DEAR BENNY: My condominium association has a very comprehensive insurance policy. Our board is recommending that each owner get his or her own insurance coverage. Why do I need to pay for insurance when it’s already paid for by the association? –Harry
DEAR HARRY: Every condominium association must have a master insurance policy. The declaration will spell out the minimum required insurance coverage, and many state condominium statutes also require a minimum amount of coverage. The master policy will cover problems and issues relating to the common elements and the limited common elements.
For example, if there is a common-element water pipe that bursts, causing flooding and water damage to the common halls, elevators and individual units, the master policy will pay the damage claims, less the insurance deductible specified by the policy.
However, the master policy does not provide all-inclusive coverage. What if the water flooded into your apartment, damaged your walls, ruined your carpet and destroyed your expensive 50-inch plasma TV?
The master policy will pick up the cost to repair your walls, but you are on your own regarding any personal belongings. Additionally, most master policies exclude improvements, or what are known as "betterments." If you have the original floors in your unit, coverage will probably be available should they get damaged as a result of the flooding.
But if you (or your predecessor) installed parquet flooring, the "betterment" will not be covered under the master policy. I firmly believe that every condo owner should get the HO-6 coverage; the cost is minimal and the risk without it is great.
DEAR BENNY: My daughter and I own a condominium unit in a senior (over 55) complex. I paid for it, but my daughter’s name is on the deed as "joint tenant with right of survivorship." I am 65 and she’s 37, but married to a man who is 60. Thus, they qualify to live in this community. I live with my husband in another community.
Things are not going well in my daughter’s marriage, and the word divorce keeps showing up. If they were to divorce, would she be forced to leave that condo, or is there any such thing as "grandfathering"? She’s lived there for almost two years, and met with the condo for approval before moving in. –Karen
DEAR KAREN: Part of the answer can be found in the legal documents of your condominium association, and part of the answer can be determined by reviewing any local zoning restrictions enacted by your local government.
The Department of Housing and Urban Development (HUD) generally regulates these senior projects. HUD does allow 55-and-older communities to bar children; however, they encourage "some flexibility where the exemption would not be destroyed by that flexibility."
But a HUD policy statement also recognizes that "there is no direct legal authority under the statute" to require communities to bend their rules, leaving developers, homeowner associations, and municipalities free to adopt stricter age and occupancy requirements than HUD mandates.
Developers who are planning senior housing projects with HUD’s 55-and-older rules need to be aware that many cities and towns have adopted far more restrictive zoning bylaws. Some eliminate the 20 percent "open" occupancy that the HUD rules allow, requiring that 100 percent of the units be occupied by age-eligible residents; others establish a maximum two-person occupancy limit and require that both occupants, not just one, meet the age requirement.
However, a case decided back in 2002 in Arizona held that the refusal of a community association to waive the minimum age requirement so that a disabled person under the required age could reside with his parents violated the Federal Fair Housing Act.
You should talk with your attorney, as well as the lawyer for your condominium association, to get specific answers.
DEAR BENNY: I am a full-time, licensed, practicing real estate professional. I have been with the same company for more than 12 years now and have been licensed since 1986. I have a bachelor’s degree in business administration.
I often take issue with your answers in the Mailbag column. I don’t believe you are at all realistic. You also give the most absurd answers to many of the questions.
Your answers do not reflect that you have any real experience in the business. It could not be possible that you have actually represented the buyers and sellers in actual real estate negotiations of an offer, secured an acceptance, mediated a home inspection, arranged and accompanied buyers on showings, negotiated a listing contract, and more.
Perhaps you have only reviewed the contract language and been at the closings? And now you write this column as a hobby? –Rose
DEAR ROSE: Thank you for writing; I always appreciate and often enjoy hearing from readers. Most of the readers who e-mail me are appreciative of the consumer information I try to provide; however, many real estate agents write me with similar comments such as yours.
You can find my background on my law firm’s website at kmklawyers.com. I think you will see that (1) I have been licensed as an attorney for longer than you have been licensed, and — more importantly — (2) I have considerable experience with all aspects of real estate, both residential and commercial.
I do not write as a hobby. I have a full-time practice of law, and often have trouble meeting my column deadlines. But I write to provide assistance and consumer information to my readers. I am sorry that you do not like my answers; I respect your opinions and hope you will respect mine.
By the way, since at least the early 1980s I have conducted probably thousands of real estate closings — as well as represented buyers, sellers and yes: even many real estate agents.
DEAR BENNY: We bought our home in June 2008, from the second builder involved in developing this community. Our home is not included in the original property owners association (Phase 1), as we are in Phase 2 of this community.
We do our own landscaping and have voluntarily paid toward the maintenance of the common area. A bill came showing an increase in "dues" and I questioned the need for an increase because there were considerable funds in the treasury a year ago.
When I asked to see where monies had been spent in 2009, I was told that because we don’t belong to the association, we are not entitled to view financial information.
I was subsequently asked to be treasurer of this association. After looking over the books, I concluded that there had been carelessness in recordkeeping and misappropriation of funds. I, therefore, returned everything along with a list of concerns and comments. Although the president was very upset with me, the board has since hired an accountant to do the job.
Am I obligated to continue contributing to the maintenance of the common area? –Marlene
DEAR MARLENE: That’s a great question, but let me ask you a question in return: Why did you voluntarily pay homeowners association dues when you knew you were not part of that association?
The simple answer: Your home is not part of the recorded association and you do not have to make any payments to that association. However, the association attorney may take the position that because you voluntary made payments for a number of years, by your conduct you remain obligated to continue those payments.
The theory of law that this attorney will use is waiver and estoppel. In other words, by your actions of the years you waived any defenses that you may have.
I believe you will prevail, but if the association ever needs money, I am sure it will try to go after you.
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 firstname.lastname@example.org.
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