Brian's Monthly Real Estate Ne
From Brian Davis
Brian Davis, Keller Williams Tri-Valley Realty / BRE #: 01146612
5994 W. Las Positas, & 459 Main St., Pleasanton, CA, CA 94588
(w) 925.998.3078
The fight for condo transparency
By: By Benny Kass

DEAR BENNY: I live in a 35-unit condominium complex. The homeowners association is incorporated and is led by a board of directors elected by the homeowners. I am concerned about the way the board of directors conducts the overall operation of the association. Many practices are in opposition to the bylaws, and some of the needs of the community are being neglected. For example, we have not been given copies of the budget for the last three years, copies of the minutes of the last three quarterly meetings of the board of directors, a list of the names of the officers of the board who were elected last fall, and a list of the current owners/residents. Other information, which, according to the bylaws, should be available, has not been communicated to us. I have written a letter listing my concerns and requesting information, and have given it to each board member who was elected in 2009. I have received none of the requested information nor have I received a response stating that my letter was received. As a resident with a vested interest in my house and my community as a whole, what can I do to get the information and services from the board of directors? Is there an agency or board I can contact to communicate my concerns and thereby receive help in this matter? --Barbara DEAR BARBARA: Unfortunately, this is a common problem throughout the country. While most members of boards of directors are honest, competent, and concerned, the few who are not cast a negative image on all associations. First, and not by way of embarrassing you, let's set the record straight. You live in a condominium association and not a homeowners association. There is a major difference between these two legal entities, and you should not refer to your association as an HOA. Second, I don't know where you live. Many states (and some local jurisdictions) have created agencies to deal with such problems. For example, in Montgomery County, Md., unhappy owners can complain to the Commission on Common Ownership Communities; in Virginia, they recently established an ombudsman's office to handle issues such as yours. I welcome readers to tell me if there are other such organizations throughout the country. You certainly can complain to your state's attorney general. You also have the right to file suit against your association. Most state laws require that all books and records be made available to unit owners; this would include the names of the board members, as well as any minutes of their meetings. Some states have limited this access by requiring that the person seeking such information show that he/she has an interest in those documents. However, I firmly believe that any unit owner has such an interest. Litigation is, of course, expensive and time consuming. However, if you can round up a group of owners with similar concerns, the legal fee could be shared and you would not have to go it alone. And there is one more thing you can do. In your bylaws, there is a provision on how you can "throw the rascals" out of office. Read the requirements carefully, and muster sufficient support among your fellow owners. However, I always advise my association clients that if they are unhappy, they have three choices: (1) Get yourself elected to the board; (2) put up with the situation; or (3) move out. DEAR BENNY: In 2006, the assessed value of my house had climbed to $750,000 and then dropped down to $714,000. After much investigation, I filed an abatement based on the information I obtained from our local government. Their information was wrong and I successfully got the assessment down to $530,000. However, around the same time, I refinanced based on a bank appraisal of $670,000. Currently, the county's assessment is under $450,000. I think by filing for a tax abatement I shot myself in the foot. I really believe the house is currently worth more than $500,000, but know that potential buyers look at the assessed value. I want to sell my house. Can I realistically list it at the price I believe it is worth, and expect a real estate agent to explain the situation to potential buyers, or am I stuck with an asking price closer to the current assessed value? --Karen DEAR KAREN: I don't believe you shot yourself in the foot; for a couple of years at least, you have been paying the real estate tax at a lower rate. It is true that potential buyers look at the appraised value. Especially in today's economy, appraisers who do work for mortgage lenders will be extremely conservative. But in many jurisdictions throughout this country, it is a known fact that the appraisal has not caught up with the true market value of the property. Appraising real estate is not an exact science. The best test for market value is what a willing buyer is prepared to pay for the property. You have the absolute right to list your property for whatever you believe it is worth. That does not mean, however, that you will find a real estate agent willing to accept your listing. Brokers and agents spend a lot of time working for their clients; no one wants to waste time trying to market a house that is way overpriced. You could, of course, try to sell it on your own, and you may find a potential buyer. But, we still are in financial difficulties, and real estate sales -- although picking up in many parts of the country -- are still quite sluggish. DEAR BENNY: I recently purchased a condo, and I have a noise problem with the unit above me. I can hear the people walking back and forth, getting out of bed and performing normal, everyday activities. A new owner purchased that condo last week. I believe the previous owner installed a low-grade laminate directly on the plywood floor, with no padding or sound-dampening material. I talked to the condo association manager and he says there is nothing that can be done. Is there any legal action I can take? --Todd DEAR TODD: Noise is very subjective. I often have joked that my son's definition of music is my definition of noise. Some people are more sensitive to sound than others, so it will be your obligation to prove that the noise you hear is above normal standards. There are professionals, called acoustical engineers, who specialize in determining whether the noise in your unit is within acceptable decibel range. You should retain an engineer at your expense so that you will have the proof to demonstrate that the noise you hear is real and not imaginary. That engineer should also inspect the upstairs unit so that he can provide some suggestions as to how to resolve the problem. Once you have such a report, show it to your upstairs neighbor. Explain that you are very troubled by what you hear, and ask him to take appropriate steps to correct the situation. For example, carpets could be put on the floor throughout the unit; in some cases, floorboards could be tightened, and made more secure. Often, hammering down nails will solve the problem. You should also review your association documents, especially the rules and regulations. Many associations require that 80 or 90 percent of a unit must have adequate floor covering such as rugs. If that is the rule in your association, demand that the manager inspect the upstairs unit to determine if it is in compliance with the rules. If there is no such rule, you should discuss your concerns with the board of directors. It may be convinced to enact such a rule for the future. If all else fails, you certainly can take that owner to court, claiming a private nuisance. But litigation is time-consuming, expensive and always uncertain. Discuss your situation with an attorney to determine if it's worth the effort. Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column.


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