We represent a broad range of community associations. They include condominium associations under the Unit Ownership Act, the Condominium Act of 1976, and Common Interest Ownership Act, associations of planned communities created under the Common Interest Ownership Act, homeowners and property owners associations formed under the common law, cooperatives, lake associations, pond associations, beach associations, tax districts, and special services districts. The following are some of the matters in which we have represented associations.
Amendment and Restatement of Common Interest Community Documents
A community association for a condominium formed under the Unit Ownership Act or the Condominium Act, or a community association for a planned unit development (“PUD”) formed under the common law, may want to opt into the Common Interest Ownership Act to take advantage of the current statute’s provisions. We can advise the association on how to change its existing documents and draft amended and restated documents. We amended and restated documents for a PUD in Hartford County with 180 units to opt in under the Common Interest Ownership Act. We did the same thing for a community with 300 units in lower Fairfield County that also has a tax district within its boundaries. For two contiguous communities in Northwest Connecticut formed under the Condominium Act, we amended and restated their documents to merge the communities and opt in under the Common Interest Ownership Act.
Short of drafting a complete amendment and restatement of documents of common interest communities to opt in under the Common Interest Ownership Act, we can prepare smaller scale amendments for various reasons. For example, community associations may update their documents for the following reasons:
- Allocation of responsibility for the deductible amount under their blanket policy between the association and the unit owners;
- Empowering the association to borrow money with a pledge of the right to collect future common charges as collateral for the loan;
- Dealing with modifications to the common elements by unit owners; and
- Incorporation of special provisions for replacement of water heaters, inspection of chimneys, and other controls over high-risk components.
Community associations call upon us to interpret provisions in their documents and apply those provisions to specific issues facing them. Matters of interpretation arise in a variety of circumstances. We have addressed maintenance responsibilities to determine whether the association or the unit owner fixes or pays for fixing an item that has suffered damage or that requires repair. We have explained the procedures for calling and holding meetings of unit owners and executive boards, as well as for electing directors and officers of associations. We have interpreted the authority of associations to enact rules governing activities in units and the common elements, and we have developed approaches to resolving parking issues, including limiting the kinds of vehicles permitted in a community and having the association assign parking spaces to units.
Rules Enforcement and Other Limitations on Activities
We enforce rules and other provisions of documents for community association. Frequent subjects for enforcement are pets, noise, parking, smoking (both tobacco and meat!), unauthorized deck and patio expansions, and unauthorized businesses. Enforcement can occur by the imposition and collection of fines, by lawsuits seeking a court order for compliance with the rules, and by other means. We can review the validity of the process by which the community association adopted or amended its documents, explain how the documents apply, assist in the preparation of notices of violation and hearing before the executive board, advise on appropriate amounts for fines, and bring lawsuits for foreclosure of unpaid fines and court orders for compliance with the documents.
Common Charge Collection
When unit owners do not pay their common charges, we help with the collection process. We can send demand letters, provide verification of disputed common charges, negotiate repayment plans and payments by mortgage lenders, bring lawsuits for foreclosure of the association’s lien on the unit for the unpaid common charges, and, as a last resort, eject the occupants of the unit. At times, foreclosures raise unexpected issues for the association. In one foreclosure, a unit owner challenged the validity of a common expense assessment based on inadequate notice of the meeting of unit owners for ratification of the budget. The association prevailed at trial and again on appeal in a published decision, South End Plaza Association, Inc. v. Johnson, 62 Conn. App. 462 (2001).
Transition of Control
We guide community associations through the process of transition of control from the declarant and the declarant’s appointed members of the executive board to the unit owners and the members of the executive board whom they elect. The process of transition does not always proceed smoothly, and the declarant does not always comply with its obligations under the Common Interest Ownership Act and the community’s documents. We advised the unit owners of a condominium as they assumed control of the association and restarted its operations after the declarant stopped operating the association and abandoned the condominium. We were part of a team of attorneys for an organization representing the unit owners in a planned community of detached and semi-detached homes in Hartford County. The declarant of the community had attempted to extend its control over the association by moving a shed into the community, declaring the shed as a garage unit, and attempting to avoid the limitations in the documents on control of the association. The organization prevailed in litigation establishing that the declarant’s control of the association had ended.
Selling the Right to Build in a Community
We have negotiated and documented transactions for both community associations and developers to build out partially completed communities. The first sale for one of our clients occurred under an old statutory provision that required unanimous approval of the unit owners in the community to amend the declaration and create the development rights to declare more units. Since then, we have participated in many other transactions to complete communities, as well as transactions to withdraw land from communities. In one transaction to withdraw land, the withdrawn land was developed as a separate community. In another, the withdrawn land and buildings were contaminated with hazardous materials, and withdrawal provided the opportunity for remediation and development of the contaminated land separate from the community.
In addition to completing and reducing the size of communities, we have prepared documentation to add land to a community and to merge two or more existing communities into a single community.
In Connecticut, loans to community associations are usually secured by a pledge of the associations’ right to collect common charges from the unit owners. During the 1980s, Matt Perlstein closed some of the first such loans, when they were unusual. Now, we routinely represent community associations in closings on such loans. Our largest was a multi-million dollar loan to an association with 160 units for the replacement of roofs, windows, and siding on all of the buildings in the community. (As part of the process of obtaining the loan, we amended and restated the community’s documents to include authority to pledge common charges as collateral and to implement a more balanced way of approving special assessments and renovations). We recently represented a downtown association on the closing of a loan for over a million dollars to renovate the exterior of a historically significant high-rise tower.
Our firm is one of the few in the country with experience in terminating operating condominiums. In one instance, we terminated an urban condominium that had become almost entirely investor owned to facilitate the sale of the building to a purchaser who intended to operate the building as rental apartments.
Does your community want to regulate drones? If so, we can help.
The increase in the use of drones is well-documented, and is expected to continue. With this comes risks to persons and property, and potential privacy concerns for residents. These are among the reasons why an association may want to regulate or even prohibit drones. But the use of drones by certain association contractors may be appropriate, in that it may make the performance of a job more safe, efficient, or cost-effective. Recently, a number of our association clients asked us to draft rules to prohibit the recreational use of drones, with an exception to allow a contractor hired by the association to use drones.
Though the regulation of drone use raises certain legal issues, under current law an association may do so. One issue is potential federal preemption. The Federal Aviation Administration (“FAA”) is the agency that generally has jurisdiction over the use of federally regulated airspace. While it is possible that an increase in attempts to regulate or prohibit drone use by states, municipalities, and common interest communities may, at some point, trigger FAA action, unless and until that time, an association has the power to address drone use. Drone use may also involve the question of whether an association has the authority to prevent its owners and residents from doing something in a location, such as federally regulated airspace, that may not even be part of the community at all. However, there is case law that holds that the rules of a common interest community can create a covenant among the people subject to the community documents, by which they agree not to take certain actions, even if these actions may occur outside of the community. Like enforcing any rule, the enforcement of a drone rule itself may be difficult, and beyond that, there may be no conceivable way to prevent, through the use of a rule, those from outside of the community from flying in the community’s airspace.
If your association would like to discuss how it may regulate drone use, please contact us.