handle them on a first come, first served basis. Your elections are already over but here’s my advice in case this comes up again. Refer to your specific governing documents to see what it says about elections. Most are quite explicit in the methodology and include the requirements for becoming a candidate and the election process. My guess is that what this nominated candidate has done is not allowed or even addressed in the documents. She is attempting to provide and undue influence on the outcome of the election and while it may not make any difference to the outcome of the election, it is an unfair practice. As a candidate, you have two choices – run or don’t run. You don’t get to tell the electorate where your votes are going. They go to you or they go to an opponent. They are not “yours” to delegate to another candidate as if a vote for you is a proxy for you to do with as you see fit. Depending on how this election went and how satisfied or dissatisfied the association members are, they could either accept the results or challenge them (which could involve a lawsuit and/or another election). If everyone seems happy, my advice is to let things lie and don’t ever allow this person a chance to interfere in the democratic election process again. It is unfair and puts the association in a precarious legal position at the least, and at a possible lawsuit position at the worst. Instead of a win/win, it is a lose/lose proposition. Good luck!

Subletting the Condo is Against the Rules but Who Can Sue?

M.B. from outside of Connecticut writes:

Dear Mister Condo,

I am about to enter a legal dispute with the inspector that performed the inspection of my condo prior to purchase. I currently live in the condo with two roommates. The Master Deed states that any lease or occupancy agreement should be in writing and should apply to the entire unit, not merely a portion thereof. There are only 4 units in the condo association and they all know that I live with roommates. No one has a problem or intends to take action against me at this time. For legal purposes, can I get around this clause by creating a lease that encompasses the entire condo with a total rent due each month for the entire unit vs. separate bedrooms?

Additionally, can someone outside the condo association, such as the inspector, file a claim against me for violating the Condo Bylaws? Would that hold up in court if the other unit owners/Condo Association members do not wish to take action?

Mister Condo replies:

M.B., I am sorry you find yourself in this somewhat precarious situation. The term for what you are doing is subletting and many condo association documents do not allow for such activity. There are a variety of reasons for this but suffice to say that if your association has a clause that prohibits you from doing what you are doing, you are on shaky ground here. The good news is that it is up to the association to take action against you should they choose and, from what you have stated here, they aren’t interested in doing so. Unless there are local or state laws forbidding the action of subletting (uncommon, in my experience), you and your roommates should be fine. I am not sure how the inspector of your unit fits into this equation as inspectors are typically charged with the soundness of the structure and your issue has nothing to do with that. I am not aware of anyone other than the association being able to take any action against you that violates the condo’s governing documents as they would not have the authority. However, if local or state laws are being violated, that is another story. If you are sued by anyone, my advice is to hire your own attorney and counter the suit. From what you have told me, you would likely prevail against anyone other than the association. Keep in mind that I am not an attorney nor am I an expert is your local or state laws regarding leasing and subletting. For a proper legal opinion, seek the counsel of a qualified local attorney. Good luck!