It seems that more often than not recently, I am experiencing difficulty in dealing with Condominium "management", so-called, with respect to matters which involve my clients. I am a Massachusetts title and real estate attorney, and in the course of my representing Buyers, Sellers and current Unit Owners of condominiums in Massachusetts, I have experienced an array of frustrations, including the following:
1. Answering Lender Questionnaires
Getting the condominium officials to respond to the Lender's Questionnaire, so that a mortgage loan can be processed in connection with a sale, has become frustrating. Recent underwriting restrictions have made the answers to the Questionnaire more important than ever. Most condominiums are not involved in litigation, or disputes with Unit Owners. The Lender needs to know these things, and the Questionnaire is the vehicle. Many condominiums are creating appropriate reserve accounts and separating same as is statutorily mandated. I am experiencing situations where the Trustees just can't get around to providing answers. There is no urgency for them, and they take their sweet time.
2. Disputes between the Trustees and a Unit Owner
These can range from permitting a Unit Owner to fix his or her Unit after a natural or other disaster to approving a request to do structural work to personal "vendettas" between neighbors. Most older condominium documents do not have "arbitration" provisions. In that situation, the affected Unit Owner often must initiate litigation to rectify a perceived wrong. The irony of this type of situation is that once a lawsuit is begun, the affected Unit Owner must pay not only his or her own legal fee, but a percentage share of the legal fee incurred by the Condominium Trustee(s) to defend. As a practical matter, this unfairly inhibits the ability of a Unit Owner to protect his or her rights.
3. Arbitrary or Capricious Trustees or Officers
There is not much that can be done with a person who wants to say "no" to every suggestion, even down to the need for the Trustees to have frequent meetings and keep minutes of meeting. If the difficult Trustee doesn't like you, or doesn't like anyone, you have a major problem, and the expense and stress of going to Court to have a Trustee removed is huge.
4. Charges for items that should be included in your HOA fee
Why is it really fair for a condominium to charge $150 for a Certificate that there are no Common Area liens on a Unit which is being sold? Why should a selling Owner be charged $200 for a "move-out" fee? Where is the justice in any of this, but, as most of you know, it happens, and it can chill transactions.
There are solutions to these problems, but they are not easy to effect, especially with the requirement that Mortgagees need to be involved in certain Master Deed amendments. These are some solutions which I would recommend, however, and they should improve the situation materially:
1. Pay Trustees a decent stipend for serving.
I would suggest forgiving two or three monthly common area fees for Trustees. That would encourage more people to become Trustees and eliminate the "Trustee for Life" people who have nothing better to do than frustrate the realistic requests of Sellers, Buyers and Unit Owners.
2. Amend the Declaration of Trust
Permit arbitration of disputes, with the losing party required to pay not only its fees and costs, but the fees and costs of the winning party. This approach would force more attention on reasonable compromises.
3. Set term limits for management companies and Condominium officials.
Change management companies every three years. Only permit Trustees to serve for two (2) terms. This will make it possible for new ideas and new approaches. It will, in effect, end "tyranny" by current regime that is running "roughshod" over its constituency.
4. Have each Condominium Create a Website for itself.
This is no longer an expensive undertaking. Include the form of Certificate that can be used when there is a need to demonstrate that common area fees are current for a particular Unit. Include the floors plans for each Unit. Ditto the Master Deed, Declaration of Trust and amendments. Inform all who are asking whom the current Trustees are. Give passwords to Unit Owners so that they can read minutes of Trustee meetings. Join the 21st Century.
Please let me know your ideas on this!!! I am quite willing to spearhead an offensive to change things in Condominium operations. Such changes are way, way overdue.
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