Attic Space Grandfathering Issue

Started by JamesE11 • 30 replies • 1635 views

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JamesE11 (Washington)
Posts: 11

Posted:

A few days ago I received a letter stating the HOA wants access to all units to inspect and discover which units are in violation of the declaration that attics are only allowed on one kind of unit and should only be used for storage. They warn that violators will have until the end of the year, if a request is made, to restore them to 'original condition'.

I have not gone to the last few meetings, thanks to too much work, so I did not see this coming and am not sure why it is suddenly a priority issue. However, I know my neighbor rebuilt his upstairs and advertised it for sale as a three bedroom unit. That may have caught their attention and conversations I've had in the past are that they're concerned largely about parking and excessive rentals.

These units were built in the 70's. When I bought mine at least 12 years ago, the old lady used it for an office. There were crude stairs going up, a floor, etc.

The declaration (at least the one passed a couple years back where we rewrote everything to new standards) states that units with attics (which mine has, since it is a type 3) should only be used for storage. Of course it's several paragraphs of legalese.

The real problem is that I don't have the old declaration anymore because the condo burned down about 8-9 years ago. Roughly. The association used their insurance company and their contractor rebuilt the place with an even more finished upstairs. I had no input in the process aside from a couple of times they contacted me to ask if I wanted to pay for things like granite (more profit, of course). I let them and the association do whatever they wanted as I was, frankly, too depressed at the time to think about it.

I was pleased because they finished out the upstairs even more than before and explained how they brought it up to housing code by fixing the stove venting and other problems from the 70's construction.

It took me a long time to move back in, though, because I had trouble getting over the fire. And even longer to start going to meetings and start to get involved again.

It seems to me there must be an equitable solution to this. The space has been in use for a long time. The lady actually sold this because she was getting too old to make it upstairs.

I've met some of my other board members and they seemed nice enough, if a bit way too interested in rules. My wish is to want to contact them and find out why they're doing this and what it would take to get listed as one of the exclusions in this rewritten declaration. Defuse the situation. But I'm also afraid that my board members will be unflinching and want to counter any additional owners making modifications, using however many of us made changes as an example.

I can see how we might not want everyone to make extensive modifications, as that leads to larger family rentals. I think the neighbors did this, and there may be others, but in my case I think there is a statute of limitations and the implicit consent that they rebuilt it with a finished upstairs. Now I just need a strategy to avoid gutting the unit unnecessarily.

PitA
Posts: 1,416

Posted:

Please educate us with the advice your attorney provided.

however:

..... I can see how we might not want everyone to make extensive modifications, as that leads to larger family rentals. .....

It matters NOT what 'you / we' want, merely what the Covenants and Restrictions (a/k/a the contract) states.

? Were / are there any restrictions in the actual Covenant ?

? Were the 'alterations' inspected and a Certificate of Occupation issued ?

Good luck with your 'kitchen in the attic' ~ I am sure it has proper fire code egress

PitA
Posts: 1,416

Posted:

no edit

Certificate of Occupancy

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Seems to me a Fire Marshall is involved in all of this. Plus suspect an insurance change/issue. Inspections usually happen when those 2 outside sources get involved. There should be a firewall between units I suspect. Which is something they are probably looking for.

I would find out if they are changing insurances or a new fire code has come up calling for the inspections. An inspection doesn't mean your going to be in violation. It just means they are inspecting the existing conditions to make sure certain criteria is met. It may not matter if one has an office space. The extra Bedroom on the other hand may be an issue. That changes home values/sales. Your no longer having 2 bedrooms comps but 3 bedroom.

Don't fight the inspection. It's best to let it happen and then react to the known not the unknown.

Former HOA President

JamesE11 (Washington)
Posts: 11

Posted:

Alas, I know little about the past of this at this point. Given that it was over a dozen years ago now and we've gone through many HOA boards (including voting ours out entirely a few years ago).

The area in question is a room with a floor and a window, but there are crude stairs going upwards. Not sure where "kitchen" came from, but that would be silly. They DID have to improve things like the venting structure outside, as that was not up to modern building code.

In talking with the board I know a neighbor did extensive modifications about a year ago after the new declarations were passed. I have been tempted to ask to see it. There is apparently a very fancy open loft now where the closed attic area once was. He was able to sell it for way above market value (no wonder) and included the other 'bedroom' in his sales brochures. I suspect that lie is going to be a lawsuit in and of itself. I still have one of the brochures, as it was novel enough to keep.

This, I suspect, is what is the problem. It could explode if people develop these out to the logical point and similarly try to cash out. That would result in additional renters and larger families, exacerbate the parking, and so on.

I'm primarily looking to figure out how to approach the rest of the association about it. I want to be proactive and work with them on it, but they came out swinging abruptly with immediate threats from the management company and I'm not 100% sure the motivation. Thus I'm not sure if that's a good strategy. I figured people here would have a better idea. Be nice and proactive or wait and see?

Since their contractor rebuilt it to this spec, I would think it was implicitly up to them to approve the construction of the floor plans they were presented. That was my personal point, since the unit was a charred husk and a lot of the original construction was gone. Maybe they guessed at what the original attics were like from the pieces left of the neighboring top unit and built it like that. I don't know. Nobody asked me anything like that. It's nicer than when I bought it, anyway.

Had I gone through with other major improvements like my neighbors, obviously I suspect there would be a problem and I'd expect to be called out about it. Especially doing it so soon after the bylaws were rewritten.

JamesE11 (Washington)
Posts: 11

Posted:

Hmm, it could be motivated by insurance, yes. We've had trouble with ours, so that's quite possible.

They were clear that 'stairs' was a violation, but I don't know what they are looking for. A ladder? I've never seen any of the other top units to compare.

"Furthermore, before permanent stairs to the attic crawl space can be constructed, an Architectural Request form must be completed and submitted to the board for permit approval."

However, that could be the reason. If it is for insurance and they need to ensure everyone is in compliance before renewing it, that would explain a lot. Over and over they seem primarily interested people only use it for 'storage space'. If they are looking to keep their insurance down, they don't want penalties if it isn't up to livable code or some such.

PitA
Posts: 1,416

Posted:

..... they brought it up to housing code by fixing the stove venting .....

that's where 'kitchen' came from

JamesE11 (Washington)
Posts: 11

Posted:

Hopefully this is an interesting issue regardless of my personal involvement. If I wasn't stressed about it, it would be a novel new thing to study.

I've found the original repair plan from the association's lawyers ten years ago (wow, I underestimated how long it's been) for my unit after the fire, although it is light on detail on what was done and mostly the associations list of costs.

In talking to a few other owners, so far, I've discovered mine had the weird stairs in place for many years before I owned it. The downstairs neighbor knew the previous owner and visited upstairs, but never saw any changes. I mean, this is why I pay the highest HOA fees for the extra space.

However, more interestingly, it appears that one of the other units recently had an inspection during resale. They discovered the 'attic' had the washer/dryer and sink in it. Even I was shocked, as I have no idea what it would take to build that. Apparently the owners had not installed it and had no idea when it might have been done. This came up in the last meeting (which I missed) and might have prompted the study to determine what other bizarre things are in our units.

One of the other board members has a simple room like mine, which is where his weight set goes. Many units have a more open attic which overlooks the rest of the unit. Ironically, mine might be one of the least modified, if anything was done.

In addition, the upstairs is partitioned into two areas. There's a crawlspace with a door fit for little dwarves. I suspect you'd have to knock that out to make the open overlook. Also, the wall adjoining the units used to have a funny narrow space inside like a double wall, but with a weird door, before they rebuilt my unit and sealed that off. That could be the fire wall they're looking to ensure no-one has compromised. There were a couple odd changes downstairs to the walls (one was removed) that I found out after I moved back in, but that is a novelty beside the point.

I've always found it really interesting to visit the other units here because, possibly from them being built back in the 70s, they are all vastly different. Where I expect a lot of them to look like mine, I get lost in every single one. The whole floor plans are radically different. I speculate they were built in sections as the community expanded, but I've never seen any official evidence of that. Maybe the old-timers here would know.

It is still difficult to know what will come of it. The letter they sent is quite authoritarian with its strict (scary) deadlines and extreme wording. It is very accusatory and demanding. However, that's coming from a management company that probably copied down legal text / lawyers.

If -I- was the HOA and discovered this, I would be concerned about the liability issues, mostly, about damages from water and other things. I would be just as tempted to raise people's HOA dues for the larger units, except they are already higher.

But then I would realize it was in jeopardy of being unenforceable because (1) the whole bylaws were tossed out and rewritten several years ago (2) the statute of limitations is 6 years on contract disputes and (3) since no enforcement has ever been made [to my knowledge] the rights to do so may have been waived. What is that, selective exclusivity? The statute of limitations exists, from what I understand, because after ~6 years it is very difficult to find documents or the people who were involved, assuming they are still alive. Our units keep getting sold/rented because the owners end up in retirement homes. I think a majority are now rented (which may be in violation of the bylaws, but is also something that was never enforced).

I would send out a letter like they did but simply restate the declarations and desire to inspect. Then, I would inspect each unit to determine where they are currently and try to find out which had recent or dangerous modifications. If I had probable cause of something really egregious -then- I would tell specific owners what the remedy needed was. At that point I would have established proof of enforcement again and be able to restrict changes in the future from this baseline without approval.

DaveD3 (Michigan)
Posts: 796

Posted:

What do your documents say EXACTLY?

Do they say "SHOULD not be used" or "SHALL not be used"? Major difference between those words.

Should = "we'd prefer otherwise, but are generally powerless if you don't heed our preference"
Shall = "absolutely may not be used contrary to what the documents say"

Example:
Garbage cans should be kept out of sight = Sure would be nice if you didn't leave it in front of the house
Garbage cans shall be kept out of sight from the street = We can fine you or take you to court if you leave it in front of the house

JanetB2 (Colorado)
Posts: 4,219

Posted:

With what you have stated I am assuming you are a condo. If you are NOT please let me know and I can post different info. Your State HOA Condo laws can be found here:

http://apps.leg.wa.gov/rcw/default.aspx?cite=64.34

Those then state:

RCW 64.34.240
Alterations of units.
Subject to the provisions of the declaration and other provisions of law, a unit owner:
(1) May make any improvements or alterations to the owner's unit that do not affect the structural integrity or mechanical or electrical systems or lessen the support of any portion of the condominium;
(2) May not change the appearance of the common elements or the exterior appearance of a unit without permission of the association;
(3) After acquiring an adjoining unit or an adjoining part of an adjoining unit may, with approval of the board of directors, remove or alter any intervening partition or create apertures therein, even if the partition in whole or in part is a common element, if those acts do not adversely affect the structural integrity or mechanical or electrical systems or lessen the support of any portion of the condominium. Removal of partitions or creation of apertures under this subsection is not a relocation of boundaries. The board of directors shall approve a unit owner's request, which request shall include the plans and specifications for the proposed removal or alteration, under this subsection within thirty days, or within such other period provided by the declaration, unless the proposed alteration does not comply with this chapter or the declaration or impairs the structural integrity or mechanical or electrical systems in the condominium. The failure of the board of directors to act upon a request within such period shall be deemed approval thereof.

Potentially if after the fire and any rebuild was done meeting or exceeding your local government codes (LOL ... how long ago) ... I would potentially say too bad ... so sad. YOU get to keep and move forward with what you have. Keep in mind your State laws can supersede your CCR's. Potentially your State Laws dictate that anything you do "inside" your condo as long as it does not affect the structural integrity or the mechanical and electrical systems is YOUR business and not the HOA.

JamesE11 (Washington)
Posts: 11

Posted:

- The word 'Shall' is in our bylaws. Alas!

- The state law is interesting. That may be useful. I did not know that state law could supersede our bylaws, but that would be a sensible thing to preclude inventing anything. The attic -is- declared as common area, although I admit I never understood that or what it implied before. It's weird finding out you don't really own your own home.

Puzzling that I have the extra square footage allotted to me, but I'm not allowed to choose how to use it. I think that's the kind of nightmare situation only a lawyer could invent.

---

I did contact a lawyer, who said there was a good case, which she was happy to follow up with, because my unit was rebuilt by the HOA's insurance. I have their lawyer's letter from 10 years back stating the costs and that it is from the HOA's repair plan, which is pretty good proof. Better if I had the floor plans, but I could get the contractors involved if I needed that. Ironically they were suing me for the repair funds to perform upgrades to 'bring things up to code' and remove asbestos. The key was to make sure our declarations were basically the same as they were before, which is the case.

They have not come by for inspection yet, so this may all turn out to be more reasonable than expected. The property management's request was a harsh attack full of threats of lawsuits, obviously written by their lawyers, and absolutely the worst way to manage the situation. I don't know why it sounded like a good idea to immediately come out and make enemies of 1/3 of the units in our complex before proving anything else was really all that bad. I haven't heard so many of my neighbors start angrily talking about replacing the board since we thought they were embezzling money through construction kickbacks a few years back (when we voted them out). By contrast, the request from the board was short and more like 'please let us come by and xxx'. Very Jekyll and Hyde.

Some of my neighbors are already resorting to calling up and yelling at the HOA president, but I understand from others that just makes her fight them back. Better to be nice and jump through their hoops to solve this rationally.

As an aside, I don't know how you can prove there -wasn't- approval by the HOA board for most people's modifications if they were done a decade or more ago. But I'm going to guess they'll argue if neither party has written proof, then whatever verbal or similar agreement might have been okay in the past is not good enough now. Or they conveniently lost the paperwork in the transition when we hostilely voted out the old board.

Anyway, we'll see what goes. I'm starting to really look hard at moving, as maybe it's time to get out of this place. One of my neighbors is already taking that action. Or face up to having to run for the board. I just don't see the attacks stopping, otherwise. It was so peaceful before, but the past few years it seems there's always going to be something new we're in violation of. It's clear with this board that the residents are the enemy.

TimB4 (Tennessee)
Posts: 21,059

Posted:

When they come by to inspect, show them the letter from the Associations attorney.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JamesE11 on 08/19/2017 2:33 PM

The real problem is that I don't have the old declaration anymore because the condo burned down about 8-9 years ago.

That should not be a problem. The old declaration should still be on file with your local County Records. You can view it for free, but would have to pay a little if you want a printed copy.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JamesE11 on 08/27/2017 3:23 AM
- The word 'Shall' is in our bylaws. Alas!

You keep referencing Bylaws. Is it Bylaws or CCR's (Declaration of Covenants, Conditions & Restrictions)? The CCR's is the document attached to property titles and filed with your local County Records while Bylaws are essentially used to govern the maanagement of the Non-Profit Corporation of the association.

- The state law is interesting. That may be useful. I did not know that state law could supersede our bylaws, but that would be a sensible thing to preclude inventing anything. The attic -is- declared as common area, although I admit I never understood that or what it implied before. It's weird finding out you don't really own your own home.

Puzzling that I have the extra square footage allotted to me, but I'm not allowed to choose how to use it. I think that's the kind of nightmare situation only a lawyer could invent.

How is the extra square footage allotted to you??? Also, is this extra square footage showing as owned by you via your local county tax assessor's office? The association cannot have it two ways with allotting common area to units and charging them for common area space when common area is supposed to be split between all owners equally to maintain. Either it is "common area" costs to be shared or it is a space owned by the unit and the owner's obligation. So yes ... this is puzzling. They might have a slight mess here in the CCR's which needs to be fixed.
---

I did contact a lawyer, who said there was a good case, which she was happy to follow up with, because my unit was rebuilt by the HOA's insurance. I have their lawyer's letter from 10 years back stating the costs and that it is from the HOA's repair plan, which is pretty good proof. Better if I had the floor plans, but I could get the contractors involved if I needed that. Ironically they were suing me for the repair funds to perform upgrades to 'bring things up to code' and remove asbestos. The key was to make sure our declarations were basically the same as they were before, which is the case.

Sounds like you have a good lawyer .

They have not come by for inspection yet, so this may all turn out to be more reasonable than expected. The property management's request was a harsh attack full of threats of lawsuits, obviously written by their lawyers, and absolutely the worst way to manage the situation. I don't know why it sounded like a good idea to immediately come out and make enemies of 1/3 of the units in our complex before proving anything else was really all that bad. I haven't heard so many of my neighbors start angrily talking about replacing the board since we thought they were embezzling money through construction kickbacks a few years back (when we voted them out). By contrast, the request from the board was short and more like 'please let us come by and xxx'. Very Jekyll and Hyde.

As Tim noted ... When they come by show them the information you showed your attorney.

Some of my neighbors are already resorting to calling up and yelling at the HOA president, but I understand from others that just makes her fight them back. Better to be nice and jump through their hoops to solve this rationally.

As an aside, I don't know how you can prove there -wasn't- approval by the HOA board for most people's modifications if they were done a decade or more ago. But I'm going to guess they'll argue if neither party has written proof, then whatever verbal or similar agreement might have been okay in the past is not good enough now. Or they conveniently lost the paperwork in the transition when we hostilely voted out the old board.

Anyway, we'll see what goes. I'm starting to really look hard at moving, as maybe it's time to get out of this place. One of my neighbors is already taking that action. Or face up to having to run for the board. I just don't see the attacks stopping, otherwise. It was so peaceful before, but the past few years it seems there's always going to be something new we're in violation of. It's clear with this board that the residents are the enemy.

JamesE11 (Washington)
Posts: 11

Posted:

Okay, you've had me researching more. Hopefully this is interesting stuff.

2.1 The Declaration and the Washington Condominium Act, codified at RCW 64.34, as it may be amended ("Condominium Act") provide the framework by with the Condominium exists and operates. This Declaration shall be construed in accordance with the laws of the state of Washington. This Declaration shall be interpreted in its entirely to accomplish its intended objectives. In the event of a conflict between the provisions of the Declaration and the Condominium Act, the Condominium Act shall prevail. In the event of a conflict between the provisions of the Declaration and the Bylaws or the Declaration and any Rules adopted by the association, the Declaration shall prevail except to the extent the Declaration is inconsistent with the Condominium Act.

4.2 Unit Boundaries
The boundaries of a Unit are the perimeter walls, floors and ceilings of the Unit, and include all wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, carpet, finished flooring, and any other materials constituting any part of the finished surfaces of the unit, except those items defined as Common Elements in Article 5, or Limited Common Elements in Article 6. The boundaries also include the interior surfaces of the perimeter windows and doors. All spaces, interior partitions, appliances, fixtures and improvements that are located wholly within the boundaries of a Unit are a part of the Unit. Attic space included in the room count and the square footage amount of type 3 Units in Schedule B are part of the Unit but are restricted to use to storage only and such attic storage space shall not be used as living area.

6.2.5 A Limited Common Element may be incorporated into an existing Unit with the approval of sixty seven percent (67%) of the total Allocated Interests, including the approval of the Owner of the Unit.

6.3 Use
Each Owner shall have the exclusive right to use the Limited Common Elements allocated to the Owner's Unit. The right to use the Limited Common Element extends to the Owner's agents, servants, Tenants...

In the chart of units I am one of the portion of them that has the full 1000 square feet. An addendum states "Includes Attic Crawl Space which is storage but not living space." I just confirmed my tax assessors office is taxing me for the full 1000 square feet. This might be the correct way to go about it, though, as the association doesn't pay taxes on common areas, I believe. That's shared out to all people via the dues. Still, it might mean we are being double taxed.

DaveD3 (Michigan)
Posts: 796

Posted:

"Attic space included in the room count and the square footage amount of type 3 Units in Schedule B are part of the Unit but are restricted to use to storage only and such attic storage space shall not be used as living area."

That's pretty specific that other uses of the space are prohibited.
The real question is then, is such a usage restriction legally permitted? and if so, how is it enforced?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JamesE11 on 08/27/2017 10:58 PM
Okay, you've had me researching more. Hopefully this is interesting stuff.

2.1 The Declaration and the Washington Condominium Act, codified at RCW 64.34, as it may be amended ("Condominium Act") provide the framework by with the Condominium exists and operates. This Declaration shall be construed in accordance with the laws of the state of Washington. This Declaration shall be interpreted in its entirely to accomplish its intended objectives. In the event of a conflict between the provisions of the Declaration and the Condominium Act, the Condominium Act shall prevail. In the event of a conflict between the provisions of the Declaration and the Bylaws or the Declaration and any Rules adopted by the association, the Declaration shall prevail except to the extent the Declaration is inconsistent with the Condominium Act.

4.2 Unit Boundaries
The boundaries of a Unit are the perimeter walls, floors and ceilings of the Unit, and include all wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, carpet, finished flooring, and any other materials constituting any part of the finished surfaces of the unit, except those items defined as Common Elements in Article 5, or Limited Common Elements in Article 6. The boundaries also include the interior surfaces of the perimeter windows and doors. All spaces, interior partitions, appliances, fixtures and improvements that are located wholly within the boundaries of a Unit are a part of the Unit. Attic space included in the room count and the square footage amount of type 3 Units in Schedule B are part of the Unit but are restricted to use to storage only and such attic storage space shall not be used as living area.

You need to discuss with your attorney because your CCR's conflict. On one hand they state: "All spaces, interior partitions, ... that are located wholly within the boundaries of a Unit are a part of the Unit" and then turn around and try to "limit" space which is owned wholly by the unit. The HOA should only be able to limit uses for "common area" and "limited common area" which the attic space is not. QUESTION: Did the original CCR's limit the attic space??? Or was this added when was admended??? Your original post seems to allude to this was changed when docs were amended. I am not an attorney, but I would contend space owned by a unit cannot be limited and treated as if it was "limited common area". If they wanted to limit this space, then it should have been noted as "limited common area". I also agree they should not be able to make you tear out anything because the HOA was the entity who built it with the insurance proceeds after the fire.

6.2.5 A Limited Common Element may be incorporated into an existing Unit with the approval of sixty seven percent (67%) of the total Allocated Interests, including the approval of the Owner of the Unit.

6.3 Use
Each Owner shall have the exclusive right to use the Limited Common Elements allocated to the Owner's Unit. The right to use the Limited Common Element extends to the Owner's agents, servants, Tenants...

In the chart of units I am one of the portion of them that has the full 1000 square feet. An addendum states "Includes Attic Crawl Space which is storage but not living space." I just confirmed my tax assessors office is taxing me for the full 1000 square feet. This might be the correct way to go about it, though, as the association doesn't pay taxes on common areas, I believe. That's shared out to all people via the dues. Still, it might mean we are being double taxed.

JanetB2 (Colorado)
Posts: 4,219

Posted:

James ... Depending on what County you are in because I noticed some of your states County Records websites will allow the filed document text to be viewed online. If you do not have a copy of your original CCR's after the fire, you can check and maybe print you another copy from the online records vs making a trip to your County Records.

JamesE11 (Washington)
Posts: 11

Posted:

This is the only section I can find that attempts to define the common elements.

5.1.3 Any pipe, chute, flue, duct, wire, conduit, utility line, bearing wall, bearing column, attic crawl space, or any other fixture which lies partially within and partially outside the boundaries of a Unit and which serves more than one (1) Unit or serves any portion of a Common Element. [In regards to defining a Common Element.]

It is interesting to note that, when my association rebuilt my unit, they put in a new dividing wall and door between the main attic area (which is huge and definitely not 'crawl space' as it is a lofted ceiling easily 8 feet high). At the time it was a surprise to discover it, but just a puzzle. That may have been their idea of separating the common element (which is a tiny sloped room) from the owner area. However, that association is long gone, having been many iterations ago and before the hostile vote-out.

It does seem that the interpretation is confusing and I had missed that.

This might reduce the argument to how strict the HOA is allowed to interpret 'common elements'. If that argument falls away on the type 3 units, WA law must take precedence, which does NOT restrict homeowners to make modifications. At that point they would maybe be operating on the technicality that it was not approved. However, I found this deep in our declarations.

22.2.2 An Owner may make any improvements or alterations to his Unit that do not affect the structural integrity or mechanical or electrical systems or lessen the support of any portion of the Condominium.
vs
22.2.4 An Owner may not change the Common Elements or a Limited Common Element or the exterior appearance of a Unit without permission of the Association pursuant to the procedures of Section 22.4.

---

Going back to my more specific argument about the repairs being implied consent, I have found the section whereby they are allowed to sue me (which they did) for repairs to my unit and to others.

This is from their lawsuit docs to me:

"Following the loss the Association promptly filed an insurance claim with its carrier, XXX, and, as a result, and through the hard work of its Board and XXXX Management, it will receive $XXXX in proceeds. As you can see from the enclosed Repair Plan - Details Summary (dated XXX 2007) the total expenses resulting were $XXXX, leaving a shortfall of $XXXX."

They list all of the contractors involved and the amount they spent on each one, plus all management and additional expenses. There is a note: "Association's insurer will not reimburse for professional services or necessary plumbing & venting upgrades."

In addition, I received a copy of the fire marshal's report: "E27 reported fire in attic. Extinguished fire over unit C.... Helped remove singles over charred rafters." The entire units had to be gutted to the interior beams, regardless, because of the asbestos contamination, also listed in the damages. Which, to anyone reading this, you should be aware that was an enormous cost and involved hazmat suited demolition workers, from what I was told.

Anyway, this is doubly interesting because if they somehow claimed that the upgrades were not approved by them, then they likely could not seek damages for their violating repairs to the adjoining unit (which also had the 1000 sq ft). [The irony is that they probably broke even or made out well because my insurance company saved them the trouble of replacing the roof in my unit.]

---

This is important, because it could help define how our HOA could move ahead from this potentially nasty and dividing issue. Real estate friends have told me that we're at a crossroads right now, where homeowners appear to be wanting to upgrade their 1970s units to be more modern and incorporate the upstairs. This seems to be one of the core issues the current HOA is having. Can we move ahead with letting people update their units? Or will we be stuck in this bizarre situation where the portion of 1000sq ft units are forced to downgrade, pulling down property values for themselves - and by extension for all other units. Because people will run the comps between these deflated 1000 sq ft units and the smaller ~850 sq ft units and decrease their offer accordingly. We have been stuck for years, unable to rise with the rest of the nearby market, even though we're right next to the waterfront and in a prime area surrounded by new construction. I have been told our HOA seems determined to run by the book and make small wins while ignoring the big picture.

This doesn't mean I'm anxious to 'cash out' but I will be older, someday, and eventually it is inevitable. Also, I would think it would allow us far greater leverage and quality of tenants for the large number of rented units.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JamesE11 on 08/28/2017 5:22 PM
This is the only section I can find that attempts to define the common elements.

5.1.3 Any pipe, chute, flue, duct, wire, conduit, utility line, bearing wall, bearing column, attic crawl space, or any other fixture which lies partially within and partially outside the boundaries of a Unit and which serves more than one (1) Unit or serves any portion of a Common Element. [In regards to defining a Common Element.]

It is interesting to note that, when my association rebuilt my unit, they put in a new dividing wall and door between the main attic area (which is huge and definitely not 'crawl space' as it is a lofted ceiling easily 8 feet high). At the time it was a surprise to discover it, but just a puzzle. That may have been their idea of separating the common element (which is a tiny sloped room) from the owner area. However, that association is long gone, having been many iterations ago and before the hostile vote-out.

Crawl space is an area which you cannot stand up in and used for running various utility lines.

http://www.dictionary.com/browse/crawlspace
noun
1.
(in a building) an area accessible by crawling, having a clearance less than human height, for access to plumbing or wiring, storage, etc.

Therefore, I would contend "crawl space" does not apply to your attic space. This section also notes "Unit and which serves more than one (1) unit or any portion of a Common Element". The attic space does not serve more than one unit and is not Common Element per other sections you posted.

It does seem that the interpretation is confusing and I had missed that.

This might reduce the argument to how strict the HOA is allowed to interpret 'common elements'. If that argument falls away on the type 3 units, WA law must take precedence, which does NOT restrict homeowners to make modifications. At that point they would maybe be operating on the technicality that it was not approved. However, I found this deep in our declarations.

22.2.2 An Owner may make any improvements or alterations to his Unit that do not affect the structural integrity or mechanical or electrical systems or lessen the support of any portion of the Condominium.
vs
22.2.4 An Owner may not change the Common Elements or a Limited Common Element or the exterior appearance of a Unit without permission of the Association pursuant to the procedures of Section 22.4.

Awesome!!! ... this supports the position that the HOA cannot limit the Unit space and which your attic has been noted as being Unit space. However, it is another potential conflict along with other I noted above, because the HOA is attempting to regulate Unit Space.
---

Going back to my more specific argument about the repairs being implied consent, I have found the section whereby they are allowed to sue me (which they did) for repairs to my unit and to others.

This is from their lawsuit docs to me:

"Following the loss the Association promptly filed an insurance claim with its carrier, XXX, and, as a result, and through the hard work of its Board and XXXX Management, it will receive $XXXX in proceeds. As you can see from the enclosed Repair Plan - Details Summary (dated XXX 2007) the total expenses resulting were $XXXX, leaving a shortfall of $XXXX."

They list all of the contractors involved and the amount they spent on each one, plus all management and additional expenses. There is a note: "Association's insurer will not reimburse for professional services or necessary plumbing & venting upgrades."

In addition, I received a copy of the fire marshal's report: "E27 reported fire in attic. Extinguished fire over unit C.... Helped remove singles over charred rafters." The entire units had to be gutted to the interior beams, regardless, because of the asbestos contamination, also listed in the damages. Which, to anyone reading this, you should be aware that was an enormous cost and involved hazmat suited demolition workers, from what I was told.

Anyway, this is doubly interesting because if they somehow claimed that the upgrades were not approved by them, then they likely could not seek damages for their violating repairs to the adjoining unit (which also had the 1000 sq ft). [The irony is that they probably broke even or made out well because my insurance company saved them the trouble of replacing the roof in my unit.]

Generally in this large losses the HOA will file with their insurance company for the majority then each owner's insurance company will pick up the rest of the tab. It is best to let the insurance companies duke it out. Potentially as long as you were made whole again via the insurances ... who cares.
---

This is important, because it could help define how our HOA could move ahead from this potentially nasty and dividing issue. Real estate friends have told me that we're at a crossroads right now, where homeowners appear to be wanting to upgrade their 1970s units to be more modern and incorporate the upstairs. This seems to be one of the core issues the current HOA is having. Can we move ahead with letting people update their units? Or will we be stuck in this bizarre situation where the portion of 1000sq ft units are forced to downgrade, pulling down property values for themselves - and by extension for all other units. Because people will run the comps between these deflated 1000 sq ft units and the smaller ~850 sq ft units and decrease their offer accordingly. We have been stuck for years, unable to rise with the rest of the nearby market, even though we're right next to the waterfront and in a prime area surrounded by new construction. I have been told our HOA seems determined to run by the book and make small wins while ignoring the big picture.

You still have not answered my question if attic spaces were similar in past CCR's or were they changed with the Amended CCR's. My opinion currently is the HOA should not be regulating the Attic Space that is not "limited common area". However, depending on your answer to my question that may change OR issue could be a coin toss in a court battle depending on answer.

This doesn't mean I'm anxious to 'cash out' but I will be older, someday, and eventually it is inevitable. Also, I would think it would allow us far greater leverage and quality of tenants for the large number of rented units.

JamesE11 (Washington)
Posts: 11

Posted:

My lawyer believes that the common area isn't necessarily a conflict.

"So your CC&Rs allow an Owner to make improvements to their unit but NOT to the CE or LCE and the crawl space is defined as a CE. The attic crawl space, while it may be part of a Unit, is specifically defined as CE, just as a bearing wall, for example, is a CE even though it makes up part of your Unit."

I think one could still try to parse out if there's a legal difference between Attic and Attic Crawl Space. They do appear separately in the declarations.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JamesE11 on 08/29/2017 5:15 PM
My lawyer believes that the common area isn't necessarily a conflict.

I would content depends on which "common area" your attorney is referring to??? The potential issue you have is possibly your attic space and that the HOA rebuilt themselves better than before ... is owned supposedly by a unit and NOT common area.

"So your CC&Rs allow an Owner to make improvements to their unit but NOT to the CE or LCE and the crawl space is defined as a CE. The attic crawl space, while it may be part of a Unit, is specifically defined as CE, just as a bearing wall, for example, is a CE even though it makes up part of your Unit."

??? Potentially your posted section 4.2 gives up the attic space to the unit owner. My question is if the HOA does not have it listed as "Limited Common Area" then what right do they under the State Law have to regulate??? However, you also HAVE NOT yet responded to my above questions regarding what was stated in your prior CCR's before Amended. That potentially could make a difference. Sometimes a court will refer back to documents prior to an amendment to make a decision. Keep in mind sometimes it depends on how you argue a case in a court of law that can determine whether or not you would win or loose.

I think one could still try to parse out if there's a legal difference between Attic and Attic Crawl Space. They do appear separately in the declarations.

Agree ... If you have a dividing wall and one area allows an individual to stand up vs another area where an individual cannot stand could make a difference.

JamesE11 (Washington)
Posts: 11

Posted:

I thought I would update people on the status of this.

We finally had our inspection and there was only one complaint (found out after pressing them for more info via email): We were using an area that was finished in our rebuild but was considered 'attic crawl space' to store things in. Their contention being it was not originally built to sustain heavy objects. Of course, I suspect when it was rebuilt the contractors had no idea it *shouldn't* be built out and did so.

1. It is interesting that the HOA, in their responses to me, indicated the attic crawl space was different from the attic space. They congratulated themselves on how clear our declarations are, but I would contend it is a completely baffling document in that regard and their threatening email was equally unclear, broadly asking for immediate remedies without much explanation. For one thing it makes no mention of what the 'crawl space' is or isn't, aside from vague references to certain units having more square footage. This echoes the sentiment of some of the people who have been replying to this thread.

2. This tells me the threatening email was sent out en masse to the whole community without any followup explanation. I'm still not 100% convinced they won't come after me for something or another, but I feel comfortable after enduring this in replying 'you built it, so shove off'.

3. I am mildly tempted to go to the next meeting and give a speech where I explain their actions of the past few years to be hostile and clearly done with the belief the whole neighborhood is their 'enemy' and ask them to resign and fire our property management company. They should exist to help the community, not attack it.

4. When they came by they supposedly were mostly interested in inspecting for wasps. My unit has no access to the crawl space between the units where the wasps might get in. So, there's nothing to inspect. Again, because they built it like that and mysteriously removed the door. I discovered recently that the extra door sitting in my porch shed is the one that used to be up there. Comical.

5. That being said, apparently the addition of a structurally unsound 3rd bedroom and other things could affect our group insurance policy. Bizarre things like having a W/D unit in the attic area or structurally unsound living areas seem to be what they are concerned about. Apparently a condominium nearby collapsed the top floor because someone converted it to be a bedroom. The owners went bankrupt and probably left the HOA with an unlivable unit that insurance might not have covered - and other owners stranded without a home.

6. I discovered I can use Redfin to browse the modifications done by other units. Neat.

JamesE11 (Washington)
Posts: 11

Posted:

Addendum:

They seem to believe the 'crawl space' is...

1. An oddball room adjacent to the attic with a door. This is a finished area in mine with drywall, insulation, and carpeting.
2. A small area behind the wall in our attic between units where a vent from the stove leads.

I don't know where they get this distinction, as I've never seen the floor plans. Although it echoes the 'common sense' explanations given here.

Further, our original declarations is largely the same as the current one. (A point they mentioned in an email back to me - they were happy that the declarations had not changed much over time.)

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By JamesE11 on 09/13/2017 10:40 AM

3. I am mildly tempted to go to the next meeting and give a speech where I explain their actions of the past few years to be hostile and clearly done with the belief the whole neighborhood is their 'enemy' and ask them to resign and fire our property management company. They should exist to help the community, not attack it.

If you're seriously interested in a change of the leadership, rather than grandstanding at a board meeting you should find people who are interesting in running for the board and campaign to support them at the annual elections.

Escaped former treasurer and director of a self managed association.

TimM11
Posts: 354

Posted:

Quote:

Posted By JamesE11 on 09/13/2017 10:40 AM

6. I discovered I can use Redfin to browse the modifications done by other units. Neat.

You may also be able to search the permits that have been pulled in your city for any work that's been done that requires a permit. Mine allows searches by address. For example, I've used it to see how many people in my complex have had water heaters and furnaces replaced.

PainintheA
Posts: 43

Posted:

a finer point re: construction

either

attic has joists and rafters

or

attic has trusses

if trusses, the floor of said attic is NOT load bearing and is unsuitable for occupancy EXCEPT perhaps for storage of lightweight NONflammable items

(one reason for the Certificate of Occupancy 'system' and requirement for permits)

DaveD3 (Michigan)
Posts: 796

Posted:

Quote:

Posted By PainintheA on 09/13/2017 4:02 PM
a finer point re: construction

either

attic has joists and rafters

or

attic has trusses

if trusses, the floor of said attic is NOT load bearing and is unsuitable for occupancy EXCEPT perhaps for storage of lightweight NONflammable items

(one reason for the Certificate of Occupancy 'system' and requirement for permits)

I assure you that trusses can create living space
http://www.swawou.org/media/2017/08/08/bonus-room-roof-plans-room-attic-office-space-attic-truss-roof-trusses-attic-conversion-room_6581bd249afd029f.jpg

PainintheA
Posts: 43

Posted:

your pic shows prefabricated joist and rafter construction

albeit 'trusslike' it is NOT truss construction

the trusses to which I refer are 2x4

http://americantimbertruss.com/images/timber-truss-designs.jpg

all but the 'attic' type is NON loadbearing for the 'floor'

IN ANY EVENT - Code and Permits shall prevail

JamesE11 (Washington)
Posts: 11

Posted:

[ If you're seriously interested in a change of the leadership, rather than grandstanding at a board meeting you should find people who are interesting in running for the board and campaign to support them at the annual elections. ]

Agreed. While one can fantasize about it, playing that card is largely going to have a negative result unless you're hoping for an angry mob situation. Which isn't going to end well because you're just as likely going to be trading one angry HOA for another one.

--

That being said, there was an interesting development last night where a member mailed out to all owners echoing a lot of the frustrations with our HOA. In their words they were afraid (among other things) how our board appears to go around spying constantly, which I have come to believe (from my own observations and experience) is an accurate assessment. Their email to everyone kicked off a flurry of responses. I messaged this person back privately and hinted they would probably be inviting an attack by the board. Predictably, an immediate response to her original message followed from the board stating they will involve our management company's lawyer to prevent homeowners from emailing each other (quoting privacy issues, although I don't know how you can prevent someone from emailing a group thread). Needless to say, the HOA's threat was not well received and kicked off more angry emails over the night that kept my phone buzzing until I shut it off.

--

I would think this should be more of a cautionary tale about how communication breaks down. Most of what homeowners receive is confusing, conflicting (often in hindsight), and seems to indicate panicked/sudden responses to situations. This exact situation is what I suspected would eventually happen, based on the board's passive-aggressive and outwardly aggressive ways they communicate. I was not sure if the forced remodeling email would be the tipping point, but we were clearly heading down a dark road. Making enemies of most of the homeowners is probably not going to get our deeper problems fixed, but is going to tie up those real problems (like whatever dangerous structural faults they found in some of the units) indefinitely and leave a bitter and resentful group. Who, I suspect, is going to get together and vote them out soon.

It is interesting that the board appears to believe they are being clear (stated in one of their responses to me), and our declarations are clear, yet I've had lawyers and people here going around in circles trying to debate the meaning of terminology and what their emails mean. There are many better ways to handle these situations. At the root I think they need to first educate and involve homeowners in decisions before pulling out the last-ditch remedies with our lawyers.

Anyway. Interesting times to observe and interesting enough to share since people were so interested in puzzling out the attic problem. (Thank you, by the way!)

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JamesE11 on 09/14/2017 1:54 PM
[ If you're seriously interested in a change of the leadership, rather than grandstanding at a board meeting you should find people who are interesting in running for the board and campaign to support them at the annual elections. ]

Agreed. While one can fantasize about it, playing that card is largely going to have a negative result unless you're hoping for an angry mob situation. Which isn't going to end well because you're just as likely going to be trading one angry HOA for another one. Disagree ... running for an open Board of Director position at one of your Annual Meetings will not anger your fellow homeowners. If your homeowner's on other hand call for a Recall Meeting that could be a situation which would divide an HOA, but simply gathering like minded individuals to run for open vacancies will be good.

--

That being said, there was an interesting development last night where a member mailed out to all owners echoing a lot of the frustrations with our HOA. In their words they were afraid (among other things) how our board appears to go around spying constantly, which I have come to believe (from my own observations and experience) is an accurate assessment. Their email to everyone kicked off a flurry of responses. I messaged this person back privately and hinted they would probably be inviting an attack by the board. Predictably, an immediate response to her original message followed from the board stating they will involve our management company's lawyer to prevent homeowners from emailing each other (quoting privacy issues, although I don't know how you can prevent someone from emailing a group thread). Needless to say, the HOA's threat was not well received and kicked off more angry emails over the night that kept my phone buzzing until I shut it off.

LOL ... if the Board believes for one second that their Management Company's attorney can PREVENT "Freedom of Speech" they are having very wet dreams. The homeowner's would need to have access to "confidential information" such as items under legal litigation to be held to any privacy issues. Sorry ... owners stating their feelings to each other regarding the HOA would not fit this description.
--

I would think this should be more of a cautionary tale about how communication breaks down. Most of what homeowners receive is confusing, conflicting (often in hindsight), and seems to indicate panicked/sudden responses to situations. This exact situation is what I suspected would eventually happen, based on the board's passive-aggressive and outwardly aggressive ways they communicate. I was not sure if the forced remodeling email would be the tipping point, but we were clearly heading down a dark road. Making enemies of most of the homeowners is probably not going to get our deeper problems fixed, but is going to tie up those real problems (like whatever dangerous structural faults they found in some of the units) indefinitely and leave a bitter and resentful group. Who, I suspect, is going to get together and vote them out soon. If the HOA takes this road the need to have individuals lined up ahead of time who are willing to take on the positions.

It is interesting that the board appears to believe they are being clear (stated in one of their responses to me), and our declarations are clear, yet I've had lawyers and people here going around in circles trying to debate the meaning of terminology and what their emails mean. There are many better ways to handle these situations. At the root I think they need to first educate and involve homeowners in decisions before pulling out the last-ditch remedies with our lawyers. LOL ... I think you should run for a Board position!!! You have open eyes on the situation and YOU understand that open, clear honesty is the best policy. YEP ... You are a perfect individual to step up to the plate for a while to move your HOA forward and get them on the right track.

Anyway. Interesting times to observe and interesting enough to share since people were so interested in puzzling out the attic problem. (Thank you, by the way!)

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