By: Ronald J. Barba
In a recent decision of the Connecticut Appellate Court the difference between a collection action and a foreclosure action were set forth with painful results for the Association. The case involved a unit owner of two units in default in his common charge payments. The Association did not have a standard foreclosure policy adopted as provided for in CIOA. Instead, the Board voted to initiate a collection action against the unit owner for the two accounts which remained in default. CIOA imposes three requirements that an association must satisfy before it can commence a foreclosure action. One of these requirements is that the association's executive board has either voted to commence a foreclosure action specifically against the unit or has adopted a standard policy that provides for foreclosure against the unit. The unit owner claimed that the board never voted to initiate a foreclosure action while the Association attorney argued that collection and foreclosure meant the same thing.
The Appeals Court stated that the act clearly contemplated alternative remedies—collecting unpaid amounts from the delinquent owner or foreclosing the association's lien. Furthermore, the attorney's collection letter to the unit owner did not mention foreclosure or the possibility that the owner could lose ownership of his units. Finding that the board neither voted to commence a foreclosure action specifically against the owner’s units nor approved a standard policy providing for foreclosure against the owner’s unit, the trial court erred in granting judgment in the association's favor. Accordingly, the trial court's judgment was reversed, and the case was remanded with instructions to dismiss the foreclosure action.
It is clear that Associations must make very clear that any vote to refer a defaulting unit owner to the attorney, should specify for what exact purpose they are being referred. The minutes of the meeting at which a defaulting owner is referred must specifically state the purpose of the referral. Those associations with established standard policies should ensure that the policies provide for the foreclosure of unpaid common charges rather than the collection of those charges.
Once again, the higher Connecticut Court have handed down decisions which will send ripples throughout the community association world. Each property manager, every Board and attorney must review the standard policies provided to their clients. Do they unequivocally state that unpaid common fees will result in the foreclosure of the Association’s liens? If not, it’s time to amend the policies to better conform to the court’s decision.
Currently, the State of Connecticut allows pools to open on June 17. But, before diving in, there are several legal, financial, and practical issues to consider.
First, according to the U.S. Center for Disease Control and prevention (CDC), the risk of contracting COVID-19 at a pool is minimal. The CDC has found no evidence that the virus that causes COVID-19 can be spread to people through the water in pools, hot tubs, spas, or water play areas, and that proper operation and maintenance (including disinfection with chlorine and bromine) of these facilities should inactivate the virus in the water.
Second, boards should be aware that most association commercial liability insurance policies contain exclusions for virus or bacteria-related claims. This means that, even though the risk is minimal, should someone get sick and claim that their use of the pool caused them to contract COVID-19, the association has no insurance coverage for this claim or for the cost of defense. Even though it is doubtful that such a lawsuit would be successful as it is nearly impossible to prove where the virus was contracted, the cost of defense (i.e. attorney’s fees) could be significant and would need to be borne directly by the association.
Third, if your community does open the pool this season, operation of the pool must be done in accordance with the guidelines issued by the State of Connecticut. These can be accessed at:
Additionally, the CDC website contains useful recommendations and suggestions for operating pools safely given the COVID-19 threat. These can be accessed at:
Fourth, proper implementation of the state guidelines for pool opening will require an expenditure of association resources. The State rules require appointing a Program Administrator to be sure the rules are properly implemented. This can be a board member, paid employee, or community volunteer (the association should discuss whether it needs to purchase workers’ compensation insurance for employees and volunteers with its insurance agent). Touched surfaces such as handrails, gates, lounge chairs, and other shared surfaces must be cleaned at least daily and more frequently depending on usage. The Program Administrator would be responsible for making sure this is done, or training staff to do so. In order to help manage these tasks, the association may want to consider removing the pool area furniture and have residents bring their own chairs to the pool this season, and keeping bathrooms and locker rooms closed. You can also set up stations containing disinfecting wipes and hand-sanitizers. Also, you may want to prohibit guests as a way to reduce crowding, usage and potential contamination.
If your association decides to open, we recommend that the board formulates rules for the pool in keeping with state and CDC COVID-19 guidelines, and posts signs at all pool entrances containing these rules. The following are suggested rules (which can be changed to meet your community’s needs):
The adoption and posting of these rules does not absolve the association of liability should someone claim they contracted COVID-19 at the pool, but it does put residents on notice of the rules and that there are risks involved.
Due to the lack of insurance coverage for potential claims and the financial costs involved in complying with the state protocols, some associations may decide that opening the pool at the present time is not worth the risk or cost. In this case, be advised that, according the state statute and most bylaws, boards have the absolute authority to regulate the use of common elements like swimming pools. This means the board is perfectly within its rights to close the pool for the season or pick a later opening date if it decides it is in the association’s best interest to do so. Unit owners are not automatically entitled to a refund of common charges if the pool does not open.
This is a general statement of our firm’s position on this matter and is subject to change if the state protocols change. Feel free to contact our office should you have specific questions about your pool opening. Good luck and have a safe and fun summer.
By: Barbara Hager
All of us at times are messy people – we save too many things, or do just a bit too much shopping online, and pretty soon our homes are “cluttered” and full of junk. We get “joy” from all we own and will not get rid of anything! Does this mean we are hoarders?
There is a difference between having too much stuff and being a hoarder. The Association will know a true hoarding situation when the condition of a unit affects the health and sanitation of the neighboring units, not just the one messy unit. Vermin, cockroaches, the smell of dead animals (former pets not disposed of properly) and the smell of rotten food are all signs that someone is a hoarder. Hoarding is a recognized disability. True hoarding affects the neighboring units and threatens the health and safety of other unit owners and occupants. Hoarding also presents a serious fire hazard.
Because it is a recognized disability under the law, hoarding must be handled very delicately by the Board of Directors in order to avoid allegations of discrimination under fair housing laws. There should be no jokes, disparaging remarks or anything negative said at Board meetings or elsewhere about the hoarder. Although the rules usually say unit owners must keep their unit in “good condition” hoarders cannot be handled in the same perfunctory manner other violators of the rules are handled. Before fining or bringing the hoarder to court, due to fair housing and discriminations, the Association must try to assist the hoarder to clean up the unit. This is very different from simply calling in the violator of the rules for a hearing and then issuing a daily fine until he cleans up the unit. More cooperation and help by the Association is required.
A good place for the Board of Directors to start is to call the fire department, health department and or social services department of the municipality. Sometimes the fire marshal will issue orders to clean up the unit if it is a fire hazard. Additionally, municipalities may have social service departments or other advocates available to help hoarders deal with both their unit condition and their mental health condition.
If the municipalities cannot or will not help, the Board will want to begin its approach to the problem. It should first informally call the unit owner in to discuss (in executive session only, not publicly) the Association’s offer to help. Additionally, if there are other relatives or unit owners who are friends or relatives of the hoarder the Board might ask them for assistance in approaching the problem. Fines can be levied but first give the unit owner a reasonable period of time to do a basic clean up. However, the hoarder may simply pay the fines but do nothing to change or clean out the unit. Then the Board may consider bringing an action in court seeking a court order (injunction) to have the judge require the hoarder to clean up their unit. Of course, if the hoarder does not pay the fines, after the fines exceed two months of common charges the Board may proceed with foreclosure.
Judges may be reluctant to order the hoarder to clean up unless the Association has sufficient evidence (from neighbors, health department, fire department, social workers etc.) about the extent of the problem and how it is threatening the health and safety of other unit owners. Therefore, it is important to keep detailed records of the situation. Contact legal counsel should you have any issues regarding hoarders and would like legal advice on how to handle the situation.
By: Andrea Dunn
It’s that time of year…finally!!! It’s been a long winter and the residents are tired of being indoors. With the snow gone, the lawn and gardens are on full display. Are you happy with the landscaper? Many times, things do not go as planned with a landscaper. Promises are made to get you to sign that contract, but once signatures are obtained, it’s as if your 15 year old nephew could do a better job for $50.00. You feel trapped. You are in the middle of a long term contract and it is clear that things are not going to work, but you have no idea how to move on. Here are some tips and things to consider:
1. Do your homework before signing a contract. Ask for references and actually speak to the references. Your property manager is a great resource and has many companies that he/she has worked with and can be a wealth of information. Go and look at accounts that the landscaper is currently servicing. Do you like what you see? Do a google search and read reviews. It is clear that many disgruntled customers are ones that cannot be made happy, but if you are seeing a reoccurring theme in the complaints, there may be a ring of truth to the complaints. Do a search of the court website: www.jud.ct.gov to see if the landscaper has been sued before and why. Check to see if the licenses needed are valid. Did you know that fertilization requires a license?
2. The Contract: Please read it thoroughly and have your attorney review it. Each community is different as to what it needs with regard to landscaping. DO NOT BASE YOUR DECISION ON PRICE ALONE. Cheaper is not always better. Long term contracts are risky. You may want to do a short term contract with a new provider to make sure he/she is going to work out and minimize the time you need to deal with him/her if things go south. A few things to look out for in landscaping contracts:
a. Automatic renewal clauses: many contracts contain language that allows the contract to automatically renew with a percentage increase in the cost. Often, these clauses have specific requirements of notification to prevent the automatic renewal. Often, a period of 60 or 90 days of notice is needed to prevent the automatic renewal. Attention to this detail is imperative.
b. Scope of Work: specific details are an absolute must. Every duty/expectation should be clearly written out with specific detail. Phrases like: mow the lawn as needed or clean the beds as needed are not helpful and can become a problem if a disagreement occurs. If you want a specific height of the lawn, please state it. If you want specific plants, mulch, fertilizer, edging, etc., it needs to be clearly stated in the contract.
c. Insurance: the landscaper needs to provide the association with proof of workers compensation and general liability insurance. Check with your insurance carrier on this to make sure you obtain what is necessary and how it relates to your coverage.
d. Warranties: the landscaper needs to stand behind his/her work within the acceptable guidelines for the industry.
e. Defaults and the process to terminate the contract. There is a reason I suggest you be specific in the scope of the work. If you need to get out of the contract, specificity is your friend. Make sure the contract lists what constitutes a default: failure to perform services as contracted in a workmanlike manner, insolvency/bankruptcy, material breach of any part of the contract, etc.
f. Remedies: most contracts will contain a paragraph allowing for termination of the contract upon notice of default and failure to cure within a certain number of days. Many associations do not want to give the landscaper an opportunity to cure his/her defaults. By the time things have reached this stage, the parties no longer wish to deal with each other at all. DO NOT SKIP THIS STEP. To keep the association from breaching the contract, you must follow the contract and the processes listed therein. If the landscaper fails to cure the defaults (fix everything complained of), the contract most likely is considered terminated. Most landscapers will come to the property manager and board and want to work things out as these contract are the only source of income for these companies and they want to keep your business.
g. Dispute resolution: most contracts contain this paragraph. This mandates that any dispute arising out of the contract, if not resolved, must be resolved by Alternative Dispute Resolution. This is an administrative process that forces the parties to use an arbitrator instead of filing a court action. Parties meet with an arbitrator and present their issues and the arbitrator issues a decision that is final. The parties have to pay for the arbitrator. A discussion should be had about whether or not the board wishes to allow this or ask that it be removed. A discussion with your attorney on the pros and cons of arbitration is recommended.
Conclusion: Be specific and clear as to what your expectations are with regard to landscaping. Protection of both parties via the contract is imperative. Do your homework even though it may take extra time to check on the prospective landscaper. Happy Spring. May your property look glorious and beautiful and your landscaper be amazing.
By: Barbara Hager
It is getting warmer out (slowly) and your association may be reviewing your recreation and pool rules, especially those regarding children, to get ready for the summer season. In the summer there are children out of school playing around and about the complex, and everyone swimming in the pool.
Be careful in making rules specifically aimed at children. In the old days (before the 1988 Federal Fair Housing Laws) associations typically had several rules regarding children which just seemed to “make sense” and were made with the intent of protecting health and safety. However, several of these old “common sense” rules may now be found to violate federal anti-discrimination laws, in the federal fair housing area. Fair Housing law does not permit discrimination against anyone based on “familial status” and this includes families with children.
For example, “children may not play in parking lot or in common areas” has been found to discriminate against families with children.
“Children under 5 not allowed in pool” or “children not allowed to swim after 5:00PM” are both illegal under federal fair housing laws. Additionally, “children must wear rubber diapers in the pool” is problematic. An acceptable way would be to say, “those with incontinence problems are required to wear a rubber diaper/undergarment in the pool.”
“Children may not swim without adult supervision”. This has been found to be illegal because not all adults can swim and many children may swim very competently. A better way to state this would be “anyone who does not know how to swim is not allowed in the pool.” This makes it clear you are aiming the rule at safety generally and not at particular persons. (You can make an exception for those taking swimming lessons with a certified swim instructor).
All these types of rules have been recently found to be in violation of the federal fair housing law which prohibits discrimination based on family status. Rules directed specifically at children are now problematic. Instead, your rules should be directed to the behavior you want to regulate, not the persons.
So instead of saying, “children may not play in the parking lot” the rules should state “no playing in the parking lot. “
Regarding pools, “adult swim time” should just be termed “lap swim time” which leaves room for children who are good swimmers to participate. Forbidding children from using the pool at times it is still open for adults is outright illegal.
The key to remember is, rules that were perfectly acceptable 30 years ago are no longer acceptable. Under the federal fair housing laws, an association may not treat families with children different than families or individuals without children. You will do fine if your rules are aimed at behavior, not particular people, especially children.
By: Kristie Leff
A resale certificate is a document that is prepared by a condominium association that contains certain required disclosures about the condominium unit and the association. The purpose of the certificate is to provide information to a prospective purchaser of the unit so that the purchaser can make an informed decision about whether to buy the unit.
The required disclosures are set forth in Connecticut General Statues Section 47-270. Among the more noteworthy required disclosures are the following:
In some situations, an association is exempt from the obligation to provide a resale certificate. These exemptions include: if the association contains no more than 12 units, if all units are commercial units, if transfer is by way of foreclosure or deed in lieu of foreclosure, if the transfer is by court order, or if the transfer is for no consideration.
Unless an exemption applies, an association must furnish a resale certificate to the seller of the unit within 10 days of the seller’s request. The association may charge an amount up to $125, plus a statutorily allowed amount for copies, for preparing the certificate. Once the buyer gets the certificate, the buyer has five days to void the contract for purchase of the unit.
When preparing a resale certificate, it is of particular importance that the association includes an accurate statement of the amount of common charges and other fees currently due and payable on the unit. This is because the statute provides that the buyer is not liable for any amounts due on a unit unless they are set forth on the resale certificate. Therefore, if the seller has an outstanding balance due at the time of the sale for common fees, fines, or other assessments, unless the amount is disclosed on the resale certificate, the association no longer has a lien on the unit for those unpaid amounts, and cannot collect them from the new owner.
If a unit is in our office for collection and/or foreclosure, it is important that the association refer any requests for payoffs to our office, so that we can include not just the fees due to the association, but out attorney’s fees as well. The same holds true when preparing resale certificates. If a resale certificate is requested on a unit that is in our office for collection, please indicate such on the resale certificate by stating “contact Bender, Anderson and Barba for amounts due and payable” on the portion of the certificate that asks for this amount. If a resale certificate is provided by the association that does not refer the recipient to our office for the amounts due, or does not contain our attorney’s fees, it puts the association in the unfortunate position of being liable for our attorney’s fees.
If your association has any questions about the statutory requirements for resale certificates, or what information to disclose, please contact our office
The Bender, Anderson and Barba Family would like to take this opportunity to thank all of our friends and clients during this time as well as wish them a happy holiday if they are celebrating this weekend.
By: Kristie Leff, Esq.
Sometimes board members act in a way that is contrary to the best interests of the association, or they may appear to be engaging in self-dealing, favoritism toward their friends, not showing up for board meetings, or not paying their monthly common fees or otherwise flouting expected behavior. The board or unit owners could try asking the board member to resign, but if that does not work, Connecticut law and most bylaws provide a mechanism whereby board members can be removed.
Section 47-261d of the Connecticut Common Interest Ownership Act sets forth the statutory procedure for removing board members. It allows board members elected by unit owners (not those appointed by the declarant during the period of declarant control) to be removed “with or without cause,” meaning there can be a multitude of reasons for removal, or no particular reason at all. According to this statute, the board member can be removed by the vote of a majority of the unit owners present at any unit owner meeting or vote by ballot pursuant to C.G.S. Section 47-252. There must be a quorum of unit owners present in person or by proxy. Also, the statute requires that the subject of removal must be listed in the notice of the unit owner meeting or vote by ballot.
As far as sending notice of the meeting for removal, the statute states that either the board president or a majority of board members can send notice of the meeting to remove the board member(s). However, what if the president or other board members oppose the removal, or are themselves the targets of the removal and refuse to send notice? In that case, Section 47-250(a)(1) provides a method by which unit owners can petition for a special meeting to remove the board member(s). This statute allows unit owners who comprise twenty percent of the voting percentage to request that the board secretary call the meeting. If the board secretary does not call the meeting within fifteen days, then the unit owners may call the meeting themselves by notifying the unit owners and listing the subject of removal on the meeting notice. Subpart (3) of Section 47-250(a) requires that, like all notices of unit owner meetings, the notice of the meeting contain the date, time and place of the meeting, the subject of the meeting, and the notice must be sent not less than 10 days nor more than 60 days before the meeting.
At the meeting, like at all meetings, unit owners are allowed a reasonable opportunity to comment on the issue of removal of the board member(s). In addition, there is a special statutory requirement contained in Section 47-261d(b) that requires that the board member(s) targeted for removal be given a reasonable opportunity to speak before the vote is taken. If the vote is taken by ballot without a meeting, the targeted board member(s) must be given the opportunity to deliver information to the unit owners.
If a majority of the unit owners present in person or by proxy vote in favor of removal, then the board members is considered immediately removed from the board.
It is important to keep in mind that the procedure for removal of board members contained in some associations’ bylaws may differ from the statutory procedure. It is critical that both the statutory and bylaw provisions are properly followed, otherwise the removal my not be effective. Our firm is here to assist with any questions about removal so that your community obtains a board that is representative of its wishes.
By: Barbara Hager, Esq. and Ronald J. Barba, Esq.
Every so often we receive calls from Board members or property managers exasperated by the actions of a meddling, “helping” or interfering unit owner who has taken it upon themselves to instruct Association vendors on the proper manner to do their job. These vendors range from landscapers, snow plowing contractors, carpenters, roofers and even insurance companies. They “remind” these vendors that they, the vendor, work for them as much as the Association since it is they that pay the bills. That lament is often pointed at the attorney during usually heated unit owner/board meetings.
Sometimes, Unit Owners or their tenants are so eager to “be involved” in everything that happens at the common interest community. They might, for example, decide that they know best about how to plow the snow. It may begin by the unit owner instructing (yelling at?) the contractor how best to do his or her job. Or perhaps the Association’s landscaper is not trusted by the Unit Owner, so the Unit Owner decides to stand near the contractor as they rake, mow, weed, you name it. All too often the meddling owners acts become harassing and abusive toward the contractor either distracting them from their duties or driving them off the job entirely. Sometimes, these busy-bodies will threaten or actually call the police on a vendor that has offended them in some imagined way.
The interfering owner proceeds on the mistaken presumption of authority or right since “they pay these vendors salaries.” Of course it’s not true. If it were, I would have been much more successful in talking the traffic cop out of issuing that parking ticket. What these owners fail to recognize is that it is the Association, through the board of directors that enters into contracts with its vendors. Unit owners certainly benefit from the service contracted for, but they are not parties to the contract and have no legal right to interfere. The Common Interest Ownership Act authorizes the Board of Directors the right to hire, fire and supervise vendors or contractors.
What can the Board of Directors do to address these situations? The options vary depending upon the frequency and intensity of the interference. The Board could have the property manager, or another available Board member, speak with the interfering Owner and explain the realities of the situation. In my experience, that rarely works. In the past, when approached with this problem, I would suggest that the owner be sent a letter from the Association’s legal team advising them of their bad acts and threaten them with litigation for “tortuously interfering with the Association’s contractual expectations.” The law provides contracting parties the right to sue those individuals that insert themselves into a contractual relationship and cause damage (monetary losses, premature contract terminations, etc.) In serious cases, the courts are willing to compensate the Association for the damage caused by the interfering owner. Generally, this option should be considered as a last resort and for the most egregious offenders. The cost and uncertainty of litigation can prove a significant deterrent for the Association.
The middle ground involves Association’s adopting rules specific to this problem. The Board could adopt language to be added to the Association rules which not only holds an interfering unit owner responsible for their acts but, can also be used to assess any expense incurred as a result of the interference. Rather than risk running the litigation gauntlet, the Board could address the problem in a more timely and direct manner by providing notice and an opportunity to be heard to the owner. If the board is satisfied that the interference occurred a fine or fines may be levied. If damages result from the interference, any calculable amount resulting from the owner’s conduct could be assessed against his or her unit.
By: Barbara Hager, Esq. and Amy Spears, Paralegal
Many times, our clients will rely on the foreclosure process when unit owners are not paying their common charges. On occasion the unit owners will have a mortgage on their unit. When this is the case, the Association has to list the mortgage in its foreclosure action to ensure that the Bank has notice of the foreclosure and obtain clear title should the foreclosure process be completed.
In recent years, the banking industry has seen highs and lows, with some of the lows causing various entities to file Bankruptcy. Most recently, Ditech Holding Corporation and all of its acting entities have filed for Chapter 11 Bankruptcy protection in the Southern New York District Bankruptcy Court.
When a bank such as Ditech files bankruptcy, an immediate stay is placed on any action that they are a party to as a Defendant. This is called the “Automatic Stay.” It means that all activity in the foreclosure case has to come to an immediate stop. We cannot move the foreclosure case forward until the Bankruptcy Case is dismissed, or we obtain Relief from the Automatic Stay. This can have ramifications on an Association as it can halt the action indefinitely, hampering the flow of income into the Association.
In order to proceed with the action, the Association must obtain Relief from the Automatic Stay, and do so as quickly as possible. Once Relief from the Automatic Stay is granted, we can move the foreclosure case fairly quickly to conclusion. The reason it is imperative to proceed so quickly is that the Association needs to consider the fact that, should the bank redeem in the Association’s action, the Association is only entitled to the nine-month priority (the equivalent of nine months’ common charges), and therefore is at risk of losing the amount due above the nine-month priority debt. Attorney Ronald Barba is working aggressively on obtaining Relief in the New York Bankruptcy Court to allow our Clients actions to proceed in a timely manner and minimize lost income to our association clients.