Owner refusing access

Started by PaulM30 • 12 replies • 614 views

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PaulM30 (B)
Posts: 41

Posted:

We have a 15 unit condo building, with several decks and balconies which are defined as limited common elements. Two of the balconies are starting to rot, and an engineering firm has confirmed that they are structurally unsound and will require work. The owner who originally pointed this problem out to us, is an elderly woman whose deck is below one of the balconies in question. She first noticed the problem when pieces of wood from the balcony above started to fall onto her deck. We are searching for companies who will be able to do the work, and the first few bids have made it clear to us that we will require a special assessment to pay for it. We gave the owners a 'heads up' email to alert them to the issue, and to warn them that a special assessment later this year is likely, and the reason why. The woman who originally reported the problem is now saying that the board are overstepping their authority by using HOA reserve funds to pay for owners balconies, and is refusing access to her deck for the engineering firm to even inspect the deck above her. For context, the woman is very elderly and her health is suffering, and she is extremely difficult to deal with.

Has anyone else faced a similar situation? I'm sure we could use the HOA rules and regs to fine her, but obviously that won't get us into her unit if she refuses. We don't have a lawyer and would prefer to be able to resolve it without one, but so far all attempts to communicate with her via email have fallen on deaf ears, and she is refusing to speak to anyone in person.

AugustinD
Posts: 5,144

Posted:

The only safe way I see to get around this is to use an attorney. Under no circumstances should the HOA enter the unit without an attorney's blessing. I think the chances are fair to likely that, at a minimum, the threat of a court order may be required.

SheliaH (Indiana)
Posts: 6,964

Posted:

Does she have any family you can talk to? If so, you might reach out to them - it may be her health issues are an underlying cause of her behavior. Health issues also mean hefty bills, even with insurance, so worrying about that is likely to be a cause as well. Right now, I think fear is driving this, so talking to her about her concerns may be a place to start.

Note that if the problem can't be fixed it can lead to injury and remind her SHE's the one who pointed this out in the first place and so the engineering firm needs to be able to do its job so it can determine the extent of the problem and what it cost to fix it, and then the association can address if a special assessment will be necessary. If it comes to that, the board will look at ways this can be paid over time so not to put a huge burden on the homeowners.

Document this conversation by sending her a letter recapping what was said and when - send a copy to your association attorney. In fact, talk to him or her to see if there are other approaches to consider. If she still says no, you may have to inspect the rest of the property as best you can and ask the attorney if her failure/refusal to cooperate may result in her paying a higher special assessment to fix her portion of the property because she refused to cooperate. She may also be putting herself at risk if someone in the unit above her is injured and then comes after HER because of that refusal.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By PaulM30 on 02/21/2020 9:59 AM
Has anyone else faced a similar situation? I'm sure we could use the HOA rules and regs to fine her, but obviously that won't get us into her unit if she refuses. We don't have a lawyer and would prefer to be able to resolve it without one, but so far all attempts to communicate with her via email have fallen on deaf ears, and she is refusing to speak to anyone in person.

What about snail-mail USPS Certified mail? To be honest, from the way you've described her, it's surprising she uses email at all.

If she ignores your certified mail then the next one should be from an attorney.

KerryL1 (California)
Posts: 14,550

Posted:

Good relies here, PaulM. It would be great if a relative could urge & convince here to allow the engineers onto her balcony via her unit. But if not, can it be accesseed from the exterior, e.g., via a basket or whatever is used for window washing? Or even a ladder?

Re; who pays for the balance reprise/replacement. If you have not been building funds in reeves for this eventual work, perhaps the HOA should not pay. Perhaps Owenrs are each responsible for their own balconies. What do your CC&Rs say about this topic? Who's responsible for repairs/replacement of limited or exclusive use common areas that are attached to a unit?

It may be you'd need an attorney to interpret this for you and you state's statutes may come into play too.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

There is likely a city or county office that assists in dealing with this sort of a situation.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Paul

You say the person's deck. Is it ground or near ground level? Meaning can one get to it without passing through her unit? If a private use, common area, it can be entered on for association business even if she does not like it.

PaulM30 (B)
Posts: 41

Posted:

Quote:

Posted By JohnC46 on 02/21/2020 2:33 PM
Paul

You say the person's deck. Is it ground or near ground level? Meaning can one get to it without passing through her unit? If a private use, common area, it can be entered on for association business even if she does not like it.

Her deck is also the roof of the ground floor garage. basically the ground level back of the building is a small garage consisting of 4 parking spots. The roof of the garage is also the deck for the two unit at the rear of the building on the second floor, and then the 2 units on the 3rd floor have balconies which protrude from the building. that is a good point, they could probably just get up there via a ladder.

KerryL1 (California)
Posts: 14,550

Posted:

So, a ladder will work. You still want as a courtesy give her notice that engineers will enter her desk via ladder to xxx on date/time.

You do, I think, need to make sure your board knows who pays to repair/replace these decks.

PaulM30 (B)
Posts: 41

Posted:

Quote:

Posted By KerryL1 on 02/21/2020 11:41 AM
Good relies here, PaulM. It would be great if a relative could urge & convince here to allow the engineers onto her balcony via her unit. But if not, can it be accesseed from the exterior, e.g., via a basket or whatever is used for window washing? Or even a ladder?

Re; who pays for the balance reprise/replacement. If you have not been building funds in reeves for this eventual work, perhaps the HOA should not pay. Perhaps Owenrs are each responsible for their own balconies. What do your CC&Rs say about this topic? Who's responsible for repairs/replacement of limited or exclusive use common areas that are attached to a unit?

It may be you'd need an attorney to interpret this for you and you state's statutes may come into play too.

funny you should say that, but I just read the CC&R's and now I'm actually not sure who is responsible.The declaration doc says

'However, the assocation shall not be responsible for the maintenance, repair and/or replacement of exterior doors (except refinishing), window glass, screens, fondations, light bulbs, electrical fixtures, or electrical facilities (such as electric eyes), or Limited Common element (including air conditioning compressors that are limited common elements).'

It then says..

'Subject to the sections 8.4 (acts or omissions) and 9.2 (access easement) of this declaration, the owner of each unit shall be solely responsible for maintaining, repairing and replacing such owners unit, the improvements therein, and the limited common element appurtenant to such unit......Each owner shall keep the limited common elements, or portions thereof, appurtenant to such owners unit, in a clean, sanitary, and attractive condition and order, and in good repair'.

Now I'm really confused, as that seems crazy to me. For example, my unit is on the top floor, so my deck is also part of the roof of the building, but I wouldn't expect to have to pay if the membrane underneath my deck caused a leak into the buidling, as surely that's part of the perimeter of the building, it just happens to be underneath my deck. I can understand that maybe painting the railings, cleaning under the decking etc could be a owner issue, but to me this is a structural problem with the balcony.

I think you're right, we'll definitely need to get a lawyer to advise us here.

PaulM30 (B)
Posts: 41

Posted:

Quote:

Posted By KerryL1 on 02/21/2020 3:16 PM
So, a ladder will work. You still want as a courtesy give her notice that engineers will enter her desk via ladder to xxx on date/time.

You do, I think, need to make sure your board knows who pays to repair/replace these decks.

Yeah, this is the tricky part. If it were just replacing the decking or something relatively superficial, then I can see that being an owner responsibility, but we're talking about the actual structure that holds the balcony up. I'd be amazed if that's an owner responsibility, but the docs aren't that clear. To me, owneers being responsible for the maintenance of the balcony means the HOA isn't going to pay for snow removal, cleaning etc...not that you'll be stuck with a $20k bill for an engineering firm to replace the beams which keep the balcony from falling off the side of the building!

MarshallT (New York)
Posts: 414

Posted:

As others have recommended here, at the very least, seek legal counsel before proceeding. Do not attempt to enter her unit if she refuses. A court order may be the best solution here.

LetA (Nevada)
Posts: 2,679

Posted:

How about finding a commercial drone pilot to assist the general contractor to inspect the deck.. That way you won't be stepping on her property.

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