Tag Archives: Attorney

Noisy Condo Tenant May Get Evicted!

N.A. from outside of Connecticut writes:

Dear Mister Condo,

I have been a noisy tenant in my rental condo. I used to work nights, and I would be unwinding at odd hours. Due to complaints, I even switched my hours to work in the daytime. I still have my night time tendencies. I have been paying tons of fines, but the condo board “will be discussing my issue”. I have been trying really hard to walk on eggshells (keep the TV down, etc…) What can they do to me? Can they kick me out?

Mister Condo replies:

N.A., a noisy tenant is a big problem for a condo association. Unit owners and neighbors complain to the Board and the Board must take action against the unit owner and the tenant of the unit owner – you. Being aware of the problem is half of the battle and you seem to know that you been violating association rules for some time and have paid a “ton of fines”. The idea of the fine is to correct the behavior. In other words, fine the offender a few times and the offender should stop violating the rules. To accrue “tons of fines” means that strategy hasn’t worked with you which puts the Board under pressure to take further action. Without knowing the full details of what options are available to the Board, I will say you and your landlord may find yourselves on the receiving end of a lawsuit seeking eviction. If that happens you will most definitely want to contact an attorney to defend yourself. I have to ask you why you would want to continue to rent in this community where your lifestyle clearly doesn’t fit with the community as a whole? Why not rent in an apartment that doesn’t have as many rules or rent a single-family home where you can live as you see fit. Changing work hours and walking on eggshells doesn’t sound too appealing. You have every right to express yourself as an individual and live as you see fit. However, residing in a condo comes with rules that you voluntarily agree to. If you can’t follow them, you are asking for the kind of trouble you are receiving. I suggest you rethink this particular condo as your home and consider living somewhere more appropriate to your lifestyle. All the best!

Condo Board Installs Fence; Damages Unit Owner Patio

G.M. from outside of Connecticut writes:

Dear Mister Condo,

My condo board just put in all new fencing in the back of the units & between our attached neighbors. In doing so, they removed the retainer wall for my patio pavers. When asked why, they said that it was going to be too close to the new fencing. Fencing is done and there is now a big gap between my patio & the fence (so they were wrong). The pavers are now separating because of the rain and they are refusing to put it back. The President of the Board is my direct neighbor. He “volunteered” to help us put it back. We refused on principal. Why should we have to do anything? They caused the damage they should repair it. Am I correct in my thinking? I have spoken to a lawyer, who agrees with us. But I would like for this to be resolved without having to go that route. I don’t understand WHY they won’t just do the repairs. What are your thoughts?

Mister Condo replies:

G.M., I am sorry for your patio problem although I cannot say it is too surprising to learn that the removal of a retainer wall has made for a problem. That is exactly what retainer walls are for. The real question here is who owned the retaining wall? Unless it was actually a part of your unit, it is likely the property of the association. That doesn’t necessarily mean they should have removed it or left if removed once the fencing project was complete but it may make for an interesting case if you decide to take your attorney’s advice to go after the association to make the repair. Keep in mind that you aren’t going to be the only one with an attorney and the association’s attorney will likely argue that the retaining wall was owned by the association and they had every right to remove it. Your attorney will counter with the fact that the removal damaged your patio (again, built on association property). My opinion is that you very likely should have taken the President up on his offer to help you rebuild the retaining wall. At the very least, you might have offered to pay for the contractor to do the job if keeping your patio intact is important to you. If you prefer to stand on the ground that you are right and the association is wrong, you have every right to do so but I foresee a long and protracted battle while your patio crumbles. Always look for a “win/win” situation. Legal solutions are costly and can take a very long time. The time and money would be better spent hiring a contractor to repair the wall, especially since the Board President seems to be on your side. All the best!

Condo Owner Seeks Relief from Mysterious Vibrating Noises

S.J. from Outside of Connecticut writes:

Dear Mister Condo,

We’ve been hearing strange rattling/vibrating noises coming from the bathroom in our unit. It sounds like it’s coming from the pipes from the wall between our bathroom and flex room. It can get really loud throughout the night. The noise can be as short as 30 seconds to as long as 5 minutes. And we hear this all through the night. We’ve contacted our property manager and the board president and have sent a recording of the sound. Nothing has been done to resolve issue. What can we do? Can we legally withhold our association fees until they start taking our issue seriously?

Mister Condo replies:

S.J., NO! You cannot withhold your common fees! Unwanted noises arising from mechanical or plumbing issues can be a real pain in a condo where you can’t always get at the source of the noise. You have done the proper thing by contacting the Property Manager and the Board. They are not under obligation to act immediately but they do not provide a resolution. Ask for a proper response, in writing, from them about what they plan to do to resolve your complaint. If their answer is to do nothing, then you will speak with an attorney and see what your next step will be. At the very least, the Board should acknowledge your complaint and dispatch a maintenance or engineering person to follow up. Have you checked with your neighbors? Are they having the same problem? There is always strength in numbers so the more complaining that goes on, the more likely there is to be a resolution. Be persistent and be thorough. I am confident that you can have this situation remedied. Good luck!

Disaster Floods Condo; Association Refuses to Remediate Resultant Mold

C.D. from outside of Connecticut writes:

Dear Mister Condo,

My niece owns an upstairs condo unit.  Recently, the bottom unit was flooded by rain to the point of 6′ high.  The area has been declared a national disaster area and FEMA is processing claims.  My niece’s unit has mold growing up her walls and her floor is buckling due to the flood.  The owner of the downstairs unit started working to rid his unit of mold, mildew, etc. but stopped for some unknown reason.  FEMA has told my niece that her unit is a health hazard and needs to be vacated immediately. Here’s the kicker:  They tell her they cannot help her as had the downstairs owner took care of his condo, her condo wouldn’t have felt any effects of the flood.  What say you?

Mister Condo replies:

C.D., I am truly sorry your niece’s condo unit was flooded and damaged. Unfortunately, it would appear we live in a time of escalating natural disasters and many condos around the country have been impacted this past year. How a community association or HOA responds to these disasters can be just as damaging as the disasters themselves. Clearly, your niece has suffered a catastrophic loss here and it sounds like the HOA isn’t doing right by her. This could be because they aren’t familiar with how they should handle this disaster or they may not know where to turn to get the money to make the repairs or there may just be confusion caused by insurance companies or poorly written condo docs. It may be that the downstairs neighbor is also to blame and may be sued as well as part of the money recovery efforts. Whatever the reason, my next call would be to my attorney as this doesn’t look like it will be settled by simply asking the association to make the repairs. Also, if your niece has adequate homeowners’ insurance, she might be eligible for housing costs while the repairs are made. Clearly, she should not reside in a mold-infested unit. This is going to take a while to sort out but I am sure she will get the problem addressed once legal action is taken. Good luck!

Condo Board Denies Unit Owner Driveway Widening Request; Owner Proceeds Anyway!

J.G. from outside of Connecticut writes:

Dear Mister Condo,

One of our condo owners asked the Board if they could widen their driveway to accommodate 2 cars. We, as a board, had to deny the request due to the bylaws regulating common areas. We have discovered they are making plans to proceed without our permission. What can we do to prevent this from occurring?

Mister Condo replies:

J.G., this is the second day in a row I have received questions about unit owners feeling they have the right to do whatever they want in their condo, regardless of the rules of the association. Quite simply, the Board is the enforcer of the association rules and it is up to the Board to make all unit owners comply with the regulations of the community. If a unit owner attempts to modify a common element, in any way, the Board needs to cite them for the violation, ask them to return the common element to the way it was before they violated the governing documents. Further, contentious unit owners who show little regard for the rules of the association often need further “encouragement” in the form of a lawsuit, that not only forces them to comply with the rules but also costs them a good deal of money because they are often charged the cost of the association’s attorney to take action against them. It is unfortunate that it often comes to this but I find it is the best way for the association to protect itself from unit owners who probably don’t belong living in a condominium in the first place due to their lack of consideration of following the rules which make the community a desirable place to live. Good luck!

Condo Owner Modifies Condo Interior Without Board Approval

H.R. from outside of Connecticut writes:

Dear Mister Condo,

Our Small condominium, AKA condex, has one and two bedroom units. A new Unit owner has made changes to their unit without seeking the required permission from the board. The seller notified the association of a new rug to be put in. This was approved. Unfortunately, the new owner took out the old carpeting and put in hardwood floors and added additional rooms to a one bedroom unit. They are currently occupying the space as a non-approved three-bedroom unit. They are also paying the condo fee at a one bedroom rate. What is the most effective way to restore the unit to a carpeted one bedroom?

Mister Condo replies:

H.R., while it would be nice for the unit owner who has broken the rules of the association to simply restore the unit to its previous condition and live in the unit as was agreed to in the by-laws of the association, it is very likely time for the association to hire an attorney and sue the owner to make the necessary changes. Clearly, this unit owner has neither read nor lived up to the expectation and requirements as set out in the governing documents. Fortunately for the association, this is a legal document that gives the association fairly broad powers in forcing compliance. Obviously, the first step is to ask nicely that the new owner adhere to the by-laws and restore the unit to its previous condition. However, if nice doesn’t work, there is always the legal option of suing the owner and forcing compliance. I hope it goes smoothly for the association. This could be a long and costly legal battle if it doesn’t. Good luck!

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!