Headlines

Percentage of Condo Unit Ownership Formula Questioned

Motorcycles Double Parked at the Condo

Removing Skylights During Condo Roofing Project

How Many Votes Does the Condo Developer Get?

Percentage of Condo Unit Ownership Formula Questioned

Posted in: Assessment, Board, Common Fees, Condominium, Financial, Governance, Reserve Fund | Comments (4)

R.T. from New Haven County writes:

Dear Mister Condo,

I live in condo units that are duplexes; 2 units per building. There are a few that are 3 units per building but 90% are 2 units per building. Units are basically identical. The main difference is that some have finished walk out basements. The original declaration, some 20 years ago, stated condo fees were based on square footage. The board wants to raise condo fees to build the Reserve Fund for major renovation of the roof in 2031. The Board is taking entire cost to replace the roofs on the 92 units and then dividing the cost by ownership percentage which as I stated earlier is based on square footage. My problem is 2 identical units, one with a walk out the other with no walk out. The walk out unit has the same square footage of the basement included, thus a higher ownership % and higher condo fee. Roof size is the same. They want to increase condo fees across the board, 5% starting next year to pay for roof replacement 20 years from today. The total cost is approximately $200,000.00. There are 40 walkout units and 22 with new walk outs units; the roofs are with 50 square feet of each other most though are identical. The cost using the current declaration on ownership will have the walkout units paying over $2,800 with the non walkout units paying a little more than $1660, In fact the walkout units are subsidizing the other units, even though the cost to replace the roofs on all the units $2,150. I want this treated as onetime assessment and each owner to pay the cost of their unit not divide the cost by who has more square footage because they have a walkout.

Mister Condo replies:

R.T., the good news is that your Board is doing an admirable job of building the Reserve Fund to handle the upcoming roof replacement. 2031 seems a long way away but it will be here before you know it and your community will have saved enough money to cover the roof repair. Hooray! The method for doing so has come into question so let’s talk about how associations raise money. When the condominium was developed a common fee schedule was designed that took into account the percentage of unit ownership. That is very common and almost all condominiums have a similar structure. There are other factors that can go into the formula (end units may pay more, units with water views may pay more, and so on) but the formula is the law of the land with regards to who pays what percentage of the common fees, which includes special assessments and Reserve Fund contributions. In other words, if Unit Owner A carries a 5% ownership and Unit Owner B carries a 10% ownership, then Unit owner B will pay twice as much in common fees. The formula isn’t usually so drastic and there is generally a smaller percentage gap between units with different square footages or desirability factors that went into determining their percentage share. You observation about walkout units subsidizing the other units is mathematically valid but it is also irrelevant as the unit owners have already agreed to pay their percentage of ownership when they purchased into the condominium. The percentage of unit ownership is the law of the land with regards to how common elements, including the Reserve Fund, are funded. I have to side with your Board on this one, R.T.. At least you can have peace of mind knowing that there will be money to pay for that roof when it needs replacing in 2031. All the best!

Mister Condo @ September 30, 2014

Motorcycles Double Parked at the Condo

Posted in: Condominium, Governance, Neighbor Issues, Parking | Comments (5)

J.M. from New Haven County writes:

Dear Mister Condo,

Recently vehicle owners have started parking motorcycles in their parking spots (high rise) either behind their cars or beside them. What do you think about this?

Mister Condo replies:

J.M., I think it may be a rule violation! As long as the bikes fit within the assigned space(s) this may be more of a questionable use of the space than an issue the Board wants to take action on. For the most part, it is understood that there is a one vehicle per space use of assigned parking. That being said, most bylaws I know of are silent on that exact language and usually say something like the unit owner is entitles to use of one or two assigned spaces as designated in their purchase and sale agreement. The space is deeded to the unit owner. If the association has rules about one vehicle per parking space or wishes to adopt rules stating that there is only one vehicle per parking space allowed, then the Board could choose to enforce the rule and issue warning and/or fines for violations of the rule. The bottom line is if this parking arrangement isn’t causing any real problems for the majority of unit owners, it may just be an opportunity to create friction between residents with motorcycles and those without. In the association where I live, we choose to look the other way when this happens as the folks who own motorcycles here are also very good neighbors and respectful of how they operate their bikes. I think it is an issue that needs to be discussed by the Board but not necessarily acted upon if there is no real problem. All the best!

Mister Condo @ September 29, 2014

Removing Skylights During Condo Roofing Project

Posted in: Architectural Compliance, Board, Condominium, Governance, Windows | Comments (4)

P.L. from New Haven County writes:

Dear Mister Condo,

What is your opinion regarding an association board denying the request of a homeowner who wants to remove 2 skylights (at their cost) prior to receiving a new roof?

Mister Condo replies:

P.L., skylights are always a challenging part of the roofing equation for condominiums. I have heard the argument that they increase value. I have heard the argument that they are costly to maintain by the association. I have even heard the argument that a unit owner would like them removed as they let in too much light and heat in summer and make it difficult to sleep during rainy nights. Whatever the argument, the skylights were in place when the unit owner made the purchase of the unit so they cannot be too disappointed that they are kept in place during their occupancy of the unit. Most condo bylaws that I have seen are silent on the subject other than to assign ownership (unit or association) for the maintenance of the skylights. That being said, I know of plenty of associations that have allowed the modification (both removal and installation) of skylights at unit owner expense during a time of roofing. I think it really comes down to the Board and their roofing contractor who has the experience making such modifications. In theory, removing skylights cuts down on the potential liability of the skylight failing which is far less common in modern skylights than those installed just a decade or so ago. My primary question to the Board would be have they ever allowed for skylight removal or addition within the association? If so, they have set a precedent for future requests and could be viewed as discriminating against a particular unit owner by denying their request. If skylight modification has never been allowed then I don’t see where the Board is under any obligation to allow removal or installation of existing or additional skylight during the roofing process. My advice is to confer with your documents and to seek the qualified opinion of a roofing specialist. If the roofing specialist claims there are no potential drawbacks to the association for removing the skylights and the owner is willing to pay for the costs associated with doing so, the Board may change their mind and allow it. Keep in mind that they may be under no obligation to allow the change so my advice is to ask politely and make it as easy as possible for them to say yes. Good luck!

Mister Condo @ September 26, 2014

How Many Votes Does the Condo Developer Get?

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

J.M. from New Haven County writes:

Dear Mister Condo,

Our developer sends his one representative to our annual condo meetings. He owns one condo unit and several empty lots for future condos. How many votes does he get?

Mister Condo replies:

J.M., developer transition periods are some of the most challenging times a young association like yours can face. There are all sorts of governance questions that can pop up and there is not a “one size fits all” answer I can provide. If the section or phase of development that you own in is under Board control, that is to say, has been given control of the governance from the developer, then the developer who owns one unit has the same voting power as any other unit owner which is usually one vote per unit. I reached out to an attorney friend of mine who practices in this specialty area of real estate law. Here is his advice:

“The answer depends entirely on what the declaration and bylaws say.  Only parcels which have been formally added to the condominium by amending the declaration are entitled to vote, usually one equal vote each in modern condominiums.  But some documents say unbuilt lots have lesser voting rights, while others give each unit a fractional vote based on percentages of ownership, square footage, or other measures.  Unless the documents say otherwise, if the developer owns only one unit plus other undeclared lots, he can cast only one vote just like any other owner.”

Mister Condo @ September 25, 2014

St. Louis Condo With Unwritten Governance?

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

M.C. from St. Louis writes:

Dear Mister Condo,

I really like your site, Mister Condo. I’m in St. Louis, but hope you may be able to provide some general advice. My wife and I just moved in to a four-unit condo building. There is an Association, but no board. This complex used to be a family home (all four units), and we are the second non-family to move in. Here is the issue: One of our neighbors has taken it upon herself to schedule all pool and property maintenance, landscaping and snow removal. There are no rules specifying when the pool should be opened or closed — she simply decides, calls the pool company and submits the bill to the property management company to pay. She’s done this for well over a year. We want the pool opened longer. We also want professional landscapers and maintenance people contracted. With no governing rules — and a very indifferent management company — we seem to be at a loss of what to do to resolve this issue. We feel that we should have a voice in how our association fee is spent — but the decisions are being made without discussion or notice. Sort an unwritten agreement by the tenants that were here before we moved in. How do you suggest we approach this?

Mister Condo replies:

Thank you for the kind words, M.C..When you purchased into your condominium you should have been provided a copy of the Declaration as well as the Rules and By-laws that define the condominium. The Declaration is the document filed with your municipal authority that establishes the property as a condominium and is required under Missouri State Law – http://www.moga.mo.gov/statutes/chapters/chap448.htm. My guess is that it is inside one of these documents where the governance of the Association is spelled out. It is most unusual for there to be no Board as the Board is the managing body for governance and any business that is conducted on behalf of the Association. Did you use an attorney when you purchased this unit? If so, now would be a great time to get back in touch with him or her to discuss this issue. The property management company is not usually indifferent. They usually perform the work they were hired to do by the Association’s Board. They are not part of the governance; they simply fulfill their contract to provide service as directed by the Board. It sounds like the unit owner calling the shots is treating you more like tenants than unit owners. Unless the governing documents state otherwise, you are very likely entitled to much more of a say at meetings in how your association is run. Small condos like yours are challenging in that each unit owner represents such a large portion of the ownership. Building consensus is almost impossible and all four unit owners live so closely together that it is hard to imagine everyone not agreeing to almost every aspect of how the Association will be run. Once you are fully aware of your rights, you will be better able to understand what is and isn’t being done properly at your condo. Of course, you may need to be prepared to take over many of the duties currently being handled by the unit owner who does it now. All the best!

Mister Condo @ September 24, 2014

Can Careless Condo Parking be Corrected?

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

N.P. from New Haven County writes:

Dear Mister Condo,

We are having several issues with a new owner in our complex. After being asked several times to park his cars straight into his designated spot, he and his wife continue to disregard our requests and continue to park crooked, or too close to the cars next to them. It sometimes makes it impossible for them to get into their cars. The people he is blocking in happen to be Emergency Cardiologists. They sometimes are called on emergencies and need to depart quickly. This new neighbor is being totally uncooperative. What can we do to correct this constant and ongoing problem? Help!

Mister Condo replies:

N.P., it is disheartening to learn of condo dwellers with little or no concern for their neighbors. Condo living isn’t right for everyone and, clearly, the residents who are carelessly parking their vehicles in such a way as to make it difficult for their neighbors to access their vehicles are just such people. They never learned the Golden Rule of “doing unto others as they would like to have done unto them”. Regardless of the occupation or needs of the cardiologists to quickly get at their vehicles, every resident has the right to park and get into and out of their assigned parking spaces. Off the top of my head there are a few things that you can do as an association.

The first is to review your rules on parking within your association. Generally speaking, the rules are pretty clear about parking only in assigned spaces. If the residents in question are parking in their assigned spaces, then they are not breaking any rules. If they are even a centimeter over their assigned space, it is time to issue a warning, followed by a fine, for each and every occurrence. Be sure to document the incidents with dates and photos. When politeness doesn’t work, hit them in their pocketbooks to get their attention. If you don’t already have rules about towing vehicles parked inappropriately, be sure to add them. That way, if fining doesn’t work, towing the vehicles when they are parked improperly will most definitely get their attention. The rules are usually worded in such a way that the there is a progression; first offense is a warning, second offense is a fine, third and subsequent offenses is a fine and vehicle will be towed at owner’s expense.

If they are not breaking any rules parking in the manner that they currently are, consider modifying your parking rules. If their vehicles are too large for the space provided, consider modifying the size of vehicles allowed on the property. Do you have an upcoming blacktop or sealing project scheduled? Consider adjusting the lines during the line striping portion of the project. The bottom line is that your goal is to get these inconsiderate unit owners to voluntarily behave like good neighbors. If they won’t do that on their own, you can “show them the downside” of not doing so. Of course, you cannot single them out. Any and all rules need to be applied evenly and uniformly so that the Association cannot be accused of discrimination. All the best!

Mister Condo @ September 23, 2014

All Kinds of Roofing Problems at this Condo

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

P.E. from Hartford County writes:

Dear Mister Condo,

A contractor was hired to install a roof shared by 2 Associations. Problem: Another contractor was authorized to perform the work with 100% of the votes in writing (mails). The Treasurer hired a different contractor and convinced all but one (myself) of the members to change their vote after the hiring. The Association requires a 100% Yes vote, if in writing, to hire a contractor. I offered to pay my share of the authorized, less expensive, contractor and was refused. They hired an attorney who is threatening me with foreclosure if I don’t pay $3,500.00 in interest and fees. The original amount in dispute was $210. The project did not have the required permit.

Mister Condo replies:

P.E., what a mess! And a tangled mess at that. There are so many things that were done wrong from what you are reporting that I am not sure where to begin. Let’s talk about the collection efforts against you at the moment since I am guessing that is your most pressing issue. Once the association hires an attorney to take action against you, it is fair to say that you will either need to pay the amount that they claim you owe or file a claim against them and fight the collection. If you take no action and the association’s attorney files a claim against you in court you will very likely find yourself with a judgment for the association and a lien against your property for the $3,500.00. You don’t want that so consider hiring your own attorney to protect yourself.

In my opinion, you may also want to speak to an attorney about the actions taken by the Board, and especially, the Treasurer, in hiring the second contractor to perform the work that was already authorized to be performed by the first contractor. I cannot speak as to what happened or why but if your governing documents call for a certain protocol and that protocol was not followed, you have every right to bring suit against the Board to make them go back and do it the right way. That being said, I think there is a little more to the story than a $210 assessment leading to a $3,500.00 claim against you. Without knowing what the rest of the story is, I really can’t offer any more advice than what I have given.

If your Board has a history of behaving with disregard to the prescribed governance of the association, it is time for a new Board. Of course, that requires willing and able volunteers from within the community to agree to serve. Otherwise, it is very likely that the Board will continue to behave in the same fashion as they are currently. If that is the case, I would strongly consider selling your unit and living elsewhere. Good luck!

Mister Condo @ September 22, 2014

What to Do When Condo Owners Don’t Follow Rules

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

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 (4)

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