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KASS: Condo owners need their own attorney

DEAR BENNY: My sister and her husband own a condo that recently had one of the decks in the condo development collapse. The resident on the deck suffered a broken back. Now there is conflicting information on what repairs need to be made to all the decks. The condo association has a board. Apparently the residents were told that the city had condemned all the decks and they all had to be replaced. But later the village said they had not taken that position. The property management association hired its own engineers to evaluate the decks and they said all the decks had to be replaced. The board also relies on the attorney who represents the management association.

Three questions. One, should the board hire its own attorney to represent the condo owners, since relying on the attorney of the property manager might be a conflict of interest? Two, should the board (or the individual owners) hire their own engineering firm to evaluate the decks? Many of the residents think not all the decks need to be replaced or could be repaired without replacing them. Three, can you recommend a book on associations and their dealing with property managers? – Neil

DEAR NEIL: Your last question is the easiest. Go to the Community Association Institute (caionline.org) and you will find a wealth of information, including books on every single topic you can think of, plus more.

Absolutely, you cannot rely on the attorney for the property manager. He or she does not represent the association and, most likely, owners cannot claim “attorney-client privilege” for communications with that attorney. While the attorney may be providing the correct information, the board must still have its own counsel.

Yes, the board should hire its own engineering people to assess each and every deck. And if work must be done, management must get at least three bids. The board – and not management – must make the decision as to which company to use.

It is puzzling to me you were told that all decks must be replaced when the city later denied that statement. Does management somehow get a kick-back from the contractors?

There is yet another problem, probably more significant than replacing the decks. What is the board doing about the injury to the unit owner? Again, this is something that the association’s attorney – not management – must be involved since the association may be sued as a result of the injury.

DEAR BENNY: I purchased my townhouse in an over-55 community with an HOA 3 ½ years ago.

The paid inspector said everything was 100 percent. I have had four water claims.

Roofing, guest bathroom (mold & mildew), and master bathroom (water under shower floor and behind walls.) The insurance company paid but will not renew because I am “considered a bad risk.” All the repairs have been done.

The homeowners association says it is in the by-laws that I must have insurance or they will send me a summons and put a lien on my house. I don’t owe them money. The developer formed the association and hired the contractor, who did not build the homes to code. And I am not the only homeowner with these problems. The only homeowner’s insurance I am able to buy is from independent agencies at a price of $6,300 per year.

I certainly cannot afford this premium. So they say, “Move.” I am 78 years old, I am looking at health challenges that can strike at any time. Can you please shed some information on this problem for me? – Toby

DEAR TOBY: You are not alone; this is a serious problem all older community associations are starting to face. The buildings were built years ago, and may not have been properly maintained over the years. Pipes are bursting, walls are crumbling.

You are referring to what is known as “forced-placed” insurance; if you do not renew your policy, or are delinquent, the lender arranges to “force-place” a policy. And the lender gets a piece of the pie.

I will leave for another column the issues involving damage to common elements. Assuming your pipes serve only your unit, it is your responsibility to pay to correct them. That’s why you should have individual insurance, called an HO-6 policy.

You have had so many claims that the insurance company calls you a bad risk. But you need insurance. I would contact the insurance commissioner in your state and see what assistance they can provide. I would also contact your local AARP office; they may also be helpful.

Finally, if there is any equity in your townhouse, you might want to consider obtaining a reverse mortgage. That should always be a last resort, but in your situation, I believe it is the right thing to do, assuming you can qualify.

Benny Kass is a practicing attorney in Washington, D.C. and in Maryland. He is not providing specific legal or financial advice to any reader. He wants readers to e-mail him, but cannot guarantee a personal response. He can be reached at: mailbag@kmklawyers.com.

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