Tag Archives: Legal

Board Dragging Heels on Simple Repair Project

K.W. from outside of Connecticut writes:

Dear Mister Condo,

Condo association has accepted responsibility to fix a pipe in a carport roof that freezes in low temperatures. It paid an engineer to recommend a fix. However, it has failed for 2 years to initiate a repair and will not give me the engineer’s report. My attorney has demanded action but has received no response. What can I do?

Mister Condo replies:

K.W., I think you are already doing all you can do. You have hired an attorney who will look out for your best interest in this matter. Since the association has acknowledged ownership of the problem, there really isn’t too much else you can do. Any idea what the delay is? Is it an expensive repair? My guess is they are just going to wrap the pipe in insulation and try not to make it too unsightly. Unless there is more to this story, I am not sure why it is taking them two years to handle this simple matter. Keep on top of your attorney and the Board to make sure the project gets done. Other than that, follow your attorney’s advice. Good luck!

Condo Owner Flooded Twice by Vacant Unit Above

D.B. from outside of Connecticut writes:

Dear Mister Condo,

Our 2-level condo was flooded last week for the second time in 17 months by a bank-owned unit above ours. The first time the above unit was unfinished and not winterized; a pipe burst, flooded us below and we were out 47 days for repair. This time the bank owner’s subcontractor broke a sprinkler head, resulting in more damage than last time. What is our legal status with owner and with subcontractor? Settlement? Lawsuit? Other remedies? It will be repaired but we will be out an indefinite time.

Mister Condo replies:

D.B., I am so sorry for the double whammy you have experienced. I can’t even imagine the heartache and inconvenience these back-to-back disasters have caused you. Unfortunately, the nature of having units stacked on top of each other creates the possibility for exactly the types of problems you have experienced. The good news is that insurance covers most of the loss. The bad news is that lawsuits are typically only used for your “out-of-pocket” expense. They rarely cover paying you back for your inconvenience and time. I don’t think I see the basis for a lawsuit or settlement based on what you have shared with me. However, I am not an attorney so I offer no legal advice in this column. If you think you are entitled to damages above and beyond what has been offered, you should seek the advice of a local attorney who can best guide you. I wish you dryness and a comfortable living space moving forward. Good luck!

Board Attempts to Reassign Limited Common Element Responsibility to Unit Owners

A.F. from outside of Connecticut writes:

Dear Mister Condo,

On the limited common area behind my home, a tall retaining wall runs behind 4 of the 48 cottages in our condo development. The Board of our POA wants to reassign responsibility for a portion of that wall to each of us. Two problems: it is a retaining wall, which is a structural support for our homes, plus my insurance agent says that homeowners and liability policies sold to condo owns do NOT cover any thing in or on limited common or common areas. Can the board assign responsibility for something that homeowners cannot insure for?

Mister Condo replies:

A.F., the Board can try and you can fight back with a lawsuit if necessary. While I have no particular knowledge of your governing documents or your state’s laws on common interest real estate, I sincerely doubt the Board can legally reassign any common element, limited or otherwise, to an individual or group of individual unit owners. Such a change, if possible, would likely require a supermajority of unit owners to agree and would basically require a rewriting of the incorporation and governing documents. Neither of these is easy and would involve the services of an attorney specialized in common interest communities. I offer no legal advice in this column but I would strongly suggest you speak with a locally qualified attorney to seek legal advice should the Board decide to push through this measure. All the best!

Rats in the Condo Attic; Rats on the Condo Board!

J.S. from California writes:

Dear Mister Condo,

I live in a 100+ unit condominium development in California. My question is whether the current board is under any obligation to correct mistakes made by a past board? Specifically, a past board denied my request to do work clearly in the common area as defined in our CC & R’s. That area is the attic above our unit where there was significant rat infestation. The board authorized the pest control company that we have on annual contract to close out all the openings allowing the rats into the attic and to remove all dead rats and rat traps. The board refused to remove the fouled attic insulation, clean the attic and replace the insulation. The local county Vector Control District recommended the clean-up and insulation replacement to protect us and our downstairs neighbor (there is a fresh air make-up duct to her unit from our attic) from possible contamination of virus, etc.. Our general contractor (we were having a lot of remodeling done including plumbing, electric and HVAC all of which required workers in the attic space) refused to begin the remodeling until the attic was properly cleaned to protect his workers. After finding out much more about the past boards’ and current boards’ position on repairing damage in units (they have been paying to restore, repair, replace damaged items from water leaks even if those items are in the “unit” and not contained in the common area, an act specifically against rules in our CC & R’s) I resubmitted a request reimbursement for the cost to clean out the attic and replace the insulation which I had done at my cost after the past board had denied the request to pay for the work. The current board is waffling on whether to reimburse me or not fearing that they should not open a can of worms and reverse a previous board. Doesn’t the fact that we are a California corporation require the current board to correct a past board’s mistake when that mistake is brought to their attention? Doesn’t the corporate responsibility to act in accordance with the CC & R’s continue regardless of which board is in place? Thank you.

Mister Condo replies:

J.S., I am sorry for all of your problems. Rat infestations and the resulting potential for hazardous conditions is no laughing matter and the failure of the previous boards to take corrective action is appalling. However, the sins of the father are not necessarily vested upon the son in the form of the current Board. You should have sued the association for not taking the proper action back when the infestation and resulting damage was going on. You were not authorized by the Board to pay for the attic cleaning and insulation replacement. In fact, since you do not own that space, you really shouldn’t have done that. That being said, I would have done the same thing under those conditions rather than risk my own health due to an incompetent Board. So where does that leave you now? Obviously, the good news is that you have remediated the damage and are living in a healthy environment. You have asked the Board to reimburse you for the work and while I agree with you that they should, they are correct in that it sets a dangerous precedent of having unit owners handle repairs that the Board is responsible for and then obligating the Board to reimburse the unit owner for the work. Quite simply, that is not how things work in a condo. When common elements are damaged, the association needs to make the repair, putting them in control of hiring the contractor, negotiating terms, etc. You usurped that process when you took care of the problem on your own. Had a previous Board authorized your action, then it would be as simple as you submitting your receipts for reimbursement. Instead of asking permission, you now need to beg forgiveness. The Board is under no obligation that I am aware of to pay you back so ask politely. If the dollar amount is large enough, you might wish to speak to an attorney to see if it is worth pursuing. Otherwise, see what the Board does, hope for the best, and be happy that you have a rodent and disease-free living space. All the best!

Condo Manager Claims Unit Owners Cannot Assist Someone Who Falls

J.T. from Texas writes:

Dear Mister Condo,

A lady trips and falls on condo grounds and just needs assistance to stand up but no one will help her. The condo manager says it’s against the bylaws. We have the Good Samaritan law in Texas so I don’t understand why no one can help. What do you think?

Mister Condo replies:

J.T., what litigious times we live in that we cannot help our fellow man when they need our assistance for fear of a lawsuit! I would ask the condo manager to show you where it says no one can help someone who has fallen on the common grounds. My guess is that this is a misunderstanding of how the insurance regulations read about “slip and fall” type accidents. The insurer may insist that people who fall get medical evaluations to protect the insurer in the event of a lawsuit after the fact. That being said, it is very sad that we are being told not to help a fellow human being. If it were me, I would help and I would certainly want someone to help me or a loved one if they fell. Get the clarification you need and always practice kindness. This world is a negative place without it. All the best!

Irresponsible Dog Owner Concerns Condo Residents

L.H. from outside of Connecticut writes:

Dear Mister Condo,

We are senior citizens who have filed 10 complaints about a resident who does not leash his German Shepherd dog in the common areas, e.g., hallways, elevator, garage. We live in the same building as this resident. The CCR’s require all dogs to be on a leash. The HOA stated the attorney is working on our issue. They have yet to levy a fine on this resident. It has been 8 months and the resident is verbally abusive to us. What can we do?

Mister Condo replies:

L.H., I am sorry that you have such an irresponsible pet owner in your association. Honestly, it sounds like you can do all you can do. Once the association attorney is involved, it is up to the Board and the attorney to take the next steps. Hopefully, this dog will not attack you or any other unit owner before the dog’s owner leashed the dog and follows the rules. Sometimes, you just get a jerk living in an association. This is one of those times. If the verbal abuse continues, call the police. Protect yourself as best you can. My guess is that the attorney’s involvement will help correct the situation. Good luck!

Leaking Toilet Causes Condo Water Bill to Triple!

J.C. from outside of Connecticut writes:

Dear Mister Condo,

Our condo association consists of 12 units that share a common water meter. Earlier this year we noticed that our water bill had suddenly more than tripled, and an inspection of each unit by the board determined that the cause was a constantly running toilet in one of the units (the continually-spinning water meter usage indicator stopped on a dime the moment that the water supply to that toilet was turned off; the toilet was fixed and our water bills subsequently returned to normal). Based on a review of our prior water usage history, we estimated that approximately 200,000 gallons of water was wasted at an excess cost of $1,500, from the time the toilet began running until it was repaired. Our board proposed a 50/50 split of this added expense with the unit owner of the broken toilet (the unit was occupied at the time by college students who likely never reported the toilet problem to their landlord), to which the unit owner tersely replied: “Not going to happen.” Is the condo association within its rights to demand that the unit owner cough up an additional $750 beyond regular monthly assessments to cover half of the excess water charged caused by the constantly running toilet in their unit?

Mister Condo replies:

J.C., the answer is “it depends” but most likely “no”. What it depends upon is the wording of the governance documents. If water is supplied as part of the common fees and there is no verbiage assessing penalties or expense to individual unit owners for excess water usage then the unit owner was right to refuse the charges. Also, there is an issue of documentation. Since your water is all supplied on one meter, you cannot say with any accuracy that all of the excess water was used by this one unit. Maybe another unit owner turned on a faucet and let it run during the same period of time. How would you know? How could you prove all of this water was consumed by this particular unit owner? It is unfortunate that the association has incurred this additional expense. However, the only way to prevent such an issue in the future is to submeter each unit’s water consumption (involving an expense of submeters) and also revising your documents to read that each owner is responsible for his/her water consumption. The local water company would bill the association and the association would then bill the individual unit owners. Short of that, the unit owner is correct in denying the charge. Good luck!

Condo Board Member Employed by the Association

M.A. from New Haven County writes:

Dear Mister Condo,

We have a unit owner in our condo complex who is not only a board member, but works for the association that runs our complex. Is this legal?

Mister Condo replies:

M.A., it is perfectly legal although it is not always wise. Employees of the association work for the Board. As a Board member, this employee is effectively his/her own boss. That creates potential conflicts of interest in area such as accountability, job performance, pay, and the ability of the employer to terminate the employee for poor job performance, etc.. Typically, Board members excuse themselves from voting on any issue that is employee-related. However, in many smaller associations that is not practical. I have found that in many times, Boards like to have “one of their own” on the job as they feel they are getting true dedication. After all, the work this employee performs benefits the association of which he/she is a part. I have heard the arguments from both sides and I feel the best policy is for Boards to avoid hiring unit owners for association work. Further, the conflict of interest in hiring a Board Member as an employee is even worse. That being said, they aren’t breaking any laws and unless your association’s governance documents state otherwise, they aren’t even breaking any rules by doing so. All the best!

Condo Owners Reluctant to Pay Proper Common Fees

K.I. from New Haven County writes:

Dear Mister Condo,

I serve as board president for a small association. The Treasurer and I are the only unit owners who have any interest in serving in more than name only. Despite our best efforts, we can only seem to get the unit reps together annually to discuss business. For the past few years he and I have been warning everyone that due to inflation, our expenses are surpassing our income. We have tried raising monthly dues, but according to our by-law, raising dues and levying of non-emergency assessments must be passed by majority, so we’ve been unsuccessful. Because of this, we have been unable to allocate funds to do upkeep. The unit that is the most vocal about status quo reported a water stain that will certainly lead to a leak. The treasurer and I would very much like to address this…but we don’t have the money because we’re being out-voted on raising dues and budgeting future assessments into them. Once there IS a leak we can say this is an emergency assessment and levy it, but the unit that reported it is threatening legal action against us for not maintaining the building unless we fix it post-haste. Because we are a small association, we have been unable to find a property manager that will take us on or that we can afford, so we don’t have access to a lawyer. We’ve called around, but have been unable to find a lawyer that will even see us for a consultation! Any advice?

Mister Condo replies:

K.I., I am sorry for your situation. Unfortunately, you are seeing the direct results of what happens when unit owners’ apathy reaches a dangerous level. There are some things you can do but you will likely get pushback from unit owners and even the uninterested Board Members. A lawsuit from an upset unit owner will get their attention despite your best efforts to avoid that scenario. The emergency repair will also cause the immediate problem to be fixed but will not solve the long-term issue of inadequate Reserve Funds and even general maintenance funds. The reality of the situation is that your common fees should probably be at least twice what they are right now but, as you know, unit owners will fight you tooth and nail if you raise the fees that much. Having money for a property manager and an attorney are all part of collecting adequate common fees. Until the fees are raised, the problems will persist. If it were me, I’d hit the road while the units still have some value. If you wish to stay and fight, you can cite governance and legal (Connecticut State Law) requirements to adequately collect Reserves as part of the monthly common fees. It will take years to correct but with diligence, I do believe you can turn the association around. The alternative is catastrophic financial failure, which will lead to the association going under and owner losing their homes. I hope it doesn’t come to that. Good luck!

Condo Board Enforces Parking Rules After 20 Years!

J.M. from Florida writes:

Dear Mister Condo,

I have been living in my community for the last 20 years. Never have I had a problem with parking before. All of our units are single building divided into three town homes with a three-car, three-door, non-divided open garage. My garage section isn’t very big especially being completely open on the inside, it would be impossible to have three vehicles parked inside with the ability to get in and back out. I have things stored in my garage as any normal town home living person does leaving me unable to put a vehicle in the garage. There has been a new resident that moved onto our street in our gated community. Since his arrival he has joined the board for parking reasons and is causing nothing but problems this past year. I live in a two-bedroom unit with my wife and son. We have always parked one vehicle behind the other putting two in our driveway. The Board is trying to tell me that I can’t park two vehicles together anymore, one behind the other or they’re going to tow it. They even went as far as to paint yellow lines for parking limitations only for my building and the adjacent neighbors building. The rest of the entire community has no painted lines. There is a very big parking lot one street over from us that is guest parking for the pool and the clubhouse. They are telling us that we cannot park in guest parking. There is no other overflow owner vehicle parking anywhere else in the community. Even if I clear my garage that only takes care of two vehicles. Having three vehicles they’re trying to tell me there is no place I can park it that is acceptable. It has gotten to the point that me and my family are being severely harassed over this matter. Since I have been here for over 20 years does any kind of grandfathered rules apply? Don’t they have to provide some kind of overflow parking for residents since all the guest parking spots they say are not usable for resident vehicle? I am close friends with my neighbors in our building that are only here 4 months out of the year and they allow us to use their two spaces when they’re not here. They’re coming back very soon and before this turns into a huge legal matter, I want to know what my options are and how to fight back. Thank you so much for any kind of response or information you can provide me with. We are located in St. Petersburg, Florida (the Sunshine State).

Mister Condo replies:

J.M., I feel your pain but I don’t think you’re going to like my reply. Generally speaking, the association owns the parking areas in most condominium associations. That means that they make and enforce the rules dealing with parking. I am painfully aware of the notoriously small parking spaces you speak of. Maybe two cars and a golf cart would fit but three full-sized cars are not likely to fit. That being said, that isn’t the Board’s problem or concern. notoriously small parking spaces you speak of. Maybe two cars and a golf cart would fit but three full-sized cars are not likely to fit. That being said, that isn’t the Board’s problem or concern. You have what you have, no more, no less. The association is under no obligation to provide you with any additional parking and your deed likely doesn’t guarantee it either. Additionally, many associations prohibit the type of open storage of belongings you describe. In other words, carports and garages are for parking only. I wouldn’t be surprised if the Board enacts and enforces a rule prohibiting storage in the garages so be ready. The bottom line is that the Board has many powers given to them by the association’s governance documents and state law. If you feel they have overstepped and can back it with provisions of your governing documents, you should seek legal counsel to see if you can fight back. Other than that, your 20-years of using the parking garage as you saw fit rather than how the by-laws read was a bonus for you. I am not aware of any provision that grandfathers in breaking of the rules because it suits you. You can always seek out a seat on the Board yourself as your neighbor has done and see if you can make the changes you seek from within the Board but understand that service on the Board involves much more than just your personal parking issues. I wish you all the best!