DEAR BENNY: I own a condo that has a property management company with an active board and bylaws. Each individual unit has a cement patio with a privacy fence (approximately 6 feet high) around it. The bylaws regulate what you can have on your private patio. There are a few things that I do not understand in this situation.
First of all, how can this private area off each unit be considered "common area"? Next question is what right does the property management have to look over the fence to see what you have on your patio? While I can understand receiving a letter of violation if something is sticking out above the fence, I regularly get violation letters regarding items they have seen on my private patio that can be seen only by opening my gate or looking over the fence. I am very frustrated and feel my rights are violated. –Maureen
DEAR MAUREEN: I appreciate your frustration, and agree that property managers should not be spies. Years ago, I wrote an article entitled "I spy." It started off as follows: "There are three people outside my unit wearing trench coats and holding binoculars. No, it’s not the KGB, but your local architectural committee checking that you are in full compliance with the association’s rules and regulations."
First, however, you should learn what your patio really is. In a condominium, there are three parts: (1) your unit, (2) common elements, and (3) limited common elements (LCE). Your patio is an LCE. That means that it is outside your unit, but is not accessible to every owner.
Typically, LCEs are under the control of the board of directors. Why? It’s because your patio is not in your unit, and there could be potential liability for the association should someone get injured on your patio.
I could go on with my description of LCEs, but it really is not necessary. I am sure that your legal documents (declaration, bylaws, and plats and plans) clearly depict your patio as an LCE. So there is nothing you can do about it; you should have understood this before you took title to your unit.
I do, however, agree that management should not be spying on you. Even on a limited common element, you should have a degree of privacy. Of course, if someone complains about something (or some activity) that takes place on that LCE, then in my opinion management should get involved.
What can you do about it? Unfortunately, you have only three choices: (1) try to get on the board and correct the problem; (2) put up with the situation; or (3) sell and move out.
DEAR BENNY: In 1997, I purchased a timeshare from a tennis club in California. During the past 12 years I have enjoyed using it, but am now getting to the age where I can no longer use the facilities as I once did.
My children and grandchildren do not want the timeshare, and the tennis club does not want to take it back, as they would rather have me continue to make my quarterly maintenance payments. I find it impossible to sell it or rent it out. I can’t donate it to my church or a charity, as they would have to continue to make the quarterly maintenance payments. …CONTINUED
If I should die, my heirs would inherit the property and they would have to continue making the quarterly payments.
I am sure there are other older people in my situation who have timeshares that they no longer use, but want to get rid of to avoid paying quarterly maintenance fees. How do I get rid of my timeshare? –Jim
DEAR JIM: If it is any consolation, you are not alone. Many people actually made a mistake when they were pressured into buying a timeshare and now regret it. At least, you had good use of it for many years.
Getting rid of a timeshare is not easy. I have written about this on a couple of occasions. In fact, once I suggested giving the timeshare to a church or synagogue, but got an e-mail from a priest urging me not to recommend this anymore; the church had no better way to rid itself of the timeshare than you have.
I searched the Web for "selling timeshares" and there are millions of hits on the Internet. I cannot make any recommendations for any one company, but you may want to explore this approach.
Do you have a list of other timeshare owners at the tennis club? Perhaps someone would be interested in buying at a "fire sale" price?
As a last resort, don’t make any more payments and let them foreclose on the unit. This will impact on your credit, but if that’s not a major concern, just do it. I don’t believe that California law permits a lender to seek deficiency judgments against owners whose property has been foreclosed upon, but I am not licensed to practice in your state so you really should consult local counsel for more assistance.
DEAR BENNY: I live in a condominium. Two years ago, while investigating the source of a leak from my upstairs neighbor, our management company and general contractor discovered that, through neglect and abuse, my upstairs neighbor’s bathroom floor had become seriously dry-rotted. He was told that he would need to replace the floor lest it, as well as his tub, toilet and sink, come crashing down on our heads.
Not only has our neighbor been utterly uncooperative, but he lied to us, saying that the management company and contractor later reversed themselves, stating that he wouldn’t need to repair the floor as long as he kept it dry.
Recently, during the caulking of his bathroom, yet another contractor confirmed the sorry condition of his bathroom floor, emphasizing that now the situation had grown dire and was in need of immediate attention. Needless to say, this has been an ongoing concern. I am also concerned about such issues as moisture and mold and their deleterious effect on the integrity of the building as a whole. What legal recourse do I, as an individual homeowner, the homeowners association and/or board have to compel our neighbor to behave like a neighbor? –Peggy …CONTINUED
DEAR PEGGY: You have several options, but first, why isn’t your association taking action? Every association’s board of directors does have the authority to insist — indeed force — a unit owner to correct matters that impact on the structural integrity of the association.
The board — preferably their attorney — should send a strong letter demanding that the upstairs owner immediately take corrective action. Alternatively, if the owner refuses to do so, the board should advise him that the association will pay for the repairs, and will bill that owner for this work.
I am curious why the board is not acting. You should threaten the board by telling them that they have a fiduciary duty to insist that the unit be repaired — especially since that owner apparently lied to you.
What rights do you have? Have you talked with that owner? That would be your first approach. If he refuses to take any action, you can (1) contact your association’s master insurance company and tell them about the problem; perhaps they will want to cut their losses and pay for the damage; (2) you can sue the board for failing to act; and/or (3) you can try to get the local county (or city) housing inspectors to inspect his unit.
DEAR BENNY: I have a rental property that I purchased in 2005. I was going to hang on to the property and sell it a few years later. Since that time the real estate market has not been good. I find myself in the same position as many others are, with my property now worth less that what is owed on it. There is only a first mortgage on the property.
I was reading a previous article of yours where you stated that with only a first mortgage, the option of asking the lender to take back the deed and cancel the mortgage would be a lot easier. I still have excellent credit but am unable to continue pulling out of savings to make the mortgage.
Do you know what, if anything, would happen to my credit rating if I were to have my lender take back the deed? Is there something that might help me convince my lender to take back the deed? –Yvonne
DEAR YVONNE: So long as you are current with your mortgage payments, and if you can convince your lender to take back the property, that should not have any impact — or at least minimal impact — on your credit rating. In the mortgage world, this is known as a "deed in lieu of foreclosure."
But notice the word "if." It is hard enough to get a lender to take back your principal residence, but since your property is an investment, until recently I would have had serious doubts that your lender would agree.
However, Fannie Mae has just announced a new plan that applies to both principal residences as well as investment properties. It is known as the "Deed for Lease." Under this arrangement, Fannie may agree to take back the property and allow you (or your tenant) the right to remain as a tenant for at least one year. I can’t guarantee that this will work for you, but it’s certainly worth exploring.
Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.
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