Tag Archives: Construction Defect

Complacent Condo Owners Liable for Board’s Poor Performance

F.M. from outside of Connecticut writes:

Dear Mister Condo,

I joined the board a year ago. The other board members are there for decades, not by vote but because we never reached the minimum quorum to carry out an election. After investigation, I found several flubs in the past decisions that led us to severe loss to our condominium. One of them, amounts to almost $300,000 in losses with the cost of irrigation water. The association has been paying the local utility company by the highest water rate when it should be 70% lower if they had applied with the utility company for a lower rate based on the size of our property. The lower rate was available since 2008 and it was very easy to learn about. Another issue is the roofs of our buildings. The wooden shakes were replaced in 2004 after damages caused by a hurricane. However, as I learned, the wooden shakes replacement was not done by Standard Building Code. The association did not hire an architect or engineer to guide them in the reconstruction process. As a consequence, the roofs were replaced by local contractors and are now in very bad shape, will not last much longer and the overall aspect is detrimental to our property values. Another issue is the most recent, and involves the resurfacing of our tennis court that had been in bad shape and useless for years. The association knew that the ground soil was sinking and that the soil needed to be addressed beforehand. Instead, they approved a cheap painting for $7,000. The tennis court is visibly off level. Considering the way decisions are made by the board, I am afraid that our condominium will suffer further downgrades if action is not taken to remove and replace the board members. Because of the last recession, more than 50% of our units are now rental units. It will not be an easy task to obtain signatures of 75% of all property owners to remove the board members. My question is whether a legal action to compel them to leave is a valid option.

Mister Condo replies:

F.M., I am sorry for the situation you find yourself in. I am not an attorney so I cannot offer you legal advice as to whether a legal action to compel the Board to vacate their office is a valid option. However, I will tell you that, in my opinion, it is not a valid option for the following reasons. Your association is a privately held, not for profit, corporation. The corporation was founded to govern the association and unless you can cite an explicitly illegal activity, the Board has done nothing legally incorrect. In fact, for decades, the unit owners of your association have returned them to office at Annual Meetings, where democratic elections have been held. Lack of quorum only shows that unit owners didn’t care enough to participate in the governance of their association. Shame on them for doing so as all unit owners have paid the price over and over again for their lack of attendance. If it were me, I would sell my unit and get out before any further financial damage occurred. That is an option available to you. If you wish to remain and try to effect change, you will need to seek other like-minded unit owners to run for election to the Board and get enough votes to win. If you think you have the votes/signatures to force a recall election prior to the Annual Meeting, you can certainly follow the steps on your governing documents to do so. However, with so many absentee owners, I agree with you that would be unlikely. Annual Meetings are typically your best bet for a changing of the guard. You will need to campaign for new Board Members and be sure they are ready to serve. You should reach out to resident unit owners ahead of time and write to absentee unit owners to encourage them to support these new candidates with a proxy vote. Change to association governance comes from within the association. Simply doing an inadequate job of managing the association resources isn’t enough to have Board members removed. It takes a fresh batch of candidates to unseat incumbent Board Members. And guess what? If your fellow unit owners don’t support that change, it isn’t going to happen. Good Luck!

Responsibility for Condo Construction Defect 30 Years After Developer Control

P.Z. from outside of Connecticut writes:

Dear Mister Condo,

During window and door replacement in my condo, built in 1988, it was discovered that there was about 18″ of insulation missing from the walls directly above the windows. It was corrected during the install of the windows. Is the association responsible to compensate me for the expense of properly insulating the space above the doors and windows? The property manager says no, but I think otherwise. What’s your take, please?

Mister Condo replies:

P.Z., in a perfect world, the missing insulation would have been the responsibility of the builder and would have been considered a building defect if uncovered back in 1988. However, that is impractical, if not impossible. In theory, the association takes over after the developer is through (the developer transition period) and assumes full responsibility for all of the common elements. The question now is whether or not the insulation is considered a common element or part of the window. I agree with you and would argue it is a common element where a building defect has been found. However, the association is likely to argue that they are not under any obligation to pay for a hidden item like this because they had no way of knowing there was an underlying defect and they have no recourse with the developer at this late date. That brings us to the practical element of this repair. I can’t imagine it was very expensive. Do you really want to complicate matters by suing the association for the repair? If the dollars justify a lawsuit and/or you feel strongly on this matter, you should speak to a locally qualified attorney to see if you have a case, or you may bring the matter to Small Claims court depending on the dollar amount. If it was $500 or less to insulate the area around the window, I think I would just pay it and move on. The culprit was the developer back in 1988. He made a mistake and was never held accountable for it during the time when he could have been. All the best!

Developer Delivers New Condo Unit with Clogged Toilet Lines

F.M. from Hartford County writes:

Dear Mister Condo,

I bought my condo in a development which is still under construction. I closed on and occupied the unit in October 2015. I have had ongoing issues with the toilet in my unit (there are 2 bathrooms, the other toilet is in proper working order). The builder/seller has replaced the toilet, had a “camera guy” inspect (contractor of his choosing) and claims there are no visible issues. In the meantime, the toilet still clogs at least once a week and the flush is hardly ever smooth (lots of non-normal sounding water flow). My question is about what my options are other than continuing to work through the builder and the contractors of his choosing, if any, since the condo is still clearly under warranty. I do not want to pay for service/repair that is clearly some form of issue with the plumbing from the beginning. However, I also do not want to void any warranty. The builder is not wanting to take responsibility for this or other issues that have been raised since I moved in (paint and other accommodations). Because the development is still building new units, the condo association is still under his control. This is a new experience for me so I want to be sure I handle it properly.

Mister Condo replies:

F.M., the developer control period of a condominium is an exciting time as construction is ongoing and brand new units like yours appear and the association takes on new life, new common areas, and new amenities. The developer’s primary job is to get the units built and sold at a profit. That often means saving pennies wherever possible. In your case, that may be with the plumbing that is causing an ongoing toilet clogging issue. You are wise not to attempt any repair on your own because you would void any warranty between you and the builder. Unless you are willing to undergo the expense of hiring an attorney to possibly bring suit against the developer for a possible construction defect claim, there is little else you can do. There is no association to complain to and this would not typically fall under the association’s responsibility. You may be able to hire your own plumbing or building inspector to get a second opinion but, even if you do, you will likely need legal guidance to assist if a defect claim is warranted. Speaking with an attorney to determine your rights is my best advice. During that conversation, bring up any other construction defect issues you are experiencing. Good luck!

Crumbling Homes in a Crumbling HOA

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D.M. from outside of Connecticut writes:

Dear Mister Condo,

Thank you for your article. I have a townhome that was built substandard, now have both foundation and structural damages. Old HOA Board was kicked out by new Board. Old HOA had committed fraud and embezzlement. New HOA has moved on. They hired an engineer but will not fix or file charges. I have now put close to $140,000 into home and been declined modifications due to damages. Now disabled, I am about to be homeless. I have reported all this to state and federal authorities since years ago. Answer has been it would take $25,000 up to hire attorney with no guarantee of satisfaction. I have prayed for help and have none. What can be done here for justice? I’m now with other owners with no answers and nowhere to turn. What can be done?

Mister Condo replies:

D.M., I am truly sorry for your problems. While I do not know all of the circumstances surrounding your HOA’s plight, your story is not unique. Purchasing into an HOA is an agreement to enter into a business. In addition to purchasing your living space, you are essentially becoming a stockholder in a corporation. In this case, it would appear to have been a poorly run corporation with many, many issues. I am not sure how many of these issues were apparent when you decided to purchase but now that they have surfaced, you are wise to seek legal help. I would not seek modifications for such a property if it were me because it would appear that between foundation and structural damages you have described you may very likely be putting money into a bad investment. You have mentioned a changing of the guard with regards to the HOA Board. However, you have also indicated that the new HOA Board isn’t doing enough to remedy the situation. You must find competent volunteers from within the ranks of the HOA members to guide the association through the turmoil. It may take lawyers, court cases and a lot of legal expense (passed down to homeowners like yourself) to get through this quagmire but it is necessary if the association is to get back on track. Support interested volunteers for the Board and do not reelect ineffective leaders. If the association does not get back on track, it is very likely to fold under its own weight. Unit owners can only bear so much expense before they become upside down in their homes and bank foreclosures loom. I can’t promise you a rosy future at this HOA but, form what you have told me, it is likely to get worse before it gets better. Good luck!

Static Noise in Condo Caused by Unknown Source

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T.L. from outside of Connecticut writes:

Dear Mister Condo,

I have a static noise coming from one interior wall in my condo living room. When I apply pressure to the wall the noise stops. It is only happening on the last 4 weekends. Any ideas what it could be or how I can get it to stop?

Mister Condo replies:

T.L., I am sorry for your discomfort. I am not a building engineer or electrician but if what you are describing is a static noise, I would think it is in your best interest to have a building expert take a look, listen, and even a measurement to make sure you aren’t experiencing some type of electrical short circuit that could cause a shock or fire hazard. If the source of the noise or static seems to be from within your unit, it may be on you to bring in a building inspector or electrician to give a listen and pinpoint the source. If the source is an association-caused issue (a faulty sump pump, an overloaded electrical line, etc.) then report the problem to the association for remedy. If it is something else (a refrigerator, a treadmill, other appliance that you own) you should take measures to remove the problem. If the static noise is caused by a neighbor’s electronics, report it to the Board and they should see what can be done to remedy the situation. Be careful, don’t get hurt, and seek professional help to solve this mystery. Good luck!

Condo Board Decides to Replace Decks That May Not Need Replacing!

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S.D. from outside of Connecticut writes:

Dear Mister Condo,

The board wants to replace porches that were built 11 years ago according to City Code. I hired an architect and discussed this with the city and they agree that they are not dangerous. Yes, codes have changed but this would be grandfathered in.

I keep asking the board why we are doing this and the only answer is that there are code violations but refuse to be specific. This venture will be paid for by 3 years of special assessments probably in the $50,000 – $70,000 range. They cite the porch contractors as the source of information.

Mister Condo replies:

S.D., taking a proactive approach to safety or unit owners and guests is a Board responsibility. Making this decision may be at the Board’s discretion if that is what your governance documents call for. If the Board’s only source of safety information is coming from the contractor who has a vested interest in being awarded this project, they are not being all that prudent with the association’s funds or, as is the case here, with the association’s lack of funds which will lead to a special assessment. I am not an engineer and offer no advice here on the safety or lack thereof of these decks but it would seem to me that before the Board spends a significant amount of money rebuilding an association asset that may be in perfectly good working order, they should likely have a neutral third party (like you did) offer a professional engineering opinion.

If you follow my column on a regular basis, you probably know what I’m going to say next. The Board members are volunteers from within your community. They are democratically elected by you and the other unit owners within the condo. If they aren’t doing a good job protecting the association’s assets, it may be time to look for new volunteers. Perhaps you would consider serving on the Board, S.D.. It would seem to me that you already understand the concept of stewardship and financial prudence that would benefit your association. Good luck!

Condo Chimney Liner Improperly Installed; Who Pays for Repair?

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C.G. from outside of Connecticut writes:

Dear Mister Condo,

We had our chimney cleaned recently and the company that did it found that the prefab liner is constructed of an insulated metal chimney pipe, the metal chimney pipe was improperly connected to the fireplace unit and the HOA says is our responsibility to fix it. We asked the company that did the cleaning how could that happen? They said when they were installing it that the person that did it didn’t know what they were doing. Any thoughts? Help please.

Mister Condo replies:

C.G., improperly installed items such as your chimney pipe are a construction defect. The real question is who owns the element. If it is owned by the association, you may have a case for getting them to make the repair. If you own it, the repair may fall upon you. The other question, of course, is expense. If it isn’t terribly expensive, I would suggest you simply pay for the repair and get the problem solved. If it is terribly expensive, you may wish to track down the original builder and see if they will make good on the installation or you may need to sue them to make good on the installation. All of these solutions cost time and money. If the repair can be made for a few hundred dollars or so, I would advise you to just get it done and move on. All the best!

Declarant Leaving New HOA With Unfinished Roads

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M.K. from Middlesex County writes:

Dear Mister Condo,

We have an 8-year old condo community that is under Declarant (D) control who has recently hinted he is ready to relinquish control to an HOA. The problem is that the road paving is not completed with only a deteriorating base present and no top coat. Declarant has repeatedly stated he will not finish road until all lots built on due to fear of construction vehicle damage. I fear he will leave us with a road still needing finishing and no reserves for it. Issue is not addressed in our documents. Any recourse?

Mister Condo replies:

M.K., Declarant control issues are quite different from the vast majority of questions I receive at Ask Mister Condo. While I was fairly certain of the answer, I called in some help from an attorney who specializes in community association laws here in Connecticut. Here’s what the attorney had to say:

“The answer to your question will depend on exactly what the project plans, zoning approvals, and individual purchase contracts say, although usually complete construction of permanent roadways suitable for normal use is considered part of the implied warranties for each unit sale.  Get the association’s attorney involved to keep a close eye on the developer’s progress.  If it looks like the developer will disappear or become insolvent before the roads are completed, the courts may be able to offer remedies.  If a violation or even a potential violation can be proven, it might be possible to secure the money needed to complete the roads with an attachment, functioning like a lien, against the developer’s unsold units.”

Sounds like great advice to me, M.K.! Best of luck to you!

Condo Foundation Crack Creating Multiple Problems

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K.D. from Litchfield County writes:

Dear Mister Condo,

Some type of foundation crack and hole caused extensive damage to our condo that lies beneath the foundation. Last year, 2 days after we moved in, the water came pouring in every time it rained. Building Inspector, builder and Property Manager all confirmed water coming from above. It was fixed supposedly last year in June. We spent $4,000 to repair the inside of our unit. The leak is back and now the manager has a bad attitude towards us! Filed a complaint with DCP. Have not heard back yet. A contractor did come to see leak but manager wants to get more opinions. He did same thing to delay work last year. Do we have any other recourse? We can’t afford all this expense as we are also dealing with illness in the family.

Mister Condo replies:

K.D., I am sorry that you are dealing with a family illness and all of these building issues at the same time. I am sure that is quite trying and difficult. I wish you well in dealing with the illness and would like to offer a few suggestions as how best to deal with your leaks and subsequent water damage.

You did not mention whether or not you have sought legal representation. My advice is for you to speak with an attorney in short order. It is unfortunate that you are going through these water damage issues but from what you have told me, it looks like there may be some construction defect issues here and they almost always end up in litigation. The likely chain of events is that you will sue the association and the association will then bring suit against the builder. These things can take years to settle so this is not a quick fix by any means. However, the sooner you get the wheels turning, the sooner you are to having a permanent solution.

May I assume you have purchased homeowners insurance? Here in Connecticut, the type of policy is HO-6 and if you don’t have it, you need to get it. A new policy won’t help for the damage already done but it will cover you for future damage, which is likely to occur until this problem is remedied. Also, be sure to have temporary dwelling coverage added to the policy. This coverage will allow for you to be domiciled someplace dry and safe while this problem gets fixed. I am concerned for your safety and that includes the very likely possibility of mold as a result of this ongoing water intrusion. This type of coverage may be a lifesaver if you need to vacate your unit for repairs or mold remediation.

Finally, it would be a good idea for you to keep in close contact with your Board via regular letters and photos showing the damage. The Property Manager works for the Board and is accountable to them for how they handle interactions with unit owners such as you. If you are dissatisfied, you should alert your Board who can take appropriate action, up to an including terminating the Property Manager. Your report to DCP may or may not be followed up on, as DCP is busy with so many things in our state, not just condos. Your Board, on the other hand, is completely vested in your association and its management. They are in a far better position to help you.

Keep in mind that dealing with your issue is just one of a myriad of things that the Property Manager deals with on behalf of your association. Having a bad attitude towards you is not a violation of any ethical code I am aware of and could just mean this person was having a bad day or reflecting back how they were being treated. You need as many friends as possible during this process so may I suggest you offer an olive branch back to this Property Manager so you can both work together to solve your problem?

Other than that, there isn’t too much you can do right now, K.D.. It sounds like the builder is working towards a resolution and it sounds like contractors are being considered. Getting second and even third opinions may not be a bad idea, as the original solution applied didn’t work. Protect yourself, get a legal opinion to guide you, and hope for the best. I’ll be sending positive thoughts your way to help! Good luck!

Condo Contractor Unlicensed and Uninsured

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D.S. from outside of Connecticut writes:

Dear Mister Condo,

I used the contractor who does work for my building (who said he was licensed) to install a floor in my kitchen. Unfortunately, he caused extensive damage to my kitchen. He is refusing to compensate me and the building refuses to get involved. Turns out I think he is unlicensed as he is not listed with the Department of Consumer Affairs (whom I reported him to). I have asked the building for a copy of his insurance information now that I need it and they have not responded even though they originally said I had to provide them with the contractor’s insurance info before I had the work done. But because I used the contractor who regularly does work for the building I assumed his insurance info was on file. My question is this: is the building responsible for the damages if he turns out to be unlicensed since they are using an unlicensed contractor whose status they did not reveal to me and additionally let him do the job on my apartment without the proper insurance?

I submitted a claim to my homeowners insurance and my claim was denied. This does not seem fair, my apartment is only 6 years old and was in excellent condition before the contractor damaged it. Do I have any options to obtaining compensation from the building, the contractor or the Department of Consumer Affairs?

Mister Condo replies:

D.S., this is a most unfortunate situation and right off the bat I am advising you to seek legal representation in this matter as it is very likely going to end up in one or more lawsuits. At the heart of the matter is the word “ASSUME” and like the old joke says, we all know what happens when we assume. At face value, I would say you made a big mistake when you hired this contractor and ASSUMED he was licensed and insured. Providing a copy of a license and proof of insurance is the first thing any reputable contractor does before they bid a job or begin work. Also, according to you, your association REQUIRES this information be put on file with the association before any work begins. This is standard operating procedure for all associations that I am familiar with (although all do not follow as closely as they should). You ASSUMED this information was on file with your association because this contractor already works for the association. While I can see where you would come to that conclusion, I do not think you will be able to get around the requirement to provide that information to the association (which you failed to do) for the work that was done by this contractor.

All that being said, you have now ventured into an area where an attorney may be far more helpful to you than I can be. I am not an attorney and only offer friendly advice in this column. You may find that an attorney will give you different advice and be able to assist you in recovering from your losses. In my opinion, your ASSUMPTIONS have cost you dearly and neither the association (they didn’t order or authorize this work) nor the Department of Consumer Affairs (they don’t compensate for faulty work; they do track and take action on licensing issues) are likely to compensate you. Your best bet may be going after the contractor but before you do, be sure to weight the expense of a lawsuit versus simply hiring another contractor (who is licensed and insured; NO ASSUMPTIONS!) to come in and make the necessary repairs to get your unit looking the way it should. Good luck!