Q–We have a serious situation in our condominium. A couple living in a one-bedroom apartment have brought a five-member family to live with them.
The association is taking no action on this matter, which is causing frustration among the other apartment owners. Is the association failing to enforce the condominium bylaws, as well as the county housing code, by allowing seven people in a one-bedroom apartment?
A–You should read your condominium declaration to see if there are any restrictions on unit occupancy. Usually there are. Then go to the courthouse and see if there might also be a violation of health codes involved.
Make photocopies of both documents and personally (or with a group)
call them to the attention of the directors at a board meeting.
You might also send a signed, registered letter to the manager or to the attorney for the association. Such a letter could also be sent to the board members.
Insist they officially notify the offending party of the violation by reference and that if the situation is not corrected by month`s end, the association`s attorney will notify authorities of any code violations and take action to enforce the condominium restrictions.
If there is a violation, the management should take action. If they don`t you may have to push them.
Q–Before we sold our townhouse, we had to treat our garage for termites. We paid for the treatment, even though the condominium covenants require the association to provide complete maintenance of the outside walls.
The management company and homeowner`s association refused to pay. Should we continue to seek reimbursement?
A–If you feel you have a legitimate claim, based upon the wording of the condominium covenants and restrictions, you should pursue it. I assume that first you formally asked the association to have the garage treated. When they did not do it, and you were being pressed to accept a contract for purchase, you had it done yourself.
Then, you formally presented the paid bill to the association, along with an excerpt of the applicable covenants covering the situation. They took a vote and turned down the request.
You now have the tools in the form of written requests, paid bills, minutes reflecting negative votes, and the recorded covenants to go to arbitration or court. If the board did not handle the matter in a formal manner at official meetings and with written minutes and notices, they do not have as defensible a position.
A curbstone opinion by the president should never be given nor accepted as official by or for the association.
Q–I live in a condo that is still under the control of the developer. The unit owners will be taking it over soon.
In the recorded prospectus, it is required that pets not weigh more than 10 pounds and that dogs be kept on a leash in public. The developer has not enforced these covenants, and a lot of dog owners get irate if corrected by fellow unit owners.
When we take over the project from the developer, will we be able to correct these problems since they have not been enforced to date?
A–Yes, you will. The lack of enforcement on the part of the developer does not negate the restriction nor reduce the association`s right to enforce it after the official turnover. You may have to take a firm stand and perhaps an action against a defiant offender, but the new board does not have the right to do nothing or overlook the problem.
The developer does not have that right either. Both existing legislation and existing case law require that the developers of condominium projects enforce their own recorded covenants and restrictions as long as they control the association.
Q–Our condominium complex has 24 units. Three, including mine, have been purchased. The rest have all been rented out by the developer.
The developer insists that we still have a condo association, of which we three buyer-owners will never have a representative on board of management. He maintains that there must be 51 percent of the complex sold before we have a say.
Do we have a legal course of action, or are we stuck with a bad investment?
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A–You can always take legal action. Whether it is a wise thing or a waste of money, depends on several criteria that your attorney will want to check on. Included will be whether the state`s condominium statute is complete enough to contain restrictions on developers to limit or stop active selling of the units, to lease units and to contain existing purchasers within a
”rental” project without the repurchase of their homes.
He will also want to examine the sales prospectus, declaration of condominium, covenants and bylaws to see what legal rights you have and what promises the developer must keep.
Louisiana does not have the strongest, most complete condominium consumer protection law on the books, but there may be enough to help you out of the problem.
Q–We have a condo in a developer-controlled complex. The developer is not paying any assessments for the upkeep of the common properties, even though he still owns 80 unsold apartments. Does state law permit the developer to escape this responsibility?
A–The developer is indeed an owner of units, even if they are as yet unsold. He has an obligation to pay his share of the common expenses, but how he does it depends upon a number of factors, which you can find in your condominium prospectus and declaration (sometimes by agreement).
First, the developer guarantees the operating budget for a prescribed period. During that period, the assessments to unit owners cannot be increased over a stated amount.
In other words, the developer agrees to fund the operating expenses of the association in excess of any amounts paid in by the unit purchaser-owners. He can do this by agreeing to pay the fixed assessment for each unsold unit or by funding all expenses in excess of the ”dues” paid in by the purchasers.
In either case, if there is a deficit, the developer must pay the difference. If he does a superior job of budgeting, the developer may save some money because the expenses are less than what his assessments might have been. If the costs exceed the budget, he cannot levy any assessment upon the unit owners to help him cover it.
With the above information, and advice from the association`s attorney, you can check to find out which situation applies in your development.
Have a question about condominiums? Send it to Condo Line, the Miami Herald, 1 Herald Plaza, Miami, Fla. 33132. Questions of general interest will be answered by Jack Holeman as space permits. Sorry, he can`t make personal replies.