Tag Archives: Legal

Confrontational Condo Owner Seeks Chair Lift for Condo Pool at Association Expense

J.S. from New York writes:

Dear Mister Condo,

Hi, I met you and your wife at the Long Island Chapter of CAI meeting last month. We have a homeowner who has lived in our association from the start about 14 years. He can be very confrontational. There have been numerous incidents involving him and the board and he and his neighbor. He has developed several health conditions. He still shops on his own and he drives on his own. He has veiled threats against the community to call the Americans for Disability and force us to put in a chair lift in the swimming pool for him. He does enter and exit the pool on his own now and there will be issues in about a month when he wears his same outdoor dirty sneakers into the pool and occasionally has unhealed sores. My question is: can he force us after all these years to construct a chair lift for him which could run up to one hundred thousand dollars?

Mister Condo replies:

J.S., I hope you enjoyed the presentation in Long Island. It was a pleasure to meet so many Chapter members and share time and stories with you. You certainly have an interesting situation on your hands. As you know, I am not an attorney nor am I an expert is New York Community Association law. However, I will offer you some friendly advice. The Americans with Disabilities Act (ADA) is designed to protect people with disabilities and allow access on public properties. Most condominium associations are private properties and are not subject to the same requirements that public businesses are. Although, there are exceptions. If your pool or club house are rented out and used “for profit”, the association may be subject to all the provisions of the ADA. So, you have a bit of a sticky wicket here. It is most certainly time to speak with your association attorney who can give you a legal opinion. Of course, a unit owner who threatens to sue is quite different than a unit owner who actually does sue. If the unit owner makes a formal request for the pool chair, contact the association attorney to determine your legal options. If you are not bound by the ADA rules, you can likely do one of two things. You could simply deny the request, citing the expense as being an unreasonable request or you could allow the installation at the unit owner’s expense, keeping in mind that the unit owner would also be responsible for the maintenance of the chair as well. You can also have pool use rules added that prohibit bathers from wearing shoes (or any footwear) in the pool and prohibit use of the pool by anyone with open soars. Check with your local Health Department for suggested rules on pool use restrictions as well. I hope that helps and I look forward to seeing you again in the future.

Florida Condo Homeowners Insurance Requirement

V.B. from Florida writes:

Dear Mister Condo,

I’ve lived at my condo in Orlando since 2009, when it was vetoed that unit owners are required to have insurance for condo. Are unit owners required to have condo insurance?

Mister Condo replies:

V.B., I am not an expert in Florida community association law so please consider this a friendly answer and not a legal one. You may wish to check with a local attorney for a legal opinion. Generally speaking, unit owners should have a homeowner’s insurance policy at the very minimum, regardless of requirement, to protect themselves from potential losses. Many association governance documents require unit owners to hold such policies but I am not aware of any legislation that requires unit owners to hold policies. In fact, my understanding of the Florida Condominium Act is that it does not require the insurance but it does state that the interior damage is the unit owner’s responsibility. As long as it is unit owner responsibility, the unit owner should want to have that risk insured, regardless of the law. That being said, if your original documents did call for a requirement to carry the insurance and the association voted to discontinue that requirement, there may, in fact, be no requirement for unit owners to do so. However, most mortgage companies would have a requirement for the unit owner to carry homeowner’s insurance and it is certainly a best practice to do so.  All the best!

Mentally Ill Child of Condo Neighbor Creating Noise Nuisance

D.E. from outside of Connecticut writes:

Dear Mister Condo,

We have been living in our condo for three years and love it. Recently new owners moved in next door with their 9-year-old child. Come to find out she bangs her head against the wall and screams bloody murder at all times of the day. Unfortunately, she has mental illness – bipolar, OCD, etc. I have spoken with them nicely 3 times and when we have asked it does stop so it seems like it is in control and they are just lazy. They came from a 3800-square foot home to a 1450-square foot condo. Knowing there are issues like this I would think you would investigate your surroundings first before buying this type of place. My brother was mentally challenged so I certainly have compassion but this really has to stop – I am on the verge of calling 911 every time this happens. What is my recourse?

Mister Condo replies:

D.E., you are kind to be considerate and compassionate to understand the challenges your neighbors are facing. However, all unit owners, including you, have a right to peaceable enjoyment of their units. Clearly, this noise, regardless of the source, is violating your right to peace and quiet. Your recourse is to file an official complaint against your neighbor with the Board who will then take appropriate action. Typically, that involves summoning your neighbor to appear before the Board to address the rule violation. The Board then can take further action which is typically a fine or whatever else is outlined in your governing documents. If the noise continues, you continue to report it to the Board in writing (usually via the Property Manager). Your complaints are records of the association and, as such, are subject to review by any association members, including your neighbor. For this reason, some unit owners are reluctant to file a formal complaint. However, you have already tried the nice route and only received temporary reprieve. It is up to you to take the next step to restore the peace and quiet you are entitled to. Perhaps your neighbor will do a better job of restoring the calmness or perhaps they will realize that this close living quarters just isn’t the proper environment to raise a child with these types of special needs. Either way, I hope you get your peace and quiet back. All the best!

Can Husband and Wife to Serve On Condo Board Together?

M.H. from Florida writes:

Dear Mister Condo,

Can a couple owning 2 condo units be on the HOA board at the same time in Florida?

Mister Condo replies:

M.H., thank you for your question. As you know I am not an attorney nor am I an expert is Florida community association law so please consider my advice here as friendly and not legal. If you think you need a legal opinion on this matter, I strongly suggest you speak with an attorney in your area knowledgeable of Florida Community Association Law. That being said, your question has two possible answers that I am aware of. Start with your governing documents. My guess is that the documents are either silent on the issue or prohibit two owners from the SAME unit serving on the Board. Since there are two different units involved in your example, I don’t see why there would be a prohibition of the husband and wife serving as long as they were each representing one of the two units they own. While I am not an expert in Florida law on the matter, I have read that the laws in Florida that pertain to condominiums – the Florida Corporation act and the Florida Condominium Act – do not prohibit co-owners who own more than one unit from serving. The Florida Condominium Act does address the issue but also allows for an exception if there are no other unit owners willing to serve. You can read an interesting article on the subject here: http://www.floridacondohoalawblog.com/2016/01/articles/qa/can-husband-and-wife-serve-on-the-board-at-the-same-time/. All the best!

Condo Denies Disability Parking Request

S.B. from outside of Connecticut writes:

Dear Mister Condo,

Can the condo association deny a request for disability parking especially since the condo is on private property?

Mister Condo replies:

S.B., you may have noticed that there are many questions and answers about disabled and handicapped parking on my website. It is a serious matter, to be sure, but the answer remains the answer. It depends. Generally speaking, since condominiums are private property, there aren’t too many restrictions on how they parcel out their parking lots. If the unit came with deeded parking (a specifically assigned parking space that is part of the deed of the property), then the unit owner has exclusive use of that space or spaces. All other parking is usually owned by the association and can be used as they see fit. If a request for a handicapped space is made of the Board, the Board should review the request and determine if it is reasonable to grant the request. For most associations, since parking is usually in high demand and short supply, they can claim that dedicating association parking for handicapped use creates and undue burden on the association. If the unit owner in question has deeded parking and is simply looking for additional dedicated parking, they are often out of luck. Of course, to be safe, I usually recommend that the Board consult with the association attorney to make sure no local, state, or federal laws are being violated if the Board decided to deny the request for dedicated handicapped parking. Handicapped parking seekers often cite the Americans with Disabilities Act (ADA) as their grounds for requesting the handicapped parking. However, the ADA does not deal with privately owned parking lots such as those found in typical condos. Exceptions are if the association is renting out the clubhouse or has amenities that are also open to the public for a fee. Then the rules change. Other than that, the Board is usually free to use the association-owned parking as they see fit. All the best!

Unapproved Remodel to Upstairs Condo Damages Downstairs Unit

L.S. from outside of Connecticut writes:

Dear Mister Condo,

The question I have is this, I live in a condo that has 4 units per bldg. I own mine. These condos were built in the late 50’s maybe early 60’s. Unfortunately, there is an HOA fee of 150 dollars a month and the outside of the buildings look horrible. They really need to be painted and new front and rear doors placed. The front porch is falling apart. The condos were not built like the newer ones are. Someone purchased the upstairs condo and decided that they would remodel the whole condo. There was a wall removed and other major repairs without a permit that has caused damage to my condo. I spoke to a contractor who looked at the damage and informed me that if we were to try to fix it, it would cause more damage. The upstairs condo would receive damage also. I am just wondering who should pay for the damage. The owner knows that there were issues and he wanted his handy man who caused the damage and himself to look at it. I am not sure what good that would do. Should I file a claim with my insurance company and let them fight it out or is there another way to deal with this? Am I going to be stuck with a huge bill?

Mister Condo replies:

L.S., you certainly have a lot going on inside your 4-unit building. Let me address each item separately. First up, the HOA isn’t maintaining the property as they should. There is no reason for painting to go undone other than there is no money in the Reserve Fund for the project. You mention a fee of $150. If that fee isn’t enough to cover operating expenses and set aside money for routine maintenance like painting and door replacement, there will need to be a Special Assessment and/or an increase to common fees. Neither option is popular but that is the only way to get the association back on track so it can fulfill its duty to maintain the building exteriors.

The remodeling project is another issue entirely. It sounds like the upstairs unit owner did some unauthorized and unpermitted work on their unit causing damage to your unit. It’s time to speak with an attorney about suing the unit owner for the damage. You should file a claim with your insurance if you have suffered financial damage worth filing a claim over. However, the fault is clearly with the unit owner who did the unauthorized remodel. You governance documents likely spell out what types of repairs and improvements can be made to unit interiors. If they knocked down a supporting wall, you could be looking at a very expensive repair, not to mention the potential danger you are in. I would want to get this taken care of immediately. If they are amenable to correcting the problem at their expense, you may not need to sue but, in my experience, once the dollars start adding up, a lawsuit is almost inevitable. You should be able to recover your damages though and I am hopeful that your upstairs neighbor will do the right thing. Good luck!

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!

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.