Headlines

What to Do When Condo Owners Don’t Follow Rules

Condo Fees and Fines

Repairs to the Condo Not Yet Made After Special Assessment Levied

Condo Resale Packages and Pending Litigation

What to Do When Condo Owners Don’t Follow Rules

Posted in: Board, Condominium, Governance, Neighbor Issues, Rules Enforcement | Comments (3)

D.S. from Fairfield County writes:

Dear Mister Condo,

What can the Association do when condo owners don’t follow the rules?

Mister Condo replies:

D.S., associations rely on unit owners to follow the rules to maintain peaceable enjoyment for all unit owners and residents. In the ideal community, residents have read the rules and regulations before agreeing to become members and residents. However, very few communities can boast of no rules violations. The trick is keeping the violations to a minimum and resident satisfaction at a maximum. That’s where the Rules Enforcement provisions of the association come into play.

Start with your association’s governing documents. There is usually a section about rules and regulations and what can be done to enforce the rules. The Board is generally empowered by the governing documents to enforce the rules as they see fit. Depending on where your association is located, there may also be rules about community association governance that supersede the association rules. Such is the case here in Connecticut where most community associations are bound by the Common Interest Ownership Act (commonly referred to as CIOA). CIOA requires that Boards follow a specific procedure for issuing fines. On the first offense, a warning is issued and the unit owner is notified of the violation and asked to appear before the Board to explain why the violation occurred. Subsequent violations require no additional opportunity for the unit owner to appear before the Board and the Board is free to levy whatever fines are called for in the association’s by-laws. An exception to this would be something like parking in a fire lane where the Board can exercise its authority to have the offensive vehicle removed (towed) at the expense of the owner.

If your association does not have a penalty system of fines in place, the first step is to adopt one. I generally recommend a small fine amount like $25 per occurrence and a graduated fine system for repeat offenders. Keep in mind that fines are not meant to be income for the association; they are meant to be a deterrent for unit owners who do not follow the rules. In some cases, legal counsel may be necessary to do more than just fine an offender. For instance, if the rule is that no rentals are allowed and there are clearly renters living in the unit, the association may sue the unit owner and seek eviction. Similarly, if pets are not allowed and pets are being housed in the unit, a lawsuit may be the only remedy available to the association.

Keeping in mind that voluntary compliance with the rules is the goal of the association, I think it is well advised to have a rules review every so often, either by committee or by the entire Board. The rules are meant to be in the best interest of the community and are used to help protect, maintain, and enhance the community association living experience. Rules cannot be applied selectively. That is to say the Board cannot enforce the “no smoking” rule on one unit owner without enforcing the rule on all unit owners or the Board may face charges of discrimination. Also, the Board has discretion in selecting which rules it will enforce but it must do so unilaterally, meaning if it does not enforce the no pets rule on one unit owner, it cannot enforce the rule on another. The best policy is to either enforce the rule or remove the rule. That way, residents know what to expect and the Board cannot be accused of discrimination. All the best!

Mister Condo @ September 19, 2014

Condo Fees and Fines

Posted in: Architectural Compliance, Common Fees, Condominium, Financial, Governance, Insurance, Management, Neighbor Issues, Rules Enforcement | Comments (3)

M.R. from New Haven County writes:

Dear Mister Condo,

I am wondering what kinds of fees and fines other condo associations have. Apart from the monthly HOA dues, that is.

Mister Condo replies:

M.R., the term “common fee” refers to the monthly contribution made by all unit owners towards the common expenses of the condo association. Typically, the fee covers expenses such as insurance, utilities, landscaping, snow removal, management, legal, Reserve Fund contribution and more. These expenses are shared with the entire association and are developed by looking at the approved Annual Budget and then applying the “per centage of unit ownership” rule as outlined in the association’s governing documents. The per centage of unit ownership takes many factors into consideration, such as square footage, desirability of location, etc. to determine who pays what per centage of the common expenses. Generally speaking, that is it for common fees. However, in associations that also offer extra amenities and restaurants, it is possible to have extra fees for everything from golf club use to required contributions to the club house restaurant. It is also possible to have clubs within the association where the fee for the club might also be paid along with the common fee. This is less common but I have seen it done.

Fines are another issue altogether. Fines are the penalties assessed to a unit owner when a rule or by-law is broken that carries a fee for breaking the rule. There is no hard rule about how much these fines can be so they vary by association. Generally speaking, fines are levied only after a warning has been issued and the unit owner has had a chance to appear before the Board to state their defense for why the rule was broken. In most cases, the Board doesn’t care why the rule was broken and will issue the fine just to maintain order within the community. I have seen fines as low as $5 (a little slap on the wrist) and as high as hundreds of dollars (usually for repeat offenders and for larger violations like parking in fire lanes or prolonged violations), The whole idea of the fine system is that unit owners will voluntarily comply with the rules they agreed to abide by when the entered the community. Fines that are ineffective at correcting the offensive behavior often lead to lawsuits between the association and the unit owner. In that case, if the association wins the case, the financial damages could be quite significant against the unit owner. This happens most often in architectural compliance cases where a unit owner does something without the Board’s prior approval such as installing a deck or replacing sliders with French Doors (I’ve seen both!). In those cases, the unit owner had to remove the improvement, pay to have the unit restored to its previous condition, and pay a fine for breaking the rules. Ouch!

Thanks for the question. I hope I gave you an answer you can use.

Mister Condo @ September 18, 2014

Repairs to the Condo Not Yet Made After Special Assessment Levied

Posted in: Assessment, Board, Communications, Condominium, Financial, Legal | Comments (3)

J.D. from New Haven County writes:

Dear Mister Condo,

What are my rights as a unit owner after I pay a large special assessment fee? How long does the developer have to do the required repairs? What can I do if they never complete the repairs?

Mister Condo replies:

J.D., I don’t know of any condo owner who enjoys a special assessment. A special assessment paid to a developer is even more disturbing to me because it implies that the association is still under developer control and that your unit needed repairs so early on in the life of the condo. As a matter of contract, unless the agreement states the terms for when the work is to be completed, you may be at the mercy of the developer. You can seek legal remedy in the form of a lawsuit but that will cost you more money and may take longer than the actual repair being made. My advice is to keep after the developer and ask for weekly or monthly updates. If you haven’t already done so, get the Board involved as well. If you are having this problem, it is very likely other unit owners are as well. Perhaps the Board will apply pressure to the developer to get the repairs taken care of in a timely fashion. Good luck!

Mister Condo @ September 17, 2014

Condo Resale Packages and Pending Litigation

Posted in: Board, Buying, Communications, Financial, Governance, Legal, Mortgage, Selling | Comments (3)

K.L. from Fairfield County writes:

Dear Mister Condo,

Do personal injury lawsuits pending need to be declared in resale packages now under the 2010 new CT Statutes? Our attorney has previously said that these suits are private information just for Board Executive Session and not for other owners to know because of privacy issues. I read a recent article that said that under the new statutes, prospective buyers and current owners have a right to know what financial issues the Association has before them that may affect their common expenses and budget. Since owners pay a large deductible in such suits out of our common charges, do owners and buyers have a right to know of a personal injury (or other) lawsuit and does the name of the individual claiming injury have to be protected? Thank you!

Mister Condo replies:

K.L., you are correct that disclosure of such information must be made known as part of the resale package. In the event of a lawsuit, the parties named are public record (i.e. John Smith vs. ABC Commons). For further clarification, I asked a prominent community attorney to chime in on the subject. Here is what the attorney had to say:

“State law specifically requires every association to disclose the titles of all pending lawsuits and administrative proceedings in resale certificates to prospective buyers (other than nonforeclosure collection cases).  The board is also obligated to affirmatively notify every unit owner whenever most kinds of lawsuits are filed against it, including personal injury suits.  However, state law gives the board the option of whether to allow unit owners to inspect and copy records concerning further details about those lawsuits and administrative proceedings themselves, including attorney-client privileged records.  Other records that relate to litigation only indirectly must still be provided, such as liability insurance policies and annual budgets that itemize attorney’s fees.”

I think that clears that matter up. Good luck to you and your condo in your lawsuit.

Mister Condo @ September 16, 2014

Personal Information and the Condo Board

Posted in: Board, Communications, Condominium, Governance | Comments (3)

J.R. from New Haven County writes:

Dear Mister Condo,

Can the Board disclose your personal information?

Mister Condo replies:

J.R., the condo Board of Directors has a right to know a great deal about you and all owners, renters, mortgagors, employees, and anyone else with a vested interest in the condominium association. There are many reasons for this but the primary reason is for purposes of communications and serving notices, which, they are required to do by law for certain association activities. Annual Meetings, Special Assessments, and Collections procedures all come to mind as reasons that the Board needs your personal information. Along with that need for information comes a duty to protect that information as well. The Board may not disclose your personal information simply for the sake of doing so. In these days of data and identity theft it is more important than ever that condo Boards have policies in place on how they store and what they do with the data they collect during the course of conducting association business. It is also important to offer unit owners an “opt-out” feature for things like resident directories and community websites. They may use your name but you can certainly request that they withhold information such as your phone number and anything else that may be used to identify you. I know of some associations that will allow only first initials of residents so as they do not tip off that an inhabitant is male or female. This can be a particularly good policy in an area where crime or sexual predation might occur. There is no reason to tip off a criminal that a single woman is the only unit resident. If you feel your Board has disclosed more than it should or has misused your personal information you would be well advised to seek counsel from a qualified attorney to see that corrective action is taken. All the best!

Mister Condo @ September 15, 2014

Fines for Children Playing in Condo Parking Lot

Posted in: Board, Condominium, Governance, Rules Enforcement | Comments (5)

K.M. from Hartford County writes:

Dear Mister Condo,

Can the condo association restrict the use and give a fine to condo owner for children playing in the condo parking lot?

Mister Condo replies:

K.M., as long as the association has the rule against playing in the parking lot, they can certainly enforce that rule. There are many reasons that association don’t allow playing, skateboarding, bike riding, etc. in their parking lots and that is safety and liability if someone gets hurt. Parking lots can be very dangerous places in high density housing areas as residents move in and out of usually tight parking spaces. The rules are generally enforced by the Board issuing a warning and request for the unit owner to appear before the Board, followed by a fine if it is determined that the unit owner did violate the rule. The rule cannot single out children or any single unit owner and it must be uniformly applied so that no discrimination takes place. That being said, there are safer and better choices for play areas than condo parking lots. Stay safe and all the best!

Mister Condo @ September 12, 2014

Questionable Deck Listed in Plat and Plan of Condo Conversion

Posted in: Condominium, Legal | Comments (0)

S.C. from New Haven County writes:

Dear Mister Condo,

I bought my condo 10 years ago with an attached deck. The unit was new, since it was a conversion of a townhouse into a condo. In the description of the unit, and in the plat and plan, the deck is shown in my unit. It comes out that the previous owner of the town house built the deck without permission. My question is the deck still illegal even if is reported in the plat and plan of the condo conversion? Thanks!

Mister Condo replies:

S.C., I love a good challenge. I have to say I was challenged by your question as it is the first plat question I have ever received. Even though I am not an attorney, I know quite a few who practice in this area of law. Here is what one of my attorney friends had to say:

“The answer will depend on what the governing documents say and possibly the details of the “illegal” construction.  Sometimes the declaration will say that the written definition of which parts of the property are owned by whom will trump the maps and plans.  You should talk to the lawyer who handled your closing about whether the prior owner may have some responsibility to you, or a condominium lawyer about whether the association can take action against you now.”

That sounds about right to me. It isn’t that you’ve done anything wrong here, S.C.. It just sounds like you will need some legal guidance to get this unpleasantness behind you. Good luck!

Mister Condo @ September 11, 2014

Secondhand Smoke from Downstairs Condo Neighbor

Posted in: Board, Condominium, Governance, Neighbor Issues | Comments (4)

J.G. from Middlesex County writes:

Dear Mister Condo,

My son has cancer and can’t stand the smell of cigarettes, but the tenant below me smokes under my deck and the smoke comes in my unit. I have asked them to smoke away from the units they say no what should I do?

Mister Condo replies:

J.G., I am sorry for your son’s cancer and your careless neighbor’s behavior. The battle over secondhand smoke at condominiums, apartments and other areas where people live closely together has raged on for many years. I had a similar questions asked last year and dispensed the same advice I will be giving you. You can read the previous question and answer at http://caict.org/askmistercondo/how-to-stop-secondhand-condo-smoke/.

In a nutshell, there are two steps you should take. You can petition the Board to make smoking not allowed on the property. This is generally quite difficult because the folks who smoke will certainly fight the measure. However, in Connecticut, the law may be on your side.  There are specific steps you and your Board can take to ban smoking the right way. The CT Department of Public Health has published an excellent guide to help you along. Point your browser to their website at http://www.ct.gov/dph/cwp/view.asp?A=3137&Q=486714 and follow their simple steps. Of course, owners that are smokers are likely to oppose the action so don’t expect a simple passage of the new rule. There will be debate, likely heated, about what can be done in the privacy of one’s own home. However, with perseverance, I believe you can create a smoke-free environment for all residents. Good luck!

Mister Condo @ September 10, 2014

Insurance Money Used By Board for Common Fee Delinquency

Posted in: Assessment, Common Fees, Condominium, Financial, Insurance, Legal | Comments (3)

N.K. from Hartford County writes:

Dear Mister Condo,

The building insurance paid out a claim due to a water leak from pipes. The board kept part of the money assigned to my unit due to unpaid common charges, I cannot find in the by-laws where it says they can do this. Is this legal? What are my options?

Mister Condo replies:

N.K.,

I am sorry that you find yourself in a situation where you have unpaid common charges. I am also sorry to learn that you had a significant enough loss that an insurance claim was necessary. I am not an attorney so I checked with a friend who is an attorney to see what advice might be offered to you. Here is what the attorney had to offer:

“Generally the law allows anyone holding money for someone else to “set off” debts owed before paying over the rest.  There is probably nothing in your bylaws about this, so you would need to talk to a lawyer about how this legal principle applies to the specifics of your situation.”

So it looks like your association may have been well within their rights even if your by-laws are silent on the subject. That being said, I think you are well advised to seek legal counsel if you feel you have been wronged. On the positive side, I am guessing you are no longer in arrears with your common fees. It would be proper of you to keep them current as the association relies on you and all of your fellow unit owners to pay your fair share of the common fees so that they can conduct the business of the association. All the best!

Mister Condo @ September 9, 2014

Improper Condo Governance Charged

Posted in: Board, Condominium, Financial, Governance, Legal, Volunteer | Comments (3)

J.S. from New Haven County writes:

Dear Mister Condo,

Our Association BOD has announced unilaterally and unanimously at a Community meeting that all of their discussions on Association issues and business are now being held informally. No face-to-face meetings to discuss matters which require a quorum of Board members to be in attendance. Specific purpose is to discuss and take action on issues without any input or even awareness of the Council of Owners. One BOD member has said publicly that our Association is not a democracy. This is all in the face of the Open meetings rules to encourage BOD transparency rules contained in the HOA’s By-laws and resolutions. There are no public notifications or any meeting notes provided owners from these meetings. Votes, we have been told are also being conducted almost exclusively via email as is much of the discussions. Is this something the Board is allowed to do? Don’t the rules and by-laws prohibit this style of leadership? At the last quarterly meeting, owners were told by a member of a buildings and grounds committee that a $12,000 contract has been approved and signed by the BOD and work is scheduled to begin on building an extended concrete area outside building area plus complete landscaping with the work beginning in the next 30 days (4 weeks prior to the next scheduled quarterly community meeting). Adding insult to injury, the Property manager reports the budget for the last month was $11,000 over the scheduled expenditures with no explanation as to why? What recourse or approach would you recommend taking to delay the outdoor beautification project? If the work is completed prior to the next open meeting, is there any course of action that can be taken prior to the work getting underway and the next meeting occurring? Thanks in advance for taking the time to read and provide options for what can be done hopefully prior to the work being started and before the next open community meeting.

Mister Condo replies:

J.S., Wow! You have a lot going on here! Let me try to break it down into a few key elements and offer some friendly advice. The Board is free to hold meetings as they see fit provided the Board members agree on the methodology. They can make the meeting format as informal as they like. They are also free to vote by email, teleconference, even carrier pigeon if they so choose. They are not free to operate in the dark and they must take minutes of all meetings which must be made available to the unit owners. For this reason alone, most Boards will adhere to a regular meeting schedule where proper notice of meeting is given and proper minutes of meetings are taken. The emails between Board members are part of the public record and must be kept as such, especially if votes are being held by email. Again, for this reason alone, many Boards will opt not to use email for such votes. Transparency isn’t just a good idea; it is the law. The Common Interest Ownership Act (also known as CIOA) outlines the rules and regulations for how community associations are governed in our state.

The specifics of how and why this new project is underway are likely known only to the Board. If it is something that enough unit owners are not in favor of, you should seek an injunction against the Board for taking the action. You will most likely need to hire an attorney to file suit and seek relief. This can be expensive for the unit owners as they will need to find the money to pay for the attorney to assist in the suit and the Board will likely hire an attorney to defend against the suit. If the Board has signed a contract, there may also be expense for breaking the contract. Weigh the pros and cons of such an action before you proceed. It might be less expensive to just accept the improvement than to fight it.

The larger issue here is one of Board training and proper community association governance. I am guessing that this Board is largely untrained and would likely benefit from some education, which can be found at the local Chapter of the Community Association s Institute (http://caict.org/). In fact, they are offering just such a training course very soon. More information can be found at http://caict.org/abc.htm. The other option is to get some new Board members. Rally the troops and come up with select the folks from within your community who would best serve as Directors. At your next Annual Meeting, simply elect new people who will do a better job of governing the association. If you can’t wait until then, you can call a special meeting of unit owners to remove the Board and elect new Board members. However, you will need to refer to your condo’s governing documents to see how and when to do that. It would be simpler to just elect new Board members at your Annual Meeting. Good luck!

Mister Condo @ September 8, 2014