Posts Tagged ‘condominium’

NY Condo Board Not Following Condo Bylaws

Monday, October 28th, 2013

L.L. from New York writes:

Dear Mister Condo,

My condo bylaws state that beneficial or necessary “alterations or improvements” over 5% (~$13,000) of the annual budget must be approved by 2/3 of unit owners. Because of abuse complaints, there is also a bill being considered in New York that would make it a state law that association contracts over a predetermined cost must be approved by owners. The current board, with the support of property managers and committee members (including one with local political and board experience) have chosen to ignore the bylaws, despite reminders from unit owners.

In the past year they have, without presenting contracts to owners or holding a vote,: replaced a ~6,000 SF silver slate roof with brown asphalt, and “saved money” by leaving a worn out and unrepaired copper ice shield and gutter system in place. Dozens of new shingles blew off 2 months later, valley flashing has gaps and daylight visible from inside the attic, and the roof and gutters leak (costing unit owners almost $48,000.00); constructed an underground storm system and connected roof drains that will “save money” by skipping routine gutter system and grading repairs. The project had no effect on targeted black ice and swampy lawns because these are also due to neglected grading and pavement maintenance unrelated to roof drainage (~$30,000.00); completely demolished an intact 16′ x 18′ porch structure with timber trellis, slate roof, metal lath and plaster ceiling rather than repair a header and damaged gutter, and replaced it with a vinyl and asphalt covered roof they believe will “save money” because it will never need painting, and failed to get a required building permit before starting the work (~$23,000.00); and, unit roofing improvements they were informed by engineering professionals will not mitigate severe ice dams and do not even meet minimum requirements of the current building code but “save money” because the work cost less than the recommended work estimate (~$20,000.00 spent and ~$20,000.00 planned).

Unbelievably, unit owners say they trust the board who trust the property managers and the contractors, and all claim they have done quality work and saved the association money. The unit owners don’t understand, don’t want to know details or care if they vote on contracts! So, the real answer is, a board can spend and do whatever they can delude unit owners and themselves into believing what should be done. Until there are laws requiring a higher level of skill, training and ethics among property managers, perhaps even requirements for board volunteers, and channels other than expensive litigation to protect unit owners who see the system being abused, state laws and condo bylaws mean nothing. Boards can and will continue to do whatever they want, no matter how wrong, illegal or just plain stupid. What do you think?

Mister Condo replies:

L.L., greetings from your Nutmeg State neighbors in Connecticut. It would appear that your fellow unit owners do not share your concerns over the proper governance of your condominium by your current Board. It would also appear that the Board has made a few mistakes, innocent or other, that have cost the community money. However, unless the Board is called on their actions, there really is no other remedy for you. Regardless of how other unit owners respond, you do have the right to have the bylaws enforced. However, exercising that right will require you to take legal action against the Board which you can do on your own but you may find it is just simpler to hire an attorney who would then file suit against the Board for acting outside of their contract. Keep in mind that the Board will likely hire its own attorney to defend itself but that is just the nature of how the Board functions. You may not be able to rectify what has already been done but you can show this Board that you are serious about protecting your rights as a unit owner within this condo. Also, since your fellow unit owners appear to be perfectly content with how things are and see no fault with how the Board is handling the association’s governance you might also consider selling when the market conditions are right. A Board with unchecked power can make some decisions that could cost you much more than they already have. All the best!

Gone With The Wind – Patchwork Condo Siding Repair

Friday, October 25th, 2013

B.C. from Fairfield County writes:

Dear Mister Condo,

For the past five years wind has been damaging the siding at different buildings of my condo complex. The buildings were sided when they were built more than 20 years ago and for the most part the siding has become weathered and a bit unsightly. However, the only time the Board repairs the siding is when it actually gets blown off of a building. Every time there is a repair it costs a lot of money and it looks terrible as the color doesn’t match the original. Wouldn’t it make more sense to simply replace all of the siding?

Mister Condo replies:

B.C., you have actually answered your own question quite nicely. I love it when readers make my job so easy! Your Board is likely facing the same challenge that many community associations face when it comes time to make a major renovation like replacing old and worn siding. The project requires a healthy Reserve Fund from which to draw the money to pay for it and many associations simply aren’t prepared. If that is the case where you live the repair would have to be funded through either a special assessment or a community association loan, neither of which are likely to prove too popular with the unit owners. What happens instead is what you are experiencing; patchwork repairs are done year after year until the siding becomes so aged and damaged that it must be replaced. Ultimately, that costs the community far more than simply addressing the problem head on and making the tough fiscal decisions required to maintain, protect, and enhance the association, which is the Board’s mission.

You would do well to advise your Board that there are solutions they may have overlooked. If you are close to any of the Board members, have a conversation. If you are not close to any of them, write a letter or send an email. Direct them towards your local chapter of the Community Associations Institute (CAI), in your case that would be CAI-CT at http://caict.org where they can learn about the perils of deferred maintenance and find the resources they need to address the problem. They may wish to speak with a lending specialist to arrange the needed funds. They may need to speak with a Reserve Analyst to address future issues. They may even need to speak with an attorney to address amending their by-laws if they don’t have the authority to borrow under your current by-laws. The bottom line is that they could use some help. Fortunately, help is only a mouse click away! All the best!

Can the Condo Association Require Use of ACH for Common Fees?

Thursday, October 24th, 2013

A.D. from Hartford County writes:

Dear Mister Condo,

I understand that Associations cannot force an owner into using an ACH or other debit system to pay for monthly maintenance fees. But can an association require ACH signup in order to forgive a late fee?

Mister Condo replies:

A.D., hello to you as well! Automated Check Handling (ACH) is simply one more method for a unit owner to pay their monthly fees and/or special assessments. Other debit systems (credit card or ATM transactions) are yet another way to pay that has become more common and popular in recent years. While I suppose it is possible for an association to “request” that clients use ACH or debit systems to pay for common fees I cannot for the life of me understand why they would “require” a homeowner to sign up for ACH in order to have a late fee forgiven. As far as the association “requiring” anything other than unit owners pay their fees on time I am unaware of any ruling that allows them to mandate or require unit owners use a particular type of payment system. While it is unusual for a Board to forgive a late fee it is not unheard of. Perhaps they are attempting to discourage future late fees by offering one-time late fee forgiveness if the late payer converts to ACH, which might actually benefit all parties involved. In this case, the late fee forgiveness is only being used as an inducement to ease future common fee payments. If that is the case, this mystery is solved. All the best!

Negligent Condo Owner Allows Burst Pipe to Damage Two Units; Who Pays?

Wednesday, October 23rd, 2013

A.L. from New Haven County writes:

Dear Mister Condo,

A condo owner was negligent in that he had his unit vacant for the last 4 months and a water pipe in the bathroom burst causing damage to his unit and the unit next to his. He says association is responsible for repairs. Is that true?

Mister Condo replies:

A.L., the short answer is “it depends”. Negligent behavior is not always as simple as applying common sense to the situation like you and I would think. Negligent behavior with regards to condo upkeep and appropriate amount of care that must be provided to an individual unit is often a matter of what the condo documents state as appropriate and what constitutes negligence. If your condo rules and regulations do not address minimum maintenance standards such as what temperature a unit must be kept at or how often washing machine hoses must be changed to prevent burst pipes and other water damage, the battle for who will pay for the repair may take some time to sort out and even lead to a lawsuit where the association sues the unit owner and/or vice versa. This mess gets even trickier when insurance companies get involved. Needless to say, claims for damages that could have been easily prevented are a burden on the system and create higher premiums for associations.

Rich Bouvier of Bouvier Insurance wrote an excellent article for Common Interest, the magazine for the Connecticut Chapter of the Community Associations Institute (CAI-CT) in which he discusses the issue and the CT law that addresses it. You can read much more about the topic at http://www.caict.org/Articles/comm_interest_articles_legal_cioa_insurance2.html. If your Board hasn’t already adopted written maintenance standards for your association, I suggest they take heed of this article and do so to prevent further damages and liabilities for the association. Good luck!

Is This Condo Board President Overstepping?

Tuesday, October 22nd, 2013

L.M. from Hartford County writes:

Dear Mister Condo,

We have a condo president who has let the power go to her head. She is constantly sending us letters and most recently told us that if our daughter was not supervised by an adult at the playground she would fine us for each and every occurrence. She also harassed us about tree trimming and having our cat on a leash. Nowhere is it written in our by-laws that we have to leash our cat or supervise our 6 year-old daughter on the playground. No other parents supervise their kids and we do not believe she is sending them threatening letters. We feel like we are being singled out. Does she have the power to do this?

Mister Condo replies:

L.M., condo presidents are volunteer members of the Board of Directors who were elected by their Boards of Directors to fulfill the duties of presiding over the Board. It is often a challenging assignment and can lead to situations like you have described if the person in the role misinterprets their presidency to include behaving as the condo cop on top of the regular duties of a Board President. While I commend this volunteer for her service to your community it sounds to me like she would benefit from a better understanding of what her role is with regards to individual unit owners such as yourself. Of course, you and your fellow unit owners need to understand your roles as well.

All unit owners are tasked with living within the rules of the condominium association. This is a voluntary agreement that all unit owners agree to abide by when they purchase into the community. Renters, as an extension of their rental agreement, must also abide by the rules of the association. If your rules call for all pets to be leashed (most do), and all children to be supervised in play areas (again, most do), then it is incumbent upon all residents to follow the same rules. That being said, if only some of the rules are being enforced against only some of the residents, a case could be made for discrimination. If you truly feel you have been singled out, you may wish to contact an attorney to see if legal action is in order. Keep in mind that you will need to demonstrate that you and only you have been cited for breaking the rules. The attorney can better advise you than can I as to whether or not you would be likely to prevail in court.

The Common Interest Ownership Act (also referred to as CIOA) outlines the correct procedure for a Board to take corrective action against residents who do not follow rules. A written warning must first be issued and the offending unit owner is invited to speak before the Board at the Board’s next regularly scheduled meeting. If the violations persist, a fine or series of fines may be issued. Fines may be issued for each and every occurrence but the idea behind the fine system is to correct the behavior; not force a unit owner to be repeatedly fined for the same offense. My advice is for you to review your condo documents once more and make sure you are not mistaken about walking a pet off leash and leaving children unattended in play areas. If you still feel that you are in the right, ask to speak to the Board at their next meeting or hire an attorney to protect your rights. All the best!

High Overhead Costs for this Condo Roof Project!

Monday, October 21st, 2013

S.C. from New Haven County writes:

Dear Mister Condo,

The association never put money aside for roofs. They couldn’t get a loan so they had a meeting and decided at that meeting to raise our common fees $100 per month. They said they sent a letter so you could vote but I didn’t get one. I don’t think many people knew. We have almost 100 units and I was told that only about 20 people voted. We had been paying $35 a month towards the roofs for the past 2 years. Now they want $100.00 a month for 2 years. Is it time for a CPA audit?

Mister Condo replies:

S.C., an audit by a CPA may be a good idea but it is hardly what is at the root of your association’s fiscal challenges. It would appear that not nearly enough money was set aside for the roof replacement project that your buildings needed. A proper Reserve Study is more likely what is needed to stop this from happening again. What if the same math is applied to the roadways, or the pool and clubhouse, or the building exteriors? You and your fellow unit owners could find yourselves reaching for your checkbooks every time such a repair is needed. If I have done the math correctly, your association set aside $35 X 24 months X 100 units = $84,000 for the roof repair. In reality, the repair is costing $100 X 24 months X 100 units = $240,000. That means the project was underfunded by more than $150,000! I can see being off a few thousand dollars here and there. Even coming up short by 10,000 or 15,000 or 20,000 dollars in a project that size is understandable. It would appear the Board had no real barometer by which to measure the project’s real cost. That is where a Reserve Study can be invaluable in helping the association prepare for known upcoming expenses. An audit can come in handy to catch items that might be missed during standard review of the Profit and Loss statements by the Board but unless you think someone has stolen or misappropriated funds an audit will only confirm what you already know. Enough money has not been set aside for years to cover the cost of this roof replacement. The good news is you and your neighbors will have new roofs over your heads to protect you and your investments. The bad news is that you will pay for it in a relatively short period of time versus over the lifetime of the roof.

As for the procedures followed by the Board in calling the meeting and modifying the common fees I cannot say if they violated any of your rules or state law for Common Interest communities. If they did, you may challenge their change to the common fees. However, the long term outcome is likely to be the same. I assume you need new roofs and as an owner, it is your common fees that will pay for them. All the best!

Condo Volunteer Seeks Nomination to the Nominating Committee

Friday, October 18th, 2013

R.B. from Middlesex County writes:

Dear Mister Condo,

How are nominating committees formed? How do I get on the committee?

Mister Condo replies:

R.B., I like your desire to get involved with your community. Almost all committees derive their status from the Board of Directors. In some larger communities, committees may be called for in the condo’s governing documents. Either way, there is a protocol where committees are appointed by the Board to make studies, recommendations, or accomplish a specific task. Depending on the type of work being performed, the committee may also have a small budget and the ability to oversee certain association expenses. A good example might be the Pool Committee who is tasked with making recommendations about pool safety and conditions as well as decide opening and closing hours, etc.. This committee might make a recommendation that the hand rails need replacing which the Board would then vote on to approve.

The Nominating Committee is tasked with finding suitable volunteer candidates to serve on the Board of Directors. In healthy, vibrant communities there are usually more than enough volunteers who are willing and able to serve. However, that is not always the case and the Nominating Committee may be tasked with seeking out individuals to serve. It is not uncommon for former members of the Board to be asked to serve on this committee as they have first-hand knowledge of what it’s like to serve on the Board. Like other committees, the Board would select member(s) to serve. If you have an interest to serve on the Nominating Committee, it may be as simple as letting someone on the current Board know that you are interested. If you have already served on other committees and are known to the Board you could be an easy selection. If your first volunteer effort is to ask to serve on this committee the Board may simply thank you for volunteering. Either way, the Board is under no obligation to appoint you to the Nominating Committee.

Thanks for the question. Happy Volunteering!

Volunteer State Condo Issues Continue

Thursday, October 17th, 2013

C.P. from Tennessee writes:

Dear Mister Condo,

Mr. Condo, thank you so much for responding to me. I have already tried just about everything but hiring a lawyer. I joined a bylaws committee (the only committee we have which is dead now). We have studied our documents frontwards and backwards, along with TN law in the annotated codes. When we asked the Board to meet with us so we could all go over our findings they refused. They will not even talk to us. That is really frustrating. I have sent them so much information but I don’t think they even read it. They talk to us as though they know everything and the rest of us are idiots. It is humiliating and so wrong. We have decided to try and get more people involved so we can stop some of the nonsense. They also want us all to pay for extra parking pads and told them we never got to vote on that and they can’t change a common area without a percentage of people agreeing but they just ignore me. And now they passed an amendment so they get paid, so they are not volunteers. It really is awful to be treated so badly, especially when you’re almost 70 and don’t deserve this kind of treatment. Thanks for your help. Appreciate just being able to be heard, and appreciate any other help you can suggest. I did talk to someone in our state government offices and he said I am right and to keep trying. It’s awful to think we will have to hire a lawyer just to get them to do things legally. Sorry to go on so much. Thanks again.

*** (Editor’s Note: This follow up question is in reference to the original post http://caict.org/askmistercondo/volunteer-condo-leader-issues-in-volunteer-state/)

Mister Condo replies:

C.P., you are most welcome for my original advice and you are also welcome in advance for what I am about to suggest. I am not certain of the laws in your state but most states prohibit volunteer Board members from receiving any type of pay for their volunteer service to the Board. It completely violates the nature of volunteerism to be paid for services rendered to the association to which they belong.

Hiring an attorney makes perfect sense when either your rights or your pocketbook are being abused. Though not insignificant, the amount spent on counsel will come back to you many times over in the money and time you will save by having a legal professional drive this process. There are times when the simple act of having an attorney contact the Board will get the Board’s attention and get them to behave properly. From what you have described to me, I would not hesitate to hire an attorney and take action.

You may end up suing the current Board but you will protect the rights of all of the affected homeowners. Of course, it goes without saying that you and your neighbors need to vote better volunteers into office and be sure to vote out the volunteers who have misbehaved. Your condo association is a democratic organization and your vote is your voice in electing leaders that will best represent the interests of the community members. From what you have told me, you and your fellow unit owners who have spent time analyzing your condo documents are very likely contenders for service on the Board. Be sure to nominate right-minded folks and take back control of your association.

Of course, I still strongly recommend you get in touch with your local chapter of CAI at http://www.caitenn.org/contact.html. You don’t need to go this alone and you have local resources to assist you. I look forward to hearing from you again when this ugliness is behind you. Good luck.

How Much Money Can A Condo Board Member Spend on Behalf of the Association?

Wednesday, October 16th, 2013

L.L. from Fairfield County writes:

Dear Mister Condo,

What is the law regarding the autonomous spending limit of a board director?

Mister Condo replies:

L.L., although I am not an attorney, I am not aware of any law that limits the amount a Board Director may spend on behalf of the association. I thought that association by-laws might address the issue but I wasn’t certain so I checked with a community association attorney who specializes in such matters who had this to say:

“If by “autonomous spending limit” you mean how much one board member can use or pledge for condo business, the limit is whatever the board decides to authorize that member to spend. There is no specific statute on this, and most bylaws wouldn’t cover it either except to require one or more authorized signatures on checks and contracts.”

All the best!

Condo Board vs. Hot Tubs; The Battle Continues!

Tuesday, October 15th, 2013

J.Q. from New Haven County writes:

Dear Mister Condo,

Hot tubs are allowed at my condo according to our CCR. However, I have requested to install one on my deck and am being denied by the Board. How can it be denied if the CCRs allow it?

Mister Condo replies:

J.Q., hot tubs have been getting condo owners and condo association in hot water for years. Unit owners that wish to install a hot tub are usually quite passionate about their desire to do so. Boards that have had problems with previous unit owners who installed improperly or failed to maintain once installed hot tubs are usually the reason the Board tries to prevent new installations. Suffice to say that if the CCRs are on your side, you may be able to prevail but you should be prepared for a battle. Boards can cite architectural compliance issues, safety issues, insurance issues, and more to prevent an unwanted hot tub from being installed. You may find that you even need to hire an attorney to bring suit against the Board to allow you to install your hot tub. Even then, there is no guarantee that you will prevail. If the hot tub is that important to you, by all means, pursue your dream. If it really doesn’t matter, I might suggest you let it go. The Board is charged with protecting the community and surely has its reasons for not wanting the hot tub installed. All the best!