I am going to venture a preliminary opinion, that the cost of all repairs need to be borne jointly by the condominium association. The costs might be spread out to the reserves, or insurance or a special assessement to all unit owners equally.
This may or may not be correct depending upon the condo documents.
It sounds as if you need to pro-actively seek legal council on this one.
Do not worry too much about the lies you may have been told particularly over the phone or by voice. I am going to guess the managers and the lawyer are attempting to intimidate you into stopping the repairs. Start by getting everything in writing. In a certified letter, ask for clarification on all matters.
You have a legal duty to allow access for any and all repairs to common areas even if it requires destruction of your property.
If the problem is in common and a common area, but must be accessed through destruction of your unit property, then it is the legal duty of the association to make you whole (restore the damage due to the repairs). So you must allow them access,
but if they fail in their legal obligation to repair your unit property, your legal options are to sue for damages.
It might be best to get this all in writing and documented preemptively (hence communications by certified mail might be helpful.).
And I would start by calling on the phone every member of the board of directors and see what they have to say. If you follow up by certified letter that might flag them not to do something they would regret.
I can understand your anxiety regarding this problem. Your concern associated with the repair of the structual damage to your unit and the possiblity of having to be burdened with a hugh financial debt, is clear. You must remain calm and focused. Read your doc etc/
Time is of the essence as you could face worse problems if further damage results due to your association not being allowed in to fix it, in a timely way.
Some questions that come to me are will your unit be liveable during/after this repair?Might you have to live elsewhere during/after these repairs, until you repair the inside damage?
Just getting verbal responses will not do. Carefully write out your concerns to the bod. Consult with your own insurance co. They may be able to help you in restoring your unit.Have a lawyer send a letter of bod responsibility in this matter.
You definitely need to find an attorney who is experienced with Condominium Law. NOT just a Real Estate Attorney, or your local friendly lawyer nor the attorney with big advertising. Get a CONDOMINIUM EXPERIENCED ATTORNEY! You have a case for consumer fraud, mental anquish and just might be able sue the association board for a monetary award in excess of $100,000. NOT the association memerhip, but the board members themselves. GOOD LUCK.
A (singular) condo cannot have a foundation problem. Based on the structural issue at hand your property sounds more like a townhouse.
To allow all responders to provide more relevant comments on how to address your situation it is important to advise us on whether or not you have a townhouse.
In either case, you must obtain and review your deed, covenants, articles of incorporation, and so on; all of your governing documents. Within one or more of those documents there should be a narrative of who is responsible for what regarding the foundation. With no narrative, litigation is almost a certainty.
Regarding the physical problems you have described and the appropriate action to take, no one here in this blog can make any suggestions because we do not know if your property is a multistory condominium building or a townhouse (attached or unattached to adjacent townhouses). In addition, we don't know anything about the construction of your property or the condition of the land it sits on.
At this point here are my suggestions:
1. Engage at least two more certified, licensed engineering companies to make sure the first one you hired just did not want the business. All three reports should be in agreement as to the cause and in general recommend similar solutions. This is not to be taken lightly as there are a lot of fraudulent companies out there.
2. Hire an attorney, as Don stated, familiar with HOA law associated with buildings of your type. The primary reason is to discover who is responsible for what as well as determine what course of action to take should the HOA attorney disagree.
3. Suing the HOA for a monetary award may not be the best approach because you own the property under their umbrella. Beside potential retribution, any monies that the HOA insurance cannot cover will come directly out of the HOA bank account. This could bankrupt a HOA or cause a special assessment to all owners, including yourself.
Thank you all for the comments. (I am the original poster).
Ours is a townhouse, 2 floors, no basement, and we are connected to one other unit on one side. She also has significant foundation issues and the association will be repairing hers as well. The association also has not answered many of her questions, like will the home be livable during the repairs, etc.
The attorney for the association told me in the latest letter that "The Association must necessarily remove a portion of your Unit property linoleum to gain access to the Common Area ground repair beneath that surface. There is no other practical means to take the measures to stop the further subsidence of the Common Area below your floor. Unfortunately, your linoleum will have to be affected by that inspection to ascertain a proper cure of the problem. All of the Owners who have had this measure used in the past have paid for the tile/linoleum replacement because such floor covering is owned by them, as it is owned by all Unit Owners within the complex. To recap, the flooring which will be affected by the concrete removal will be paid by you, as all other Owners have paid having had similar work performed. There has been no exception. This obligation to pay for that floor covering replacement by you is based upon your ownership interest verses the ownership interest in the Common Elements. If the Association must invade the walls, ownership of the wallboard requires you to pay for that replacement, if the wallboard has been removed. To obtain 100% return to your Unit's current condition can only be accomplished through your understanding of the precepts of ownership which are part of condominium living. The Association pays for all the Common Element repairs, while the Owner pays for all the Unit Property repairs despite the fact that such repairs were occasioned by the fulfilling of its duty. The Association did not cause the subsidence and therefore it is hoped that the law which separates the two ownerships will result in the understanding of the separate obligation to pay for the repairs needed by both parties."
In our bylaws, it states that "the interior surfaces of the Units - which the Unit Owner shall paint, clean, decorate, maintain, and repair..." But does that mean when it's a PART of the foundation repairs?
I have, in writing, asked the board and the attorney for answers to these questions, and I only get back what I wrote above that they sent - that everyone else who had these kind of repairs paid for it themselves. But I still see nothing that says putting my unit back to how it is now is not included in the repairs. That's why I asked if anyone knows where I can get a definition of what "repairs" include.
I don't plan on suing the HOA - I just want them to be fair.
Thank you for your comments/suggestions.
It is a little more clear. But the attorney may or may not be correct.
What is not clear to me (not an attorney), is if they association initiates a repair that forces the removal of your linoleum, is that your responsibility? Clearly it is your unit property. We can imagine that if some accident happened that damage both the linoleum and the sub floor, the common area (subfloor) would be the responsibility of the association and the repair of the linoleum your responsibility.
But in the case where they initiate a repair, (not an accident or act of nature), they still may be liable to make you whole.
This is a pretty nuanced point for the attorneys and it may require litigation to resolve if you want to force it. It might be addressed in your state law or documents.
It is possible the cost of the linoleum if that is all, is modest, compared to the cost and risk of hiring an attorney and asking a judge for a ruling.
You have to think in 3 dimensions about what you own in a condominium association.
In my case it is complicated, depending on which ceiling or wall is in question. My condo unit sits on a concrete slab. The concrete is the association common property. The linoleum or carpeting or wood above it is my property.
If other people paid for their own linoleum that is informative, but not definitive. You can ask them about the costs. The costs might be covered by your own home owners insurance (but possibly it is not completely covered by a deductable).
It is beginning to sound like you should consider getting estimates for the flooring replacement clear in your mind and weigh that cost versus some cumbersome legal process.
In many states the law says that the association must repair damage caused by association repairs. For example in Nevada:
"If damage is inflicted on the common elements or on any unit through which access is taken, the unit’s owner responsible for the damage, or the association if it is responsible, is liable for the prompt repair thereof."
It says something similar in the maintenance section in the Declaration for my condo (in another state).
Is there anything about this in your governing documents?
What state do you live in?
you need to contact your home owner insurance company. this way you will be covered by this - from most hoa policys on incidents that are not the owner fault, owners still are liable to the interior of the home or unit-- just like having car insurance - you drive down the road and you get hit from another driver, you still need to fix your car with your insurance-- most likely-- it just the way it is now -
You've gotten some great responses. I would just add that if a situation involves an "emergency"(defined in our HOA docs as one that places persons or property in imminent danger) , an HOA typically has the right of entry at any time, without notice. Otherwise, an owner must be given advance.notice. Since this involves subsidence it might meet the definition of an emergency, since it is an act of nature and could spread to damage other properties or, God forbid, result in structural collapse and endanger lives if not addressed in a timely way. I would agree with others that if replacement of sheet flooring is your only cost, I'd pay it and get the repairs done asap. That said, just because other owners have been made to pay for something doesn't necessarily make it right. In our HOA, the BD made an owner pay for outside wood repairs that were costly just because they didn't have a reserve category to charge it to. Eventually, with a new BD in place, we went back and reimbursed the owner for what should have been an HOA responsibility. Our CCR's at that point were so old and sparse that there was nothing in them to require that action,however. It was, as you say, just a question of fairness.
Just because other owners were willing to pay to replace their flooring does not make it right.
Just because the HOA attorney tells you the way it works does not make it right.
You need to engage your own attorney, one that is familiar with HOA law in your state as well as townhouses. You need to do this for your own peace of mind.
The concrete slab or foundation that your townhouse rests on should be a 'limited common area' not a 'common area'. Why? Because they have to go through part of the townhouse, your flooring, that is rightfully your property. As such, any damage incurred to your property so that the HOA can gain access to the limited common area should be restored to their original condition.
My mother's condo building had to have all their water pipes replaced. The water pipes in her condo were within the concrete slab. The condo above her's had their water pipes replaced by cutting holes in my mom's ceiling. Everything was restored to the original condition. The HOA arranged for all the work to be done and paid the bill. Unfortunately their HOA's Reserve Fund could not handle so the owners received a special assessment. However, even though replacing the pipes in the concrete cost more money, the HOA split the bill equally between all the owners.
You have stated that this has happened to other townhouses. If so your HOA should plan for all payments to come out of the HOA Reserve Fund. Sufficient Reserve Fund monies should be collected to pay for all past, present, and future repairs such as this. Sounds like someone cut corners in the construction of the townhouses.
I am located in Ohio.
The online thing in the decs & bylaws is that the Unit owner shall paint, clean, decorate, maintain, and repair.... but it doesn't clarify IF that includes when the common area is fixed and they have to destroy my property to do so.
My homeowner's insurance (State Farm) said they do not and never have covered any foundation problem repairs, so I can't recoup that way.
The structural engineer needs to do a soil test first, which involves cutting a 12" square out of my kitchen floor, digging through the concrete, etc. They will cover that up but not fixed my floor. To make the repairs to the foundation, he has said that they would be a 3-4" hole in my kitchen floor, possibly going into the walls behind my cabinets and dishwasher and also possibly digging under my stairs. Yes, the foundation issue is very bad.
I think I could handle replacing the kitchen floor, but the other damages - we're talking huge - and that's why I feel I need them to tell me WHERE in the bylaws it says that the Unit owner pays for all this damage in the foundation repairs.
It's all just so frustrating!
Sorry - that should read:
*3-4 foot hole in my kitchen floor (not 3-4 inches)
Sandy -- You probably won't find anything in your documents that says that you have to pay. Look in the section about association maintenance responsibilities, not your responsibilities. It should say that the association has to pay if they damage your unit.
JT - thank you - I just found this is the bylaws: "The Association or its agents may enter any Unit when necessary in connection with any maintenance or construction for which the Association is responsible. Such entry shall be made with as little inconvenience to the Owners as practicable, and any damage caused thereby shall be repaired by the Association at the expense of the maintenance fund."
As far as I read, that is the key to their making the repairs, i.e., putting my unit back to "whole" after they make the repairs.
Language is leaning your way; again you need to start sending some letters via certified mail (this makes it all documentable and legal like). Another thing you should do is start making a ledger or journal, datewise, and document in your own hand or computer, the notices, and each communication.
I would send a certified letter to the attorney and the manager and the bod (3) letters citing that bylaw and say "In my opinion, if the association enters my unit to do these repairs, then you are legally obliged to make me whole, and bear the cost of any access through my property, be it floor coverings, walls, structures, or wall materials, electrics or any other of the unit owner's property."
If you have a lot of time and inclination you can study your state condominium statutes.
What you have found in the bylaws is 'golden' and proves that the Board and their attorney is wrong. Just make sure that the bylaws you are referring to are the latest, approved version.
It is possible that the Board may have changed the bylaws after the date of the one you are referring to but that would or should have required a vote by owners. If so and you can prove that the change was done after the first repair, that is definitely a case for bringing the HOA to court.
Here is the Ohio state law pertaining to your situation: 5312.08 Common elements; maintenance, repair and replacement.
(A) Unless otherwise provided by the declaration, the owners association is responsible for reasonable maintenance, repair, and replacement of the common elements, and each owner is responsible for maintenance, repair, and replacement of the owner’s lot and improvements to that lot, including the dwelling unit and the utility lines serving that dwelling unit.
(B) An owner shall permit agents or employees of the owners association and other owners access through the owner’s lot and dwelling unit for the purpose of fulfilling the association’s duties and obligations. Any damage to the common elements, lot, or dwelling unit due to that access is the responsibility of the owner that caused the damage or the owners association if it is responsible for the damage. That owner, or the owners association, is liable for the prompt repair of any damage and, if not repairable, for the value of the damaged property or item as it existed immediately prior to that damage.
Added by 128th General Assembly File No. 41, SB 187, § 1, eff. 9/10/2010.
Sandy. Yes, that is it. I have seen it in other declarations, so I thought you would find it in your own declaration. Congratulations. Your association is responsible for the repairs to your unit. Very simple.
The advice on this blog is often to check your governing documents, which worked out for you.
The law quoted by Ron-NC is also very good, but it may or may not apply to your association due to the type of community and the applicability (or not) of this law to older communities.
It seems likely that your board and the lawyer knew that the association was responsible, but chose to let you pay anyway. Time to fire someone(s).
Thank you again, everyone!
I am trying to find out if the copy of the By-Laws I have is the most current, i.e., if there are any revisions I don't have. The mgt. company sent me this copy of the By-Laws in December, so I assume it's current - however, I don't trust them after all of the lies they have told.
I have asked the Association president for her mailing address so I can send her the certified letter. She refused and said to go through the attorney only.
If the board/attorney KNEW they were responsible, why do they put up such a fight? This has been hell for the last 3+ months with them - it's been so ridiculous. It seems to me that they have just been trying to get out of paying since this is going to be a big repair job. Why else give me a hard time?
Also, if other unit owners have paid for their own repairs when in fact, the Association should have paid - are they entitled to a refund? Just curious about that.
I am preparing a letter to the attorney pointing out this section to him - any ideas on the correct or appropriate wording to him? I just feel like they're going to say "well, that doesn't include....." or something else. Sighhhh.
Thank you all again!
Check if your association is incorporated.
If it is you should be able to find the name and address of the resident agent. This is the legal and official person for contacting for legal servings.
The Board of Directors should have an official address besides the Manager.
At this point you should consider gaining access to all the association records. If they deny you access to the financial records and names and addresses (or official contact address), that is probably illegal.
In some states the legal remedy is litigation but if you find out your legal rights and start complaining to the manager and attorney in certified letters, this will alert them you are aware of your rights, and if they obstruct, then they are acting improperly.
Finding addresses of officers (as property owners):
Here is trick to find the addresses of Board members:
In my condo all the Board members must be unit owners of record. The owners of the units pay taxes and this is public information.
The records are in the County Registry of Deeds. Those records are public. So I simply went online and searched the names and or addresses and found the addresses of the property owners.
The actual office might vary on local. But it worked for me.
So you might get the address of the president and any other unit owner throught the county or applicable local government record keeping agency.
Another Potential source for names and addresses of Association Board Members
If an agency is Incorporated you might find a list of names and addresses in the Office of the Secretary of State in your particular state.
In my state I found, online and for free, the resident agent, and the names and addresses of all the officers on several neighborhood condominium boards.
First of all, I want to thank all of you. All of your comments have been a huge help, and I feel great that I was correct all along in regards to what they were telling me.
My last question - I am preparing the certified letter to the attorney and the board president (I did find her mailing address online), and I was wondering - what is the best way to word the fact that they were wrong and they DO have to repair any damage made? Basically, I've pointed out the paragraph that says that, and I have asked 1) do I get the estimates on repair work or do they? 2) what happens in my house is not inhabitable during these repairs?
Is there anything else I should add? I'm not sure how to word it to conclude all of this.
Thank you again for your suggestions/help!!
The law is an ass. Often.
Preface every state with "In my opinion,"
Say nothing threatening or belligerant.
Do not say "so and so lied" on this occasion.
Do not write that they were catagorically wrong... Preface everything in a nicer tone.
At this point.
I am big advocate of doing it yourself.. or Pro Se. Doing legal negotiations for starters takes a pretty good understanding of the Condominium documents and state law, and local practices.
For starters yes, send a certified letter, and research , research, research. In my case I have access to the state law library, and a lot of documents on line.
Again get all your condominium documents and read them , study them.
Ok, so I just received a letter from the attorney in response to my letter about the association repairing any damage done to the interior of my home during the foundation repairs. (My letter, by the way, was very nice.)
Remember, my bylaws said: "The Association or its agents may enter any Unit when necessary in connection with any maintenance or construction for which the Association is responsible. Such entry shall be made with as little inconvenience to the Owners as practicable, and any damage caused thereby shall be repaired by the Association at the expense of the maintenance fund."
Their lawyer says:
"The interpretation of that paragraph and the explanation as to what constitutes damage under that paragraph cannot be sustained by your analysis and your adding of words which do not exist in the paragraph. You indicate that the 'Association is responsible to make repairs of damage done within my home while entering my unit...' and then you add '...and making the repairs to the foundation.' These statements are not found in the provision discussed. The proper legal reading that I believe pertains, and in my opinion is the proper approach, indicates that the subject matter of the Association's right to enter the Unit and referencing "such entry" is what the rest of the paragraph intends to limit in terms of damage by the words '...and any damage thereby.' In other words, if the passkey is not available and the Association has to enter a Unit, under the words quoted herein and in the paragraph itself, the damage referred to is the damage that may occur regarding the entry of the unit and that of the door and its appurtenances.
Clearly, there is no referencing as to the corrective measures which may occur that may be needed for the purpose of maintenance or construction necessary under the provision and the reason for entry into the Unit. The two (2) cannot be linked, in my opinion, and therefore does not apply as you have attempted to convince me."
He goes on to threaten: "The only damage that will be considered with regard to gaining access to your unit will be that to the door entranceway mechanism or frame should the unit have to be entered by force if your cooperation is not forthcoming."
Good grief. So, they're going to come in whether I like it or not, but gee, they'll fix the door IF they have to break it down.
Am I reading that paragraph wrong???? Of course their attorney's "interpretation' is different than mine....but it's there in black and white.
What do I do now?
Thank you for any additional help you can give.
The lawyer is correct in the narrow sense and relative to the section you cite. The language only pertains to the act of entering your unit for repairs.
But your situation is besides the point, and it may not be specifically address in your documents. That lawyer does not have a duty to stand for you, he is working for his client.
I am going to suggest that in your state, it might be that the condo association is still liable under the law (and the lawyer is hiding this from you because he don t work for you).
At this point, you actions might be 1) get your own lawyer, 2) make a claim with your home owners insurance co. If the association is liable they probably will go after them with their lawyers 3) research your documents for a specific clause
4) do your own research on the law in your state.
My brother's house in Arvada, CO need some foundation repairs and it took him a while to do it, but now it's all over he doesn't have any problems and is glad that he did it when he did because it could have become a bigger problem later. http://www.americanmudjackco.com/services.html
I really wish that my condo association would come through with some nice hydraulic hose fittings in Vancouver and clean everything up. That would be pretty ideal. http://www.air-waycanada.com/en/vancouver.html
Is it easy for them to get foundation repair
. I imagine that this would be found under renters insurance.
I would say to handle this without all the hoola that will be associated with the tear down and repair for you to start call the hoa insuance agency/agent. file a claim as liability against hoa first. find out who your hoa insurance agent is. do not go thru the board, just go around them. they can not stop you. second call your own insurance agent up and tell them you need them to start a file on this repair. get the insurance agenies invold, this is why you should have your own home owners nsurance - hopfully you have your own insurance - if that fails, start contacting some city housing agencies to get invold. if that fail, you might have to sit down as a free 1/2 hr with a crediable hoa attorney to explain and you might have to have attorney write a letter on your behalf on what the law is on this issue. as they say, the squeakee wheel get lube up at lot easier. hoa board members are always trying to do a hood wink on owners, depending on your docs and ccrs and such -