Archive for the ‘Rules Enforcement’ Category

What to Do When Condo Owners Don’t Follow Rules

Friday, September 19th, 2014

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!

Condo Fees and Fines

Thursday, September 18th, 2014

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.

Fines for Children Playing in Condo Parking Lot

Friday, September 12th, 2014

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!

Condo Guest and Tenant Policies Questioned

Friday, September 5th, 2014

M.B. from Fairfield County writes:

Dear Mister Condo,

Our condo association has recently changed the guest and tenant policies. If you have a family staying at your condo while you are not there, they can ask for proof of family relationship, an affidavit as to absence of payment. If leasing, you have to submit the age of the owner and any tenants, tenant employment history, 2 personal references, and if they so desire, an “in person” interview! Is all of this legal? I didn’t think you could be asked your specific age, only if you are over 18 and able to enter into a contract. They also are requiring 10 days notice to the board if I decide to have my brother stay in my condo. Power has gone to their heads!!

Mister Condo replies:

M.B., I appreciate your concern but I haven’t heard of your Board doing anything too extraordinary in your letter. In fact, it sounds to me like they are practicing due diligence and following the spirit of the rules and regulations of the association, which is exactly why most people buy into an association. They expect the Board to maintain, protect, and enhance their property values by adhering to a fairly straightforward set of rules and regulations, which the Board can vote to modify over time if it helps them do their job. Keeping track of who lives within the association’s walls is paramount to getting that job done. If the association has rules in place about what defines a family member staying at the condo for prolonged periods of time it is likely that they are trying to prevent unit owners from claiming that a tenant is a family member, when in reality it is just a tenant and the unit owner is trying to avoid paying charges or providing documentation for the tenant. “Family” certainly isn’t “visiting” the unit owner when the unit owner isn’t at the unit! As far as enforcing leasing regulations, it sounds like this Board is on top of their game. There are state and federal laws regarding discrimination but the Board is well within its rights to require all sorts of information about any potential tenant. I am not all that certain on why they require 10 days notice your brother stays at the condo but as long as it is a universally carried out procedure (all unit owners subjected to the same scrutiny) it is very likely within their rights as well. I hope this clears up some of these issues for you, M.B.. All the best!

Association’s Right to Know Who Is Living in the Condo

Friday, August 29th, 2014

R.W. from Hartford County writes:

Dear Mister Condo,

Does the association have the right to know who lives with me?

Mister Condo replies:

R.W., that is a very interesting question. My instinct is to say “Yes” but the part of me concerned with citizen privacy says “No”. And then there is part of me that says let’s ask an attorney. So that’s what I did. Here’s what the attorney had to say:

“Associations have the right to regulate the occupancy of units consistent with their declaration, bylaws, and rules.  This can include reasonable restrictions on tenants, borders, guests, and other people who occupy a unit to ensure compliance with the association’s rules as well as town ordinances and security policies.  If your board has determined that your unit may be occupied by a person whose residency violates a provision of the governing documents, the association does have the power to take action which can include monetary fines, litigation, or both.”

Hope that helps, R.W.!

Not Renting the Condo by the Rules

Friday, August 22nd, 2014

F.K. from New Haven County writes:

Dear Mister Condo,

Owners are renting for less than the required time period. How can we enforce the condo rules?

Mister Condo replies:

F.K., well this one might seem kind of obvious but your by-laws and rules should spell out what happens when a unit owner doesn’t follow the rules. There is usually a summons to appear before the Board, followed by a fine, followed by legal action for repeated offenses. This is where your association attorney can step in and be a real help to the Board. Once the attorney reviews the case, a lawsuit against the offending owner will likely be drawn up and filed with the courts. The association will seek a cease and desist order against the unit owner making the improper rental agreements and the Board should seek legal damages from the unit owner who isn’t following the rules. The underlying question is what is the Association’s goal in bringing this action? It should be to halt the improper rental of the unit. If you go into the suit just seeking damages without trying to halt the improper rental of the unit, you are likely to see this offense repeated again. My advice is to consult with a community association attorney and take action against the offending unit owner. My guess is the association will prevail and the unit owner will play fairly moving forward. Good luck!

AirBnB? Not at this Condo!

Thursday, August 21st, 2014

D.W. from New Haven County writes:

Dear Mister Condo,

I recently heard about the website, AirBnB.com, which allows people to rent out their condo or apartment unit for short periods of time, usually a few days. I had not yet rented out my condo unit when I was notified by the condo board that I was in violation of the by-laws. I have since removed my listing on the website, but I still have a reservation pending for later in the month. What actions could the board take against me if I decide to allow my reservation to go through? Thanks!

Mister Condo replies:

D.W., your condo is not alone in banning the use of AirBnB and similar services. There are a variety of reasons why they ban this activity but it usually boils down to wear and tear on the common elements and too many temporary users unfamiliar with the rules of the community who may also place an extra burden on the use of common elements like swimming pools, tennis courts, parking lots, etc.. It is unfortunate that you were not aware of these rules before you offered your unit for rent using one of these services. I am not an attorney so please take the following advice as friendly and not legal. For legal advice, I strongly recommend that you consult with an attorney.

There are a variety of actions the Board can take against you, and just as importantly, your AirBnB renters (who, in turn, would likely also take action against you). They can ban the AirBnB renters from the property. They can get the local police involved if they are deemed trespassers (they do not hold a legitimate lease or rental agreement). They can come after you for violating your use of the property as outlined in the condo documents. They may hit you with fines, legal fees, and whatever else the association attorney is likely to implement on their behalf. Most Boards will not be sympathetic to your cause in the least as you have violated the most basic principle of common interest ownership and that is to “play by the rules”. Of course, it could be that no one will even notice they are there but is it really worth the potential downside for a few days of rental income? My advice is to withdraw your property from the AirBnB rental service and hope these short-term renters find someplace else to stay. All the best!

Condo Fire Pit Rules and Restrictions

Thursday, August 14th, 2014

G.C. from Hartford County writes:

Dear Mister Condo,

Do most associations in Connecticut have rules against fire pits? Or rules about whether they can be on decks or on ground level? Is there any reason why an association could not have a rule prohibiting fire pits?

Mister Condo replies:

G.C., many towns and cities have rules against grills and fire pits in high density housing areas like condos and apartments and for good reason. One need only turn on the morning news to see the devastation that fire brings to any home but especially homes that are built so closely together as condos often are. That being said, rules and enforcement of rules about fire pits vary widely from condo to condo. There is no reason that I can think of that an association could not ban the use of fire pits. Of course, it is a political issue if the community is split on their desire to use a fire pit. The easy decision is to forbid their use due to the possibility of fire and loss of property and life to association members. However, fire pit enthusiasts may argue that as long as the fire pit is attended and properly maintained there is no issue. The ultimate decision is that of the Board and unit owners who should hold a vote to either ban or allow fire pits although local law trumps any association rule. If the law is being broken, local authorities will take action if alerted. It is a tricky issue and I wish you good luck in resolving it for your association.

15 Years in the Wrong Condo Parking Space?

Wednesday, August 13th, 2014

S.M. from New Haven County writes:

Dear Mister Condo,

What should I do if I am forced to move my car because of a misprint on the Association’s file regarding my assigned parking space? I’ve been parking in the same assigned spot for about fifteen years. Recently, I was told that I have to move to the next space over, which happens to be used by my neighbor, who is also a friend. I have told her about this parking issue. She said it is ridiculous because the spot they are referring to is her parking space. Tonight, I was told by another association member that we can share a space with her until we figure out what to do. I find it all unfair as well as unlawful to my rights. Can you give me some advice of what to do about this mind-boggling issue?

Mister Condo replies:

S.M., well that is a mind-boggling issue to say the least! I am not aware of any statute of limitations for a condo association to enforce car parking rules but fifteen years is a very long time for the association to not comment about the parking arrangement and then take action that effects several unit owners. As usual, you need to start with your purchase and sale agreement and see what it says about your assigned parking. My guess is that it states you are assigned one or two parking spaces for your exclusive use. If you have a garage this may be the space in front of your garage. If there is just a parking lot, it is probably the numbered and assigned spot(s). If there is a misprint on any documentation you certainly have the right to challenge it. Of course, this could turn into a big brouhaha about nothing. May I ask what brought this about? Did someone question the parking arrangement after fifteen years? Have you seen the misprint and are sure it was a misprint and not just a long-term misunderstanding of where your and your neighbor’s assigned parking spaces are? I’d hate to see you have to spend money on an attorney to protect yourself here but if the Board is going to insist on making you change parking spaces over a misprint and you and your neighbor feel they are wrong to do so then you may wish to consult with an attorney just to make sure you don’t have legal recourse. I’d also ask the attorney if you can sue for the attorney’s cost if it comes to a lawsuit. I hope it doesn’t come to that. All the best!

Is A Lawyer Needed for Condo Rule Changes?

Monday, August 11th, 2014

D.U. from Fairfield County writes:

Dear Mister Condo,

I live in a small association that is thinking of making rule changes. Do we need to retain a lawyer to draft them or can we do them ourselves?

Mister Condo replies:

D.U., the short answer is that it depends on exactly what kinds of changes you are considering. I am not an attorney so please consider this advice as friendly and not legal. If you truly need legal advice you should contact a qualified attorney. Condo associations are governed by federal, state, and local laws as well as their own rules of governance as outlined in the condo docs. If you are doing something as simple as changing rules about noise or hours of use for a facility like a pool or tennis courts, you very likely just need to follow the proper procedures for creating or modifying rules. Here in Connecticut, that would include proper notification to unit owners that rule changes are on the agenda for the next Board meeting, the Board meeting, itself, where the rule changes were introduced and voted upon, and then proper notification to all unit owners and residents of what these new rules or modification were. The Minutes from that meeting are in the permanent record of the Association and the new rules should be published and made a part of all future condo documents. If you are uncertain as to the proper wording of a rule or are unsure if your rule violates any federal, state, or local law then you would be wise to invest in attorney consultation. Better to pay for the attorney’s advice now than need to hire one to defend against a lawsuit if your new rules are in violation of any laws. All the best!