By: Barbara G. Hager
In Connecticut, common interest communities, especially cooperatives and condominiums, often have very limited space allocated to parking. Many complexes were built in the early 1980’s and it seems they did not plan for each unit to have two, sometimes three cars each! Additionally, many had no original plans for designated visitor spaces or handicapped parking areas. Today, boards of directors must consider all these things as they try to get a handle on parking. Finding enough parking for everyone without chaos or confusion, and without trampling on the rights of the disabled.
Sometimes parking spaces are deeded, that is, they are assigned by the deed to your particular unit. If this is the case, the particular parking space should be mentioned in the body of the deed or in the legal description attached to the deed. If your parking space was deeded, the association does not have the authority to disturb your rights to park in your space.
However, most complexes have parking spaces as limited common elements or common elements. If they are limited common elements, they must be stated as such in the Declaration. The unit owners would normally have a space allocated to their unit. Again, this allocation must be specified in the declaration. Generally these spaces, once allocated in the Declaration, will not normally be changed without unit owner consent. Federal fair housing law may require some changes in limited common element allocated spaces, as part of an agency or court order to address disability discrimination issues. Otherwise, any changes to allocated limited common element parking spaces will require a vote of the unit owners and amendment to the declaration. If parking spaces are just listed as limited common elements but not allocated to specific units, they may be changed just as common element parking.
Parking spaces may be common elements, with no particular allocations made. The association has the right under state statutes to regulate these common element parking spaces. Such ability to regulate includes the right to reshuffle all the spaces and assign new ones to everyone. This often comes as a shock to unit owners! Your gut tells you that if you have parked in the exact same space for fifteen years, the association cannot make changes and make you park somewhere else. Unfortunately, this is not true. For good reasons, such as accommodating the handicapped, spaces may be reshuffled at any time.
The right to regulate also includes the right to forbid inoperable cars from being stored in parking areas, and the right to limit work unit owners or tenants may do on their cars in those areas. The Association may also limit the total number of cars a unit owner may keep on the condominium property. For example, units may be limited to two cars only. In that case, a third car would need to be parked off site.
Parking seems to be an “evergreen” problem with common interest communities – so if your association is struggling with this, you may rest assured you have lots of company across Connecticut.
By: Barbara G. Hager
So, it’s Christmas and I want to put up decorations at my townhouse (condo). Can I put a wreath on my front door? Can I put a balloon Santa in front of my unit? Can I string lights on my deck railing? Or did I read somewhere that I can only put lights up on the inside of my unit? The answer will be found in the association’s rules.
I look in my files and find four sets of rules!! There is one with the most recent date, but it says “draft” on it. Then there is the old one I got when I moved in over ten years ago, with my re-sale package. I know that one was recorded on the land records because it has volume and page numbers at the top of each page. It must be the official rules! But then there is that other one, a few years later that is unsigned but says the year it was adopted. And finally, there is one with no date at all, but the printing looks more modern so maybe that is the “real” rules? And each of these four sets of rules has different rules about holiday decorations!
This scenario is common in a number of associations. After a few years, there seems to be several “versions” of the Rules floating around the community. No one can tell anymore which are the “official rules.” This puts the association’s board in a tricky position. If there are violations of the rules, to be able to fine the violator (after notice and hearing) the association must be able to show which exact rule has been broken and how it has been broken. And, more importantly, unit owners need to know for certain which rules they are supposed to follow. Without this clarity it may be next to impossible to enforce the rules, and levy fines for breaking them.
The answer to this problem is to record the association’s rules on the land records. This is the best practice to avoid possible confusion. Do this each time they are amended. A court will most likely view the most recent recorded version as the most valid set of rules, the “official” rules. Each time the rules are amended, record them on the land records. Then all Unit Owners will be able to determine which are the “latest” rules, and that those are the ones they are to follow.
By: Ronald J. Barba
The scenario is all too frequent when a board elects one of its members to meet contractors ahead of a major project. Invariably, the board member with the most time on their hands is chosen to contact the contractors and to meet them on site to discuss the details of the job. Before you go any further in the scenario there are some issues you may want to consider before the meeting. Failing to properly plan on a project from its inception to completion is an invitation to trouble. Many mistakes made early in the process can lead to expensive fixes and even litigation.
The first issue to consider is the level of authority the Board member has in his or her meeting with the contractor. If you’re dealing with a contractor who doesn’t perform much work for condominium associations, they may not be aware of the board structure and the formality that goes into entering into contracts. Appreciate that although the board has chosen from among its own to meet with the contractor, that board member thereafter becomes an “agent” of the Association. This article is focused on the importance of the agent and his or her authority.
The degrees to which an agent may bind the association vary greatly, so defining the parameters of the board member/agent’s authority at the outset is prudent. It is equally important that the board member agent make it expressly clear to the contractor that he or she is not authorized to contract unilaterally. The message should be clear that there is a board of directors which will review all the proposals and then collectively decide which company to hire. All of this may seem overly cautious, but the state of the law on actual versus apparent authority should keep you vigilant against assumptions of unwary contractors. So, what is all this stuff about agency?
Agency is the fiduciary relationship resulting from the consent by one person to another that the other shall act on his behalf and subject to his control and that the agent will act accordingly. An agency relationship exists when the principal (Association) asks the agent to act for it and the agent agrees. The agent knows that the Association is always in control the project. You may be aware that a real estate agent is someone with whom you enter into a contract to sell your home. The Agent makes representations (hopefully) in your best interests to potential buyers and may under certain circumstances, bind you to those representations.
When the agency relationship is not so clear, the contractor may believe that the person is an agent with the authority to bind the Association. That is call “apparent authority” and is something for a corporate board and its members to be very watchful for.
“Apparent authority” is reliance by the contractor that the Association’s agent is authorized to make deals. Often the question of apparent authority boils down to the reasonableness of the contractor’s reliance. Reasonableness can be judged based in part by the form of the agent’s representation, the relations of the parties, and each parties level of knowledge and access to information. The contractor must exercise some judgment, must have acted in good faith and consistent with business practices. The reasonableness of the belief in the apparent authority of a board member is determined by the facts and circumstances of each case.
So next time the board discusses meeting with potential contractors you it may want to establish a plan ahead of time by providing the contractor a writing which acknowledges that the board representative is not authorized to bind the Association unilaterally and that the board of directors makes all decisions about contract terms. You may find that an ounce prevention will save many thousands of dollars in unnecessary litigation over confusion and accidental representations.
By: Kristie Leff
With the cold temperatures now upon us, it is important that associations make sure that non-occupied units are property winterized so that water pipes do not freeze. The reason this is important is because a pipe freeze can cause water damage to not just the non-occupied unit, but to adjacent units and the common elements as well. The association’s insurance policy provides primary coverage, but many insurers will not cover damage claims due to frozen pipes if the unit was not properly winterized. This means the costs to repair the damage will be borne by the association. Sometimes these costs can be assessed to the non-winterized unit, but it is best to be proactive to try to avoid the situation altogether.
First, the association must get access to the unit. The authority for getting access to units is usually found in the declaration. Most access provisions allow the association access to all portions of the property, including units, in cases of emergency or upon giving reasonable notice to the unit owner for a mutually agreeable time. It is always best to try get unit owner permission to enter. This will prevent accusations of trespassing or theft of contents. However, if the unit is not occupied, or is abandoned due to an impending foreclosure, there may not be a unit owner around to notify or from whom to get permission to enter. In these situations, the only way to gain access would be if the situation is deemed and “emergency.” In certain situations where attempts to contact the unit owner are or will be fruitless, given the potential exposure on the part of the association, the threat of freezing pipes during the winter qualifies as an emergency, thereby allowing the association to gain immediate access to the unit for the purpose of winterizing it.
Once access is allowed or the emergency provisions are triggered, the association should hire a locksmith to access the unit, and a plumber to winterize the unit, either by draining the pipes and turning off the water, or by setting the temperature such that freezing does not occur. This may mean having to get utilities turned on. The expenses incurred by the association can generally be assessed to the unit after notice and hearing to the unit owner. However, in cases where the unit owner has gone to parts unknown or has abandoned the unit due to an impending foreclosure, there may be no one to whom to send notice. In that case, depending on the circumstances, we recommend that the hearing notice be sent to the last known address, or that the expenses nonetheless be assessed to the unit. If anyone later contests the charges, a hearing can always be held at that time to address the challenge.
Please contact our office should you have any questions about whether access to the unit is warranted as an emergency, and how the expenses associated with damage from frozen pipes and/or winterizing the unit can be assessed back to the unit.