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Can the Homeowners Association Allow That?

January 26th, 2009 by Temple City Tribune

There are times that an individual Board of Directors on a Homeowners Association takes it upon him/herself to allow an another individual owner, or even him/herself to make an alteration to a condo without the approval of other members of the Board. He or she may have authorized something that can effect the entire development, and may have done so without even consulting the Board’s attorney.
What this one individual may have done was open the entire Board of Directors, and all those that have followed them who have not corrected the situation, into possible litigation. This call came from a local reader, who obviously has gone through a lot of aggravation, and has been unable to use her condo as a result of inaction on the part of the management company and the Board of Directors.
I consulted with two attorneys as well as several well-informed agents who specialize in working with Homeowner Associations. One of the cooperating attorneys is a specialist in working with Homeowner Associations, so I feel that my response to this problem is well supported.
Here is the question. “An individual condo owner installed a wine cellar in our multi story condo building, and the vibration from the system is causing my mother and I, who have the adjacent condo, extreme discomfort. So much so, that we are unable to stay in the property. We have complained to the Board of Directors, and they have done nothing. I called the City Planning Department, who stated that the cellar was installed without permit, and did fine the owner who installed the wine cellar, but never stated if the work was done to code or not. What can we do to have this problem corrected”?
Attorney, who specializes in working with Homeowner Associations, wrote in part, “There’s an apparent encroachment into the common area, at least I assume that it would be common area. Further, there’s a nuisance because of vibrations.” Another attorney wrote, “Since the “nuisance” remains and it is interfering with the “quiet enjoyment of the occupant” a lawsuit should be filed to seek removal of the wine cellar or obtain damages for the loss of fair market value as a result of the problem.”
Caller who is experiencing this problem: her attorney said that litigation may be expensive, and if she lost she may have to pay the costs of the other party. I have not gotten that response from the attorneys that I have spoken to, and if she wins then the other party would pay her legal expense.
Here is the list of steps that this caller may wish to consider. They are not in any specific order:
1) Obtain assistance from an attorney that specializes in real estate law, preferably with one that has experience working with Homeowners Associations.
2) Litigation would be taken against the Board of Directors, including those people that were on the Board when the wine cellar was installed, and all subsequent Board members that did not correct this violation of the CC&R’s. Be certain to review the CC&R’s to see if the Board of Directors had authority to allow such a wine cellar to be part of a single owners unit.
3) This problem of having a vibration in your unit, now becomes a disclosure item for you should you decide to sell your property, and the effect will be a lower value of your condo.
4) A certified letter, return receipt, should be mailed to the Board of Directors and management company outlining your complaint. It should include the number of calls you made regarding the problem, and the name of the person you spoke to. Mail yourself a copy of the letter, but do not open the letter until the matter is taken to the courts.
5) You must insist that the Board of Directors place the Wine Cellar on the next General Meeting agenda. At that time, you are to bring up that the wine cellar was installed without authorization from the Board. That a room which was to be used for the benefit of all owners in the development has now been given to one condo owner without a vote from the general membership. No compensation was made to the HOA, as the system requires electricity and at this time you are unaware as to who is paying for this service.
6) There is a possible violation of the general building insurance policy, and should the wine cellar cause a fire would the HOA be covered? The insurance company is to be contacted, the system inspected, and if there is an increase in cost of coverage who will be responsible of paying that coverage?
7) You stated that the City had not issued any permits for the installation of the cellar, and that the unit owner did pay a fine. If the cellar is not to code that becomes a hazard to the entire HOA.
8) You also stated that the owner of the condo with the wine cellar has the property up for sale, with the cellar being offered as a selling point. The HOA must insist that the cellar be removed prior to the property being sold.
9) Your attorney should send a letter to the real estate agent representing the owner with the wine cellar, advising of possible litigation. This information is to be included in the MLS with confirmation sent to all parties. This would effect any buyer from possibly obtaining a loan
10) Your attorney may be able to include in the litigation any of your living expenses for the period that you were unable to use the condo.
Since the attorney’s that I have spoken with and I may not have all of the facts, as we are going by what you have told me. Have that consultation with your attorney and let me know how it all comes out.

Louis Perlin CRS, GRI is a Syndicated Writer, Author, Professional Real Estate Witness and Mediator. Lou can be reached by calling Marilyn Perlin Realtors, Inc at (760) 327-8401 or by E-mail: mprltr@aol.com.

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