By: Andrea Dunn
The Association has the power to fine a unit owner for violating the rules. So, it’s okay to send a note telling them and adding the fine to their account? NO. NO. NO. To quote a phrase from the movie, Mr. Mom, “You’re doing it Wrong”. Doing it wrong can cause a great deal of strife for a Board of Directors, and can cost the Association lots of money. So, let’s go over the procedure that must be followed to issue a fine properly, according to the Common Interest Ownership Act.
Felix Unger lives in a condominium with assigned parking spaces. He continually blocks his neighbor’s, Oscar Madison, parking spot. The property manager has already sent two letters informing Felix of the rule violation. Felix has continued blocking Oscar’s parking spot. The Bylaws allow the Board of Directors to fine up to $50.00 per day for any rule violations. It is clear that a fine needs to be imposed upon Felix to try and encourage his compliance with the rules. Remember, the purpose of the ability to fine is not to make extra money for the association. It is to get unit owners in compliance with the rules.
You might think that a fine can simply be issued to Felix and added to his account, but this is not correct. If you wish to impose a fine, you must follow procedure. What is the procedure? Keep reading.
First, a notice must be sent to Felix with a date asking him to come to a hearing before the Board. The notice MUST contain the following information:
It is a good idea to send this notice via both regular and certified mail to ensure that Felix receives it.
Part 2 will cover the hearing and aftermath.
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.
By: Barbara G. Hager
When it comes to satellite dishes and condominium associations, “going with your gut” may get you into legal trouble!
If you have lived in your common interest community since the early 1980’s you probably remember the time when the Association could forbid satellite antennas and dishes being put up by unit owners. However, the federal government created a new law in 1996 which protects rights of unit owners in condominiums to have a satellite dish or antenna. That new law was called the “Over-the-Air Reception Devices” (“OTARD”) and was adopted as part of the Telecommunications Act of 1996.
After this law was enacted and continuing to the present, Associations may not forbid unit owners from putting up a satellite dish, as long as the dish is no bigger than a meter (39.37”) in diameter. The Association can enforce their other rules regarding no objects being placed on the roof, front of unit or on the outside walls of the unit. Under the law, the Association cannot prohibit the unit owner from placing the dish or antenna on their limited common area decks and balconies. The dish can also be put on the railings of those decks and balconies.
The OTARD law forbids restrictions that might impair the installation, maintenance or use of the types of antennas (dish, TV antennas and wireless cable antennas). The rule does not prohibit legitimate safety concerns. Additionally, historic districts and buildings on the National Historic Register are exempt from the rule, and can forbid satellite antennas and dishes altogether.
Importantly, under OTARD the Association may not require the unit owner to get prior written permission before putting up the dish. That would be considered placing an unreasonable restriction or delay to obtaining televised services. Of course, any Board member or property manager would say: “we have to be able to control where they place the dish!” This is where your rules would come in. The Association’s rules should have a section advising the unit owners where it is permitted to place the dish. Those rules would include things such as, any attachment device must not damage the limited common element when it is removed.
Additionally, the Association is prohibited from requiring that the dish be put in a place where reception would be impossible or substantially degraded. OTARD therefore prohibits the Association from requiring the dish to be placed inside the unit or in a garage.
I have seen several sets of Association rules which still require prior written permission to install satellite dishes or TV antennas. This is against the federal OTARD law and may invite lawsuits. If you would like assistance in drafting proper satellite dish rules, call us!
By: Barbara G. Hager
We at Bender, Anderson and Barba P.C. hope you all have a Happy Thanksgiving. I am thinking today especially about all the board members of our client associations, who work very hard! Thank you for all you do in service to your associations! We know it is a lot more than just going to a meeting once a month, and it is certainly not just pushing papers.
There is a lot expected of board members in performing their duties. Directors and officers have serious legal duties: the duty of care, and the duty of loyalty.
The duty of care means, in all that the Board does, it must work in the best interests of the association, and, just as it says, make decisions carefully. No rushed decisions and no decisions “pushed through” by one particular Board member. All directors should discuss the decision, review all the related documents, contracts, spread sheets etc. It should be noted specifically in the minutes that there was discussion and review of related documents prior to the decision. With complex matters, such as major construction projects and loans, professionals should be consulted, and their reports reviewed closely.
Board members also have a duty of loyalty. That means that a director’s decision is always based on what is good for the association as a whole, not on what is good for a particular unit owner the director is friends with, or for a particular director’s personal financial interests. It also means no board member may contract with or do work for the association unless it is in the best interests of the association, and that Board member recuses him or herself from the vote. The board should be particularly resistant to granting contracts to board members or companies with which board members are associated. There are complex legal requirements regarding conflicts of interest in the event that a board member is hired to do work; contact us before moving forward.
The board of directors makes decisions and “speaks” with one voice. No board members should be out in the community talking with unit owners about decisions the Board has or is going to make. Only the board as a whole communicates those decisions. Additionally, board members should be particularly careful not to promise a unit owner that some repair matter “is the association’s responsibility.” The matter of responsibility must be checked with the Declaration, Maintenance Standards and Maintenance Matrix (if you have one). Not every problem the unit owners have is the association’s responsibility! Do not let yourself feel pressured to agree to something simply because a unit owner pushes you or screams at you about it. Also, do not let pressure from unit owners cause your board meetings to become contentious; always listen and respect one another as the Board reviews and decides each matter.
Keeping these principles in mind, you will all do well, as careful and loyal board members, which in turn will help your communities flourish.
Again, we thank you and wish you well in your service to your common interest community.
By: Kristie Leff
As social acceptance of smoking cigarette smoking changes, smoking in condos is becoming a hot-button issue. Smoking is not a constitutionally protected right, and more people are becoming aware of the health effects of second-hand smoke. As a result, we have seen an increase in complaints from units owners about smoking, and more associations that want to explore smoking bans. That being said, in most cases associations do not have to take any action as this situation can be considered a matter to be addressed between the unit owners themselves: the non-smokers always have a legal right to seek redress against the smoker by bringing a direct action against him in civil court for nuisance. However, if there is a desire among the community to ban smoking in units, or if the smoking complaints may lead to lawsuits being filed, there are measures the association can take address the situation.
For example, most associations have nuisance rules that give the board the authority regulate noxious or offensive activity which may become a nuisance to other unit owners. Such rule provisions can be used to address smoking if it is causing a nuisance for other unit owners. The board can send notice to the smoker that a hearing will be held to address the allegation of nuisance behavior. Based on the evidence presented at the hearing the board can then make a determination as to whether or not the smoking is a nuisance (is there just occasional smoking, or does the smoking happen continually; is the smoke actually emanating into other units; can better ventilation or caulking of cracks remedy the situation; do the complainants have health issues that make them vulnerable to even small amounts of smoke, etc.). If the board determines the smoking is a nuisance and the emanation of the smoke cannot be remedied, the board has the authority to impose fines on the smoker for violation of the nuisance rule.
Another option the board has is to adopt a no-smoking rule pursuant to Connecticut General Statutes Section 47-261b(f)(1). The board always has the power to adopt rules regulating smoking on the common elements. However, this statute allows the board to enact rules to regulate the behavior inside units which adversely affects the use and enjoyment of other units or the common elements by other unit owners. Such a rule can be adopted by the board after notice and comment to unit owners. As with all rules, the unit owners would not get to vote on the rule. Even though an association may already have a rule prohibiting nuisances, a new rule banning smoking in units would directly address the smoking issue and the board would be able to issue fines (after notice and hearing) without having to make a determination as to “nuisance”. Instead, the board need only make a finding that the smoking is adversely affecting others. As this is an emerging area of law, this approach has not been widely utilized, or been challenged in court, so we do not know if this approach will actually stand the test of time.
Instead of adopting a rule, a declaration amendment can be adopted to ban smoking inside units. Regulation of behavior inside of units is considered a “use restriction.” Most declarations allow for implementation of the Connecticut General Statutes Section 47-236(f) procedure to impose a use restriction (such as a smoking ban) upon an affirmative vote of 80% of the unit owner with no objections. The advantage of a declaration amendment as opposed to a rule banning smoking is that a declaration amendment is less susceptible to a legal challenge because it is voted on by the unit owners, not just adopted by the board. The challenging part about a declaration amendment is getting the affirmative 80% of unit owners to vote in favor of it. In order to encourage enough unit owners to vote in favor of a smoking ban, it may be wise to allow a grace period in order to give smokers time to either quit smoking or move out.
Before adopting either a rule or declaration amendment banning smoking, we recommend that the board survey the unit owners to gauge their interest is taking such action. If few unit owners are interested this may not be a worthwhile approach-- it may then be best to approach smoking complaints on a case-by-case basis using the existing nuisance provisions of the rules.
Please contact our office should your association want assistance with smoking complaints, or with implementing no-smoking rules or declaration amendments.
By: Kristie Leff
One of the most important functions of condominium boards is the assessment and collection of common charges. Without a properly funded budget the association will not be able to pay its expense, maintain the property, pay insurance premiums, or fund its reserves. It is essential that the proper budget adoption procedures are followed because the lack of a properly adopted budget could mean that common charges are not collectible. The budget adoption procedures are found in Connecticut General Statutes Section 47-261e(a). Always check the association’s governing documents as well as there may be additional budget adoption procedures that must be followed. The statutory requirements are summarized as follows:
Why is it important to follow these procedures? A Connecticut Superior Court case demonstrates the importance of a properly adopted budget. In the case of Westbury Condominium Association v. Tashjian, 2006 Conn. Super.,LEXIS 3295, November 6, 2006, J.D. of Hartford, the association brought a foreclosure action against a unit owner who refused to pay increased common charges. The association’s budget increased the common charges from $244 to $372 per month. The unit owner continued to pay the $244, but refused to pay the increase. Once the account became delinquent the association brought a foreclosure action. The unit owner filed a special defense alleging that the increase was invalid because the budget had not been properly adopted insofar as the budget summary not provided to unit owners until the day of meeting, and the summary misrepresented the amount of the increase by stating it was a 28% increase when in fact is was a 50% increase.
In court the association argued that validly levied common charges are an absolute obligation and are not subject to special defenses. The court agreed with this, but noted that that the key phrase is “validly levied.” The court found the common charges were not “validly levied” because the budget was not adopted properly—the summary was not provided until the meeting, and the summary misrepresented the amount of the increase—stated it was a 28% increase when in fact is was a 50% increase. The court stated that the purpose of sending notice and a summary of the budget in advance is to put all unit owners on notice of the proposed budget, give them ample opportunity to study the proposed budget, and decide whether or not they will appear at them meeting. The court therefore entered judgment in favor of the unit owner and the association was unable to collect the common charge increase from the unit owner.
This case is a cautionary tale to associations: if budgets are not properly adopted common charges are uncollectible. Avoid this trap and be sure to follow all statutory procedures and any other requirements in the association’s governing documents when adopting budgets.
By: Andrea Dunn
Every Association has dealt with the complaints. One (or more) unit owner who refuses to clean up after their dog. It seems like such an easy thing for a unit owner to do, but for whatever reason, certain unit owners don’t find it necessary to bag the waste and dispose of it properly. This can lead to an infestation of parasites, deer ticks and, sometimes, rats. The property manager has sent letters to no avail or receives a response such as “It’s not my dog’s waste, I always pick it up. Your information is wrong”. What is an Association to do at this point? The rules state that pets are to be on leash and that waste is to be picked up immediately and disposed of properly.
The first thing to consider is what evidence exists to back up the claim. Did another unit owner take a photo of the incident? Is the complaining unit owner willing to come forward and present evidence? Typically, if the warning notice from the property manager does not fix the problem, the Association will have a hearing with the unit owner. This must be done within the statutory framework of the Common Interest Ownership Act, §47-244(a)(11): notice sent to the unit owner with at least ten (10) business days notice prior to the hearing date notifying the unit owner of the rule violation, their right to be heard and attend the hearing and have witnesses and that the Board will issue a decision after the hearing. Remember, that even if the unit owner fails to attend the hearing, the Board can issue a decision. These steps are important and, if not done properly, could result in a court action being dismissed should the matter make its way to a foreclosure action for the non payment of fines issued for the violations.
If the Board votes to fine the offending unit owner daily until the unit owner decides to comply with the rules, this could result in fines ranging into the thousands depending on what an Association’s bylaws allow for fines in a short period of time. So, for example, a Board issues daily fines of $50.00 per day until the unit owner complies. This could result in $1,500.00 in a 30 day month. If the offending unit owner does not pay the fines, within 30 days, a foreclosure action may be started for the fine amount. This should be an easy argument to make to the court, right?
MAYBE. Let’s say the unit owner finally wakes up upon receiving the court summons and decides to fight. His argument? It’s not my dog’s waste. I need to see proof for everyday that a fine was issued that my dog defecated and I didn’t pick it up. There are numerous dogs at the condominium and it could be any of their waste. If you are fining me daily, there should be proof for everyday my account was issued a fine. NOW WHAT? Do you have photos of his dog defecating for 30 days straight? Does your property manager visit the property daily just as the offending unit owner’s dog is doing his business and can testify? Should the unit owner make these types of claims, the association will have to answer to justify the fines. Remember that fines are not to be extra sources of income for the association. Fines are to encourage compliance, not make money.
So what can an Association do to make a better case? If your Association has cameras, pinpoint the times when the dog does his business and keep track or do a sampling of days and keep a file of the offenses for the hearing and court case. Encourage unit owners to speak up and take note of the dates and unit number that witnessed the act. If the property manager makes weekly visits, have him/her check and note the date/time. This may result in fewer days to fine, but your proof will be solid for lack of a better word. If the problem is big enough, ask for volunteers to take shifts in the morning or evening when most dogs are doing their business.
Another option is DNA testing. Yes, this really is a thing. Some communities have policies that require dog owners to submit to DNA testing so that this profile can be kept on file. This way, if there is a problem, the waste can be tested and the offending unit owner is fined. This can be costly and somewhat cumbersome. The property manager would have to be present when the dog is giving the sample so that no shenanigans can occur with unit owners simply using a friend’s dog for the test to prevent their dog from being caught.
My point is not to discourage Association’s from enforcing the rules. These rules need to be enforced as pet waste left on the common areas can lead to infestations. My point is to protect the Association with proof. The proof will save you and when confronted with proof, a unit owner is more likely to comply with the rules. So, get the proof and watch where you step.