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January 29, 2009
Advice Regarding Abusive Board?
I am seeking advice on how to deal with an abusive Board in my condo. The majority of the members on the Board are owners of what we call "Lower duplexes". Because of the floor space of these units, they pay a higher proportionate share of the common charges than the simplex units.
Realizing this financial structure, the Board is trying to push more and more responsibility to the individual unit owners for items that rightfully are the charge of the condominium association, according to our by-laws. In this way, we pay for improvements on a per-unit basis, rather than according to the common charge formula of floor space. Hence, the lower duplex owners save money. Effectively, they have shifted the cost basis of our condo.
What options do I have in stopping this abuse? Is there a regulatory agency to which I can go and make the case about this abuse? Thank you in advance for any advice you offer.
Comments
Your board needs to adhere to the bylaws in apportioning shared costs.
Are you friendly with the other owners? If so, hold your own meeting and try to get one or two people to run for the board. I am not sure how your building apportions votes but if you can get one or two people to run try to convince your like minded neighbors to only vote for those candidates. You can always run for the board yourself.
Posted by: gowanusdog at January 29, 2009 10:05 AM
It certainly sounds like this goes against all type of by-law rules. A thorough reading of the by-laws would be a start. Then, an understanding of the process that would be required to change the by-laws.
Unfortunately it sounds like yiu may need to get an attorney involved in which case you'd really want to get as many other owners on board with this as possible to spread the cost.
Have they actually attempted such apportionment of any expense already?? Also, when's the next vote for board members? If that's imminent, vote them out.
All this becomes more cumbersome the larger the building. How many units??
Posted by: daveinbedstuy at January 29, 2009 10:05 AM
Sounds like a bad situation. Unfortunately, I think coop boards and condo associations are largely regulated by lawsuits and the threat thereof, and by the threat of losing the next board election, not by a government agency.
One way to go is to start building a paper trail. Write the board, questioning the decision in light of the by-laws language. You may even want to query if the board obtained an opinion of counsel before taking the step. Save any responses you receive. Keep your own record of each decision that you think is contrary to by-laws and calculate the cost difference to you (and others in your boat). Keep it totally impersonal and your tone reasonable and polite as you do this. If they don't back down and the cost to you (or several of you combined) is large enough, you may need to take it to a good co-op/condo lawyer.
Good luck.
Posted by: slopefarm at January 29, 2009 10:12 AM
I concur with DIBS and gowanusdog. Definitely read the bylaws. Run for the board. I would recommend not starting a war at the outset--you are neighbors after all, and you'll have to live with (most) of them even after the dust settles.
Look at the offering plan: generally changing the bylaws requires significantly more than a simple vote of directors (that's a good thing, because it limits abuse).
Do you have any specifics that wouldn't give you away?
Posted by: Minmin at January 29, 2009 10:13 AM
Dave and all;
They are in the process of apportioning such an expense right now, and have done it once before. There are only 46 units in my unit, and we have a VERY passive group of owners. I am truly amazed at the passivity of the ownership, except for this band of highly-motivated lower-duplex owners. I've tried to shed some light on this situation by pointing out the applicable portions of the by-laws, but most folks are so busy with their families and careers that they don't have time to look into it. They almost act as if they were tennants, rather than owners.
Given this situation, I am fighting a lonely battle here, and for that reason I want to avoid the attorney route. That is why I asked about the possibility of taking this through a regulatory route.
Thanks once again.
Posted by: benson at January 29, 2009 10:15 AM
Slopefarm's advice is good: get the paper trail running AND definitely get a lawyer involved. I understand how you want to avoid the attorney route, but if you could at least have a consultation with a lawyer (a friend perhaps?) and cc him/her on all correspondence, they might take their responsibility as directors to ALL more seriously.
Oddly, I think that condo owners tend to be more passive and perhaps more self-interested than coop owners. Look at how many condo owners in Fla who have reneged on paying common charges? What you have in your building is the flip side of that! I'm really sorry about it, because I'm sure it's not pleasant and potential a lot more costly to you.
Another idea: write Jay Romano at the NYTs. Then if he responds, post the response in the elevator. If it's in the Times, it has to be true, right?
Posted by: Minmin at January 29, 2009 10:23 AM
Slopefarm and Minmin;
Thanks for the advice. I have already started a paper trail, and I think (hope?) that I was impersonal and professional. I was also thinking of writing to the NYT as my next step.
Or By-laws call for binding arbitration in the case of a dispute between a unit owner and the Association/Board. Hence, one other option I'm looking at is to take each matter to small-claims court/arbitration. This is a pain, in that you can only go to small claims court for each specific disputed charge. However, it is a low-cost route (other than one's time).
Posted by: benson at January 29, 2009 10:32 AM
It sounds like they are doing this through an assessment in which case they need to comply with the bylaws.
Write to the board and provide the relevant sections of the bylaws. If your building has an attorney, send a copy to the attorney and the managing agent.
Is the building mostly first time owners because many first timers have a tenant mentality and being "too busy" is all too common until something directly impacts them.
Posted by: gowanusdog at January 29, 2009 10:37 AM
Gowanusdog and all;
They are being more clever than an assessment. At the risk of identifying myself, I'll provide the details of the latest situation. We each have individual HVAC units and therefore, gas exhaust flues. These flues exit on the roof. The By-laws clearly state that these flues and all utility lines outside the individaul apartments are to be considered common elements, and hence the responsibility of the Association.
Recently these flues have been causing damage to the apartments under the roof due to condensation in them that leaks.
The Board is claiming that the flues are the responsibility of the individual owners, and that they are liable for any damage they may cause. They recommend a way to improve the flues, but say that it is up to the individual owner to do so. Hence, they have cleverly shifted responsibility and the incumbent expense for these common elements to the individual owner.
I wrote a letter to them (cc'd to our managing agent and the other woners) specifically citing the passages from our by-laws that state that these are common elements, and that the Board should improve these flues using the Association's fund. So far, no response.
Yes, we are a new condo, so most folks are first-time buyers. Moreover, because we have large apartments in our condo, we tend to have young couples with small children, who are strssed out with mortgages, careers, kids, etc.
One thing I learned from this experience: I'll never buy into a new building again. You don;t know what you are getting into. better to buy into an established condo and coo-op, and you can then evaluate if the "culture"of the place is a good fit for you.
Posted by: benson at January 29, 2009 10:51 AM
If you want to get people more involved, put a note under their door telling them how much more they're paying because the co-op board is not following the by-laws. Include the big assessment this year, and any prior assessments. And then propose a solution.
For instance: "My fellow owners: The condo board is not following our bylaws with regard to the apportionment of costs, leading many members to pay more than their fair share, in a violation of our condo agreement.
In this unit, you are paying $1,000 more per year than you would if we followed the bylaws.
Molly Jenkins, Joe Blow, and Ernesto Rizzuto have all pledged to follow the bylaws of our condo agreement when it comes to shared costs. I will be voting for them at our board meeting on June 10 at 8PM in the laundry room, and if 45 members join me, we will have a majority of the vote. I ask you to attend this meeting, and support Molly, Joe, and Ernesto.
Thank you,
LaDonna Smith
Apartment 7C
718-555-1212
Posted by: lookin fer stuff at January 29, 2009 11:00 AM
I don't mean to sound naive, but OP, are you sure that the board is being malicious rather than ignorant of the by-laws? I think the answer to this question will largely inform how you approach the issue.
I’m asking because we had a similar issue in our condo. As we were discussing whether to re-pave our parking lot, the one owner who doesn’t have a space (and thus pays lower common charges) immediately thought he would not have to contribute to the assessment. We reminded him of the by-laws, and all is fine. Simple mistake—no letter from attorney required.
Posted by: curiositykilledthecat at January 29, 2009 11:06 AM
Benson:
Just because this is on the front page it doesn't count or come close to QOTD!
;-)
Posted by: bayridgegirl at January 29, 2009 11:07 AM
Curiosity;
I had previously advised the Board of its responsibilities in the flue matter, prior to their making an official announcement. I showed them the specific passage in the by-laws at that time.
Moreover, I have heard at least one of the lower duplex owners express their feeling that the apportionment schedule in our by-laws is not fair, and that they would like to find a way to change the situation.
Posted by: benson at January 29, 2009 11:12 AM
OK, so the board is neglecting their obligation to maintain the common elements. Their mindset is probably that they want to preserve the building's reserve fund/don't think it is fair that their common charges will contribute to interior repairs of individual units. Eventually, they will have to pay and correct the problem and their neglect will have exacerbated the interior damage so repairs will be more costly for ALL unit owners. Don't be surprised if the board tries to bs you and ask something stupid like how do we know these owners didn't take baseball bats and bang on the flues.
Make sure to mention in any correspondence that the board's neglect is a breach of their fiduciary duty that they owe to all unit owners and that the longer this is not addressed the more expensive it will be to repair.
New developments usually have various issues. It sounds like you have a board comprised of people who are new to this and don't have a grasp about their obligations as there is a huge learning curve.
Posted by: gowanusdog at January 29, 2009 11:19 AM
Generally, the only way to change the apportionment schedule is to get a vote of some majority of unit owners. (But check your plan). In fact, it may only be *partially* fair...if much of their space is below grade, that portion which is below grade probably SHOULD have been calculated as less. But it wasn't. Sour grapes to them. The documents are with you.
Actually, here's something to propose to them which might show your "good-neighborliness." You said it's a new development; you didn't say how new...the sponsor might be responsible for this damage still, or there still may be some warranty to look into. Propose that to the directors. Then boot 'em out if they don't see the light!
Posted by: Minmin at January 29, 2009 11:25 AM
benson - chin up! i too am in a new condo, and while there have been hiccups, i still feel like my early entry price (pre-construction) was such a good deal, that i don't mind what i've had to deal with and it's been resolved anyway.
do march forward doing the right thing. and, before you know it, there will be a new vote, and you can run for the board yourself.
with that said, i have been extremely fortunate to have lovely neighbors, and we have a great board. also, i think that the board and your neighbors and problems and money and etc... are always an issue and certainly all can be present in an existing building. i have friends with terrible problems in old coop buildings too.
one of my favorite things about where i live is my neighbors. living in a condo building has made my life so much better because of this (prior, i lived in a house). try to find some more allies and friends in your building. have a few dinners or cocktail parties. people will reciprocate, and you'll enjoy the experience more.
good luck!
Posted by: wine lover at January 29, 2009 11:29 AM
Benson,
are the common elements windows? hvac?
the board of directors of any corporation has wide discretion in interpreting the by-laws and setting house rules. If you disagree, you need to band together with other like-minded stakeholders and call for a special meeting and election. Unless you can get together the crtical number required to call a special meeting, you have limited options. You could wait until the next scheduled annual meeting and campaign hard to get on the board, assuming you are voted on, yours will be only one vote. If there is an entrenched board it may take several cycles to change the dynamic. By the way the complaint that smaller unit owners are at a disadvantage in condos and coops is a very common complaint. Bylaws and proprietary leases in NY are usually mostly boilerplate. Unless you have unusual bylaws I doubt it will get into what is and isn't a common element. The Board decides that. If you disagree with them you need to fight to change the composition of the board, a very difficult task as there are usually a very small pool of people in any given building that has any interest in serving on a condo or co-op board.
Posted by: sam at January 29, 2009 1:00 PM
If anything changes the building has to file an official ammendment to the by laws with the attorney generals office.
there are no secrets with a condo.
all updates or changes have to be made public otherwise it is misleading to potential buyers.
condos are not fiefdoms
Many condos change their operating policies at the drop of a hat (self interest)
Long time residents are on a board because of elf interest.
Call the record room that houses condo by laws in your boro
Posted by: Ysabelle at January 29, 2009 1:14 PM
I've never owned either condo or co-op, so am only chiming in long enough to pass along this link, which you might find useful: http://www.oag.state.ny.us/bureaus/real_estate_finance/pdfs/Condo.Problems.pdf
It goes without saying that one would expect a Board to perceive a complaint to the AG as a significant escalation. I think you've gotten very good advice from Slopefarm and others re: paper trail, consulting an attorney (though not necessarily pursuing your complaint via attorney), etc. You'll find more articles and links like the one above printed in such publications as "The Cooperator."
Posted by: vinca at January 29, 2009 1:15 PM
If you insist on going higher up with this subject you can always go to the huan rights commission if you can prove some form of discrimination..They wiill represent you free of charge regardless of your income.
Sometimes going there will get the ball rolling and the board will be terrified of an investigatin into their practices and their bookeeping. Sometimes they settle it to avoid the investigation or stop the secrecy which is discriminatory in itself... they are witholding information from other owners and residents.
in a condo you surely have a right to know!
Posted by: Ysabelle at January 29, 2009 1:24 PM
Oh my gosh, speaking as someone who has served on many co-op boards, if a shareholder went to the AG or the human rights commission with a complaint, that person would instantly become persona non-grata and would become the loon-of-the-century. Don't do that. Speak with the board, speak with other stakeholders, if you can get together a coalition, go forward as a group and try to change the board's mind or the board itself. If you cannot rally together a number of people, then accept the fact that co-op and condo life is not always perfect and not always fair. It isn't Utopia, it's just a condo.
Posted by: sam at January 29, 2009 1:36 PM
Folks;
I thank you all for your advice. It's been very helpful. It looks like I just gotta keep at it.
One point to Sam: Sam, our by-laws are pretty clear about what is and what isn't a common element (or so it seems to me!), especially with regard to utility lines.
Posted by: benson at January 29, 2009 1:37 PM
"accept the fact that co-op and condo life is not always perfect and not always fair. It isn't Utopia, it's just a condo. "
Sam;
This is what I may have to accept. Previous to buying this condo, I owned my own home. I have to learn to adjust to condo life.
Once again, thanks for your usual good advice.
Posted by: benson at January 29, 2009 1:44 PM
Sam: I would have thought it was clear enough that I was not recommending a complaint to the AG, just simply recommending their FAQ. As to Ysabelle's suggestions, the sense, or nonsense, is self-evident.
Posted by: vinca at January 29, 2009 1:47 PM
benson,
If it's any consolation, it's no picnic being on the board either.
Posted by: sam at January 29, 2009 2:04 PM
benson, a coupla thoughts, as someone who's spent a lot of time in a coop, much of it on boards.
"Recently these flues have been causing damage to the apartments under the roof due to condensation in them that leaks."
From a technical pov, I'm not understanding that. Is there water getting thru at the base of the flue where it is flashed? If so, it's a roof issue and that would _definitely_ be the condo's responsibility. How exactly is the water getting into the apts?
minmin also had some good advice. If this is a new condo, the sponsor may be liable for this. You should investigate that angle also.
I believe the AG is the only agency that can be of help on this. But as has been pointed out, you better be sure you are right before starting a complaint! If you lose not only will some of your neighbors hate you, you will look like you don't know what you are talking about, a fact that will haunt you as long as you live there. The AG can also help you if this is a defect caused by the faulty work of the sponsor.
You definitely need to talk to an atty, but not just any atty, one with coop and condo and bylaw experience.
But the bottom line, as I have found out from another piece of property I own, is that sometimes boards will do what they want no matter how wrong they are. Because unfortunately, as wrong as they can be, there is only one way to stop them, which is to go to court.
Posted by: denton at January 29, 2009 2:54 PM
Denton;
Here is what's happening with the flues (according to the technical reports from the Board). As the exhaust comes through the section of the flue that is exposed on the roof, the cold temperature of the sheet metal causes condensation in the gas, which goes down the pipe.
Apparently right below the roofline the flues make an almost 90 degree turn. Some of the condensation is collecting at this elbow, and then dripping down through the ceilings.
The Board has taken this through the Sponsor, but they have not informed us of the results. I am guessing that it went nowhere, short of a lawsuit, so they decided to throw the problem on the unit owners.
Thanks for the advice. Best to know what the realistic options are.
Posted by: benson at January 29, 2009 3:08 PM
ok, so the condensation is forming on the inside of the pipe, then dripping out at the elbow above the ceilings?
This is a construction defect, pure and simple. imo, the sponsor and/or his contractors should be remedying this. From what I get, the board is barking up the wrong tree here.
I would definitely agree this is the board's responsibility. If i were on the board, I would assess all owners to pay to fix the problem (so that it doesn't get worse, mold and all) and I would contact the sponsor to see about reimbursement. Were I not to get it, I (the board) would contact the AG's office, and of course consult a lawyer.
I agree the board is being silly on this. They could retain a top-notch law firm to look into this for less than $1000, chump change when spread out amongst all the units. Seems like they're taking the lazy way out. If they don't have the time to do it the right way, they should make way for people who do.
Posted by: denton at January 29, 2009 3:23 PM
benson, another thing I would do is see if these flues have a specific mafgr, or are just put togther by the local tin-knocker. If they are a mfgd product, I would see if you could get a hold of some installation instructions. Perhaps they should have been insulated, or elbows not allowed x number of feet from the termination, etc. You're in mfg, you know what to do :-)
Posted by: denton at January 29, 2009 3:31 PM
Perhaps there's a warranty covering the installation of the flues ... the Board should be exploring that possibility.
Posted by: bren at January 29, 2009 5:04 PM
It strikes me as a bit of a stretch to imagine that the exhaust is condensing only
as it hits the section of the flue exposed on the roof. You might be dealing with a mfg. defect, but you might be dealing with a much bigger problem (condensation throughout a flue that's insufficiently sized). Because, if it's as your board has claimed, they should be able to easily remedy the problem with insulation and/or there'd be many more people in other buildings experiencing virtually same condensation in their own uninsulated flues/chimneys.
Posted by: vinca at January 29, 2009 5:06 PM
Hey Sam
Persona non grata? How pretencious of you to say so!
Meanwhile the functon of the human rights commission is to protect the general publc from discriminatory practices.
Rejection is a form of discrimination in a coop and condo. etc!
It is not up to people like you to decide.
Believe it or not there is a higher power. It is called law that protects people and their rights.
One has to learn to exercise those rights.
Now is not the time to be shy.
Loon is my favorite bird.
Posted by: Ysabelle at January 29, 2009 5:33 PM
Ysabelle, sweetheart, you're way out of line.
The HRC exists to protect people against discrimination in a legally defined manner. The law forbids discrimination by race, ethnicity, national origin, religion, age, gender, family status, and in some places like NYC, sexual orientation.
There are legal forms of discrimination. You can discriminate against smokers. And pet owners.
Picking on a condo owner because he has more or less shares does not fall under legally defined terms of discrimination, so the HRC will not help you. Sorry.
Posted by: denton at January 29, 2009 5:39 PM
If the beans ain't cookin there is somethin wrong with the crockpot!
Posted by: Ysabelle at January 29, 2009 5:44 PM
BENSON - r u still with us here? i just thought of this - start a yahoo group! we have one, and we have a facebook group too. also, get the emails of your closest (proximity) neighbors to write to each other if things are particular to your floor or line or whatever.
try inviting them to out for a drink or to social events, etc...
our yahoo group has been terrific for posting questions or things we find out they may help others.
write back again to let us know what happens.
Posted by: wine lover at January 29, 2009 8:05 PM
Ysabelle,
It isn't nice to call people pretentious, especially if you cannot even spell the word.
I have served on many boards, and the thing we look out for more than anything, is people like you. You know, loons. A good board can sniff a loony bird a mile away, regardless of their race, religion, race, or sexual orientation.
Obnoxious is obnoxious, period. Nobody wants to live with that.
Posted by: sam at January 29, 2009 8:30 PM
In your building you want everybody to be just like you.
It is discriminatory because you are eliminating people that are different.
The law does not buy into it which is why the laws came about in the first place. I would rather be a happy obnoxious person with a soul that embraces all people.
It is a big world. there is room for everybody including you.
Next time try going to a good university instead of finishing school.
Merde!
Posted by: Ysabelle at January 29, 2009 9:06 PM
Hey Benson--wow...lots of responses to your question from yesterday, and most of it good. Even the suggestions for things I would refrain from doing early in the game (why go to Def-con Five when a parley might work?) weren't bad. In one of your later posts you gave some additional specifications about the situation, and it absolutely sounded like a construction problem and thus the sponsor's responsibility. You wrote "I am guessing that it went nowhere, short of a lawsuit." Actually, it may be that they have in fact initiated legal proceedings, but are trying to get cash for repairs in the process. Ask to see the minutes. They don't have to have open meetings if it's not in the operating plan, but they have to make minutes available if requested. Don't give up!
Posted by: Minmin at January 30, 2009 6:17 AM
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