Righting a Wrong Condo Board

Representing several home owners associations and condo boards, as well as sitting on three of them as a Board member (President once!) , I have heard a lot of complaints from all sides.

Board members think that no one appreciates them (which is generally true). Unit owners worry that some Boards have gone too far, asserting too much power. Or that they don�t care. Or that they are "letting things go."

Clearly, there are pros and cons to living in a condo form community. While you surrender some independence, on the one hand, on the other you share costs and responsibilities, which in a way lightens the load for everyone.

This form of home ownership has many benefits and it works very well most of the time. Yes, everyone gripes at one time or another, but for the most part this is a system that meets everyone�s needs.

Unfortunately, there are some exceptions. There are some, really just a few, Boards that are out of control. Or that are not doing their job.

And worse yet, there are some Boards that are more interested in what will best serve the interests of the Board members rather than the community as a whole. Of bad Boards, this is the worst kind of offender by far. Because here we are not talking about sloppiness or nonfeasance, here we are actually talking about Board involvement in self dealing.

As I said, these "bad Boards" are by far the exception. If you encounter one, you need to know the rules, and your legal rights.

The rules are that Board members have a special legal duty to the unit owners. This is called a fiduciary duty.

This means that they must put the interests of the entire Association ahead of their own interests. And when there exists any kind of conflict of interest that might preclude this kind of mind set, they must step aside and not participate in a vote or a particular Board action. Simply put, a Board member can never make a decision that promotes his or her own interest over the interests of the unit owners.

Board members must make decisions that follow the following: state laws, local laws, and the association governing documents. Usually Boards have lawyers who help ensure that they follow these requirements and act accordingly.

Boards must protect the Association assets, often called common grounds or common elements. This means that they must be properly maintained, they must meet legal requirements for safety, they must be insured, and replaced when necessary.

And as part of this, Boards must ensure that everyone pays their Association fees and special assessments. Without this money, the Association simply cannot function and the Board must ensure that people pay, and pay on time.

Some Boards ignore their responsibilities either as to applicable laws or association documents. When this happens the first thing an affected owner should do is raise the violation to the Board�s attention.

Most likely, the mistake was accidental and by politely pointing it out, it will be fixed. Many Board members really do not understand their individual obligations. Sometimes they forget or become confused. Calm and appropriate mannered discussion will usually fix this kind of error.

Every once in a while a Board acts improperly and does so deliberately, or refuses to correct a legal defect even after it is pointed out and documented. When this occurs, unit owners may seek recourse in the Courts. This is not a good situation and should not be taken lightly.

In addition, various States regulate associations through some kind of agency process. If that applies where you live, you may be able to contact the agency and ask for an investigation and relief.

Sometimes, but rarely, Board members make decisions that favor themselves personally, and are not in the interests of the Association as a whole. This is a serious breach of trust that may be remedied by serious litigation� litigation that may impact the wrongdoing Board members personally in the form of a legal judgment for monetary damages. Again, this is an extreme any very rare situation, that must never be taken lightly by Board members or unit owners.

Associations usually are insured, and these policies will often cover legal expenses when an Association has been sued, even by a unit owner.

But allegations as serious as fraud and self dealing may likely not be covered by insurance �leaving a wrongdoing Board member in a very bad position of having to hire his or her own lawyer to defend against a lawsuit.

Condo forms of government generally work well and meet a lot of necessary needs. When Boards make errors, they are most often addressed through civil discourse. Boards usually want to do the right thing.

But in the rare event that civility fails, State agencies may be able to assist unit owners. If that is not available as recourse, and the fight is over an important issue, litigation may be considered as a final choice of action.

I represent  Condominiums and Homeowner Associations throughout New Jersey. I can be reached at 732-355-1311.

Barring Flag Flying --How to Lose Friends and Influence No-one

                                

Virginia and Hawaii currently have bills pending concerning flag flying in home owner associations.  The prevailing view nationwide seems to bar or look unkindly on efforts to outright bar flag flying.

I suggest that Homeowner Associations take a hard look at HOA rules that ban flag flying.   Generally, I think they are a bad idea.

Certainly,  reasonable limitations concerning the time that flags may be flown and the manner may be fine.  But be sure that your rules are legal --there are laws regarding this subject.

However, these absolute or near absolute, or otherwise not reasonable bans are going to be problematic.  They not only implicate free speech concerns, but they touch on issues of patriotism and community friendliness as well.

And courts and legislatures seem to generally disfavor blanket restrictions. Yes, there are worse things in life than living in a patriotic, flag waiving community.

May I suggest that you save money on legal fees and allow flags to be displayed.

Condos Need to Inspect Septics

I represented a condomium association with failing oil tanks.  We required that they all be removed by a specified period and replaced with better, usually above ground tanks.

Septic systems need the same level of attention.   Systems installed at the same time may start to fail at the same time.   Since this often involves harm to common elements or to unit owners,  associations may be legally required to seek protective measures. 

A proposed Flordia law will require government inspections of septic tanks. It is a very good idea and I hope this is followed nationwide.  Associations need to make sure that they are inspecting septics on a regular basis as well.

Septic systems do no last forever. They all eventually fail.

And a failing system means human waste impacting the groundwater --often drinking water. Human waste has bacteria and viruses and can make people very will.

Many people having failing systems and are not even aware that they are failing. This means they may be polluting the local water supply and not even know it.

Many people know they have failing systems and ignore the problem as long as they can. Often the soil become constantly wet --and odors develop. But people look the other way to avoid what can be costly repairs.

Associations with septics need to make sure that the systems are functioning.  If not, it is usually best to be pro-active and ensure that repairs or replacements, by qualified and licensed contractors, is on the immediate agenda.

Smoker Lawsuits

We just had a small exchange on Linked in  about a New York lawsuit brought by a unit owner in a condominium  relating to cigarette smoke getting into her apartment.

One property manager stated that if the unit owner does not like the odor, she should close her windows.   He also opined, essentially, that second hand smoke is safe.  Fortunately, the others who commented agree that this is a serious issue and a health concern.


I would like to see some anti smoking groups, with good experts, assist us lawyers with a few test cases here in New Jersey.  I believe we need some definitive case law establishing the rights of unit owners to not be smoked out of their home and not be killed by second hand smoke.  If you know groups that want to support these lawsuits by supplying quality experts, I  am certain that some lawyers will handle these cases on a contingency basis so that we can get some good case law.

That might even require taking cases up on appeal.  Whatever it takes, it is time to place living spaces on par with Casinos and bars, all of which don't allow smoking.  The in-balance makes no sense. 

In my opinion this is not complicated.  Often this smoke enters units through the walls --so it is not even always a window issue.  Ventilation systems can move smoke around as well.

And even if its a window issue, why should some one have to keep their windows closed because someone else has a really bad habit?  As I alluded to on Linked in, I would not like my home to smell like a 1960s bowling alley.  And no one should have to live that way in 2010.

We have cleaned up our restaurants and even our casinos.  Its time to protect our homes as well.  This is a call to anti smoking groups who want to help.  We need your help.   

The “I did Not Know There Was an Association “ Defense

Representing condominium and homeowner associations throughout New Jersey has its challenges. Often unit owners feel they should not have to pay common charges for one reason or another. Logic usually prevails. Unfortunately, sometimes these issues end up in court.

But everyone once in a while I am presented with the silliest of all excuses: I did not know there was an association when I bought my unit, so I should not have to pay the monthly fees,” Yes, more than one person has actually asserted this, and they do not all live in the same place.

Try that with local taxes. You might say, “I should have to pay local taxes because I believed this was an unincorporated area when I purchased my home and that I only had to pay taxes to the county. No one mentioned local taxes as well.”

Or try this one, “I believe the United States lacks the constitutional right to tax, so I refuse to pay my federal taxes.”

The notion that one can forgo taxes or assessments by denying the legitimacy of the organization is pure folly. A legally constituted homeowners association or condominium has the right to assess mnonthly charges. Period.

What really might happen in some cases is that sellers may misrepresent the status of the association to a prospective buyer. If so, that may result in a misrepresentation or fraud case against the seller and maybe the real estate professional.

Or it may be that the buyer’s lawyer had a duty to advise the buyer that an association existed and what that means. Under those circumstances, the failure to advise may result in a malpractice action.

But the naked assertion that one does not have to pay because one was not informed –or one denies the right of the association to exisit at all –that is all nonsensical.

Associations should try to reason with homeowners when they make these claims. But if the unreasonableness lasts too long, there may be no other option left for the associati0on but to go to court.

It can be very difficult to reason with unreasonable people.